C-56/99

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II — Applicable Community law The organisation shall take one of the following forms, depending on the product concerned:

A — EC Treaty provisions (...)

2. Amongst Community policies the EC (c) a European market organisation. Treaty expressly mentions (Title II) agricul- ture (Articles 38 to 47, now Articles 32 to 38 EC) to which the common market established by it is to extend (Article 38 3. (...) of the EC Treaty, now, as subsequently amended, Article 32 EC).

The common organisation shall be limited to pursuit of the objectives set out in Article 39 and shall exclude any discrimi- 3. Article 39(1) of the EC Treaty (now nation between producers or consumers Article 33(1) EC) sets out the objectives of within the Community. the common agricultural policy which are, inter alia, (b) to ensure a fair standard of living for the agricultural community, in particular by increasing the individual (...)' earnings of persons engaged in agriculture; and (c) to stabilise markets.

— of a weight of not more than the 7. Taking the view that improvement of the average slaughter weight of calves in market in beef and veal required a reduc- the Member State concerned, less 15%. tion in the number of finished animals The average slaughter weight per offered on the market with greater encour- Member State shall be that deriving agement for withdrawal and/or marketing from Eurostat statistics for 1995 or any of young, light animals, 5the Council, first, other official published statistical infor- modified the rules governing the processing mation for that year accepted by the premium in respect of young male calves Commission, originating in the Community which are withdrawn from production before they are over 10 days old, or 20 days old provided they take the necessary measures to ensure that in the latter case the animals are excluded from entering the human food chain (Article 4i(1) o f Regulation — held, immediately before slaughter, in No 805/68, as amended by Regulation the Member State of slaughter for a No 2222/96) and, secondly, made provi- period to be determined.' 6 sion in paragraph 2 of that article for the 6 — Paragraph 3 of that article provides that, during the period 1 December 1996 to 30 November 1998, each Member State must apply at least one of the two schemes referred to 4 — See, on this point, the first recital in the preamble to in paragraphs 1 and 2. France chose to apply both schemes, Regulation No 2222/96. that is to say it decided to grant premiums both for the 5 — See, i n this regard, the eighth recital in the preamble to processing of young male calves and for the early marketing Regulation No 2222/96. of calves.

6. The Commission shall check, six months after the entry into force of the schemes referred to in this Article, whether such — shall determine the m a x i m u m calf schemes have achieved satisfactory results. slaughter weights referred to in para- graph 2 which are applicable in each Member State,

Should this not be the case, the Commis- sion shall submit an appropriate proposal to the Council, on which the Council, — shall set the processing premium at a acting by a qualified majority, shall decide level or, where appropriate, levels taking into account, in particular, the enabling a sufficient number of calves distribution of adjustment efforts between to be withdrawn from production in the Member States and possible distortions line with market requirements, to trade.'

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(...). 8

7 — Commission Regulation (EEC) No 3886/92 of 23 Decem- ber 1992 laying down detailed rules for the application of the premium schemes provided for in Council Regulation Whereas production and consumer expec- (EEC) No 805/68 on the common organisation of the tations vary considerably between Member market in beef and repealing Regulations (EEC) No 1244/82 and (EEC) No 714/89 (OJ 1992 L 391, p.20). States; whereas they should therefore be 8 — Under the second subparagraph of paragraph 1, 'the given a choice between the processing slaughter shall take place in a slaughterhouse which makes a commitment to the competent authority to participate in premium and the early marketing premium, the proper implementation of the premium scheme, in particular as specified in Articles 50a and 50b.' Under but must be required to implement one or paragraph 2, 'the carcase weight of each animal shall be the other during the period 1 December established following the carcase specification used for the establishment of the statistical production of veal in 1995 as 1996 to 30 November 1998; communicated to the Statistical Office of the Commission.'

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12. Annex IV, which determines maximum — ECU 60 per animal slaughtered after carcase weight of veal calves in the Member January 1997.' States as referred to in Article 50, (1), is set out as follows:

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maximum carease weight for eligible veal 18. Article 1 of Commission Regulation calves, and that, after verification of those (EC) No 616/97 14 amended Article 50(3) statistics, the Commission agreed to their of Regulation No 3886/92 15 by inserting a being used instead. third indent in the first subparagraph under which the amount of premium per animal slaughtered on or after 14 April 1997 was increased to ECU 50. It also increased the amount provided for in the second subpar- agraph of that provision to ECU 30 and 15 17. Article 1 of Commission Regulation respectively for animals slaughtered (EC) No 200/97 12 inserted the following between 14 April and 30 June 1997 and new subparagraph to Article 50(3) of Reg- to ECU 15 and 7.5 respectively for animals ulation No 3886/92 13: slaughtered between 1 July and 31 Decem- ber 1997.

for such light carcases; and that, against and from the observations of the French that background, in order for the early- Government, that those decisions were marketing premium to have the desired taken on 14 May, 11 and 20 June 1997 effect on the beef market a supplementary respectively and that they were based on amount should be granted on those car- the fact that the calves for which premium cases as a transitional measure in accor- was claimed exceeded 108 kg in weight. dance with Article 2 of Regulation (EC) No 2222/96; and that, in that context, it is appropriate to provide for a differentiation of the supplement with reference to certain weight groups. Finally, Regulation 24. Under those circumstances the Paris No 616/97 adjusted the amounts of pre- Administrative Court took the view that mium granted. resolution of the dispute before it and assessment of whether Gascogne's claim was well founded were dependent on 'ascertaining whether the above provisions of Article 40 of the Treaty of 25 March 1957 preclude the adoption of aid measures benefiting products differently depending III— Facts and preliminary question on criteria established at national level, albeit those products may be marketed in all of the Community Member States.' 21. Gascogne Limousin Viandes SA (here- inafter 'Gascogne') is a company incorpo- rated under French law which produces fresh veal products.

IV — Reply to the preliminary question

28. Thus, the Court held to be inadmissible a preliminary question whose underlying facts could be established only by an analysis of the pleadings of the applicants in the main proceedings which are not communicated to the governments of the Member States and the other parties desir- 27. As the Court has consistently held, the ous of submitting written observations. 21 need to provide an interpretation of Com- munity law which will be of use to the national court makes it necessary that the national court define the factual and legis- lative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are 29. However, if the case-file forwarded by based. 16 The information provided in the national court and the written observa- orders for reference must not only be such tions submitted by the parties to the main as to 'enable the Court usefully to reply' proceedings 'have given the Court enough but also such as to give 17 the Governments information to enable it to interpret the of the Member States and other interested parties the opportunity to submit observa- tions pursuant to Article 20 of the EC 18 — See, for example, judgment in Albany (paragraph 40), as well as orders in Modesti (paragraph 5), Lahlou (para- graph 5) and Grau Gomis and Others (paragraph 10), cited at footnote 16 above. 16 — See judgments in Case C-67/96 Albany [1999] ECR 19 — See judgment in Joined Cases 141/81, 142/81 and 143/81 I-5751, paragraph 39; Joined Cases C-320 to 322/90 Holdijk and Others [1982] ECR 1299, paragraph 6, and Telemarsicabruzzo [1993] ECR I-393, paragraph 5; Case the orders (cited above at footnote 16) in Modesti C-316/93 Vaneetveld [1994] ECR I-763, paragraph 13 and (paragraph 5), Lahlou paragraph 5; and Banco de in Case C-83/91 Meilicke [1992] ECR I-4871, paragraph Fomento e Exterior (paragraph 7), as well as order in 26. See also orders in Case C-157/92 Banchero [1993] Case C-101/96 Italia Testa [1996] ECR I-3081, paragraph ECR I-1085, paragraph 4; Case C-386/92 Monin Auto- 5. mobiles [1993] ECR I-2049, paragraph 6; Case C-191/96 20 — See judgments in Albany (cited above at footnote 16, Modesti [1996] ECR I-3937, paragraph 4 and Case paragraph 40) and Holdijk and Others (cited above at C-326/95 Banco de Tomento e Exterior [1996] ECR footnote 19, paragraph 6), and orders (cited above at I-1385, paragraph 6; Case C-167/94 Grau Gomis and footnote 16) in Saddik (paragraph 13) and Grau Gomis Others [19951 ECR I-1023, paragraph 8 and Case and Others (paragraph 10). C-458/93 Saddik [1995] ECR I-511, paragraph 12. 21 — See order in Joined Cases C-28/98 and C-29/98 Charreire 17 — That is to say the information provided. and Hirsmann [1999] ECR I-1963, paragraph 11.

22 — See judgments (cited above at footnote 16) in Vaneetveld 25 — See, by way of illustration, judgments in Case 13/68 Salgoil (paragraph 16) and Teletnarsicabruzzo and Others (para- [1968] ECR 661; Case 126/80 Salonia [1981] ECR 1563, graph 9) (a contrario interpretation). See also Opinion of paragraph 6; Case C-368/89 Crispoltoni [1991] ECR Advocate General Jacobs in Vaneetveld (paragraphs 6 and I-3695, paragraph 11; Case C-186/90 Durighello [1991] ECR I-5773, paragraph 9; Joined Cases C-332/92, 23 — None the less, the requirement to define the factual and C-333/92 and C-335/92 Eurico Italia and Others [1994] legislative context of the questions is less pressing where ECR I-711, paragraph 17; Case C-62/93 BP Supergas the questions relate to specific technical points and enable [1995] ECR I-1883, paragraph 10; Case C-143/94 Furlanis the Court to give a useful reply even wnere the national [1995] ECR I-3633, paragraph 12; Case C-472/93 Spano court has not given an exhaustive description of the factual and Others [1995] ECR I-4321, paragraph 15 and, finally, and legal situation; see judgment in Vaneetveld (cited Case C-415/93 Bosman [1995] ECR I-4921, paragraph 61. above at footnote 16, paragraph 13) and order in Banco de 26 — See judgments in Case 244/80 Foglia v Novello [1981] Fomento e Exterior (cited above at footnote 16, paragraph ECR 3045, paragraphs 18 and 20 and Case 149/82 Robards [1983] ECR 171, paragraph 19. See also judg- 24 — See, for example, judgment in Case 83/78 Redmond [1978] ments in Joined Cases C-422 to 424/93 Zabala Erasun and ECR 2347, paragraph 25 and, more recently, judgments in Others [1995] ECR I-1567, paragraph 29 and Case Case C-343/90 Lourenço Dias [1992 ECR I-4673, C-346/93 Kleinwort Benson [1995] ECR I-615). See, on paragraph 15 and Case C-355/97 Beck and Bergdorf this point, also Opinion 1/91 [1991] ECR I-6079, para- [1999] ECR I-4977, paragraph 22. graph 61.

35. Moreover, Gascogne considers that it- was wrong for the statistics supplied to Eurostat by the Member States to be used in calculating the reference weight. It explains that veal carcases are not uniform 34. More specifically, Gascogne points out as regards weight but that, within the same that uniform application of the 15% reduc- country, different carcases arc offered for tion to the average carcase weight of calves consumption depending on eating habits slaughtered in each Member State imposed and trading practices. under Regulation No 2222/96 requires French producers to reduce the carcase weight of their calves to less than 108 kg in order for them to be eligible, whereas the average weight of carcases produced in France is traditionally 127 kg. The refer- ence weight of 108 kg is absolutely irre- concilable with normal marketing of that carcase on the French market. 28 At the 36. It goes on to explain in detail that there same time competing producers in the is no common definition of calves for Netherlands, the second major producing slaughter and of their characteristics nor country in Europe, exporting 95% of its are there any uniform reliable Community production, have been granted a reference statistics in that regard, with the result that, weight of 138 kg per carcase, which puts by increasing without objective justifica- tion the weight difference as between carcases eligible for premium in the Nether- 27 — Gascogne observes, first, that the rearing of calves for lands and France, Regulation No 2222/96, slaughter is an essential sector of meat production in which is based on those statistics, worsened France, which is the chief producer of veal in Europe. However, over the past ten years there has been a the discrimination against French produ- continuing increase in Netherlands production. Consump- tion is centred principally in France, Italy and, to a lesser cers in breach of the second and third extent, in Germany. subparagraphs of Article 40(3) of the 28 — According to Gascogne, French producers have to opt Treaty. The question arises as to the extent either for production of carcases heavier than 108 kg, which are not eligible for premium, or for production of to which, in choosing that criterion, the carcases of a weight equal to or less than 108 kg, which are indeed eligible but suffer a decline in value put by certain Council infringed the principle of non- producers at around FRF 4 per kg/carcase, that is to say FRF 450 per calf, an amount which in the end exceeds the discrimination and the principle of propor- premium of around FRF 400. tionality, which are higher-ranking princi-

pies, because, according to Gascogne, in discernible from the high percentage of applying the principle of equal treatment, Netherlands producers who participated in the principle of proportionality must be the programme in relation to their French observed. competitors. 30 It further maintains that those disadvantages for French producers were not removed by adoption of the provision for differentiation of the pre- mium laid down in Regulation N o 200/97. 37. Finally, according to Gascogne, by For that reason, it was necessary, following uniformly reducing national carcase the BSE crisis, to maintain in each Member weights eligible for early-marketing pre- State the equilibrium of the sector of calves mium for calves, which itself is uniform for slaughter. (apart from the abatement provided for in Regulation No 200/97), Regulation N o 2 2 2 2 / 9 6 imposed an u n w a r r a n t e d excessive burden in a totally uneven man- ner. 29 The uniform coefficient of 1 5 % applied to the average weight of carcases of animals slaughtered in each Member State takes no account of the average weight looked for on the market which determines the burden and the actual impact of the regulation on its addressees. French producers are being severely pun- ished, not only in regard to exports owing (b) Reply to the preliminary question to the fact that the main export markets, Italy and Germany, are consumers of heavier carcases than those acceptable in France, but also and chiefly on their own national market on which the heavier Dutch carcases benefiting from premium are sold, whereas they themselves are exposed to that competition without ben- efit of premium. As the French Government 39. The issues raised will be examined as points out, Community legislation in the follows: (1) after a review of the Court's end benefited and profited traders produ- case-law on the extent of the institutions' cing the heaviest carcases. competence in regard to agricultural policy, (2) I shall examine whether adoption of the measure at issue resulted in an infringement of either the principle of non-discrimina- tion — the issue raised by the national 38. The French Government considers that the distortion of competition is plainly 30 — It states that, from December 1996 to the end of December 1998, only 726 000 applications for premium were lodged in France, corresponding to 1 8 % of French production, whereas at the same time more than a million applications 29 — The French Government stresses that the slaughter of were lodged in the Netherlands, corresponding to 3 5 % of calves under the usual weight involves additional expense Netherlands production. At the same time, quantities of (increased costs of slaughtering and butchering etc.) which veal imported into France from the Netherlands have it puts at ECU 4 per animal slaughtered. increased.

40. The Court has consistently held 31 that, in regard to the common agricultural policy, 'the Community institutions have a wide discretionary power (...) which reflects the responsibilities which the Treaty imposes on them.' That means that 'when a situation necessitates the evalua- (2) Infringement of principle of non-discri- tion of a complex economic situation, as is mination the case concerning the common agricul- tural policy, the Community legislature enjoys a wide discretion as to the nature and scope of the measures to be taken.' 32 Likewise the Court is of the view that, as regards the common organisation of a market in specific products, the Council 4 1 . The Court has consistently held 3 4 that, has a wide margin of discretion and the under the second subparagraph of Arti- Court limits its review to the exercise of that discretion. Thus, in its judgment of 33 — C a s e 138/79 Roquette Hires v Council [1980] FCR 3 3 3 3 , paragraph 25 concerned the fixing of production quotas for isoglucose. That judgment applied the solution adopted 31 — Ilustrative of the line of authority in this connection are the by the Court in its judgment of 12 July 1979 in Case judgments in Case C-375/96 Zamnotlo [1998] ECR 166/78 Italy v Coucil [1979] ECR 2575, paragraph 14, I-6629, paragraph 46 and Joined Cases C - 1 3 1 / 9 1 , which concerned the premium for production of potato C-300/93 and C-362/93 Cnspnltim [1994] ECR I-4863, starch. paragraph 31. 34 — See, hv way of illustration, judgments in Case C-31 1/90 32 — See judgment in Case 84/87 Erpeldmg [1988] ECR 2647, Hierl [1992] ECR I-2061, paragraph 18 and Case 203/86 paragraph 27. See also judgments in Case 179/84 Bozzelli Spam v Council [1988] ECR 4563, paragraph 10, as well [1985] ECR 2 3 0 1 , paragraph 30; Case 265/87 Schmier as the judginents (already cited at footnote ,12) in [1989] ECR 2237, paragraphs 22 et seq. and Joined Cases Erpeldtng (paragraph 29) and Wmdart and Olheis (para- C-267 to C-285/88 Wmdarl and Others [1990] ECR graph 11) and in Case C-63/93 liitti and Others [1996] I-435, paragraph 14. ECR I-569, paragraph 26.

42. However, the Court has held that 'the principle of non-discrimination does not preclude a Community regulation which introduced a system of guarantee thresh- olds for the entire Community involving a reduction in the production aid of the 44. In the present case the Council, in the relevant producers of all the Member exercise of that power, chose to grant, States, even if exceeding those thresholds subject to certain conditions, an early was not due to an increase in production in marketing premium for calves in order to all those States. It ruled that in a common restabilise and restore to health the beef- organization of markets with no system of meat sector. Moreover, for the purposes of national quotas all Community producers, granting the premium, the Council deemed regardless of the Member State in which the most appropriate criterion to be that of they are based, must together, in an egali- the average weight of carcases of calves tarian manner, bear the consequences of the slaughtered in the Member State concerned decisions which the Community institu- reduced by 15% in order to enable the tions are led to adopt, in the exercise of quantity corresponding to each region to be their powers, in order to respond to the risk attained. of an imbalance which may arise in the 36 — See judgments in Crispoltoni (cited above at footnote 31, paragraph 51) and Case C-27/90 SITPA [1991] ECR 35 — See, by way of illustration, judgment in Case C-56/94 1-133, paragraph 20. Crispoltoni concerned the validity of SCAC [1995] ECR I-1769, paragraph 27 and the older Council Regulation (EEC) No 1738/91 of 13 June 1991 authority of 13 December 1989 in Joined Cases C-181/88, fixing, for the 1991 harvest, the norm and intervention C-182/88 and C-218/88 Deschamps and Others v Opval prices and the premiums granted to purchasers of leaf [1989] ECR 4381, paragraph 18. See also judgments in tobacco, the derived intervention price for baled tobacco, Crispoltoni (already cited at footnote 31, paragraph 51) the reference qualities, the production areas and the and Case 106/83 Sermide [1984] ECR 4209, paragraph guaranteed maximum quantities and amending Regulation 28. (EEC) No 1331/90 (OJ 1991 L 163, p. 13).

45. The Council specifically adopted Reg- choice of that percentage by the Council ulation No 2222/96 in order to restore was manifestly erroneous. balance to the market in beef and veal which had been seriously disturbed, mainly as a result of consumer fears concerning bovine spongiform encephalopathy (BSE), and the sharp fall in consumption and the resultant collapse in prices paid to produ- cers. 37 In order to achieve that objective, 46. Moreover, as the Council and the the Council, exercising its wide margin of Commission rightly emphasise, the choice discretion which enabled it to adopt the of the criterion of the average carcase requisite measures in order to restabilise weight in the whole of the Community and restore to health the market affected, would not have been an appropriate mea- decided to determine eligibility for pre- sure for attaining that objective, for two mium of calves in each Member State on reasons: (i) producers operating in Member the basis of the criterion of the average States with production systems resulting in carcase weight of calves slaughtered in each a heavier carcase weight would have been Member State, as indicated in the statistics compelled to seek to reduce that weight for 1995, less 1 5 % . 3 8It is true that the disproportionately to the amount of the Council does not state the reasons why it premium granted; (ii) operators in Member opted for the rate of 15% but in my view States where average carcase weight was that does not give rise to any problem since: lower would have been able to benefit from firstly, it enjoys wide discretionary power in the premium without any alteration to their that regard; secondly, that choice was made system of production. in line with the objective pursued which was to reduce by around 1 000 000 the number of calves offered for red-meat production and consequently entering the human food chain, and, thirdly, no evi- dence has been adduced to show that the

legislation. On this point the Court consistently holds (see, by way of illustration, judgments in Case 40/72 Schroeler to the wide divergence in calf weight as [1973] ECR 125, paragraph 14, and Crispnlumi (cited at footnote 3 1 , paragraph 43) that 'the legality of a Com- between the various Member States, 39 the munity act cannot depend on retrospective considerations reduction required of certain producers of its efficacy.' It has stated (see, for example, Cnspnlinm (paragraph 43) and Wmdart md Others (cited above at would not have been sufficient to enable footnote 32, paragraph 14) that: 'Where the Community legislature is obliged to assess the future effects of rules to the objective to be achieved.

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efficacy of the premium and the attainment at issue in the present case favoured and of that objective would have been jeopar- enured to the benefit of operators produ- dised. That would have constituted unlaw- cing heavier carcases. ful discrimination in favour of certain producers and to the detriment of certain others.

50. France and Ireland v Commission con- cerned the limitation on the weight of 48. Moreover, support for the proposition carcases 43 eligible for intervention. 44 The that the abovementioned choice by the Court concluded that there had been no Council is not vitiated by unfair discrimi- preferential treatment in favour of the nation between Community producers may producers of one country of the Commu- be found in the Court's case-law. Under nity because the contested regulation in that case-law the fact that the adoption of a those cases did not exclude any category of specific measure in the context of the products from intervention buying-in but common organisation of a market 40 may obliged the producers concerned to adapt affect producers in different ways, depend- weights in certain of those categories. ing upon the particular nature of their Moreover, provision was made for transi- production or local conditions, cannot be tional measures giving producers the regarded as discrimination if that measure opportunity progressively to adapt their is determined on the basis of objective production. rules, formulated to meet the needs of the general common organisation of the mar- ket. 41

54. Under those circumstances, in view of the wide discretionary power vested in the Community institutions competent to 52. In light of the foregoing analysis I do adopt measures to restabilise the market, I not believe that the allegations of the do not consider that the differentiation of French Government can be upheld. In the average carcase weight of calves adopting the contested measure, the Coun- according to the Member State involves cil paid due regard to the specific nature of the objectively unwarranted application of each Member State's production and of the different treatment to analogous situations need to restabilise the market; it also and, consequently, it is consistent with the afforded the Member States the possibility principle of non-discrimination laid clown of submitting to the Commission for its in Article 40(3) of the Treaty, as the approval other official statistics which Council and Commission rightly stress. would lead to an alteration in the reference weight applicable to them, that is to say it enabled account to be taken, as far as possible, of the specific features of the market in each Member State. Thus, whilst the Federal Republic of Germany availed itself of this possibility, that was not true of 55. I also consider that the principle of the French authorities. solidarity and of coherence of the market in question justified the burdens stemming from restabilisation of the market being distributed amongst all Community produ- cers so as to ensure attainment of the objectives of the scheme for early market- ing of calves. It follows from the principle of Community solidarity that the burden of that obligation to restabilise the market 53. Moreover, I would point out that, in its must be imposed on all Community pro- judgment in Deschamps and Others v ducers. In the context of that objective, 'all Ofival, 45the Court held that the Commu- Community producers, regardless of the nity rules allowing the United Kingdom Member State in which they are based, only to grant the variable slaughter pre- must together, in an egalitarian manner, mium for sheepmeat was perfectly compa- bear the consequences of the decisions tible with Article 40(3) of the Treaty, if it which the Community institutions are led was 'necessary in order to take account of

56. The Court has consistently held that the principle of proportionality, which is a higher-ranking principle forming part of the general principles of Community law, 58. As to the question whether the mea- requires that 'measures adopted by Com- sures provided for in Article 4i(2) of Reg- munity institutions do not exceed the limits ulation No 805/68, as amended by Regula- of what is appropriate and necessary in tion No 2222/96, are invalid owing to an order to attain the objectives legitimately infringement of the principle of proportion- pursued by the legislation in question; ality, that would be so if, regard being had when there is a choice between several to the objective of market restabilisation, appropriate measures recourse must be had those measures were manifestly inappropri- to the least onerous, and the disadvantages ate or unnecessary in relation to the caused must not be disproportionate to the objectives pursued. aims pursued.' 48

that objective and whether the disadvan- looked that, in order to alleviate the draw- tages exceed the advantages. backs arising from that situation, namely the relatively high cost of disposing of light c a r c a s e s , the p r e m i u m g r a n t e d w a s increased by ECU 10 for animals slaugh- tered up to 13 April 1997 and by ECU 30 for animals slaughtered after 14 April 60. The fact that it has not been persua- 1997. Since this increase applied to all sively shown that one of the possible carcases of a weight equal to or greater criteria for substitution, for example the than 110 kg but less than 120 kg, French criterion of the average Community weight producers were in a position to benefit of the calf intended for slaughter, is mani- from it. festly more appropriate, that is to say preferable from the point of view of proportionality, progressive equality and certainty, proves that the criterion adopted is not inappropriate or above all manifestly inappropriate as a means of achieving the restabilisation of the market in beef and veal sought by the premium. 51 62. Thus, the apportionment of obligations amongst producers on the basis of the average weight in each Member State of calves intended for slaughter constitutes a necessary choice based on an objective and convenient criterion. 61. In actual fact, even if the Council's abovementioned choice of criterion is not in my view manifestly erroneous, the Council could from the outset have paid greater regard to the specific features of national producers and divergencies in average weights of veal carcases; that is made clear by two factors: (i) the first 63. Consequently, the legislation adopted indent of Article 4i(2) of Regulation by the Council does not contravene the No 805/68 afforded to Member States the principle of proportionality because it is possibility of submitting for the Commis- neither superfluous nor manifestly inap- sion's approval other official statistics for propriate and because its drawbacks for the 1995, a possibility availed of by Germany producers of one Member State (in this which obtained (Regulation No 18/97) an case, French producers) do not outweigh increase in average carcase weight from the advantages enjoyed by all Community 103 to 112 kg; (ii) it should not be over- producers owing to the success the efforts achieved in restabilising and restoring equilibrium to the market. 52 51 — See, first, paragraph 130 of my Opinion in the Zammotto case (cited above at footnote 311 concerning the compul- sory distillation scheme and the prices paid to producers which were lower than the market price, and the question 52 — The fixing of the premium at a moderate level is in the end whether that measure was appropriate for attainment of justified because it may have a deterrent effect, leading to a the ohjective of compulsory distillation and, secondly, reduction in surplus numbers of producers and thus paragraph 64 of the judgment of the Court in that case. restabihsation and a return to equilibrium of the market.