C-117/99

1 — Regulation No 3284/83 (OJ 1983 L 325. p. 1); Regulation * Original language: German. No 1035/72 (OJ, English Special Edition 1972 (II). p. 437).

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tion, Article 15b provides that non-mem- to one of the organisations referred to bers may be required to pay fees to cover above: certain costs. The new Article 15b reads as follows:

(a) the rules on notifying production ... ;

'Article 15b (b) the rules on production ... ;

paid by the producer members in so far as ing. That decree also provided that Cerafel these are used to cover: could collect from non-member producers fees which should not exceed those paid by members and the amount of which would be fixed annually by decree.

— administrative costs resulting from application of the scheme referred to in paragraph 1,

4. The fees in respect of cauliflower for winter-spring 1993/94, with the exception of those intended specifically for the pro- — the cost of research, market research cessing industry, were fixed by a decree of and sales promotion measures under- 5 July 1993. For the 1994/95 marketing taken by the organisation or associa- year a decree of 24 June 1994 laid down tion and benefiting all producers in the the fees in respect of cauliflower supplied area. only to the market for fresh vegetables.

...`

III — Facts

IV — Arguments of the parties 7. In the order for reference, the national court observes that, as the rules have been made generally applicable and the obliga­ tion to pay fees has been extended, Regula­ tion No 1035/72 applies both to fresh 8. Unilet begins by observing that the products and products for industrial pro­ possibility provided by Article 15b of Reg­ cessing, even though the latter may be ulation No 1035/72 for the rules of produ­ subject to different quality standards, as is cers' organisations to be made binding also clear from Article 2(1) of the regulation. on iļon-members is limited. The wording On this point the national court refers to shows that a Member State may do so only the judgment of 22 September 1988 by the if certain conditions are fulfilled. Court of Justice in the Unilec case. 3The following question has been referred to the Court of Justice by the national court for a preliminary ruling:

9. Subject to those conditions, however, a Member State has a very wide discretion inasmuch as the rules in question are 'Is Article 15b(8) of Regulation (EEC) formulated as enabling provisions. No 1035/72 of the Council of 18 May 1972 on the common organisation of the market in fruit and vegetables to be inter­ preted as meaning that, where a Member State has applied Article 15b(1) of that regulation, that is to say where it has made 10. According to Unilet, even if a Member State decides to make the producers' rules binding, it does not have to make contri­ 3 — Case 212/87 [1988] ECR 5075. Unilec (Union Nationale butions to costs also mandatory. As it has a Interprofessionnelle des Légumes de Conserve) was the predecessor of Unilet. very wide discretion on this point, Com-

13. The situation on the latter market is totally different. There is no prior limita- tion on the amount produced, and the producers' organisation, or the association of such organisations, to which the entire 12. Unilet then explains in detail why the output is delivered, has the task of market- markets for fresh products and for indus- ing the products. On this market, surveys trial processing are completely different. are also carried out by associations such as The latter is characterised by a close Cerafel. Consequently, there are two com- partnership between producers and proces- pletely different markets with different sors, who conclude cultivation contracts requirements in relation to the products. even before crops are sown. In this market As Article 2(1) of Regulation No 1035/72 it is the processors who carry out market shows, products for industrial processing surveys, not the producers' organisations, are not subject to the same quality stan- as in the fresh-product market. Depending dards, if any at all, as fresh products. For on demand, the processor concludes con- this reason alone the measures for the tracts with producers which lay down, for common organisation of the market, such

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as intervention measures, cannot benefit rules which are made binding on all products for industrial processing. The producers in a specific economic area: rules governing the common organisation of the market are therefore of no relevance whatever to the products here in question.

17. The defendant begins by observing that the decrees of 5 July 1993 and 24 June 1994 to which the plaintiffs refer cannot affect the principle of extension or the types of product involved because these were laid 15. Unilet also refers to the new market down by the ministerial decree which made organisation under Regulation (EC) the rules generally binding. That decree No 2200/96, which provides 4 that 'the must be compatible with the regulation. The decree in question, which extends the scope of the rules, was issued on the basis 4 — The reference is to Article 18(4) of Council Regulation (EC) No 2200/96 of 28 October 1996 on the common organisa- tion of the market in fruit and vegetables (OJ 1996 L 297, p.1). 5 — Cited in footnote 3.

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UNILET AND LE BARS

of Regulation No 1035/72 and, like the tion and marketing rules generally binding, regulation, does not provide for any restric- to exempt certain producers of the same tion whatever regarding cauliflowers for product who do not belong to a producers' deep-freezing. organisation from a compulsory member- ship fee if their products are not intended for the fresh-product market.

20. Consequently, according to the defen- dant, the Court can only interpret Regula- tion No 1035/72 as meaning that it does 22. The French Government accordingly not enable a Member State which, pursuant considers that it should be made clear that to Article 15b, has made certain produc- the question from the national court seeks a ruling from the Court on whether a Mem- ber State has a right, on the basis of 6 — Cited in footnote 3. Article 15b(8) of Regulation No 1035/72,

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to impose a different membership fee, in product. Cauliflowers intended for indus- respect of the same product, on producers trial processing constitute a special sector not belonging to a producers' organisation and, if a Member State considers it appro- if their products are not intended for the priate, need not be made subject to the fresh market but (on the basis of a contract rules which were made generally applicable concluded before the beginning of the or subject to contributions to costs. Fur- marketing year) for industrial processing thermore, such produce should not be which, in the absence of a suitable propo- made subject to payments for financing sal, could lead to no fee at all being laid measures which would be of benefit only to down. produce for the fresh market.

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UMLET AND LE BARS

27. The French Government then refers to contribution which, in the absence of a the new market organisation under Regu- suitable proposal, may even be virtually nil. lation No 2200/96, Article 18(6)(b) of which provides that the rules for each of the two branches of production may be made generally binding.

30. Finally, the Commission observes that both Article 15b(l) and Article 15b(8) are formulated as optional provisions. So far as 28. The French Government also considers paragraph 8 is concerned, this means that a that cauliflowers grown for industrial pro- Member State may make producers' rules, cessing constitute a separate market which, determined in accordance with Article 1, if a Member State deems fit, may be made generally binding, even without requiring subject to appropriate rules and contribu- the payment of certain contributions by tory payments. However, no contributions non-member producers. A Member State need be paid which serve to finance mea- which decides to apply this provision has a sures which benefit only products for the certain discretion. It may thus, according to fresh market. Because of the differences in the Commission, require less than would the two types of product, which are actually be possible on the basis of its reflected in differing costs, only a power discretion. There is nothing which compels to set different contributions appears com- the Member State to require all producers patible with Article 15b of Regulation in a specific economic area to pay particu- No 1035/72. A power to lay down differ- lar contributions. Consequently the State ent contributions may, in the absence of an has the right to require only certain groups appropriate proposal, lead to a contribu- of non-members of a producers' organisa- tion of FRF 0 being fixed, as in the present tion to make payments, provided that this case. is permitted by the general principles of Community law.

35. It is already clear from the wording of Article 15b(1) and (8) that these are 32. There is a special marketing organisa- optional provisions which leave it to the tion for these products, which is why they discretion of the Member States whether are subject to completely different arrange- they make the rules of producers' organisa- ments from those laid down in Regulation tions generally binding. If they do so, No 1035/72. At this point the Commission paragraph 8 gives them a discretion as to also refers to the Court's judgment in the whether membership fees should be levied Unilec case, although in its view it does not from non-member producers. That is not follow that Member States must treat all disputed in the present case. The question fresh fruit and vegetables in the same way, here is rather whether, on the basis of that regardless of their intended use. discretion, a Member State has the right, as regards the obligation to pay fees, to exempt, among the producers who are not members of a producers' organisation, those who grow produce for industrial processing, when otherwise fees would be payable by all non-member producers. 33. The Commission concludes by listing the main differences between products for processing and those intended for fresh consumption. The varieties grown accord- ingly very often differ. Cultivation and harvesting methods likewise may be com- pletely different and in some cases certain 36. In the defendant's opinion, the Unilec methods, such as mechanical harvesting, judgment shows that no distinction may be can be used only for products intended for made between products for the fresh mar- processing. Finally, by virtue of Article 3(3) ket and those intended for industrial pro- of Regulation No 1035/72, quality stan- cessing, with the result that growers of dards do not apply to products for proces- products for industrial processing must also sing. be required to pay fees.

'It should further be noted that the view that, where the harvested product is inten- ded to be sold to a processor, it no longer falls within the scope of the legislation on fresh products but within that of the legislation on processed products miscon- strues the legislative framework set up by the legislative provisions on the common agricultural policy. As the Commission has 40. So far as the present case is concerned, correctly observed, the attainment of the therefore, it can only be inferred from the objectives pursued in the basic regulation Unilec judgment that the extension of the concerning the organisation of the market rules of producers' organisations concern- in fresh agricultural products requires that ing cauliflower and the discretion in that this legislation be able to produce its effects connection conferred upon the Member after the fruit and vegetables are harvested, State in question must be tested by refer- irrespective of the use to which such ence to the basic Regulation No 1035/72. products are to be put'. 8 Consequently, the defendant's objection that producers for industrial processing should not be exempted from compulsory membership fees because the regulation does not distinguish between the uses to which products are put cannot be upheld 39. The question therefore was whether the without further discussion. The question I extension of the rules relating to those wish to consider next is precisely whether products (intended for industrial proces- the regulation does permit such a distinc- sing) was to judged by reference to the tion to be made. It must be observed that, as I have already shown, the regulation certainly distinguishes in some respects 7 —OJ1977 L73, p. l. between products for the fresh market 8 — See the judgment in Case 212/8". cited in footnote 3, paragraph 13. and those for industrial processing.

44. Pursuant to Article 15b(8), the fees in question may be levied only to cover 42. It is clear from the wording of Arti- certain costs, namely administrative costs cle 15b(8) that a Member State has a resulting from the extension of the scheme, discretion as to whether it wishes to levy and also the costs of research, market fees from non-member producers at all. As, research and sales-promotion measures. furthermore, it can decide whether 'all or The eighth recital in the preamble to part' of the fees are due, it need not in every Regulation No 3284/83 shows that non- case levy the full costs, but also has a member producers may be required to discretion with regard to the respective make a financial contribution because amount. However, the question is whether extending the scope of the rules entails it also has the power to fix different additional expenditure for the organisation amounts for separate groups of producers in question. It follows that non-member or to reduce the amount to zero for certain producers should be required to contribute producers. In the Commission's opinion to the costs incurred as a result of the rules this is possible. It argues that a Member of the producers' organisation being State which can levy the full costs from all applied to them or, for example, because non-member producers also has the power, they also benefit from any research which is within the limits of that discretion, to commissioned. charge less, provided that this does not lead to discrimination between certain producers.

45. However, under Article 15b(1), only the rules referred to in the second and third indents of Article 13(1)(b) can be made generally binding, as well as the rules 43. However, this is not merely a matter of regarding market withdrawals. The rele- requiring larger or smaller amounts, which vant provisions in the present case are those is expressly permitted by paragraph 8, but relating to improving product quality, of differentiating between individual pro- adapting the volume of supply to market ducers. Whether this also constitutes 'less' requirements, and providing information within the limits of the Member State's requested on harvests and supplies.

47. For the same reason, the information on harvests and supplies required under the third indent of Article 13(1)(b) is likewise 49. Moreover, an exception of this kind is unnecessary in relation to producers for not precluded by the spirit and purpose of industrial processing. Nor do their pro- producers' organisations, which are defined ducts fall within the scope of measures for by A r t i c l e 1 3 ( 1 ) ( a ) of R e g u l a t i o n the withdrawal of certain products from No 1035/72, as amended by Regulation the market, which may be taken by a No 3284/83, as any organisation of fruit producers' organisation under certain con- and vegetable producers which is formed ditions. It must therefore be concluded that for 'promoting the concentration of supply the extension provisions of Article 15b(1) and the stabilisation of prices at the pro- do not apply to producers for industrial ducer stage' and 'making suitable technical processing or are of no benefit to them and facilities available to producer members for consequently no additional costs are attri- presenting and marketing the relevant pro- butable to such producers. ducts'.

48. Assuming that, as the plaintiffs have 50. Since, as already stated, supply and stated without denial by the defendant, demand, and therefore prices also, in the

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53. In the regulation on the new market organisation, products which are sold in advance and delivered direct for processing are therefore exempt not only from the payment of compulsory fees but also from any extension of the rules of producers' organisations. This later regulation adds support to the foregoing conclusion that it is reasonable and consistent with the sys- tem of extension to exempt products for industrial processing from the payment of 51. For this reason there is in principle compulsory fees. nothing inconsistent with the spirit and purpose of the common organisation of the market. In relation to one of the steps to be taken for the introduction of the common organisation of the market, namely the adoption of common standards, Regulation No 1035/72 even provides for an exception for products consigned to processing plants. 9Consequently it can be stated that 54. No discrimination arises from the fact the exemption of certain products, namely that producers who grow produce for those intended for industrial processing, industrial processing and who are not from the payment of compulsory fees is not members of a producers' organisation are inconsistent with the spirit and purpose of exempt from the payment of compulsory the common organisation of the market or fees, in contrast to other non-member at least with the extension of the rules of producers who grow produce for the fresh producers' organisations to non-members. market. As I have already shown, products for processing are not offered on the market for fresh produce, are not subject to the same quality standards and are not 9 — Fourth recital in the preamble to Regulation No 1035/72 and Article 3(3) of that regulation. covered by the measures taken by produ-

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