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Document 61977CC0092
Opinion of Mr Advocate General Mayras delivered on 26 January 1978. # An Bord Bainne Co-Operative v Minister for Agriculture. # Reference for a preliminary ruling: High Court - Ireland. # Aid for private storage. # Case 92/77.
Opinion of Mr Advocate General Mayras delivered on 26 January 1978.
An Bord Bainne Co-Operative v Minister for Agriculture.
Reference for a preliminary ruling: High Court - Ireland.
Aid for private storage.
Case 92/77.
Opinion of Mr Advocate General Mayras delivered on 26 January 1978.
An Bord Bainne Co-Operative v Minister for Agriculture.
Reference for a preliminary ruling: High Court - Ireland.
Aid for private storage.
Case 92/77.
European Court Reports 1978 -00497
ECLI identifier: ECLI:EU:C:1978:15
OPINION OF MR ADVOCATE GENERAL MAYRAS
DELIVERED ON 26 JANUARY 1978 ( 1 )
Mr President
Members of the Court,
This case has certain similarities to the reference for a preliminary ruling in which the Court delivered judgment on 3 March 1977 (Kerry Milk [1977] ECR 425). It concerns the issues affecting the application of the law in point of time which are raised by changes in the amount of a Community aid resulting both from an alteration in the intervention price expressed in units of account and from the alteration of the rate to be applied for the conversion of those units into a national currency. The case calls in question the validity of a regulation of the Commission which is closely involved with the interpretation of a regulation of the Council and I am sorry that the Council did not see fit to make known its point of view.
Furthermore, as I said in my opinion in the Lührs case, without going into the material facts of the case it is difficult, on the occasion of a review of interpretation or validity carried out within the framework of Article 177, to rule on the ‘legitimate expectation’ which the plaintiff might have as an individual in the maintenance of a given legal situation, arising in the present case from contracts made with an official intervention agency. Nevertheless I shall attempt to provide the national court with some guidelines to help it in deciding the case before it.
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II — |
In my opinion, Regulation (EEC) No 2517/74 of the Commission must undoubtedly be interpreted as the Irish Minister for Agriculture has interpreted it, that is to say, as meaning a new ‘adjustment’ of aid, otherwise its wording would be meaningless and add nothing to the previous wording of Article 29. I must now deal with the criticisms which the plaintiff or the national court have made of this regulation when given the interpretation which I have just placed upon it. I shall first go into the submissions relating to the formal validity of the regulation (failure to give a statement of reasons and the Commission's want of powers), then the submissions relating to its intrinsic validity (infringement of the Treaty and of the general principles of law) with special reference to the submission of ‘disappointment of legitimate expectation’. |
(1) |
The statement of reasons for Regulation (EEC) No 2517/74 of the Commission must be appraised in the light of all the regulations of which this enactment is one; I have already recalled that the preambles to Regulations (EEC) Nos 804/68 and 985/68 of the Council make clear both the object of the intervention operations and the specific purpose of private storage aid. When viewed in the context of the system of which it forms part, the ‘adjustment’ of aid is clearly seen to be in furtherance of the aim pursued by the Council's regulations. Considered in the light of the considerations governing a change in the aid during the marketing year, the Commission regulation sets out adequate if concise grounds for the ‘adjustment’ of aid compared with the other reference factor, represented by the increase in the buying-in price expressed in national currency; I shall deal with the correctness of this statement of reasons when I come to the question of infringement of the Treaty. |
(2) |
The plaintiff in the main action contends that if the Council wished a change in the ‘green’ conversion rate to have the same effect as a change in the buying-in price for butter, the normal procedure would have been for it to lay down general provisions for the future. Such an interpretation of Article 29 of Regulation (EEC) No 685/69 would have required a special regulation of the Council because Article 29 covers only the case of a change in the common price expressed in units of account. In September 1973, in the converse situation of the raising of the central rate of a national currency (in that case the Dutch guilder) producing a fall, in terms of national currency, in the intervention price received by Netherlands producers (but without the introduction of compensatory amounts) only a special measure by the Council (Regulation (EEC) No 2544/73 of 19 September 1973) had made it possible to grant, on occasion and in part, a Community aid to make good the loss of value caused, on and after 17 September, by this change in the ‘green’ rate for Netherlands holders of butter who, on 15 September, were parties to a private storage contract. This argument carries little conviction. The measure in question had been introduced at the last minute (under the second paragraph of Article 149 (2)) in the wider context of the ‘measures to be adopted in agriculture following the raising of the central rate for the Dutch guilder’, which could be adopted only by the Council after consulting the European Parliament. Its adoption demonstrates nothing more than that such a change in an upward direction of the ‘green’ rate was accompanied by a change in the reverse direction in the amount of aid and that the Irish Government did not seek or obtain, for its holders of butter, the derogation which the Netherlands Government had obtained for its own in 1973, or which (Council Regulation (EEC) No 557/76 of 15 March 1976) the German Government obtained in March 1976 from the German intervention agencies for vendors of skimmed-milk powder. The power to fix prices and certain amounts in connexion with the Common Agricultural Policy is conferred both on the Council acting by a qualified majority on a proposal from the Commission and, in certain cases, on the Commission acting under the powers which it possesses under acts adopted by the Council pursuant to Article 43 of the Treaty or to the provisions adopted in implementation of these acts, in the light of the opinion of the Management Committee concerned. It is the Council which lays down the intervention price whereas the Commission fixes the amount of aid but, contrary to the contention of the plaintiff in the main action, the wording of Article 6 of Regulation (EEC) No 804/68 does not require that the conditions for grant of aid must be prescribed only in accordance with the procedure in Article 43 (2) of the Treaty, that is to say, by the Council acting on a proposal from the Commission. There is nothing in it to prevent these conditions from simultaneously arising from paragraph (7) of the same article, which means that the conditions for granting aid can be fixed by the Commission with the assistance of the Management Committee. Under paragraph (7) the Commission fixes principally but not exclusively the amount of aid in accordance with that procedure; this is shown by the fact that the subsequent regulations adopted by the Commission and quoted above, namely Regulations (EEC) Nos 1064/69 and 603/70, provided for a reduction of aid and the plaintiff has raised no objection to the validity of these enactments. On the other hand, under Article 4 of Regulation (EEC) No 2496/74 of the Council, ‘Detailed rules for the application of Article 1 [which alters the “differential” intervention price of butter for Ireland during the marketing year] … and the alterations to be made as a result of this regulation to other prices and amounts fixed within the context of the Common Agricultural Policy shall be adopted in accordance with the procedure [of the Management Committee concerned] … where appropriate by derogation from the rules for fixing contained in the regulations concerned to the extent and for the duration strictly necessary to take into account this regulation’. Although Regulation (EEC) No 2496/74 of the Council did not provide for the measures which it contains to be put into effect until 7 October 1974 it nevertheless stated that it should enter into force on the day of its publication in the Official Journal of the European Communities, that is to say, on 3 October 1974. On and after that date the Commission was, by virtue of the powers conferred on it by Article 4 of the Regulation, able to promulgate implementing measures. It is true that the entry into force of the Commission's regulation was fixed for 1 October 1974 whereas Regulation (EEC) No 2498/74 of the Council entered into force only on 7 October 1974 but this apparent back-dating was, in the circumstances, without effect since the goods were still in store on 7 October 1974. To my mind, one further consideration which could be of interest in other contexts, convincingly demonstrates that the Commission did not act ultra vires when it decided that those who were holding butter in store when the new exchange rate was applied might not avail themselves of the additional increase in the buying-in price as a result of this fresh fixing of the rate. As I pointed out, Regulation (EEC) No 2517/74 of the Commission could not have been adopted without the Council's being aware of its content. When the Management Committee had ‘not delivered an opinion within the time-limit set by its chairman’, the traditional euphemism indicating that there had not been a sufficient majority to approve the Commission's draft, the measures adopted by the Commission ought to have been communicated by it forthwith to the Council. But the Council did not take a different decision, although it could have done so under the last subparagraph of Article 30 (3) of Regulation (EEC) No 804/68, and has not denied itself this right in other circumstances, for example in connexion with the advance financing of export refunds in the case of malt. |
(3) |
The intervention price for butter is a means and not an end in itself; it is designed to contribute to the attainment of the target price for milk. The idea behind the basic regulation, No 804/68 of the Council, is that the milk producer should get the full benefit of each and every increase in the intervention price. The Commission's argument is that, as the amount of private storage aid must faithfully reflect changes in the intervention price (itself closely linked with the market price) prevailing when goods are removed from store, no aid is granted if the difference between the intervention price, converted into national currency, in force when goods are taken into store and the intervention price when goods are taken out of store exceeds the amount of aid expressed in national currency. This is because storage, private or public, is not a productive process and the ‘legitimate interests’ of the concerns which, like the plaintiff co-operative in the main action, make use of this facility are not so deserving of protection as those of milk or butter producers; moreover, the latter do not get a pennyworth of the benefit which in this way unexpectedly enures to the concern effecting the storage. This argument seems to me to be correa and the contested regulation does not infringe Article 10 (1) of Regulation (EEC) No 985/68 of the Council which reads: ‘The amount of private storage aid shall be fixed for the Community with reference to storage costs and foreseeable price trends for fresh butter and stored butter.’ The subsequent regulation of the Commission, No 837/75 of 26 March 1975 is on the same lines: the buying-in by the intervention agencies of butter produced during a period of two months preceding the day on which such agencies take over the butter must not take place during a period of two months following a change in the buying-in price (that is to say the intervention price) for butter so as to prevent those holding butter from taking advantage of such a situation for speculative purposes. |
(4) |
The plaintiff in the main action refers to the ‘infringement of the principle of protection of legitimate expectation’ and complains of interference by the Community, to be precise, by the Commission, with the contractual arrangements it entered into with the Irish Minister for Agriculture before the entry into force of Regulation (EEC) No 2517/74 under which it had in a way ‘fixed in advance’ the aid to which it claims to be entitled.
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My opinion is that the Court should rule as follows:
(1) |
Regulation (EEC) No 2498/74 of the Council had the effect of increasing the buying-in price of butter within the meaning of Article 29 of Regulation (EEC) No 685/69 of the Commission. |
(2) |
The provisions of Regulation (EEC) No 2517/74 simply met this situation in terms of adjustment of the aid for private storage of butter and consideration of the questions raised has disclosed no factor of such a kind as to affect its validity. |
(3) |
Regulation (EEC) No 2517/74 is applicable to contracts which were entered into before the enactment of Regulations (EEC) No 2498/74 and 2517/74. |
( 1 ) Translated from the French