61971J0082

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1 . QUESTIONS REFERRED FOR A PRELIMINARY RULING - JURISDICTION OF THE COURT - LIMITS

( EEC TREATY, ARTICLE 177 )

2 . QUESTIONS REFERRED FOR A PRELIMINARY RULING - ADMISSIBILITY - NATURE OF THE NATIONAL PROCEDURE - DISTINCTION - INADMISSIBILITY

( EEC TREATY, ARTICLE 177 )

3 . COMMUNITY LAW - EFFECTS IN NATIONAL LAW - SAME EFFECTIVENESS IN THE VARIOUS SPHERES OF NATIONAL LAW

4 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - ENTRY INTO FORCE - NATIONAL SYSTEM - PROVISIONAL MAINTENANCE - COMMUNITY JURISDICTION

1 . ALTHOUGH THE COURT HAS NO JURISDICTION WITHIN THE FRAMEWORK OF THE APPLICATION OF ARTICLE 177 OF THE TREATY TO DECIDE UPON THE COMPATIBILITY OF A NATIONAL PROVISION WITH COMMUNITY LAW, IT MAY NEVERTHELESS EXTRACT FROM THE WORDING OF THE QUESTIONS FORMULATED BY THE NATIONAL COURT, HAVING REGARD TO THE FACTS STATED BY THE LATTER, THE ELEMENTS WHICH COME WITHIN THE INTERPRETATION OF COMMUNITY LAW FOR THE PURPOSE OF ENABLING THAT COURT TO RESOLVE THE LEGAL PROBLEM WHICH IT HAS BEFORE IT .

2 . ARTICLE 177, WHICH IS WORDED IN GENERAL TERMS, DRAWS NO DISTINCTION ACCORDING TO THE NATURE, CRIMINAL OR OTHERWISE, OF THE NATIONAL PROCEEDINGS WITHIN THE FRAMEWORK OF WHICH THE PRELIMINARY QUESTIONS HAVE BEEN FORMULATED .

3 . THE EFFECTIVENESS OF COMMUNITY LAW CANNOT VARY ACCORDING TO THE VARIOUS SPHERES OF NATIONAL LAW WHICH IT MAY AFFECT .

4 . FROM THE ENTRY INTO FORCE OF THE COMMON ORGANIZATION OF THE MARKET IN A PARTICULAR AGRICULTURAL SECTOR, IT IS FOR THE COMMUNITY AUTHORITY ALONE TO DECIDE UPON THE PROVISIONAL MAINTENANCE OF ANY NATIONAL SYSTEM OF ORGANIZATION, INTERVENTION OR SUPERVISION RELATING TO THE PRODUCTS IN QUESTION .

IN CASE 82/71

REFERENCE TO THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE EEC TREATY BY THE PRETORE OF THE DISTRICT OF BARI FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

PUBBLICO MINISTERO DELLA REPUBBLICA ITALIANA AND

SOCIETA AGRICOLA INDUSTRIA LATTE ( SAIL )

ON THE INTERPRETATION OF ARTICLES 37 AND 90 OF THE EEC TREATY, ARTICLE 22 OF REGULATION ( EEC ) NO 804/68 OF THE COUNCIL OF 27 JUNE 1968 ON THE COMMON ORGANIZATION OF THE MARKET IN MILK AND MILK PRODUCTS AND OF ARTICLE 2 OF REGULATION ( EEC ) NO 2622/69 OF THE COUNCIL OF 21 DECEMBER 1969 ( EEC ) NO 2622/69 OF THE COUNCIL OF 21 DECEMBER 1969 AMENDING REGULATION ( EEC ) NO 804/69, IN RELATION TO THE ITALIAN LEGISLATION ON THE DISTRIBUTION AND SALE OF DRINKING MILK,

1 BY AN ORDER OF 3 JULY 1971, RECEIVED AT THE COURT ON 20 SEPTEMBER 1971, THE PRETORE DI BARI REQUESTED THE COURT, IN ACCORDANCE WITH ARTICLE 177 OF THE EEC TREATY, TO GIVE A PRELIMINARY RULING ON THE INTERPRETATION OF CERTAIN PROVISIONS OF THE EEC TREATY, ESPECIALLY ARTICLES 37 AND 90, AND ON THE INTERPRETATION OF REGULATION ( EEC ) NO 804/68 OF THE COUNCIL OF 27 JUNE 1968 ( OJ ENGLISH SPECIAL EDITION 1968 ( I ), P . 176 ) ON THE COMMON ORGANIZATION OF THE MARKET IN MILK AND MILK PRODUCTS AND REGULATION ( EEC ) NO 2622/69 OF THE COUNCIL OF 21 DECEMBER 1969 ( OJ ENGLISH SPECIAL EDITION 1969 ( II ), P . 615 ) AMENDING THE ABOVEMENTIONED REGULATION . THIS INTERPRETATION IS REQUESTED IN RELATION TO THE RULES OF THE MARKET IN DRINKING MILK AND, MORE ESPECIALLY, IN RELATION TO THE LEGAL POSITION OF THE MILK CENTRES SET UP UNDER ITALIAN LEGISLATION .

THE JURISDICTION OF THE COURT

2 OBJECTIONS HAVE BEEN RAISED BOTH BY THE GOVERNMENT OF THE ITALIAN REPUBLIC AND THE COMMISSION BECAUSE THE COURT IS ASKED TO RULE DIRECTLY ON THE LEGAL POSITION OF THE " MILK CENTRES " IN RELATION TO THE TREATY AND THUS TO GIVE A RULING UPON THE COMPATIBILITY OF THAT SYSTEM WITH THE PROVISIONS OF COMMUNITY LAW . THE GOVERNMENT OF THE ITALIAN REPUBLIC, IN PARTICULAR, CONSIDERS THAT THIS MANNER OF PROCEEDING WOULD LEAD TO CONFUSION BETWEEN THE LEGAL PROCEDURES GOVERNED RESPECTIVELY BY ARTICLES 177 AND 169 AND THAT CONSEQUENTLY THE QUESTIONS RAISED ARE INADMISSIBLE .

3 ALTHOUGH THE COURT HAS NO JURISDICTION WITHIN THE FRAMEWORK OF THE APPLICATION OF ARTICLE 177 OF THE TREATY TO DECIDE UPON THE COMPATIBILITY OF A NATIONAL PROVISION WITH COMMUNITY LAW, IT MAY NEVERTHELESS EXTRACT FROM THE WORDING OF THE QUESTIONS FORMULATED BY THE NATIONAL COURT, HAVING REGARD TO THE FACTS STATED BY THE LATTER, THOSE ELEMENTS WHICH COME WITHIN THE INTERPRETATION OF COMMUNITY LAW FOR THE PURPOSE OF ENABLING THAT COURT TO RESOLVE THE LEGAL PROBLEM WHICH IT HAS BEFORE IT .

4 THE GOVERNMENT OF THE ITALIAN REPUBLIC ALSO REGARDS THE QUESTIONS AS INADMISSIBLE BECAUSE IT COULD BE THAT THE ANSWERS TO BE GIVEN BY THE COURT WOULD INFLUENCE THE APPLICATION OF THE CRIMINAL LAW OF A MEMBER STATE .

5 ARTICLE 177, WHICH IS WORDED IN GENERAL TERMS, DRAWS NO DISTINCTION ACCORDING TO THE NATURE, CRIMINAL OR OTHERWISE, OF THE NATIONAL PROCEEDINGS WITHIN THE FRAMEWORK OF WHICH THE PRELIMINARY QUESTIONS HAVE BEEN FORMULATED . THE EFFECTIVENESS OF COMMUNITY LAW CANNOT VARY ACCORDING TO THE VARIOUS BRANCHES OF NATIONAL LAW WHICH IT MAY AFFECT . THE COURT THEREFORE HAS JURISDICTION TO REPLY TO THE QUESTIONS SUBMITTED .

THE SUBSTANCE OF THE CASE

6 THE NATIONAL COURT HAS BEEN REQUESTED TO APPLY ITALIAN CRIMINAL LAW TO CONDUCT DESCRIBED AS A CONTRAVENTION OF THE LEGAL PROVISIONS GRANTING THE " MILK CENTRES " THE EXCLUSIVE RIGHT OF SUPPLY AND SALE WITHIN CERTAIN GEOGRAPHICAL LIMITS . IN ORDER TO RESOLVE THAT DISPUTE, THAT COURT HAS ON THE ONE HAND REFERRED QUESTIONS ON THE INTERPRETATION OF ARTICLES 37 AND 90 OF THE TREATY AND ON THE OTHER REQUESTED THE INTERPRETATION OF CERTAIN PROVISIONS OF REGULATIONS ( EEC ) NOS 804/68 AND 2622/69 .

7 THE COUNCIL AND THE GOVERNMENT OF THE ITALIAN REPUBLIC CONSIDER THAT BECAUSE OF ITS SPECIAL NATURE THE SYSTEM OF " MILK CENTRES " MUST BE ASSESSED NOT IN THE LIGHT OF ARTICLES 37 AND 90, BUT WITHIN A PURELY AGRICULTURAL FRAMEWORK, IN SO FAR AS THIS SYSTEM CONSTITUTES A NATIONAL ORGANIZATION OF THE MARKET THE MAINTENANCE OF WHICH MUST BE ENSURED AS LONG AS IT HAS NOT BEEN SUPERSEDED BY A COMMON ORGANIZATION OF THE MARKET . IN FACT, ACCORDING TO ARTICLE 38 ( 2 ) THE GENERAL RULES LAID DOWN FOR THE ESTABLISHMENT OF THE COMMON MARKET SHALL APPLY TO AGRICULTURAL PRODUCTS ONLY IN SO FAR AS THE TITLE IN THE TREATY CONCERNING AGRICULTURE DOES NOT PROVIDE OTHERWISE .

8 IN VIEW OF THIS ARGUMENT AND OF ITS POSSIBLE CONSEQUENCES FOR THE OUTCOME OF THE MAIN PROCEEDINGS, IT IS NECESSARY TO CONSIDER IN THE FIRST PLACE THE THIRD QUESTION ON THE INTERPRETATION OF REGULATION ( EEC ) NO 804/68 AND REGULATION ( EEC ) NO 2622/69, ADOPTED WITHIN THE FRAMEWORK OF THE COMMON AGRICULTURAL POLICY . THIS QUESTION ASKS WHETHER THE EXPIRY OF THE PERIOD LAID DOWN IN ARTICLE 22 ( 2 ) OF REGULATION ( EEC ) NO 804/68 AND EXTENDED BY ARTICLE 2 OF REGULATION ( EEC ) NO 2622/69 INVOLVES A DUTY TO ABOLISH MEASURES WHICH MAY BE CONTRARY TO THE PRINCIPLES OF THE TREATY, AND IN PARTICULAR, TO ABOLISH THE EXCLUSIVE SALES RIGHT RESERVED BY A MEMBER STATE IN CERTAIN PARTS OF ITS TERRITORY TO PRODUCER ORGANIZATIONS CREATED BY LEGISLATION .

9 THE MEANING OF THE ABOVEMENTIONED PROVISIONS CAN BE DETERMINED ONLY WITHIN THE FRAMEWORK OF THE GENERAL CONTEXT OF THE REGULATIONS OF WHICH THEY FORM PART .

10 ( A ) AFTER REGULATION NO 13/64/EEC OF THE COUNCIL OF 5 FEBRUARY 1964 ON THE PROGRESSIVE ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKET IN MILK AND MILK PRODUCTS HAD BEEN ISSUED, THAT ORGANIZATION WAS FINALLY DETERMINED IN ITS ENTIRETY BY REGULATION ( EEC ) NO 804/68 . ARTICLE 22 ( 2 ) OF THE LATTER REGULATION PROVIDES NEVERTHELESS THAT THE COMMUNITY SYSTEM OF SUPPLEMENTARY MEASURES FOR PRODUCTS FALLING WITHIN HEADING 04.01 OF THE COMMON CUSTOMS TARIFF - INCLUDING IN PARTICULAR DRINKING MILK - SHALL BE ADOPTED LATER, BUT IN ANY CASE BEFORE THE END OF THE TRANSITIONAL PERIOD . UNDER THE FOURTH SUBPARAGRAPH OF ARTICLE 22 ( 2 ) THE ITALIAN REPUBLIC WAS AUTHORIZED TO RETAIN UNTIL 31 DECEMBER 1969 " THE MEASURES REGULATING THE SUPPLY OF DRINKING MILK TO CERTAIN AREAS ". IT IS PLAIN THAT THAT PROVISION REFERRED TO THE SYSTEM OF " MILK CENTRES ".

11 ( B ) UNDER REGULATION ( EEC ) NO 2622/69, THE COUNCIL, TAKING THE VIEW THAT IT DID NOT SEEM APPROPRIATE TO ABOLISH, IN THE COURSE OF THE MILK YEAR, THE SPECIAL NATIONAL PROVISIONS OF THE ITALIAN REPUBLIC, EXTENDED TO 31 MARCH 1970 THE PERIOD LAID DOWN IN THE LAST SUBPARAGRAPH OF ARTICLE 22 ( 2 ) OF REGULATION ( EEC ) NO 804/68 .

12 ( C ) NO ACTION WAS TAKEN BY THE COUNCIL BY 31 MARCH 1970 ON A PROPOSAL TO AUTHORIZE THE ITALIAN REPUBLIC TO RETAIN THE PROVISIONS IN FORCE REGARDING THE MILK CENTRES TEMPORARILY FOR A FURTHER PERIOD UNTIL 31 MARCH 1972 WHICH WAS SUBMITTED BY THE COMMISSION TO THE COUNCIL ON 17 MARCH 1970 . ( OJ C 43, 1970, P . 5 ).

13 ( D ) BY REGULATION ( EEC ) NO 1411/71 OF 29 JUNE 1971 WHICH WAS ADOPTED AFTER THE EVENTS WHICH ARE THE SUBJECT OF THE PROCEEDINGS PENDING BEFORE THE NATIONAL COURT AND IS THEREFORE INAPPLICABLE TO THOSE EVENTS, THE COUNCIL LAID DOWN ADDITIONAL RULES ON THE COMMON ORGANIZATION OF THE MARKETS IN PRODUCTS FALLING WITHIN TARIFF HEADING 04.01 OF THE COMMON CUSTOMS TARIFF ( OJ ENGLISH SPECIAL EDITION 1971 ( II ), P . 412 ). UNDER ARTICLE 4 OF THAT REGULATION THE IMPLEMENTATION OF THAT ORGANIZATION REMAINS, HOWEVER, SUBJECT TO THE SUBSEQUENT FORMULATION BY THE COUNCIL OF CERTAIN PROVISIONS CONCERNING THE MARKETING OF MILK INTENDED FOR HUMAN CONSUMPTION . IN THE SAME REGULATION, THE COUNCIL, TAKING INTO ACCOUNT THE FACT THAT ITALY HAS UNDER PREPARATION MEASURES AIMED AT ALTERING THE STRUCTURE OF THE MILK CENTRES AND NOT WISHING TO JEOPARDIZE THAT REFORM, AUTHORIZED THE ITALIAN REPUBLIC BY ARTICLE 9 ( 2 ) TO MAINTAIN UNTIL 31 MARCH 1973 THE PROVISIONS APPLYING ON 31 MARCH 1970 TO THE MILK CENTRES .

14 IT APPEARS FROM ALL THESE PROVISIONS THAT AS FROM THE ENTRY INTO FORCE OF REGULATION ( EEC ) NO 804/68 THE MARKET IN MILK AND MILK PRODUCTS HAS BEEN THE SUBJECT OF A DEFINITIVE ORGANIZATION, ALBEIT STILL INCOMPLETE IN CERTAIN RESPECTS . THENCEFORTH IT WAS FOR THE COMMUNITY AUTHORITY ALONE TO DECIDE UPON THE PROVISIONAL MAINTENANCE OF ANY NATIONAL SYSTEM OF ORGANIZATION, INTERVENTION OR SUPERVISION RELATING TO THE PRODUCTS IN QUESTION . THE COUNCIL, BY LIMITING TO 31 DECEMBER 1969, THE DATE OF THE EXPIRY OF THE TRANSITIONAL PERIOD, THE CONCESSION GRANTED TO THE ITALIAN REPUBLIC WITH REGARD TO THE " MILK CENTRES ", CONCLUDED THAT THIS SYSTEM WAS INCOMPATIBLE WITH THE FUNDAMENTAL PRINCIPLES OF THE ORGANIZATION OF THE MARKET ENVISAGED FOR THE SECTOR IN QUESTION .

15 ON THE OTHER HAND BY THE TERMS IN WHICH IT GRANTED THE ITALIAN REPUBLIC AN EXTENSION FOR THREE MONTHS OF THE PERIOD ORIGINALLY LAID DOWN BY REGULATION NO 2622/69, THE COUNCIL HAS SHOWN THAT IT ONLY CONSIDERED THE AUTHORIZATION GRANTED AS A MEASURE OF AN ESSENTIALLY TEMPORARY NATURE INTENDED TO MAKE THE ABOLITION OF THE SALES MONOPOLY COINCIDE WITH THE END OF THE THEN CURRENT MILK MARKETING SEASON . ALTHOUGH IT IS POSSIBLE TO ELICIT FROM REGULATION ( EEC ) NO 1411/71 THE INTENTION OF THE COMMUNITY LEGISLATURE TO GRANT ITALY A CERTAIN ADDITIONAL PERIOD TO ENABLE THE " MILK CENTRES " TO BE RE-STRUCTURED, NEVERTHELESS AT THE TIME OF THE EVENTS SUBMITTED TO THE NATIONAL COURT, THE ONLY PROVISION IN FORCE CONCERNING THE SYSTEM OF THESE CENTRES WAS REGULATION ( EEC ) NO 2622/69, ARTICLE 2 OF WHICH FIXED 31 MARCH 1970 AS THE END OF THE CONCESSIONARY PERIOD GRANTED . IT FOLLOWS FROM THIS THAT AT THE TIME OF THE EVENTS SUBMITTED FOR CONSIDERATION BY THE NATIONAL COURT THERE WAS A SPECIFIC PROVISION OF A REGULATION WHICH IMPLIED THE ABOLITION OF THE EXCLUSIVE RIGHT OF SALE GRANTED TO THE " MILK CENTRES " AND, IN CONSEQUENCE, THE INAPPLICABILITY OF THE NATIONAL LEGISLATIVE PROVISIONS GRANTING THAT EXCLUSIVE RIGHT .

16 UNDER THOSE CIRCUMSTANCES THE SECOND SUBPARAGRAPH OF ARTICLE 40 ( 3 ) OF THE TREATY HAD TO BE APPLIED IN FULL AT THAT TIME, FROM WHICH IT FOLLOWS THAT WHATEVER THE FORM CHOSEN FOR THE COMMON ORGANIZATION OF THE AGRICULTURAL MARKETS, THAT ORGANIZATION MUST IN ANY CASE BE UNDERSTOOD TO EXCLUDE " ANY DISCRIMINATION BETWEEN PRODUCERS OR CONSUMERS WITHIN THE COMMUNITY ".

17 IN VIEW OF THE ANSWER GIVEN TO THE THIRD QUESTION IT DOES NOT APPEAR NECESSARY TO CONSIDER THE OTHER QUESTIONS SUBMITTED BY THE PRETORE DI BARI .

18 THE COSTS INCURRED BY THE COMMISSION AND BY THE COUNCIL OF THE EUROPEAN COMMUNITIES WHICH SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE AND AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE PRETORE OF THE DISTRICT OF BARI BY ORDER OF 3 JULY 1971,

HEREBY RULES :

THE EXPIRY OF THE PERIOD LAID DOWN IN ARTICLE 22 ( 2 ) OF REGULATION ( EEC ) NO 804/68 OF THE COUNCIL OF 27 JUNE 1968 AND EXTENDED BY ARTICLE 2 OF REGULATION ( EEC ) NO 2622/69 OF THE COUNCIL OF 21 DECEMBER 1969, IMPLIED AT THE TIME OF THE EVENTS SUBMITTED FOR CONSIDERATION BY THE NATIONAL COURT, THE ABOLITION OF THE EXCLUSIVE SALES RIGHT LAID DOWN WITHIN THE FRAMEWORK OF THE " SYSTEM OF COLLECTION AND DISTRIBUTION AREAS FOR MILK IN THE ITALIAN REPUBLIC " REFERRED TO BY THE SAID PROVISIONS, AND THAT CONSEQUENTLY ALL PROVISIONS OF NATIONAL LEGISLATION GRANTING THAT EXCLUSIVE RIGHT WERE INAPPLICABLE .