61982J0029

1 . FREE MOVEMENT OF GOODS - AGRICULTURE - COMMON ORGANIZATIONS OF THE MARKETS - PRINCIPLES - FREEDOM OF COMMERCIAL TRANSACTIONS

( EEC TREATY , ARTS 30 AND 34 )

2.AGRICULTURE - COMMON ORGANIZATIONS OF THE MARKETS - FRUIT AND VEGETABLES - PRINCIPLES - FREEDOM OF COMMERCIAL TRANSACTIONS - NATIONAL MEASURES RESTRICTING MARKETING - NOT PERMISSIBLE

( REGULATION NO 1035/72 OF THE COUNCIL )

3.MEMBER STATES - DUTIES - IMPLEMENTATION OF COMMUNITY LAW - DEROGATIONS- JUSTIFICATION BASED ON CONSIDERATIONS OF AN ADMINISTRATIVE NATURE - NOT ACCEPTABLE

4.FREE MOVEMENT OF GOODS - QUANTITATIVE RESTRICTIONS ON EXPORTS - MEASURES HAVING EQUIVALENT EFFECT - COMPULSORY MEMBERSHIP OF FRUIT AND VEGETABLE EXPORTERS IN A QUALITY-CONTROL AUTHORITY - NOT COMPATIBLE WITH THE COMMON ORGANIZATION OF THE MARKET IN FRUIT AND VEGETABLES

( EEC TREATY , ART . 34 ; REGULATION NO 1035/72 OF THE COUNCIL ; REGULATION NO 2638/69 OF THE COMMISSION )

1 . ARTICLES 30 AND 34 OF THE TREATY DEALING WITH THE ABOLITION OF QUANTITATIVE RESTRICTIONS ON IMPORTS AND EXPORTS AND ALL MEASURES HAVING EQUIVALENT EFFECT FORM AN INTEGRAL PART OF THE COMMON ORGANIZATIONS OF THE MARKETS IN THE AGRICULTURAL SECTORS . AS FAR AS TRADE WITHIN THE COMMUNITY IS CONCERNED , THE COMMON ORGANIZATIONS OF THE MARKETS ARE THEREFORE BASED ON FREEDOM OF COMMERCIAL TRANSACTIONS AND ARE INCOMPATIBLE WITH ANY NATIONAL LEGISLATION CAPABLE OF HINDERING INTRA-COMMUNITY TRADE .

2.IT IS CONTRARY TO THE FREEDOM OF COMMERCIAL TRANSACTIONS ON WHICH THE COMMON ORGANIZATION OF THE MARKET IN FRUIT AND VEGETABLES IS BASED FOR NATIONAL LEGISLATION TO MAKE THE EXPORTATION OF THOSE PRODUCTS CONDITIONAL ON THE EXPORTER ' S BEING AFFILIATED TO A PUBLIC BODY OR A BODY APPROVED BY AN OFFICIAL AUTHORITY .

3.CONSIDERATIONS OF AN ADMINISTRATIVE NATURE CANNOT JUSTIFY DEROGATION BY A MEMBER STATE FROM THE RULES OF COMMUNITY LAW .

4.ARTICLE 34 OF THE EEC TREATY AND THE RULES ON THE COMMON ORGANIZATION OF THE MARKET IN FRUIT AND VEGETABLES DO NOT ALLOW NATIONAL LEGISLATION TO STIPULATE THAT AN ASSOCIATION INCORPORATED UNDER PRIVATE LAW , DESIGNATED AS THE SOLE CHECKING AUTHORITY WITHIN THE MEANING OF REGULATION NO 1035/72 ON THE COMMON ORGANIZATION OF THE MARKET IN FRUIT AND VEGETABLES , SHALL ISSUE ONLY TO MEMBERS OF THAT ASSOCIATION THE ACKNOWLEDGEMENTS OF RECEIPT AND CERTIFICATES OF INSPECTION REFERRED TO IN REGULATION NO 2638/69 LAYING DOWN ADDITIONAL PROVISIONS ON QUALITY CONTROL OF FRUIT AND VEGETABLES MARKETED WITHIN THE COMMUNITY .

IN CASE 29/82

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN ( ADMINISTRATIVE COURT OF LAST INSTANCE IN MATTERS OF TRADE AND INDUSTRY ) FOR A PRELIMINARY RULING IN THE APPEAL IN A MATTER OF ADMINISTRATIVE LAW BROUGHT BEFORE THAT COURT BY

F . VAN LUIPEN EN ZN BV , THE HAGUE ,

AGAINST A DISCIPLINARY MEASURE ADOPTED AGAINST IT ,

ON THE INTERPRETATION OF ARTICLES 30 TO 34 OF THE EEC TREATY AND REGULATION ( EEC ) NO 1035/72 OF THE COUNCIL OF 18 MAY 1972 ON THE COMMON ORGANIZATION OF THE MARKET IN FRUIT AND VEGETABLES ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( II ), P . 437 ),

1 BY JUDGMENT DATED 29 DECEMBER 1981 WHICH WAS RECEIVED AT THE COURT ON 14 JANUARY 1982 THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN ( ADMINISTRATIVE COURT OF LAST INSTANCE IN MATTERS OF TRADE AND INDUSTRY ) REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF ARTICLES 30 AND 34 OF THE EEC TREATY AND OF REGULATION ( EEC ) NO 1035/72 OF THE COUNCIL OF 18 MAY 1972 ON THE COMMON ORGANIZATION OF THE MARKET IN FRUIT AND VEGETABLES ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( II ), P . 437 ) TO ENABLE IT TO DECIDE WHETHER THE OBLIGATION UPON NETHERLANDS FRUIT AND VEGETABLE EXPORTERS TO BECOME MEMBERS OF AN INSPECTING AUTHORITY INCORPORATED UNDER PRIVATE LAW IS COMPATIBLE WITH THOSE PROVISIONS .

2 THE QUESTION WAS RAISED IN AN APPEAL BROUGHT BY A NETHERLANDS COMPANY BEFORE THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN AGAINST A DECISION BY WHICH A DISCIPLINARY TRIBUNAL ( TUCHTGERECHT ) FINED THAT COMPANY , AS A MEMBER OF THE KWALITEITSCONTROLEBUREAU VOOR GROENTEN EN FRUIT ( QUALITY CONTROL BUREAU FOR FRUIT AND VEGETABLES , HEREINAFTER REFERRED TO AS ' ' THE BUREAU ' ' ), HFL 4 000 FOR PACKING A CONSIGNMENT OF TOMATOES IN PACKAGING BEARING THE QUALITY DESCRIPTION ' ' GRADE I ' ' WHEN THE TOMATOES DID NOT MEET THE COMMUNITY QUALITY REQUIREMENTS FOR THAT GRADE AND FOR HOLDING THEM FOR SALE BY WAY OF TRADE OR BUSINESS .

3 THE APPELLANT CONTENDED BEFORE THE NATIONAL COURT THAT THE NATIONAL LEGISLATION UNDER WHICH THE DISCIPLINARY TRIBUNAL HAD IMPOSED THE FINE HAD NO BINDING FORCE BECAUSE IT WAS CONTRARY TO ARTICLE 34 OF THE EEC TREATY AND TO REGULATION NO 1035/72 OF THE COUNCIL INASMUCH AS IT MADE IT NECESSARY FOR ANY EXPORTER OF FRUIT AND VEGETABLES ESTABLISHED IN THE NETHERLANDS TO BE A MEMBER OF THE BUREAU .

4 IN THOSE CIRCUMSTANCES THE COLLEGE VAN BEROEP VOOR HET BEDSRIJFSLEVEN REFERRED THE MATTER TO THE COURT OF JUSTICE AND ASKED IT THE FOLLOWING QUESTION :

' ' MUST REGULATION ( EEC ) NO 1035/72 AND THE PROVISIONS OF THE TREATY ABOLISHING TARIFF AND TRADE RESTRICTIONS , IN PARTICULAR ARTICLES 30 AND 34 ABOLISHING MEASURES HAVING AN EFFECT EQUIVALENT TO QUANTITATIVE RESTRICTIONS ON IMPORTS AND EXPORTS , WHICH MUST BE REGARDED AS FORMING AN INTEGRAL PART OF THAT REGULATION , BE CONSTRUED AS MEANING THAT NATIONAL RULES OF THE KIND DESCRIBED ABOVE STIPULATING THAT THE ACKNOWLEDGEMENTS OF RECEIPT AND CERTIFICATES REFERRED TO IN REGULATION ( EEC ) NO 2638/69 ARE TO BE ISSUED BY THE QUALITY CONTROL BUREAU DESIGNATED AS THE CHECKING AUTHORITY WITHIN THE MEANING OF REGULATION ( EEC ) NO 1035/72 ONLY TO MEMBERS OF THAT ASSOCIATION INCORPORATED UNDER PRIVATE LAW , ARE IMCOMPATIBLE WITH REGULATION NO 1035/72 AND ARTICLES 30 AND 34 OF THE TREATY , BEARING IN MIND THAT :

THE NATIONAL RULES PROVIDE THAT THE QUALITY CONTROL BUREAU IS UNDER A DUTY TO ACCEPT AS A MEMBER ANY PERSON NOTIFYING IT IN WRITING OF HIS WISH TO BECOME SUBJECT TO ITS SUPERVISION IN ACCORDANCE WITH ITS RULES ;

THE NATIONAL RULES PROVIDE THAT THE SUPERVISION TO WHICH MEMBERS OF THE QUALITY CONTROL BUREAU ARE SUBJECT UNDER ITS RULES CONSISTS EXCLUSIVELY IN CHECKING THAT THE PROVISIONS OF REGULATION ( EEC ) NO 1035/72 AND NO 2638/69 ARE COMPLIED WITH AND THAT THE COMMUNITY QUALITY STANDARDS ADOPTED PURSUANT TO THOSE REGULATIONS ARE OBSERVED?

' '

5 THE COMMON ORGANIZATION OF THE MARKET IN FRUIT AND VEGETABLES INVOLVES THE ADOPTION OF COMMON QUALITY STANDARDS THE APPLICATION OF WHICH SHOULD HAVE THE EFFECT , ACCORDING TO THE FOURTH RECITAL IN THE PREAMBLE TO REGULATION NO 1035/72 , OF INTER ALIA FACILITATING TRADE RELATIONS BASED ON FAIR COMPETITION . ACCORDING TO ARTICLE 8 OF THE REGULATION , THE TASK OF ENSURING THAT THOSE STANDARDS ARE COMPLIED WITH IS TO BE CARRIED OUT BY AUTHORITIES APPOINTED BY EACH MEMBER STATE .

6 ARTICLE 1 OF REGULATION ( EEC ) NO 2638/69 OF THE COMMISSION OF 24 DECEMBER 1969 LAYING DOWN ADDITIONAL PROVISIONS ON QUALITY CONTROL OF FRUIT AND VEGETABLES MARKETED WITHIN THE COMMUNITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1969 ( II ), P . 611 ) PROVIDES THAT ALL CONSIGNMENTS FOR DISPATCH OUTSIDE A FORWARDING AREA ( FOR THIS PURPOSE THE WHOLE TERRITORY OF THE KINGDOM OF THE NETHERLANDS CONSTITUTES A SINGLE FORWARDING AREA ) MUST BE NOTIFIED BY THE CONSIGNOR TO THE COMPETENT AUTHORITY RESPONSIBLE FOR INSPECTION WHICH , DEPENDING ON THE CASE , MUST ISSUE EITHER A CERTIFICATE OF INSPECTION OR AN ACKNOWLEDGEMENT OF RECEIPT TO ACCOMPANY THE GOODS .

7 AS THE NATIONAL COURT ITSELF STATES IN THE QUESTION SUBMITTED , THE NATIONAL LEGISLATION BY WHICH THE SYSTEM OF INSPECTION IS IMPLEMENTED IN THE NETHERLANDS DESIGNATES THE BUREAU AS THE SOLE CHECKING AUTHORITY FOR THAT PURPOSE AND IN ADDITION STIPULATES THAT THE DOCUMENTS TO BE USED AS PROOF , SUCH AS THE CERTIFICATES OF INSPECTION AND ACKNOWLEDGEMENTS OF RECEIPT , ARE TO BE ISSUED BY THE BUREAU ONLY TO ITS MEMBERS . CONSEQUENTLY ANY PERSON WISHING TO EXPORT FRUIT AND VEGETABLES TO OTHER MEMBER STATES MUST BECOME A MEMBER OF THE BUREAU .

8 IN ORDER TO ANSWER THE QUESTION SUBMITTED IT MUST BE RECALLED , AS THE COURT HAS STATED ON SEVERAL OCCASIONS AND AS THE NATIONAL COURT ALSO MENTIONS IN ITS QUESTION , THAT ARTICLES 30 AND 34 OF THE TREATY DEALING WITH THE ABOLITION OF QUANTITATIVE RESTRICTIONS ON IMPORTS AND EXPORTS AND ALL MEASURES HAVING EQUIVALENT EFFECT FORM AN INTEGRAL PART OF THE COMMON ORGANIZATIONS OF THE MARKETS IN THE AGRICULTURAL SECTORS . AS FAR AS TRADE WITHIN THE COMMUNITY IS CONCERNED , THE COMMON ORGANIZATIONS OF THE MARKETS ARE THEREFORE BASED ON FREEDOM OF COMMERCIAL TRANSACTIONS AND ARE INCOMPATIBLE WITH ANY NATIONAL LEGISLATION CAPABLE OF HINDERING INTRA-COMMUNITY TRADE .

9 IN ITS JUDGMENT OF 26 FEBRUARY 1980 IN CASE 94/79 ( VRIEND ( 1980 ) ECR 327 ) THE COURT HAS ALREADY HELD , IN THE CASE OF THE COMMON ORGANIZATION OF THE MARKET IN LIVE TREES AND OTHER PLANTS , BULBS , ROOTS AND THE LIKE , CUT FLOWERS AND ORNAMENTAL FOLIAGE , THAT IT IS CONTRARY TO THE FREEDOM OF COMMERCIAL TRANSACTIONS FOR NATIONAL LEGISLATION TO MAKE THE EXPORTATION OF THE PRODUCTS IN QUESTION CONDITIONAL ON THE EXPORTER ' S BEING AFFILIATED TO A PUBLIC BODY OR A BODY APPROVED BY AN OFFICIAL AUTHORITY .

10 IN THE PRESENT CASE THAT FINDING APPLIES WITH ALL THE MORE FORCE BECAUSE THE PURPOSE OF THE QUALITY STANDARDS WHICH THE BUREAU HAS THE TASK OF CONTROLLING IS , AS STATED ABOVE , TO FACILITATE TRADE RELATIONS BASED ON FAIR COMPETITION . IT WOULD BE CONTRARY TO THAT AIM TO PROHIBIT THE EXPORTATION OF PRODUCTS WHICH MEET THOSE STANDARDS AND HAVE BEEN SUBJECTED TO THE CHECKS PROVIDED FOR BY THE COMMUNITY RULES FOR THE SIMPLE REASON THAT THE EXPORTER IS NOT A MEMBER OF THE CHECKING AUTHORITY DESIGNATED BY THE MEMBER STATE FROM WHICH THE PRODUCTS ARE TO BE EXPORTED .

11 IN THE WRITTEN OBSERVATIONS WHICH IT SUBMITTED TO THE COURT THE NETHERLANDS GOVERNMENT POINTED OUT THAT , UNLIKE THE CASE IN VRIEND CITED ABOVE , THE COMMON QUALITY STANDARDS FOR FRUIT AND VEGETABLES CONSTITUTE AN EXHAUSTIVE AND COMPLICATED SET OF RULES . TO IMPLEMENT THEM EFFECTIVELY AT THE NATIONAL LEVEL IT IS BETTER TO ASSIGN THE TASK OF CHECKING THAT THEY ARE COMPLIED WITH TO BODIES ALREADY IN EXISTENCE , SUCH AS THE BUREAU AND ITS DISCIPLINARY TRIBUNAL . AS , UNDER NETHERLANDS LAW , THE RULES ADOPTED BY A BODY INCORPORATED UNDER PRIVATE LAW AS WELL AS ITS DISCIPLINARY POWERS ARE BINDING ONLY ON ITS MEMBERS , MEMBERSHIP MUST BE MADE COMPULSORY . SINCE THE BUREAU IS OBLIGED TO ACCEPT AS A MEMBER ANY PERSON NOTIFYING IT IN WRITING OF HIS WISH TO BECOME SUBJECT TO ITS SUPERVISION AND SINCE , EVEN UNDER THE COMMUNITY RULES , ANYONE WISHING TO DISPATCH FRUIT AND VEGETABLES OUTSIDE THE FORWARDING AREA MUST APPLY TO THE BUREAU IN ANY CASE , THE OBLIGATION TO AFFILIATE IS NOTHING MORE THAN A MERE FORMALITY WHICH IS JUSTIFIED IN RELATION TO THE OBJECTIVE PURSUED IN THE PUBLIC INTEREST .

12 HOWEVER , THAT ARGUMENT CANNOT BE ACCEPTED . AS THE NETHERLANDS GOVERNMENT HAS ITSELF ACKNOWLEDGED , EFFECTIVE CONTROL CAN BE ESTABLISHED WITHOUT AN OBLIGATION OF THAT KIND AND THE COURT HAS CONSISTENTLY HELD THAT CONSIDERATIONS OF AN ADMINISTRATIVE NATURE CANNOT JUSTIFY DEROGATION BY A MEMBER STATE FROM THE RULES OF COMMUNITY LAW .

13 THE ANSWER TO THE QUESTION SUBMITTED SHOULD THEREFORE BE THAT ARTICLE 34 TO THE EEC TREATY AND THE RULES ON THE COMMON ORGANIZATION OF THE MARKET IN FRUIT AND VEGETABLES DO NOT ALLOW NATIONAL LEGISLATION TO STIPULATE THAT AN ASSOCIATION INCORPORATED UNDER PRIVATE LAW , DESIGNATED AS THE SOLE CHECKING AUTHORITY WITHIN THE MEANING OF REGULATION NO 1035/72 , SHALL ISSUE ONLY TO MEMBERS OF THAT ASSOCIATION THE ACKNOWLEDGEMENTS OF RECEIPT AND CERTIFICATES OF INSPECTION REFERRED TO IN REGULATION NO 2638/69 .

14 IT MUST BE ADDED THAT IT IS A MATTER FOR THE NATIONAL COURT ALONE , APPLYING ITS NATIONAL LAW , TO DECIDE WHETHER THAT FINDING IS OF SUCH A NATURE AS TO AFFECT THE VALIDITY OF A DECISION BY WHICH A DISCIPLINARY TRIBUNAL OF SUCH AN ASSOCIATION IMPOSED A FINE ON A MEMBER COMPANY FOR FAILING TO OBSERVE THE COMMON QUALITY STANDARDS .

COSTS

15 THE COSTS INCURRED BY THE GOVERNMENT OF THE NETHERLANDS AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE APPELLANT IN THE MAIN PROCEEDINGS IS CONCERNED , IN THE NATURE OF A STEP IN THE APPEAL PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER ),

IN ANSWER TO THE QUESTION SUBMITTED TO IT BY THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN BY JUDGMENT OF 29 DECEMBER 1981 , HEREBY RULES :

ARTICLE 34 OF THE EEC TREATY AND THE RULES ON THE COMMON ORGANIZATION OF THE MARKET IN FRUIT AND VEGETABLES DO NOT ALLOW NATIONAL LEGISLATION TO STIPULATE THAT AN ASSOCIATION INCORPORATED UNDER PRIVATE LAW , DESIGNATED AS THE SOLE CHECKING AUTHORITY WITHIN THE MEANING OF REGULATION NO 1035/72 OF THE COUNCIL OF 18 MAY 1972 , SHALL ISSUE ONLY TO MEMBERS OF THAT ASSOCIATION THE ACKNOWLEDGEMENTS OF RECEIPT AND CERTIFICATES OF INSPECTION REFERRED TO IN REGULATION NO 2638/69 OF THE COMMISSION OF 24 DECEMBER 1969 LAYING DOWN ADDITIONAL PROVISIONS ON QUALITY CONTROL OF FRUIT AND VEGETABLES MARKETED WITHIN THE COMMUNITY .