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Document 61978CC0083
Opinion of Mr Advocate General Reischl delivered on 7 November 1978. # Pigs Marketing Board v Raymond Redmond. # Reference for a preliminary ruling: Armagh Magistrate's Court (Northern Ireland) - United Kingdom. # Common organization of the market in pigmeat. # Case 83/78.
Konklużjonijiet ta' l-Avukat Ġenerali - Reischl - 7 ta' Novembru 1978.
Pigs Marketing Board vs Raymond Redmond.
Talba għal deċiżjoni preliminari: Armagh Magistrate's Court (Northern Ireland) - ir-Renju Unit.
Organizzazzjoni komuni tas-swieq.
Kawża 83/78.
Konklużjonijiet ta' l-Avukat Ġenerali - Reischl - 7 ta' Novembru 1978.
Pigs Marketing Board vs Raymond Redmond.
Talba għal deċiżjoni preliminari: Armagh Magistrate's Court (Northern Ireland) - ir-Renju Unit.
Organizzazzjoni komuni tas-swieq.
Kawża 83/78.
ECLI identifier: ECLI:EU:C:1978:195
OPINION OF MR ADVOCATE GENERAL REISCHL
DELIVERED ON 7 NOVEMBER 1978 ( 1 )
Mr President,
Members of the Court,
In 1933 a Pigs Marketing Scheme was set up under the Agricultural Marketing Act (Northern Ireland) 1933 which was re-enacted in 1964. It is administered by the Pigs Marketing Board (Northern Ireland) whose members are largely pig producers; the Department of Agriculture does however have certain powers of control over the Board.
For particulars of the organization of the Board and its activities I refer to the description given in the judgment making the reference and to the statements in the written procedure. I shall mention only the following in my opinion:
It is significant that the Board has a marketing monopoly in respect of bacon pigs reared in Northern Ireland of a minimum live weight of 77 kg but not in respect of animals for breeding or pigs under that weight. Anyone wishing to sell such animals (apart from certain exceptions provided for) must basically be registered with the Board as a producer. Sale is allowed only to the Board or through its agency or at its direction. The Board sells the pigs to processors, in particular curers, in whose activity it has itself a very important interest; apparently some half of the bacon production in -Northern Ireland is controlled by the Board. In this respect, that is in respect of the resale (and this will not be of further concern here) quotas apply which are laid down by the Department. The purchase prices are determined by the Board on the basis of its estimate of its annual income. A percentage of this, determined by the Secretary of State, who moreover may exempt certain classes of producers from contributions, is retained by the Board to cover expenses. Whatever is not required for this, that is any surplus, is with the approval of the Secretary of State put in a special account from which payment may be made to producers where prices fall. If I have understood the position correctly, the Board does not apply any uniform prices and also determines to a certain extent the amount of pigs it will buy. In this respect a system of long-term contracts with producers, apparently in operation since 1976, should be mentioned. Under this system the producers must offer in advance the quantities which they expect to supply in a 13-week period and this represents the so-called contract number for the first period. For subsequent periods (and this is the restriction on numbers which I mentioned) the number delivered is subject to limitation by the Board if a producer has failed to supply at least 85 % of his contract number in the previous period or if the total number offered by all producers is considered excessive having regard to market conditions. As regards prices, there are contract prices which apply in respect of 115 % of the contract number. Non-contract prices which are less than these apply to pigs supplied in excess of 115 % of the contract number or for pigs supplied without a long-term contract. Further there is a bonus for producers who supply at least 85 % of the contract number and premiums for marketing during certain periods in the summer.
The Movement of Pigs Regulations (Northern Ireland) 1972 form part of this system. They prohibit the transport of bacon pigs elsewhere than to the purchasing centres of the Board and it is also necessary for consignments to be accompanied by documents supplied by the Board. Breach of these provisions is punishable by imprisonment and/or fines; further the animals may be forfeited.
I come now to the facts of the main proceedings: in January 1977 a consignment of 75 bacon pigs which were not intended for a purchasing centre of the Pigs Marketing Board and for which the necessary transport documents were not available was observed in the district of Armagh. As a result, in July 1977 proceedings at the instigation of the Board were commenced against Mr Redmond, the owner of the pigs. As a result of his defence (he claimed in particular that the Northern Ireland Pigs Marketing Scheme was incompatible with Community law) the magistrate before whom the matter came in September 1977 gave a judgment in which it was stated that a preliminary ruling under Article 177 of the EEC Treaty was necessary to clarify a number of questions of Community law. The Board appealed against this to the Court of Appeal for Northern Ireland. After the appeal was rejected the original magistrate forwarded the said judgment on 10 March 1978 to the Court of Justice of the European Communities. It contains the following questions:
Is the Board an “undertaking”? Is it a “national market organization”? Is it a “State monopoly of a commercial character”? Is it all three, or is it a combination of any two?
1. |
If it is an “undertaking” is it an undertaking within the meaning and intention of Articles 85 and 86? If it is, then in view of the provisions of its Scheme the Board's activities clearly violate these Articles — particularly Article 85 (1) (a) (b) and (c). |
2. |
If it is a “national market organization”, does it fall within Article 2 of Regulation No 26 so as to be in a position to attract the exemptions provided for there? In my opinion this particular regulation only applies to national market organizations which are established by agreement and about which there is nothing compulsory. The Board administers its Scheme by compulsion and restrictions eg “A producer who is neither a registered producer nor a person exempt from registration shall not sell any pigs.” But even if the Board falls within the meaning and intention of Article 2 of Regulation No 26, no evidence has been produced, nor has research on my pan been able to throw up any decision of the Common Market Commission relating to the exemption of the Board from the operation of Article 85 of the Treaty of Rome. |
3. |
If it is a “State monopoly of a commercial character”, does it fall within the meaning of Article 37 (1) of the Treaty of Rome so as to gain the protection of Article 44 of the Treaty of Accession which provides for a transition period up to 31 December 1977? |
4. |
If it is a “State monopoly of a commercial character” within Article 37 of the Treaty of Rome and the period of grace for adjustment does not expire until 31 December 1977, does this save it from the immediate effect of Articles 85 and 86 until that date? Or can it be argued that “undertakings” within the meaning of Articles 85 and 86 can be construed to include State monopolies? Counsel for the Board argued that the term “undertakings” is not defined but is used as distinct from “State monopolies”. |
5. |
Do the Board's activities fall within the provisions of Article 85 (3) so as to exempt it from the provisions of paragraph (1)? This point was not raised. If the Board is exempt from the application of Article 85 by the operation of paragraph (3) it has no need to fall back on the “transitional period” argument. |
6. |
And what about Article 8 of the Treaty of Rome which provides that: “(1) the Common Market shall be progressively established during a transitional period of 12 years; and (2) to each stage there shall be assigned a set of actions to be initiated and carried through concurrently.” — |
Does this provision affect the present case?
Further, in an accompanying letter dated 10 March 1978, the Resident Magistrate stated that the following questions arose incidentally:
(a) |
Whether Articles 30, 31, 32, 34, 37, 40, 41, 42, 43, 85, 86 and 90 of the Treaty establishing the European Economic Community are directly applicable so as to confer on individuals rights enforceable by them in the courts of the United Kingdom. |
(b) |
Whether Regulations Nos 121/67, 2759/75 and all other regulations on the common organization of the market in pigmeat adopted in accordance with the Treaty establishing the European Economic Community are directly applicable so as to confer on individuals rights enforceable by them in the courts of the United Kingdom. |
(c) |
Whether, upon the proper interpretation of the articles and regulations alone, or any relevant Community Law, the Pigs Marketing Scheme in Northern Ireland is in contravention of the rules of Community law. |
(d) |
Under the above articles, regulations or any relevant Community law can a Member State be authorized:
|
(e) |
Does imposition of the aforesaid obligations relating to the total regulation of numbers of pigs produced, sales and controlled prices constitute infringement of Community law in so far as they may represent measures having an equivalent effect to quantitative restrictions on exports, bearing in mind that the Northern Ireland legislation in question has as one of its main aims and effects the prevention of exportation of pigs to the Republic of Ireland? |
(f) |
Was the United Kingdom covered on the date of accession by a common organization of the market in so far as agriculture was concerned, and in relation in particular to pigmeat and live pigs, and if so did it apply from 1 February 1973? |
(g) |
Was the United Kingdom Government entitled to introduce the Movement of Pigs Regulations (Northern Ireland) 1972 in the month of May 1972? |
My opinion on this reference for a preliminary ruling is as follows:
1. |
First I must make some observations on the scope of the inquiries the Court has to undertake. The British Government has stressed that only the questions in paragraph 10 of the national judgment are relevant, as is apparent from the letter of the Resident Magistrate dated 10 March 1978 which refers to the questions put in the judgment given in September 1977. The government states that in so far as the letter contains additional questions it should not be overlooked that in the view of the magistrate they are only “incidental”, that is, not pertinent and in truth not essential for the purposes of judgment in the matter. Further, it is stated that if it is borne in mind that only the Movement of Pigs Regulations are relevant for the Resident Magistrate and not all aspects of the Northern Ireland Pigs Marketing Scheme it follows that only the questions raised in relation to Article 37 of the EEC Treaty are relevant and that the questions in relation to Articles 85 and 86 of the Treaty and Regulation No 26 or Article 8 of the Treaty are certainly not necessary for judgment to be given in the main proceedings. In my opinion it is certainly right to recognize that the Movement of Pigs Regulations are the principal issue in the main proceedings. Disregard of it is a punishable offence and the question immediately arises whether it is compatible with Community law. In my opinion, however, it is also clear that the Movement of Pigs Regulations are not a self-contained scheme. They are intimately connected with the Bacon Pig Marketing Scheme applicable in Northern Ireland and their purpose is to ensure that the Board's marketing monopoly is effectively enforced. Therefore the latter cannot be left out of consideration. If it should appear that the marketing monopoly conflicts with Community law then it would also be clear that the national regulations whose exclusive function is to serve the marketing monopoly are also unlawful. Further I think (and here I come to the other part of the problem raised by the British Government) that solely on the basis of these premises it must be determined which of the many questions raised must be dealt with by the Court. I should not consider it right if by reason of the unusual reference with which we are concerned here (questions in the judgment itself and in addition questions raised incidentally in an accompanying letter) the Court were to adopt a strictly formalistic attitude and consider itself concerned only with the questions contained in the judgment without regard to the related risk of delaying the proceedings as might happen if there had to be a fresh reference. All that is important is that the Court should now be clearly aware of the questions arising out of the main proceedings. Accordingly it must endavour to provide the national court as far as possible with all the relevant criteria from the point of view of Community law so that the Magistrate can consider the compatibility of the Northern Ireland marketing scheme with Community law. I therefore think that the narrow restriction of the reference for a preliminary ruling which the British Government regards as necessary is in no way essential and that the Court can consider all the aspects relevant to the ultimate judgment contained in the national judgment itself and in the accompanying letter of the Resident Magistrate if it takes the view that this is reasonable for the purpose of dealing properly with the reference for a preliminary ruling. There is yet one further issue to be considered, although this will present few problems. Various questions are worded in such a way that the Court might find itself called upon to consider the compatibility of the national law with Community law. It has no jurisdiction to do so because this would mean applying the law which is within the exclusive jurisdiction of the national court. To this extent it will be necessary to proceed in the manner which has already been adopted in a number of other cases by extracting from incorrectly-worded questions the various factors which are suitable for consideration in a reference for a preliminary ruling; then the necessary findings of Community law are to be made enabling the national court to resolve the particular case. This causes just as few difficulties in the present proceedings as in earlier cases with the same problem. |
2. |
Since, as already mentioned, the central issue arising for the national court is whether the Northern Ireland Board's marketing monopoly in respect of bacon pigs is compatible with Community law, it is appropriate first to consider the question of the nature of the marketing rules of Community law in relation to this product and what consequences the existence of a common organization of the market has on the lawfulness of national measures.
|
3. |
It is true that the considerations so far adumbrated provide no more than a provisional assessment. Now the question must be considered whether other considerations, as mentioned in the proceedings, may be set against the objections arising out of Community law and may justify -the Northern Irish Scheme.
|
4. |
Since it may thus indeed be concluded that the impression that the Northern Ireland marketing rules for bacon pigs are incompatible with the common organization of the market in pigmeat is correct, it is not really necessary to consider further questions from the national court to see whether other aspects may further strengthen the judgment arrived at. However, I should like at least to consider the problem whether there can be said to be measures having an effect equivalent to quantitative restrictions on exports, that is whether there can be said to be a disregard of the general provision in Article 34 of the EEC Treaty (since after the expiry of the transitional period no such prohibition in relation to trade within the Community has any longer been included in the organization of the market). As the Court is aware, under Article 42 of the Act of Accession this prohibition applied in relation to quantitative restrictions as from the date of accession and in relation to measures having equivalent effect as from 1 January 1975 at the latest. In my opinion what the Commission said on this subject also is quite correct. In this respect it is significant that in accordance with the case-law (Case 2/73 Riseria Luigi Geddo v Ente Nazionale Risi [1973] ECR 865) the movement of goods within the Community must be freed from every obstacle and, as was held in the judgment in Case 68/76 Commission v French Republic [1977] ECR 515, even special formalities must be regarded as obstacles within the meaning of the said prohibition. Further, it is clear, as we have seen, that pig producers cannot themselves export from Northern Ireland but only via the Board; the implication cannot be rejected here that the Board (its involvement in the Northern Ireland processing industry may be recalled) may be inclined to protect this processing industry may be recalled) may be inclined to protect this processing industry by restrictions on export when it might be possible to obtain higher prices by exporting. In this respect it is also not insignificant that according to the national judgment and the evidence of an official of the Board in the main proceedings an essential objective of the marketing scheme is to prevent export to the Republic of Ireland. In view of this there can really be no question but that the Marketing Scheme has effects equivalent to quantitative restrictions on exports and this is not altered by the already mentioned fact that, at least temporarily, the monetary compensatory system might result in stopping exports. |
5. |
These findings are sufficient for an appropriate answer to the reference for a preliminary ruling. It is unnecessary to consider the further questions in the reference such as whether the Board is to be regarded as an undertaking within the meaning of Articles 85 and 86, whether a national orginization of the market comes under Article 2 of Regulation No 26 and the effect of Article 8 of the EEC Treaty; equally there is no point in considering the question in the accompanying letter of 10 March 1978 whether the British Government still had the power in May 1972 to adopt the Movement of Pigs Regulations after the Treaty of Accession had already been signed. |
6. |
Accordingly, the questions of the Magistrate's Court in Armagh may be answered as follows: The existence of the Common organization of the market in pigmeat, the rules of which basically applied to the United Kingdom as from 1 February 1973, excludes unilateral national measures which may adversely affect the functioning and objectives of the organization of the market. In particular the establishment and maintenance of a marketing monopoly for pigs in favour of an association of producers supervised by the State is incompatible with the common organization even though the monopoly applies only to a restricted region forming an economic unity and to pigs produced there. Such a marketing scheme which prevents producers from directly exporting pigs to other Member States is to be regarded as a measure having an effect equivalent to quantitative restrictions on exports. If it has functions which are at least comparable with those of a national organization of the market, it cannot be justified by reference to Article 37 of the EEC Treaty which applied directly to the new Member States only as from 1 January 1978. |
( 1 ) Translated from the German.