61976J0050

1 . MEASURES ADOPTED BY AN INSTITUTION - REGULATION - DIRECT APPLICABILITY - CONCEPT - OBLIGATIONS OF THE MEMBER STATES

( EEC TREATY , ARTICLE 189 )

2 . COMMUNITY LAW

3 . AGRICULTURE - FLOWER BULBS - EXPORT TO THIRD COUNTRIES - MINIMUM PRICES - FIXED BY THE COMMISSION - PRODUCTS LARGER THAN THE MINIMUM SIZE BUT SMALLER THAN THOSE MENTIONED IN THE COMMUNITY RULES - APPLICABILITY

( REGULATION ( EEC ) NO 369/75 )

4 . AGRICULTURE - FLOWER BULBS - EXPORT TO THIRD COUNTRIES - MINIMUM PRICES - APPLICATION BY THE NATIONAL LEGISLATURE TO BULBS OTHER THAN THOSE MENTIONED IN THE COMMUNITY RULES - PERMISSIBLE - CONDITIONS

( REGULATION ( EEC ) NO 369/75 )

5 . COMMUNITY LAW - DIRECT APPLICABILITY - INDIVIDUALS ' FAILURE TO OBSERVE IT - SANCTION NOT LAID DOWN BY A PROVISION - POWERS OF THE MEMBER STATES

1 . THE DIRECT APPLICATION OF A COM- MUNITY REGULATION MEANS THAT ITS ENTRY INTO FORCE AND ITS APPLICATION IN FAVOUR OF OR AGAINST THOSE SUBJECT TO IT ARE INDEPENDENT OF ANY MEASURE OF RECEPTION INTO NATIONAL LAW .

2 . THE MEMBER STATES MAY NEITHER ADOPT NOR ALLOW NATIONAL ORGANIZATIONS HAVING LEGISLATIVE POWER TO ADOPT ANY MEASURE WHICH WOULD CONCEAL THE COMMUNITY NATURE AND EFFECTS OF ANY LEGAL PROVISION FROM THE PERSONS TO WHOM IT APPLIES . THEY MAY NOT , EITHER DIRECTLY OR THROUGH THE INTERMEDIARY OF ORGANIZATIONS CREATED OR RECOGNIZED BY THEM , ALLOW OR TOLERATE AN EXEMPTION FROM COMMUNITY LAW OR IN ANY WAY AFFECT IT ADVERSELY .

3 . THE LOWEST MINIMUM EXPORT PRICE FIXED FOR THE PRODUCT IN QUESTION BY REGULATION NO 369/75 IS ALSO APPLICABLE TO PRODUCTS WHICH ARE LARGER THAN THE MINIMUM SIZE BUT SMALLER THAN THE SIZES EXPRESSLY LISTED IN THE ANNEX TO THAT REGULATION .

4 . A NATIONAL PROVISION WHICH FIXES MINIMUM PRICES FOR EXPORTS TO THIRD COUNTRIES OF CERTAIN VARIETIES OF BULBS OTHER THAN THOSE FOR WHICH THE COMMISSION HAS FIXED MINIMUM PRICES IN REGULATION NO 369/75 , WHICH DOES NOT CREATE EXEMPTIONS FROM THE COMMUNITY SYSTEM , DOES NOT LIMIT ITS SCOPE AND SEEKS TO ACHIEVE THE SAME AIM , THAT IS , THE STABILIZATION OF PRICES IN TRADE WITH THIRD COUNTRIES , CANNOT BE REGARDED AS INCOMPATIBLE WITH COMMUNITY LAW .

5 . IN THE ABSENCE OF ANY PROVISION IN THE COMMUNITY RULES PROVIDING FOR SPECIFIC SANCTIONS TO BE IMPOSED ON INDIVIDUALS FOR A FAILURE TO OBSERVE THOSE RULES , THE MEMBER STATES ARE COMPETENT TO ADOPT SUCH SANCTIONS AS APPEAR TO THEM TO BE APPROPRIATE .

IN CASE 50/76

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN ( ADMINISTRATIVE COURT FOR ECONOMIC MATTERS ) FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

AMSTERDAM BULB BV

AND

PRODUKTSCHAP VOOR SIERGEWASSEN ( ORNAMENTAL PLANT AUTHORITY )

ON THE INTERPRETATION OF REGULATION ( EEC ) NO 1767/68 ( OJ ENGLISH SPECIAL EDITION 1968 ( II ), P . 530 ) AND REGULATION ( EEC ) NO 369/75 ( OJ 1975 L 41 , P . 1 ) ON THE SYSTEM OF MINIMUM PRICES FOR EXPORTS TO THIRD COUNTRIES OF FLOWERING CORMS , BULBS AND TUBERS ,

1 BY ORDER OF 15 JUNE 1976 , RECEIVED AT THE COURT ON 17 JUNE , THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN REQUESTED THE COURT TO GIVE A PRELIMINARY RULING ON THE INTERPRETATION OF REGULATIONS ( EEC ) NOS 234/68 OF THE COUNCIL OF 27 FEBRUARY 1968 ( OJ ENGLISH SPECIAL EDITION 1968 ( I ), P . 26 ), 1767/68 OF THE COMMISSION OF 6 NOVEMBER 1968 ( OJ ENGLISH SPECIAL EDITION 1968 ( II ), P . 530 ) AND 369/75 OF THE COMMISSION OF 10 FEBRUARY 1975 ( OJ L 41 , 1975 P . 1 ) TO THE EXTENT TO WHICH THEY CONCERN THE SYSTEM OF MINIMUM PRICES FOR EXPORTS OF FLOWER BULBS .

2 THE COURT IS ASKED TO RULE WHETHER THE PROVISIONS OF THOSE REGULATIONS ' OR ANY OTHER PROVISIONS OR PRINCIPLES OF EUROPEAN LAW ' FORBID THE ADOPTION BY A COMPETENT NATIONAL ORGANIZATION OF RULES FIXING EXPORT PRICES FOR FLOWER BULBS WHICH , WHILST IN PART IN CONFORMITY WITH THE COMMUNITY REGULATIONS , CONTAIN PROVISIONS WHICH DO NOT APPEAR IN THOSE REGULATIONS AND HAVE NO LEGAL FOUNDATION THEREIN .

3 IN ADDITION TO THE PROVISIONS WHICH ARE IDENTICAL TO THOSE CONTAINED IN THE COMMUNITY REGULATIONS THE NATIONAL RULES CONTAIN PROVISIONS WHICH :

- IMPOSE A MINIMUM EXPORT PRICE FOR FLOWER BULBS OF A SMALLER SIZE THAN THOSE FOR WHICH REGULATION NO 369/75 FIXES MINIMUM EXPORT PRICES ;

- IMPOSE A MINIMUM EXPORT PRICE IN RESPECT OF FLOWER BULBS OTHER THAN THOSE FOR WHICH REGULATION NO 369/75 FIXES MINIMUM EXPORT PRICES ;

- GRANT EXEMPTIONS , IN CERTAIN CASES , TO THE PROVISIONS OF THE NATIONAL RULES ;

- PROVIDE PENAL SANCTIONS IN RESPECT OF INFRINGEMENTS OF THE RULES .

4 AS THE COURT HAS ALREADY STATED IN OTHER CONTEXTS , IN PARTICULAR IN ITS JUDGMENT OF 10 OCTOBER 1973 ( VARIOLA SPA V AMMINISTRAZIONE ITALIANA DELLE FINANZE ( 1973 ) ECR 981 ), THE DIRECT APPLICATION OF A COMMUNITY REGULATION MEANS THAT ITS ENTRY INTO FORCE AND ITS APPLICATION IN FAVOUR OF OR AGAINST THOSE SUBJECT TO IT ARE INDEPENDENT OF ANY MEASURE OF RECEPTION INTO NATIONAL LAW .

5 BY VIRTUE OF THE OBLIGATIONS ARISING FROM THE TREATY THE MEMBER STATES ARE UNDER A DUTY NOT TO OBSTRUCT THE DIRECT EFFECT INHERENT IN REGULATIONS AND OTHER RULES OF COMMUNITY LAW .

6 STRICT COMPLIANCE WITH THIS OBLIGATION IS AN INDISPENSABLE CONDITION OF SIMULTANEOUS AND UNIFORM APPLICATION OF COMMUNITY REGULATIONS THROUGHOUT THE COMMUNITY .

7 THEREFORE , THE MEMBER STATES MAY NEITHER ADOPT NOR ALLOW NATIONAL ORGANIZATIONS HAVING LEGISLATIVE POWER TO ADOPT ANY MEASURE WHICH WOULD CONCEAL THE COMMUNITY NATURE AND EFFECTS OF ANY LEGAL PROVISION FROM THE PERSONS TO WHOM IT APPLIES .

8 FROM THE MOMENT THAT THE COMMUNITY ADOPTS REGULATIONS UNDER ARTICLE 40 OF THE TREATY ESTABLISHING A COMMON ORGANIZATION OF THE MARKET IN A SPECIFIC SECTOR THE MEMBER STATES ARE UNDER A DUTY NOT TO TAKE ANY MEASURE WHICH MIGHT CREATE EXEMPTIONS FROM THEM OR AFFECT THEM ADVERSELY .

9 THE COMPATIBILITY WITH THE COMMUNITY REGULATIONS OF THE PROVISIONS REFERRED TO BY THE NATIONAL COURT MUST BE CONSIDERED IN THE LIGHT NOT ONLY OF THE EXPRESS PROVISIONS OF THE REGULATIONS BUT ALSO OF THEIR AIMS AND OBJECTIVES .

10 THE SECOND RECITAL OF THE PREAMBLE TO REGULATION NO 234/68 , THE BASIC REGULATION IN THE SECTOR IN QUESTION , NOTES THAT THE PRODUCTION OF LIVE TREES AND OTHER PLANTS , BULBS , ROOTS AND THE LIKE , CUT FLOWERS AND ORNAMENTAL FOLIAGE IS OF PARTICULAR IMPORTANCE TO THE AGRICULTURAL ECONOMY OF CERTAIN REGIONS OF THE COMMUNITY AND STATES THE NEED TO PROMOTE THE RATIONAL MARKETING OF SUCH PRODUCTION AND TO ENSURE STABLE MARKET CONDITIONS .

11 THE FIFTH RECITAL OF THE PREAMBLE TO THAT REGULATION STATES THAT EXPORTS OF FLOWERING BULBS TO THIRD COUNTRIES ARE OF CONSIDERABLE ECONOMIC IMPORTANCE TO THE COMMUNITY , THAT THE CONTINUATION AND DEVELOPMENT OF SUCH EXPORTS MAY BE ENSURED BY STABILIZING PRICES IN THIS TRADE AND THAT PROVISION SHOULD THEREFORE BE MADE FOR MINIMUM EXPORT PRICES FOR THE PRODUCTS IN QUESTION .

12 ARTICLE 3 OF THAT REGULATION PROVIDES THAT THE COUNCIL MAY ADOPT RULES GOVERNING STANDARDS OF QUALITY , SIZING AND PACKAGING OF THE PRODUCTS COVERED BY THE COMMON ORGANIZATION OF THE MARKET AND THE SCOPE OF SUCH STANDARDS .

13 ACCORDING TO THE SAME ARTICLE , WHEN STANDARDS HAVE BEEN ADOPTED , THE PRODUCTS TO WHICH THEY APPLY MAY NOT BE DISPLAYED FOR SALE , OFFERED FOR SALE , SOLD , DELIVERED OR OTHERWISE MARKETED EXCEPT IN ACCORDANCE WITH THE SAID STANDARDS .

14 UNDER ARTICLE 7 OF THE SAID REGULATION , MINIMUM PRICES FOR EXPORTS TO THIRD COUNTRIES OF THOSE PRODUCTS MAY BE FIXED BY THE COMMISSION .

15 REGULATION ( EEC ) NO 315/68 OF THE COUNCIL OF 12 MARCH 1968 FIXING QUALITY STANDARDS FOR FLOWERING BULBS , CORMS AND TUBERS ( OJ ENGLISH SPECIAL EDITION 1968 ( I ), P . 46 ), WHICH WAS ADOPTED IN IMPLEMENTATION OF THE BASIC REGULATION , NO 234/68 , PROVIDES IN ARTICLE 2 THAT THE STANDARDS SHALL APPLY BOTH TO INTRA-COMMUNITY TRADE AND TO TRADE WITH THIRD COUNTRIES .

16 THE SAME ARTICLE FORBIDS THE EXPORT TO THIRD COUNTRIES OF FLOWERING BULBS , CORMS AND TUBERS OF A SIZE SMALLER THAN THE MINIMUM SIZE FIXED IN THE ANNEX TO THAT REGULATION .

17 IN IMPLEMENTATION OF ARTICLE 7 ( 2 ) OF REGULATION NO 234/68 , THE COMMISSION ADOPTED REGULATION ( EEC ) NO 1767/68 ON THE SYSTEM OF MINIMUM PRICES FOR EXPORTS TO THIRD COUNTRIES OF FLOWERING CORMS , BULBS AND TUBERS .

18 THE RULES FOR IMPLEMENTATION CONTAINED IN THAT REGULATION PROVIDE THAT THE MINIMUM COMMUNITY PRICES SHALL BE DETERMINED , ACCORDING TO ARTICLE 1 , WITH PARTICULAR REFERENCE TO ' ANY MINIMUM EXPORT PRICES WHICH MAY HAVE BEEN APPLIED BY MEMBER STATES DURING THE THREE YEARS PRECEDING THE YEAR IN WHICH THE MINIMUM PRICES ARE FIXED ' .

19 ARTICLE 2 OF THAT REGULATION PROHIBITS THE EXPORT TO THIRD COUNTRIES OF ANY PRODUCT COVERED BY THE MINIMUM EXPORT PRICE SYSTEM AT A PRICE LOWER THAN THE MINIMUM PRICE APPLICABLE TO THAT PRODUCT AND PROVIDES THAT WHERE NO MINIMUM PRICE HAS BEEN FIXED FOR A PARTICULAR SIZE OF A GIVEN PRODUCT THE LOWEST MINIMUM EXPORT PRICE FIXED FOR THAT PRODUCT SHALL APPLY TO THE SIZE IN QUESTION .

20 ARTICLE 1 OF REGULATION ( EEC ) NO 369/75 OF THE COMMISSION FIXING FOR THE RELEVANT MARKETING YEAR MINIMUM PRICES FOR EXPORTS TO THIRD COUNTRIES OF CERTAIN FLOWERING CORMS , BULBS AND TUBERS , PROVIDES THAT THE MINIMUM PRICES ARE FIXED FOR EACH PRODUCT AT THE LEVELS INDICATED IN THE ANNEX TO THAT REGULATION .

21 THE ANNEX IN QUESTION SHOWS THAT MINIMUM EXPORT PRICES ARE FIXED IN EXPRESS TERMS ONLY FOR CERTAIN OF THE PRODUCTS LISTED IN THE ANNEX TO REGULATION NO 315/68 AND FOR CERTAIN SIZES LARGER THAN THE MINIMUM SIZES INDICATED IN REGULATION NO 315/68 .

22 HOWEVER , IT IS CLEAR FROM ARTICLE 2 OF REGULATION NO 1767/68 THAT A MINIMUM EXPORT PRICE IS ALSO APPLICABLE TO SIZES OTHER THAN THOSE FOR WHICH REGULATION NO 369/75 EXPRESSLY FIXED SUCH A PRICE .

23 THAT MINIMUM EXPORT PRICE IS EQUAL TO THE LOWEST MINIMUM PRICE FIXED BY REGULATION NO 369/75 FOR THE PRODUCT IN QUESTION .

24 FURTHERMORE , IT EMERGES FROM THE COMMUNITY RULES AS A WHOLE THAT PRODUCTS WHICH ARE SMALLER THAN THE MINIMUM SIZES FIXED IN THE ANNEX TO REGULATION NO 315/68 OF THE COUNCIL CANNOT BE EXPORTED .

25 THE ANSWER MUST THEREFORE BE THAT THE LOWEST MINIMUM EXPORT PRICE FIXED FOR THE PRODUCT IN QUESTION BY REGULATION NO 369/75 IS APPLICABLE TO PRODUCTS WHICH ARE LARGER THAN THE MINIMUM SIZE BUT SMALLER THAN THE SIZES EXPRESSLY LISTED IN THE ANNEX TO THE SAID REGULATION .

26 AS REGARDS THE FIXING BY THE NATIONAL AUTHORITY OF MINIMUM PRICES FOR EXPORTS TO THIRD COUNTRIES OF PRODUCTS COVERED BY THE COMMON ORGANIZATION OF THE MARKET BUT OF A GENUS , SPECIES OR VARIETY OTHER THAN THOSE FOR WHICH THE COMMISSION HAS SO FAR FIXED MINIMUM PRICES , IT MUST BE STATED THAT NO PROVISION OF THE COMMUNITY RULES EXPRESSLY PROHIBITS THE FIXING OF SUCH PRICES .

27 IT IS NOT CLEAR FROM THE REGULATIONS ADOPTED FROM TIME TO TIME FIXING MINIMUM PRICES WHY THE COMMISSION DECIDED TO IMPOSE MINIMUM PRICES AT COMMUNITY LEVEL FOR CERTAIN VARIETIES ONLY OF THE PRODUCTS COVERED BY THE COMMON ORGANIZATION OF THE MARKET .

28 IN THE LIGHT OF ALL THE COMMUNITY REGULATIONS ON THE SUBJECT IT IS NOT POSSIBLE TO CONCLUDE THAT THE COMMISSION WISHED TO IMPLY THAT OTHER PRODUCTS MUST BE EXPORTED AT PRICES DECIDED FREELY BY MARKET FORCES .

29 ON THE CONTRARY , IT MAY BE INFERRED FROM THE RULES DRAWN UP BY THE COMMISSION FOR IMPLEMENTING THE SYSTEM OF MINIMUM PRICES THAT THE MEMBER STATES MAY CONTINUE TO IMPOSE MINIMUM EXPORT PRICES UNTIL SUCH TIME AS THE COMMISSION HAS DECIDED TO IMPOSE SUCH PRICES ITSELF AT COMMUNITY LEVEL .

30 THE REPLY TO BE GIVEN TO THE NATIONAL COURT MUST THEREFORE BE THAT A NATIONAL PROVISION WHICH FIXES MINIMUM PRICES FOR EXPORTS TO THIRD COUNTRIES OF CERTAIN VARIETIES OF BULBS OTHER THAN THOSE FOR WHICH THE COMMISSION HAS FIXED MINIMUM PRICES IN REGULATION NO 369/75 , WHICH DOES NOT CREATE EXEMPTIONS FROM THE COMMUNITY SYSTEM , DOES NOT LIMIT ITS SCOPE AND SEEKS TO ACHIEVE THE SAME AIM , THAT IS , THE STABILIZATION OF PRICES IN TRADE WHICH THIRD COUNTRIES , CANNOT BE REGARDED AS INCOMPATIBLE WITH COMMUNITY LAW .

31 AS REGARDS A NATIONAL PROVISION WHICH LAYS DOWN SANCTIONS IN RESPECT OF AN INFRINGEMENT OF THE COMMUNITY RULES , IT MUST BE STATED THAT WHILST THOSE RULES PROHIBIT EXPORTS TO THIRD COUNTRIES OF THOSE OF THE PRODUCTS IN QUESTION WHICH DO NOT CONFORM TO THE COMMUNITY QUALITY STANDARDS , THEY DO NOT PROVIDE FOR SANCTIONS IN RESPECT OF INFRINGEMENTS OF THOSE PROHIBITIONS BY INDIVIDUALS .

32 ALTHOUGH ARTICLE 5 OF THE EEC TREATY PLACES MEMBER STATES UNDER A DUTY TO TAKE ALL APPROPRIATE MEASURES , WHETHER GENERAL OR PARTICULAR , TO ENSURE FULFILMENT OF THE OBLIGATIONS RESULTING FROM ACTION TAKEN BY THE INSTITUTIONS OF THE COMMUNITY , IT ALLOWS THE VARIOUS MEMBER STATES TO CHOOSE THE MEASURES WHICH THEY CONSIDER APPROPRIATE , INCLUDING SANCTIONS WHICH MAY EVEN BE CRIMINAL IN NATURE .

33 THE ANSWER TO BE GIVEN TO THE NATIONAL COURT MUST THEREFORE BE THAT IN THE ABSENCE OF ANY PROVISION IN THE COMMUNITY RULES PROVIDING FOR SPECIFIC SANCTIONS TO BE IMPOSED ON INDIVIDUALS FOR A FAILURE TO OBSERVE THOSE RULES , THE MEMBER STATES ARE COMPETENT TO ADOPT SUCH SANCTIONS AS APPEAR TO THEM TO BE APPROPRIATE .

34 AS REGARDS THE QUESTION OF THE AUTHORIZATION BY A NATIONAL AUTHORITY OF AN EXEMPTION FROM THE MINIMUM PRICES FIXED BY THE COMMUNITY , IT MUST BE STATED THAT NEITHER REGULATION NO 234/68 NOR ITS IMPLEMENTING REGULATIONS PROVIDE FOR ANY SUCH POSSIBILITY .

35 THE MEMBER STATES MAY NOT , THEREFORE , EITHER DIRECTLY OR THROUGH THE INTERMEDIARY OF ORGANIZATIONS SET UP OR RECOGNIZED BY THEM , AUTHORIZE OR TOLERATE ANY EXEMPTION FROM COMMUNITY LAW .

COSTS

36 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .

37 AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT

HEREBY RULES :

1 . THE MEMBER STATES MAY NEITHER ADOPT NOR ALLOW NATIONAL ORGANIZATIONS HAVING LEGISLATIVE POWER TO ADOPT ANY MEASURE WHICH WOULD CONCEAL THE COMMUNITY NATURE AND EFFECTS OF ANY LEGAL PROVISION FROM THE PERSONS TO WHOM IT APPLIES .

2 . THE LOWEST MINIMUM EXPORT PRICE FIXED FOR THE PRODUCT IN QUESTION BY REGULATION NO 369/75 IS ALSO APPLICABLE TO PRODUCTS WHICH ARE LARGER THAN THE MINIMUM SIZE BUT SMALLER THAN THE SIZES EXPRESSLY LISTED IN THE ANNEX TO THAT REGULATION .

3 . A NATIONAL PROVISION WHICH FIXES MINIMUM PRICES FOR EXPORTS TO THIRD COUNTRIES OF CERTAIN VARIETIES OF BULBS OTHER THAN THOSE FOR WHICH THE COMMISSION HAS FIXED MINIMUM PRICES IN REGULATION NO 369/75 , WHICH DOES NOT CREATE EXEMPTIONS FROM THE COMMUNITY SYSTEM , DOES NOT LIMIT ITS SCOPE AND SEEKS TO ACHIEVE THE SAME AIM , THAT IS , THE STABILIZATION OF PRICES IN TRADE WITH THIRD COUNTRIES , CANNOT BE REGARDED AS INCOMPATIBLE WITH COMMUNITY LAW .

4 . IN THE ABSENCE OF ANY PROVISION IN THE COMMUNITY RULES PROVIDING FOR SPECIFIC SANCTIONS TO BE IMPOSED ON INDIVIDUALS FOR A FAILURE TO OBSERVE THOSE RULES , THE MEMBER STATES ARE COMPETENT TO ADOPT SUCH SANCTIONS AS APPEAR TO THEM TO BE APPROPRIATE .

5 . THE MEMBER STATES MAY NOT , EITHER DIRECTLY OR THROUGH THE INTERMEDIARY OF ORGANIZATIONS SET UP OR RECOGNIZED BY THEM AUTHORIZE ANY EXEMPTION FROM THE MINIMUM PRICES FIXED BY THE COMMUNITY .