61987J0212

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1 . Agriculture - Common organization of the market - Fruit and vegetables - Products concerned - Fresh fruit and vegetables intended for processing - Included

( Council Regulations Nos 1035/72 and 516/77 )

2 . Agriculture - Common organization of the market - Fruit and vegetables - Producers' organizations - Fixing of minimum purchase prices - Binding on affiliated producers and processors - Extension to all national producers and processors - Not permissible

( Council Regulation No 1035/72 )

3 . Agriculture - Common organization of the market - Fruit and vegetables - Producers' organizations - Imposition of charges on non-affiliated producers - Income used to finance activities incompatible with Community law - Not permissible

( Council Regulation No 1035/72 )

1 . The rules of the common organization of the market set up by Regulation No 1035/72 must be applied to fruit and vegetables coming within the scope of that organization, irrespective of the use to which they are ultimately to be put . The fact that they are intended for processing does not mean that at the marketing stage they fall within the ambit of Regulation No 516/77 on the common organization of the market in products processed from fruit and vegetables .

2 . Regulation No 1035/72 on the common organization of the market in fruit and vegetables, in the version applicable prior to the entry into force of Regulation No 3284/83, must be interpreted as leaving the Member States no power to extend to national producers and processors who are not affiliated to an intertrade organization in the sector the rules adopted by that organization under agreements fixing minimum purchase prices for certain vegetables .

3 . The obligation imposed on non-affiliated producers to contribute to the financing of funds established by a producers' organization in the fruit and vegetables sector is unlawful in so far as it serves to finance activities which are themselves held to be contrary to Community law .

In Case 212/87

REFERENCE to the Court under Article 177 of the EEC Treaty by the tribunal de grande instance ( Regional Court ), Agen, for a preliminary ruling in the proceedings pending before that court between

Union nationale interprofessionnelle des légumes de conserve ( National Intertrade Association for Preserved Vegetables ) ( Unilec )

and

Etablissements Larroche Frères,

on the interpretation of Articles 39, 42, 85 ( 1 ) and 95 of the EEC Treaty, and Regulation No 26 of the Council of 4 April 1962 applying certain rules of competition to production of and trade in agricultural products ( Official Journal, English Special Edition 1959-62, p . 129 ),

THE COURT ( Fifth Chamber )

composed of : G . Bosco, President of Chamber, U . Everling, Y . Galmot, R . Joliet and F . A . Schockweiler, Judges,

Advocate General : G . F . Mancini

Registrar : B . Pastor, Administrator

after considering the observations submitted on behalf of

Unilec, the plaintiff in the main proceedings, by C . Gardel and N . Coutrelis, avocats, assisted by B . Mangenot, expert,

Etablissements Larroche Frères, the defendant in the main proceedings, by Messrs Holleaux and J . L . Marchi, avocats,

the French Government, in the written proceedings, by J . P . Puissochet, Agent, and G . de Bergues, Deputy Agent, and in the oral proceedings, by M . Giacomini, Agent, assisted by L . Nouchi, expert,

the Commission of the European Communities, by P . Oliver, D . G . Lawrence and P . Hetsch, members of its Legal Department, acting as Agents,

having regard to the Report for the Hearing and further to the hearing on 3 May 1988,

after hearing the Opinion of the Advocate General delivered at the sitting on 29 June 1988,

gives the following

Judgment

1 By judgment of 8 July 1987, which was received at the Court on 10 July 1987, the tribunal de grande instance, Agen, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation of Articles 39, 42, 85 ( 1 ) and 95 of the EEC Treaty, and Regulation No 26 of the Council of 4 April 1962 applying certain rules of competition to production of and trade in agricultural products ( Official Journal, English Special Edition 1959-62, p . 129 ).

2 These questions arose in proceedings between the Union nationale interprofessionnelle des légumes de conserve ( hereinafter referred to as "Unilec ") and Etablissements Larroche Frères, a canning undertaking, which is not a member of the aforesaid association, concerning that company' s refusal to pay to Unilec a sum representing the contributions and penalties for late payment in respect of the 1982/83 and 1983/84 marketing years for "large vegetables" ( celery ) and "small vegetables" ( scorzonera or salsify ). In the course of the proceedings, Unilec claimed in addition fees in respect of the 1985/86 marketing year .

3 French Law No 75-600 of 10 July 1975 on agricultural intertrade organizations ( Journal officiel de la République française ( JORF ), 11.7.1975, p . 7124 ), amended by Law No 80-502 of 4 July 1980 ( JORF, 5.7.1980, p . 1670 ) set up the agricultural intertrade organizations . Article 2 of the law provides that agreements concluded within a recognized organization may be extended by the competent administrative authority where the various conditions set out in that provision are satisfied . The extension of an agreement makes its terms binding on all the operators in the trade concerned . Article 3 of that law provides that the recognized organizations may levy contributions on the basis of the agreements extended in this way .

4 Pursuant to that law, several ministerial decrees have extended to all the operators in the trades represented in the Association nationale interprofessionnelle des fruits et légumes transformés ( National Intertrade Association for Processed Fruit and Vegetables ) ( Anifelt ), the terms of intertrade agreements concerning celery and salsify intended for processing . Some of those agreements, concluded within Unilec, concerned, inter alia, crop contracts, crop prices and fees to be levied on producers and processors .

5 Etablissements Larroche Frères refused to pay the fees demanded by Unilec, contending before the tribunal de grande instance, Agen, in particular, that the contested contributions were contrary to the rules of the common agricultural policy and amounted to the introduction of a disguised customs duty . It argued, inter alia, that the French legislation was contrary to the rules of the common market, in particular Articles 42 and 85 ( 1 ) of the EEC Treaty, in so far as the object of the intertrade agreements is to fix a minimum purchase price for the products concerned .

6 The national court took the view that the dispute raised a problem of the interpretation of Community law and, accordingly, decided to stay the proceedings and ask the Court of Justice for a preliminary ruling on the following questions :

"( 1 ) In the light of Articles 39, 42 and 85 ( 1 ) of the EEC Treaty and Regulation No 26 of the Council of the European Communities of 4 April 1962, can the fixing of a minimum purchase price by an intertrade agreement extended by a decision of the authorities to all the trades concerned in the production, preparation or marketing of an agricultural product be regarded as a concerted practice which may affect trade between Member States of the Community and which has as its object or effect the prevention, restriction or distortion of competition within the common market?

( 2 ) Is a provision of national law enabling fees to be imposed on products originating in other Member States by the conclusion of an intertrade agreement which may be extended by a decision of the authorities to be regarded as incompatible with Article 95 of the EEC Treaty?"

7 Reference is made to the Report for the Hearing for a fuller account of the relevant legislation, the facts and the observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

8 In the light of the facts of this case, as they have been established by the national court, the essential issues are whether the provisions of Community law preclude, on the one hand, Member States from extending to national producers and processors, who are not affiliated to an intertrade organization in the sector, rules laid down by such an organization under agreements fixing minimum purchase prices for certain vegetables and, on the other hand, an intertrade organization from requiring non-affiliated processors to pay fees in respect of products imported from other Member States .

The first question

9 It is necessary, in the first place, to determine which provisions of Community law are relevant to this case .

10 On this point, it should be noted that the agricultural products concerned in the dispute in the main proceedings fall within the provisions of Regulation 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 ). It should, in addition, be stressed that in Community law the principle of the extension of rules laid down by a producers' organization to all the producers of a specific region was accepted, with regard to the fruit and vegetables sector, in Council Regulation No 3284/83 of 14 November 1983 amending Regulation ( EEC ) No 1035/72 ( Official Journal 1983, L 325, p . 1 ). Article 15 b, inserted in the provisions of Regulation No 1035/72 by Regulation No 3284/83, cited above, empowers Member States to make binding certain rules adopted by trade organizations also in respect of producers who do not belong to such organizations . This power is however subject to clearly defined conditions and restrictions . In particular, the clauses concerning withdrawal from the market can be extended only in respect of the products listed in Annex II to Regulation No 1035/72, which does not include the vegetables concerned in the present case . Finally, it should be noted that by virtue of Council Regulation No 1489/84 of 15 May 1984 laying down the date for the entry into force of Regulations ( EEC ) Nos 3283/83 and ( EEC ) 3284/83 ( Official Journal 1984, L 143, p . 31 ), as amended by Council Regulation ( EEC ) No 1977/85 of 16 July 1985 ( Official Journal 1985, L 186, p . 2 ), Regulation No 3284/83 did not enter into force with regard to the products in question until 1 January 1986 .

11 Unilec, supported by the French Government, claims, however, that the relevant Community provisions are those of Council Regulation ( EEC ) No 516/77 of 14 March 1977 on the common organization of the market in products processed from fruit and vegetables ( Official Journal 1977, L 73, p . 1 ), and not those relating to the organization of the market in fresh fruit and vegetables . Unilec argues in particular that when a vegetable is sold to a processor, it no longer falls within the scope of Regulation No 1035/72, but comes within that of Regulation No 516/77 relating to processed fruit and vegetables . The latter regulation consequently governs the relations between producers and transformers which are at the origin of the dispute in the main proceedings .

12 Etablissements Larroche Frères, whose view is shared by the Commission, challenges this interpretation . It stresses, inter alia, that it is clear from the fifth recital in the preamble to Regulation No 1035/72 that the standardization sought by the setting-up of the common organization of the market in fruit and vegetables cannot be fully effective unless it is applied at all stages of marketing .

13 The Court would observe, in the first place, that the contested measures concern only vegetables which are still in the fresh state . It should further be noted that the view that, where the harvested product is intended to be sold to a processor, it no longer falls within the scope of the legislation on fresh products but within that of the legislation on processed products misconstrues the legislative framework set up by the relevant provisions on the common agricultural policy . As the Commission has correctly observed, the attainment of the objectives pursued in the basic regulation concerning the organization of the market in fresh agricultural products requires that this legislation be able to produce its effects after the fruit and vegetables are harvested, irrespective of the use to which such products are to be put . The intervention on the market by producers' organizations with a view to promoting concertation with regard to supply and regulating prices, which represents the system of standardization expressly referred to in the fifth recital of the preamble to Regulation No 1035/72, occurs in fact at the marketing stage, namely at a stage subsequent to that of the harvest .

14 It follows from all the foregoing considerations, that with regard to Unilec' s initial claim concerning the 1982/83 and 1983/84 marketing years, in so far as the material events occurred prior to 1 January 1986, the applicable rules are contained in Regulation No 1035/72 on the common organization of the market in fresh products, in the version applicable prior to the entry into force of Regulation No 3284/83 . As far as the 1985/86 marketing year is concerned, it is for the national court to determine whether, in the circumstances of this case, the conditions to which Article 15 b of Regulation No 1035/72, as amended by Regulation No 3284/83, makes subject the possibility for Member States to extend to non-members, as from 1 January 1986, the rules laid down in agreements concluded within a producers' organization or by associations of producers' organizations are satisfied and whether, consequently, the extension in question is applicable in the context of the main proceedings .

15 Secondly, it should be noted that, as the Court has consistently held ( see, in particular, the judgments of 29 November 1978 in Case 83/78 Pigs Marketing Board (( 1978 )) ECR 2347; of 7 February 1984 in Case 237/82 Jongeneel Kaas (( 1984 )) ECR 483; and of 25 November 1986 in Case 218/85 Le Campion (( 1986 )) ECR 3513 ), the setting-up of a common organization of the market places an obligation on the Member States to refrain from taking any measure which may undermine or create exceptions to it .

16 It is apparent from the documents before the Court that the disputed extension to processors not affiliated to Unilec of terms concerning a minimum purchase price, contained in intertrade agreements, set up on the national market a uniform system of guaranteed prices for all producers . This system consequently replaces that of the withdrawal prices which groups of producers may impose, pursuant to Regulation No 1035/72, only on their members .

17 It is accordingly necessary, in order to reply to the national court' s first question, to determine whether and to what extent Regulation No 1035/72 precludes the setting-up of a national system which replaces the mechanism for withdrawal from the market operating under the conditions laid down in the relevant Community provisions .

18 In this respect, it is sufficient to note that, as the Court held in its abovementioned judgment of 25 November 1986 in Le Campion, "Regulation No 1035/72 establishes an exhaustive body of rules governing the matter, and makes a very clear distinction between the intervention mechanisms which may be initiated by producers' groups and those which are applicable to all producers . Consequently, a Member State has no power to extend to all producers the intervention rules laid down by producers' organizations ".

19 It follows from the foregoing that in reply to the national court' s first question it should be stated that Regulation No 1035/72 on the common organization of the market in fruit and vegetables, in the version applicable prior to the entry into force of Council Regulation No 3284/83, must be interpreted as leaving the Member States no power to extend to national producers and processors who are not affiliated to an intertrade organization in the sector the rules adopted by that organization under agreements fixing minimum purchase prices for certain vegetables .

20 In the light of this reply, it is not necessary to consider whether or not the extension of certain rules to non-affiliated producers is compatible with Article 85 of the Treaty .

The second question

21 It should be noted that the Court has already held that the requirement for non-affiliated producers to contribute to the financing of funds established by a producers' organization is unlawful in so far as it serves to finance activities which are themselves held to be contrary to Community law ( see, in particular, the abovementioned judgment of 25 November 1986 in Le Campion ). In those circumstances, it is for the national court to determine what part of the financial contribution required from non-affiliated producers serves to finance such activities .

Costs

22 The costs incurred by the Government of the French Republic and by the Commission, which have submitted observations to the Court, are not recoverable . Since 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 as to costs is a matter for that court .

On those grounds,

THE COURT ( Fifth Chamber ),

in answer to the questions referred to it by the tribunal de grande instance, Agen, by a judgment of 8 July 1987, hereby rules :

( 1 ) Regulation No 1035/72 on the common organization of the market in fruit and vegetables, in the version applicable prior to the entry into force of Council Regulation No 3284/83, must be interpreted as leaving the Member States no power to extend to national producers and processors who are not affiliated to an intertrade organization in the sector the rules adopted by that organization under agreements fixing minimum purchase prices for certain vegetables .

( 2 ) It is for the national court to examine whether, in the case before it, the conditions to which Article 15 b of Regulation No 1035/72, as amended by Regulation No 3284/83, makes subject the possibility for the Member States to extend to non-members, as from 1 January 1986, the rules laid down in agreements concluded within a producers' organization or by associations of producers' organizations are satisfied and whether, consequently, the extension in question is applicable in the context of the main proceedings .

( 3)The requirement for non-affiliated producers to contribute to the financing of funds established by a producers' organization is unlawful in so far as it serves to finance activities which are themselves held to be contrary to Community law .