61986J0216

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1 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKET - PRICE FORMATION - NATIONAL MEASURES - INCOMPATIBILITY WITH COMMUNITY RULES - CRITERIA

2 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKET - PIGMEAT - BEEF AND VEAL - PRICE SYSTEM - NATIONAL RULES FREEZING PRICES AT THE WHOLESALE STAGE - NOT PERMISSIBLE

( REGULATION NO 121/67/EEC OF THE COUNCIL AND REGULATION ( EEC ) NO 805/68 OF THE COUNCIL )

1 . MEMBER STATES CAN NO LONGER TAKE ACTION, THROUGH NATIONAL PROVISIONS ADOPTED UNILATERALLY, AFFECTING THE MACHINERY OF PRICE FORMATION AS ESTABLISHED UNDER A COMMON ORGANIZATION OF THE MARKETS IN WHICH A CENTRAL PLACE IS HELD BY A SINGLE PRICE SYSTEM . HOWEVER, THE PROVISIONS OF A COMMUNITY AGRICULTURAL REGULATION WHICH COMPRISE A PRICE SYSTEM APPLICABLE AT THE PRODUCTION AND WHOLESALE STAGES LEAVE MEMBER STATES FREE ( WITHOUT PREJUDICE TO OTHER PROVISIONS OF THE TREATY ) TO TAKE APPROPRIATE MEASURES RELATING TO PRICE FORMATION AT THE RETAIL AND CONSUMPTION STAGES, ON CONDITION THAT SUCH MEASURES DO NOT JEOPARDIZE THE AIMS OR FUNCTIONING OF THE COMMON ORGANIZATION OF THE MARKETS, IN PARTICULAR THE PRICE SYSTEM .

2 . REGULATION NO 121/67/EEC OF THE COUNCIL ON THE COMMON ORGANIZATION OF THE MARKET IN PIGMEAT AND REGULATION ( EEC ) NO 805/68 OF THE COUNCIL ON THE COMMON ORGANIZATION OF THE MARKET IN BEEF AND VEAL MUST BE INTERPRETED AS PROHIBITING MEMBER STATES FROM ADOPTING OR CONTINUING TO APPLY NATIONAL RULES ON THE FREEZING OF PRICES AT THE WHOLESALE STAGE FOR PRODUCTS COVERED BY THE COMMON ORGANIZATION OF THE MARKET ESTABLISHED BY THOSE TWO REGULATIONS . THAT IS STILL THE CASE WHEN THE NATIONAL RULES CONCERNED ARE OF ONLY LIMITED DURATION OR WHEN THEY INCLUDE A REVISION CLAUSE THE PURPOSE OF WHICH IS TO ALIGN THE FROZEN PRICES ON THOSE FIXED BY VIRTUE OF THE COMMUNITY REGULATIONS .

IN CASE 216/86

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE CORTE SUPREMA DI CASSAZIONE, ITALY, FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

F . ANTONINI, WITH AN ADDRESS FOR SERVICE FOR THE PURPOSES OF THE MAIN PROCEEDINGS IN ROME,

AND

PREFETTO DI MILANO

ON THE INTERPRETATION OF THE COMMUNITY PROVISIONS RELATING TO THE COMMON ORGANIZATION OF THE AGRICULTURAL MARKETS IN THE PIGMEAT AND BEEF AND VEAL SECTORS WITH A VIEW TO A DECISION AS TO THE COMPATIBILITY WITH THOSE PROVISIONS OF A NATIONAL SYSTEM OF MAXIMUM WHOLESALE PRICES,

THE COURT ( FOURTH CHAMBER )

COMPOSED OF : C . KAKOURIS, PRESIDENT OF CHAMBER, T . KOOPMANS AND G.*C.*RODRIGUEZ IGLESIAS, JUDGES

ADVOCATE GENERAL : M . DARMON

REGISTRAR : S . HACKSPIEL, ADMINISTRATOR

AFTER CONSIDERING THE OBSERVATIONS SUBMITTED ON BEHALF OF

F . ANTONINI, THE PLAINTIFF IN THE MAIN PROCEEDINGS, REPRESENTED BY M . D' OTTAVI, OF THE ROME BAR, AND BY M . RAPIO, OF THE MILAN BAR,

THE GOVERNMENT OF THE ITALIAN REPUBLIC, REPRESENTED BY L . FERRARI BRAVO, HEAD OF THE SERVIZIO DEL CONTENZIOSO DIPLOMATICO, ACTING AS AGENT, ASSISTED BY O . FIUMARA, AVVOCATO DELLO STATO,

THE COMMISSION OF THE EUROPEAN COMMUNITIES, BY ITS LEGAL ADVISER, A . PROZZILLO, ACTING AS AGENT,

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 18 MARCH 1987,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 14 MAY 1987,

GIVES THE FOLLOWING

JUDGMENT

1 BY ORDER OF 14 FEBRUARY 1986, WHICH WAS RECEIVED AT THE COURT ON 7 AUGUST 1986, THE CORTE SUPREMA DI CASSAZIONE ( SUPREME COURT OF CASSATION ) REFERRED A QUESTION TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY ON THE INTERPRETATION OF REGULATION NO 121/67/EEC OF THE COUNCIL OF 13 JUNE 1967 ON THE COMMON ORGANIZATION OF THE MARKET IN PIGMEAT ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1967, P . 46 ) AND OF REGULATION ( EEC ) NO 805/68 OF THE COUNCIL OF 27 JUNE 1968 ON THE COMMON ORGANIZATION OF THE MARKET IN BEEF AND VEAL ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1968 ( I ), P . 187 ).

2 THAT QUESTION AROSE IN THE COURSE OF AN APPEAL BROUGHT BY FRANCESCO ANTONINI, A MEAT WHOLESALER, AGAINST A FINE IMPOSED ON HIM BY THE PREFECT OF MILAN FOR HAVING INFRINGED THE ITALIAN RULES ON THE FREEZING OF PRICES WHICH WERE CONTAINED AT THAT TIME IN DECREE-LAW NO 427 OF 24 JULY 1973 ( GAZETTA UFFICIALE (( OFFICIAL JOURNAL )) NO 189 OF 24 JULY 1973 ) WHICH BECAME LAW NO 496 OF 4 AUGUST 1973 ( GAZETTA UFFICIALE NO 216 OF 22 AUGUST 1973 ).

3 THE PRETORE ( MAGISTRATE ) OF MILAN, BEFORE WHOM THE CASE WAS BROUGHT, DISMISSED THE APPEAL ON THE GROUND THAT IT HAD BEEN ESTABLISHED THAT THE RULES CONCERNING THE PRICE FREEZE HAD BEEN INFRINGED AND THAT THOSE RULES MUST BE CONSIDERED TO BE COMPATIBLE WITH THE COMMUNITY REGULATIONS ON THE COMMON ORGANIZATION OF THE MARKETS . IN HIS APPEAL TO THE CORTE DI CASSAZIONE MR ANTONINI ALLEGED THAT THE JUDGMENT OF THE PRETORE HAD FAILED TO EXAMINE THE QUESTION WHETHER THE NATIONAL LEGISLATURE STILL HAD LEGISLATIVE POWER IN RESPECT OF THE WHOLESALING OF MEAT IN VIEW OF THE FACT THAT THE PRICES OF BEEF AND VEAL AND PIGMEAT WERE THE SUBJECT OF COMMUNITY REGULATIONS .

4 IN THE ORDER FOR REFERENCE THE CORTE DI CASSAZIONE NOTES THAT UNDER THE CASE-LAW OF THE COURT ANY INTERVENTION BY MEMBER STATES REGARDING THE FORMATION OF WHOLESALE PRICES IN SECTORS COVERED BY A COMMON ORGANIZATION OF THE MARKET BASED ON A COMMON PRICE SYSTEM IS PRECLUDED BUT THAT, ON THE OTHER HAND, MEMBER STATES ARE FREE TO REGULATE SALE PRICES AT THE RETAIL STAGE PROVIDED THAT THE NATIONAL MEASURES CONCERNED DO NOT JEOPARDIZE THE OBJECTIVES OR THE FUNCTIONING OF THE COMMON ORGANIZATION OF THE MARKET . HOWEVER, THE CORTE DI CASSAZIONE TAKES THE VIEW THAT CERTAIN JUDGMENTS OF THE COURT, IN PARTICULAR THOSE OF 26 FEBRUARY 1976 IN CASE 65/75 TASCA (( 1976 )) ECR 291 AND IN JOINED CASES 88 TO 90/75 SADAM (( 1976 )) ECR 323, APPEAR TO INDICATE THAT THE PROBLEM OF THE RELATIONSHIP BETWEEN PROVISIONS OF NATIONAL LAW CONCERNING PRICES AND THE COMMUNITY AGRICULTURAL REGULATIONS MUST ALWAYS BE RESOLVED IN TERMS OF THE COMPATIBILITY OF THE PROVISIONS CONCERNED . IN FACT THE TWO JUDGMENTS CITED SHOW THAT THE COURT WISHED TO GO BEYOND THE DISTINCTION BETWEEN WHOLESALE PRICES AND RETAIL PRICES BY INDICATING THAT THERE WAS A PROBLEM OF "COMPATIBILITY" BETWEEN COMMUNITY RULES AND NATIONAL RULES CONCERNING PRICES "WHATEVER THE COMMERCIAL STAGE CONCERNED ".

5 IN ORDER TO BE ABLE TO RESOLVE THE PROBLEM OF INTERPRETATION OF THE COURT' S CASE-LAW, THE NATIONAL COURT STAYED THE PROCEEDINGS AND REFERRED THE FOLLOWING QUESTION TO THE COURT FOR A PRELIMINARY RULING :

" DO THE RULES LAID DOWN BY REGULATION NO 121/67/EEC OF THE COUNCIL OF 13 JUNE 1967 ON THE COMMON ORGANIZATION OF THE MARKET IN PIGMEAT AND REGULATION ( EEC ) NO 805/68 OF THE COUNCIL OF 27 JUNE 1968 ON THE COMMON ORGANIZATION OF THE MARKET IN BEEF AND VEAL PREVENT MEMBER STATES FROM ADOPTING MEASURES GOVERNING THE WHOLESALE MARKETING OF SUCH MEAT WHICH ARE NOT MERELY CONFINED TO PROHIBITING FOR A SET PERIOD ANY INCREASE IN THE PRICES FREELY FORMED BY A GIVEN DATE BUT WHICH ALSO PROVIDE THAT, SUBJECT TO THE APPROPRIATE ADMINISTRATIVE PROCEDURE, THE PRICES SO FIXED MAY SUBSEQUENTLY BE ADJUSTED IN ACCORDANCE WITH COMMUNITY RULES AND PRICES?"

6 IT MUST BE RECALLED THAT ACCORDING TO THE CONSISTENT CASE-LAW OF THE COURT WHICH WAS SUMMARIZED IN THE JUDGMENT OF 17 JANUARY 1980 IN JOINED CASES 95 AND 96/79 KEFER AND DELMELLE (( 1980 )) ECR 103, REGULATIONS NOS 121/67 AND 805/68 ESTABLISHED COMMON ORGANIZATIONS OF THE MARKET IN WHICH A CENTRAL PLACE IS HELD BY A SINGLE PRICE SYSTEM APPLICABLE TO THE PRODUCTION AND WHOLESALE STAGES AND THAT

IN THOSE CIRCUMSTANCES MEMBER STATES CAN NO LONGER TAKE ACTION, THROUGH NATIONAL PROVISIONS ADOPTED UNILATERALLY, AFFECTING THE MACHINERY OF PRICE FORMATION AS ESTABLISHED UNDER THE COMMON ORGANIZATION . ACCORDING TO THE SAME CASE-LAW, THE PROVISIONS OF A COMMUNITY AGRICULTURAL REGULATION WHICH COMPRISE A PRICE SYSTEM APPLICABLE AT THE PRODUCTION AND WHOLESALE STAGES LEAVE MEMBER STATES FREE ( WITHOUT PREJUDICE TO OTHER PROVISIONS OF THE TREATY ) TO TAKE APPROPRIATE MEASURES RELATING TO PRICE FORMATION AT THE RETAIL AND CONSUMPTION STAGES, ON CONDITION THAT SUCH MEASURES DO NOT JEOPARDIZE THE AIMS OR FUNCTIONING OF THE COMMON ORGANIZATION OF THE MARKETS, IN PARTICULAR THE PRICE SYSTEM .

7 IT FOLLOWS THAT NATIONAL LEGISLATION DESIGNED TO PROMOTE OR ENCOURAGE A PRICE FREEZE AT THE PRODUCTION OR WHOLESALE STAGES BY PROHIBITING THE RAISING OF SUCH PRICES DURING A GIVEN PERIOD IS, BY ITS NATURE, OUTSIDE THE BOUNDS OF THE POWERS RESERVED TO MEMBER STATES IF THE PRODUCTS TO WHICH THE LEGISLATION IS APPLICABLE FALL WITHIN THE COMMON ORGANIZATION OF THE MARKET IN THE PIGMEAT AND BEEF AND VEAL SECTORS .

8 THE NATIONAL COURT CORRECTLY OBSERVES THAT IN ITS JUDGMENTS OF 26 FEBRUARY 1976 ( TASCA AND SADAM, SUPRA ) THE COURT HAS DECLARED THAT THE UNILATERAL FIXING BY A MEMBER STATE OF MAXIMUM PRICES FOR A PRODUCT COVERED BY A COMMON ORGANIZATION OF THE MARKET IS INCOMPATIBLE WITH THE BASIC REGULATION "WHATEVER THE MARKETING STAGE IN QUESTION" IN SO FAR AS IT JEOPARDIZES THE OBJECTIVES OR THE FUNCTIONING OF THE COMMON ORGANIZATION, IN PARTICULAR ITS SYSTEM OF PRICES . IT IS NONE THE LESS APPROPRIATE TO NOTE THAT IN THOSE CASES NEITHER THE QUESTIONS ASKED BY THE NATIONAL COURT NOR THE WORDING OF THE NATIONAL PROVISIONS IN QUESTION IN THE MAIN PROCEEDINGS ALLOWED A DISTINCTION TO BE DRAWN IN RELATION TO THE DIFFERENT COMMERCIAL STAGES INVOLVED . THE FACT THAT THE ANALYSIS OF THE COMPATIBILITY OF NATIONAL RULES ON PRICE FORMATION WITH COMMUNITY LAW CONTAINED IN THE JUDGMENTS CONCERNED DOES NOT DRAW A DISTINCTION BETWEEN THE DIFFERENT COMMERCIAL STAGES SHOULD NOT THEREFORE BE INTERPRETED AS AMENDING THE CASE-LAW WHICH, FOR THE REST, APPEARS TO BE CONSISTENT .

9 IT FOLLOWS FROM THE ABOVE CONSIDERATIONS THAT THE EFFECT OF REGULATIONS NOS 121/67 AND 805/68 WAS THAT MEMBER STATES NO LONGER HAD THE POWER TO INTRODUCE OR TO CONTINUE TO APPLY LEGISLATION PROHIBITING THE RAISING OF WHOLESALE PRICES FOR PIGMEAT AND BEEF AND VEAL .

10 IN VIEW OF THE FACT THAT, AS REGARDS WHOLESALE PRICES FOR PIGMEAT AND BEEF AND VEAL, THE COMMUNITY HAS THE EXCLUSIVE LEGISLATIVE POWER WHICH PRECLUDES ANY ACTION ON THE MATTER BY A MEMBER STATE, IT IS NOT NECESSARY TO EXAMINE THE QUESTION WHETHER SUCH NATIONAL RULES DO OR DO NOT JEOPARDIZE THE OBJECTIVES OR THE FUNCTIONING OF THE COMMON ORGANIZATION IN THE SECTORS UNDER CONSIDERATION; SUCH AN EXAMINATION IS NECESSARY, HOWEVER, WHEN NATIONAL MEASURES ARE ADOPTED IN RESPECT OF RETAIL OR CONSUMER PRICES AND ARE THUS IN A FIELD WHICH DOES NOT FALL WITHIN THE EXCLUSIVE POWERS OF THE COMMUNITY .

11 THE NATIONAL COURT ALSO ASKS WHETHER THE COMPATIBILITY OF NATIONAL RULES CONCERNING THE FREEZING OF WHOLESALE PRICES OF PIGMEAT AND BEEF AND VEAL MUST BE ASSESSED DIFFERENTLY WHEN THESE RULES CONTAIN A REVISION CLAUSE THE PRECISE PURPOSE OF WHICH IS TO ALIGN THE FROZEN PRICES ON THOSE FIXED BY VIRTUE OF THE COMMUNITY REGULATIONS . IT FOLLOWS FROM THE FOREGOING THAT THE REPLY TO THIS QUESTION MUST BE IN THE NEGATIVE SINCE THE CLAUSE TO WHICH THE NATIONAL COURT REFERS CANNOT JUSTIFY ACTION BY A MEMBER STATE IN A FIELD WHERE THE COMMUNITY HAS EXCLUSIVE JURISDICTION .

12 CONSEQUENTLY, IT SHOULD BE RULED IN ANSWER TO THE QUESTION REFERRED TO THE COURT THAT REGULATIONS NOS 121/67 AND 805/68 MUST BE INTERPRETED AS PROHIBITING MEMBER STATES FROM ADOPTING AND CONTINUING TO APPLY NATIONAL RULES ON THE FREEZING OF PRICES AT THE WHOLESALE STAGE FOR PRODUCTS COVERED BY THE COMMON ORGANIZATION OF THE MARKET ESTABLISHED BY THOSE TWO REGULATIONS . THAT IS STILL THE CASE WHEN THE NATIONAL RULES CONCERNED ARE OF ONLY LIMITED DURATION OR WHEN THEY INCLUDE A REVISION CLAUSE THE PURPOSE OF WHICH IS TO ALIGN THE FROZEN PRICES ON THOSE FIXED BY VIRTUE OF THE COMMUNITY REGULATIONS .

COSTS

13 THE COSTS INCURRED BY THE GOVERNMENT OF THE ITALIAN REPUBLIC AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, 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 BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS,

THE COURT ( FOURTH CHAMBER )

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE CORTE SUPREMA DI CASSAZIONE BY ORDER OF 14 FEBRUARY 1986, HEREBY RULES :

REGULATION NO 121/67/EEC OF THE COUNCIL OF 13 JUNE 1967 ON THE COMMON ORGANIZATION OF THE MARKET IN PIGMEAT AND REGULATION ( EEC ) NO 805/68 OF THE COUNCIL OF 27 JUNE 1968 ON THE COMMON ORGANIZATION OF THE MARKET IN BEEF AND VEAL MUST BE INTERPRETED AS PROHIBITING MEMBER STATES FROM ADOPTING AND CONTINUING TO APPLY NATIONAL RULES ON THE FREEZING OF PRICES AT THE WHOLESALE STAGE FOR PRODUCTS COVERED BY THE COMMON ORGANIZATION OF THE MARKET ESTABLISHED BY THOSE TWO REGULATIONS . THAT IS STILL THE CASE WHEN THE NATIONAL RULES CONCERNED ARE OF ONLY LIMITED DURATION OR WHEN THEY INCLUDE A REVISION CLAUSE THE PURPOSE OF WHICH IS TO ALIGN THE FROZEN PRICES ON THOSE FIXED BY VIRTUE OF THE COMMUNITY REGULATIONS .