IN CASE 265/85
( 1 ) VAN DEN BERGH EN JURGENS BV, ROTTERDAM ( NETHERLANDS ),
( 2 ) VAN DIJK FOOD PRODUCTS ( LOPIK ) BV, LOPIK ( NETHERLANDS ),
BOTH REPRESENTED BY B.*H . TER KUILE AND F.*O.*W . VOGELAAR, LAWYERS WITH A RIGHT OF AUDIENCE BEFORE THE HOGE RAAD DER NEDERLANDEN, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF JACQUES LOESCH, 8 RUE ZITHE,
APPLICANTS,
V
EUROPEAN ECONOMIC COMMUNITY, REPRESENTED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED IN ITS TURN BY AUKE HAAGSMA, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF GEORGES KREMLIS, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
APPLICATION UNDER ARTICLE 215 OF THE EEC TREATY FOR COMPENSATION FOR EACH APPLICANT FOR THE DAMAGE CAUSED BY ONE OF THE COMMUNITY INSTITUTIONS BY THE ADOPTION AND IMPLEMENTATION OF COMMISSION REGULATION ( EEC ) NO 2956/84 OF 18 OCTOBER 1984 ON THE DISPOSAL OF BUTTER AT A REDUCED PRICE AND AMENDING REGULATION ( EEC ) NO 1687/76 ( OFFICIAL JOURNAL 1984, L 279, P . 4 ),
THE COURT
COMPOSED OF : LORD MACKENZIE STUART, PRESIDENT, Y . GALMOT, C . KAKOURIS AND F . SCHOCKWEILER ( PRESIDENTS OF CHAMBERS ), T . KOOPMANS, U . EVERLING, R . JOLIET, J.*C . MOITINHO DE ALMEIDA AND G.*C . RODRIGUEZ IGLESIAS, JUDGES,
ADVOCATE GENERAL : C.*O . LENZ
REGISTRAR : H.*A . RUEHL, PRINCIPAL ADMINISTRATOR
HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 3 JUNE 1986,
AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 5 DECEMBER 1986,
GIVES THE FOLLOWING
JUDGMENT
1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 27 AUGUST 1985, VAN DEN BERGH EN JURGENS BV AND VAN DIJK FOOD PRODUCTS ( LOPIK ) BV, COMPANIES INCORPORATED UNDER NETHERLANDS LAW, WHICH PRODUCE AND MARKET IN SEVERAL MEMBER STATES MARGARINES AND OTHER EDIBLE FATS OF VEGETABLE ORIGIN, BROUGHT AN ACTION UNDER THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY FOR COMPENSATION FOR THE DAMAGE WHICH THEY CONSIDERED THEY HAD SUFFERED AS A RESULT OF THE "CHRISTMAS BUTTER" SCHEME ADOPTED PURSUANT TO, AND SUBJECT TO THE RULES LAID DOWN IN, COMMISSION REGULATION NO 2956/84 OF 18 OCTOBER 1984 ON THE DISPOSAL OF BUTTER AT A REDUCED PRICE AND AMENDING REGULATION ( EEC ) NO 1687/76 ( OFFICIAL JOURNAL 1976, L 279, P . 4 ).
2 ACCORDING TO THE PREAMBLE, THE REGULATION IS BASED ON THE CONSIDERATIONS THAT THERE ARE LARGE QUANTITIES OF BUTTER ON THE MARKET, THAT THERE ARE STOCKS OF BUTTER IN THE COMMUNITY, THAT ALL APPROPRIATE MEANS SHOULD BE USED TO INCREASE BUTTER CONSUMPTION, THAT A REDUCTION IN PRICES TO THE FINAL CONSUMER IS AN APPROPRIATE MEANS OF ATTAINING THAT OBJECTIVE, THAT IT IS NOT POSSIBLE TO DISPOSE OF ALL THE BUTTER IN STOCK ON NORMAL TERMS, THAT PROLONGED STORAGE SHOULD BE AVOIDED IN VIEW OF THE HIGH COST INVOLVED AND THAT THE CHRISTMAS AND NEW YEAR HOLIDAYS MAY PROVIDE AN OPPORTUNITY FOR SELLING BUTTER AT A REDUCED PRICE FOR DIRECT CONSUMPTION . TITLE I OF THE REGULATION THEN SETS UP THE "CHRISTMAS BUTTER" SCHEME DESIGNED TO SELL ON THE MARKET, WITH A REDUCTION OF 1.6 ECU PER KILOGRAM, 200*000 TONNES OF BUTTER ( OF WHICH 9*100 TONNES WERE TO BE SOLD IN THE NETHERLANDS ).
3 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR THE FACTS OF THE CASE AND THE SUBMISSIONS AND ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .
4 THE APPLICANTS CONSIDER THAT AS A RULE AN OPERATION OF THE SCALE OF THE ONE IN QUESTION, BOTH IN REGARD TO THE QUANTITIES SOLD AND THE REDUCTION OFFERED IN THE PRICE, SERIOUSLY DISRUPTS THE MARKET IN EDIBLE FATS . IT SUDDENLY OFFERS FOR CONSUMPTION A LARGE QUANTITY OF BUTTER AT PRICES GREATLY REDUCED AS THE RESULT OF COMMUNITY SUBSIDIES . THE APPLICANTS INCUR LOSSES BECAUSE THE BUTTER IN QUESTION IS BOUGHT IN PREFERENCE NOT MERELY TO FRESH BUTTER, WHICH IS THEN TAKEN INTO INTERVENTION STOCK, BUT ALSO TO MARGARINE, A SUBSTITUTE AND COMPETING PRODUCT SALES OF WHICH DROP NOTICEABLY DURING AND AFTER A CHRISTMAS BUTTER SCHEME .
5 IT CAN BE SEEN FROM THE WRITTEN PLEADINGS AND THE OBSERVATIONS SUBMITTED TO THE COURT THAT THE APPLICANTS RELY IN SUPPORT OF THEIR APPLICATION FOR COMPENSATION ON SEVEN SUBMISSIONS, ALL OF WHICH ALLEGE THAT REGULATION NO 2956/84 IS UNLAWFUL . IN THEIR VIEW, THAT REGULATION :
( A ) WAS ADOPTED IN THE ABSENCE OF POWERS TO DO SO;
( B ) IS CONTRARY TO THE PRINCIPLE OF MARKET STABILIZATION LAID DOWN IN ARTICLE 39 ( 1 ) OF THE TREATY AND IN ARTICLE 6 ( 3 ) OF REGULATION NO 804/68 OF THE COUNCIL OF 27 JUNE 1968;
( C ) BREACHES THE PRINCIPLE OF NON-DISCRIMINATION LAID DOWN IN ARTICLE 40 ( 3 ) OF THE TREATY;
( D ) BREACHES THE PRINCIPLE OF PROPORTIONALITY;
( E ) IS ULTRA VIRES AND CONSTITUTES A MISUSE OF POWERS INASMUCH AS ITS PURPOSE IS TO INCREASE THE CONSUMPTION OF BUTTER;
( F ) IS INCOMPATIBLE WITH THE PRINCIPLE OF FREE MOVEMENT OF GOODS LAID DOWN IN ARTICLES 30 AND 34 OF THE TREATY AND BY ARTICLE 22 ( 1 ) OF REGULATION NO 804/68;
( G ) BREACHES THE PRINCIPLE OF LEGITIMATE EXPECTATIONS .
THE SUBMISSION ALLEGING LACK OF POWERS ON THE PART OF THE COMMISSION
6 ACCORDING TO THE CITATIONS IN THE PREAMBLE TO THE CONTESTED COMMISSION REGULATION SETTING UP THE 1984 CHRISTMAS BUTTER SCHEME, THE SCHEME IS BASED ON THE PROVISIONS OF BOTH ARTICLE 6 AND ARTICLE 12 OF REGULATION NO 804/68 OF THE COUNCIL OF 27 JUNE 1968 ON THE COMMON ORGANIZATION OF THE MARKET IN MILK AND MILK PRODUCTS ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1968 ( I ), P . 176 ). ARTICLE 6 ( 2 ) AND ( 3 ) PERMITS SPECIAL MEASURES TO BE TAKEN TO PROMOTE THE DISPOSAL OF BUTTER HELD IN PUBLIC OR PRIVATE STORAGE WHEN IT CANNOT BE DISPOSED OF UNDER NORMAL CONDITIONS . ARTICLE 12 ( 1 ), AS AMENDED BY REGULATION NO 559/76 OF 15 MARCH 1976 ( OFFICIAL JOURNAL 1976, L 67, P . 9 ), PERMITS OTHER MEASURES TO BE TAKEN IN ORDER TO FACILITATE THE DISPOSAL OF SURPLUSES OF MILK PRODUCTS OR TO PREVENT NEW SURPLUSES FROM BUILDING UP .
7 WITH REGARD TO THE ACTUAL IMPLEMENTATION OF SUCH SPECIAL MEASURES, THE DIVISION OF POWERS BETWEEN THE COUNCIL AND THE COMMISSION IS LAID DOWN AS FOLLOWS IN REGULATION NO 804/68 : GENERAL RULES FOR THE IMPLEMENTATION OF SUCH MEASURES ARE TO BE DETERMINED BY THE COUNCIL ( ARTICLE 6 ( 6 ) AND ARTICLE 12 ( 2 ) RESPECTIVELY OF REGULATION NO 804/68 ) AND THE COMMISSION IS TO ADOPT DETAILED RULES FOR THE IMPLEMENTATION OF THE SAID MEASURES IN ACCORDANCE WITH THE MANAGEMENT COMMITTEE PROCEDURE PROVIDED FOR IN ARTICLE 30 OF THE SAME REGULATION ( ARTICLES 6 ( 7 ) AND 12 ( 3 ) OF REGULATION NO 804/68 ).
8 THE APPLICANTS CLAIM THAT IN THE ABSENCE OF GENERAL RULES LAID DOWN BY THE COUNCIL, THE COMMISSION HAD NO POWER TO SET UP THE CHRISTMAS BUTTER SCHEME AT ISSUE THROUGH THE ADOPTION OF DETAILED RULES FOR THE IMPLEMENTATION OF INTERVENTION MEASURES .
9 IN ORDER TO ASSESS IN THIS CASE THE POWERS OF THE COMMISSION, IT MUST BE DETERMINED :
( 1 ) WHETHER THE COUNCIL IN FACT ADOPTED THE GENERAL RULES PROVIDED FOR IN ARTICLES 6 ( 3 ) AND 12 ( 2 ) OF REGULATION NO 804/68;
( 2 ) WHETHER THE CHRISTMAS BUTTER SCHEME SET UP BY THE CONTESTED REGULATION WAS ONE OF THE MEASURES PROVIDED FOR BOTH BY ARTICLES 6 AND 12 OF REGULATION NO 804/68 AND BY THOSE GENERAL RULES .
10 THE FIRST CONCLUSION TO BE DRAWN FROM A CONSIDERATION OF THE APPLICABLE MEASURES IS THAT, CONTRARY TO THE APPLICANTS' CLAIMS, THE COUNCIL ITSELF ADOPTED THE GENERAL RULES PROVIDED FOR IN ARTICLES 6 AND 12 OF REGULATION NO 804/68 .
11 WITH REGARD FIRST TO THE APPLICATION OF ARTICLE 6 OF THAT REGULATION, IT MUST BE NOTED THAT THE COUNCIL ADOPTED TWO REGULATIONS . FIRST, REGULATION NO 985/68 OF 15 JULY 1968 LAYING DOWN GENERAL RULES FOR INTERVENTION ON THE MARKET IN BUTTER AND CREAM ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1968 ( I ), P . 256 ) PROVIDED FOR THE GRANTING OF AID FOR BUTTER IN PRIVATE STORAGE AND FOR THE POSSIBILITY OF INCREASING THAT AID IF THE MARKET DEVELOPED UNFAVOURABLY . SECONDLY, REGULATION NO 750/69 OF THE COUNCIL OF 22 APRIL 1969 AMENDING REGULATION NO 985/68 ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1969 ( I ), P . 204 ) PERMITTED THE ADOPTION OF APPROPRIATE MEASURES FOR THE DISPOSAL OF BUTTER IN PUBLIC STORAGE WHICH COULD NOT BE MARKETED ON NORMAL TERMS .
12 WITH REGARD TO THE IMPLEMENTATION OF ARTICLE 12 OF REGULATION NO 804/68, THE COUNCIL ADOPTED REGULATION NO 1269/79 OF 25 JUNE 1979 ( OFFICIAL JOURNAL 1979, L 161, P . 8 ), ARTICLES 2 ( 1 ) AND 4 OF WHICH AUTHORIZE THE GRANTING OF AID DESIGNED TO INCREASE CONSUMPTION OF BUTTER BY REDUCING THE PRICE TO THE ULTIMATE CONSUMER .
13 IN THE SECOND PLACE, IT IS NECESSARY TO DETERMINE WHETHER THE CHRISTMAS BUTTER SCHEME SET UP BY THE CONTESTED REGULATION IN FACT COMES WITHIN THE SCOPE OF THE POWERS DELEGATED BY THE COUNCIL TO THE COMMISSION .
14 IN ORDER TO ASSESS THE EXTENT OF THE IMPLEMENTING POWERS GRANTED IN PRINCIPLE TO THE COMMISSION IN REGARD TO THE COMMON AGRICULTURAL POLICY, IT MUST FIRST BE NOTED THAT, AS THE COURT DECIDED IN ITS JUDGMENT OF 30 OCTOBER 1975 ( CASE 23/75 REY SODA V CASSA CONGUAGLIO ZUCCHERO (( 1975 )) ECR 1279 ) IT FOLLOWS FROM THE CONTEXT OF THE TREATY IN WHICH ARTICLE 155 MUST BE PLACED AND ALSO FROM PRACTICAL REQUIREMENTS THAT THE CONCEPT OF IMPLEMENTATION MUST BE GIVEN A WIDE INTERPRETATION . SINCE ONLY THE COMMISSION IS IN A POSITION TO KEEP TRACK OF AGRICULTURAL MARKET TRENDS AND TO ACT QUICKLY WHEN NECESSARY, THE COUNCIL MAY CONFER ON IT WIDE POWERS OF DISCRETION AND ACTION IN THAT SPHERE, AND WHEN IT DOES SO THE LIMITS OF THOSE POWERS MUST BE DETERMINED IN THE LIGHT OF THE ESSENTIAL GENERAL AIMS OF THE MARKET ORGANIZATION .
15 IN THAT CONTEXT, THE CHRISTMAS BUTTER SCHEME MAY BE REGARDED AS A SPECIAL MEASURE, ADOPTED AT A TIME AT WHICH IT IS COMMON GROUND THAT THERE WERE LARGE SURPLUSES OF MILK PRODUCTS, AND INTENDED BOTH TO INCREASE CONSUMPTION AND TO REDUCE PUBLIC AND PRIVATE STOCKS AS WELL AS TO ENSURE THE NECESSARY ROTATION OF THOSE STOCKS . SUCH AN OPERATION FULFILS THE AIMS DEFINED BOTH BY ARTICLES 6 AND 12 OF REGULATION NO 804/68 AND BY THE ABOVEMENTIONED COUNCIL REGULATIONS LAYING DOWN GENERAL RULES FOR THE IMPLEMENTATION OF THOSE ARTICLES .
16 CONSEQUENTLY, THE COMMISSION HAD POWER UNDER ARTICLES 6 ( 7 ) AND 12 ( 3 ) OF REGULATION NO 804/68 TO ADOPT DETAILED RULES FOR THE IMPLEMENTATION OF THE CHRISTMAS BUTTER SCHEME IN ACCORDANCE WITH THE PROCEDURE LAID DOWN IN ARTICLE 30 OF THE SAME REGULATION, THAT IS TO SAY, AFTER OBTAINING THE OPINION OF THE MANAGEMENT COMMITTEE FOR MILK AND MILK PRODUCTS, UNLESS THE MEASURES WERE NOT IN ACCORDANCE WITH THE OPINION OF THE COMMITTEE .
17 SINCE THE COMMITTEE DID NOT GIVE ITS OPINION ON THE PROPOSAL REFERRED TO IT BY THE COMMISSION WITHIN THE TIME-LIMIT LAID DOWN IN ARTICLE 30 ( 2 ) THE COMMISSION CLEARLY HAD THE POWER TO ADOPT THE CONTESTED REGULATION .
18 IT FOLLOWS THAT THE SUBMISSION ALLEGING LACK OF POWERS ON THE PART OF THE COMMISSION MUST BE REJECTED .
THE SUBMISSION ALLEGING FAILURE TO OBSERVE THE PRINCIPLE OF MARKET STABILIZATION
19 ACCORDING TO THE APPLICANTS, THE CHRISTMAS BUTTER SCHEMES CREATE DISTORTIONS ON THE MARKET WHICH DISTURB, CONTRARY TO ARTICLE 39 OF THE TREATY, THE BALANCE BETWEEN THE BUTTER AND MARGARINE MARKETS, EACH PRODUCT COMPETING WITH AND BEING A SUBSTITUTE FOR THE OTHER .
20 THAT SUBMISSION CANNOT BE ACCEPTED . IT MUST BE POINTED OUT IN THAT REGARD THAT ACCORDING TO THE SETTLED CASE-LAW OF THE COURT ( JUDGMENT OF 24 OCTOBER 1973 IN CASE 5/73 BALKAN IMPORT-EXPORT V HAUPTZOLLAMT BERLIN-PACKHOF (( 1973 )) ECR 1091; JUDGMENT OF 20 OCTOBER 1977 IN CASE 29/77 ROQUETTE FRERES V FRANCE (( 1977 )) ECR 1835; JUDGMENT OF 6 DECEMBER 1984 IN CASE 59/83 BIOVILAC V EEC (( 1984 )) ECR 4057 ), IN PURSUING THE VARIOUS AIMS LAID DOWN IN ARTICLE 39 OF THE TREATY, THE COMMUNITY INSTITUTIONS HAVE A PERMANENT DUTY TO RECONCILE THE INDIVIDUAL AIMS . ALTHOUGH THAT DUTY TO RECONCILE MEANS THAT NO SINGLE AIM MAY BE PURSUED IN ISOLATION IN SUCH A WAY AS TO MAKE THE ACHIEVEMENT OF THE OTHERS IMPOSSIBLE, THE COMMUNITY INSTITUTIONS MAY ALLOW ONE OF THEM TEMPORARY PRIORITY IN ORDER TO SATISFY THE DEMANDS OF THE ECONOMIC OR OTHER CONDITIONS IN VIEW OF WHICH THEIR DECISIONS ARE MADE .
21 IN REGARD MORE PARTICULARLY TO THE ASSESSMENT OF THE LEGALITY OF A MEASURE ADOPTED IN THE CONTEXT OF A GENERAL POLICY IN THE MILK PRODUCTS SECTOR, THE COURT DECIDED IN BIOVILAC, CITED ABOVE, THAT ONE OF THE MAIN AIMS OF THAT POLICY WAS TO ENSURE IN ACCORDANCE WITH ARTICLE 39 ( 1 ) ( B ) OF THE TREATY THAT COMMUNITY MILK PRODUCERS RECEIVED A REASONABLE INCOME THROUGH THE FIXING OF A TARGET PRICE FOR MILK WHICH WAS GUARANTEED BY INTERVENTION BUYING OF THE PRINCIPAL PRODUCTS INTO WHICH MILK IS PROCESSED, IN PARTICULAR, BUTTER . IN THOSE CIRCUMSTANCES, IT WOULD APPEAR THAT THE COMMISSION WAS ENTITLED, WITHOUT INFRINGING ARTICLE 39 ( 1 ) OF THE EEC TREATY, TO DEVOTE SPECIAL ATTENTION TO ENSURING A REASONABLE INCOME FOR MILK PRODUCERS BY ORGANIZING A CHRISTMAS BUTTER SCHEME . SUCH A SCHEME CLEARLY HAS A DIRECT CONNECTION WITH THAT AIM BECAUSE, BY FACILITATING THE DISPOSAL OF SURPLUSES CREATED BY THE INTERVENTION MACHINERY AND BY PERMITTING A RENEWAL OF THE BUTTER IN STORAGE, IT MAKES IT POSSIBLE TO MAINTAIN THE SYSTEM OF PRODUCTION PRICES .
22 FURTHERMORE, HAVING REGARD IN PARTICULAR TO THE DEVELOPMENT WHICH HAS BEEN NOTED OF THE RESPECTIVE MARKET SHARES OF BUTTER AND MARGARINE IN OVERALL COMMUNITY CONSUMPTION OF FATS, IT DOES NOT APPEAR FROM THE DOCUMENTS ON THE FILE THAT A CHRISTMAS BUTTER SCHEME OF THE TYPE AT ISSUE WAS OF SUCH A NATURE AS TO CREATE A REAL AND DURABLE DISTURBANCE OF THE MARGARINE MARKET .
THE SUBMISSION ALLEGING BREACH OF THE PRINCIPLE OF NON-DISCRIMINATION LAID DOWN IN ARTICLE 40 ( 3 ) OF THE TREATY
23 ACCORDING TO THE APPLICANTS, THE CONTESTED CHRISTMAS BUTTER SCHEME GAVE RISE TO UNJUSTIFIED DISCRIMINATION BETWEEN BUTTER AND MARGARINE PRODUCERS, TO THE DETRIMENT OF THE LATTER, WHO SUFFERED A DIRECT AND SIGNIFICANT COMPETITIVE DISADVANTAGE . FURTHERMORE, THE COMMISSION DID NOT TAKE ACCOUNT OF ALL THE FACTORS CHARACTERIZING EACH OF THE COMMON MARKET ORGANIZATIONS AT ISSUE .
24 IT IS COMMON GROUND THAT BOTH BUTTER AND MARGARINE, AS PRODUCTS OBTAINED BY PROCESSING AGRICULTURAL PRODUCTS, ARE COVERED BY THE COMMON AGRICULTURAL POLICY, AND THAT THEY COMPETE WITH EACH OTHER AND ARE PARTIAL SUBSTITUTES FOR EACH OTHER . CONSEQUENTLY, THE SECOND SUBPARAGRAPH OF ARTICLE 40 ( 3 ) OF THE TREATY, WHICH PROVIDES THAT THE COMMON ORGANIZATION OF AGRICULTURAL MARKETS "SHALL EXCLUDE ANY DISCRIMINATION BETWEEN PRODUCERS OR CONSUMERS WITHIN THE COMMUNITY" CLEARLY APPLIES IN THIS CASE .
25 HOWEVER, IT MUST BE POINTED OUT THAT ACCORDING TO SETTLED CASE-LAW ( JUDGMENT OF 25 OCTOBER 1978 IN JOINED CASES 103 AND 145/77 ROYAL SCHOLTEN HONIG V INTERVENTION BOARD FOR AGRICULTURAL PRODUCE (( 1978 )) ECR 2037; JUDGMENT OF 12 JUNE 1979 IN CASE 166/78 ITALY V COUNCIL (( 1979 )) ECR 2575; JUDGMENT OF 27 SEPTEMBER 1979 IN CASE 230/78 ERIDANIA V MINISTER OF AGRICULTURE AND FORESTRY (( 1979 )) ECR 2749; JUDGMENT OF 6 DECEMBER 1984 IN BIOVILAC, CITED ABOVE ) THE PROHIBITION OF DISCRIMINATION LAID DOWN IN THE SECOND SUBPARAGRAPH OF ARTICLE 40 ( 3 ) OF THE TREATY, AS A SPECIFIC EXPRESSION OF THE GENERAL PRINCIPLE OF EQUALITY, DOES NOT PREVENT COMPARABLE SITUATIONS FROM BEING TREATED DIFFERENTLY IF SUCH A DIFFERENCE IN TREATMENT IS OBJECTIVELY JUSTIFIED . IN THIS CASE, THREE ESSENTIAL DIFFERENCES MUST BE NOTED BETWEEN THE BUTTER AND MARGARINE MARKETS .
26 IN THE FIRST PLACE, THE COMMON ORGANIZATION OF THE MARKET IN MILK AND MILK PRODUCTS, WHICH INCLUDES BUTTER, SET UP BY REGULATION NO 804/68 OF THE COUNCIL, WAS CONCEIVED IN A VERY SPECIAL CONTEXT COMPARED TO THAT OF OILS AND FATS OF VEGETABLE ORIGIN, HAVING REGARD TO THE IMPORTANCE OF MILK PRODUCTION IN THE EUROPEAN ECONOMIC COMMUNITY AND THE DIFFERENT CONDITIONS OF SUPPLY IN THE COMMUNITY FOR MILK PRODUCTS, ON THE ONE HAND, AND OILS AND FATS OF VEGETABLE ORIGIN ON THE OTHER . THUS, REGULATION NO 804/68 ESTABLISHED INTERVENTION MACHINERY AND METHODS OF PRICE FORMATION DIFFERENT FROM THOSE LAID DOWN IN REGULATION NO 136/66 OF THE COUNCIL OF 22 SEPTEMBER 1966 ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1965-66, P . 221 ), AS AMENDED, ON THE ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKET IN OILS AND FATS, WHICH INCLUDES MARGARINE . WHEREAS IN THE CONTEXT OF THE COMMON ORGANIZATION OF THE MARKET IN THE MILK SECTOR, THE MARKET IS REGULATED ESSENTIALLY BY MEANS OF AN INTERVENTION PRICE FOR BUTTER AND MILK POWDER, IT IS REGULATED IN THE CONTEXT OF THE COMMON ORGANIZATION OF THE MARKET IN OILS AND FATS ESSENTIALLY BY A SYSTEM OF PRODUCTION AIDS AND INTERVENTION IS MERELY COMPLEMENTARY .
27 SECONDLY, THE PLACE OCCUPIED BY THE PRODUCTS AT ISSUE IN THEIR RESPECTIVE MARKET ORGANIZATION IS ENTIRELY DIFFERENT . BUTTER, IN THE SAME WAY AS SKIMMED-MILK POWDER, OCCUPIES A FUNDAMENTAL PLACE IN THE COMMON ORGANIZATION OF THE MARKET IN THE MILK AND MILK PRODUCTS SECTOR SINCE IT SERVES TO SUPPORT THE MARKET . MARGARINE DOES NOT PLAY A COMPARABLE ROLE IN THE COMMON ORGANIZATION OF THE MARKET IN OILS AND FATS .
28 THIRDLY, THE MARKET IN OILS AND FATS OF VEGETABLE ORIGIN IS NOT AFFECTED BY PROBLEMS COMPARABLE TO THOSE AFFECTING THE MARKET IN MILK PRODUCTS . AS THE COURT POINTED OUT IN ITS JUDGMENT OF 25 FEBRUARY 1979 ( CASE 138/78 STOELTING V HAUPTZOLLAMT HAMBURG-JONAS (( 1979 )) ECR 713 ), THE SITUATION OF THE MILK MARKET IN THE COMMUNITY IS DOMINATED BY A STRUCTURAL SURPLUS OF BUTTER AND SKIMMED-MILK POWDER RESULTING IN AN IMBALANCE BETWEEN SUPPLY AND DEMAND IN REGARD TO THOSE PRODUCTS . CONSEQUENTLY, IN ORDER TO DEAL WITH THE SPECIAL DIFFICULTIES ENCOUNTERED IN THE MILK PRODUCTS SECTOR, THE COMMUNITY INSTITUTIONS ARE REQUIRED BOTH TO AVOID AN INCREASE IN STOCKS AND TO PROMOTE THE DISPOSAL OF STOCKS ALREADY ESTABLISHED .
29 IT FOLLOWS FROM THE FOREGOING THAT HAVING REGARD TO THE OBJECTIVE DIFFERENCES WHICH CHARACTERIZE THE LEGAL MACHINERY EMPLOYED AND THE ECONOMIC CONDITIONS ON THE MARKETS IN QUESTION, PRODUCERS OF BUTTER AND PRODUCERS OF MARGARINE ARE NOT IN COMPARABLE POSITIONS . THUS, THE CONTESTED CHRISTMAS BUTTER SCHEME, WHICH IS PART OF THE VERY FUNCTIONING OF THE COMMON ORGANIZATION OF THE MARKET IN MILK PRODUCTS, CANNOT BE REGARDED AS GIVING RISE TO DISCRIMINATION AGAINST PRODUCERS OF MARGARINE .
THE SUBMISSION ALLEGING BREACH OF THE PRINCIPLE OF PROPORTIONALITY
30 THE APPLICANTS CLAIM THAT THE SALES OF CHRISTMAS BUTTER ARE NEITHER A NECESSARY NOR AN APPROPRIATE MEANS OF INCREASING BUTTER CONSUMPTION AND AVOIDING LONG PERIODS OF STORAGE, AND THEY CONTEST THE APPROPRIATENESS AND EFFICACY, HAVING REGARD TO ITS COST, OF THE CHRISTMAS BUTTER SCHEME SET UP BY THE CONTESTED REGULATION . FURTHERMORE, OTHER SOLUTIONS, MORE EFFECTIVE AND LESS RESTRICTIVE THAN MEASURES SUCH AS THE CHRISTMAS BUTTER SCHEMES, EXIST TO RESOLVE THE PROBLEM OF BUTTER STOCKS AND SURPLUSES .
31 IT IS SETTLED CASE-LAW THAT IN ORDER TO ESTABLISH WHETHER A PROVISION OF COMMUNITY LAW COMPLIES WITH THE PRINCIPLE OF PROPORTIONALITY, IT MUST BE ASCERTAINED WHETHER THE MEANS WHICH IT EMPLOYS ARE SUITABLE FOR THE PURPOSE OF ACHIEVING THE DESIRED OBJECTIVE AND WHETHER THEY DO NOT GO BEYOND WHAT IS NECESSARY TO ACHIEVE IT . FURTHERMORE, AS THE COURT STATED IN ITS JUDGMENT OF 21 FEBRUARY 1979 ( STOELTING, CITED ABOVE ), IF A MEASURE IS PATENTLY UNSUITED TO THE OBJECTIVE WHICH THE COMPETENT INSTITUTION SEEKS TO PURSUE THIS MAY AFFECT ITS LEGALITY; HOWEVER, THE COMMUNITY INSTITUTIONS MUST BE RECOGNIZED AS HAVING A DISCRETIONARY POWER IN REGARD TO THE COMMON AGRICULTURAL POLICY WHICH REFLECTS THE RESPONSIBILITIES WHICH THE TREATY IMPOSES ON THEM .
32 IN THIS CASE, IT CAN BE SEEN FROM THE STATEMENT OF THE REASONS ON WHICH THE CONTESTED REGULATION IS BASED THAT THE ESSENTIAL AIMS OF THE LATTER WERE TO INCREASE THE CONSUMPTION OF BUTTER NOT MERELY IN ORDER TO MAKE AN OVERALL REDUCTION IN BUTTER STOCKS BUT ALSO TO AVOID PROLONGING THE PERIOD OF STORAGE OF OLDER BUTTER WHICH, BEYOND A CERTAIN PERIOD, BECOMES UNFIT FOR HUMAN CONSUMPTION AND MUST BE FURTHER PROCESSED . IT CAN BE SEEN FROM THE DOCUMENTS ON THE FILE AND FROM THE ARGUMENTS MADE BEFORE THE COURT THAT, ON THE ONE HAND, THE CONTESTED SCHEME ACTUALLY LED TO ADDITIONAL SALES OF APPROXIMATELY 40*000 TONNES OF BUTTER IN THE COMMUNITY, THUS AVOIDING THE STORAGE OF THAT QUANTITY AND, ON THE OTHER HAND, THERE WAS CONSEQUENTLY A BETTER ROTATION AND A CERTAIN RENEWAL OF BUTTER STOCKS . THOSE OBJECTIVES ARE AMONG THOSE ASSIGNED TO THE INTERVENTION SYSTEM BY ARTICLE 6 ( 4 ) OF REGULATION NO 804/68 .
33 FURTHERMORE, IT DOES NOT APPEAR EITHER FROM THE DOCUMENTS ON THE FILE OR FROM THE ARGUMENTS MADE BEFORE THE COURT THAT THE COMMISSION COMMITTED A MANIFEST ERROR OF ASSESSMENT IN CONSIDERING THAT IT DID NOT HAVE ANY OTHER POSSIBLE WAY OF ACHIEVING THE DESIRED OBJECTIVES BY MORE EFFICIENT AND LESS ONEROUS MEANS UNDER CONDITIONS WHICH WERE LEGALLY, ECONOMICALLY AND PSYCHOLOGICALLY ACCEPTABLE .
34 IN THOSE CIRCUMSTANCES, AND ALTHOUGH IT MUST BE ADMITTED, AS THE COMMISSION ITSELF ADMITS, THAT SCHEMES SUCH AS THE CHRISTMAS BUTTER SCHEME ARE OF LIMITED EFFECTIVENESS, AND ARE VERY COSTLY FROM THE POINT OF VIEW OF COMMUNITY FINANCES, IT DOES NOT APPEAR THAT THE CONTESTED MEASURE WAS UNSUITABLE FOR THE PURPOSE OF ACHIEVING THE DESIRED AIMS OR THAT IT WENT FURTHER THAN WAS NECESSARY TO ACHIEVE THEM . THEREFORE, THE SUBMISSION ALLEGING BREACH OF THE PRINCIPLE OF PROPORTIONALITY MUST BE REJECTED .
THE SUBMISSION ALLEGING THAT THE CONTESTED REGULATION IS VITIATED BY AN EXCESS AND A MISUSE OF POWERS TO THE EXTENT THAT ITS PURPOSE IS TO STIMULATE THE CONSUMPTION OF BUTTER
35 IT CAN BE SEEN FROM THE ARGUMENTS PRESENTED IN THAT REGARD BY THE APPLICANTS THAT THIS SUBMISSION IS IN FACT COMPOSED OF TWO PARTS :
( I ) THE COUNCIL GAVE THE COMMISSION POWERS TO ADOPT MEASURES TO ENSURE THE DISPOSAL OF STOCKS BUT NOT TO SEEK TO INCREASE THE CONSUMPTION OF BUTTER;
( II ) THE MEASURES ADOPTED BY THE COMMISSION MAY NOT GO BEYOND THE PROVISIONS OF ARTICLE 6 ( 4 ) ( A ) OF REGULATION NO 804/68, ACCORDING TO WHICH THE INTERVENTION SYSTEM IS TO BE SO APPLIED THAT THE COMPETITIVE POSITION OF BUTTER ON THE MARKET IS MAINTAINED . IT CANNOT THEREFORE GIVE THAT PRODUCT AN ARTIFICIAL COMPETITIVE ADVANTAGE COMPARED TO MARGARINE . THE COMMISSION THEREFORE SOUGHT TO ACHIEVE AN OBJECTIVE OTHER THAN THAT FOR WHICH THE POWERS WERE CONFERRED ON IT .
FIRST PART OF THE SUBMISSION
36 THIS PART OF THE SUBMISSION MERGES INTO THE MORE GENERAL SUBMISSION ALLEGING LACK OF POWERS ON THE PART OF THE COMMISSION . IT IS SUFFICIENT THEREFORE IN ORDER TO REPLY TO IT TO REFER TO WHAT HAS BEEN SAID ABOVE IN REGARD TO THE COMMISSION' S POWERS .
SECOND PART OF THE SUBMISSION ALLEGING AN INFRINGEMENT OF ARTICLE 6 ( 4 ) ( A ) OF REGULATION NO 804/68
37 IT SHOULD BE NOTED IN THAT REGARD, AS THE COMMISSION RIGHTLY EMPHASIZES, THAT ALTHOUGH, ACCORDING TO ARTICLE 6 ( 4 ) ( A ) OF REGULATION NO 804/68, THE INTERVENTION SYSTEM IS TO BE SO APPLIED THAT THE COMPETITIVE POSITION OF BUTTER ON THE MARKET IS MAINTAINED, THAT PROVISION DOES NOT MEAN THAT THE COMPETITIVE RELATIONSHIP BETWEEN BUTTER AND OTHER PRODUCTS WHICH ARE PARTIAL SUBSTITUTES FOR IT MAY BE REGARDED AS FIXED AND UNCHANGEABLE . ON THE CONTRARY, HAVING REGARD TO THE IMPORTANCE OF THE PLACE OF BUTTER IN THE COMMON ORGANIZATION OF THE MARKET IN MILK PRODUCTS, THE INSTITUTIONS MUST ENSURE THAT THE COMPETITIVE POSITION OF THAT PRODUCT DOES NOT DETERIORATE AND, IF NECESSARY, ENSURE THAT IT IS IMPROVED IN ORDER TO RESTORE THE BALANCE OF THE COMMON ORGANIZATION OF THE MARKET IN MILK PRODUCTS . IT IS FOR THAT PURPOSE THAT THE COMMISSION WAS GRANTED POWERS TO ADOPT, AT TIMES WHEN IT IS DIFFICULT TO DISPOSE OF BUTTER, MEASURES LEADING TO AN INCREASE IN THE CONSUMPTION OF BUTTER BY VIRTUE OF A REDUCTION IN THE PRICE OF THAT PRODUCT, WHICH ALSO PERMITS IT TO ACHIEVE THE OTHER AIMS REFERRED TO IN ARTICLE 6 ( 4 ) ( B ) AND ( C ) OF REGULATION NO 804/68, NAMELY TO PRESERVE THE INITIAL QUALITY OF BUTTER AND TO HOLD STOCKS ON THE MOST RATIONAL BASIS POSSIBLE . A SCHEME SUCH AS THE ONE AT ISSUE IS PRECISELY DESIGNED TO ACHIEVE THOSE OBJECTIVES .
38 IT FOLLOWS FROM WHAT HAS BEEN SAID THAT BY ADOPTING THE CONTESTED REGULATION SETTING UP A CHRISTMAS BUTTER SCHEME, THE COMMISSION DID NOT ACT FOR PURPOSES OTHER THAN THOSE FOR WHICH THE POWERS HAD BEEN CONFERRED ON IT BY THE AFOREMENTIONED COUNCIL REGULATION .
THE SUBMISSION ALLEGING BREACH OF THE PRINCIPLE OF FREE MOVEMENT OF GOODS
39 ACCORDING TO THE APPLICANTS, THE COMMUNITY INSTITUTIONS ARE ALSO REQUIRED TO RESPECT THE FUNDAMENTAL PRINCIPLE OF FREEDOM IN INTRA-COMMUNITY TRADE . HOWEVER, ARTICLE 5 ( 1 ) OF THE CONTESTED REGULATION SET UP A CHRISTMAS BUTTER SCHEME MAKING IMPOSSIBLE INTRA-COMMUNITY TRADE IN "SUCH BUTTER" AND THEREBY INFRINGED ARTICLES 30 AND 34 OF THE TREATY .
40 WITHOUT THERE BEING ANY NEED TO CONSIDER WHETHER, BY EXCLUDING CHRISTMAS BUTTER FROM THE SCOPE OF THE PRINCIPLE OF FREE MOVEMENT OF GOODS, THE COMMISSION DID OR DID NOT INFRINGE ARTICLE 30 ET SEQ . OF THE TREATY, IT IS SUFFICIENT TO NOTE THAT THE APPLICANTS MAY NOT USEFULLY RELY ON SUCH A SUBMISSION IN SUPPORT OF THEIR ACTION FOR DAMAGES .
41 IT CAN BE SEEN FROM THE DOCUMENTS ON THE FILE AND THE ARGUMENTS PRESENTED BEFORE THE COURT THAT, HAVING REGARD TO THE SPECIFIC NATURE OF THE NETHERLANDS MARKET, ANY OFFER OF BUTTER AT A REDUCED PRICE GIVES RISE TO AN INCREASE IN CONSUMPTION OF THE PRODUCT ON THAT MARKET SIGNIFICANTLY HIGHER THAN THAT NOTED IN THE OTHER MEMBER STATES . CONSEQUENTLY, IN THE ABSENCE IN THE CONTESTED REGULATION OF, ON THE ONE HAND, AN OVERALL LIMIT ON THE QUANTITY OF CHRISTMAS BUTTER TO BE OFFERED ON THE NETHERLANDS MARKET ( 9*100 TONNES ), AND, ON THE OTHER HAND, OF A PROVISION SUCH AS THE CONTESTED ONE, THE NETHERLANDS MARKET COULD HAVE BEEN DISTURBED BY THE OFFER FOR SALE OF CONSIDERABLY LARGER QUANTITIES OF BUTTER AT A REDUCED PRICE COMING FROM OTHER MEMBER STATES, IN WHICH IT HAD BEEN LESS SUCCESSFUL IN ATTRACTING THE CONSUMER . THE CONSEQUENCE WOULD THEREFORE HAVE BEEN, ACCORDING TO THE APPLICANTS' OWN LOGIC, EVEN GREATER DAMAGE TO THE MARGARINE MANUFACTURERS OPERATING ON THE NETHERLANDS MARKET .
42 THEREFORE, SINCE THERE IS NO RELATIONSHIP OF CAUSE AND EFFECT BETWEEN THE ALLEGED UNLAWFULNESS AND THE DAMAGE ALLEGED TO HAVE BEEN SUFFERED, THE SUBMISSION MUST, IN ANY EVENT, BE REJECTED .
THE SUBMISSION ALLEGING BREACH OF THE PRINCIPLE OF THE PROTECTION OF LEGITIMATE EXPECTATION
43 ACCORDING TO THE APPLICANTS, THE COMMISSION ITSELF STATED, PUBLICLY AND ON SEVERAL OCCASIONS, THAT SCHEMES SUCH AS THE CHRISTMAS BUTTER SCHEME WERE NOT CAPABLE OF ACHIEVING THE DESIRED AIMS, IN PARTICULAR A DURABLE REDUCTION IN THE LEVEL OF STOCKS . CONSEQUENTLY, THEY HAD NO REASON TO EXPECT THAT, CONTRARY TO THOSE STATEMENTS, THE COMMISSION WOULD ONCE AGAIN ORGANIZE SUCH A SCHEME .
44 THE COURT HAS CONSISTENTLY HELD THAT ANY TRADER IN REGARD TO WHOM AN INSTITUTION HAS GIVEN RISE TO JUSTIFIED HOPES MAY RELY ON THE PRINCIPLE OF THE PROTECTION OF LEGITIMATE EXPECTATION . ON THE OTHER HAND, IF A PRUDENT AND DISCRIMINATING TRADER COULD HAVE FORESEEN THE ADOPTION OF A COMMUNITY MEASURE LIKELY TO AFFECT HIS INTERESTS, HE CANNOT PLEAD THAT PRINCIPLE IF THE MEASURE IS ADOPTED ( JUDGMENT OF 1 FEBRUARY 1978 IN CASE 78/77 LUEHRS V HAUPTZOLLAMT HAMBURG-JONAS (( 1978 )) ECR 169 ).
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
46 ALTHOUGH THE APPLICANTS FORMALLY SUBMITTED ALTERNATIVE CONCLUSIONS ALLEGING LIABILITY ON THE PART OF THE COMMUNITY EVEN IF THE CONTESTED MEASURE MUST BE REGARDED AS LAWFUL, CONSIDERATION OF THE ARGUMENTS PUT FORWARD IN SUPPORT OF THOSE CONCLUSIONS REVEALS THAT THEY ARE IN REALITY BASED ON AN ALLEGED BREACH OF THE PRINCIPLE OF THE PROTECTION OF LEGITIMATE EXPECTATION AND THAT THEREFORE THEY CANNOT BE REGARDED AS DISTINCT FROM THE MAIN CONCLUSIONS . IT FOLLOWS THEREFORE THAT THOSE CONCLUSIONS CANNOT IN ANY EVENT BE ACCEPTED .
47 ON ALL THOSE GROUNDS THE APPLICATION MUST BE DISMISSED .
COSTS
48 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE APPLICANTS HAVE FAILED IN THEIR SUBMISSIONS, THEY MUST BE ORDERED TO PAY THE COSTS .
ON THOSE GROUNDS,
THE COURT
HEREBY :
( 1 ) DISMISSES THE APPLICATION;
( 2 ) ORDERS THE APPLICANTS TO PAY THE COSTS .
