Opinion of the Advocate General — ECLI:EU:C:2009:87
Date: 2009-02-12
Language of the case: Spanish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Oils and fats
Procedure: Reference for a preliminary ruling
Origin: Spain

summary: The national competition authorities may also apply national competition law to an agreement between producers within the meaning of Article 2 of Regulation No 26, even where that agreement could affect the market for olive oil not only at national level but throughout the Community. In so doing the national competition authorities must refrain, however, from doing anything that could lead to their decision conflicting with the rules of Community law in the fields of competition and agriculture. 5. Fifth question 94. If the fourth question is answered in the terms I have proposed, the fifth question also needs to be discussed. In posing it, the referring court is essentially seeking to ascertain whether the national competition authorities may, on the basis of national competition law, prohibit a privately agreed and financed scheme for the buying-in and storage of olive oil even if such a scheme draws inspiration from Article 12a of Regulation No 136/66 and is to apply in the event of ‘serious disturbance of the market’. 95. In other words, the Tribunal Supremo seeks clarification as to whether a scheme such as that proposed by Cecasa, notwithstanding any concerns from the point of view of competition law, must be authorised at least in so far as it is intended to avoid serious disturbance of the market. 96. It is true that in applying the rules of competition law the national competition authorities have to observe the value judgments and requirements of Community agricultural law. Where Community competition law is applied (Articles 81 and 82 EC), agricultural policy takes precedence over the competition law chapter of the EC Treaty under Article 32(2) EC, read in conjunction with Article 36(1) EC. (52) If, conversely, national competition law is applied, the principle of the primacy of Community law (53) will result in the considerations underlying the common agricultural policy taking priority. 97. Accordingly, if it were to be inferred from the agricultural law of the Community that private storage is always permissible without further conditions, at any rate to avert serious disturbance of the market, such a requirement would also have to be taken into consideration in the context of the application of the competition rules by the competition authorities. 98. However, Community agricultural law, as it applies to the facts of the main proceedings, contains no such requirement. Article 12a of Regulation No 136/66 merely provides that the Commission can, under certain conditions that are more specifically detailed therein, implement a private-storage scheme subsidised by the Community. Conversely, no general rule of priority in favour of the private storage of olive oil may be inferred from the common organisation of the market for oils and fats, even in the event of a serious disturbance of the market. 99. As already mentioned, (54) none of the foregoing can exclude the fact that a private, non-subsidised storage scheme may exist in isolation from the provisions of Article 12a of Regulation No 136/66. However, such a scheme must be set up and operated in compliance with the rules of competition law; in particular, it does not enjoy immunity as regards the prohibitions under competition law that may be applicable. 100. If a national competition authority were to refuse to apply the relevant provisions of competition law to a privately agreed and financed scheme for the storage of olive oil, or to apply them only in diluted form, there would be a risk that the common agricultural policy would be jeopardised. Under Regulation No 26, an essential part of that policy is the application of the rules on competition to the production of agricultural products and trade in them. (55) Not least, that is a specific expression of the aim of the common agricultural policy to ensure that supplies reach consumers at reasonable prices (Article 33(1)(e) EC). 101. Admittedly, it is possible that, in the context of the specific application of the rules on competition, even restrictive practices of undertakings may exceptionally be justified. Thus, at Community level, Article 81(3) EC provides that, under certain conditions more particularly described therein, the prohibition laid down in Article 81(1) EC can be declared inapplicable. Similarly, under Spanish law, Article 3 of Law No 16/1989 makes provision for certain ‘conditions for authorisation’. 102. However, the actual interpretation and application of such cases in which a derogation may be allowed or of the ‘conditions for authorisation’ of such a derogation from the relevant prohibitions under competition law may not lead to a result which is contrary to the considerations underlying the agricultural law of the Community. (56) 103. In this connection, it should be recalled that Regulation No 1638/98 abolished the previously existing intervention scheme in the common organisation of the market in oils and fats because, in the view of the Community legislature, it constituted a production incentive which was liable to destabilise the market. (57) 104. Thus, the Community legislature gave concrete form to the aims of the common agricultural policy for the oils and fats sector in such a way that market stabilisation (Article 33(1)(c) EC) and the provision of supplies to consumers at reasonable prices (Article 33(1)(e) EC), in particular, might best be secured – at any rate in the current situation – without any intervention scheme. 105. Were private entities henceforth to be allowed on their own initiative to assume the existence of serious disturbances on the market (58) and on this basis to exercise a material influence on the functioning of the market – in this case the output and price of olive oil – that could eventually lead to an insidious reintroduction of an intervention scheme – albeit with private resources. The result would be that the abolition of the intervention scheme by the Community legislature was circumvented. 106. National authorities and courts must not permit such a situation to arise. In accordance with settled case-law, the Member States are required to refrain from taking any measures that might undermine or adversely affect a common organisation of the market. (59) Even if that organisation of the market has not exhaustively regulated the sector concerned, anything likely to impede its orderly functioning is incompatible with it. (60) 107. In summary, therefore: National competition authorities may on the basis of national competition law prohibit a privately agreed and financed scheme for the buying-in and storage of olive oil even if such a scheme draws inspiration from Article 12a of Regulation No 136/66 and is to apply in the order of ‘serious disturbance of the market’. VI – Conclusion 108. Against the background of the foregoing I propose that the Court should reply as follows to the questions submitted by the Tribunal Supremo: (1) A public limited company operating in the private sector whose object is the sale of olive oil and which has set itself the objective of influencing market output by means of targeted sales and purchases of olive oil may be regarded as a body for the purposes of Article 12a(1) of Regulation No 136/66/EEC in the version set out in Regulation No 1638/98. That is not precluded by the fact that financial investors are also involved in the company in question alongside oil producers, oil pressers and cooperatives. However, in circumstances such as those of the main proceedings such a company cannot be regarded as a producer group or an association of producer groups for the purposes of Regulation No 952/97. (2) Community law does not preclude a national legal situation in which bodies, within the meaning of Article 12a of Regulation No 136/66, may also be authorised by the national competition authorities in proceedings applying competition law, provided that it is established that in such a procedure the relevant provisions of agricultural law are applied in an effective manner and that all requisite verifications have been undertaken. (3) Article 12a of Regulation No 136/66 does not preclude a privately agreed and financed scheme for the acquisition and storage of olive oil. However, such a scheme must be operated in compliance with the general rules governing the market for olive oil, in particular the rules of competition law applicable in a given case. (4) The national competition authorities may also apply national competition law to an agreement between producers within the meaning of Article 2 of Regulation No 26, even where that agreement could affect the market for olive oil not only at national level but throughout the Community. In so doing, the national competition authorities must, however, refrain from doing anything that could lead to their decision conflicting with the rules of Community law in the fields of competition and agriculture. (5) National competition authorities may on the basis of national competition law prohibit a privately agreed and financed scheme for the buying-in and storage of olive oil even if such a scheme draws inspiration from Article 12a of Regulation No 136/66 and is to apply in the event of ‘serious disturbance of the market’. 1 – Original language: German. 2 – Case C‑137/00 Milk Marque and National Farmers’ Union [2003] ECR I‑7975. 3 – Regulation No 26 of the Council of 4 April 1962 applying certain rules of competition to production of and trade in agricultural products (OJ, English Special Edition, Series I 1959‑1962, p. 129), in the version as amended by Regulation No 49 of the Council of 1 July 1962 (OJ, English Special Edition, Series I 1959‑1962, p. 201). 4 – See in that annex heading No 15.07 of the Brussels Nomenclature, which refers to vegetable oils. 5 – Council Regulation (EC) No 1184/2006 of 24 July 2006 applying certain rules of competition to the production of, and trade in, agricultural products (OJ 2006 L 214, p. 7). 6 – Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (OJ 2007 L 299, p. 1); the temporal application to olive oil of this regulation results from the combined application of the provisions of Articles 200 and Article 204(2)(a). 7 – Regulation No 136/66/EEC of the Council of 22 September 1966 on the establishment of a common organisation of the market in oils and fats (OJ, English Special Edition 1965-1966, p. 221). 8 – The relevant wording relating to the common organisation of the market in oils and fats is that provided for in Article 1(8) of Council Regulation (EC) No 1638/98 of 20 July 1998 amending Regulation No 136/66/EEC on the establishment of a common organisation of the market in oils and fats (OJ 1998 L 210, p. 32). 9 – Council Regulation (EC) No 865/2004 of 29 April 2004 on the common organisation of the market in olive oil and table olives and amending Regulation (EEC) No 827/68 (OJ 2004 L 161, p. 97). 10 – See, Article 201(1)(c), read in conjunction with Article 204(2)(a), of Regulation No 1234/2007. 11 – OJ 1997 L 142, p. 30. 12 – See the second indent of Article 55(1), read in conjunction with Article 56(1), of Council Regulation (EC) No 1257/1999 of 17 May 1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and amending and repealing certain Regulations (OJ 1999 L 160, p. 80). 13 – OJ 1998 L 346, p. 14. 14 – BOE No 170 of 18 July 1989, p. 22747. Law No 16/1989 has in the meantime been repealed and replaced by new Law No 15/2007 of 3 July 2007 on the protection of competition (Ley de Defensa de la Competencia) (BOE No 159 of 4 July 2007, p. 28848). According to the information provided by the national court, Law No 16/1989 continues to be the legislation applicable to the national proceedings. 15 – Case C-217/05 Confederación Española de Empresarios de Estaciones de Servicio [2006] ECR I‑11987, paragraph 7. 16 – Supuestos de autorización. 17 – As is also apparent from the file, the Subdirección General sobre Conductas Restrictivas de la Competencia, a sub-directorate of the Spanish competition authority had already instigated an investigation in this case on 16 June 2000. 18 – The Tribunal de Defensa de la Competencia exercised at the material time certain powers of a competition authority. 19 – Sala de lo Contencioso-Administrativo. 20 – Settled case-law; see, among many, Case C-344/04 IATA and ELFAA [2006] ECR I‑403, paragraph 24, Case C-11/07 Eckelkamp and Others [2008] ECR I-0000, paragraphs 27 and 28, and Case C-213/07 Michaniki [2008] ECR I-0000, paragraphs 32 to 34. 21 – Recital 44 in the preamble to Regulation No 1257/1999. 22 – See, for instance, Recital 7 to and Article 3 of Commission Regulation (EC) No 327/2001 of 16 February 2001 authorising the conclusion of private storage contracts for olive oil and opening an invitation to tender for a limited period for aid relating thereto (OJ 2001 L 48, p. 9). 23 – See, for instance, the Commission notice entitled ‘Community guidelines for State aid in the agricultural sector’ (OJ 2000 C 28, p. 2), in particular section 10; see also Article 3 of Commission Regulation (EC) No 2153/2005 of 23 December 2005 on the aid scheme for the private storage of olive oil (OJ 2005 L 342, p. 39). 24 – See, in that regard, point 14 of this Opinion. 25 – See the wording of Article 12a(1) of Regulation No 136/66 and, for an explanation of it, Recital 12 of amending Regulation No 1638/98. 26 – That is to say, state entities or public-law entities or at any rate, bodies specifically authorised by the State or by public-law entities. 27 – This is particularly true of the Spanish (‘organismos’), Estonian (‘asutused’), Greek (‘οργανισμοί’), English (‘bodies’), French (‘organismes’), Italian (‘organismi’), Maltese (‘korpi’), Portuguese (‘organismos’), Slovakian (‘orgány’), Finnish (‘elimet’ or ‘elinten’) and Swedish language versions (‘organ’ or ‘organen’). 28 – In addition to the German language version (‘Einrichtungen’ or ‘Stellen’) that is true of the Czech (‘hospodářské subjekty’ or ‘orgány’), Danish (‘organisationer’ or ‘organer’), Latvian (‘organizācijas’ or ‘iestādes’), Lithuanian (‘istaigos’ or ‘institucijos’), Hungarian (‘szervezetek[et]’ or ‘szerve[k]’), Netherlands (‘organismen’ or ‘instanties’), Polish (‘instytucje’ or ‘organy’) and Slovenian versions (‘teles[a]’ or ‘organi’). 29 – See, in this connection, settled case-law, for instance Case C-372/88 Cricket StThomas [1990] ECR I‑1345, paragraph 19; Case C-1/02 Borgmann [2004] ECR I‑3219, paragraph 25; and Case C-270/06 CEPSA [2008] ECR I-0000, paragraph 50. 30 – See Recital 12 in the preamble to amending Regulation No 1638/1998 that inserted Article 12a into Regulation No 136/66. 31 – The open market economy must guide the economic policy of the Member States and the Community pursuant to Article 4(1) EC and Article 98 EC; see also, in that regard, Case C‑198/01 CIF [2003] ECR I‑8055, paragraph 47. 32 – Settled case-law; see, among many, Case C-17/03 VEMW and Others [2005] ECR I‑4983, paragraph 41, and Case C-76/06P Britannia Alloys & Chemicals v Commission [2007] ECR I‑4405, paragraph 21. 33 – As regards this objective, see once again Recital 12 in the preamble to amending Regulation No 1638/1998 that inserted Article 12a into Regulation No 136/66. 34 – See, in this connection, my reasoning in regard to the second question (points 65 to 70 of this Opinion). 35 – The fact that the common rules for production can be decided on and applied only as regards the producers or producer groups belonging to the relevant association results from the very nature of the matter. Additional clarification in that regard is afforded by the introductory words of Article 6(1)( b) of Regulation No 952/97: ‘déterminer et appliquer, pour les personnes visées à l’article 5 paragraphe 1’ (French language version) or ‘decide on and apply, in respect of persons covered by Article 5(1)’ (English language version) or ‘determinar y aplicar, para las personas mencionadas en el apartado 1 del artículo 5’ (Spanish language version); conversely, the German language version is open to misconstruction with its ambiguous formulation ‘soweit es sich um unter Artikel 5 Absatz 1 fallende Personen handelt’. 36 – Settled case-law; see, for example, Case 13/68 Salgoi l [1968] ECR 453, 463; Case 33/76 Rewe-Zentralfinanz [1976] ECR 1989, paragraph 5; and Case C-268/06 Impact [2008] ECR I-0000, paragraphs 46 to 48. 37 – At Community level, for example, the principle of a one-stop agency has been introduced in the sector of merger control, but is limited to the examination of purely competition-law issues; see Article 21 and Recital 8 in the preamble to Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1). 38 – Recital 12 of implementing Regulation No 1638/1998 that inserted Article 12a into Regulation No 136/66. 39 – Milk Marque (cited in footnote 2, paragraph 61). 40 – Points 57 to 63 of this Opinion. 41 – Milk Marque (cited in footnote 2, paragraphs 57 and 61). 42 – Case 14/68 Walt Wilhelm and Others [1969] ECR 1, paragraphs 3 and 4; Joined Cases 253/78 and 1/79 to 3/79 Giry and Guerlain and Others [1980] ECR 2327, paragraph 15; and Joined Cases C-295/04 to C-298/04 Manfredi and Others [2006] ECR I‑6619, paragraph 38. 43 – Milk Marque (cited in footnote 2, paragraphs 62 and 67), in the context of the common organisation of the market in milk and milk products. 44 – The Milk Marque case, in which the Court recognised that application of national competition law was permissible, also concerned a case with a cross-border dimension; see Milk Marque (cited in footnote 2, paragraphs 110 to 120). 45 – Notwithstanding the exclusive competence enjoyed by the Commission to make findings under Article 2 of Regulation No 26, national courts may find it necessary to apply that provision; see Joined Cases C-319/93, C-40/94 and C-224/94 Dijkstra and Others [1995] ECR I‑4471, paragraphs 25 to 36. 46 – Regulation (EEC) No 17 of the Council – First regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition, Series I 1959-1962, p. 81). 47 – Article 43(1), read in conjunction with Article 45(2) of Council Regulation No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1). 48 – Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ 1989 L 395, p. 1; republished after correction, in OJ 1990 L 257, p. 13), amended by Council Regulation (EC) No 1310/97 of 30 June 1997 (OJ L 180, p. 1, with corrigenda in OJ 1998 L 3, p. 16, and OJ 1998 L 40, p. 17). The new EC Merger Regulation (Regulation No 139/2004) is not applicable to the present case (see Article 26(2) thereof). 49 – Case 6/64 Costa v ENEL [1964] ECR 585, 594; CIF (cited in footnote 31, paragraph 48); and Joined Cases C-295/94 to C-298/04 Manfredi and Others [2006] ECR I‑6619, paragraph 39. 50 – Walt Wilhelm (cited in footnote 42, paragraphs 4 to 8); see also Giry and Guerlain (cited in footnote 42, paragraph 16) and Case C‑344/98 Masterfoods and HB [2000] ECR I‑11369, paragraphs 51 and 52. 51 – See, generally, Case C-1/96 Compassion in World Farming [1998] ECR I-1251, paragraph 41; Milk Marque (cited in footnote 2, paragraphs 63, 80 and 94); and Case C-283/03 Kuipers [2005] ECR I‑4255, paragraph 37; see also, in this regard, my reasoning relating to the fifth question (points 94 to 107 of this Opinion). 52 – Case 139/79 Maizena v Council [1980] ECR 3393, paragraph 23; Case C-280/93 Germany v Council [1994] ECR I‑4973, paragraph 61; and Milk Marque (cited in footnote 2, paragraph 81); see also Kuipers (cited in footnote 51, paragraphs 32 and 34). 53 – On the primacy of Community law, see the case-law cited in footnote 49 above. 54 – See, in that regard, on that my observations on the third question (points 71 to 76 of this Opinion). 55 – Recital 1 in the preamble to Regulation No 26. 56 – See point 96 above. 57 – Recital 11in the preamble to Regulation No 1638/98. 58 – At the hearing Cecasa, confirmed that it intends to assess for itself when there is a ‘serious disturbance of the market’, on the basis of which it would activate its proposed scheme for private storage and would undertake the intervention purchases and sales contemplated by the scheme. 59 – Compassion in World Farming (cited in footnote 51, paragraph 41), Milk Marque (cited in footnote 2, paragraphs 63 and 80) and Kuipers (cited in footnote 51, paragraph 37). 60 – Compassion in World Farming (cited in footnote 51, paragraph 41) and Kuipers (cited in footnote 51, paragraph 37).