Opinion of the Advocate General — ECLI:EU:C:2002:496
Date: 2002-09-17
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Milk products;Free movement of goods;Measures having equivalent effect;Quantitative restrictions;Freedom to provide services;Anti-discrimination;Non-discrimination on grounds of nationality
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

SUMMARY — CASE C-137/00 
Summary of the Judgment 
1. Agriculture — Common organisation of the markets — Milk and milk products — 
Application of national competition law to a milk producers' cooperative in a powerful 
position on the national market — Competence of the national authorities — Limits 
(Arts 32 to 38 EC; Council Regulation No 26 and No 804/68, Art. 3(1), as amended by 
Regulation No 1587/96) 
2. Agriculture — Common organisation of the markets — Milk and milk products — 
Target price for milk — Account taken of that price by national competition 
authorities for the purposes of investigating the market power of an undertaking — 
Whether permissible 
(Art. 33(1) EC; Council Regulation No 804/68, Art. 3(1) and (2), as amended by 
Regulation No 1587/96) 
3. Free movement of goods — Quantitative restrictions — Measures having equivalent 
effect — Prohibition on a dairy cooperative in a powerful position on the market 
against entering into contracts for processing milk on its own behalf — Application of 
national competition law — Whether permissible 
(Arts 28 and 29 EC) 
4. Community law — Principles — Equal treatment — Discrimination on grounds of 
nationality — Prohibition on a dairy cooperative in a powerful position on the market 
against entering into contracts for processing milk on its own behalf — Whether 
permissible 
(Arts 12 EC and 34(2), second para., EC) 
1. Articles 32 to 38 EC, Regulation No 26 
applying certain rules of competition to 
production of and trade in agricultural 
products and Regulation No 804/68 on 
the common organisation of the mar­
ket in milk and milk products, as 
amended by Regulation No 1587/96, 
must be interpreted as meaning that, in 
the sector governed by the common 
organisation of the market in milk and 
milk products, the national authorities 
in principle retain jurisdiction to apply 
national competition law to a milk 
producers' cooperative in a powerful 
position on the national market. 
Where the national competition auth­
orities act in the sector governed by the 
common organisation of the market in 
milk and milk products, they are under 
an obligation to refrain from adopting 
any measure which might undermine 
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MILK MARQUE AND NATIONAL FARMERS' UNION 
or create exceptions to that common 
organisation. 
Measures taken by national compe­
tition authorities in the sector governed 
by the common organisation of the 
market in milk and milk products may 
not, in particular, produce effects 
which are such as to impede the work­
ing of the machinery provided for by 
that common organisation. However, 
the mere fact that the prices charged by 
a dairy cooperative were already lower 
than the target price for milk before 
those authorities intervened is not suf­
ficient to render the measures taken by 
them in relation to that cooperative in 
application of national competition 
law unlawful under Community law. 
First of all, this sort of price guideline is 
a political objective at Community 
level and is not a guarantee to all 
producers in every Member State that 
they will earn an income corresponding 
to the target price. Secondly, given that 
the maintenance of effective compe­
tition is one of the objectives of the 
common organisation of the market in 
milk and milk products, Article 3(1) of 
Regulation No 804/68, which provides 
that a target price for milk is to be fixed 
for the Community annually, cannot be 
interpreted as meaning that producers 
of milk have the right to seek to earn an 
income corresponding to the target 
price by any means, including those 
that may constitute abuses or be anti­
competitive. 
Furthermore, such measures may not 
compromise the objectives of the com­
mon agricultural policy as set out in 
Article 33(1) EC. The national compe­
tition authorities are under an obli­
gation to ensure that any contradic­
tions between the various objectives 
laid down in Article 33 EC are recon­
ciled where necessary, without giving 
any one of them so much weight as to 
render the achievement of the others 
impossible. 
(see paras 63, 67, 80, 87-89, 
91, 94, operative part 1) 
2. The function of the target price for 
milk laid down in Article 3(1) of 
Regulation No 804/68 on the common 
organisation of the market in milk and 
milk products, as amended by Regu­
lation No 1587/96, does not preclude 
the national competition authorities 
from using that price for the purposes 
of investigating the market power of an 
agricultural undertaking by comparing 
variations in actual prices with the 
target price. 
It follows from Article 3(2), read in the 
light of Article 33(1) EC, that the 
essential function of the target price is 
to define, at Community level, the 
desirable point of equilibrium between 
the objective of ensuring a fair standard 
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SUMMARY — CASE C-137/00 
of living for the agricultural commu­
nity on the one hand, and that of 
ensuring that supplies reach consumers 
at reasonable prices on the other. It 
must be observed that for the national 
competition authorities to use the tar­
get price as an indicator when examin­
ing the power of an agricultural under­
taking on the national market in no 
way interferes with the essential func­
tion of the target price. Nor, fur­
thermore, is there any provision of 
Community law, whether primary or 
secondary, which prohibits the target 
price being used in that way. 
(see paras 99-102, 
operative part 2) 
3. In the context of the application of 
national competition law, the Treaty 
rules on the free movement of goods do 
not preclude the competent authorities 
of a Member State from prohibiting a 
dairy cooperative which enjoys market 
power from entering into contracts 
with undertakings, including undertak­
ings established in other Member 
States, for the processing, on its behalf, 
of milk produced by its members. 
First of all, Article 28 EC is intended to 
prohibit all rules or other measures 
enacted by Member States which are 
capable of hindering, directly or indi­
rectly, actually or potentially, intra-
Community t rade. However, a 
Member State is entitled to take meas­
ures to prevent certain of its nationals, 
under cover of freedoms created by the 
Treaty, from wrongfully evading the 
application of their national legislation. 
Given that restrictive measures con­
cerning goods which have been 
exported for the sole purpose of being 
reimported in order to circumvent a 
national rule do not constitute meas­
ures having equivalent effect to a 
quantitative restriction on imports 
within the meaning of Article 28 EC, 
the same must be true in relation to the 
export of goods followed by their 
reimport for the purpose of avoiding 
the application of measures adopted 
under national competition law, such 
as a prohibition on a dairy cooperative 
in a powerful position on the market 
against entering into contracts for pro­
cessing milk on its own behalf. 
Secondly, Article 29 EC concerns 
national measures which have as their 
specific object or effect the restriction 
of patterns of exports and thereby the 
establishment of a difference in treat­
ment between the domestic trade of a 
Member State and its export trade, in 
such a way as to provide a particular 
advantage for national production or 
for the domestic market of the State in 
question. However, that is not the case 
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MILK MARQUE AND NATIONAL FARMERS' UNION 
with regard to measures which come 
within national competition policy, are 
designed to limit anti-competitive prac­
tices engaged in by just one agricultural 
cooperative and apply indistinctly to 
processing contracts entered into with 
undertakings established in a Member 
State and those entered into with 
undertakings established in other 
Member States. 
(see paras 113-116, 118-120, 
operative part 3) 
4. Article 12 EC and the second subpara­
graph of Article 34(2) EC do not 
preclude the adoption of measures such 
as a prohibition on entering into 
contracts for the processing of milk 
on its own behalf imposed on a dairy 
cooperative which enjoys market 
power and exploits that position in a 
manner contrary to the public interest, 
even though large vertically-integrated 
dairy cooperatives are permitted to 
operate in other Member States. 
First, whilst it is true that Article 12 EC 
prohibits every Member State from 
applying its competition law differently 
on grounds of the nationality of the 
parties concerned, the fact remains that 
Article 12 EC is not concerned with 
any disparities in treatment which may 
result, for persons and undertakings 
subject to the jurisdiction of the Com­
munity, from divergences existing 
between the laws of the various 
Member States, so long as the latter 
affect all persons subject to them, in 
accordance with objective criteria and 
without regard to their nationality, the 
mere fact that there are vertically-inte­
grated cooperatives in other Member 
States is not sufficient to establish that 
the adoption of those measures 
amounts to discrimination on grounds 
of nationality. 
Secondly, the second subparagraph of 
Article 34(2) EC, which prohibits all 
discrimination in the context of the 
common agricultural policy, is merely 
a specific expression of the general 
principle of equal treatment, which 
requires that comparable situations 
must not be treated differently and 
different situations must not be treated 
alike unless such treatment is objec­
tively justified. 
(see paras 124-126, 128, 
operative part 4) 
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