Opinion of the Advocate General — ECLI:EU:C:2017:281
Date: 2017-04-06
Language of the case: French
Subject matter: Agriculture and Fisheries;Competition
Procedure: Reference for a preliminary ruling
Origin: France

Summary — Judgment of the Court (Grand Chamber), 14 November 2017 1. Agriculture — Common agricultural policy — Priority over the objectives of the Treaty in the field of competition — Discretion of the legislature as regards the application of competition rules — Practices excluded from the scope of Articles 101 TFEU and 102 TFEU (Arts 39 TFEU, 42 TFEU, 43(2) TFEU, 101(1) TFEU and 102 TFEU) 2. Agriculture — Common organisation of the markets — Fruit and vegetables — Producer organisations — Whether practices escape competition rules — Condition — Whether necessity for the achievement of one or more of the objectives of the common agricultural policy (Art. 101(1) TFEU; Council Regulations No 2200/96, Recital 7 and Art. 11(1) and No 1234/2007, as amended by Regulation No 491/2009, Arts 122, first para., 125c, 176 and 176a) 3. Agriculture — Common organisation of the markets — Fruit and vegetables — Producer organisations — Whether practices escape competition rules — Limits — No applicability to practices agreed between a number of producer organisations or applied by an entity not recognised by a Member State (Art. 101(1) TFEU; Council Regulation No 1234/2007, as amended by Regulation No 491/2009, Arts 122, first para., point (c), and 125b(1)(c)) 4. Agriculture — Common organisation of the markets — Fruit and vegetables — Producer organisations — Whether practices escape competition rules — Condition — Necessity for the achievement of one or more of the objectives of the common agricultural policy — Exchanges of strategic information between producers within the same producer organisation or the same association of producer organisations — Lawfulness — Fixing of minimum sale prices within such an organisation or association — Unlawful (Art. 101(1) TFEU; Council Regulations No 2200/96, Recital 16 and Art. 23, and No 1234/2007, as amended by Regulation No 491/2009, Arts 103c(2)(a), 125a(1)(c) and (2) and 125c) 5. Agriculture — Common organisation of the markets — Fruit and vegetables — Producer organisations — Whether practices escape competition rules — Limits — Applicability to practices relating to the collective fixing of minimum sale prices, a concertation on quantities put on the market or exchanges of strategic information — Conditions (Art. 101 TFEU; Council Regulations No 26, Art. 2, No 2200/96, Art. 11(1), No 1184/2006, as amended by Regulation No 1234/2007, Art. 2, No 1182/2007, Art. 3(1), and No 1234/2007, as amended by Regulation No 491/2009, Arts 122, first para., 175 and 176) 1. Article 42 TFEU states that the provisions of the chapter relating to the rules on competition apply to the production of, and trade in, agricultural products only to the extent determined by the European Parliament and the Council of the European Union within the framework of Article 43(2) TFEU and in accordance with the procedure laid down therein, account being taken of the objectives set out in Article 39 TFEU. In that regard, Article 43(2) TFEU provides that the Parliament and the Council are to adopt, inter alia, the provisions necessary for the pursuit of the objectives of the common agricultural policy. Accordingly, in pursuit of the objectives of introducing a common agricultural policy and establishing a system of undistorted competition, Article 42 TFEU recognises that the common agricultural policy takes precedence over the objectives of the Treaty in the field of competition and also recognises the EU legislature’s power to decide to what extent the rules on competition are to be applied in the agricultural sector (see, to that effect, judgments of 5 October 1994, Germany v Council, C‑280/93, EU:C:1994:367, paragraph 61, and of 12 December 2002, France v Commission, C‑456/00, EU:C:2002:753, paragraph 33). It follows, as stated by the Advocate General in points 51 and 56 of his Opinion, that the EU legislature’s interventions in that respect, rather than being aimed at establishing derogations or justifications for prohibiting the practices referred to in Article 101(1) and Article 102 TFEU, seek to exclude from the scope of those provisions practices which, if they were to take effect in a sector other than that of the common agricultural policy, would come under those provisions. (see paras 36-38) 2. It should be noted that, under the first paragraph of Article 122 of Regulation No 1234/2007, the provision succeeding Article 11(1) of Regulation No 2200/96, and under Article 125c of Regulation No 1234/2007, a PO or an APO intervening on the fruit and vegetables sector is responsible for ensuring that production is planned and adjusted to demand, particularly in terms of quality and quantity, concentrating supply and placing on the market the products produced by its members, and also, optimising production costs and stabilising producer prices. A PO or an APO may, in order to achieve the objectives referred to in those provisions, have recourse to means different from those which govern normal market operations and, in particular, to certain forms of coordination and concertation between agricultural producers. Therefore, and unless POs and APOs are to be deprived of the means to achieve the objectives assigned to them under the common market organisation in which they are involved — and in which, as recalled in recital 7 of Regulation No 2200/96, they are the basic elements — and, accordingly, unless the effectiveness of the regulations establishing a common organisation of the markets in the fruit and vegetables sector is to be called into question, the practices of those entities which are necessary in order to achieve one or more of those objectives must escape, inter alia, the prohibition of agreements, decisions and concerted practices laid down in Article 101(1) TFEU. It follows that, in that sector, the cases in which Article 101(1) TFEU does not apply are not limited only to those practices referred to in Articles 176 and 176a of Regulation No 1234/2007, but extend also to the practices mentioned in the previous paragraph. (see paras 42-45) 3. It follows that, for EU competition rules to be inapplicable on the basis that the practice in question is necessary in order to achieve one or more of the objectives of the common organisation of the market concerned, that practice must have been implemented by an entity that is actually entitled to do so under the rules governing the common organisation of that market, and, therefore, has been recognised by a Member State. A practice adopted within an entity not recognised by a Member State in pursuance of one of those objectives cannot therefore escape the prohibition of the practices referred to in Article 101(1) TFEU. Concerning the practices applied by a PO or an APO, it is important to note that such practices must remain within a single PO or APO. Indeed, in accordance with, inter alia, point (c) of the first paragraph of Article 122 and Article 125b(1)(c) of Regulation No 1234/2007, the responsibilities for production planning, concentrating supply and placing on the market, optimising production costs and stabilising producer prices, which may be assigned to a PO or an APO under the rules applicable to the common organisation of the market concerned, may relate solely to the production and marketing of the products of the members of only the PO or APO in question. Accordingly, they can justify certain forms of coordination or concertation only between producers that are members of the same PO or APO recognised by a Member State. Accordingly, agreements or concerted practices that are not agreed within a PO or an APO, but are agreed between POs or APOs, go beyond what is necessary in order to fulfil those responsibilities. (see paras 53, 54, 56-58) 4. As regards the objectives mentioned in paragraphs 42 and 61 above, it should be observed that the objectives of ensuring that production is planned and adjusted to demand, of concentrating supply and placing on the market the products produced by members, and of stabilising producer prices, necessarily entail the exchange of strategic information between individual producers that are members of the PO or APO concerned, the purpose of which is, inter alia, to acquire knowledge of the characteristics of the products produced by the members. Therefore, exchanges of strategic information between producers within the same PO or APO are liable to be proportionate if they are in fact made for the purposes of one or more of the objectives assigned to that PO or APO and are limited only to the information that is strictly necessary for those purposes. The objective of stabilising producer prices to ensure a fair standard of living for the agricultural community may also justify coordination between agricultural producers in the same PO or APO with regard to the quantities of agricultural products put on the market, as is clear from recital 16 of Regulation No 2200/96 and the intervention arrangements whose operating principle was laid down in Article 23 of that regulation and amended by Article 103c(2)(a) of Regulation No 1234/2007. In addition, the objective of concentrating supply to strengthen the position of producers in the face of ever greater concentration of demand may also justify a certain form of coordination of the pricing policy of individual agricultural producers within a PO or an APO. That applies in particular where the PO or APO concerned has been assigned by its members the responsibility for marketing all their products, as required, save in special cases, by Article 125a(1)(c) of Regulation No 1234/2007, read in conjunction with Article 125c thereof. By contrast, the collective fixing of minimum sale prices within a PO or an APO may not be considered, under the practices necessary in order to fulfil the responsibilities that have been assigned to them under the common organisation of the market concerned, to be proportionate to the objectives of stabilising prices and concentrating supply where it does not allow producers selling their own products themselves in the cases referred to in Article 125a(2) of Regulation No 1234/2007 to sell at a price below those minimum prices, since it has the effect of reducing the already low level of competition in the markets for agricultural products as a result, in particular, of the possibility given to producers to form POs and APOs in order to concentrate their supply. (see paras 63-66) 5. Article 101 TFEU, read in conjunction with Article 2 of Regulation No 26 of the Council of 4 April 1962 applying certain rules of competition to production of and trade in agricultural products, Article 11(1) of Council Regulation (EC) No 2200/96 of 28 October 1996 on the common organisation of the market in fruit and vegetables, Article 2 of Council Regulation (EC) No 1184/2006 of 24 July 2006 applying certain rules of competition to the production of, and trade in, agricultural products, as amended by Council Regulation (EC) No 1234/2007 of 22 October 2007, Article 3(1) of Council Regulation (EC) No 1182/2007 of 26 September 2007 laying down specific rules as regards the fruit and vegetable sector, amending Directives 2001/112/EC and 2001/113/EC and Regulations (EEC) No 827/68, (EC) No 2200/96, (EC) No 2201/96, (EC) No 2826/2000, (EC) No 1782/2003 and (EC) No 318/2006 and repealing Regulation (EC) No 2202/96, as well as the first paragraph of Article 122 and Articles 175 and 176 of Regulation No 1234/2007, as amended by Council Regulation (EC) No 491/2009 of 25 May 2009, must be interpreted as meaning that: – practices that relate to the collective fixing of minimum sale prices, a concertation on quantities put on the market or exchanges of strategic information, such as those at issue in the main proceedings, cannot escape the prohibition of the agreements, decisions and concerted practices laid down in Article 101(1) TFEU if they are agreed between a number of producer organisations or associations of producer organisations, or are agreed with entities not recognised by a Member State in order to achieve an objective defined by the EU legislature under the common organisation of the market concerned, such as professional organisations not having the status of producer organisation, association of producer organisation or interbranch organisation, within the meaning of EU legislation, and – practices that relate to a concertation on prices or quantities put on the market or exchanges of strategic information, such as those at issue in the main proceedings, may escape the prohibition of agreements, decisions and concerted practices laid down in Article 101(1) TFEU if they are agreed between the members of the same producer organisation or the same association of producer organisations recognised by a Member State and are strictly necessary for the pursuit of one or more of the objectives assigned to the producer organisation or association of producer organisations concerned in compliance with EU legislation. (see para. 67, operative part)