62023CJ0557
JUDGMENT OF THE COURT (Third Chamber)
12 September 2024 (
*1
)
(Reference for a preliminary ruling – Common organisation of the markets in agricultural products – Regulation (EU) No 1308/2013 – National legislation laying down regulated prices for certain agricultural products and the obligation to offer for sale a specific quantity of those products – Fines)
In Case C‑557/23,
REQUEST for a preliminary ruling under Article 267 TFEU from the Szegedi Törvényszék (Szeged High Court, Hungary), made by decision of 6 September 2023, received at the Court on the same day, in the proceedings
SPAR Magyarország Kft.
v
Bács-Kiskun Vármegyei Kormányhivatal,
THE COURT (Third Chamber),
composed of K. Jürimäe, President of the Chamber, K. Lenaerts, President of the Court, acting as a Judge of the Third Chamber, N. Piçarra, N. Jääskinen (Rapporteur) and M. Gavalec, Judges,
Advocate General: M. Campos Sánchez-Bordona,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
–
SPAR Magyarország Kft., by G. Báthory, V. Łuszcz and L. Wallacher, ügyvédek,
–
the Hungarian Government, by M.Z. Fehér and R. Kissné Berta and K. Szíjjártó, acting as Agents,
–
the German Government, by J. Möller and N. Scheffel, acting as Agents,
–
the Austrian Government, by A. Posch, J. Schmoll and M. Kopetzki, acting as Agents,
–
the European Commission, by M. Konstantinidis and Zs. Teleki, acting as Agents,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1
This request for a preliminary ruling concerns the interpretation of Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007 (OJ 2013 L 347, p. 671, and corrigendum OJ 2016 L 130, p. 9), as amended by Regulation (EU) 2021/2117 of the European Parliament and of the Council of 2 December 2021 (OJ 2021 L 435, p. 262) (‘the CMO Regulation’).
2
The request has been made in proceedings between SPAR Magyarország Kft. and Bács-Kiskun Vármegyei Kormányhivatal (Office of the regional government of Bács-Kiskun, Hungary; ‘the national authority’), concerning the decision of that authority to impose a fine on SPAR Magyarország on the basis of consumer protection.
Legal context
European Union law
3
Recitals 172, 185 and 189 to the CMO Regulation state:
‘(172)
In view of the specific characteristics of the agricultural sector and its reliance on the good functioning of the entire food supply chain, including the effective application of competition rules in all related sectors throughout the whole food chain, which can be highly concentrated, special attention should be paid to the application of the competition rules laid down in Article 42 TFEU. …
…
(185)
In order to react efficiently and effectively against threats of market disturbance caused by significant price rises or falls on internal or external markets, or other events and circumstances significantly disturbing or threatening to disturb the market, where that situation, or its effects on the market, is likely to continue or deteriorate, the power to adopt certain acts should be delegated to the [European] Commission in respect of the measures necessary to address that market situation, while respecting any obligations resulting from international agreements and provided that any other measures available under this Regulation appear to be insufficient, including measures to extend or modify the scope, duration or other aspects of other measures provided for under this Regulation, or provide for export refunds, or suspend import duties, in whole or in part, including for certain quantities or periods, as necessary.
…
(189)
The Commission should be authorised to adopt the necessary measures to solve specific problems in case of emergency.’
4
Article 1 of that Regulation is worded as follows:
‘1.   This Regulation establishes a common organisation of the markets for agricultural products, which means all the products listed in Annex I to the Treaties with the exception of the fishery and aquaculture products as defined in [European] Union legislative acts on the common organisation of the markets in fishery and aquaculture products.
2.   Agricultural products as defined in paragraph 1 shall be divided into the following sectors as listed in the respective parts of Annex I:
(a)
cereals, Part I;
…
(c)
sugar, Part III;
…
(p)
milk and milk products, Part XVI;
…
(s)
eggs, Part XIX;
(t)
poultrymeat, Part XX;
…
(x)
other products, Part XXIV.’
5
Chapter 1 of Title II of Part II of that regulation includes Section 1, entitled ‘Marketing standards’, which covers Articles 73 to 91 of that regulation.
6
Under Article 73 of the CMO Regulation:
‘Without prejudice to any other provisions applicable to agricultural products, as well as to the provisions adopted in the veterinary, phytosanitary and food sectors to ensure that products comply with hygiene and health standards and to protect animal, plant and human health, this Section lays down the rules concerning marketing standards.’
7
Article 74 of that regulation provides:
‘The products for which marketing standards by sectors or products have been laid down in accordance with this Section may be marketed in the Union only if they conform to those standards.’
8
Article 75 of that regulation states:
‘1.   Marketing standards may apply to one or more of the following sectors and products:
(a)
olive oil and table olives;
(b)
fruit and vegetables;
(c)
processed fruit and vegetable products;
(d)
bananas;
(e)
live plants;
(f)
eggs;
(g)
poultrymeat;
(h)
spreadable fats intended for human consumption;
…
3.   Without prejudice to Article 26 of Regulation (EU) No 1169/2011 of the European Parliament and of the Council [of 25 October 2011 on the provision of food information to consumers, amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council, and repealing Commission Directive 87/250/EEC, Council Directive 90/496/EEC, Commission Directive 1999/10/EC, Directive 2000/13/EC of the European Parliament and of the Council, Commission Directives 2002/67/EC and 2008/5/EC and Commission Regulation (EC) No 608/2004 (OJ 2011 L 304, p. 18)], the marketing standards referred to in paragraph 1 may cover one or more of the following, to be determined on a sectoral or product basis and based on the characteristics of each sector, the need to regulate the placing on the market and the conditions defined in paragraph 5 of this Article:
(a)
the technical definitions, designation and sales descriptions for sectors other than those set out in Article 78;
(b)
classification criteria such as grading into classes, weight, sizing, age and category;
(c)
the species, plant variety or animal race or the commercial type;
(d)
the presentation, labelling linked to obligatory marketing standards, packaging, rules to be applied in relation to packing centres, marking, year of harvesting and use of specific terms, without prejudice to Articles 92 to 123;
(e)
criteria such as appearance, consistency, conformation, product characteristics and the percentage of water content;
(f)
specific substances used in production, or components or constituents, including their quantitative content, purity and identification;
(g)
the type of farming and production method including oenological practices and advanced systems of sustainable production;
(h)
coupage of must and wine including definitions thereof, blending and restrictions thereof;
(i)
the frequency of collection, delivery, preservation and handling, the conservation method and temperature, storage and transport;
(j)
the place of farming and/or origin, excluding poultrymeat and spreadable fats;
(k)
restrictions as regards the use of certain substances and practices;
(l)
specific use;
(m)
the conditions governing the disposal, the holding, circulation and use of products not in conformity with the marketing standards adopted pursuant to paragraph 1 or with the definitions, designations and sales descriptions as referred to in Article 78, as well as the disposal of by-products.
…
5.   The marketing standards by sectors or products adopted pursuant to paragraph 1 of this Article shall be established without prejudice to Articles 84 to 88 and Annex IX and shall take into account:
(a)
the specific characteristics of the product concerned;
(b)
the need to ensure the conditions to facilitate the placing of the products on the market;
(c)
the interest of producers to communicate the product and farming characteristics, and the interest of consumers to receive adequate and transparent product information, including the place of farming to be determined on a case-by-case basis at the appropriate geographical level, after conducting an evaluation, in particular, of the costs and administrative burdens for operators and the benefits offered to producers and the end consumer;
(d)
the methods available for determining physical, chemical and organoleptic characteristics of the products;
(e)
the standard recommendations adopted by international bodies;
(f)
the need to preserve the natural and essential characteristics of products and to avoid causing a substantial change in the composition of the product concerned.
…’
9
Article 83(5) of that regulation provides:
‘Member States may only adopt or maintain additional national provisions on products covered by a Union marketing standard if those provisions comply with Union law, in particular the principle of free movement of goods, and subject to Directive 98/34/EC of the European Parliament and of the Council [of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services (OJ 1998 L 204, p. 37)].’
10
Under Article 90a(3) of the CMO Regulation:
‘Member States shall carry out checks, based on a risk analysis, in order to verify whether the products referred to in Article 1(2) conform to the rules laid down in this Section and shall apply administrative penalties as appropriate.’
11
Article 219 of that regulation, entitled ‘Measures against market disturbance’, provides, in paragraph 1:
‘In order to react efficiently and effectively against threats of market disturbance caused by significant price rises or falls on internal or external markets or other events and circumstances significantly disturbing or threatening to disturb the market concerned, where that situation, or its effects on the market, is likely to continue or deteriorate, the Commission shall be empowered to adopt delegated acts in accordance with Article 227 to take the measures necessary to address that market situation, while respecting any obligations resulting from international agreements concluded in accordance with the TFEU and provided that any other measures available under this Regulation appear to be insufficient or not suitable.
Where, in the cases of threats of market disturbances referred to in the first subparagraph of this paragraph, imperative grounds of urgency so require, the procedure provided for in Article 228 shall apply to delegated acts adopted pursuant to the first subparagraph of this paragraph.
…’
12
Article 221 of that regulation is entitled ‘Measures to resolve specific problems’. Paragraphs 1 and 2 thereof provide:
‘1.   The Commission shall adopt implementing acts taking necessary and justifiable emergency measures to resolve specific problems. …
2.   To resolve specific problems, and on duly justified imperative grounds of urgency, relating to situations likely to cause a rapid deterioration of production and market conditions which could be difficult to address if the adoption of measures were delayed, the Commission shall adopt immediately applicable implementing acts …’
Hungarian law
13
The az árak megállapításáról szóló 1990. évi LXXXVII. törvény veszélyhelyzet ideje alatt történő eltérő alkalmazásáról szóló 6/2022 (I. 14.) Korm. rendelet (Government Decree 6/2022 (I. 14.) establishing for emergency purposes exceptions to the application of Law No LXXXVII of 1990 on price formation, of 14 January 2022) (Magyar Közlöny 2022/5; ‘the contested Government Decree’), entered into force on 1 February 2022 for an initial period of three months. Due to successive extensions, it remained in force until 31 July 2023. It was also amended twice with effect from 10 November 2022 and 12 January 2023.
14
The provisions of the contested Government Decree, which are applicable to the dispute in the main proceedings, are set out in paragraphs 15 to 20 below and correspond to those which were in force between 12 January 2023 and 31 July 2023.
15
Under Paragraph 1 of the contested Government Decree:
‘(1)   In order to prevent the adverse effects of market dysfunctions, the products referred to in Annex 1 shall be added, for the period from 1 February 2022 to 31 July 2023, to the list of products at regulated prices set out in point I(A) of the Annex to the az árak megállapításáról szóló 1990. évi LXXXVII. törvény [(Law No LXXXVII of 1990 on price formation)].
(2)   The gross retail price applicable to the products listed in Annex 1 in a shop or shopping centre and in mail-order sales may not be higher than the gross retail price applied on 15 October 2021 by a trader selling everyday consumer goods within the meaning of the a kereskedelemről 2005. évi CLXIV. Törvény [(Law No CLXIV of 2005 on commerce)] (“the trader”).
…’
16
Paragraph 1/A of the contested Government Decree provided:
‘(1)   For the period between the entry into force of the az árak megállapításáról szóló 1990. évi LXXXVII. törvény veszélyhelyzet ideje alatt történő eltérő alkalmazásáról szóló 6/2022 (I. 14.) Korm. rendelet módosításáról szóló 451/2022 (XI. 9.) Korm. Rendelet [Government Decree 451/2022 (XI. 9.), amending Government Decree 6/2022 (I.14.) introducing temporary derogations from the application, in emergency situations, of Law No LXXXVII of 1990 on price formation], and 31 July 2023, the products referred to in Annex 2 are added to the products at regulated prices set out in Paragraph 1(1).
(2)   The gross retail price for the products listed in Annex 2 in a shop or shopping centre and in mail-order sales may not be higher than the gross retail price applied by the trader on 30 September 2022.
(3)   Instead of the gross retail selling price applied on 30 September 2022,
(a)
if the gross retail selling price applied on 30 September 2022 is not available, the last gross retail selling price applied by the trader before 30 September 2022 shall apply,
(b)
if the gross retail selling price referred to in point (a) cannot be established, the average consumer price published on the website of the Központi Statisztikai Hivatal [(Central Statistics Office, Hungary)] for September 2022 shall apply, provided it is available.
…
(6)   No other costs or charges may be charged when prices are set in accordance with subparagraph 2.’
17
Under Paragraph 2 of the contested Government Decree:
‘(1)   The trader is required:
(a)
to market the products listed in Annex 1 that it marketed on 15 October 2021,
(b)
in this connection, to offer for sale on a daily basis at least the average daily quantity of the abovementioned productions which it held in stock on the corresponding day of the week in 2021; and
(c)
to guarantee stocks of the abovementioned products – if necessary, in the volume of up to twice the quantity referred to in point (b) – and ensure that these are continuously made available to customers in quantities sufficient to meet their needs, and to avoid shortages
(2)   The trader is obliged to display the information relating to Paragraph 1(1) in the form and with the content to be specified by the Minister for General Policy Coordination, in a clearly visible place in the shop and, in the case of mail-order sales, to publish it on the home page.’
18
Paragraph 2/A of the contested Government Decree provided:
‘(1)   The trader is obliged:
(a)
to market the products listed in Annex 2 that it marketed on 30 September 2022,
(b)
in this connection, to offer for sale on a daily basis, on the corresponding day of the week, at least the average daily quantity of the abovementioned products which it held in stock in 2022; and
(c)
to guarantee stocks of the abovementioned products – if necessary, in the volume of up to twice the quantity referred to in point (b) – and ensure that these are continuously made available to customers in quantities sufficient to meet their needs, and to avoid shortages.
(2)   The trader is obliged to display the information relating to Paragraph 1/A(1) in the form and with the content to be specified by the Minister for General Policy Coordination, in a clearly visible place in the shop and, in the case of mail-order sales, to publish it on the home page.’
19
Paragraph 3(1) to (4) of the contested Government Decree stated:
‘(1)   In non-contentious administrative cases falling within the scope of Paragraph 16 of [Law No LXXXVII of 1990 on price formation] for the purpose of implementing the provisions of this Government Decree, the General Consumer Protection Authority designated by the Government Decree on the designation of a General Consumer Protection Authority (“the Authority”) shall act of its own motion, with the participation, having regard to Paragraph 1(5) and Paragraph 1/A(5), of the Nemzeti Élelmiszerlánc-biztonsági Hivatal [(National Food Chain Safety Authority, Hungary)].
(2)   By way of derogation from Paragraph 16 of [Law No LXXXVII of 1990 on price formation] and Paragraph 38/B of a Magyarország gazdasági stabilitásáról szóló 2011. évi CXCIV. törvény [(Law No CXCIV of 2011 on the economic stability of Hungary)], the authority which, during its inspection, becomes aware of an infringement of the obligations referred to in Paragraphs 1 and 2,
(a)
shall impose a fine of between 50000 Hungarian forint [(HUF) (approximately EUR 131)] and 3000000 [HUF (approximately EUR 7849)], or
(b)
may, by decision, order the trader to cease its activities temporarily for a period which may not be less than one day or more than six months.
(3)   The penalty provided for in subparagraph 2(a) may be applied on several occasions in the case of infringements discovered during several consecutive inspections, even if that is the same day and in the same shop, so that, when a new fine is imposed, it is at least twice as high as the fine imposed for the previous infringement, without account being taken of the provision relating to the maximum amount of the fine.
(4)   In the event of a repeated infringement, the penalties provided for in subparagraph 2(a) and (b) may be applied jointly.’
20
Annex 1 to the contested Government Decree provided:
‘Products at a regulated price
1.
granulated sugar (white sugar)
2.
T55 white wheat flour
3.
refined sunflower oil
4.
domestic porcine ham (including with bone in, with rind, fillets, cut, sliced or ground, sold pre-packaged or not, fresh, chilled or frozen)
5.
chicken fillets, carcass – back, rump and wing tip, together or separated (including products with bones in, skin, fillets, cut, sliced or ground, sold pre-packaged or not, fresh, chilled or frozen)
6.
cow’s milk, thermally treated with ultra-high temperature, containing 2.8% fat by mass’.
21
Annex 2 to the contested Government Decree stated:
‘Products at a regulated price
1.
Fresh eggs, in shell, of the Gallus domesticus species (other than fertilised hatching eggs)
2.
Table potatoes, excluding new potatoes’.
The dispute in the main proceedings and the questions referred for a preliminary ruling
22
It is apparent from the order for reference that, in order to prevent the adverse effects of market dysfunctions in the context of the emergency situation linked to the COVID-19 pandemic, the Hungarian Government, at the beginning of 2022, adopted the contested Government Decree under which certain basic agricultural products, listed in Annex 1 thereto, namely certain types of sugar, wheat flour, sunflower oil, pigmeat and poultrymeat and milk, were sold at regulated prices. In accordance with the contested Government Decree, the gross retail selling price of those products applied by traders selling everyday consumer goods could not be higher than the gross retail selling price applied on 15 October 2021. In addition, if those traders marketed the same products on that date, they were obliged to market them, in a daily quantity corresponding at least to the average daily quantity offered for sale on the corresponding day of the week of 2021.
23
As a result of the war in Ukraine, the Hungarian Government amended the contested Government Decree such that, with effect from 10 November 2022, the reference quantity to be taken into account was no longer the average daily quantity offered for sale in 2021, but the average daily quantity which the trader concerned had in stock on the corresponding day of the week during that year.
24
With effect from the same date, the Hungarian Government also extended the application of the regulated prices to two other products, namely eggs and potatoes. The traders selling those products were required to market them in quantities corresponding to the average daily quantities which they had in stock on the corresponding day of the week in 2022, and the price of those products could not be higher than that applied on 30 September 2022. The contested Government Decree remained in force until 31 July 2023, having been last amended with effect from 12 January 2023.
25
Following a check carried out by the national authority, on 1 February 2023, in one of the SPAR Magyarország shops in Hungary, that authority found that, for five of the agricultural products covered by the contested Government Decree, the average daily quantities offered for sale were lower than the average daily quantities in stock on the corresponding day of the week in 2021 or 2022. By decision of 9 May 2023, that authority found that there had been an infringement of the provisions of the contested Government Decree and imposed a fine on SPAR Magyarország on the basis of consumer protection. In determining the amount of the fine, that authority took into account, inter alia, the irreversible nature of the damage caused by the infringement; the large number of consumers affected by that infringement given the location of the store in question; the duration of the infringement; the repetition and frequency of the infringing conduct; the seriousness of that infringement in the light of the importance of SPAR Magyarország and the legal obligations allegedly infringed, but also the cooperative attitude of that trader.
26
SPAR Magyarország brought an action for annulment of the national authority’s decision before the referring court, challenging the legal basis of that decision and the amount of the fine imposed on it. In support of its action, it submits that, according to its interpretation, the purpose of the contested Government Decree was not to introduce a universal supply obligation; rather the ultimate objective was that traders should meet consumers’ demand in full. If it did not offer for sale the quantity provided for by that decree, it submits however that it always met all consumer demand and that, on the day on which the check was carried out, it had a closing stock for each of the products concerned. There was, therefore, no infringement.
27
The national authority contends that the action should be dismissed. It points out that an infringement is committed where the trader fails to fulfil its obligation to offer for sale the quantities provided for by the contested Government Decree. There is strict liability in that regard, as confirmed by the Kúria (Supreme Court, Hungary). The Kúria considered, inter alia, that, for the purposes of preventing adverse effects of market dysfunctions and increased consumer protection as an objective relating to the general interest, the provisions at issue provide for strict liability. Thus, the trader is required to guarantee the quantities of goods specified in that decree at the regulated prices.
28
The referring court has doubts as to whether the contested Government Decree at issue, which imposes, on pain of a fine, an obligation to offer for sale a certain quantity of agricultural products falling within the scope of the CMO Regulation, at a regulated retail price, is compatible with EU law, in so far as such legislation undermines the principle of the free formation of selling prices of agricultural products on the basis of fair competition and does not comply with the principle of proportionality.
29
In those circumstances, the Szegedi Törvényszék (Szeged High Court, Hungary) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)
Must Article 83(5) of [the CMO Regulation] be interpreted as precluding a national measure such as that at issue in the main proceedings, which, on grounds of emergency, imposes on traders an obligation to offer for sale a number of agricultural products falling within the scope of the CMO Regulation at an authorised fixed price and in quantities determined not on the basis of the average daily quantities marketed by the trader in the reference year, but, irrespective thereof, on the basis of the average daily quantities which the trader held in stock in the reference year?
(2)
Must Article 90a(3) of the CMO Regulation be interpreted as precluding a national measure such as that at issue in the main proceedings, which provides for the mandatory imposition of a fine even in the case where the trader has, on the day on which the check is carried out, offered for sale a number of agricultural products falling within the scope of the CMO Regulation in quantities equivalent to the average daily quantities which it marketed in the reference year, and in the case where such products are available to consumers?’
Consideration of the questions referred
30
As a preliminary point, it is necessary to examine the argument, set out in the written observations of the Austrian Government and the Commission, that the provisions referred to by the referring court, namely Article 83(5) and Article 90a(3) of the CMO Regulation, do not apply to most of the products concerned by the contested Government Decree or to the requirements it lays down.
31
Under Article 83(5) of the CMO Regulation, Member States may adopt or maintain additional national provisions for products covered by an EU marketing standard if those provisions comply with EU law, in particular the principle of free movement of goods. Article 90a(3) of that regulation lays down an obligation for Member States to carry out checks on the rules governing the marketing of those products and to impose penalties in the case of non-compliance of those products with those rules. Since those two provisions fall within Section 1 of Chapter I of Title II of Part II of that regulation, relating to marketing standards, they are intended to apply only where such standards relate to the matters listed in Article 75(3) of that regulation.
32
First, the fixing of a maximum price for certain products and the obligation to offer for sale a specific quantity of those products do not fall within the specific matters referred to in Article 75(3) of the CMO Regulation or the particular characteristics referred to in paragraph 5 of that article. Secondly, it is apparent from paragraph 1 of that article that, of the eight products covered by the contested Government Decree, only eggs and poultrymeat may be the subject of a marketing standard. In that regard, neither Commission Regulation (EC) No 589/2008 of 23 June 2008 laying down detailed rules for implementing Council Regulation (EC) No 1234/2007 as regards the marketing standards for eggs (OJ 2008 L 163, p. 6) nor Commission Regulation (EC) No 543/2008 of 16 June 2008 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 as regards the marketing standards for poultrymeat (OJ 2008 L 157, p. 46) contains marketing rules relating (i) to the fixing of a maximum price and (ii) to the obligation on traders to offer for sale a specific quantity of those two products. Therefore, there is nothing to support the conclusion that, as regards those two products, there is a marketing standard justifying the application of the provisions referred to in paragraph 30 above.
33
It must therefore be held that the provisions referred to in the referring court’s questions are not relevant, as such, for the purpose of assessing whether the contested Government Decree complies with the CMO Regulation. However, in view of the fact that the Court has a duty to interpret all provisions of EU law which national courts need in order to decide the actions pending before them, even if those provisions are not expressly indicated in the questions referred to the Court by those courts (judgment of 22 February 2024, Deutsche Rentenversicherung Bund, C‑283/21, EU:C:2024:144, paragraph 39 and the case-law cited), that finding does not prevent an examination of the compatibility of that decree with EU law and, more specifically, with the provisions of that regulation, where that decree concerns products which fall within the scope of that regulation.
34
In those circumstances, those questions, which it is appropriate to examine together, should be understood as asking, in essence, whether the CMO Regulation must be interpreted as precluding a national measure which, on grounds of emergency, first, requires a trader to offer for sale certain agricultural products falling within the scope of that regulation, at a regulated price and in an average daily quantity recorded in the trader’s stock during a reference year, and, secondly, provides for the mandatory imposition of a fine in the event of infringement of the obligations laid down by that national measure.
35
In that regard, it must be recalled that, under the Common Agricultural Policy (CAP), which, in accordance with Article 4(2)(d) TFEU, is based on a competence shared between the EU and the Member States, the Member States have legislative powers which allow them, as is apparent from Article 2(2) TFEU, to exercise their competence to the extent that the European Union has not exercised its competence (judgment of 11 March 2021, Commission v Hungary (Profit margins), C‑400/19, EU:C:2021:194, paragraph 34 and the case-law cited).
36
According to settled case-law, where there is a regulation on the common market organisation (‘the CMO’) in a given sector, the Member States are nevertheless under an obligation to refrain from taking any measures which might undermine or create exceptions to it. Rules which interfere with the proper functioning of a CMO are also incompatible with such common organisation, even if the matter in question has not been exhaustively regulated by it (judgment of 11 March 2021, Commission v Hungary (Profit margins), C‑400/19, EU:C:2021:194, paragraph 35 and the case-law cited).
37
In the absence of a pricing mechanism, the free formation of selling prices on the basis of fair competition is a component of the CMO Regulation and constitutes the expression of the principle of free movement of goods in conditions of effective competition (see, to that effect, judgment of 11 March 2021, Commission v Hungary (Profit margins), C‑400/19, EU:C:2021:194, paragraph 36 and the case-law cited).
38
However, the establishment of a CMO does not prevent the Member States from applying national rules intended to attain an objective relating to the general interest other than those covered by that CMO, even if those rules are likely to have an effect on the functioning of the common market in the sector concerned, provided that those rules are appropriate for securing attainment of the objective pursued and do not go beyond what is necessary for attaining that objective (judgment of 11 March 2021, Commission v Hungary (Profit margins), C‑400/19, EU:C:2021:194, paragraphs 37 and the case-law cited).
39
In the first place, as is apparent both from the findings of the referring court and from the written observations of SPAR Magyarország, the Austrian Government and the Commission, the contested Government Decree undermines fair competition, which, as noted in paragraph 37 above, is a component of the CMO Regulation. The obligation to offer for sale certain agricultural products at regulated prices and in specific quantities prevents traders from freely setting their selling prices and the quantities they wish to sell on the basis of economic considerations based on fair competition.
40
In the second place, in accordance with the case-law referred to in paragraph 38 above, the contested Government Decree must be justified by the pursuit of an objective relating to the general interest other than those covered by the CMO.
41
In the present case, according to the Hungarian Government, that government decree pursued a twofold objective, namely combating inflation and the protection of disadvantaged consumers by means of a guaranteed supply of basic foodstuffs at affordable prices.
42
In that regard, it is true that the Commission is, under certain conditions, empowered, under Articles 219 and 221 of the CMO Regulation, to take the measures necessary to respond, first, to threats of market disturbances caused by significant price rises or falls on internal or external markets or by other events and circumstances, including in emergency situations, and, secondly, to specific problems in emergency situations. However, in view of the specific situations which they govern, those provisions cannot be interpreted broadly, to such an extent as to consider that the CMO Regulation as a whole covers the objectives relating to the general interest pursued by the contested Government Decree, namely combating inflation and the protection of disadvantaged consumers by means of a guaranteed supply of basic foodstuffs at affordable prices.
43
In those circumstances, a Member State may invoke the objective of combating inflation or the protection of disadvantaged consumers in order to justify measures, such as those contained in the contested Government Decree, which undermine the system of formation of prices in conditions of effective competition, on which the CMO Regulation is based.
44
Measures fixing a maximum price and the obligation to offer for sale a specific quantity of products, such as those provided for by the contested Government Decree, must, however, satisfy the conditions laid down in the case-law of the Court as regards proportionality, that is to say, they must be appropriate for attaining the objective pursued and must not go beyond what is necessary to attain that objective. In that regard, the issue of proportionality must be examined by taking into consideration the objectives of the CAP and the proper functioning of the CMO, which necessitates that those objectives be weighed against those pursued by the contested Government Decree (see, by analogy, judgment of 23 December 2015, Scotch Whisky Association and Others, C‑333/14, EU:C:2015:845, paragraph 28).
45
In addition, as regards the question whether the measure at issue is appropriate for securing the achievement of the objectives pursued, it should be noted that, in accordance with settled case-law, national legislation is appropriate for securing attainment of the objective pursued only if it genuinely reflects a concern to secure the attainment of that objective in a consistent and systematic manner (judgment of 23 December 2015, Scotch Whisky Association and Others, C‑333/14, EU:C:2015:845, paragraph 37).
46
In the present case, it must be held that, even if the contested Government Decree were appropriate for protecting disadvantaged consumers by means of a guaranteed supply of basic foodstuffs at affordable prices and combating inflation, that decree goes beyond what is necessary to attain those objectives (see, by analogy, judgment of 11 March 2021, Commission v Hungary (Profit margins), C‑400/19, EU:C:2021:194, paragraph 37 and the case-law cited).
47
As the German Government and the Commission submitted, in essence, in their written observations, the undermining of free access by traders to the market in conditions of effective competition, free access ensured by the CMO Regulation, and, consequently, the disturbance of the entire supply chain caused by the regulated prices imposed on those traders and the obligation imposed on them to offer for sale the quantities required of the products concerned go beyond what is necessary to attain the objectives pursued by that decree.
48
In the light of all the foregoing, the answer to the questions referred is that the CMO Regulation must be interpreted as precluding a national measure which, on grounds of emergency, first, requires a trader to offer for sale certain agricultural products falling within the scope of that regulation, at a regulated price and in an average daily quantity recorded in the trader’s stock during a reference year, and, secondly, provides for the mandatory imposition of a fine in the event of infringement of the obligations laid down by that national measure.
Costs
49
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Third Chamber) hereby rules:
Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007, as amended by Regulation (EU) 2021/2117 of the European Parliament and of the Council of 2 December 2021,
must be interpreted as precluding a national measure which, on grounds of emergency, first, requires a trader to offer for sale certain agricultural products falling within the scope of that regulation, at a regulated price and in an average daily quantity recorded in the trader’s stock, and, secondly, provides for the mandatory imposition of a fine in the event of infringement of the obligations laid down by that national measure.
[Signatures]
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*1
)	Language of the case: Hungarian.