61980CJ0095_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 95/80
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE TRIBUNAL D ' INSTANCE ( DISTRICT COURT ) OF THE FIRST ARRONDISSEMENT OF PARIS FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
SOCIETE HAVRAISE DERVIEU-DELAHAIS SA, HAVING ITS REGISTERED OFFICE AT LE HAVRE,
EUROTRANSIT SA, HAVING ITS REGISTERED OFFICE IN STRASBOURG,
TRANSPORTS LACROIX SA, HAVING ITS REGISTERED OFFICE AT LONS-LE-SAUNIER,
SOCIETE AUXILIAIRE DE L ' AGRICULTURE ET DE L ' INDUSTRIE DU SUD-OUEST DE LA FRANCE ( ' ' SAISOF ' ' ) SA, HAVING ITS REGISTERED OFFICE IN PARIS,
THE VERNIERES PARTNERS : GABRIELLE PAULA MARIE VERNIERES ; CLAUDE CLEMENCE ODETTE RICARD, NEE VERNIERES ; MARIE CELINE ODETTE HUGOUNENC, NEE VERNIERES, AND MARTHE CLEMENCE LEONTINE VERNIERES, ALL RESIDING IN ROQUEFORT AND JOINTLY CARRYING ON BUSINESS THERE UNDER THE STYLE OF ' ' VERNIERES FRERES ' ',
GABRIEL COULET SA, HAVING ITS REGISTERED OFFICE IN ROQUEFORT,
JACQUES LOUIS MAURICE MARIE CARLES, CARRYING ON BUSINESS IN ROQUEFORT UNDER THE STYLE OF ' ' LE CHAPERON ROUGE ' ',
BENJAMIN ADRIEN JOSEPH CROUZAT, CARRYING ON BUSINESS IN ROQUEFORT UNDER THE STYLE OF ' ' ETABLISSEMENTS A . CROUZAT ET CIE . ' ',
ROQUEFORT MARIA GRIMAL SA, HAVING ITS REGISTERED OFFICE IN ROQUEFORT AND CARRYING ON BUSINESS UNDER ITS OWN NAME AND UNDER THE STYLE OF ' ' SOCIETE AGRICOLE DE ROQUEFORT ' ', AND
SOCIETE ANONYME DES CAVES ET DES PRODUCTEURS REUNIS DE ROQUEFORT,
OF THE ONE PART,
AND
DIRECTEUR GENERAL DES DOUANES ET DROITS INDIRECTS ( DIRECTOR-GENERAL OF CUSTOMS AND INDIRECT TAXATION ),
OF THE OTHER PART,
Subject of the case
ON THE INTERPRETATION OF REGULATION NO 974/71 OF THE COUNCIL OF 12 MAY 1971 ON CERTAIN MEASURES OF CONJUNCTURAL POLICY TO BE TAKEN IN AGRICULTURE FOLLOWING THE TEMPORARY WIDENING OF THE MARGINS OF FLUCTUATION FOR THE CURRENCIES OF CERTAIN MEMBER STATES AND SEVERAL IMPLEMENTING REGULATIONS RESPECTING THE LEVYING OF MONETARY COMPENSATORY AMOUNTS ON THE EXPORT OF ROQUEFORT CHEESE,
Grounds
1 BY A JUDGMENT OF 19 FEBRUARY 1980, WHICH WAS RECEIVED AT THE COURT ON 11 MARCH, THE TRIBUNAL D ' INSTANCE ( DISTRICT COURT ) OF THE FIRST ARRONDISSEMENT OF PARIS SUBMITTED FOR A PRELIMINARY RULING PURSUANT TO ARTICLE 177 OF THE EEC TREATY A QUESTION RELATING TO THE VALIDITY OF PROVISIONS IN COMMUNITY REGULATIONS WHICH SUBJECTED EXPORTS OF ROQUEFORT CHEESE FROM FRANCE TO THE LEVYING OF MONETARY COMPENSATORY AMOUNTS - IN PARTICULAR COMMISSION REGULATION NO 652/76 OF 24 MARCH 1976 CHANGING THE MONETARY COMPENSATORY AMOUNTS FOLLOWING CHANGES IN EXCHANGE RATES FOR THE FRENCH FRANC ( OFFICIAL JOURNAL 1976, L 79, P . 4 ).
2 THIS QUESTION HAS BEEN PUT IN THE CONTEXT OF AN ACTION BROUGHT BEFORE THE TRIBUNAL D ' INSTANCE BY SEVERAL COMPANIES AND NATURAL PERSONS WHO ARE PRODUCERS AND EXPORTERS OF ROQUEFORT CHEESE AGAINST THE DIRECTEUR GENERAL DES DOUANES ET DROITS INDIRECTS WITH A VIEW TO OBTAINING REIMBURSEMENT OF MONETARY COMPENSATORY AMOUNTS PAID DURING A PERIOD BETWEEN 1976 AND 1979 .
3 IT SHOULD BE REMEMBERED THAT FOLLOWING A MARKED FALL IN EXCHANGE RATES FOR THE FRENCH FRANC IN THE COURSE OF THE MONTH OF MARCH 1976 AND THE FIXING OF A NEW REPRESENTATIVE RATE FOR THAT CURRENCY THE COMMISSION, BY REGULATION NO 652/76, INTRODUCED A SET OF COMPENSATORY AMOUNTS FOR FRANCE BY WAY OF A SUPPLEMENT TO ANNEX I TO REGULATION NO 572/76 OF 15 MARCH 1976 FIXING THE MONETARY COMPENSATORY AMOUNTS AND CERTAIN RATES FOR THEIR APPLICATION ( OFFICIAL JOURNAL 1976, L 68, P . 5 ).
4 THE LIST OF THOSE AMOUNTS INCLUDES, INTER ALIA, TARIFF SUBHEADING 04.04 C, BLUE-VEINED CHEESE, WHICH EMBRACES ALL THE ' ' BLUE ' '
CHEESES . CONSEQUENTLY, EXPORTS OF ROQUEFORT BORE A COMPENSATORY AMOUNT UNTIL THE COMING INTO FORCE OF COMMISSION REGULATION NO 777/79 OF 20 APRIL 1979 AMENDING CERTAIN MONETARY COMPENSATORY AMOUNTS IN THE MILK AND MILK PRODUCTS SECTOR
( OFFICIAL JOURNAL 1979, L 99, P . 9 ), WHICH, BY INTRODUCING IN REGARD TO TARIFF SUBHEADING 04.04 C THE WORDS ' ' WITH THE EXCEPTION OF ROQUEFORT ' ', HAD THE EFFECT OF GRANTING AN EXEMPTION FOR THAT CHEESE .
5 THE PLAINTIFFS IN THE MAIN PROCEEDINGS CONTEND THAT ROQUEFORT CHEESE WAS WRONGLY INCLUDED, UNDER REGULATION NO 652/76, IN THE SYSTEM OF COMPENSATORY AMOUNTS . IN THEIR VIEW, NONE OF THE CONDITIONS LAID DOWN BY REGULATION NO 974/71 OF 12 MAY 1971 ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1971 ( I ), P . 257 ), WHICH INTRODUCED THE SYSTEM OF COMPENSATORY AMOUNTS, AS AMENDED IN PARTICULAR BY REGULATION NO 2746/72 OF THE COUNCIL OF 19 DECEMBER 1972 ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1972 ( 28-30 DECEMBER ), P . 64 ), WAS SATISFIED . ACCORDING TO THE PLAINTIFFS, ROQUEFORT CHEESE, WHICH IS A PRODUCT OBTAINED FROM SHEEP ' S MILK THROUGH SPECIAL PROCESSES UNIQUE TO ITS MANUFACTURE AND WHICH IS SOLD AT A PRICE SIGNIFICANTLY HIGHER THAN THAT OF OTHER BLUE CHEESES, DOES NOT DISPLAY THE RELATIONSHIP OF DEPENDENCE UPON OTHER MILK PRODUCTS SUBJECT TO INTERVENTION ARRANGEMENTS WHICH IS REQUIRED BY REGULATION NO 974/71 AS A CONDITION OF THE INCLUSION OF A GIVEN PRODUCT IN THE SYSTEM OF COMPENSATORY AMOUNTS . MOREOVER, BY REASON OF THE HIGHLY SPECIAL NATURE OF THIS PRODUCT IT IS CLAIMED THAT THERE DID NOT EXIST ANY DISTURBANCE OR ANY RISK OF DISTURBANCE IN THE SECTOR OF THE MARKET CONCERNED ; ALL THE MORE SO SINCE ROQUEFORT IS PRODUCED ONLY IN A WELL-DEFINED REGION SO THAT IT IS NOT POSSIBLE TO SPEAK OF RECIPROCAL TRADE, IN THE PROPER SENSE OF THE TERM, IN THIS PRODUCT WITHIN THE COMMUNITY . IT IS THEREFORE THE CASE THAT ROQUEFORT IS AND ALWAYS HAS BEEN ' ' WHOLLY INDEPENDENT OF THE COMMUNITY AGRI-MONETARY SYSTEM ' ' . IN THE ABSENCE OF ANY RELATIONSHIP OF DEPENDENCE AND ANY RISK OF DISTURBANCE INCLUSION OF ROQUEFORT IN THE SYSTEM OF COMPENSATORY AMOUNTS THEREFORE CONSTITUTES DISREGARD OF THE ' ' PRINCIPLE OF STRICT NECESSITY ' '
FOR THE INTRODUCTION OF THOSE AMOUNTS WHICH IS LAID DOWN IN REGULATION NO 974/71 .
6 THE PLAINTIFFS '
POSITION HAS BEEN SUPPORTED BY THE FRENCH GOVERNMENT WHICH DRAWS ATTENTION TO THE VERY SPECIAL CHARACTERISTICS OF THE MARKET FOR ROQUEFORT CHEESE, TO THE STRICT CONDITIONS PLACED UPON ITS MANUFACTURE AFFECTING ITS PRICE, WHICH IS SIGNIFICANTLY HIGHER THAN THAT OF OTHER BLUE CHEESES, AND ALSO TO THE EXTREMELY LIMITED VOLUME BOTH OF THE PRODUCTION ITSELF AND OF EXPORTS TO OTHER MEMBER STATES, A SIGNIFICANT PART OF THE PRODUCTION FINDING AN OUTLET ON THE UNITED STATES MARKET . ACCORDING TO THE FRENCH GOVERNMENT, THE CHARACTERISTICS OF THIS SECTOR OF THE MARKET ARE SUCH AS TO PRECLUDE ROQUEFORT ' S BEING SUBJECT TO THE SYSTEM OF MONETARY
COMPENSATORY AMOUNTS . FAR FROM ELIMINATING ANY DISTURBANCE, THE APPLICATION OF THOSE AMOUNTS HAS BEEN THE SOURCE OF DIFFICULTY FOR THE SALE OF THIS HIGH-QUALITY PRODUCT ON THE MARKET IN BOTH THE COMMUNITY AND NON-MEMBER COUNTRIES .
7 UNDER ARTICLE 1 ( 2 ) AND ( 3 ) OF REGULATION NO 974/71 THE INTRODUCTION OF MONETARY COMPENSATORY AMOUNTS IS SUBJECT TO A THREEFOLD CONDITION SO FAR AS PRODUCTS WHICH ARE NOT DIRECTLY COVERED BY INTERVENTION ARRANGEMENTS ARE CONCERNED . THOSE PRODUCTS MUST BE GOVERNED BY THE COMMON ORGANIZATION OF THE MARKET OR BE THE SUBJECT OF A SPECIFIC ARRANGEMENT UNDER ARTICLE 235 OF THE TREATY ; THEIR PRICE MUST BE DEPENDENT ON THAT OF ONE OR MORE PRODUCTS WHICH ARE COVERED BY INTERVENTION ARRANGEMENTS AND DISTURBANCES IN TRADE IN THE AGRICULTURAL PRODUCTS CONCERNED MUST HAVE BEEN DISCERNED OR BE FORESEEABLE .
8 IT IS NOT DISPUTED THAT ROQUEFORT, LIKE OTHER CHEESES COMING UNDER TARIFF HEADING 04.04, FALLS WITHIN THE FRAMEWORK OF THE COMMON ORGANIZATION OF THE MARKET IN MILK . THE FACT THAT THIS PRODUCT IS OBTAINED FROM SHEEP ' S MILK DOES NOT TAKE IT OUTSIDE THAT ORGANIZATION, WHICH ENCOMPASSES ALL CHEESES IRRESPECTIVE OF THE RAW MATERIAL USED FOR THEIR MANUFACTURE - COW ' S MILK, GOAT ' S MILK OR SHEEP ' S MILK . ON THIS MATTER IT IS SUFFICIENT TO REFER TO ARTICLE 1 ( D ) OF REGULATION NO 803/68 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 ) PURSUANT TO WHICH PRODUCTS FALLING WITHIN THE AFOREMENTIONED TARIFF HEADING ARE COVERED BY THAT ORGANIZATION . THE DISPUTE IS ACCORDINGLY ONLY CONCERNED WITH, ON THE ONE HAND, THE QUESTION OF THE DEPENDENCE OF THE PRICE OF ROQUEFORT ON THAT OF MILK PRODUCTS TO WHICH INTERVENTION ARRANGEMENTS APPLY AND, ON THE OTHER HAND, THE QUESTION OF THE EXISTENCE OR THE FORESEEABILITY OF A DISTURBANCE AFFECTING THE SECTOR OF THE MARKET CONCERNED, IN THIS CASE, THE MARKET IN CHEESE AND, MORE PARTICULARLY, THAT OF BLUE-VEINED CHEESES COMING WITHIN TARIFF HEADING 04.04 .
9 THE CONCEPT OF DEPENDENCE TO WHICH REGULATION NO 974/71 MAKES REFERENCE DESCRIBES NOT ONLY THE DIRECT DERIVATION OF THE PRICE OF A GIVEN PRODUCT FROM THAT OF A PRODUCT SUBJECT TO INTERVENTION ARRANGEMENTS BUT ALSO THE DEPENDENCE OF THE PRICE OF A PRODUCT ON PRICES WHICH PREVAIL AS A WHOLE ON THE MARKET CONCERNED AND OF WHICH THE LEVEL IS SUSTAINED BY THE VARIOUS INTERVENTION ARRANGEMENTS . THAT DEPENDENCE MAY RESULT FROM, INTER ALIA, A RELATIONSHIP OF COMPETITION BETWEEN A GIVEN PRODUCT AND OTHER PRODUCTS FORMING PART OF THE SAME ORGANIZATION OF THE MARKET .
10 IN THIS CASE IT MUST BE OBSERVED THAT THE MAJORITY OF CHEESES ARE MANUFACTURED FROM COW ' S MILK AND THE PRICES OF ALL OF THE PRODUCTS FALLING WITHIN THAT GROUP ARE, BECAUSE OF THE COMPETITIVE RELATIONSHIP SUBSISTING BETWEEN THEM, IN A RELATIONSHIP OF DEPENDENCE AS REGARDS A PRODUCT FOR WHICH INTERVENTION ARRANGEMENTS ARE LAID DOWN . THAT RELATIONSHIP OF DEPENDENCE ALSO EXISTS IN THE CASE OF ROQUEFORT WHICH, DESPITE ITS SPECIAL CHARACTERISTICS AND ITS PRICE, IS IN COMPETITION WITH ALL CHEESES AND, MORE PARTICULARLY, WITH THE OTHER BLUE CHEESES . MOREOVER, IT APPEARS FROM STATISTICS, WHICH HAVE NOT BEEN DISPUTED, THAT THE PRICES OF ALL BLUE CHEESES HAVE EXPERIENCED PARALLEL CHANGES, ALBEIT AT DIFFERENT LEVELS, DURING THE PERIOD UNDER CONSIDERATION AND THIS CONFIRMS THE EXISTENCE OF A BOND OF DEPENDENCE BETWEEN THE PRICES OF THOSE CHEESES . THEREFORE, IN LAYING DOWN IN 1976 COMPENSATORY AMOUNTS FOR FRENCH AGRICULTURAL PRODUCTS THE COMMISSION WAS ENTITLED TO ACCEPT THAT FOR ALL CHEESES, INCLUDING BLUE CHEESES, AND AMONGST THEM ROQUEFORT, THERE EXISTED A RELATIONSHIP OF DEPENDENCE WITH PRODUCTS SUBJECT TO INTERVENTION .
11 IN REGARD TO THE ASSESSMENT OF THE EXISTENCE OR THE RISK OF DISTURBANCES AFFECTING THE SECTOR OF THE MARKET IN QUESTION, THAT EXAMINATION MAY NOT BE CONFINED TO THE POSITION OF A GIVEN PRODUCT WITHOUT OTHER COMPETING PRODUCTS '
BEING TAKEN INTO CONSIDERATION AT THE SAME TIME, AND THAT THROUGHOUT THE WHOLE OF THE COMMON MARKET . SINCE THE EXCLUSIVE FUNCTION OF COMPENSATORY AMOUNTS IS TO COMPENSATE FOR THE EFFECT OF MONETARY FLUCTUATIONS WITHOUT CHANGING THE RELATIONSHIPS ESTABLISHED BETWEEN COMPETING PRODUCTS, THE COMMISSION WAS LEGITIMATELY ENTITLED TO CONSIDER, AT LEAST AS A STARTING POINT, THAT ALL CHEESES BELONGING TO THE SAME GROUP DEFINED BY TARIFF SUBHEADING 04.04 C MUST BE SUBJECTED TO THE SAME COMPENSATORY AMOUNT IN ORDER TO AVOID DISTURBANCE OF THE MARKET . FROM THAT IT FOLLOWS THAT EVEN PROOF OF THE FACT THAT A GIVEN PRODUCT, SUCH AS ROQUEFORT CHEESE, HAS VERY SPECIAL CHARACTERISTICS FROM THE POINT OF VIEW OF ITS PRODUCTION, PRICE AND MARKETS, DOES NOT PERMIT THE CONCLUSION THAT THE COMMISSION IS UNDER AN AUTOMATIC OBLIGATION TO SEVER THAT PRODUCT FROM THE REST OF THE GROUP OF WHICH IT FORMS PART BY PLACING IT DIRECTLY OUTSIDE THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS .
12 IN THIS REGARD THE COMMISSION HAS STATED, WITHOUT BEING CONTRADICTED BY THE OTHER PARTIES, THAT AT THE TIME WHEN THE MONETARY COMPENSATORY AMOUNTS WERE INTRODUCED THE FACT OF EXEMPTING ROQUEFORT CHEESE FROM THEM WOULD HAVE HAD THE RESULT OF BRINGING THE PRICE OF THAT PRODUCT APPRECIABLY CLOSER TO THAT OF THE OTHER BLUE CHEESES AND THAT CONSEQUENTLY THERE WOULD HAVE BEEN A
RISK OF SUBSTITUTION DUE TO A PURELY MONETARY FACTOR AND THEREFORE A DISTURBANCE DETRIMENTAL TO THE OTHER COMPETING PRODUCTS . FOR THAT REASON THE COMMISSION CONSIDERED ITSELF JUSTIFIED IN TREATING ROQUEFORT IN THE SAME WAY AS OTHER BLUE CHEESES .
13 FROM THE FOREGOING IT APPEARS THAT IN EXAMINING IN A COMPLEX ECONOMIC CONTEXT THE QUESTION OF A POSSIBLE DISTURBANCE IN THE SECTOR OF THE MARKET CONCERNED THE COMMISSION DID NOT EXCEED THE LIMITS OF THE DISCRETION WHICH IT EXERCISED AT THE TIME OF ADOPTING THE DISPUTED REGULATION .
14 IT MAY THEREFORE BE CONCLUDED, ON THE ONE HAND, THAT IT WAS NOT WITHOUT JUSTIFICATION THAT THE COMMISSION ACCEPTED THE EXISTENCE OF A RELATIONSHIP OF DEPENDENCE, WITHIN THE MEANING OF REGULATION NO 974/71, BETWEEN ROQUEFORT CHEESE AND THE OTHER PRODUCTS COVERED BY AN ORGANIZATION OF THE MARKET GUARANTEED BY INTERVENTION ARRANGEMENTS AND, ON THE OTHER HAND, THAT THE COMMISSION DID NOT OVERSTEP THE MARGIN OF DISCRETION WHICH IT ENJOYS BY ACCEPTING THE EXISTENCE OR THE PROSPECT OF ECONOMIC DISTURBANCES IN THE SECTOR MOST DIRECTLY CONCERNED WHEN IT FIXED IN 1976 A UNIFORM RATE OF MONETARY COMPENSATORY AMOUNTS FOR ALL BLUE-VEINED CHEESES .
15 THE ANSWER SHOULD ACCORDINGLY BE GIVEN THAT CONSIDERATION OF THE QUESTION PUT BY THE TRIBUNAL D ' INSTANCE HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF COMMISSION REGULATION NO 652/76 INASMUCH AS IT FIXED MONETARY COMPENSATORY AMOUNTS APPLICABLE WITHOUT DISTINCTION TO ALL CHEESES FALLING WITHIN TARIFF SUBHEADING 04.04 C, INCLUDING ROQUEFORT CHEESE .
Decision on costs
16 THE COSTS INCURRED BY THE GOVERNMENT OF THE FRENCH REPUBLIC AND THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, IN THE NATURE OF A STEP IN THE PROCEEDINGS PENDING BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS,
THE COURT
IN ANSWER TO THE QUESTION SUBMITTED TO IT BY THE TRIBUNAL D ' INSTANCE OF THE FIRST ARRONDISSEMENT OF PARIS BY A JUDGMENT OF 19 FEBRUARY 1980, HEREBY RULES :
CONSIDERATION OF THE QUESTION PUT BY THE TRIBUNAL D ' INSTANCE OF THE FIRST ARRONDISSEMENT OF PARIS HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF COMMISSION REGULATION NO 652/76 OF 24 MARCH 1976 CHANGING THE MONETARY COMPENSATORY AMOUNTS FOLLOWING CHANGES IN THE EXCHANGE RATES FOR THE FRENCH FRANC INASMUCH AS IT FIXED MONETARY COMPENSATORY AMOUNTS APPLICABLE WITHOUT DISTINCTION TO ALL CHEESES FALLING WITHIN TARIFF SUBHEADING 04.04 C OF THE COMMON CUSTOMS TARIFF, INCLUDING ROQUEFORT CHEESE .