61979CJ0016_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN JOINED CASES 16 TO 20/79,
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE HOF VAN CASSATIE ( COURT OF CASSATION ), BELGIUM, FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
OPENBAAR MINISTERIE ( PUBLIC PROSECUTOR ' S OFFICE )
AND
JOSEPH DANIS ( CASE 16/79 )
EDWARD DEPRE ( CASE 17/79 )
GERARD INGELBRECHT ( CASE 18/79 )
WALTHER VAN DE RYSE ( CASE 19/79 )
ROBRECHT HUYS ( CASE 20/79 )
Subject of the case
ON THE INTERPRETATION OF THE COMMUNITY PROVISIONS RELATING TO THE FREE MOVEMENT OF GOODS WITH A VIEW TO A DECISION ON THE COMPATIBILITY WITH THOSE PROVISIONS OF A NATIONAL SYSTEM FOR NOTIFICATION OF PRICE INCREASES OF PRODUCTS,
Grounds
1 IN A JUDGMENT OF 9 JANUARY 1979, WHICH WAS RECEIVED AT THE COURT REGISTRY ON 2 FEBRUARY 1979, THE HOF VAN CASSATIE OF BELGIUM REFERRED A QUESTION TO THE COURT, IN CASE 16/79, FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY CONCERNING THE INTERPRETATION OF ARTICLE 30 OF THE EEC TREATY . SINCE THE SAME COURT MADE IDENTICAL REFERENCES TO THE COURT BY JUDGMENTS OF THE SAME DATE IN CASES 17/79, 18/79, 19/79 AND 20/79, THOSE CASES ARE JOINED FOR THE PURPOSES OF JUDGMENT . THE QUESTIONS AROSE IN THE COURSE OF CRIMINAL PROCEEDINGS BROUGHT BEFORE THE BELGIAN COURTS BY THE OPENBAAR MINISTERIE AGAINST THE DEFENDANTS IN THE MAIN PROCEEDINGS, WHO ARE PRODUCERS OF OR TRADERS IN ANIMAL FEEDING-STUFFS AND WHO ARE ACCUSED OF INCREASING THEIR PRICES ON A NUMBER OF OCCASIONS BETWEEN 1 SEPTEMBER 1972 AND 4 APRIL 1973 WITHOUT FIRST NOTIFYING THE MINISTER FOR ECONOMIC AFFAIRS IN ACCORDANCE WITH THE CONDITIONS LAID DOWN BY THE BELGIAN MINISTERIAL ORDER OF 22 DECEMBER 1971 ( BELGISCH STAATSBLAD OF 28 DECEMBER 1971 ).
2 THE MINISTERIAL ORDER OF 22 DECEMBER 1971 PROVIDES IN ARTICLE 1 ( 1 ) THAT ' ' PRODUCERS AND IMPORTERS SHALL NOTIFY THE MINISTER FOR ECONOMIC AFFAIRS . . . OF ANY PRICE INCREASES WHICH THEY INTEND TO APPLY ON THE BELGIAN MARKET TO ANY PRODUCTS, RAW MATERIALS, FOODSTUFFS AND MERCHANDISE AND TO ANY SERVICES AT THE LATEST TWO MONTHS BEFORE SUCH INCREASES TAKE EFFECT ' ' . BY VIRTUE OF ARTICLE 4 OF THE SAME ORDER THE PERIOD OF TWO MONTHS IS SUSPENDED IF THE APPROPRIATE AUTHORITIES FIND THAT THE NOTIFICATION OF INCREASE DOES NOT CONTAIN ALL THE REQUIRED INFORMATION . IN THAT CASE THE WAITING PERIOD COMMENCES FROM THE DATE ON WHICH THE ADDITIONAL INFORMATION IS RECEIVED . FINALLY, ARTICLE 5 PROVIDES THAT THE MINISTER FOR ECONOMIC AFFAIRS MAY INFORM THE UNDERTAKING MAKING THE NOTIFICATION, BEFORE THE EXPIRY OF THE WAITING PERIOD, ' ' THAT THE INCREASE NOTIFIED CANNOT BE APPLIED TOTALLY OR PARTIALLY FOR A MAXIMUM PERIOD OF SIX MONTHS . . . ' ' .
3 THE ACCUSED IN THE MAIN PROCEEDINGS HAVE CLAIMED, INTER ALIA, THAT THE DUTY OF NOTIFICATION LAID DOWN BY THE MINISTERIAL ORDER IN QUESTION AMOUNTS TO A MEASURE HAVING AN EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION, AND THEREFORE PROHIBITED UNDER ARTICLE 30 OF THE EEC TREATY, BECAUSE OF THE PERIOD IMPOSED WITH REGARD TO NOTIFICATION AND THE POWER GIVEN TO THE RELEVANT AUTHORITIES TO DELAY PARTIALLY OR WHOLLY THE APPLICATION OF THE PRICE INCREASE .
4 IN ORDER TO ENABLE IT TO REACH A DECISION ON THIS POINT THE HOF VAN CASSATIE OF BELGIUM HAS REFERRED THE FOLLOWING QUESTION TO THE COURT OF JUSTICE, IN EACH CASE, FOR A PRELIMINARY RULING :
' ' MUST ARTICLE 30 OF THE TREATY BE INTERPRETED TO MEAN THAT THE PROHIBITION ON MEASURES HAVING AN EFFECT EQUIVALENT TO QUANTITATIVE RESTRICTIONS ON IMPORTS ALSO COVERS THE RULES CONTAINED IN THE MINISTERIAL ORDER OF 22 DECEMBER 1971 WHICH IMPOSES ON ALL PRODUCERS AND IMPORTERS THE OBLIGATION TO GIVE AT LEAST TWO MONTHS '
NOTICE OF ANY PRICE INCREASES WHICH THEY INTEND TO APPLY ON THE BELGIAN MARKET TO ANY PRODUCTS, RAW MATERIALS, FOODSTUFFS AND MERCHANDISE AND TO ANY SERVICES IN SO FAR AS SUCH RULES :
( A ) DO NOT DIFFERENTIATE BETWEEN IMPORTED AND DOMESTIC PRODUCTS ;
( B)ATTRIBUTE TO THE MINISTER THE POWER TO PREVENT, OR AT LEAST TO DELAY BEYOND ACCEPTABLE LIMITS, THE PASSING ON OF THE IMMEDIATE EFFECTS OF INCREASES IN THE PRICES OF IMPORTED PRODUCTS :
( C)PARTICULARLY WITH REGARD TO UNDERTAKINGS SUCH AS THAT MANAGED BY THE APPELLANT, ENGAGED IN THE MANUFACTURE OF ANIMAL FODDER, NECESSARILY CAUSE SUCH DELAY AS A RESULT OF THE PRESCRIBED ADMINISTRATIVE PROCEDURE?
' '
5 ARTICLE 30 OF THE TREATY PROHIBITS ALL MEASURES HAVING AN EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION IN TRADE BETWEEN MEMBER STATES . THE PROHIBITION COMES INTO EFFECT WHEN THE MEASURES IN QUESTION ARE CAPABLE OF HINDERING TRADE BETWEEN MEMBER STATES EITHER DIRECTLY OR INDIRECTLY, ACTUALLY OR POTENTIALLY .
6 FROM THE INFORMATION SUPPLIED BY THE NATIONAL COURT IT APPEARS THAT THE OBJECT OF THE QUESTION IS TO DISCOVER WHETHER THE PROHIBITION OF MEASURES HAVING AN EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION INCLUDES NATIONAL RULES WHICH, WITHOUT DISTINGUISHING BETWEEN IMPORTED AND DOMESTIC PRODUCTS, NECESSARILY DELAY, BEYOND REASONABLE LIMITS, THE PASSING ON OF INCREASES IN THE PRICES OF IMPORTED PRODUCTS, ESPECIALLY IN THE CASE OF PRODUCERS OF ANIMAL FEEDING-STUFFS, BY REASON OF THE ADMINISTRATIVE PROCEDURES INVOLVED THEREIN . NATIONAL RULES OF THIS KIND, EVEN IF THEY ARE CONFINED TO REQUIRING THE PRODUCER OR IMPORTER TO ' ' NOTIFY ' '
PROPOSED PRICE INCREASES BEFORE THEY ARE APPLIED, HAVE THE EFFECT OF A PRICE FREEZE, SINCE THE PRICES QUOTED BY THE PRODUCER PRIOR TO HIS NOTIFICATION ARE, IN FACT, ' ' FROZEN ' '
FOR AT LEAST THE DURATION OF THE WAITING PERIOD .
7 WHILST RULES IMPOSING A PRICE FREEZE WHICH ARE APPLICABLE EQUALLY TO NATIONAL PRODUCTS AND TO IMPORTED PRODUCTS DO NOT AMOUNT IN THEMSELVES TO A MEASURE HAVING AN EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION, THEY MAY IN FACT PRODUCE SUCH AN EFFECT WHEN PRICES ARE AT SUCH A LEVEL THAT THE MARKETING OF IMPORTED PRODUCTS BECOMES EITHER IMPOSSIBLE OR MORE DIFFICULT THAN THE MARKETING OF NATIONAL PRODUCTS . THAT IS ESPECIALLY THE CASE WHERE NATIONAL RULES, WHILE PREVENTING THE INCREASED PRICES OF IMPORTED PRODUCTS FROM BEING PASSED ON IN SALE PRICES, FREEZE PRICES AT A LEVEL SO LOW THAT - TAKING INTO ACCOUNT THE GENERAL SITUATION OF IMPORTED PRODUCTS IN RELATION TO THAT OF NATIONAL PRODUCTS - TRADERS WISHING TO IMPORT THE PRODUCTS IN QUESTION INTO THE MEMBER STATE CONCERNED CAN DO SO ONLY AT A LOSS, OR, HAVING REGARD TO THE LEVEL AT WHICH PRICES FOR NATIONAL PRODUCTS ARE FROZEN, ARE IMPELLED TO GIVE PREFERENCE TO THE LATTER PRODUCTS .
8 THE ABOVE CONSIDERATIONS ARE SUFFICIENT TO PROVIDE A BASIS FOR THE INTERPRETATION REQUESTED BY THE NATIONAL COURT WITH REGARD TO ARTICLE 30 OF THE TREATY, BUT IN ORDER TO ENSURE THAT COURT IS GIVEN ALL THE NECESSARY CRITERIA FOR INTERPRETATION, IT SHOULD BE STATED THAT WHERE THE COMPATIBILITY OF NATIONAL PRICE CONTROL MEASURES RELATING TO PRODUCTS SUBJECT TO A COMMON ORGANIZATION OF THE AGRICULTURAL MARKETS IS IN QUESTION, THE ASSESSMENT MUST TAKE INTO ACCOUNT THE PARTICULAR FEATURES OF THAT ORGANIZATION . AS THE COURT HAS CONFIRMED IN ITS CASE-LAW - JUDGMENT OF 23 JANUARY 1975 ( GALLI, CASE 31/74 ( 1975 ) ECR 47 ), JUDGMENTS OF 26 FEBRUARY 1976 ( TASCA, CASE 65/75, AND SADAM, JOINED CASES 88 TO 90/75 ( 1976 ) ECR 291 AND 323 ), JUDGMENT OF 29 JUNE 1978 ( DECHMANN, CASE 154/77 ( 1978 ) ECR 1573 ) AND JUDGMENT OF 12 JULY 1979 ( GROSOLI, CASE 223/78 ( 1979 ) ECR ) - IN SECTORS COVERED BY A COMMON ORGANIZATION OF THE MARKET, AND A FORTIORI WHEN THAT ORGANIZATION IS BASED ON A COMMON PRICE SYSTEM, MEMBER STATES CAN NO LONGER TAKE ACTION, THROUGH NATIONAL PROVISIONS ADOPTED UNILATERALLY, AFFECTING THE MACHINERY OF PRICE FORMATION AS ESTABLISHED UNDER THE COMMON ORGANIZATION . IT WAS STATED IN THOSE JUDGMENTS THAT PROVISIONS OF A COMMUNITY AGRICULTURAL REGULATION WHICH COMPRISE A PRICE SYSTEM APPLICABLE AT THE PRODUCTION AND WHOLESALE STAGES OF THE PRODUCTS COVERED BY THE RULES OF THE MARKET CONCERNED LEAVE MEMBER STATES FREE - WITHOUT PREJUDICE TO OTHER PROVISIONS OF THE TREATY - TO TAKE UNILATERAL MEASURES RELATING TO PRICE FORMATION AT THE RETAIL AND CONSUMPTION STAGES, ON CONDITION THAT THEY DO NOT JEOPARDIZE THE AIMS OR FUNCTIONING OF THE COMMON ORGANIZATION OF THE MARKET IN QUESTION, IN PARTICULAR ITS PRICE SYSTEM .
9 IN THE PRESENT CASE IT APPEARS FROM THE FILE THAT THE PRODUCT IN RELATION TO WHICH A QUESTION CONCERNING THE INTERPRETATION OF COMMUNITY LAW HAS BEEN RAISED BY THE NATIONAL COURT IS CATTLE FEED HAVING, ACCORDING TO THE INFORMATION SUPPLIED BY THE ACCUSED IN THE MAIN PROCEEDINGS IN THE COURSE OF THE PRESENT PROCEEDINGS, A HIGH CEREAL CONTENT . HAVING REGARD TO ITS COMPOSITION, THAT PRODUCT IS THEREFORE AN ANIMAL FEEDING-STUFF WITHIN THE MEANING OF ARTICLE 1 ( D ) OF REGULATION NO 120/67 OF THE COUNCIL OF 13 JUNE 1967 ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1967 P . 33 ) AND THEREFORE FALLS WITHIN THE PROVISIONS OF THAT COMMON ORGANIZATION . AS THE COURT HAS ALREADY DECLARED ( JUDGMENT OF 23 JANUARY 1975 IN GALLI, CASE 31/74 ( 1975 ) ECR 47 ), THE COMMON ORGANIZATION OF THE MARKET IN CEREALS ESTABLISHED UNDER REGULATION NO 120/67 IS DESIGNED TO ACHIEVE A SINGLE MARKET IN CEREALS WITHIN THE COMMUNITY, SUBJECT TO COMMON ADMINISTRATION, AND FOR THAT PURPOSE IT PROVIDES FOR A SYSTEM OF RULES AND A FRAMEWORK OF ORGANIZATION WHEREIN A CENTRAL PLACE IS HELD BY A ' ' PRICE SYSTEM ' '
APPLICABLE AT THE PRODUCTION AND WHOLESALE STAGES . A NATIONAL SYSTEM OF PRICE CONTROL WHICH APPLIES TO PRODUCTS SUBJECT TO SUCH A COMMON ORGANIZATION OF THE MARKET AND INCLUDES A PRICE FREEZE AT BOTH PRODUCTION AND WHOLESALE STAGES ENCROACHES ON AN AREA COVERED BY THAT ORGANIZATION AND IS THEREBY INCOMPATIBLE WITH THAT ORGANIZATION IF, IN THE OPINION OF THE NATIONAL COURT, BY APPLYING TO PRICES AT SUBSEQUENT STAGES OF THE DISTRIBUTION PROCESS, IT JEOPARDIZES THE OBJECTIVES AND FUNCTIONING OF THAT ORGANIZATION .
10 ON ALL THOSE GROUNDS IT MUST BE RULED THAT A NATIONAL SYSTEM OF PRICE CONTROL, SUCH AS THAT REFERRED TO BY THE NATIONAL COURT, CONSTITUTES A MEASURE HAVING AN EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION ON IMPORTS, WHICH IS PROHIBITED BY ARTICLE 30 OF THE EEC TREATY, TO THE EXTENT TO WHICH IT MAKES THE MARKETING OF PRODUCTS IMPORTED FROM ANOTHER MEMBER STATE EITHER IMPOSSIBLE OR MORE DIFFICULT THAN THAT OF NATIONAL PRODUCTS OR HAS THE EFFECT OF FAVOURING THE MARKETING OF NATIONAL PRODUCTS TO THE DETRIMENT OF IMPORTED PRODUCTS . SUCH NATIONAL RULES ARE, MOREOVER, INCOMPATIBLE WITH THE COMMON ORGANIZATION OF THE MARKET, WHICH HAS BEEN ESTABLISHED FOR CEREALS BY REGULATION NO 120/67 OF THE COUNCIL OF 13 JUNE 1967, IN SO FAR AS THEY APPLY TO THE PRICES OF PRODUCTS COVERED BY THAT REGULATION AT THE PRODUCTION AND WHOLESALE STAGES . FURTHERMORE, THEY ARE INCOMPATIBLE WITH THAT ORGANIZATION IF, IN THE OPINION OF THE NATIONAL COURT, BY APPLYING AT SUBSEQUENT STAGES OF THE DISTRIBUTION PROCESS, THEY JEOPARDIZE THE OBJECTIVES AND FUNCTIONING OF THAT COMMON ORGANIZATION .
Decision on costs
COSTS
11 THE COSTS INCURRED BY THE BELGIAN GOVERNMENT, THE GOVERNMENT OF THE UNITED KINGDOM AND THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . SINCE THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED, IN THE NATURE OF A STEP IN THE PROCEEDINGS PENDING BEFORE THE NATIONAL COURT, COSTS ARE A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS,
THE COURT,
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE HOF VAN CASSATIE OF BELGIUM BY JUDGMENTS DATED 9 JANUARY 1979, HEREBY RULES THAT :
A NATIONAL SYSTEM OF PRICE CONTROL, SUCH AS THAT REFERRED TO BY THE NATIONAL COURT, CONSTITUTES A MEASURE HAVING AN EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION ON IMPORTS, WHICH IS PROHIBITED BY ARTICLE 30 OF THE EEC TREATY, TO THE EXTENT TO WHICH IT MAKES THE MARKETING OF PRODUCTS IMPORTED FROM ANOTHER MEMBER STATE EITHER IMPOSSIBLE OR MORE DIFFICULT THAN THAT OF NATIONAL PRODUCTS OR HAS THE EFFECT OF FAVOURING THE MARKETING OF NATIONAL PRODUCTS TO THE DETRIMENT OF IMPORTED PRODUCTS . SUCH NATIONAL RULES ARE, MOREOVER, INCOMPATIBLE WITH THE COMMON ORGANIZATION OF THE MARKET, WHICH HAS BEEN ESTABLISHED FOR CEREALS BY REGULATION NO 120/67 OF THE COUNCIL OF 13 JUNE 1967, IN SO FAR AS THEY APPLY TO THE PRICES OF PRODUCTS COVERED BY THAT REGULATION AT THE PRODUCTION AND WHOLESALE STAGES . FURTHERMORE, THEY ARE INCOMPATIBLE WITH THAT ORGANIZATION IF, IN THE OPINION OF THE NATIONAL COURT, BY
APPLYING AT SUBSEQUENT STAGES OF THE DISTRIBUTION PROCESS, THEY JEOPARDIZE THE OBJECTIVES AND FUNCTIONING OF THAT COMMON ORGANIZATION .