Opinion of Mr Advocate General Tesauro delivered on 14 November 1989. - French Republic v Commission of the European Communities. - Act of Accession of Spain and Portugal - Supplementary trade mechanism - Withdrawal of a product from the STM list. - Case C-136/88.



European Court reports 1989 Page 04163



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . In this case, the French Republic is seeking the annulment of Commission Regulation ( EEC ) No 530/88 of 26 February 1988 withdrawing new potatoes from the list of products covered by the supplementary trade mechanism ( hereinafter referred to as "the STM "). ( 1 )

2 . The legal framework : in the provisions of the Act concerning the Conditions of Accession of the Kingdom of Spain and the Portuguese Republic and the Adjustments to the Treaties ( hereinafter referred to as "the Act of Accession "), ( 2 ) the STM is a system of supervision set up between the Community of Ten and Spain to prevent excessive imports of certain agricultural products which might disturb the markets . The purpose of this mechanism is to ensure an harmonious and gradual opening up of the market and the full realization of free movement for the products at issue within the Community on the expiry of the period of application of transitional measures ( Article 83(2 ) of the Act of Accession ).

Article 81(3 ) of the Act of Accession provides that, account being taken in particular of the situation at the level of the production and marketing structure of the products in question, a decision may be made in accordance with the procedures set out in Article 82 to withdraw certain products, including new potatoes, from the list of products covered by the STM .

The abovementioned procedure provides, inter alia, for consultation of an ad hoc committee set up for that purpose consisting of representatives of the Member States and presided over by a representative of the Commission .

3 . The French Government' s application is based precisely on the Commission' s failure to observe the procedure laid down in Article 82 of the Act of Accession when adopting the contested regulation .

The applicant claims that Regulation ( EEC ) No 530/88 - based on Article 81(3 ) of the Act of Accession - was adopted in a manner contrary to Article 155 of the EEC Treaty and Articles 81 and 82 of the Act of Accession and that the regulation is void for lack of power on the part of the Commission, a breach of essential procedural requirements, failure to observe the correct procedure and a manifest error of assessment inasmuch as the Commission consulted not the ad hoc Committee, specific and horizontal in structure, as provided for in the Act of Accession, but the Management Committee for Fruit and Vegetables, renamed ad hoc STM Committee for the occasion .

4 . The distortion of the nature and function of the ad hoc Committee can already be seen, in the applicant' s view, from the way in which its internal regulation was adopted .

It can be seen from the telex of 10 December 1987 giving notice of the meeting to be held on 15 December 1987 that the agenda for the ad hoc Committee included an "opinion on a draft internal regulation for the ad hoc Supplementary Trade Mechanism Committee for the Wine Sector", an expression which was then repeated in the Minutes of the meeting .

The French Government concludes that since even the internal regulation of the ad hoc STM Committee was in fact adopted by the Management Committee for Wine, renamed ad hoc STM Committee for the occasion, it is clearly contrary to Article 82 of the Act of Accession, which provides for a single, specific committee of a horizontal nature .

The Commission did not even comply with the terms of the internal regulation, because joint meetings of the ad hoc Committee and management committees were held on 17 December 1987 and 8 January 1988 to consider the draft of the contested regulation, whereas the internal regulation merely provides for the possibility of joint meetings of two or more ad hoc committees .

The French Government also claims that the Commission' s practice of considering one product at a time and not all products covered by the STM which might be withdrawn from the list deprives the consultation of the ad hoc committee of any meaning .

5 . For its part, the Commission, supported by the Kingdom of Spain, intervening, does not deny that the ad hoc STM Committee is a single, specific committee of a horizontal nature, as can be inferred from its very definition, the limits of its powers and the extent to which it is to be consulted . However, it denies that the way in which it proceeded deprived the consultation of the committee of all meaning .

6 . As can be seen from the applicant' s arguments, the various submissions put forward in the application are in reality based on a single premiss, namely the failure to consult a properly constituted ad hoc committee . The Court should therefore concentrate its attention on that point .

In the first place, with regard to the way in which the internal regulation of the ad hoc STM Committee was adopted, it should be observed that the terms of the telex convening the meeting of 15 December 1987 - the meeting at which an opinion on the draft internal regulation was to be adopted - clearly show that the adoption of the opinion was contained in the agenda for the ad hoc STM Committee and not the separate agenda for the Management Committee for Wine .

The terms of the telex in question do not appear to be ambiguous because it refers to the convening of the 444th meeting of the Management Committee for Wine, stating, however, that it would be preceded by a "meeting of the ad hoc STM Committee ( Article 82 of the Act of Accession )".

It is true that the agenda speaks of the draft internal regulation of the ad hoc STM Committee for the wine sector . However, the Commission states - without being contradicted by the applicant - that the error, although accidentally repeated in the summary Minutes of the meeting, was pointed out by its representatives during the meeting and that the nature, function and scope of the consultation of the ad hoc STM Committee which was to take place was clearly set out, proper reference being made to the powers provided for in Article 82 of the Act of Accession .

Moreover, only one internal regulation has in fact been adopted and the procedure laid down therein has been followed at all meetings of the ad hoc Committee, regardless of the product under consideration .

7 . Similarly, the provisions of Article 1 of the internal regulation, which provides for the convening of joint meetings of two or more ad hoc Committees, seem also to be the result of an error . That may be explained by the fact that the regulation was drafted on the basis of a model common to all the internal regulations of management and regulatory committees, which provide for joint meetings of several committees .

However, as was pointed out, no joint meetings of several ad hoc committees were ever held because the Commission has always regarded the ad hoc Committee as a single committee, horizontal in nature .

8 . Similarly, the joint meetings of the ad hoc Committee and the Management Committees for Seeds and for Fruit and Vegetables held on 17 December 1987 and 8 January 1988 for the purpose of considering the contested regulation were not, in my opinion, convened and conducted in such a way as to make the applicant' s theory plausible .

The telexes in which the Commission informed the Member States of the meetings refer expressly to an "ad hoc Committee ( Article 82 of the Act of Accession )", and the convening of joint meetings of the ad hoc Committee and management committees was not as such likely to give rise to ambiguity as to the nature and specific function of the ad hoc Committee .

On the contrary, it should be observed that according to the Commission its representative clearly submitted the measure providing for the withdrawal of new potatoes to the ad hoc Committee meeting on 8 January, a statement which is not disputed by the French Government . Furthermore, separate Minutes were drawn up for the meeting of the ad hoc Committee .

Furthermore, the Commission has explained that a meeting of the Management Committee for Fruit and Vegetables was convened at the same time so that if the ad hoc Committee did not adopt an opinion favourable to the withdrawal of new potatoes from the STM list, the opinion necessary for the fixing of indicative ceilings for new potatoes for 1988, a matter for that management committee, could be obtained .

9 . In the light of what has been said and having regard to the fact that the Member States could have no doubt that it was specifically a meeting of the ad hoc committee provided for under Article 82 of the Act of Accession that had been convened and that they were thus perfectly free to send to the meeting of that committee different representatives from those sent to the meetings of the management committees, I consider that the French Government' s criticisms concerning the consultation of an ad hoc STM Committee which was not correctly constituted cannot be accepted .

10 . In reality, it seems to me that, more than the failure to consult a properly constituted ad hoc STM Committee, the French Government seeks to criticize the Commission' s practice of consulting the committee in question not simultaneously in respect of all the products it proposes to withdraw from the STM list but specifically in respect of each individual product, which prevents Member States interested in one product or another from acting in concert .

However, that criticism does not seem to me to have any basis in the relevant provisions of the Act of Accession, which in no way require, either impliedly or, even less, expressly, that possible withdrawals from the list of products covered by the STM list must be considered together at a single meeting of the committee .

It should be observed in that regard that the internal regulation of the ad hoc Committee permits the Member States to request the convening of committee meetings ( Article 1 ) and obliges the president of the committee to include in the agenda any matter of which discussion has been requested in writing by the representative of a Member State ( Article 2 ). Those provisions give the Member States sufficient opportunity to bring before the committee any matter which they consider relevant for the purpose of reaching a decision which is the result of a sufficiently detailed consideration, in accordance with the spirit and the letter of the Act of Accession .

11 . In conclusion, I consider that the Commission' s conduct does not appear to be of such a nature as to make consultation of the ad hoc Committee a meaningless exercise and thereby endanger the objective which the establishment of the STM was intended to achieve, namely an harmonious and gradual opening up of the market in the products covered by it .

In the light of the foregoing, I propose that the Court should dismiss the application and order the applicant to pay the costs, including those of the intervener .

(*) Original language : Italian .

( 1 ) OJ 1988, L 53, p . 71 .

( 2 ) OJ L 302, 15.11.1985, p . 23 .