Judgment of the Court of 29 June 1978. - Procureur du Roi v P. Dechmann. - Reference for a preliminary ruling: Tribunal de première instance de Neufchâteau - Belgium. - Maximum profit margin. - Case 154/77.



European Court reports 1978 Page 01573

Greek special edition Page 00529

Portuguese special edition Page 00571



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . REFERENCES FOR PRELIMINARY RULINGS - JURISDICTION OF THE COURT - LIMITS

( EEC TREATY , ART . 177 )

2 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - PRICE FORMATION - NATIONAL MEASURES - INCOMPATIBILITY WITH COMMUNITY RULES - CRITERIA

3 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - PIGMEAT - SELLING PRICE TO THE CONSUMER - MAXIMUM PROFIT MARGIN - UNILATERAL FIXING BY A MEMBER STATE - PERMISSIBILITY - CONDITIONS

( REGULATION NO 121/67/EEC OF THE COUNCIL )

Summary

1 . ALTHOUGH , WITHIN THE FRAMEWORK OF PROCEEDINGS BROUGHT UNDER ARTICLE 177 OF THE TREATY , IT IS NOT FOR THE COURT TO GIVE A RULING ON THE COMPATIBILITY OF RULES OF INTERNAL LAW WITH PROVISIONS OF COMMUNITY LAW , THE COURT IS COMPETENT TO SUPPLY THE NATIONAL COURT WITH ANY CRITERIA COMING WITHIN COMMUNITY LAW ENABLING THAT COURT TO DETERMINE WHETHER SUCH RULES ARE COMPATIBLE WITH THE COMMUNITY RULE E VOKED .

2 . IN SECTORS COVERED BY A COMMON ORGANIZATION OF THE MARKET , AND A FORTIORI WHEN THIS 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 .

HOWEVER , PROVISIONS OF A COMMUNITY AGRICULTURAL REGULATION WHICH COMPRISE A PRICE SYSTEM APPLICABLE AT THE PRODUCTION AND WHOLESALE STAGES LEAVE MEMBER STATES FREE - WITHOUT PREJUDICE TO OTHER PROVISIONS OF THE TREATY - TO TAKE THE APPROPRIATE 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 .

3 . REGULATION NO 121/67/EEC MUST BE INTERPRETED AS NOT PREVENTING THE UNILATERAL FIXING BY A MEMBER STATE OF A MAXIMUM PROFIT MARGIN FOR RETAIL SALE OF PIGMEAT , CALCULATED ESSENTIALLY ON PURCHASE PRICES AS CHARGED AT PRIOR STAGES OF MARKETING AND VARYING ACCORDING TO THE TREND OF SUCH PRICES , PROVIDED THAT THE MARGIN IS FIXED AT A LEVEL WHICH DOES NOT IMPEDE INTRA-COMMUNITY TRADE .

Parties

IN CASE 154/77 ,

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE TRIBUNAL DE PREMIERE INSTANCE ( CHAMBRE CORRECTIONNELLE ) ( COURT OF FIRST INSTANCE ( CRIMINAL CHAMBER ), NEUFCHATEAU , FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

PROCUREUR DU ROI ( PUBLIC PRESECUTOR )

AND

P . DECHMANN , NOIREFONTAINE ( BELGIUM ),

Subject of the case

ON THE INTERPRETATION OF THE PROVISIONS OF REGULATION NO 121/67/EEC OF THE COUNCIL OF 13 JUNE 1967 ON THE COMMON ORGANIZATION OF THE MARKET IN PIGMEAT ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1967 , P . 46 ) IN ORDER IN PARTICULAR TO DEFINE ITS SCOPE IN RELATION TO NATIONAL MEASURES AFFECTING PRICES ,

Grounds

1BY A JUDGMENT OF 17 NOVEMBER 1977 , WHICH WAS RECEIVED AT THE COURT ON 19 DECEMBER 1977 , THE TRIBUNAL DE PREMIERE INSTANCE , NEUFCHATEAU , SUBMITTED A QUESTION TO THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE EEC TREATY ON THE INTERPRETATION OF REGULATION NO 121/67/EEC OF THE COUNCIL OF 13 JUNE 1967 ON THE COMMON ORGANIZATION OF THE MARKET IN PIGMEAT ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1967 , P . 46 ), IN ORDER IN PARTICULAR TO DEFINE ITS SCOPE IN RELATION TO NATIONAL MEASURES AFFECTING PRICES .

2THE QUESTION WAS RAISED IN THE COURSE OF CRIMINAL PROCEEDINGS AGAINST A RETAIL BUTCHER AND PORK-BUTCHER , WHO IS CHARGED WITH FAILING TO OBSERVE THE SELLING PRICES TO THE CONSUMER OF PIGMEAT AS THEY RESULT FROM THE BELGIAN ARRETE MINISTERIEL OF 27 MARCH 1975 ( MONITEUR BELGE OF 29 MARCH 1975 ), FIXING THE SELLING PRICE TO THE CONSUMER OF BEEF AND VEAL AND PIGMEAT .

3ARTICLE 2 OF THE SAID ARRETE , WHICH WAS ADOPTED PURSUANT TO THE BELGIAN LAW OF 30 JULY 1971 ON ECONOMIC REGULATION AND PRICES ( MONITEUR BELGE OF 31 AUGUST 1971 ), PROVIDES THAT THE SELLING PRICES OF PIGMEAT TO THE CONSUMER CHARGED BY RETAIL BUTCHERS MAY NOT EXCEED THE SUM OF THE WEIGHTED AVERAGE PURCHASE PRICE AND A MAXIMUM PROFIT MARGIN OF BFR 22 .

4TO THAT END , ARTICLE 3 ( 2 ) OF THE ARRETE DEFINES THE PROFIT MARGIN AS BEING THE WEIGHTED AVERAGE OF THE DIFFERENCES ESTABLISHED BY TYPE OF PURCHASE BETWEEN THE WEIGHTED AVERAGE SELLING PRICE AND THE WEIGHTED AVERAGE PURCHASE PRICE .

5ARTICLE 3 ( 4 ) PROVIDES THAT THE WEIGHTED AVERAGE PURCHASE PRICE SHALL BE CALCULATED BY DIVIDING THE TOTAL OF THE INVOICES BY TYPE OF PURCHASE , NOT INCLUSIVE OF VALUE-ADDED TAX , FOR THE FOUR PRECEDING WEEKS , BY THE CORRESPONDING NUMBER OF KILOGRAMS LESS 2.5% .

6THE ACCUSED IN THE MAIN ACTION PLEADED THAT THE AFORESAID PROVISIONS ARE INCOMPATIBLE WITH THE COMMUNITY REGULATIONS WHICH INTRODUCED THE COMMON ORGANIZATION OF THE MARKET IN BEEF AND VEAL AND IN PIGMEAT , AND THEREFORE CANNOT BE APPLIED TO HIM .

7THE NATIONAL COURT TRYING THE CASE DECIDED TO STAY THE PROCEEDINGS AND ASK THE COURT OF JUSTICE WHETHER ' ' THE ARRETE MINISTERIEL OF 27 MARCH 1975 FIXING THE SELLING PRICE TO THE CONSUMER OF PIGMEAT INVOLVED AN INFRINGEMENT OF REGULATION NO 121/67/EEC OF THE COUNCIL ON THE COMMON ORGANIZATION OF THE MARKET IN PIGMEAT , AND IN PARTICULAR OF ARTICLES 3 , 4 AND 5 THEREOF , AND OF THE REGULATIONS WHICH ESTABLISHED THE BASIC PRICE FOR PIGMEAT ' ' .

8WITHIN THE FRAMEWORK OF PROCEEDINGS BROUGHT UNDER ARTICLE 177 OF THE TREATY , IT IS NOT FOR THE COURT TO GIVE A RULING ON THE COMPATIBILITY OF RULES OF INTERNAL LAW WITH PROVISIONS OF COMMUNITY LAW .

9ON THE OTHER HAND , THE COURT IS COMPETENT TO SUPPLY THE NATIONAL COURT WITH ANY CRITERIA COMING WITHIN COMMUNITY LAW ENABLING THAT COURT TO DETERMINE WHETHER SUCH RULES ARE COMPATIBLE WITH THE COMMUNITY RULE EVOKED .

10THEREFORE THE QUESTION SUBMITTED MUST BE TAKEN AS ASKING WHETHER AND TO WHAT EXTENT REGULATION NO 121/67/EEC OF THE COUNCIL OF 13 JUNE 1967 ON THE COMMON ORGANIZATION OF THE MARKET IN PIGMEAT ALLOWS A POWER TO CONTINUE TO EXIST ON THE PART OF MEMBER STATES TO REGULATE BY MEANS OF INTERNAL RULES SELLING PRICES TO THE CONSUMER IN THIS SECTOR .

11REGULATION NO 121/67 ON PIGMEAT , ADOPTED WITHIN THE FRAMEWORK OF THE COMMON AGRICULTURAL POLICY AND LAST AMENDED , AT THE TIME OF THE FACTS MATERIAL TO THE MAIN ACTION , BY REGULATION NO 1861/74 OF THE COUNCIL OF 15 JULY 1974 ( OFFICIAL JOURNAL 1974 , L 197 , P . 3 ), IS INTENDED TO ESTABLISH A COMMON ORGANIZATION OF THE MARKET WITHIN THE MEANING OF ARTICLE 40 OF THE EEC TREATY .

12THIS COMMON ORGANIZATION OF THE MARKET IS INTENDED , AS IS EMPHASIZED REPEATEDLY IN THE PREAMBLE TO THE REGULATION , TO CREATE FOR THE COMMUNITY A SINGLE MARKET IN PIGMEAT SUBJECT TO COMMON ADMINISTRATION .

13IN ORDER TO BRING ABOUT THIS SINGLE MARKET , THE REGULATION ESTABLISHED A SYSTEM COMPRISING A SET OF MATERIAL RULES AND OF POWERS , INCLUDING A FRAMEWORK OF ORGANIZATION CALCULATED TO MEET ALL FORESEEABLE SITUATIONS .

14A CENTRAL PLACE IN THIS SYSTEM IS HELD BY THE PRICE SYSTEM PROVIDED FOR BY ARTICLES 4 AND 5 OF THE REGULATION AND APPLICABLE , UNDER ARTICLE 4 ( 1 ) AND ( 2 ), AT THE SLAUGHTERING STAGE , THAT IS THE PRODUCTION AND WHOLESALE STAGE .

15SO AS TO ENSURE THE FREEDOM OF INTERNAL TRADE REGULATION NO 121/67 ALSO COMPRISES A SET OF RULES INTENDED TO ELIMINATE , AS LAID DOWN IN ARTICLE 19 , ALL THE OBSTACLES TO FREE MOVEMENT OF GOODS AND ALL DISTORTIONS IN INTRA- COMMUNITY TRADE DUE TO MARKET INTERVENTION BY MEMBER STATES .

16AS THE COURT HELD IN ITS JUDGMENT OF 23 JANUARY 1975 ( CASE 31/74 GALLI ( 1975 ) 1 ECR 47 ) AND IN ITS JUDGMENTS OF 26 FEBRUARY 1976 ( CASE 65/75 TASCA AND JOINED CASES 88 TO 90/75 SADAM ( 1976 ) ECR 291 AND 323 ), IN SECTORS COVERED BY A COMMON ORGANIZATION OF THE MARKET , AND A FORTIORI WHEN THIS 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 .

17IT WAS HELD IN THE SAME JUDGMENTS THAT PROVISIONS OF A COMMUNITY AGRICULTURAL REGULATION WHICH COMPRISE A PRICE SYSTEM APPLICABLE AT THE PRODUCTION AND WHOLESALE STAGES LEAVE MEMBER STATES FREE - WITHOUT PREJUDICE TO OTHER PROVISIONS OF THE TREATY - TO TAKE THE APPROPRIATE 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 .

18IN PRINCIPLE THE FIXING OF A MAXIMUM PROFIT MARGIN FOR RETAILERS TO CHARGE WHEN SELLING TO THE ULTIMATE CONSUMER IS NOT APT TO JEOPARDIZE THE AIMS OR FUNCTIONING OF SUCH AN ORGANIZATION , SO LONG AS THE PROFIT MARGIN IS CALCULATED ESSENTIALLY ON PURCHASE PRICES AS CHARGED AT THE PRODUCTION AND WHOLESALE STAGES .

19THIS IS ESPECIALLY TRUE WHERE THE PROFIT MARGIN TAKES SUFFICIENT ACCOUNT OF THE MARKETING AND IMPORTING COSTS WHICH THE RETAILER MUST BEAR BOTH AT THE SUPPLY STAGE AND AT THE STAGE OF SALE TO CONSUMERS , AND WHERE IT IS FIXED AT A LEVEL SUITABLE TO ENSURE THAT THE RETAILER OBTAINS FAIR REMUNERATION FOR HIS ACTIVITY .

20ON THE OTHER HAND A PROFIT MARGIN WHICH DOES NOT FULFIL THESE CONDITIONS COULD FREEZE MAXIMUM RETAIL SELLING PRICES , AND THIS WOULD BE APT TO AFFECT AT PRIOR STAGES OF MARKETING THE PRICE MECHANISM RESULTING FROM THE COMMON ORGANIZATION OF THE MARKET , OR TO AFFECT INTRA-COMMUNITY TRADE BY AN APPRECIABLE REDUCTION IN IMPORTS .

21A MEMBER STATE CANNOT BASE THE JUSTIFICATION FOR FIXING SUCH A MARGIN ON THE NEED TO DEAL WITH AN UNDESIRABLE TENDENCY OBSERVED IN PRICE TRENDS ON THE MARKET , SUCH AS A RISE IN PRICES TO THE CONSUMER , BY WAY OF THE PROVISIONS OF ARTICLE 103 OF THE TREATY RELATING TO CONJUNCTURAL POLICY .

22ARTICLE 103 , WHICH REFERS TO MEMBER STATES ' CONJUNCTURAL POLICIES , DOES NOT RELATE TO THOSE AREAS ALREADY SUBJECT TO COMMON RULES , SUCH AS THE ORGANIZATION OF AGRICULTURAL MARKETS .

23FOR THESE REASONS , THE ANSWER TO THE NATIONAL COURT SHOULD BE THAT REGULATION NO 121/67 MUST BE INTERPRETED AS NOT PREVENTING THE UNILATERAL FIXING BY A MEMBER STATE OF A MAXIMUM PROFIT MARGIN FOR RETAIL SALE OF PIGMEAT , CALCULATED ESSENTIALLY ON PURCHASE PRICES AS CHARGED AT PRIOR STAGES OF MARKETING AND VARYING ACCORDING TO THE TREND OF SUCH PRICES , PROVIDED THAT THE MARGIN IS FIXED AT A LEVEL WHICH DOES NOT IMPEDE INTRA-COMMUNITY TRADE .

Decision on costs

COSTS

24THE COSTS INCURRED BY THE GOVERNMENT OF THE KINGDOM OF BELGIUM , THE GOVERNMENT OF THE UNITED KINGDOM AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .

25AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION 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 DE PREMIERE INSTANCE , NEUFCHATEAU , PURSUANT TO THE JUDGMENT OF THAT COURT OF 17 NOVEMBER 1977 , HEREBY RULES :

REGULATION NO 121/67/EEC MUST BE INTERPRETED AS NOT PREVENTING THE UNILATERAL FIXING BY A MEMBER STATE OF A MAXIMUM PROFIT MARGIN FOR RETAIL SALE OF PIGMEAT , CALCULATED ESSENTIALLY ON PURCHASE PRICES AS CHARGED AT PRIOR STAGES OF MARKETING AND VARYING ACCORDING TO THE TREND OF SUCH PRICES , PROVIDED THAT THE MARGIN IS FIXED AT A LEVEL WHICH DOES NOT IMPEDE INTRA-COMMUNITY TRADE .