6.

There is no lack of precedents in the previous decisions of the Court to help in answering this question. However they disclose two separate trends which, in the present case, may lead to different conclusions. The first trend favours the strict principle that any action by the national authorities in respect of products subject to a common organization of the market is incompatible with Community law if, although in some respects still incomplete, it is definitive. This view was expressed for the first time, even if not in the clearest terms, in the judgment of 21 March 1972 in Pubblico Ministero Italiano v SAIL (Case 82/71, Rec. 1972, p. 119 et seq., especially Ground 14) and for the second time, more explicitly, in the judgment of 23 January 1975 in the Galli case (Case 31/74 [1975] ECR 47 et seq.). In the latter judgment, the Court held any national provisions which fixed selling prices to be prohibited not only when their effect was ‘to distort the formation of prices as brought about within the framework of the Community provisions applicable’ but also, more generally and independently of the existence of a common prices system, simply because of the existence of an organization of the market in the sector for the products concerned, which is based on freedom of trade; this would suffice to dreprive Member States of the power to adopt, in respect of that sector, unilateral provisions liable to obstruct intra-Community trade, (as would apply in the case of any measure designed to influence the formation of prices). The second trend which has been followed in a greater number of cases especially, but not exclusively, in all the more recent cases, favours the view that the existence of a common organization of the market does not automatically prevent the States from adopting independent measures concerning the sector of products subject to that organization and capable of affecting trade in those products. The national measures may possibly be found to be incompatible with the common organization when they are inconsistent with the nature or objectives of Community legislation for the sector or, in any case, constitute an obstacle to its proper working. This trend, which reflects an approach based rather on practice than on precept, is particularly evident in six judgments during the last four years and I shall consider them in chronological order. In its judgment of 12 July 1973 in Riseria Geddo v Ente Nazionale Risi Case 2/73 [1973] ECR 865 et seq.) ( the Court rejected the argument, contended for by one of the parties, that when a common organization of the market is established for a given product the Member States no longer have any power to subject the purchase of that product to specific pecuniary charges. This argument was based on the more general principle that, in a field subject to a common organization of the market, all national intervention measures would be contrary to Community law since, being unilateral in character, they would interfere with the uniformity of control in the sector. Mr Advocate-General Trabucchi, whose opinion was substantially adopted by the Court, commented on this point that the common organization did not constitute an automatic repeal of national measures relating to the sector of products subject to the organization but only those which were absolutely incompatible with it. He added that, even within the ambit of a unified market, many variations were destined to last some time longer as a result, for example, of the different fiscal systems and different levels of taxation in the Member States. Subsequently, the judgment of 30 October 1974 in Off icier van Justitie v van Haaster (Case 190/73 [1974] ECR 1123 et seq.) was concerned with national measures restricting production in a sector subject to a common organization of the market and found them to be illegal, not because they were unilateral intervention measures in a sector subject to a common organization but because of their scope and effect in relation to the particular Community legislation involved. Similarly, in its judgment of 23 January 1975 in Van der Hulst's Zonen v Produktschap voor Siergewassen (Case 51/74 [1975] ECR 79 et seq.) the Court, in a ruling concerning Regulation No 234/68 of the Council (the one involved in Case 190/73 and in the present case), did not a priori dismiss the possibility that Member States may adopt supplementary measures in a sector subject to a common organization but declared that Member States must refrain from taking any measure which might undermine or create exceptions to it. When a decision is taken as to the compatibility of national legislation with Community legislation this, said the Court, must be done ‘having regard not only to the express provisions of the legislation but also to its aims and objects’ (Ground No 26); it must be established ‘whether the existence of a national intervention mechanism … is of such a nature as to undermine the aims and objects’ of the regulation (Ground No 28). Accordingly, national intervention measures relating to trade in the same products as those involved in the present proceedings were not considered to be in themselves incompatible with the existence of a common organization of the sector. There was a more recent confirmation of this view in the two judgments of 26 February 1976 in the Tasca case (Case 65/75 [1967] ECR 291) and in SADAM v Comitato Interministeriale dei Prezzi (Joined Cases 88 to 90/75 [1976] ECR 323) which were concerned with a national system of maximum prices for the sale of sugar. Instead of the general and absolute prohibition, which appeared to emerge from the judgment in the Galli case, of unilateral interventions by the States in sectors for which a common organization of the market had been established, in these more recent decisions, the Court associated the possible incompatibility of a national system of maximum prices, applied to the sale of a product subject to a common organization of the market, with the question whether, on the facts, the national system jeopardized the objectives and the functioning of the common organization. In particular, the Court did not hold that the fixing by the State of a maximum selling price in itself constituted an obstacle to the proper functioning of the price system established under the common organization of the market; it found instead that the incompatibility consisted in the fixing by the State of maximum selling prices at such a low level that it was practically impossible for the producer to sell at the intervention price or for an importer to import except at a loss. The judgment of 14 July 1976 in the Kramer case (Joined Cases 3, 4 and 6/76 [1976] ECR 1279) was on the same lines. The effect of this ruling was that the existence of a common organization of the market in a particular product does not prevent the States from adopting measures which, although constituting a restriction on the production or sale of those products, are (in so far as the Community itself has not adopted any such provision) justified by the objectives which they seek to achieve.