5.

As regards, more specifically, the surplus levy this, as we have seen, serves to finance machinery used to prevent bulbs being put on the market at a price lower than the minimum price fixed by a national authority. The fact that Regulation No 234/68 provides for minimum prices to be fixed for the products concerned when exported to third countries, without any corresponding provision for sales in the common market, certainly does not allow us, by arguing in reverse, to conclude that a system of minimum prices for sales within the Community should be held to be prohibited, not even if it has been instituted and maintained in operation unilaterally by the national authority. On the contrary, precisely because the common organization has not, as far as the internal market is concerned, provided any intervention machinery on the subject of prices, the validity of an appropriate national system of intervention cannot, in principle, be ruled out. The State intervention on prices which the surplus levy serves to finance cannot, therefore, be criticized on its own account but solely in so far as, for one of the reasons described above or for those which we shall now consider, it proves to be incompatible with the general principles or the specific rules governing the proper functioning of the common market organization as it has in practice been evolved. In this connexion it is perhaps of special significance that the levy makes it possible to exercise an influence not only on prices but also on the quantities made available for trade within the Community. As supplies of products which do not, on the free market, fetch the minimum price laid down by the surplus fund are withdrawn from the market, can this situation be regarded as constituting a measure equivalent to a quantitative restriction on exports? Dutch producers and traders are not, of course, compelled to sell to the PVS Fund products which they have not been able to dispose of at the minimum fixed price; on a strictly formal view, therefore, it is impossible to refer to an act of administration which directly affects the volume of products which could otherwise be available for intra-Community trade, but it is clear that, in terms of economic reality, and taking into account the Dutch dealers' need to sell above the market price, the effect will necessarily be the same as that of a measure which closed the market to the products concerned. The judgment in Van Haaster laid down that a national measure which has only an indirect or potential effect on the marketable supplies of a product subject to the common market organization set up by the relevant regulation must be regarded as incompatible with the regulation. Nevertheless could the surplus levy be justified in the light of the objective pursued by the common organization of the products with which we are concerned? The second preamble of Regulation No 234/68 refers to the need to ‘ensure stable market conditions’, and the Dutch regulation does, indeed, help to keep prices stable on the market. However, as Mr Advocate-General Mayras pointed out in Case 190/73, the control established under Regulation No 234/68 over the quality of bulbs is sufficient in itself to produce the effect of stabilizing prices. Of course, we do not know whether the Community rules governing quality suffice to ensure the requisite degree of stability. It must be borne in mind, however, that again according to the second recital of the preamble, quoted above, stable market conditions must be ensured through appropriate measures promoting the ‘rational marketing’ of production; only with very rose-coloured spectacles would it be possible to regard the destruction of bulbs, or their use as animal food as answering to this description! Furthermore, as was stated in Court on behalf of the PVS the standards of quality to be attained in order to satisfy the national conditions for compulsory purchase of surpluses, are less demanding than those required by the Community conditions; consequently, as the applicant in the main action has pointed out, this machinery could, in fact have the undesirable effect of encouraging the cultivation, in large and highly mechanized undertakings, of products which are easier to produce but are in less demand on the market and below Community standards of quality — all with the specific object of their being immediately handed over to the Surplus Fund at the expense of those who produce bulbs of better quality as well as, of course, the consumer. From one point of view, therefore, the activities paid for out of the surplus levy of the PVS Fund, are liable to encourage the production of goods which do not meet Community rules on quality; from another, it has the effect of withdrawing from circulation in the Community even those products which do meet them. The first situation is clearly incompatible with the aims of the common market organization established by Regulation No 234/68; the second situation could infringe the ban on measures of equivalent effect to quantitative restrictions imposed in the sector concerned under Article 10 of the Regulation. I do not want, of course, to maintain that any kind of State intervention to create stable market conditions for products coming under a common organization must be ruled out. A decision on the question of compatibility will depend both on the comprehensiveness of the relevant Community requirements and on the specific way in which, in the light of such requirements, the national intervention measures are constituted and applied. In the present proceedings it is perhaps enough to recognize that one is faced with a measure which is clearly capable of affecting the quantities made available to the market and that, accordingly, the machinery financed by the levy is liable to impede trade within the Community: this would be in line with the Court's ruling on the cultivation licence system for hyacinth bulbs which, according to the judgment in Case 190/73, is incompatible with the Community regulations.