Opinion of Mr Advocate General Tesauro delivered on 12 July 1990. - Société d'initiatives et de coopération agricoles and Société d'intérêt professionnel des producteurs et expéditeurs de fruits, légumes, bulbes et fleurs d'Ille-et-Vilaine v Commission of the European Communities. - Non-contractual liability - Abolition of supplementary trade mechanism - New potatoes. - Case C-46/89.



European Court reports 1990 Page I-03621



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . The present action, brought by Société d' initiatives et de coopération agricoles ( SICA ) and Société d' interêt professionnel des producteurs et expéditeurs de fruits, légumes, bulbes et fleurs d' Ille-et-Vilaine ( Sipefel ), is for compensation for damage suffered as a result of the - allegedly unlawful - adoption 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 "STM "). ( 1 )

2 . In order to give a clearer idea of the criticisms made by the applicants, it is necessary to describe the legislative context of Regulation No 530/88 .

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 ) presents the STM as a system of surveillance set up between the Community of Ten and Spain for the purpose of preventing excessive imports of certain agricultural products which might cause disturbance of the markets . The purpose of the STM is to ensure harmonious and gradual opening up of the market and full realization of free movement within the Community for the products in question at the end of the transitional period ( Article 83(2 ) of the Act of Accession ).

As the Court itself has stated, ( 3 ) the application of the STM consists of three elements, namely the fixing of indicative import ceilings, the monitoring of developments in trade between the acceding States and the Community of Ten and ( where appropriate ) the introduction of protective or definitive measures on trade .

Article 81(3 ) of the Act of Accession provides that, having regard in particular to the situation at the level of the production and marketing structure of the products in question, it may be decided, under the procedure provided for in Article 82, to withdraw certain products - one of which is new potatoes - from the list of products subject to the STM .

That procedure envisages in particular consultation of an ad hoc committee set up for that purpose, composed of representatives of the Member States and presided over by a representative of the Commission .

3 . Regulation ( EEC ) No 569/86 ( 4 ) contains the general rules on the application of the STM . In adopting that measure, the Council, in order to facilitate the monitoring of trends in trade, set up a system of securities and certificates or licences .

Pursuant to Article 5(1 ) of that regulation, where the situation on the market calls for the limitation or suspension of imports on the market of the Member State concerned, the issue of STM certificates or licences may be suspended .

In order to assess the situation in a Member State subject to the STM, Article 6 provides that account is to be taken in particular of the trend in domestic prices in the Member State concerned, the trend in domestic demand in that State and the quantities of products forming the subject of trade, without further processing or after processing, between the Member State concerned and the other Member States and non-member countries .

And it is precisely on the basis of that provision that the applicants level their main criticism : they claim that, in adopting Regulation No 530/88, which withdrew new potatoes from the list of products subject to the STM, the Commission failed to comply with the requirements laid down by that provision .

The third recital in the preamble to that regulation merely states that trade in new potatoes had followed a normal pattern over the two previous years and that it was therefore no longer necessary to maintain surveillance of the trend of trade in that product by means of the STM .

4 . Let me say straight away that the objection raised by the Commission that Article 6 of Regulation No 569/86 does not apply to a case of withdrawal of a product from the list of products subject to the STM appears to me to be entirely well founded .

The article in question does no more than indicate, in accordance with Article 85(3)(b ) of the Act of Accession, the matters of which the Commission must take particular account before taking any decision to adopt protective measures of the kind provided for in Article 5 .

The situation is therefore diametrically opposed to that of withdrawal of a product from the STM .

The decision to withdraw a product from the STM is inspired by the general principle of freedom of trade and the conditions which apply to it derive directly from the Act of Accession, whereas Articles 5 and 6 of Regulation No 569/86 authorize the Commission to limit imports, thus making a temporary exception to that principle .

Furthermore, more generally, it may be observed that Regulation No 569/86 relates only to the conditions for the application of the STM system and does not cover the abolition of that system - a matter which, as I have said, is governed directly by the Act of Accession, in particular Article 81(3 ) thereof .

In this first respect, therefore, the applicants' criticism appears to be unfounded .

5 . As regards the alleged incorrectness of the finding that trade in new potatoes during 1986 and 1987 followed a normal pattern ( third recital in the preamble to Regulation No 530/88 ), it must be observed that the market in new potatoes is closely linked with the market in ware potatoes, in so far as an abundant harvest of ware potatoes in the Community of Ten will bring about a drop in Spanish exports of new potatoes to the Community . Conversely, a shortage of ware potatoes in the Community of Ten will provoke an increase in such exports .

In view of that link - the existence of which the Court has confirmed ( 5 ) - and having regard to the table produced by the Commission showing data for the marketing of potatoes from 1982/83 to 1987/88 ( defence, p . 12 ), there is nothing to indicate that the Commission had relied on a manifestly incorrect appreciation of the facts for its finding that trade in new potatoes between Spain and the Community of Ten had, from the time of accession, followed a normal pattern .

I would add that, in taking account of the overall trade in new potatoes between Spain and the Community of Ten, rather than trade between Spain and the individual Member States, the Commission again acted correctly and in conformity with the logic of the STM system, which in any event does not provide for a similar valuation of separate data .

6 . In the alternative, the applicants asked the Court to find that, by failing to adopt, upon the entry into force of Regulation No 530/88, a specific mechanism for the surveillance of trade with non-member countries, the Commission committed a wrongful act and thereby incurred liability .

At the hearing, conceding that the adoption of measures of that kind is a matter for the Council, the applicants expressly withdrew that claim, but nevertheless again criticized the Commission for failing to maintain the STM for new potatoes, at least until the entry into force of surveillance measures adopted by the Council .

7 . My observations on this point will be brief .

In the first place, a distinction must be drawn between the STM system and the monitoring system set up in connection with the dismantling of tariffs provided for in the additional protocols to the cooperation and association agreements between the Community and a number of non-member countries . The two mechanisms respond to very different situations and objectives .

The STM system, in so far as it provides for the issue of an import licence for products from non-member countries, is intended to ensure, pursuant to Article 85(4 ) of the Act of Accession, that Community preference is upheld and to make certain that disturbances in the market caused by imports from non-member countries are not incorrectly attributed to imports from Spain, whereas the system established by the Council under the abovementioned protocols is intended for statistical surveillance of trends in imports from non-member countries, with a view to the dismantling of tariffs .

In the absence of any legal link between the two systems, the applicants' argument that the Commission is under an obligation to continue to apply the STM system to new potatoes until the Council adopts appropriate surveillance measures in respect of products imported from non-member countries appears to have no basis .

In fact, such an approach would lead to the unfair consequence of blaming the Commission for damage resulting from an alleged failure to act on the part of the Council .

8 . Since, in my opinion, the applicants have failed to prove any unlawful conduct on the part of the Commission, I consider it unnecessary to examine whether the other conditions laid down by the Court for the liability of the Community to be incurred under the second paragraph of Article 215 of the Treaty have been fulfilled .

9 . I therefore propose that the Court dismiss the application and order the applicants to pay the costs, including those of the intervener .

( *) Original language : Italian .

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

( 2 ) OJ 1985 L 302, p . 23 .

( 3 ) Judgment in Case 119/86 Kingdom of Spain v Council and Commission [1987] ECR 4121, paragraph 16 .

( 4 ) OJ 1986 L 55, p . 106 .

( 5 ) Judgments in Case 289/83 GAARM v Commission [1984] ECR 4295 and in Case 114/83 Société d' initiatives et de coopération agricoles v Commission [1984] ECR 2589 .