VII —

In conclusion, I should like to attempt a synthesis of the criteria. First, it should be considered whether the national rules apply at the same stage as the Community rules. For example. there would be total incompatibility if the nationally imposed profit margin did not even allow retailers to reach the basic price for pig carcases and obliged them to sell at a loss. As I have said, the use of this criterion derives from the last sentence in paragraph 10 of the decision in the Tasca case Secondly, the normal level or, conversely, the excessively reduced level of the profit margin which the retailer is allowed must have an effect. This consideration results from paragraphs 13 and 14 of the more recent Van Tiggele judgment of this Court of 24 January 1978 (Case 82/77 [1978] ECR 25, at p. 39): ‘Whilst national price-control rules applicable without distinction to domestic products and imported products cannot in general produce such an effect [that is to say an effect equivalent to quantitative restrictions], they may do so in certain specific cases. Thus imports may be impeded in particular when a national authority fixes prices or profit margins at such a level that imported products are placed at a disadvantage in relation to identical domestic products, either because they cannot profitably be marketed in the conditions laid down or because the competitive advantage conferred by lower cost prices is cancelled out.’ However in the present state of affairs, it appears difficult to give more precise indications. If a producer cannot complain of being unable to obtain a price higher than the target price or the guide price, what on the other hand is the position of traders further down the marketing line, that is to say the retailers? At what level must the price of their own intervention be set? What is the ‘normal’ margin which must be added to the basic price of pig carcases to make due allowance for remuneration for their activities? The most one can say is that the fixing of the profit margin at a specific amount, and not at a percentage of the cost price, is not incompatible with the functioning and the aims of the common organization of the market where that amount is a relatively small part of the final retail price. But what is to be understood by ‘relatively small’? In that connexion, the accused in the main action alleges that he is placed at a disadvantage in relation to ‘supermarkets’, on the one hand by the failure to include in the purchase price the cost of ‘placing goods on the market’, particularly in the case of imports, whether that situation results from internal rules or from practice, and on the other hand by the difference between the price on the day when the meat was actually sold and the prices prevailing during the reference period. It will be for the national court, with the help of the information supplied by the Commission in answer to the questions which this Court asked it, to consider whether these two facts together did in fact have the result that the freezing of the profit margin at Bfr 22 prevented any profit being made. Thirdly, the actual effect of the national rules on the volume of infra-Community trade should be examined. This effect may appear both in imports and in exports. As the Commission states, it can indeed have the result that the prices imposed in one State are considered so inadequate by traders that they prefer to export their products to other Member States or to non-member countries rather than to put them on the domestic market. However, this analysis is complicated by the operation of monetary compensatory amounts. At certain periods the application of these amounts has led, as the Court is aware, to distortions of competition. Thus, the reduction of the amounts applicable to French exports of cereals encouraged exports to Belgium, which led in 1974 to a fall in the French prices for swine under the impact of competition from exports of Belgian swine. On the other hand, in sectors where there is no permanent intervention, market prices are formed more freely and monetary distortion operates to the full; when that is the case, compensatory amounts are not sufficient to re-restablish equilibrium. This Court has already had occasion to observe this several times. Thus it appears to me that only the Commission is in a position to supply the necessary information. It is for the Commission in the first instance to decide, in the exercise of the powers conferred on it by Article 155 of the Treaty, whether the Belgian rules could have constituted or still can constitute a measure having an effect equivalent to a quantitative restriction on imports, and to take adequate steps to eliminate that state of affairs, if necessary even by recourse to proceedings under Article 169 of the Treaty.