OPINION OF MR ADVOCATE GENERAL MAYRAS

DELIVERED ON 13 DECEMBER 1979 ( 1 )

Mr President,

Members of the Court,

The two references for preliminary rulings that are before this Court are identical in origin; they relate to two sets of proceedings brought in Belgium against two retail butchers accused of having charged consumers prices not in compliance with the provisions of the Ministerial Order of 27 March 1975 later amended by the Ministerial Order of 14 July 1976.

These two cases have been referred to you bv the Fifth Chamber (Case 95/79) and the Fourth Chamber (Case 96/79) respectively of the Tribunal de Première Instance [Court of First Instance], Namur, by the same judge sitting alone ruling upon the application by the two accused to set aside the judgments by default given by the Fifth Chamber of that court on 6 November 1978 and 21 March 1979.

Although these two cases are the subject-matter of two separate applications and the two accused in the main actions are being defended by different counsel, this Court decided on 3 October 1979 that since the cases were related by their subject-matter they should be joined for the purposes of tne oral procedure and the judgment. I am therefore giving my views on them in one opinion.

Both concern the interpretation required of Regulation No 805/68 of the Council of 27 June 1968 on the common organization of the market in beef and veal and notably — I quote from the order making the reference — “Article 5, 3, 1 : Article 6 (1) (a) and (b) of the regulations fixing the basic price for beef and veal, in particular the regulations as implemented by Regulations No 1652/72 of 31 July 1972, No 1192/73 of 8 May 1973, No 667/74 of 28 March 1974.”

However the first case (judgment of 7 May 1979) concerns in addition the interpretation required of Regulation No 121/67/EEC of the Council of 13 June 1967 on the common organization of the market in pigmeat, in particular, and I quote, “Article 3, 4, 1: Article 5 (1), second indent, and of the regulations fixing the basic price for pigmeat, in particular the regulations as implemented by Regulations No 2305/71 of 29 October 1971, No 1351/73 of 15 May 1973, No 1133/74 of 29 April 1974.”

As regards the first point it should be noted that in the second case (judgment of 30 May 1979) the court making the reference forthwith gave a new ruling that, by defining in Article 3 the amount not to be exceeded by retail pigmeat butchers, the Ministerial Order of27 March 1975“is contrary to the aims of the Common Agricultural Policy and so constitutes an obstacle to intra-Community trade” and consequently “pursuant to Article 107 of the Constitution,” declared “that ministerial order contrary to Article 39 of the Treaty of Rome and to Regulation No 121/67 of the Commission.”

In these circumstances we may seriously ask if the interpretation of the Community regulations in the pigmeat sector sought by that court is still necessary within the meaning of the second paragraph of Article 177 of the Treaty of Rome to enable it to give judgment in the first case and whether he has not, by implication at least, withdrawn his request on this point.

I shall not however enter any further into the examination of the expediency of discussing once more the interpretation of the Community regulations in this sector. In any event it is useful to concentrate once more upon this problem since national courts ruling in the light of your judgment of 29 June 1978 in the Dechmann Case [1978] ECR 1574 et seq., which concerned precisely this point, have reached diametrically opposed decisions.

Whilst in fact the Tribunal de Première Instance, Neufchâteau, (Criminal Chamber composed of a single judge) gave a judgment on 17 May 1979 based upon the answer given by this Court to the question it had asked in the Dechmann case and the reasoning of which at first sight appeared quite sound, ruling that the gross profit margin fixed by the Ministerial Order of 27 March 1975 did not hinder intra-Community trade in pigmeat and consequently upholding the charge, the Tribunal de Première Instance, Namur, (Fourth Chamber composed of a single judge) ruled rather briefly to the contrary on 30 May 1979 that it followed from the judgment of this Court in the Dechmann case that “the charge has not been made out as regards tne pigmeat prices”, adding that it was “adopting entirely” the judgment of this Court in tne Dechmann case. Rarely can case-law have been accepted so unanimously since courts, persons charged with criminal offences and the government all agree with it entirely, while drawing completely contradictory applications from it.

Like the judgment of 17 May 1979 by the Tribunal de Première Instance, Neufchâteau, it would not be surprising if the two orders for reference from the Tribunal de Première Instance, Namur, were also appealed against and there is a chance that the problem of the interpretation of the Community regulations in the pigmeat sector will again come before this Court either on appeal or on an appeal in cassation.

On 1 June 1978 I considered ([1978] ECR 1594) that:

“It is incompatible with Regulation No 121/67 on the common organization of the market in the sector under consideration, for a Member State unilaterally to fix the selling price to the consumer of pigmeat by freezing the profit margin, if such fixing jeopardizes the aims or functioning of that organization, particularly the price system which it introduces.”

This Court held ([1978] ECR 1585) 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.”

In view of the results which this case-law has produced for my part I would be tempted to say mainly for the reasons of legal certainty, particularly necessary for criminal offences, explained in my opinion of 20 September last in the Danis and Others cases, that

“In relation to rules such as those contained in the ministerial order in question, Regulation No 121/67 of the Council and the regulations which fixed the basic price of pigmeat do not confer on retailers of that meat any right which national courts may usefully protect.”

However, in the same cases this Court has just held, on 6 November last, that national rules for price control which apply to products governed by a common organization of the market are “incompatible with that organization if ... they jeopardize the objectives and functioning of that common organization by applying at subsequent stages of the distribution process”, the words I used myself in my opinion in the Decbmann case.

In the current state of the case-law of this Court I do not therefore think I can recapitulate the conclusion I proposed to this Court in the Danis and Others cases and I leave the wording of the reply to the Court's discretion.

The national court must however take account of the fact that the time when the facts of the dispute in the main action occurred is different from that in the Dechmann case: while the latter related to a period in 1975, the case before it relates to 13 April 1977. It must also refer to the reply given by the Commission to the questions this court asked it by letter of 13 April 1978 (p. 9 and 10); the reply does not however relate to the 1977/78 and 1978/79 marketing years.

As regards the interpretation of the Community regulations in the beef and veal sector, my explanations will be brief. The organization is in fact even more “structured” than the organization of the market in pigmeat and the Community regulations in this sector leave still less room for intervention by the national authorities.

The national court will have to take account of the factual information provided by the Comission, which alone is in a position to give all the appropriate details regarding guide prices (which in any event apply to the six original Member States only), the average prices upon the most representative markets and intra-Community trade and trade with third countries in beef cattle (animals and meat).

That Court will also have to take into account the fact that the time when the facts of the dispute before it occurred is different from that in the Dechmann case; while the latter related to a period in 1975, Case 96/79 relates to April 1977.

( 1 ) Translated from the French.