Pigs and Bacon Commission v Mc Carren and Company Limited.
Date: 1979-06-26
9 . ( A ) IS ARTICLE 86 TO BE INTERPRETED AS MEANING THAT THE CENTRAL MARKETING AGENCY REFERRED TO ABOVE IS IN A DOMINANT POSITION IN A SUBSTANTIAL PART OF THE COMMON MARKET?

( B)IF SO , IS IT TO BE INTERPRETED AS MEANING THAT THERE HAS BEEN AN ABUSE BY THAT AGENCY OF THAT POSITION WHICH HAS AFFECTED TRADE BETWEEN MEMBER STATES BY REASON OF THE FACT THAT EXPORTS FROM FIRMS INDEPENDENTLY OF THE AGENCY ARE HINDERED OR RESTRICTED AND/OR BY REASON OF THE FACT THAT A BONUS ON EXPORTS IS ONLY PAID TO FIRMS WHO EXPORT THROUGH THE CENTRAL MARKETING AGENCY .

( C)IF THE ANSWERS TO ( A ) AND ( B ) ARE YES , IS THE LEVY WHICH IS PAID AS PART OF THE SYSTEM IRRECOVERABLE?

10.IF THE LEVY HEREINBEFORE REFERRED TO IS NOT LAWFULLY PAYABLE BY REASON OF THE OPERATION OF COMMUNITY LAW SHOULD A NATIONAL COURT IN CONSIDERING A CLAIM FOR A REFUND OF THE LEVY APPLY THE PRINCIPLES OF ITS NATIONAL LAWS OR THOSE OF THE COMMUNITY? IF COMMUNITY LAW IS APPLICABLE DO ITS PRINCIPLES JUSTIFY A CLAIM THAT PAYMENTS ACTUALLY MADE SHOULD BE REFUNDED , EITHER WITH OR WITHOUT A DEDUCTION IN RESPECT OF THE BONUS RECEIVED BY THE DEFENDANTS?

PRELIMINARY CONSIDERATIONS ON THE SCOPE OF THE QUESTIONS RAISED
9 CONSIDERATION OF THE QUESTIONS RAISED SHOWS THAT THEY CANNOT ALL BE SIMULTANEOUSLY DECISIVE FOR THE SOLUTION OF THE PROBLEM . IN THIS CONNEXION THE SITUATION BEFORE THE HIGH COURT IS NOT WITHOUT ANALOGY WITH THE ONE FORMING THE BASIS OF THE COURT ' S JUDGMENT OF 29 NOVEMBER 1978 IN CASE 83/78 ( PIGS MARKETING BOARD ( NORTHERN IRELAND ) V REDMOND , ( 1978 ) ECR 2347 ), WHERE THE NATIONAL COURT SUBMITTED TO THE COURT OF JUSTICE A PRELIMINARY QUESTION INQUIRING , AS A RESULT OF CONTRADICTORY VIEWS ADOPTED WITH REGARD TO A SIMILAR SITUATION BY THE PARTIES CONCERNED , WHAT THE DECISIVE COMMUNITY PROVISIONS IN THE MATTER WERE . IN THAT JUDGMENT THE COURT POINTED OUT THAT IN THE EVENT OF PROCEEDINGS RELATING TO AN AGRICULTURAL SECTOR GOVERNED BY A COMMON ORGANIZATION OF THE MARKET THE PROBLEM RAISED MUST FIRST BE EXAMINED FROM THAT POINT OF VIEW HAVING REGARD TO THE PRECEDENCE NECESSITATED BY ARTICLE 38 ( 2 ) OF THE EEC TREATY FOR THE SPECIFIC PROVISIONS ADOPTED IN THE CONTEXT OF THE COMMON AGRICULTURAL POLICY OVER THE GENERAL PROVISIONS OF THE TREATY RELATING TO THE ESTABLISHMENT OF THE COMMON MARKET .
10 THE APPLICATION OF THAT PRINCIPLE TO THIS CASE MEANS THAT FIRST OF ALL CONSIDERATION SHOULD BE GIVEN TO QUESTION 7 RELATING TO THE INTERPRETATION OF ARTICLE 40 OF THE TREATY AND OF REGULATION NO 2759/75 , WHICH MUST BE ASSOCIATED WITH QUESTIONS 4 AND 5 RELATING TO THE INTERPRETATION OF ARTICLES 16 AND 34 RESPECTIVELY OF THE TREATY . IN FACT , FOR THE REASONS EXPLAINED IN THE JUDGMENT REFERRED TO ABOVE ( PARAGRAPHS 52 TO 55 ), THE PROVISIONS OF THE TREATY RELATING TO THE ABOLITION OF TARIFF AND COMMERCIAL BARRIERS TO INTRA-COMMUNITY TRADE ARE TO BE REGARDED AS AN INTEGRAL PART OF THE COMMON ORGANIZATION OF THE MARKET .
11 THIS METHOD OF DEALING WITH THE QUESTIONS IS NECESSARY ALSO FROM ANOTHER POINT OF VIEW . BY VIRTUE OF ARTICLE 42 OF THE TREATY THE PROVISIONS OF THE CHAPTER RELATING TO RULES ON COMPETITION - THAT IS TO SAY ARTICLES 85 TO 94 INCLUSIVE - ARE APPLICABLE TO PRODUCTION OF AND TRADE IN AGRICULTURAL PRODUCTS ONLY TO THE EXTENT DETERMINED BY THE COUNCIL WITHIN THE FRAMEWORK OF MEASURES ADOPTED FOR THE ORGANIZATION OF AGRICULTURAL MARKETS . IN REGULATION NO 26 OF 4 APRIL 1962 APPLYING CERTAIN RULES OF COMPETITION TO PRODUCTION OF AND TRADE IN AGRICULTURAL PRODUCTS ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1959 TO 1962 , P . 129 ) THE COUNCIL OF THE EEC ADOPTED CERTAIN GENERAL PROVISIONS ON THIS SUBJECT INTENDED TO PERMIT OF A LIMITED APPLICATION OF THE RULES OF COMPETITION TO THE AGRICULTURAL SECTOR ; SPECIFIC PROVISIONS WERE SUBSEQUENTLY ADOPTED IN THE VARIOUS AGRICULTURAL REGULATIONS WITH A VIEW TO A WIDER APPLICATION OF THE RULES OF COMPETITION IN THE DIFFERENT SECTORS OF THE MARKET . SUCH IS THE CASE WITH ARTICLE 21 OF REGULATION NO 2759/75 IN THE WORDS OF WHICH : ' ' SAVE AS OTHERWISE PROVIDED IN THIS REGULATION , ARTICLES 92 TO 94 OF THE TREATY SHALL APPLY TO THE PRODUCTION OF AND TRADE IN THE PRODUCTS SPECIFIED IN ARTICLE 1 ( 1 ) ' ' . THE RESULT OF THAT PROVISION IS THAT , ALTHOUGH ARTICLES 92 TO 94 ARE FULLY APPLICABLE TO THE PIGMEAT SECTOR , THEIR APPLICATION NEVERTHELESS REMAINS SUBORDINATE TO THE PROVISIONS GOVERNING THE COMMON ORGANIZATION OF THE MARKET ESTABLISHED BY THE REGULATION . IN OTHER WORDS RECOURSE BY A MEMBER STATE TO THE PROVISIONS OF ARTICLES 92 TO 94 ON AIDS CANNOT RECEIVE PRIORITY OVER THE PROVISIONS OF THE REGULATION ON THE ORGANIZATION OF THAT SECTOR OF THE MARKET . ARTICLE 21 OF THE REGULATION ACCORDINGLY MAKES IT NECESSARY TO ACCORD PRIORITY TO AN EXAMINATION OF THE QUESTIONS RAISED ON THE SUBJECT OF THE INTERPRETATION OF THE REGULATION ITSELF AND OF THE ARTICLES OF THE TREATY RELATING TO THE ABOLITION OF TARIFF AND COMMERCIAL BARRIERS TO FREEDOM OF EXPORTS .

AN ASSESSMENT OF THE ACTIVITIES OF THE PBC IN THE LIGHT OF THE COMMON ORGANIZATION OF THE MARKET IN PIGMEAT AND OF THE RULES OF THE TREATY RELATING TO FREEDOM OF EXPORTS ( QUESTIONS 4 , 5 AND 7 )
14 AS THE COURT HAS REPEATEDLY STATED , ON THE LAST OCCASION IN THE ABOVE-MENTIONED JUDGMENT OF 29 NOVEMBER 1978 , ONCE THE COMMUNITY HAS , PURSUANT TO ARTICLE 40 OF THE TREATY , LEGISLATED FOR THE ESTABLISHMENT OF THE COMMON ORGANIZATION OF THE MARKET IN A GIVEN SECTOR , MEMBER STATES ARE UNDER AN OBLIGATION TO REFRAIN FROM TAKING ANY MEASURE WHICH MIGHT UNDERMINE OR CREATE EXCEPTIONS TO IT . THE MARKETING SYSTEM ESTABLISHED BY REGULATION NO 2759/75 IN THE CONTEXT OF THE SYSTEM FOR THE FREE MOVEMENT OF GOODS GUARANTEED BY THE PROVISIONS OF THE TREATY IS INTENDED TO ENSURE FREEDOM OF TRADE WITHIN THE COMMUNITY BY THE ABOLITION BOTH OF BARRIERS TO TRADE AND OF ALL DISTORTIONS IN INTRA-COMMUNITY TRADE AND HENCE PRECLUDES ANY INTERVENTION BY MEMBER STATES IN THE MARKET OTHERWISE THAN AS EXPRESSLY LAID DOWN BY THE REGULATION ITSELF . A MEMBER STATE CANNOT THEREFORE , EITHER DIRECTLY , OR THROUGH THE INTERMEDIARY OF AN AGENCY ON WHICH IT CONFERS POWERS TO THAT INTENT , PAY BONUSES IN WHATEVER FORM FOR PRODUCTS INTENDED TO BE MARKETED WITHIN THE COMMON MARKET .
18 MOREOVER THE SYSTEM PRACTISED BY THE PBC IS INCOMPATIBLE WITH THE PROVISIONS OF REGULATION NO 2759/75 BY REASON OF THE DIFFERENCE IN TREATMENT FOR WHICH IT PROVIDES BETWEEN PRODUCERS ACCORDING TO WHETHER OR NOT THEY MAKE USE OF THE INTERMEDIARY OR THE PBC TO EFFECT THE SALE OF THEIR PRODUCTS IN OTHER MEMBER STATES OR TO EXPORT THEM TO NON-MEMBER COUNTRIES . AS THE COURT HAS EMPHASIZED IN ITS JUDGMENT OF 29 NOVEMBER 1978 , THE COMMON ORGANIZATION OF THE MARKET IN PIGMEAT , LIKE THE OTHER COMMON ORGANIZATIONS , IS BASED ON THE CONCEPT OF AN OPEN MARKET TO WHICH EVERY PRODUCER HAS FREE ACCESS AND THE FUNCTIONING OF WHICH IS REGULATED SOLELY BY THE INSTRUMENTS PROVIDED FOR BY THAT ORGANIZATION . A FISCAL DEVICE BY VIRTUE OF WHICH A CENTRAL MARKETING AGENCY IS ALLOWED TO CHARGE A LEVY ON ALL BACON PRODUCERS AND TO RESERVE THE BENEFIT OF A BONUS FOR THE MARKETING OF CERTAIN QUALITIES OF THAT PRODUCT SOLELY TO PRODUCERS WHO AGREE TO EFFECT THEIR SALES THROUGH THE INTERMEDIARY OF THE SAME AGENCY CONSTITUTES AN INTERFERENCE WITH THE LIBERTY WHICH IS GUARANTEED TO ALL TRADERS IN THE COMMON MARKET TO AVAIL THEMSELVES DIRECTLY AND WITHOUT THEREBY SUFFERING ANY ECONOMIC DISADVANTAGE OF THE FACILITIES OF PRODUCTION , IMPORT AND EXPORT WHICH ARE GUARANTEED BY THE COMMON ORGANIZATION OF THE MARKET .
25 IT FOLLOWS FROM THE FOREGOING THAT THE LEVY DEMANDED IN THE FRAMEWORK OF A NATIONAL MARKETING SYSTEM FOR PIGMEAT IS NOT DUE TO THE EXTENT TO WHICH IT IS DEVOTED TO PURPOSES INCOMPATIBLE WITH THE REQUIREMENTS OF THE TREATY RELATING TO THE FREE MOVEMENT OF GOODS AND WITH THE COMMON ORGANIZATION OF THE MARKET IN THE SECTOR CONCERNED . IN PRINCIPLE ANY TRADER WHO IS REQUIRED TO PAY THE LEVY HAS THEREFORE THE RIGHT TO CLAIM THE REIMBURSEMENT OF THAT PART OF THE LEVY WHICH IS THUS DEVOTED TO PURPOSES INCOMPATIBLE WITH COMMUNITY LAW . HOWEVER , IT IS FOR THE NATIONAL COURT TO ASSESS , ACCORDING TO ITS NATIONAL LAW , IN EACH INDIVIDUAL CASE , WHETHER AND TO WHAT EXTENT THE LEVY PAID MAY BE RECOVERED AND WHETHER THERE MAY BE SET OFF AGAINST SUCH A DEBT THE SUMS PAID TO A TRADER BY WAY OF EXPORT BONUS .