1 BY ORDER OF 19 JULY 1982 , WHICH WAS RECEIVED AT THE COURT ON 23 AUGUST 1982 , TUNBRIDGE WELLS COUNTY COURT REFERRED TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY SEVERAL QUESTIONS ON THE INTERPRETATION OF , IN PARTICULAR ARTICLES 30 , 34 AND 38 TO 47 OF THE TREATY , ARTICLES 42 AND 60 ( 1 ) OF THE 1972 ACT OF ACCESSION AND REGULATION NO 1035/72 OF THE COUNCIL OF 18 MAY 1972 ON THE COMMON ORGANIZATION OF THE MARKET IN FRUIT AND VEGETABLES ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( II ), P . 437 ), IN ORDER TO ENABLE IT TO ASSESS : ( I ) THE COMPATIBILITY WITH THOSE PROVISIONS OF THE BRITISH RULES CONCERNING THE APPLE AND PEAR DEVELOPMENT COUNCIL ; AND ( II ) THE CONSEQUENCES OF ANY SUCH INCOMPATIBILITY WITH REGARD TO THE CHARGE USED TO FINANCE THE SAID COUNCIL .
2 THE APPLE AND PEAR DEVELOPMENT COUNCIL ( HEREINAFTER REFERRED TO AS ' ' THE DEVELOPMENT COUNCIL ' ' ) WAS ESTABLISHED BY A STATUTORY INSTRUMENT MADE UNDER THE INDUSTRIAL ORGANIZATION AND DEVELOPMENT ACT 1947 , WHICH ENABLES THE MINISTER RESPONSIBLE TO MAKE A ' ' DEVELOPMENT COUNCIL ORDER ' ' IN RESPECT OF AN INDUSTRY WHERE IT APPEARS TO HIM TO BE EXPEDIENT ' ' TO INCREASE EFFICIENCY OR PRODUCTIVITY IN THE INDUSTRY , TO IMPROVE OR DEVELOP THE SERVICE THAT IT RENDERS OR COULD RENDER TO THE COMMUNITY , OR TO ENABLE IT TO RENDER SUCH SERVICE MORE ECONOMICALLY ' ' . BEFORE MAKING SUCH AN ORDER , THE MINISTER IS REQUIRED TO CONSULT PERSONS REPRESENTATIVE OF A SUBSTANTIAL NUMBER OF THOSE CARRYING ON BUSINESS OR EMPLOYED IN THE INDUSTRY IN QUESTION . THE MINISTER HAS NO POWER TO MAKE AN ORDER UNLESS HE IS SATISFIED ' ' THAT THE ESTABLISHMENT OF A DEVELOPMENT COUNCIL FOR THE INDUSTRY IS DESIRED BY A SUBSTANTIAL NUMBER OF PERSONS ENGAGED IN THE INDUSTRY ' ' . THE EXTENT OF THE SUPPORT FOR THE EXISTENCE OF A DEVELOPMENT COUNCIL MUST BE REVIEWED PERIODICALLY .
3 IN 1966 GROWERS OF APPLES AND PEARS TOOK THE INITIATIVE IN APPROACHING THE MINISTER FOR AGRICULTURE , FISHERIES AND FOOD ( HEREINAFTER REFERRED TO AS ' ' THE MINISTER ' ' ) WITH A REQUEST TO ESTABLISH A DEVELOPMENT COUNCIL FOR THEIR INDUSTRY . AFTER HOLDING THE CONSULTATIONS PROVIDED FOR BY THE ACT , THE MINISTER MADE THE APPLE AND PEAR DEVELOPMENT COUNCIL ORDER 1966 ( STATUTORY INSTRUMENT 1966 NO 1579 ), WHICH CAME INTO OPERATION ON 23 DECEMBER 1966 . SUBSEQUENTLY , THE QUESTION WHETHER THE DEVELOPMENT COUNCIL SHOULD CONTINUE HAS BEEN REVIEWED ON SEVERAL OCCASIONS IN ACCORDANCE WITH THE ACT , AND THE RULES AT PRESENT APPLICABLE TO IT ARE CONTAINED IN AN ORDER MADE ON 6 MAY 1980 ( STATUTORY INSTRUMENT 1980 NO 623 - HEREINAFTER REFERRED TO AS ' ' THE 1980 ORDER ' ' ).
4 THE DEVELOPMENT COUNCIL CONSISTS OF THE FOLLOWING MEMBERS APPOINTED BY THE MINISTER : EIGHT GROWER MEMBERS , TWO EMPLOYEE MEMBERS , TWO INDEPENDENT MEMBERS AND TWO MEMBERS WITH SPECIAL KNOWLEDGE OF MARKETING AND DISTRIBUTION .
5 ACCORDING TO SCHEDULE 1 TO THE 1980 ORDER , THE FUNCTIONS OF THE DEVELOPMENT COUNCIL ARE AS FOLLOWS : ' ' 1 . PROMOTING OR UNDERTAKING SCIENTIFIC RESEARCH . 2.PROMOTING OR UNDERTAKING INQUIRY AS TO MATERIALS AND EQUIPMENT AND AS TO METHODS OF PRODUCTION , MANAGEMENT AND LABOUR UTILIZATION , INCLUDING THE DISCOVERY AND DEVELOPMENT OF NEW MATERIALS , EQUIPMENT AND METHODS AND OF IMPROVEMENTS IN THOSE ALREADY IN USE , THE ASSESSMENT OF THE ADVANTAGES OF DIFFERENT ALTERNATIVES , AND THE CONDUCT OF EXPERIMENTAL ESTABLISHMENTS AND OF TESTS ON A COMMERCIAL SCALE . 3.PROMOTING THE PRODUCTION AND MARKETING OF STANDARD PRODUCTS . ( A ) ADVISING PERSONS WHO PARTICIPATE IN ANY SCHEME FOR PROMOTING THE PRODUCTION AND MARKETING OF STANDARD PRODUCTS AS TO THE PRICES AT WHICH THEY SHOULD ENDEAVOUR TO SELL SUCH PRODUCTS , AND UNDERTAKING INQUIRY FOR THE PURPOSE OF ENABLING THE COUNCIL SO TO ADVISE . 4.PROMOTING THE BETTER DEFINITION OF TRADE DESCRIPTIONS AND CONSISTENCY IN THE USE THEREOF . 5.UNDERTAKING THE CERTIFICATION OF PRODUCTS , THE REGISTRATION OF CERTIFICATION TRADEMARKS , AND THE FUNCTIONS OF PROPRIETORS OF SUCH MARKS . 6.PROMOTING OR UNDERTAKING RESEARCH FOR IMPROVING ARRANGEMENTS FOR MARKETING AND DISTRIBUTING PRODUCTS . 7.PROMOTING OR UNDERTAKING RESEARCH INTO MATTERS RELATING TO THE CONSUMPTION OR USE OF THE PRODUCTS OF THE INDUSTRY . 8.PROMOTING ARRANGEMENTS FOR COOPERATIVE ORGANIZATIONS FOR SUPPLYING MATERIALS AND EQUIPMENT , FOR COORDINATING PRODUCTION , AND FOR MARKETING AND DISTRIBUTING PRODUCTS . 9.PROMOTING THE DEVELOPMENT OF EXPORT TRADE , INCLUDING PROMOTING OR UNDERTAKING ARRANGEMENTS FOR PUBLICITY OVERSEAS . 10.PROMOTING OR UNDERTAKING ARRANGEMENTS FOR BETTER ACQUAINTING THE PUBLIC IN THE UNITED KINGDOM WITH THE PRODUCTS OF THE INDUSTRY AND METHODS OF USING THEM . 11.PROMOTING OR UNDERTAKING THE COLLECTION AND FORMULATION OF STATISTICS . 12.UNDERTAKING ARRANGEMENTS FOR MAKING AVAILABLE INFORMATION OBTAINED , AND FOR ADVISING , ON MATTERS WITH WHICH THE COUNCIL ARE CONCERNED IN THE EXERCISE OF ANY OF THEIR FUNCTIONS . ' '
6 THE ACTIVITIES OF THE DEVELOPMENT COUNCIL ARE FINANCED BY A CHARGE WHICH IT IS EMPOWERED TO IMPOSE ON GROWERS IN ENGLAND AND WALES UNDER THE 1980 ORDER . SINCE THE ACCESSION OF THE UNITED KINGDOM TO THE EUROPEAN COMMUNITIES , THE MAXIMUM ANNUAL AMOUNT OF THE CHARGE , WHICH MUST BE APPROVED BY THE MINISTER , HAS BEEN INCREASED , IN SEVERAL STAGES , FROM UKL 3 PER ACRE ( APPROXIMATELY UKL 7.50 PER HECTARE ) TO UKL 40 PER HECTARE . GROWERS WITH LESS THAN TWO HECTARES PLANTED WITH 50 APPLE OR PEAR TREES ARE EXEMPT FROM PAYMENT .
7 THE GROWERS CONCERNED ARE OBLIGED TO REGISTER AND TO FURNISH TO THE DEVELOPMENT COUNCIL RETURNS AND INFORMTION ON THE ACTIVITIES CARRIED ON BY THEM IN THE INDUSTRY .
8 THE DEVELOPMENT COUNCIL COMMENCED ACTIONS IN THE TUNBRIDGE WELLS COUNTY COURT TO RECOVER FROM THREE GROWERS THE CHARGE DUE FOR THE FINANCIAL YEAR 1980-81 . THE DEFENDANTS COUNTERCLAIMED FOR RESTITUTION OF THE ANNUAL CHARGE PAID BY THEM SINCE 1 JANUARY 1973 . THEY SUBMITTED THAT THE CONTINUATION OF THE DEVELOPMENT COUNCIL WAS CONTRARY TO COMMUNITY LAW WITH EFFECT FROM THE DATE OF THE UNITED KINGDOM ' S ACCESSION AND THAT THE SAID CHARGE , BEING A CHARGE HAVING EFFECT EQUIVALENT TO A CUSTOMS DUTY , SHOULD HAVE BEEN ABOLISHED AT THE LATEST BY 1 FEBRUARY 1973 , IN ACCORDANCE WITH ARTICLE 60 OF THE ACT OF ACCESSION .
9 IN THOSE CIRCUMSTANCES , THE COUNTY COURT DECIDED TO SUBMIT THE FOLLOWING QUESTIONS TO THE COURT OF JUSTICE : QUESTION 1 DO ARTICLES 30 AND 34 AND/OR 38 TO 47 OF THE EEC TREATY AND/OR ARTICLES 42 AND 60 ( 1 ) OF THE TREATY OF ACCESSION AND/OR REGULATION ( EEC ) NO 1035/72 OF THE COUNCIL AS AMENDED PRECLUDE A MEMBER STATE FROM ADOPTING AND/OR MAINTAINING BY LAW MEASURES ( I ) ESTABLISHING AND/OR CONTINUING IN PART OF THAT MEMBER STATE A BODY HAVING THE CONSTITUTION AND/OR THE FUNCTIONS SET OUT IN UNITED KINGDOM S.I . 1966 NO 1579 AND/OR 1980 NO 623 , AND/OR ( II)REQUIRING PERSONS CARRYING ON BUSINESS IN THE APPLE AND PEAR GROWING INDUSTRY ( ' ' THE INDUSTRY ' ' ), AND ( A ) PRIOR TO 1 APRIL 1976 ( BUT AFTER 1 APRIL 1971 ) OCCUPYING LAND IN THAT PART OF THE MEMBER STATE OF FIVE ACRES OR MORE PLANTED WITH 50 OR MORE APPLE OR PEAR TREES AND/OR ( B ) AFTER 1 APRIL 1976 OCCUPYING LAND IN THAT PART OF THE MEMBER STATE OF TWO HECTARES OR MORE PLANTED WITH 50 OR MORE APPLE OR PEAR TREES , TO REGISTER WITH THE DEVELOPMENT COUNCIL AND MAKING IT A CRIMINAL OFFENCE TO FAIL TO APPLY TO BE SO REGISTERED , AND/OR ( III)PERMITTING THE DEVELOPMENT COUNCIL AFTER OBTAINING THE CONSENT OF THE MINISTER FOR AGRICULTURE , FISHERIES AND FOOD TO REQUIRE REGISTERED GROWERS TO FURNISH RETURNS AND INFORMATION RELATING TO ACTIVITIES CARRIED ON BY THEM AND COMPRISED IN THE INDUSTRY , AND MAKING IT A CRIMINAL OFFENCE TO FAIL TO FURNISH SUCH RETURNS OR INFORMATION , AND/OR ( IV)PERMITTING THE DEVELOPMENT COUNCIL TO LEVY UPON GROWERS LIABLE TO REGISTER A COMPULSORY ANNUAL CHARGE BASED UPON THE AREA OF LAND OCCUPIED BY THEM FOR THE PURPOSE OF BUSINESS IN THE INDUSTRY TO ENABLE THE DEVELOPMENT COUNCIL TO MEET THEIR ADMINISTRATIVE AND OTHER EXPENSES , AND/OR ( V)EXEMPTING FROM THE MEASURES GROWERS OCCUPYING LESS THAN TWO HECTARES OF LAND OR LAND PLANTED WITH LESS THAN 50 APPLE OR PEAR TRESS? QUESTION 2 IF THE ANSWER TO THE WHOLE OR ANY PART OF QUESTION 1 WOULD OTHERWISE BE IN THE AFFIRMATIVE WOULD THE FACT ( IF ESTABLISHED ) THAT THE DEVELOPMENT COUNCIL WAS ESTABLISHED AND/OR CONTINUED WITH THE EXPRESS SUPPORT OF THOSE GROWERS RECORDED IN THE SURVEY REFERRED TO ABOVE ( IN THE ORDER FOR REFERENCE ) AS SUPPORTING THE CONTINUANCE OF THE DEVELOPMENT COUNCIL AND REPRESENTING THE PROPORTION OF LAND THEREIN REFERRED TO AND AFTER CONSULTATION WITH ORGANIZATIONS APPEARING TO BE REPRESENTATIVE OF NUMBERS OF PERSONS CARRYING ON BUSINESS OR EMPLOYED IN THE INDUSTRY AFFECT THAT ANSWER AND IF SO IN WHAT WAY? QUESTION 3 IF ANY SUCH MEASURE AS IS DESCRIBED IN QUESTION 1 OR ANY PART OF SUCH A MEASURE IS INCOMPATIBLE WITH ANY ONE OR MORE OF THE PROVISIONS OF COMMUNITY LAW REFERRED TO IN QUESTION 1 , IS THE PROVISION OF COMMUNITY LAW WITH WHICH ANY SUCH MEASURE OR PART OF SUCH MEASURE IS INCOMPATIBLE OF DIRECT EFFECT WITHIN THE MEMBER STATES OF THE COMMUNITY SO AS TO CONFER UPON INDIVIDUALS COMMUNITY RIGHTS ENFORCEABLE IN THE COURT OF A MEMBER STATE , AND IF SO , ( I ) IS THAT PROVISION OF COMMUNITY LAW CAPABLE OF BEING RAISED BY A GROWER AS A DEFENCE TO A CLAIM BY THE DEVELOPMENT COUNCIL FOR THE SAID ANNUAL CHARGE AND IF SO IS SUCH PROVISION OF COMMUNITY LAW CAPABLE OF BEING A COMPLETE OR ONLY A PARTIAL DEFENCE THERETO AND IF ONLY PARTIAL HOW SHOULD SUCH PART BE DETERMINED , AND/OR ( II)IS THAT PROVISION OF COMMUNITY LAW CAPABLE OF BEING RAISED AS A GROUND FOR CLAIMING RESTITUTION OF ANY OF SUCH ANNUAL CHARGES AS HAVE BEEN PAID BY A GROWER , AND IF SO ( A ) IS SUCH PROVISION OF COMMUNITY LAW CAPABLE OF BEING A GROUND FOR CLAIMING RESTITUTION OF THE WHOLE OR ONLY A PART OF SUCH CHARGES AND IF ONLY A PART HOW SHOULD SUCH PART BE DETERMINED ; ( B)IS SUCH A CLAIM FOR RESTITUTION AVAILABLE IN RESPECT OF ANNUAL CHARGES PAID WHERE SUCH PAYMENT WAS MADE PRIOR TO THE PROMULGATION OF THE JUDGMENT OF THE COURT OF JUSTICE IN THIS CASE OR ONLY IN RESPECT OF SUCH PAYMENTS ( IF ANY ) AS MAY BE MADE AFTER SUCH PROMULGATION ; AND/OR ( III)IN DECIDING WHETHER TO ORDER RESTITUTION OF ANY OF THE ANNUAL CHARGES PAID BY A GROWER IS THE COURT OF THE MEMBER STATE ENTITLED TO TAKE INTO ACCOUNT THAT THE MONEY RAISED BY THE ANNUAL CHARGES HAS BEEN USED BY THE DEVELOPMENT COUNCIL FOR PURPOSES FROM WHICH THE GROWER HAS AND/OR MIGHT HAVE DERIVED A BENEFIT? QUESTION 4 IF ANY SUCH MEASURE AS IS DESCRIBED IN QUESTION 1 OR ANY PART OF SUCH MEASURE IS INCOMPATIBLE WITH ARTICLES 30 OR 34 OF THE EEC TREATY DID SUCH CONFLICT ARISE ON THE DATE REFERRED TO IN ARTICLE 42 OF THE TREATY OF ACCESSION OR THE DATE REFERRED TO IN ARTICLE 60 ( 1 ) THEREOF? THE FIRST QUESTION
10 BY THIS QUESTION , THE TUNBRIDGE WELLS COUNTY COURT WISHES , IN THE FIRST PLACE , TO KNOW WHETHER THE COMMUNITY PROVISIONS INDICATED IN THE QUESTION PRECLUDE THE ESTABLISHMENT OR CONTINUATION OF A BODY HAVING A CONSTITUTION SUCH AS THAT OF THE DEVELOPMENT COUNCIL , IF THAT BODY IS FINANCED BY A CHARGE LEVIED ON GROWERS WHO HAVE AT THEIR DISPOSAL POTENTIAL PRODUCTION CAPACITY IN EXCESS OF CERTAIN LIMITS AND IF THOSE GROWERS ARE OBLIGED TO REGISTER WITH THE BODY AND TO FURNISH RETURNS AND INFORMATION ON THEIR ACTIVITIES IN THE INDUSTRY . IN THE SECOND PLACE , THE COURT ASKS WHETHER SUCH A BODY MAY BE CONTRARY TO THE SAID PROVISIONS BY REASON OF ITS FUNCTIONS .
11 IN THAT REGARD , IT SHOULD BE NOTED THAT THE COMPATIBILITY OF SUCH A BODY WITH COMMUNITY LAW DEPENDS ABOVE ALL UPON ITS FUNCTIONS . THEREFORE , IN ORDER TO REPLY TO THE FIRST QUESTION , THE FUNCTIONS OF THE DEVELOPMENT COUNCIL , AS DESCRIBED IN SCHEDULE 1 TO THE 1980 ORDER , MUST FIRST BE EXAMINED . THE FUNCTIONS OF THE DEVELOPMENT COUNCIL IN GENERAL
12 IT IS APPARENT FROM THAT DESCRIPTION THAT THE DEVELOPMENT COUNCIL IS NOT A PRODUCERS ' ORGANIZATION , WITHIN THE MEANING OF TITLE II OF REGULATION NO 1035/72 , PARTICIPATING IN THE ADMINISTRATION OF THE PRICES AND INTERVENTION SYSTEM PROVIDED FOR BY THAT REGULATION . IT IS NOT THE PURPOSE OF THE DEVELOPMENT COUNCIL TO ACT AS AN INTERMEDIARY FOR THE SALE OF PRODUCTS OR TO INTERVENE IN THE MARKET . IT FOLLOWS THAT CONSIDERATION OF THE FUNCTIONS ENTRUSTED TO THE DEVELOPMENT COUNCIL MUST FOCUS ON THE QUESTION WHETHER THE EXERCISE OF THOSE FUNCTIONS IS CAPABLE OF HINDERING IN SOME OTHER WAY EITHER INTRA-COMMUNITY TRADE OR THE FUNCTIONING OF THE COMMON ORGANIZATION OF THE MARKETS ESTABLISHED IN THAT SECTOR UNDER THE RULES IN THE TREATY RELATING TO AGRICULTURAL POLICY .
13 IN THAT REGARD IT MUST BE NOTED IN THE FIRST PLACE THAT ACTIVITIES RELATING TO SCIENTIFIC OR TECHNICAL RESEARCH , THE COMPILATION OF STATISTICS , THE DISSEMINATION AMONGST GROWERS OF THE INFORMATION OBTAINED AND PURELY ADVISORY FUNCTIONS ARE NOT OF SUCH A NATURE AS TO HINDER INTRA-COMMUNITY TRADE OR THE FUNCTIONING OF THE COMMON ORGANIZATION OF THE MARKETS .
14 ON THE OTHER HAND , THE DESCRIPTION OF THE OTHER FUNCTIONS ENTRUSTED TO THE DEVELOPMENT COUNCIL IN THE SCHEDULE TO THE 1980 ORDER DOES NOT IN ITSELF EXCLUDE THE POSSIBILITY THAT SUCH FUNCTIONS MIGHT BE EXERCISED IN A MANNER CAPABLE OF HINDERING EITHER INTRA-COMMUNITY TRADE OR THE PROPER FUNCTIONING OF THE COMMON ORGANIZATION OF THE MARKETS , A SITUATION WHICH MIGHT THEREFORE BE INCOMPATIBLE WITH THE COMMUNITY PROVISIONS REFERRED TO IN THE REQUEST FOR A PRELIMINARY RULING .
15 IT APPEARS HOWEVER FROM THE DOCUMENTS BEFORE THE COURT THAT THE DEVELOPMENT COUNCIL IS CONCERNED ESSENTIALLY WITH PUBLICITY AND PROMOTION ON THE BRITISH MARKET AND IMPROVEMENT OF THE QUALITY OF THE INDIGENOUS FRUIT MARKETED IN THE UNITED KINGDOM . IT IS THEREFORE NECESSARY TO CONSIDER TO WHAT EXTENT SUCH ACTIVITIES MIGHT BE INCOMPATIBLE WITH THE COMMUNITY PROVISIONS REFERRED TO BY THE NATIONAL COURT . AS REGARDS PUBLICITY AND PROMOTIONAL MEASURES , PARTICULAR ATTENTION SHOULD BE GIVEN TO THE INTERPRETATION OF ARTICLE 30 OF THE TREATY , WHICH PROHIBITS , INTER ALIA , ALL MEASURES HAVING AN EFFECT EQUIVALENT TO QUANTITATIVE RESTRICTIONS ON IMPORTS . ON THE OTHER HAND , THE DEVELOPMENT COUNCIL ' S ACTIVITIES REGARDING QUALITY MUST BE CONSIDERED IN THE LIGHT OF THE QUALITY STANDARDS PROVIDED FOR BY THE RULES ON THE COMMON ORGANIZATION OF THE MARKET IN FRUIT AND VEGETABLES . THE PUBLICITY ACTIVITIES IN PARTICULAR
16 WITH RESPECT TO PUBLICITY AND PROMOTION , IT IS APPARENT FROM THE DOCUMENTS BEFORE THE COURT THAT , IN ADDITION TO ADVERTISING APPLES AND PEARS IN GENERAL , THE DEVELOPMENT COUNCIL ORGANIZES COMPAIGNS RELATING SPECIFICALLY TO ENGLISH AND WELSH APPLES AND PEARS AND , IN PARTICULAR , CERTAIN VARIETIES WHICH ARE TYPICAL OF ENGLISH AND WELSH PRODUCTION .
17 AS THE COURT HELD IN ITS JUDGMENT OF 24 NOVEMBER 1982 IN CASE 249/81 ( COMMISSION V IRELAND ( 1982 ) ECR 4005 ), A PUBLICITY CAMPAIGN TO PROMOTE THE SALE AND PURCHASE OF DOMESTIC PRODUCTS MAY , IN CERTAIN CIRCUMSTANCES , FALL WITHIN THE PROHIBITION CONTAINED IN ARTICLE 30 OF THE TREATY , IF THE CAMPAIGN IS SUPPORTED BY THE PUBLIC AUTHORITIES . IN FACT , A BODY SUCH AS THE DEVELOPMENT COUNCIL , WHICH IS SET UP BY THE GOVERNMENT OF A MEMBER STATE AND IS FINANCED BY A CHARGE IMPOSED ON GROWERS , CANNOT UNDER COMMUNITY LAW ENJOY THE SAME FREEDOM AS REGARDS THE METHODS OF ADVERTISING USED AS THAT ENJOYED BY PRODUCERS THEMSELVES OR PRODUCERS ' ASSOCIATIONS OF A VOLUNTARY CHARACTER .
18 IN PARTICULAR , SUCH A BODY IS UNDER A DUTY NOT TO ENGAGE IN ANY ADVERTISING INTENDED TO DISCOURAGE THE PURCHASE OF PRODUCTS OF OTHER MEMBER STATES OR TO DISPARAGE THOSE PRODUCTS IN THE EYES OF CONSUMERS . NOR MUST IT ADVISE CONSUMERS TO PURCHASE DOMESTIC PRODUCTS SOLELY BY REASON OF THEIR NATIONAL ORIGIN .
19 ON THE OTHER HAND , ARTICLE 30 DOES NOT PREVENT SUCH A BODY FROM DRAWING ATTENTION , IN ITS PUBLICITY , TO THE SPECIFIC QUALITIES OF FRUIT GROWN IN THE MEMBER STATE IN QUESTION OR FROM ORGANIZING CAMPAIGNS TO PROMOTE THE SALE OF CERTAIN VARIETIES , MENTIONING THEIR PARTICULAR PROPERTIES , EVEN IF THOSE VARIETIES ARE TYPICAL OF NATIONAL PRODUCTION .
20 IN THE OBSERVATIONS WHICH IT SUBMITTED TO THE COURT , THE COMMISSION STATED THAT CAMPAIGNS TO PROMOTE CERTAIN VARIETIES MIGHT RESULT IN THE EXCLUSION OF OTHER VARIETIES FROM THE MARKET AND MAKE IT NECESSARY , EITHER IN THE MEMBER STATE IN QUESTION OR IN OTHER MEMBER STATES WHICH EXPORT THE LATTER VARIETIES , TO APPLY THE INTERVENTION MEASURES PROVIDED FOR IN THE COMMON ORGANIZATION OF THE MARKET IN RELATION TO THOSE VARIETIES .
21 ALTHOUGH IT IS TRUE THAT SUCH A DISTORTION OF THE CONDITIONS OF COMPETITION , WHICH WOULD BE INCOMPATIBLE WITH THE PROPER FUNCTIONING OF THE COMMON ORGANIZATION OF THE MARKETS , MIGHT OCCUR IN A MARKET WHERE THE PUBLICITY MEASURES RELATED EXCLUSIVELY OR ESSENTIALLY TO CERTAIN VARIETIES TO THE EXCLUSION OF THE OTHERS , THAT CONSIDERATION CANNOT JUSTIFY THE PROHIBITION OF ALL PUBLICITY CAMPAIGNS WHEREBY AN ORGANIZATION SUCH AS THE DEVELOPMENT COUNCIL DRAWS ATTENTION TO THE PROPERTIES OF CERTAIN VARIETIES AND INDICATES THE USES FOR WHICH THOSE VARIETIES ARE SPECIFICALLY SUITABLE . ACTIVITIES RELATING TO QUALITY
22 AS REGARDS THE QUALITY OF THE DOMESTIC FRUIT MARKETED IN THE UNITED KINGDOM , IT APPEARS THAT THE DEVELOPMENT COUNCIL MAKES RECOMMENDATIONS CONCERNING THE SIZE OF THE FRUIT MARKETED AT THE BEGINNING OF THE SEASON AND THAT THOSE RECOMMENDATIONS GO BEYOND WHAT IS REQUIRED BY THE COMMUNITY QUALITY STANDARDS . MOREOVER , THE DEVELOPMENT COUNCIL ' S ANNUAL REPORTS SHOW THAT IT CARRIES OUT QUALITY CONTROL INSPECTIONS ON THE WHOLESALE MARKETS AND REPORTS ANY CASES OF FAILURE TO COMPLY WITH THOSE RECOMMENDATIONS TO THE GROWERS IN QUESTION AND TO THE ORGANIZATIONS OF WHICH THE WHOLESALERS CONCERNED ARE MEMBERS .
23 IN THAT REGARD , IT SHOULD BE EMPHASIZED THAT THE RULES ON THE COMMON ORGANIZATION OF THE MARKET IN FRUIT AND VEGETABLES PROVIDE FOR AN EXHAUSTIVE SYSTEM OF QUALITY STANDARDS APPLICABLE TO THE PRODUCTS IN QUESTION . UNLESS THOSE RULES PROVIDE OTHERWISE , MEMBER STATES AND , A FORTIORI , BODIES SUCH AS THE DEVELOPMENT COUNCIL ARE THEREFORE PREVENTED FROM IMPOSING UNILATERAL PROVISIONS CONCERNING THE QUALITY OF THE FRUIT MARKETED BY GROWERS .
24 THE COMMUNITY RULES CERTAINLY DO NOT PREVENT COMPETITION REGARDING THE QUALITY OF THE PRODUCE BETWEEN GROWERS IN A MEMBER STATE OR BETWEEN THOSE GROWERS AND IMPORTERS . NOR DO THEY PREVENT GROWERS FROM CONCERNING THEMSELVES WITH THE REPUTATION OF NATIONAL PRODUCE OR A BODY SUCH AS THE DEVELOPMENT COUNCIL FROM GIVING ADVICE TO GROWERS IN THAT CONNECTION IN THE FORM OF SIMPLE RECOMMENDATIONS CONCERNING THE QUALITY AND PRESENTATION OF THE FRUIT MARKETED . ON THE OTHER HAND , ANY ATTEMPT BY SUCH A BODY TO IMPOSE COMPLIANCE WITH THOSE RECOMMENDATIONS BY APPLYING ANY SORT OF PENALTIES OR BY USING THE AUTHORITY VESTED IN IT BY ITS CONSTITUTION TO BRING PRESSURE TO BEAR ON GROWERS OR ON TRADERS WOULD BE UNLAWFUL IN VIEW OF THE EXHAUSTIVE NATURE OF THE COMMUNITY RULES .
25 IT IS FOR THE NATIONAL COURT TO DECIDE , ON THE BASIS OF THE INTERPRETATIVE CRITERIA GIVEN ABOVE , WHETHER , AND IF SO TO WHAT EXTENT , THE EXERCISE BY THE DEVELOPMENT COUNCIL OF THE FUNCTIONS WHICH THE NATIONAL RULES HAVE ENTRUSTED TO IT IS INCOMPATIBLE WITH COMMUNITY LAW . COMPULSORY MEMBERSHIP
26 IN PARTS ( II ) AND ( V ) OF THE FIRST QUESTION , THE NATIONAL COURT SPECIFICALLY ASKS WHETHER THE COMMUNITY PROVISIONS MENTIONED IN THAT QUESTION RENDER UNLAWFUL THE OBLIGATION IMPOSED UPON GROWERS WHOSE POTENTIAL PRODUCTION CAPACITY EXCEEDS CERTAIN LIMITS TO REGISTER WITH AN ORGANIZATION SUCH AS THE DEVELOPMENT COUNCIL .
27 IN THAT REGARD IT IS TO BE NOTED THAT THE PROVISIONS OF TITLE II OF REGULATION NO 1035/72 RELATING TO PRODUCERS ' ORGANIZATIONS DO NOT PROHIBIT THE EXISTENCE OF OTHER ORGANIZATIONS OF WHICH PRODUCERS MUST BECOME MEMBERS . IT SHOULD ALSO BE NOTED THAT , ACCORDING TO THE INFORMATION CONTAINED IN THE DOCUMENTS BEFORE THE COURT , THE BODY IN QUESTION DOES NOT CARRY OUT ANY ACTIVITIES RELATING TO INTRA-COMMUNITY TRADE .
28 IN THOSE CIRCUMSTANCES THE OBLIGATION TO BECOME A MEMBER OF SUCH A BODY CANNOT BE REGARDED AS INCOMPATIBLE WITH THE PROVISIONS MENTIONED IN THE QUESTION UNLESS THE ACTIVITIES OF THAT BODY ARE THEMSELVES CONTRARY TO THOSE PROVISIONS . THE CHARGE IMPOSED ON GROWERS
29 IN PART ( IV ) OF THE FIRST QUESTION , THE NATIONAL COURT ASKS WHETHER A CHARGE SUCH AS THE ONE IN ISSUE IS INCOMPATIBLE , AS SUCH , WITH THE COMMUNITY PROVISIONS REFERRED TO IN THAT QUESTION .
30 AS REGARDS ARTICLES 30 AND 34 OF THE TREATY , IT IS SUFFICIENT IN THIS RESPECT TO POINT OUT , AS THE COURT DID IN INTER ALIA ITS JUDGMENT OF 22 MARCH 1977 IN CASE 74/76 ( IANNELLI & VOLPI V MERONI ( 1977 ) ECR 557 ), THAT THE CHARGES , BEING MEASURES OF A FISCAL NATURE OR OF EQUIVALENT EFFECT , FALL WITHIN THE SCOPE , NOT OF THOSE ARTICLES , BUT OF ARTICLES 9 TO 16 AND 95 OF THE TREATY . SINCE THE CHARGE IN QUESTION DOES NOT APPLY TO IMPORTED PRODUCE AND ONLY AFFECTS PRODUCE INTENDED FOR EXPORT IN THE SAME WAY AS PRODUCE SOLD ON THE HOME MARKET , IT DOES NOT RAISE ANY PROBLEM IN RELATION TO THE LAST-MENTIONED ARTICLES EITHER .
31 AS THE COURT HAS HELD PREVIOUSLY , IN PARTICULAR IN ITS JUDGMENT OF 26 OCTOBER 1983 IN CASE 297/82 ( DE SAMVIRKENDE DANSKE LANDBOFORENINGER ( 1983 ) ECR 3299 ), A CHARGE IMPOSED ON AGRICULTURAL PRODUCERS IS INCOMPATIBLE WITH THE COMMUNITY PROVISIONS RELATING TO AGRICULTURAL POLICY , IN SO FAR AS IT HAS THE EFFECT , AS A RESULT OF ITS INFLUENCE ON PRICE FORMATION OR THROUGH THE CHANGE IN THE STRUCTURE OF AGRICULTURAL HOLDINGS WHICH MAY RESULT THEREFROM , OF IMPEDING FUNCTIONING OF THE MACHINERY PROVIDED FOR UNDER THE COMMON ORGANIZATION OF THE MARKETS . ALTHOUGH IT IS FOR THE NATIONAL COURT TO CONSIDER WHETHER , AND IF SO , TO WHAT EXTENT , THE CHARGE WHICH IT IS CALLED UPON TO CONSIDER HAS ACTUALLY PRODUCED SUCH EFFECTS , IT SHOULD NEVERTHELESS BE NOTED THAT AS A GENERAL RULE A CHARGE OF WHICH THE PROCEEDS ARE ESSENTIALLY USED FOR PUBLICITY MEASURES WHICH WOULD OTHERWISE HAVE TO BE FINANCED BY THE PRODUCERS THEMSELVES CANNOT HAVE SUCH EFFECTS .
32 HOWEVER , IT SHOULD BE EMPHASIZED THAT THE LEVYING OF A CHARGE SUCH AS THE ONE IN QUESTION WOULD BE CONTRARY TO COMMUNITY LAW TO THE EXTENT TO WHICH IT SERVED TO FINANCE ACTIVITIES WHICH WERE INCOMPATIBLE WITH THE PROVISIONS REFERRED TO IN THE REQUEST FOR A PRELIMINARY RULING .
33 THE FIRST QUESTION MUST THEREFORE BE ANSWERED AS FOLLOWS : ( A ) THE PROVISIONS OF THE TREATY RELATING TO THE FREE MOVEMENT OF GOODS AND TO AGRICULTURE AND THE RULES ON THE COMMON ORGANIZATION OF THE MARKET IN FRUIT AND VEGETABLES DO NOT PREVENT A MEMBER STATE FROM ADOPTING OR MAINTAINING MEASURES ( I ) ESTABLISHING A DEVELOPMENT COUNCIL FOR FRUIT PRODUCTION , COMPOSED OF MEMBERS APPOINTED BY THE MINISTER RESPONSIBLE , IN PARTICULAR FROM AMONG THE GROWERS INVOLVED , AND ( II)REQUIRING ONLY FRUIT GROWERS WITH A PLANTATION WHICH EXCEEDS A SPECIFIED SIZE TO REGISTER WITH THE SAID COUNCIL , TO FURNISH RETURNS AND INFORMATION ON THEIR ACTIVITIES IN THE INDUSTRY AND TO FINANCE THE ADMINISTRATIVE AND OTHER EXPENSES OF THE COUNCIL BY THE PAYMENT OF AN ANNUAL CHARGE , IN SO FAR AS THE ACTIVITIES OF THE COUNCIL CONSIST IN COMPILING STATISTICS , PROMOTING OR UNDERTAKING RESEARCH , MAKING THE RESULTS THUS OBTAINED AVAILABLE TO GROWERS AND GIVING GROWERS TECHNICAL ADVICE ABOUT FRUIT-GROWING . ( B)THE SAID PROVISIONS DO NOT PREVENT SUCH A BODY FROM DRAWING ATTENTION , IN ITS PUBLICITY , TO THE SPECIFIC QUALITIES OF FRUIT PRODUCED WITHIN THE MEMBER STATE IN QUESTION OR FROM ORGANIZING CAMPAIGNS TO PROMOTE THE SALE OF CERTAIN VARIETIES , MENTIONING THEIR PARTICULAR PROPERTIES , EVEN IF THOSE VARIETIES ARE TYPICAL OF NATIONAL PRODUCTION ; ON THE OTHER HAND , IT WOULD BE CONTRARY TO ARTICLE 30 OF THE TREATY FOR SUCH A BODY TO ENGAGE IN PUBLICITY INTENDED TO DISCOURAGE THE PURCHASE OF PRODUCTS FROM OTHER MEMBER STATES OR TO DISPARAGE THOSE PRODUCTS IN THE EYES OF CONSUMERS , OR TO ADVISE CONSUMERS TO PURCHASE DOMESTIC PRODUCTS SOLELY BY REASON OF THEIR NATIONAL ORIGIN . ( C)THE SAID PROVISIONS DO NOT PREVENT SUCH A BODY FROM ADDRESSING TO GROWERS , WITHIN THE FRAMEWORK OF ITS GENERAL ADVISORY ROLE , RECOMMENDATIONS CONCERNING THE QUALITY AND PRESENTATION OF THE FRUIT MARKETED ; ON THE OTHER HAND , IN VIEW OF THE EXHAUSTIVE NATURE OF THE SYSTEM OF COMMON QUALITY STANDARDS IT WOULD BE UNLAWFUL FOR SUCH A BODY TO ATTEMPT TO IMPOSE COMPLIANCE WITH STANDARDS DIFFERENT FROM THOSE COMMON STANDARDS , BY APPLYING ANY SORT OF SANCTIONS OR BY USING THE AUTHORITY VESTED IN IT BY ITS CONSTITUTION TO BRING PRESSURE TO BEAR ON GROWERS OR TRADERS . ( D)THE SAID PROVISIONS RENDER UNLAWFUL THE REQUIREMENT FOR GROWERS TO BECOME MEMBERS OF SUCH A BODY OR TO FINANCE ITS ACTIVITIES BY THE PAYMENT OF A CHARGE , IF AND IN SO FAR AS THOSE ACTIVITIES ARE CONTRARY TO THE SAID PROVISIONS . THE SECOND QUESTION
34 AS WILL BE APPARENT FROM THE FOREGOING , THE ANSWER GIVEN TO THE FIRST QUESTION TAKES INTO ACCOUNT , ON THE ONE HAND , THE NATURE OF THE FUNCTIONS DISCHARGED BY THE BODY IN QUESTION AND , ON THE OTHER , THE FACT THAT IT IS A BODY CREATED BY THE GOVERNMENT OF A MEMBER STATE AND FINANCED BY A CHARGE IMPOSED ON GROWERS BY VIRTUE OF NATIONAL REGULATIONS . BY CONTRAST , THE PROCEDURE FOLLOWED BY THE GOVERNMENT IN ESTABLISHING THAT BODY AND , IN PARTICULAR , THE NATURE AND THE RESULTS OF THE CONSULTATIONS CARRIED OUT BY THE GOVERNMENT BEFORE TAKING ITS DECISIONS REGARDING THE CREATION OR CONTINUATION OF THE BODY ARE OF NO RELEVANCE TO THE ANSWER TO BE GIVEN .
35 THE ANSWER TO THE SECOND QUESTION MUST THEREFORE BE THAT THE FACT THAT THE COUNCIL IN QUESTION WAS CREATED AND MAINTAINED WITH THE EXPRESS APPROVAL OF GROWERS REPRESENTING MORE THAN HALF OF THE LAND PLANTED AND AFTER CONSULTATION WITH ORGANIZATIONS APPARENTLY REPRESENTING A LARGE NUMBER OF PERSONS CARRYING ON BUSINESS OR EMPLOYED IN THE INDUSTRY DOES NOT AFFECT THE REPLY GIVEN TO THE FIRST QUESTION . THIRD QUESTION
36 BY THIS QUESTION THE NATIONAL COURT WISHES TO BE INFORMED OF THE CRITERIA FOR THE INTERPRETATION OF COMMUNITY LAW WHICH IT NEEDS IN ORDER TO CONSIDER THE CONSEQUENCES OF ANY INCOMPATIBILITY OF THE RULES IN QUESTION WITH THE COMMUNITY PROVISIONS REFERRED TO IN ITS FIRST QUESTION .
37 IN THAT RESPECT IT MUST , IN THE FIRST PLACE , BE EMPHASIZED THAT , AS THE COURT HAS CONSISTENTLY HELD , ARTICLES 30 AND 34 OF THE TREATY CONFER UPON INDIVIDUALS RIGHTS WHICH THEY MAY ENFORCE BEFORE THE COURTS OF A MEMBER STATE . AS REGARDS THE REGULATIONS ON THE COMMON ORGANIZATION OF THE MARKETS , THE SAME DIRECT EFFECT DERIVES FROM THE FACT THAT , BY VIRTUE OF ARTICLE 189 OF THE TREATY , REGULATIONS ARE DIRECTLY APPLICABLE IN EVERY MEMBER STATE .
38 IN THE SECOND PLACE , IT MUST BE POINTED OUT , AS THE COURT DID IN , INTER ALIA , ITS JUDGMENT OF 27 MARCH 1980 IN CASE 61/79 ( AMMINISTRAZIONE DELLE FINANZE DELLO STATO V DENKAVIT ITALIANA , ( 1980 ) ECR 1205 ), THAT THE INTERPRETATION OF THE RULES OF COMMUNITY LAW GIVEN BY THE COURT UNDER ARTICLE 177 OF THE TREATY MAY AND MUST BE APPLIED BY THE NATIONAL COURT EVEN TO LEGAL RELATIONSHIPS ARISING AND ESTABLISHED BEFORE THE JUDGMENT RULING ON THE REQUEST FOR INTERPRETATION , PROVIDED THAT IN OTHER RESPECTS THE CONDITIONS ENABLING AN ACTION RELATING TO THE APPLICATION OF THE SAID RULES TO BE BROUGHT BEFORE THE COURTS HAVING JURISDICTION ARE SATISFIED .
39 IT FOLLOWS THAT THE PROVISIONS OF COMMUNITY LAW MENTIONED ABOVE MAY BE RAISED AS A DEFENCE TO A CLAIM FOR PAYMENT OF A CHARGE WHICH IS INCOMPATIBLE WITH THOSE PROVISIONS AND THAT THEY MAY ALSO BE RAISED AS GROUNDS FOR CLAIMING RESTITUTION OF SUCH A CHARGE , WHERE IT HAS BEEN IMPROPERLY LEVIED .
40 WHERE A CHARGE SERVES TO FINANCE A BODY SOME OF WHOSE ACTIVITIES ARE HELD TO BE CONTRARY TO COMMUNITY LAW , IT IS FOR THE NATIONAL COURT TO DECIDE WHETHER , IN THE LIGHT OF THE IMPORTANCE OF THE ACTIVITIES IN QUESTION , THAT FACT RENDERS THE CHARGE UNLAWFUL AND MUST ENTAIL TOTAL OR PARTIAL EXEMPTION .
41 IT IS ALSO FOR THE NATIONAL COURT TO DETERMINE , ACCORDING TO ITS NATIONAL LAW , WHETHER AND TO WHAT EXTENT SUCH A CHARGE MUST BE REFUNDED AND WHETHER AND TO WHAT EXTENT SUCH ENTITLEMENT TO A REFUND IS OFFSET BY THE ADVANTAGES ACCRUING DIRECTLY TO THE PERSON CONCERNED AS A RESULT OF THE ACTIVITIES OF THE SAID BODY .
42 THE REPLY TO THE THIRD QUESTION MUST THEREFORE BE THAT : ( A ) ARTICLES 30 AND 34 OF THE TREATY AND THE REGULATIONS ON THE COMMON ORGANIZATION OF THE MAKETS CONFER UPON INDIVIDUALS RIGHTS WHICH THEY MAY ENFORCE BEFORE THE COURTS OF A MEMBER STATE . ( B)THOSE PROVISIONS MAY BE RAISED AS A DEFENCE TO A CLAIM FOR PAYMENT OF A CHARGE WHICH IS INCOMPATIBLE THEREWITH AND MAY BE RAISED AS A GROUND FOR CLAIMING RESTITUTION OF SUCH A CHARGE , EVEN IF PAYMENT TOOK PLACE BEFORE THAT INCOMPATIBILITY WAS DECLARED IN AN INTERPRETATION GIVEN BY THE COURT UNDER ARTICLE 177 OF THE TREATY . ( C)WHERE A CHARGE SERVES TO FINANCE A BODY SOME OF WHOSE ACTIVITIES ARE HELD TO BE CONTRARY TO COMMUNITY LAW , IT IS FOR THE NATIONAL COURT TO DECIDE WHETHER , IN THE LIGHT OF THE IMPORTANCE OF THE ACTIVITIES IN QUESTION , THAT FACT RENDERS THE CHARGE UNLAWFUL AND MUST ENTAIL TOTAL OR PARTIAL EXEMPTION . ( D)IN THE SAME CIRCUMSTANCES , IT IS ALSO FOR THE NATIONAL COURT TO DETERMINE , IN ACCORDANCE WITH ITS NATIONAL LAW , WHETHER AND TO WHAT EXTENT THE CHARGE MUST BE REFUNDED AND WHETHER AND TO WHAT EXTENT SUCH ENTITLEMENT TO A REFUND IS OFFSET BY THE ADVANTAGES ACCRUING DIRECTLY TO THE PERSON CONCERNED AS A RESULT OF THE ACTIVITIES OF THE SAID BODY . THE FOURTH QUESTION
43 IN ITS LAST QUESTION , THE NATIONAL COURT ASKS , IN ESSENCE , WHETHER , AS REGARDS PRODUCTS WHICH WERE SUBJECT TO THE COMMON ORGANIZATION OF THE MARKETS WHEN THE UNITED KINGDOM ACCEDED TO THE COMMUNITIES , THE PROHIBITION OF MEASURES HAVING AN EFFECT EQUIVALENT TO QUANTITATIVE RESTRICTIONS LAID DOWN IN ARTICLES 30 AND 34 OF THE TREATY TOOK EFFECT ON 1 FEBRUARY 1973 , AS PROVIDED IN ARTICLE 60 ( 1 ) OF THE ACT OF ACCESSION , OR ON 1 JANUARY 1975 , THE DATE STIPULATED BY THE GENERAL RULE LAID DOWN IN THE SECOND PARAGRAPH OF ARTICLE 42 OF THE ACT OF ACCESSION .
44 AS THE COURT HELD IN ITS JUDGMENT OF 20 MARCH 1979 IN CASE 231/78 ( COMMISSION V UNITED KINGDOM ( 1979 ) ECR 1447 ), THE PROVISIONS OF ARTICLE 60 DEROGATE FROM THE GENERAL RULES LAID DOWN IN ARTICLE 42 .
45 THE REPLY TO THE FOURTH QUESTION MUST THEREFORE BE THAT , AS REGARDS PRODUCTS SUBJECT TO THE COMMON ORGANIZATION OF THE AGRICULTURAL MARKETS AT THE TIME OF THE UNITED KINGDOM ' S ACCESSION , THE PROVISIONS OF THE TREATY PROHIBITING MEASURES HAVING AN EFFECT EQUIVALENT TO QUANTITATIVE RESTRICTIONS BECAME APPLICABLE IN THE UNITED KINGDOM ON 1 FEBRUARY 1973 IN ACCORDANCE WITH ARTICLE 60 ( 1 ) OF THE ACT OF ACCESSION .