Important legal notice

61989C0359

European Court reports 1991 Page I-01677

Opinion of the Advocate-General

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Mr President,

Members of the Court,

2. The facts are very simple. On 18 December 1981 the Società Agricola Fattoria Alimentare (hereinafter referred to as "SAFA") instituted proceedings before the national court against the Italian Ministry of Finance in order to recover import levies paid on imports of extra-virgin olive oil from Greece in 1979 and 1980. Before that court SAFA contended that recourse could be had to the tendering procedure for fixing the amount of import levies only in specific cases, failing which there would be a breach of fundamental rights recognized by the Community legal order. Consequently, the Tribunale Civile di Genova put two questions to the Court.

"The question whether the provisions or concepts of Community law, whose interpretation is requested, are in fact applicable to the case in question lies outside the jurisdiction of the Court of Justice and falls within the jurisdiction of the national court". (5)

At most it may be said that the interpretation accorded to Article 16 of Regulation No 136/66 as amended is equally applicable to Article 5 of Regulation No 2749/78, having regard to the similarity of their provisions.

6. It is apparent from a reading of that article that, other than in the specific case of imports involving in quantities which have no effect on the market, the levy may be fixed by tendering procedure where - that is to say, in my view, for as long as - the real trend on the world market cannot be determined from the offers on that market.

7. In its written observations (10) the Commission indicated that in 1979 and 1980 there was no world price for untreated olive oil, a situation which remains the same today. Morocco and Turkey had gradually withdrawn from the export market; other States prefer to sell treated oil. Tunisian exports were under the control of a state body; finally, in Spain and Greece, which were not yet members of the Community, traders were few and engaged in concerted action.

10. The first complaint seems inapposite in the light of the Court' s decisions concerning (11) the implementing powers accorded to the Commission in the sphere of the common agricultural policy. In its judgment of 11 March 1987 in Rau v Commission the Court held:

11. According to the ninth recital in the preamble to Regulation No 136/66, "in order to stabilize the Community market at the desired level, notably by ensuring that fluctuations in world market prices do not affect prices within the Community, provision should be made for charging an import levy corresponding to the difference between the threshold price derived from the market target price and prices ruling on the world market".

12. The Commission' s discretion must therefore be appraised in the light of the essential general objective of stabilizing the Community market. In so far as the structure of the world market in untreated olive oil does not allow a market price to be established, recourse to the tendering procedure for fixing the amount of the import levy seems to be only means of ensuring the stability of the Community market.

13. As I have stated, the second complaint concerns a breach of fundamental rights and more particularly the principle of non-discrimination. It is difficult to see, from a reading of the order for reference, why recourse to the tendering procedure should disrupt the equal treatment of traders. Where there is no market price on the world market in olive oil each trader may acquire quantities of olive oil at very different prices and consequently propose different levies having regard to the requirements of profitability. The Commission, by fixing a minimum levy, ensures that import prices are maintained at a certain level so as not to disrupt the Community market. Traders who propose levies higher than or equal to that threshold may well obtain the same profit from imports subject to different levies. The complaint is therefore untenable.

15. It is sufficient to point out in this connection that the national court has sought a ruling on the validity of Article 16 of Regulation No 136/66 as amended in so far as it confers certain powers on the Commission, and not of a decision adopted in pursuance of that provision having regard to the allegedly incorrect manner in which it was applied. In other words, it is not necessary for the Court to examine the case - which is not envisaged by the national court - of a manifest error of appraisal, a misuse of power or a manifest exceeding of the limits of its discretion (13) by the Commission in implementing the provision in question.

16. I therefore propose that the Court rules as follows:

"1. Article 16 of Regulation No 136/66/EEC of the Council of 22 September 1966 on the establishment of a common organization of the market in oils and fats, as amended by Council Regulation No 1562/78/EEC of 29 June 1978, must be interpreted as authorizing the use of the tendering procedure to determine the import levy on untreated olive oil for the years 1979 and 1980.

2. Consideration of the preliminary question has disclosed no factor of such a nature as to affect the validity of Article 16 of that regulation."

(*) Original language: French.

(1) Regulation of 29 June 1978 amending Regulation No 136/66/EEC on the establishment of a common organization of the market in oils and fats (OJ L 185, p. 1).

(2) Regulation of 22 September 1966 on the establishment of a common organization of the market in oils and fats (OJ, English Special Edition 1965-1966, p. 221).

(3) OJ 1978 L 331, p. 1.

(4) By "basic regulation" is meant Regulation 136/66, as amended.

(5) Judgment in Case 10-69 Portelange [1969] ECR 309, at paragraph 6; see also judgment in Case 13/68 Salgoil [1968] ECR 453, judgment in Case 28/68 Torrekens [1969] ECR 125 (subparagraphs 7 and 8), judgment in Case 35/76 Simmenthal [1976] ECR 1871 (at paragraph 8), judgment in Case 5/77 Tedeschi 1977 ECR 1555 (at paragraph 19).

(6) Article 4(1) of Regulation No 1562/78.

(7) Article 14(1) of Regulation No 1562/78.

(8) Article 16(2) of Regulation No 136/66 as amended.

(9) Article 16(3) of Regulation No 136/66 as amended.

(10) Page 9 of French translation.

(11) Judgment in Case 23/75 Rey Soda [1975] ECR 1279, paragraph 11; judgment in Joined Cases 279, 280, 285 and 286/84 Rau v Commission [1987] ECR 1869, paragraph 14; Case C-350/88 Société française des biscuits Delacre and others v Commission [1990] ECR I-395, paragraph 2.

(12) Joined Cases 279, 280, 285 and 286/84, cited above, at paragraph 14.

(13) Judgment in Case 29/77 Roquette [1977] ECR 1835, at paragraph 20; judgment in Case 136/77 Racke [1978] ECR 1245, at paragraph 4.

Translation