OPINION OF MR ROEMER — CASE 82/71 PUBBLICO MINISTERO ITALIANO v SAIL

Mr President,

Members of the Court,

The SAIL undertaking, an Italian company having its registered office at Bari, operates a dairy at Gioia del Colle. On 17 April 1971 it delivered through its licensee Perle, homogenized, pasteurized whole milk to a dairyman at Bari. These facts were established by the public health authorities and gave rise to criminal proceedings before the Pretore di Bari. In that respect I must discuss some aspects of Italian law, the following particulars of which must be known. Article 1 of Law No 851 of 16 June 1938 (Gazzetta Ufficiale, No 147) permits the establishment of milk centres in communes where the daily consumption of drinking milk is at least 100 hectolitres. These centres have the task of collecting the milk intended for direct local consumption, ensuring its purity, subjecting it to treatment to ensure that it is safe and packaging it for sale to consumers so as to prevent any adulteration. They are set up on the request of the communes concerned, by means of an authorization which the Prefect grants after agreement by the Ministry concerned. Originally it was intended that the communes would entrust the establishment and the management of these milk centres to corporate professional associations. Since the professional associations and the corporate economic system had however ceased to exist at the end of the Fascist era, those centres may now be managed either directly by the communes or by private companies under the control of the communes. Article 11 of the said Law No 851 requires the centres to buy the milk which they require from all the producers in an area fixed in accordance with the needs of the population by a decree of the Prefect. Article 12 provides that, exceptionally, when the milk produced in the reserved area is not sufficient to meet local consumption, centres may be authorized by the Prefect to import milk from another source. Most important, however, in the present case is Article 13 according to which, for communes where there is a milk centre the Prefect shall determine the area in which it is prohibited to bring in or to sell milk which does not come from the centre. Independently of certain other exceptions, the Law authorizes only processing undertakings which cannot obtain from the centre the industrial milk intended to be processed in establishments situated in the area, to buy it directly from the producers. Lastly, Article 16 of the Law lays down that infringements of Article 13 are punishable by a fine not exceeding Lit 16000.

Because there is a milk centre at Bari and because SAIL had no right to sell milk to it, criminal proceedings were brought against SAIL before the Pretore di Bari for infringement of Article 13 of the Law the provisions of which I have just explained. In its defence the legal representative of the undertaking maintained that Italian Law No 851 was incompatible with the provisions laid down concerning monopolies in Article 37 of the EEC Treaty and with Community agricultural Regulations (EEC) Nos 804/68 (OJ English Special Edition 1968 (I), p. 176) and 2622/69 (OJ English Special Edition 1969 (II), p. 615) and that consequently this Law could no longer be applied. In view of this argument and considering that in application of Article 15 of the introductory provisions of the Civil Code, the provisions of Community law which are directly applicable must in the case of conflict with national law take precedence over the provisions of internal law made prior thereto, the Pretore decided on 3 July 1971 to stay the proceedings and to ask the Court to give a preliminary ruling on the following questions :

I shall now try to reply to these questions, taking into account the written and oral observations submitted by SAIL, the Government of the Italian Republic and the Council and the Commission of the European Communities.

1. Let me start with a comment of a general nature.

2. Having said that, before going into the problems of substance, I still have to consider certain questions of admissibility. The Italian Government in particular has referred to them, but so, too, has the Commission. The manner in which certain of the questions which have been referred to the Court are worded compels me to admit that these objections are not groundless.

3. As to the substance of the case properly so-called, the Pretore di Bari asks you first of all to interpret Article 37(1) of the EEC Treaty, that is to say (if we take the first two questions together) to specify the concept of State monopolies of a commercial character, to decide what must be understood by a body through which a Member State, in law or in fact, either directly of indirectly supervises, determines or appreciably influences imports… between Member States and to explain the phrase in Article 37(1) according to which it is necessary that when the transitional period has ended no discrimination regarding the conditions under which goods are procured and marketed exists between nationals of Member States. The Court is asked to provide that interpretation with regard to the Italian milk centres the particular duties and special privileges of which I have already explained, especially the exclusive right granted to them to sell milk in a certain area. In order to reply to the Pretore within whose jurisdiction lies the interpretation of national law the Court must confine itself to what he has informed the Court of the nature of those centres.

4. Having said that, it is still important to consider whether certain other provisions of the Treaty may be an obstacle to the application of Article 37. In that respect consideration must first be given to Article 90(2) the interpretation of which the national court requests in its fourth question. As you know, this paragraph provides that Undertakings entrusted with the operation of services of general economic interest… shall be subject to the rules contained in this Treaty, in particular to the rules on competition only in so far as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them. When considering how this provision is to be interpreted in view of the position and tasks of the milk centres as they have been described by the national court I find first of all that (as the Commission has pointed out) the expression operation of services of general economic interest appears to cover a wide field of application. The services must be of an economic nature, for example the distribution of consumer goods, carried out in the interest of the citizens as a whole, although the whole population need not necessarily be involved because it is enough that certain groups of the population benefit from the services in question. It can probably be accepted that such is the case with regards to the Italian milk centres, despite doubts expressed thereon by SAIL. It may further be accepted that particular tasks have been assigned to the milk centres by the national authorities, particularly as these centres must ensure the commercial and hygienic qualities of the milk which they distribute, and perhaps also in view of their duty to supply the population with milk. But another essential comment must be made on Article 90(2), which is that it only exludes (as I have already said) the application of the general rules of the Treaty to the extent to which the latter obstruct the performance, in law or in fact, of the particular tasks assigned to the undertakings referred to by subparagraph (2). On this point, the Commission rightly observes that in view of the exceptional nature of this provision it should be interpreted strictly in every case. It points out further that the exemption in question does not apply where trade is prejudiced to an extent which conflicts with the interests of the Community. Therefore there is no doubt that when the interests in question are evaluated it is necessary to be especially strict when rules concerning the free movement of goods have to be applied. I cannot see what other general criteria of interpretation may be deduced in relation to Article 90. At most I can mention also that it is impossible to see how, by implementing the requirements laid down by Article 37 (that is to say, by eliminating the possibility of discrimination by the abolition of the exclusive right of sale), it would be possible to prevent the performance in law of the tasks assigned to the milk centres, because, on the contrary (at least as regards supplies), it may be considered that the performance thereof would be improved. I do not believe either that it is . possible to say that this measure would in fact jeopardize the performance of those tasks on the ground that the abolition of hindrances to competition might endanger the existence of the milk centres. That assumption is certainly very unlikely. It may be said, further, that with regard to the application of Article 90 it must not be forgotten that the principle that the development of trade must not be affected to such an extent as would be contrary to the interests of the Community must in any case be made to prevail.

5. But, independently of Article 90(2) the present case may also bring into play Article 36 of the Treaty. As you know, this article authorizes prohibitions or restrictions on imports which are justified on grounds of the protection of health and life of humans, animals or plants. And it is certainly possible to consider that it does not apply only to the provisions of Articles 30 to 34, but, because of the relatedness of the matter, it must also be considered in applying Article 37. Thus I should consider how Article 36 must be interpreted in relation to a situation, such as that in the present case, which has been put before the national court. No doubt the objection could be made that the latter has not asked you a question on this point and that it seems in fact that having interpreted Italian Law No 851 the court deliberately did not ask this. Like the Commission, however, I do not see what could prevent some guidance from being added on this subject for the sake of completeness.

6. In a further question the Pretore asks the Court whether, as from the expiry of the period which was laid down by Article 22(2) of Regulation (EEC) No 804/68 and extended by Article 2 of Regulation (EEC) No 2622/69, that is to say, from 1 April 1970, it is necessary to take the view that, in view of Articles 5 and 37 of the EEC Treaty, there was a prohibition on restrictions on the importation and sale of milk.

7. There remains one last question for me to consider within the framework of the present case: that of the direct applicability of the said Article 37. On that point I can be very brief.

8. To recapitulate, I suggest, therefore, that the Court reply to the Pretore di Bari as follows :

1 Translated from the French version.