OPINION OF MR REISCHL — CASE 134/73 HOLTZ v COUNCIL

Mr President,

Members of the Court,

Regulation No 136/66 of the Council of 22 September 1966 (OJ No 172 of 30. 9. 1966) established a common organization of the market in oils and fats. As from 1 July 1967 it also applies to colza and rape seed as well as rape oil manufactured therefrom (Regulation No 225/67 OJ NO 136 of 30. 6. 1967). Having regard to the level of target prices with the Community and the lower level of world market prices, it provides, for the purpose of inter alia reducing the cost price to oil mills of colza produced within the Community, for the grant of subsidies amounting tothe difference between the target price and the world market price. Mention must also be made of the fact that having regard to the difficulties facing Italian oil mills — their distance from the main colza producing areas — additional subsidies are granted for colza and rape seed processed in Italy. The first time this happened was by Regulation of the Council No 876/67 (OJ No 281 of 21. 11. 1967), which in the first instance was limited to the marketing year 1967/68 and which made provision for subsidies amounting to 0·675 u. a. per 100 kg of oil seeds. During the following marketing years this special scheme was retained on each ocassion. During the marketing year 1972/73 this was done by Regulation of the Council No 1336/72 (OJ No 1147 of 29. 6. 1972) the rate of subsidy on this occasion being reduced to 0·8 u.a. after having in previous years been raised to 0·85 u.a.

Firma Holtz und Willemsen, which was an oil mill in Krefeld-Uerdingen (North Rhine-Westphalia), inter alia processing rape oil from colza and rape seed, considers this special provision to be discriminatory within the meaning of Article 7 of the EEC Treaty. In this connexion it relies on the fact that, colza production in the immediate surrounding area not being sufficient, it also has to obtain colza over greater distances (that is from Northern France and Schleswig-Holstein), and that it is therefore subject to difficulties similar to those faced by oil mills in Northern Italy. In its view this discrimination results in Italian oil mills being able to acquire the Community products at substantially intervention price, whilst other mills have to process more expensive imported colza and for that reason also cannot compete with the Italian prices for colza oil-cake — particulary in Southern Germany.

It was with a view to changing this situation, that Firma Holtz und Willemsen accordingly, by letter of 29 January 1973, approached the Council and the Commission of the European Communities. To the Council they addressed a request, pursuant to Article 175 of the EEC Treaty, to enact a regulation that would also provide an additional subsidy for other oil mills far from the various production areas and in this connexion the applicant, relying on a 1972 proposal of the Commission for regionalizing this subsidy for oil mills in such situations, was thinking in terms of a subsidy amounting to 0·6 u.a. It requested the Commission to submit such a proposal to the Council.

The Commission replied on 8 March 1973, agreeing to examine the matter. However, it did not submit the requested proposal to the Council but instead, for the marketing year 1973/74 also, a subsidy was provided only for Italian oil mills (as can be seen from Regulation No 1357/73 of 15 May 1973, OJ L 141 of 28. 5. 1973). On 23 March 1973 the Council replied stating that its Regulations for special subsidy to Italian oil mills were in conformity with the Treaty.

Thereupon, by application received on 21 May 1973, Firma Holtz & Willemsen commenced an action before the Court.

The applicant claims that the Court should:

Thereupon, on the basis of Article 91 of the Rules of Procedure the defendant's applied for a preliminary ruling as to the admissibility of the action and for it to be declared inadmissible.

This question was argued in the course of the oral proceedings on 21 November 1973. It is now my task to examine whether the objections raised by the defendant Community institutions against admissibility are well-founded.

1 Translated from the German.