Opinion of Mr advocate-general Capotorti

Mr President,

Members of the Court,

1. Case 50/76 requires the Court to consider a fundamental issue of Community law — that of the limits within which a Member State may be allowed to add its own provisions to the Community regulations in force on a given matter. Although the answer to this question is quite easy in the case of Government provisions which purport to reproduce or derogate from the provisions of Community regulations, several difficulties, in my view, arise in the case of Government provisions the effect of which is, so to speak, to supplement the Community rules. These considerations make it desirable that the issue should be looked at afresh in the light of the features of the case before the Court.

2. The fact that some provisions of the order made by the Produktschap are substantially the same as those contained in Regulations (EEC) Nos 1767/69 and 369/75 of the Commission, referred to above, makes it necessary to point out that this Court has already had occasion to condemn the practice of reproducing the provisions of Community regulations in domestic legislative measures (see the judgment of 7 February 1973 in Case 39/72, Commission v Italian Republic [1973] ECR 101et seq. and that of 10 October 1973 in Case 34/73, Variola v Amministrazione Italiana delle Finanze [1973] ECR 981et seq.). These precedents draw attention to the two most serious disadvantages of the practice in question: first, the uncertainty which arises concerning the legal effect of the provisions and the date when they come into force, and, secondly, doubts which are liable to arise on the question whether or not the procedure for an interpretation under Article 177 of the Treaty of Rome is available. The Court has rightly emphasized that strict complicance by the Member States with their duty not to obstruct the direct applicability of Community regulations is an indispensable condition of simultaneous and uniform application of those regulations throughout the Community (judgment in the Variola case, Ground 10). Against this it is of no avail to argue that the national authorities may be motivated by the desire to promote knowledge and the observance of Community provisions: the first is ensured by publication of the regulations as provided for by the Treaty, and the second is secured by the national courts, which are bound to apply the regulations in accordance with Article 189 of the Treaty, and can, as necessary, refer to this Court if any question arises concerning their validity or interpretation. It may also happen, as in the present case, that rules of Community origin are recast in a national enactment which contains other provisions on the same subject. In circumstances of this kind, the reproduction of Community rules is probably based on a desire to provide those to whom they are addressed with a homogeneous and comprehensive set of regulations in a given sector. But this objective is, also, to be condemned: to incorporate Community rules in a context of national law means submitting them to the same principles of interpretation, and, prima facie at least, making them subject to the scope of the national provision in terms of its validity, its effect in terms of time, and the parties to whom it is addressed. If we assume that, on any matter, it is possible for Community rules and national rules to exist side by side, it is for the court interpreting them to harmonize them, bearing in mind the different origin and the different nature of the two legal systems which exist alongside each other: any attempt to make homogeneous that which is not produces a distortion of Community law even if all the municipal legislature does is to transcribe the rules of that law.

3. The inclusion in the 1975 Order of the provision referred to earlier (Article 9), empowering the President of the Produktschap to provide for exemptions from the said order raises the question of the validity of national devices for derogation from Community law inasmuch as other provisions of the 1975 Order reproduce Community rules. The answer to this question, like that to the previous one, is clear: the Member States can neither directly nor through bodies which they have created or recognized, derogate from the law of the European Communities, except in the circumstances (and under the procedures) provided for by the latter legal system itself. Among the decisions of this Court, this is clearly laid down in the judgment of 19 December 1961 in Case 7/61, Commission v Italian Republic (Rec. 1961, p. 635) and that of 30 November 1972 in Case 18/72, Granaria v Produktschap voor Veevoeder (Rec. 1972, p. 1163). No national authority is permitted to empower itself to adopt measures which conflict with binding Community provisions, even if such power is intended to dispose of individual cases and is exercised wholly by way of exception. This is forbidden not only by Article 5 (2) of the Treaty of Rome, which requires the States to abstain from any measure which could jeopardize the attainment of the objectives of the Treaty but also, in wider terms, by the principle that Community law prevails over national law, a principle which is, inter alia, designed to ensure the uniform application of Community provisions throughout the Member States and to ensure that it is observed by all parties, public and private.

4. Another provision of the 1975 Order to which express reference was made by the national court in the order making the reference is, as said above, Article 7, which imposes penalties for infringements of the regulation. The provision raises a problem of Community law in so far as the substance of the Community regulations is reproduced in part of the 1975 Order and in so far as, therefore, the penalty can be applied in the case of conduct which is actually contrary to Community law (even though, technically, it involves offences against the Netherlands order).

5. Finally, in its request for an interpretative ruling the court making the reference mentions two provisions (Article 2 (2) and (5)) of the 1975 Order which, in its view, introduced changes in the Community legislation and, in essence, asks whether the said national provisions are compatible with such legislation. To be more precise, the Netherlands court asks whether Community law, in particular, Regulations (EEC) Nos. 234/68, 1767/68 and 369/75, prohibit a national body invested with legislative authority from adopting a measure such as the 1975 Order in which there are, inter alia, provisions which are not part of the said regulations. Its expression in this way is certainly calculated to make the question compatible with the terms of the settled case-law of this Court according to which the Court is not competent to decide questions concerning the compatibility of internal provisions with Community law under the interpretation procedure provided for in Article 177 of the EEC Treaty; that procedure is, in fact, to be used only for the purposes of dealing with questions involving the interpretation of Community law. Nevertheless, it is clear that, although it is possible to express some issues in quite general terms (and this is what I tried to do in considering the possibility or otherwise of Community provisions being reproduced in national measures, of derogations being made from Community law, and of supplementing Community regulations with penalties under national criminal law), other issues require a stricter definition of the situation under consideration and accordingly an analysis of the features of the case in question. This is the position as regards that part of the question from the Netherlands court which remains to be considered. It is at the same time the most difficult and explicit.

6. There is no lack of precedents in the previous decisions of the Court to help in answering this question. However they disclose two separate trends which, in the present case, may lead to different conclusions.

7. In such a sensitive and complex sector of the economy and of human activity as agriculture it seems to me essential to avoid all dogmatism and attitudes based on fixed and absolute premises which, on that account, are liable to prove counter-productive in respect of needs deserving of attention which cannot be regarded as wholly covered by Community rules whilst they are still in the course of being elaborated or which at least are too recent to be exhaustive. It must not be forgotten that, long before the EEC was created, public authorities in many States had found it necessary to introduce wide-ranging intervention measures because of the well-known weaknesses and inadequacies of the economic structure for agriculture and because of the specially close connexion in agriculture between economic and social problems.

8. Having regard, therefore, to the conditions laid down in Article 2 (5) of the 1975 Order for the fixing of minimum prices, its content does not appear to conflict with specific Community rules or with the objective operational requirements or aims of the common organization of the market in live trees and other plants, bulbs, roots and the like, cut flowers and ornamental foliage, and it can therefore be regarded as compatible with the Community system.

9. On the basis of the foregoing considerations, I suggest that the Court should answer the questions submitted for a preliminary ruling on 17 June 1976 by the College van Beroep voor het Bedrijfsleven in the following terms:

1 Translated from the Italian.