Opinion of Mr advocate-general Reischl

Mr President,

Members of the Court,

By order dated 27 April 1976 the Pretura di Cittadella referred questions for a preliminary ruling relating on the one hand to the powers of the national intervention agencies in the context of the common organization of the market for cereals and on the other hand to the prohibition on discrimination in the second paragraph of Article 40 (3), the provisions on aids in Articles 92 to 94 and to Articles 86 and 90 of the EEC Treaty. The questions are as follows:

In the view of the court making the reference a decision on these questions is necessary to enable it to give judgment in an action between an Italian mill owner and another Italian mill. The plaintiff alleges that between the period of November 1975 to January 1976 the AIMA, the Italian intervention agency for the common organization of the cereals market, sold large quantities of Italian common wheat on the market of the province of Padua in disregard of the rules of Community law at a price below the common intervention price. The defendant mill, situated in the province of Padua, benefited, unlike the plaintiff, from this action. It was therefore able to sell meal at a price below the market price causing the plaintiff to lose a customer which it had previously always supplied. Since this in the plaintiff's view constitutes unfair competition and an infringement of Community law it brought an action for damages. Since, however, the actual originator of the damage is the AIMA it was also joined in the action. Further it should be mentioned that the plaintiff's action is supported by certain regional trade associations, namely the milling industry.

Before I deal with the questions which the court making the reference has formulated I would like to mention that the contested sale of common wheat by the AIMA was made in the context of steps to cheapen the sale of bread to consumers in respect of which bread there is price control in Italy. It was basically resolved by an inter-ministerial committee for economic planning, CIPE, a committee of ministers under the chairmanship of the Prime Minister. The distribution of the quantities of common wheat provided for, in respect of which the said committee had fixed the price, was made by the Minister for Agriculture on the application of the prefects of particularly disadvantaged provinces. The prefects distributed the quantities allotted to the mills in their provinces. The mills were obliged to sell the meal made from the cereal to bakers, who received tokens from the prefects for it, at a prescribed reduced price and the bakers in turn had to use the meal for the baking of cheaper bread consumer mainly by the poorer sectors of population.

Further I should like to mention that Regulations Nos 120/67 and 132/67 of the Council, repeatedly cited below, were replaced with effect from 1 November 1975, that is, in respect of the period November 1975 to January 1976 which is also relevant to the present case, by Regulation No 2727/75 of the Council of 29 October 1975 on the common organization of the market in cereals (OJ L 281, 1975, p. 1) and Regulation No 2738/75 of the Council of 29 October 1975 laying down general rules for intervention on the market in cereals. These have not meant any change in the provisions which I shall later quote, in some cases verbatim. Only Article 19 of Regulation No 120/67, to be mentioned later, has been changed. I shall return to this in dealing with this provision.

1. Considering the problems referred to us the first two questions should be taken together. Accordingly it must first be considered whether the Community provisions on the cereals market exclude national intervention agencies from unilaterally resolving to dispose of the wheat in their possession without following the procedure laid down in Regulation No 132/67 of the Council (OJ English Special Edition 1967, p. 73) — now Regulation No 2738/75 (OJ L 281, 1975 p. 49) — and Regulation No 376/70 of the Commission (OJ English Special Edition 1970 (I), p. 126) and at a price other than that prescribed by Regulation No 376/70. It is further necessary to examine whether such action, when limited to the mills of one province and thus excluding processing undertakings of neighbouring areas, contravenes the prohibition on discrimination contained in the second paragraph of Article 40 (3) of the EEC Treaty.

2. In view of these findings in respect of the first two questions it may rightly be doubted whether it is necessary to consider questions 3 to 5 relating to the provisions on aid and Article 90 in conjunction with Article 86. For the purposes of my opinion, however, I shall not draw this conclusion. Nevertheless, I will deal with the questions but briefly not least of all because on closer consideration a conclusive assessment is not possible owing to insufficient knowledge of the factual situation.

(a). First it is necessary to consider whether the action of an intervention agency in availing itself of finance from institutions of the State and subsequently re-selling at prices lower than those allowed by Community law is to be regarded as aid within the meaning of Article 92 of the EEC Treaty and Article 22 of Regulation No 120/67 (now Regulation No 2727/75).

(b). The two other questions which I should like also to deal with only in summary fashion relate to Articles 86 and 90 of the EEC Treaty. They ask whether an intervention agency with substantial financial resources constitutes an undertaking having a dominant position within the meaning of these Articles and whether it is an abuse of a dominant position where on the sale of cereals the agency infringes Community law designed to prevent distortions of competition.

3. The sixth question to which I shall now turn, is concerned with whether the intervention agency is obliged to compensate for the damage which results from its action where it is found to infringe the provisions of Community law referred to in the previous questions. This obviously relates to a claim founded on a breach of official duty for it must be assumed either that the intervention agency has acted as an administrative organ of the State on the instructions of the Government or within the terms of its actual tasks under the organization of the market which must likewise be classified as a sovereign activity with the object of achieving the aims of the Treaty.

4. The final question relates to the binding effect of a preliminary ruling given by the Court on the interpretation of Community law. All parties to the proceedings have basically taken the same view on this and there appears in fact only one possible answer.

5. Keeping to what is essential for the decision in the main action the questions of the Pretura di Cittadella may be answered accordingly as follows:

1 Translated from the German.