Opinion of Mr advocate-general Capotorti
Mr President,
Members of the Court,
1. The opinion which I have to deliver today is concerned with six cases (Joined Cases 64 and 113/76, Joined Cases 117/76 and 16/77 and Joined Cases 124/76 and 20/77) relating to agriculture and they have one important feature in common: they all raise the issue of observance of the principle of non-discrimination by the Community legislature. More specifically, the central issue is whether and under what conditions the principle of non-discrimination must be considered to have been breached when, by means of regulations, the Community authorities decide to abolish aids granted for a time to particular products while maintaining aids already granted to a product in competition with them.
2. The proceedings which are the subject of this opinion fall into three groups, each containing two cases. The first group comprises Joined Cases 64 and 113/76, which arise from applications for damages brought against the Council by the two French undertakings Dumortier Frères and Maïseries du Nord, who are gritz producers. The second group comprises Joined Cases 124/76 and 20/77, which arise from requests for a preliminary ruling submitted to the Court by the Tribunaux Administratifs of Nancy and Chalons-sur-Marne in connexion with the cases of Moulins Pont-à-Mousson v ONIC and Providence Agricole de la Champagne v ONIC, which, too, raise the question of the abolition of Community aids for gritz. Finally, the third group comprises Joined Cases 117/76 and 16/77, which arise from requests for a preliminary ruling submitted by the Finanzgericht Hamburg in connexion with the cases of Ruckdeschel and Hansa-Lagerhaus Ströh, v Hauptzollamt Hamburg and Diamalt v Hauptzollamt Itzehoe, which are concerned with the question of the discontinuance of the aids for quellmehl.
3. In so far as it is concerned with public authority whether in the form of the Member States or of the Community institutions, the principle of non-discrimination is the counterpart of the principle of equality of treatment of individuals who are subject to that authority. In national law, it is in the first place an essential item in any catalogue of human rights and because of this it generally has constitutional force. But step by step with the development of State or Community intervention in the economy the principle has also been applied for the benefit of undertakings in the context of law in the economic field. The prohibition of discrimination in the economic field first became important in American case-law towards the end of the last century, especially in connexion with the principles safeguarding freedom of competition. But the concept was later widened so as to restrict the freedom of public authorities to intervene in the economic field, with the object of protecting undertakings from unwarranted differences in treatment.
4. I now come to the cases before the Court. I shall deal first with the issues raised in the proceedings for a preliminary ruling in Cases 117/76 and 16/77 in respect of quellmehl both because Community aids were cut off in the case of that product before those in the case of gritz and because the questions referred to the Court by the Finanzgericht Hamburg have the advantage of being clearcut and detailed.
5. In order to establish whether this prohibition has in fact been infringed it is first of all necessary to make this clear: the two products involved are manufactured from the same raw materials (maize, common wheat or broken rice) and compete with each other in the sense that starch or, to be more exact, a particular type of starch called pre-gelatinized starch (Quellstärke) (Quellstärke) has amongst its numerous outlets the much more limited number available to quellmehl. Moreover, the fact that starch can be substituted for quellmehl was expressly recognized in the tenth recital to Regulation No 120/67/EEC of the Council, referred to above.
6. According to the Council and the Commission the alleged increase in the use of quellmehl for animal feeding-stuffs represents a new development which is sufficient to justify the abolition of the aid to quellmehl producers. In this connexion it is well to bear in mind what was stated in the third recital to Regulation (EEC) No 1125/74 of the Council, which is that the production refund for quellmehl was initially granted with a view to promoting certain specific uses of quellmehl as a food for human consumption …. The Council argues that there has been an unreasonable use of quellmehl, which costs less than pre-gelatinized starch because its production is less complicated, has been able to make increasing headway on the market in animal feeding-stuffs at the expense both of skimmed-milk powder and of starch. Thus, the refund granted for quellmehl in order that it should not, as regards food for human consumption, be placed at a disadvantage compared with starch resulted in enabling quellmehl producers to invade one of the market outlets for starch, at the expense of that product, and placed the quellmehl industry in an artificially privileged position compared with starch.
7. The foregoing considerations lead to the conclusion that the difference in treatment between quellmehl producers and starch producers which arose as a result of discontinuance of Community aid for the first of these two products is not based on any general objective criterion. It accordingly constitutes discrimination which is incompatible with the second subparagraph of Article 40 (3) of the EEC Treaty.
8. In its second question, which clearly assumes that the answer to the first question will be that the provision in regulations under which the aid to manufacturers of quellmehl ceased is invalid, the Finanzgericht Hamburg asks whether the latter have an automatic claim to the same production refund as the manufacturers of puffed starch or whether a fresh measure of the Council is required to give them that right.
9. Consideration must now be given to the question raised by the changes in the Community rules concerning gritz for use by the brewing industry. We have seen that, in this case too, Regulation (EEC) No 665/75 marked the abandonment of the principle of equality of treatment as compared with starch in respect of refunds which had been applied since 1965 and until then.
10. In order to establish whether the abolition of the refund in respect of gritz for use in the brewing industry gives rise to an infringement of the prohibition of discrimination is must first of all be ascertained whether, in terms of the Community provisions for cereals, gritz is on the same footing as starch.
11. Clearly starch and gritz are in comparable positions: they were considered to be so for more than ten years by the Community authorities when they laid down that they should be treated in parallel for the express reasons which I have described, and so they remain as a matter of economic fact. The difference in treatment which has occurred with effect from Regulation (EEC) No 665/75 would be lawful only if it were justified by new economic or technical developments which have been assessed on the basis of objective considerations. The question is whether it is possible to discern developments of this kind.
12. In conclusion I propose that the Court should:
1 Translated from the Italian.