EU-domstolen

JUDGMENT OF 25. 10. 1978 — JOINED CASES 103 AND 145/77 ROYAL SCHOLTEN-HONIG v INTERVENTION BOARD FOR AGRICULTURAL PRODUCE

CELEX: 61977CJ0103
Typ: EU-domstolen

In Joined Cases 103/77 and 145/77 REFERENCES to the Court under Article 177 of the EEC Treaty by the High Court of Justice, Queen's Bench Division, Commercial Court, for a preliminary ruling in the actions pending before that court, in Case 103/77, between

THE COURT, composed of: H. Kutscher, President, J. Menens de Wilmars and Lord Mackenzie Stuart (Presidents of Chambers), A. M. Donner, P. Pescatore, M. Sørensen, A. O'Keeffe, G. Bosco and A. Touffait, Judges, Advocate General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

I — Facts and procedure

1. The product at issue

2. Community legislation

A. The production refund

B. The production levy

3. The main actions

A. Case 103/77

B. Case 145/77

II — Summary of the observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

1. In Case 103/77

Observations of Royal Scholten-Honig Ltd.

Facts

Relevant market organizations and the context in which the regulations referred to in the questions must be viewed

A. Cereals

6. Sugar

Regulation No 1862/76

1. Article 190 of the EEC Treaty

2. Article 11 (3) of Regulation No 2727/75)

3. Article 40 (3) of the Treaty

Regulations Not 1111/77 and 1110/77

Grounds of invalidity relied on by the plaintiff

1. The common provisions for isoglucose constitute an unlawful discrimination against isoglucose, contrary to Article 40 (3) of the Treaty

2. The common provisions for isoglucose do not seek to attain and will not attain the objectives of Article 39 of the Treaty

3. The common provisions for isoglucose violate the principle of proportionality

4. The common provisions for isoglucose are not, except for Article 9 which imposes the production levy, effective provisions and the Council has misused its powers

6. The common provisions for isoglucose are invalid because of a non-compliance with Article 190 of the Treaty

7. Isoglucose is not an agricultural product

Conclusions

Observations submitted by the Council

Preliminary remarks

I — The validity of Regulation No 1862/76

1. Discrimination, within the meaning of Article 40 (3) of the Treaty, between Community producers

2. Inadequacy of statement of reasons

II — Validity of Regulations Nos 1110/77 and 1111/77

1. Infringement of Article 38 (1) of the Treaty — isoglucose is not an agricultural product

2. Discrimination between producers contrary to Article 40 (3) of the Treaty — violation of the rule of proportionality

3. Prejudice to legal certainty by sudden reversal of policy without notice (paragraph 19 of the points of claim) and absence to transitional arrangements

4. Failure to comply with the duty to consult the European Parliament at the time of the adoption of Regulations Nos 1111/77 and 1110/77

5. Infringement of essential procedural requirements

Observations submitted by the Commission

I — Application of Community legislation

1. Isoglucose

2. Production refunds

3. Regulation No 1862/76

4. The common organization of the market in sugar

5. Regulation No 1110/77

6. Regulation No 1111/77

II — Answers to the questions submitted

1. Regulation No 1862/76

(a) Failure to state reasons

(b) Failure to refer to opinions required by Article 43 (2) of the Treaty

(c) Discrimination

2. Regulations Nos 1110/77 and 1111177

(a) The argument that isoglucose is not an agricultural product

(b) Submission that the opinion of the Parliament has been disregarded

(c) Discrimination contrary to Article 40 (3) of the Treaty

(1) Comparable situations

(2) Competitive capacity

(3) Objective criteria

(d) Failure to exclude existing capacity, to provide for a transitional system or for provisions for compensation

(1) Legal certainty

(2) Means not proportional to the objectives pursued

The aim to be achieved

burden imposed on isoglucose

III — Conclusions

Case 145/77

Observations submitted by Tunnel Refineries Ltd.

1. The regulation breaches the principle of proportionality inasmuch as it imposes a wholly unfair burden on manufacturers of isoglucose in the interests of manufacturers of sugar

2. The regulation contains no provisions and no provisions have been adopted in implementation of the regulation, to protect the legitimate expectations of the plaintiff who made the investment decision in reliance upon a Community policy which had been consistently followed over a period of years

3. The regulation infringes the Treaty inasmuch as its provisions either fail to meet or are contrary to the objectives of the common agricultural policy as set out in Article 39 of the Treaty and each of them

4. The regulation infringes the Treaty inasmuch as it embodies a gross form of discrimination contrary to Article 40 (3) of the Treaty

5. The levy is excessive and disproportionate as demonstrated by the fact that its effect is to render the production of isoglucose uneconomic in relation to sugar in a market in which they would otherwise be able to compete and so to remove a competitor from the market

6. The Commission and Council have misused their powers inasmuch as they have sought by means of the levy to offset the real or supposed competitive advantage of isoglucose

7. The regulation is based on a wholly inadequate and/or false estimate of the costs of production of isoglucose and/or on a wholly erroneous assessment of the role of isoglucose and of the potential market for the product

Conclusion

Observations submitted by the Council

1. Breach of the principle of equality and non-discrimination

2. Violation of the objectives of Article 39

3. Breach of the principle of proportionality

4. Frustration of legitimate expectation

5. Misue of powers

6. Manifest error in assessing the cost price of, and the potential market for, isoglucose