OPINION OF MR REISCHL — CASE 83/78 PIGS MARKETING BOARD v REDMOND

Mr President,

Members of the Court,

In 1933 a Pigs Marketing Scheme was set up under the Agricultural Marketing Act (Northern Ireland) 1933 which was re-enacted in 1964. It is administered by the Pigs Marketing Board (Northern Ireland) whose members are largely pig producers; the Department of Agriculture does however have certain powers of control over the Board.

For particulars of the organization of the Board and its activities I refer to the description given in the judgment making the reference and to the statements in the written procedure. I shall mention only the following in my opinion:

It is significant that the Board has a marketing monopoly in respect of bacon pigs reared in Northern Ireland of a minimum live weight of 77 kg but not in respect of animals for breeding or pigs under that weight. Anyone wishing to sell such animals (apart from certain exceptions provided for) must basically be registered with the Board as a producer. Sale is allowed only to the Board or through its agency or at its direction. The Board sells the pigs to processors, in particular curers, in whose activity it has itself a very important interest; apparently some half of the bacon production in -Northern Ireland is controlled by the Board. In this respect, that is in respect of the resale (and this will not be of further concern here) quotas apply which are laid down by the Department. The purchase prices are determined by the Board on the basis of its estimate of its annual income. A percentage of this, determined by the Secretary of State, who moreover may exempt certain classes of producers from contributions, is retained by the Board to cover expenses. Whatever is not required for this, that is any surplus, is with the approval of the Secretary of State put in a special account from which payment may be made to producers where prices fall. If I have understood the position correctly, the Board does not apply any uniform prices and also determines to a certain extent the amount of pigs it will buy. In this respect a system of long-term contracts with producers, apparently in operation since 1976, should be mentioned. Under this system the producers must offer in advance the quantities which they expect to supply in a 13-week period and this represents the so-called contract number for the first period. For subsequent periods (and this is the restriction on numbers which I mentioned) the number delivered is subject to limitation by the Board if a producer has failed to supply at least 85 % of his contract number in the previous period or if the total number offered by all producers is considered excessive having regard to market conditions. As regards prices, there are contract prices which apply in respect of 115 % of the contract number. Non-contract prices which are less than these apply to pigs supplied in excess of 115 % of the contract number or for pigs supplied without a long-term contract. Further there is a bonus for producers who supply at least 85 % of the contract number and premiums for marketing during certain periods in the summer.

The Movement of Pigs Regulations (Northern Ireland) 1972 form part of this system. They prohibit the transport of bacon pigs elsewhere than to the purchasing centres of the Board and it is also necessary for consignments to be accompanied by documents supplied by the Board. Breach of these provisions is punishable by imprisonment and/or fines; further the animals may be forfeited.

I come now to the facts of the main proceedings: in January 1977 a consignment of 75 bacon pigs which were not intended for a purchasing centre of the Pigs Marketing Board and for which the necessary transport documents were not available was observed in the district of Armagh. As a result, in July 1977 proceedings at the instigation of the Board were commenced against Mr Redmond, the owner of the pigs. As a result of his defence (he claimed in particular that the Northern Ireland Pigs Marketing Scheme was incompatible with Community law) the magistrate before whom the matter came in September 1977 gave a judgment in which it was stated that a preliminary ruling under Article 177 of the EEC Treaty was necessary to clarify a number of questions of Community law. The Board appealed against this to the Court of Appeal for Northern Ireland. After the appeal was rejected the original magistrate forwarded the said judgment on 10 March 1978 to the Court of Justice of the European Communities. It contains the following questions:

Is the Board an undertaking? Is it a national market organization? Is it a State monopoly of a commercial character? Is it all three, or is it a combination of any two?

Does this provision affect the present case?

Further, in an accompanying letter dated 10 March 1978, the Resident Magistrate stated that the following questions arose incidentally:

My opinion on this reference for a preliminary ruling is as follows:

1 Translated from the German.