OPINION OF MR REISCHL — CASE 121/78 BARDI v AZIENDA AGRICOLA PARADISO

Mr President,

Members of the Court,

Article 13 of Regulation (EEC) No 805/68 of the Council on the common organization of the market in beef and veal (Official Journal, English Special Edition 1968 (I), p. 187) as amended by Council Regulation (EEC) No 425/77 (Official Journal L 61 of 5 March 1977, p. 1), provides that the levy which was to be applied to young male bovine animals intended for fattening, of a live weight of 300 kilograms or less, may be totally or partially suspended, taking into account the supply situation for the young bovine animals in question and the foreseeable trend of market prices for bovine animals in the Community. For this purpose, before 1 December each year, the Council is to draw up an estimate of young male bovine animals which may be imported under the arrangements laid down in the said article. In accordance with the Management Committee procedure each quarter the quantity which may be imported and the rate of suspension of the levy are to be determined. Import licences, which are required for imports, are then issued for a quantity falling within the limits of the quantity laid down each quarter.

To that end implementing provisions were adopted in several Commission regulations. Thus Article 11 of Regulation (EEC) No 585/77, as amended by Regulation (EEC) No 1384/77 (Official Journal L 157 of 28 June 1977, p. 16) stipulates that applications for import licences may be made by natural or legal persons carrying on business in the meat and livestock sector and officially registered in a Member State. Article 3 of Regulation (EEC) No 612/77 (Official Journal L 77 of 25 March 1977, p. 18) provides that when determining the quantity which may be imported each quarter the supply needs of certain regions of the Community may be taken into account.

For the period 1 January to 31 March 1978 the maximum quantity referred to in Article 13 (4) (a) of Regulation (EEC) No 805/68 was fixed at 50000 head of young male bovine animals for fattening, of a live weight of 300 kilograms or less, by Regulation (EEC) No 2902/77 of 22 December 1977 (Official Journal L 338 of 28 December 1977, p. 12). That regulation provided at the same time that of those bovine animals at least 45000 head must be imported into and fattened in Italy and that the rate of the levy -was to be reduced by 50 %. Article 1 (5) of that regulation then goes on to say:

It remains also to be mentioned that Regulation (EEC) No 2902/77 was amended by Regulation (EEC) No 345/78 of 20 February 1978 (Official Journal L 49 of 21 February 1978, p. 9). Article 1 (1) of that regulation reads:

Paragraph (3) of that article provides further that:

With reference to the quantity reserved for Italy a circular dated 28 February 1978 issued by the Italian Ministry for Foreign Trade stipulated that the expression agricultural producers within the meaning of Regulation No 2902/77 was to be deemed to apply only to those who satisfied the requirements of the Italian Law of 9 May 1975 for the implementation of Council Directives Nos 72/159 (Official Journal, English Special Edition 1972 (II), p. 324), 72/160 (Official Journal, English Special Edition 1972 (II), p. 332) and 72/161 (Official Journal, English Special Edition 1972 (II), p. 339) all of which were adopted on 17 April 1972. According to that law — leaving cooperatives out of account — only those persons qualified whose principal occupation is farming, in so far as they devote at least two-thirds of their working-time to farming and derive therefrom at least two-thirds of their earned income.

The plaintiff in the main action, whose principal activity is the production of feeding-stuffs, apparently came to an agreement at the end of February 1978 with the defendant in the main action, which as a limited partnership is mainly engaged in fattening bovine animals and calves on a large tract of land, for supplying it with a specific quantity of maize. The obligation was to become void if the purchaser should not obtain an import licence for 100 calves. On 10 March 1978 the purchaser informed the plaintiff that it considered the order to be cancelled because the said condition subsequent had been fulfilled. The competent regional authority had in fact explained to the plaintiff that it could not receive any import licences because it was a company and because the conditions laid down in the circular of the Italian Ministry for Foreign Trade had not been fulfilled by the partners and managers. For this reason it did not even apply for the issue to it of import licences.

The plaintiff takes the view that the rules and regulations on imports are governed entirely by Community law; according to that law every agricultural producer is entitled to be granted an import licence, whereas the Member States only have certain organizational tasks in this field and in particular cannot lay down supplementary conditions restricting the category of applicants. Since this is what the said circular purported to do, it must be regarded as unlawful and therefore irrelevant. When in the light of the ministerial circular the defendant refrained from making an application this must be treated as a mistake for which it must accept liability. Consequently the plaintiff commenced proceedings before the Pretura di Cecina for specific performance of the contract and for delivery of the consignment to be supplied.

By an order of 13 May 1978 the Pretura, before which the matter was brought, stayed proceedings and pursuant to Article 177 of the EEC Treaty referred the following questions to the Court of Justice for a preliminary ruling:

My observations on these questions are as follows:

1 Translated from the German.