Opinion of Mr Advocate-General Capotorti

Mr President,

Members of the Court,

1. Once again the Court is called upon to give a preliminary ruling on the powers of the Member States to fix the prices of agricultural products. This case is concerned with establishing whether, where there is a common organization of the market (in this case that in beef and veal), a Member State retains the power to intervene with its own measures to control prices; if the answer is in the affirmative the extent of such power remains to be determined.

2. First I should like to observe that the form of question conflicts with the requirements of the case-law of the Court (most recently the judgment of 29 June 1978 in Case 154/77 Dechmann [1978] ECR 1573). according to which it is not for this Court to give rulings under the procedure of Article 177 of the EEC Treaty on the compatibility of municipal provisions with Community law. On the other hand there is no doubt that this Court has jurisdiction to provide an interpretation of Community rules so that on this basis the national court may resolve for itself the said problem of compatibility. Therefore in the present case the question from the Pretore, Padua, must be understood as meaning that the Court should rule whether and to what extent the Member States retain the power officially to lay down a price system, in this case restricted to retailers, in an agricultural sector subject to a common organization of the market.

3. Let us now consider briefly the arguments put forward by Counsel for Mr Grosoli, by the Italian Government and by the Commission.

4. The Italian Government takes the opposite view. In its opinion the existence of a common organization of the market does not in itself imply that the Member States have lost the power to control agricultural prices at any particular marketing stage. It is for the national courts in the particular case to consider whether there are conflicts between the national measures and Community law.

5. One factor which seems to me to merit emphasis in order to answer the question put by the national court is the specific nature of the measures constituting each organization of the agricultural market. There is no uniform kind of organization nor for that reason is there a fixed classification of the Community provisions which are gradually introduced sector by sector. On the contrary each sector reflects its technical and economic characteristics in an organization corresponding to its own requirements. Certainly, the measures which may be comprised in a common organization of the market have in common the fact of all being instruments for achieving the aims of the agricultural policy as set out in Article 39 of the EEC Treaty, but it is well recognized that those aims too are diverse and there is no specific hierarchy between them. Among the measures in question Article 40 (3) mentions in particular, but only by way of example, the regulation of prices, aids for the production and marketing of the various products, storage and carryover arrangements and common machinery for stabilizing imports or exports. It is thus apparent that the technical methods by which a common organization of the market is realized may vary greatly and that they have a more or less direct and exhaustive influence on the system of the market according to their scope and content.

6. In the order for reference the Pretore, Padua, has put forward certain considerations with which it is necessary to deal.

7. I have stressed the importance of the specific characteristics and the scope of the set of measures which characterize each organization of the market.

8. The Commission does not share this view. It claims that where the common organization, as in the present case, is based on a common system of prices, certain national provisions cannot fail appreciably to disturb the market and therefore must automatically be considered as not open to the States without it being necessary to ascertain in the particular case whether or not there has in fact been distortion. I have already had occasion to mention two examples of provisions of this kind. In particular the Commission's agent, in discussing the effects on the functioning of the common organization in beef and veal of a national provision fixing maximum consumer prices, assumes that such a provision, in order to be compatible with the common organization, must concern only products which have been subject to intervention measures and in which the sale prices on the part of the intervention agencies have already been fixed and in the second case should leave a sufficient profit margin to traders at the various marketing stages who buy from intervention and sell the products for domestic consumption. In the Commission's view therefore this Court should provide the national court with these specific criteria.

9. For the aforementioned reasons I conclude by proposing that in answer to the question put by the Pretore, Padua, by order dated 15 July 1978 the Court should rule that the unilateral fixing by a Member State of maximum consumer prices for an agricultural product subject to a common organization of the market which has a common system of prices is compatible with that organization providing that it does not jeopardize the aims and functioning of the organization and in particular its system of prices.

1 Translated from the Italian.