Opinion of mr advocate general Mayras

Mr President,

Members of the Court,

I —. The five cases which gave rise to the present references to the Court for a preliminary ruling relate to criminal proceedings initiated by the Belgian Openbaar Ministerie [Public Prosecutor's Office] against certain manufacturers of compound feeding-stuffs, all established in West Flanders, who are accused of having infringed Articles 1 and 12 of the Ministerial Order of 22 December 1971 requiring notification of price increases, by having on three occasions introduced price increases in the course of 1973 without first informing the Minister for Economic Affairs. In each of those cases, which have been referred to you by five judgments delivered by the Hof van Cassatie of Belgium, delivered on the same day and registered at the Court of Justice on 2 February 1979, the question which has been referred to this Court is formulated in identical terms.

II —. It is a well-established principle that it is not for the Court to pronounce on the compatibility of rules of internal law with the provisions of Community law in the course of proceedings introduced under Article 177 of the Treaty. However, the Court may provide the national court with all the criteria of interpretation relating to Community law in order to enable that court to assess the compatibility of such rules with the Community rule in question. Therefore we should consider the question which has been referred to the Court as asking whether and to what extent Article 30 of the Treaty leaves untouched a power whereby Member States may introduce a system which requires all producers and importers to notify any price increases which they intend to apply on the internal market to any products, raw materials, foodstuffs and merchandise and to any services at the latest two months before such increases take effect.

III —. In its observations the Commission accepts the fact that this type of measure does bring about discrimination in so far as it prevents the manufacturer from passing on in his selling price the additional costs and charges necessarily involved in importation in the same manner as users of domestic raw materials. The fact is that when a price increase is notified in respect of such domestic raw materials — this being something which becomes known immediately in business circles — the manufacturer who uses such raw materials may, in his turn, submit notification of an equivalent increase in his own prices immediately; he can effectively pass on the increase in the prices of raw materials in the selling price of his product, so that his profit margin remains constant, whereas, owing to the manner in which the Minister makes use of Article 5 of the ministerial order, the sale of products manufactured from foreign raw materials, subject as they are to sudden and unforeseeable price increases, is made either impossible or more difficult than the sale of the same products manufactured from identical but domestic raw materials. In reality that measure is capable of being applied and has in fact, according to the Hof van Cassatie, been applied differently to domestic products and to imported products, within the meaning of Article 2 (3) (c) of Directive No 70/50 of the Commission. This kind of veiled discrimination clearly amounts to a measure having equivalent effect.

IV —. Although it concludes that the system introduced by the Belgian authorities is capable of hindering, directly or indirectly … intra-Community trade within the meaning of the Dassonville judgment ([1974] ECR 837) the Commission takes the view that the rules are required for the attainment of priority objectives and that they are justified in the general interest and by mandatory requirements.

V —. Thus the Commission admits in effect that a national system requiring prior notification of price increases which applies equally to products imported from other Member States and to those manufactured within the country itself constitutes a measure having equivalent effect to the extent to which it appears that the practice followed by the responsible authorities tends to place imported products at a disadvantage in relation to domestic products. This might be the case, for example, where application of the price increase which has been notified is systematically prohibited for the maximum period of six months only in respect of imported products. As far as Community law is concerned, how the rules in question are to be viewed depends on the way in which the Minister for Economic Affairs has applied Article 5 of the ministerial order; that is to say, it is necessary to know the number and frequency of the measures of a fiscal nature and the number of occasions when notified increases have been refused approval. Thus the question whether Article 30 is applicable and whether the prohibitions which it comprises as far as Member States are concerned may be claimed will depend on examination of the practical consequences which could result from applying the domestic rules or of the risks which such application might involve.

If, as Mr Advocate General Capotorti said in his opinion on the Grosoli case, on 27 June 1979, this kind of inconvenience is inherent in national legal systems, the conclusion which must be drawn as far as the Community is concerned, and in the interests of certainty of the law and uniformity in its application, is that:

In relation to rules such as those contained in the ministerial order in question, Article 30 of the EEC Treaty does not confer on manufacturers of cattle feed any right which may be protected by the national courts.

1 Translated from the French.