Opinion of Mr Advocate General Capotorti

Mr President,

Members of the Court,

1. By a judgment of 19 February 1980, which is based on Article 177 of the EEC Treaty, the Tribunal d'Instance of the First Arrondissement of Paris asks the Court to consider the validity of the regulations pursuant to which monetary compensatory amounts are levied on exports of Roquefort cheese from France to other countries, both Member States and non-member countries. The question arises out of an action pending before that court in which a number of producers and exporters of Roquefort cheese are claiming reimbursement from the French customs authorities of sums which were paid by way of monetary compensatory amounts on exports, and which the plaintiffs consider were unduly paid, between March 1976 and June 1979 (the period during which the system of compensatory amounts applied to Roquefort cheese). The answer to the question makes it necessary for the regulations by means of which the Commission laid down that Roquefort cheese should be subject to that system to be examined in the light of Regulation No 974/71 of the Council of 12 May 1971 on certain measures of conjunctural policy to be taken in agriculture following the temporary widening of the margins of fluctuation for the currencies of certain Member States, that is to say, the legislative measure which created the system of monetary compensatory amounts and laid down its basic conditions.

2. It is appropriate to recall at the outset what those conditions are. In terms of Article 1 (2) of Regulation No 974/71 the Commission may lay down compensatory amounts as regards specific products covered by the common organization of agricultural markets where intervention arrangements are provided for them, or, alternatively, the price of them depends on the price of other products for which intervention arrangements are provided (leaving aside the case of products which are not covered by the common organization of the market and are subject to specific rules pursuant to Article 235 of the Treaty). Moreover, the power conferred on the Commission may only be exercised as regards products in which trade is disturbed by monetary fluctuations (Article 1 (3) of Regulation No 974/71 as amended by Regulation No 2746/72 of the Council of 19 December 1972).

3. In regard to the first point, the Commission observes first that all cheeses gain advantages of a general nature from the common organization of the market in milk products by benefiting from specific measures such as levies on imports, even though intervention prices were fixed only for two cheeses, Grana Padano and Parmigiano Reggiano. In the context of the common organization of the market in question, the Commission perceives a general relationship of dependence between the prices of cheeses and those of butter and powdered milk, two products for which intervention arrangements are provided. That relationship exists for all cheeses whether made from cow's or sheep's milk. Moreover, Roquefort and blue cheeses made from cow's milk are interdependent as regards their selling prices since the price of Roquefort varies according to variations in the prices of the other blue cheeses which are in competition with it.

4. The other point which must be clarified is whether there was in 1976 a risk of disturbance in trade in the product in question as a consequence of fluctuations in the exchange rates. In that regard, it must be borne in mind at the outset that under Article 6 of Regulation No 974/71 it is for the Commission, which engages in consultations in accordance with the so-called Management Committee Procedure, to establish whether there is a risk of disturbances of the kind indicated. As the Court observed in the judgment which it delivered on 22 January 1976 in Case 55/75, the second Balkan-Import case [1976] ECR 19 (especially at paragraphs 8 and 11 of the decision), where the assessment of a complex economic situation is involved, the Commission and the Management Committee enjoy a wide measure of discretion. In reviewing the legality of the exercise of such discretion, the Court must confine itself to examining whether it contains a manifest error or constitutes a misuse of power or whether the authority did not clearly exceed the bounds of its discretion. (This view was repeated in the judgment of 25 May 1978 in Case 136/77 Firma A. Racke v Hauptzollamt Mainz [1978] ECR 1245.) The Court excluded in particular the Commission's being obliged to decide case by case, in respect of each product individually, whether there is a risk of disturbance and interpreted the provisions of the final paragraph of Article 1 of Regulation No 974/71 as meaning that the Commission may in this respect carry out general evaluations relating to entire groups of products. Therefore, even were it demonstrated, subsequently to the fixing of compensatory amounts on a given product, that the importing or exporting of it could not cause disturbances in trade in agricultural products in the Community, it would not follow from that alone that the Commission had made a manifest error or clearly exceeded the bounds of its discretion in holding that in the absence of compensatory amounts trade in the product in question would have been disturbed (see paragraph 11 of the decision in the above-mentioned judgment in Case 55/75).

5. What I have stated hitherto is not proved wrong by the fact that Commission Regulation No 777/79 of 20 April 1979, which came into force on 4 June 1979, abolished compensatory amounts on Roquefort cheese. That measure falls within the framework of the efforts which the Commission is making progressively to eliminate compensatory amounts and had been pressed for in two questions presented by a Member of the European Parliament on 2 June and 4 December 1978, which were accompanied by a request from the producers of Roquefort dated 15 November 1978. In all of those approaches stress was placed above all on the risks which compensatory amounts presented to exports of Roquefort to the United States, which represents the principal outlet abroad for this product. The Commission considered that Roquefort did not benefit from export refunds and that, moreover, the two French cheeses which constitute Roquefort's direct competitors are in practice not exported to the United States market. In addition, the Commission bore in mind that at the beginning of 1979 the compensatory amounts on Roquefort and its competitors had fallen to 5% as opposed to18 to 20% in 1977 and 1978. Therefore, their withdrawal for the benefit of Roquefort could no longer entail a serious risk of disturbance in intra-Community trade in blue-veined cheese.

6. The considerations which I have set forth lead me to hold that examination of the question has not revealed any grounds upon which the Commission regulations which provided for monetary compensatory amounts for Roquefort cheese during the period between 25 March 1976 and 3 June 1979 were invalid. I am therefore of the opinion that the Court should answer to that effect the question submitted for a preliminary ruling by the Tribunal d'Instance of the First Arrondissement of Paris and contained in its judgment of 19 February 1980.

1 Translated from the Italian.