Opinion of Mr Advocate General Capotorti

Mr President,

Members of the Court,

1. This opinion concerns an action brought by a private individual under the second paragraph of Article 173 of the EEC Treaty. The applicant, Mr Cattaneo Adorno, is an Italian national and the proprietor of an agricultural estate in Piedmont which produces mainly wine; his action is for the annulment of the Commission's decision of 24 January 1980 rejecting the application for aid which he submitted on 30 January 1979 pursuant to Council Regulation No 355/77 of 15 February 1977 (concerning common measures to improve the conditions under which agricultural products are processed and marketed).

2. Five submissions are listed in support of the present application. The broadest of these is the first, described as infringement and misapplication of Council Regulation (EEC) No 355/77 of 15 February 1977, in particular Articles 1, 6 and 15 (2), and also of Council Directive 72/159/EEC of 17 April 1972; misuse of powers. In my view that submission should be considered in conjunction with the third, which likewise refers to infringement and misapplication of the directive (as also to misuse of powers). In fact the aim of both the first and the third submissions is to show that, contrary to the Commission's statements in the decision at issue, Mr Cattaneo Adorno's application falls within the scope of Regulation (EEC) No 355/77 and not that of Directive 72/159 EEC.

3. There is another aspect of the Commission's argument which merits close consideration: it concerns the sectorial interests which the regulation is designed to serve and which are not referred to in the directive. I wish to say here that it would be a mistake to draw a distinction between the link to collective interests which exists in the regulation and a hypothetical intention in the case of the directive to safeguard the interests of individuals: it seems clear to me that both sets of rules provide for forms of aid which benefit individual undertakings for the simple reason that any such aid redounds to the common good (one need only read the preambles to the two instruments to find confirmation of the point, which is in any case an obvious one). The problem is a different one: it must be established whether the regulation, inasmuch as it provides for contributions to be made to projects which are included in specific programmes of the Member States (Article 1 (3); Articles 2 to 5 and Article 10) and links the aims of each project with the situation in a whole productive sector (Article 9, mentioned above), precludes for that very reason all projects which are intended to aid the development of individual farms (by improving processing and marketing conditions for agricultural products, of course) but which are not expressly linked to a general plan. The Commission takes the view that projects of that kind are wholly excluded from the scope of the regulation, arguing that the undertakings involved would simply be eligible, provided that they were agricultural undertakings, to benefit from the provisions of the directive, which merely requires submission of the development plans for individual farms and does not appear to make the grant of aid subject to the pursuit of wider aims.

4. The Commission's refusal made particular reference to Article 15 (2) of Regulation (EEC) No 355/77, which provides that: Projects which are eligible for Community aid under other common measures within the meaning of Article 6 (1) of Regulation (EEC) No 729/70 shall not come within the scope of this regulation. The Commission considered, on the basis of all the general considerations so far looked at, that the project submitted by Cattaneo Adorno was within the category of those which were eligible for Community aid under the provisions of Directive 72/159/EEC, which certainly represent common action within the meaning of the said Article 6 of Regulation (EEC) No 729/70 (that is acknowledged in Article 15 of the directive). Therefore, according to the Commission, the project in question fell outside the scope of Regulation (EEC) No 355/77.

5. The arguments developed thus far lead me to the conclusion that the first and third submissions in the application should succeed. In particular, I consider well founded the complaint of an infringement of Article 1 of Regulation (EEC) No 355/77, because of the refusal to apply it to an undertaking which also processes agricultural products, and the complaint of infringement of Article 15 (2) of the same regulation in conjunction with Article 1 (1) and Article 2 of Directive 72/159/EEC, because the impugned decision stated erroneously that the directive applied in the applicant's case. Nevertheless I should like to state that I do not agree with one of the arguments set out by the applicant in support of his first submission, namely that the project he submitted did not consist of action to improve the facilities of an existing farm, but envisaged rather the creation ex novo of a separate productive unit for processing and marketing (the Enopolio, or wine centre) characterized by full market and structural autonomy. In reality it is clear that the applicant's undertaking already possesses all the facilities for processing and marketing his grape production and that his project envisages replacing them with new facilities, more modern, productive and efficient. A situation of that kind does not in the least prevent Regulation (EEC) No 355/77 from being applicable.

6. In the second submission in the application Mr Cattaneo Adorno complains of infringement and misapplication of Articles 14 and 22 of Regulation (EEC) No 355/77, of the failure to state the reasons on which it is based and of the infringement of essential procedural requirements. The infringement of those two articles is said to have lain in the fact that the Commission has given a decision on the application for a contribution without seeking the opinion of the Fund Committee on the financial aspects and of the Standing Committee on Agricultural Structure. I would point out that Article 14 requires that the Commission first consult the Fund Committee on the financial aspects when it is about to take a decision on aid from the Fund and that the procedure for consulting the Standing Committee on Agricultural Structure is likewise required as a preliminary to decisions concerning contributions. In the case at hand the Commission decided that the investment project fell outside the ambit of Regulation (EEC) No 355/77 and therefore decided, without going into the determination of the contribution, that the project could not be taken into consideration. Besides that, the Commission has objected that both committees were consulted on the fate of the project submitted by the applicant and that the latter did not challenge its assertion (which is, moreover, borne out in the documents produced by the defendant).

7. In the fourth submission the applicant repeats the allegation of an infringement and misapplication of Directive 72/159/EEC and of lack of competence and misuse of powers, claiming that for the purposes of the directive itself the national authorities are required to determine individually the persons who are to be covered by the system of structural aids; and that the Commission cannot substitute itself for those authorities through specific, ad hoc decisions. In the present instance the national authorities had, on the contrary, merely expressed the favourable opinion provided for in Article 13 (3) of Regulation (EEC) No 355/77 for the purposes of granting the contribution provided for in that regulation.

8. The fifth and last submission in the application concerns an alleged breach of the principle of non-discrimination which the Commission is said to have committed in rejecting the application for a contribution submitted under Regulation (EEC) No 355/77 by the applicant, an agricultural undertaking, and in rejecting it precisely because of that last-mentioned characteristic, when the same application if it had been submitted by- someone who was not a farmer would certainly have been accepted. Consequently the agricultural undertaking, being eligible only for the benefits conferred under Directive 72/159/EEC, has been discriminated against in comparison with other market operators in similar positions. During the proceedings the applicant was able to amplify that complaint, claiming that an investment project similar to that submitted by him would have been considered admissible even if it had been submitted by an association of agricultural producers, according to the view taken by the Commission, which is that in order to benefit from the contributions provided for in the regulation projects must bring benefits to several producers. Therefore the applicant has been the victim of treatment discriminating against him in favour of associations of producers.

9. In conclusion I suggest that the Court rule that the application brought by the Cattaneo Adorno undertaking and lodged on 3 April 1980 is admissible, declare void the decision adopted by the Commission on 24 January 1980 with regard to that undertaking and order the defendant to pay the costs.

1 Translated from the Italian.