Opinion of Mr Advocate General Mancini
Mr President,
Members of the Court,
1. This reference for a preliminary ruling concerns the rules of Community law relating to agricultural policy and, in particular, Regulation (EEC) No 804/68 of the Council on the common organization of the market in milk and milk products. The Court is asked essentially to determine whether the Member States retain any, and if so which, residual powers where the Community institutions have created a common organization of the market in a given sector of trade. It is appropriate to state at once that the case gives rise to considerable difficulties. The questions submitted by the national court concern points of law which the Court of Justice has not clarified in full and, what is more, they refer not to specific provisions of national law but to the entire Netherlands system of rules on the production of, and trade, in cheese.
2. In order to grasp the nature of the dispute it is indispensable to examine the essential features of the Netherlands legislation, which, according to the plaintiff undertakings, is contrary to Community law and is therefore unlawful as against them. I would point out that the system in question is extremely complex, partly because it is arranged on four levels each of which is superior to the one below, and partly because the provisions at each level are superimposed on one another and overlap. To give a lucid summary of the system is no easy matter.
3. So much for the Netherlands system. As far as Community law is concerned, Article 30 and 34 of the EEC Treaty are clearly relevant as is Regulation No 804/68 of the Council of 27 June 1968 on the common organization of the market in milk and milk products, including cheese. The provisions of that regulation contain the instruments of the common agricultural policy which are incorporated in the relevant market organization in accordance with the objectives of Article 39 of the EEC Treaty.
4. The purpose of the first two questions referred to the Court ((a) and (b)) is to establish whether the Netherlands rules which I have attempted to summarize are compatible with the relevant Community legislation. The national court wishes above all to ascertain whether they are contrary to Regulation No 804/68 and, if not, whether they are in breach of Articles 30 and 34 of the EEC Treaty. In Question (a), in particular, the national system is described in great detail as if the national court were asking the Court of Justice to review it per se and, if that were the case, the Court would have no choice but formally to declare the reference inadmissible. The Court is in fact confronted with a reference for a preliminary ruling under Article 177 and not (contrary to appearances at certain stages of the written and oral procedure) a direct action by the Commission against the Netherlands for an infringement of the Treaty and secondary Community legislation.
5. I now turn to Regulation No 804/68. According to the plaintiff undertakings, there are in particular three groups of national rules which are contrary to that regulation, namely the rules which restrict production to certain types of cheese, those which lay down rigid requirements for the qualitative features of those types, and those which regulate the process of maturation, packaging and transport, by the imposition of other far-reaching restrictions on the freedom of Netherlands producers and traders.
6. The Commission's endeavours to answer those questions are not, I fear, altogether successful. As we have seen, it rejects the idea, adopted by the plaintiffs, that the existence of a common organization of the market deprives the Member States of any residual power. In its opinion, moreover, the Member States are subject to two restrictions, that is to say their rules cannot (a) interfere with the functioning of the market or (b) jeopardize the principle of freedom of access to the market. Those statements are in my view contradictory. To prohibit a State from interfering with the functioning of the market is not to impose a restriction on it. Since any measure, even the most anodyne, interferes with the functioning of the market, the effect of the prohibition is to place the State in a position in which it may take no action and thus to deprive it with one hand of the residual power conferred upon it by the other.
7. First of all it seems to me that the most disputed aspects of that legislation are four in number: the prohibition of the production of cheeses not included in an exhaustive and restricted list; the prohibition of even a limited variation of the composition and the manufacturing process of the cheeses included in the list; the rules on distinctive marks and designation in so far as they are connected with the rules on quality; and compulsory affiliation of producers to the inspection agency (although the latter point is the subject of a separate question (c) submitted by the court of reference).
8. I now turn to the second disputed aspect of the legislation under consideration, namely the further restriction which it imposes on the freedom of producers by prescribing in meticulous detail the requirements which the cheeses included in the list must comply with. Clearly, the rules relating thereto are also unlawful. That is so, however, only because they support and render more inflexible a restriction — the exhaustive and restricted list — which in itself adversely affects a specific Community interest. If there were no such restriction, those rules might be assessed in a different light. In the absence of Community legislation in this area, it is quite legitimate to suppose that national rules aimed at ensuring that cheese is of a high standard are consistent with the objectives and the functioning of the common organization of the market.
9. The third aspect which is alleged to be unlawful consists in the compulsory use of distinctive marks. According to the Commission, that requirement has an adverse effect particularly on- exports to the Member States and to non-member countries. However, if the problem is viewed in those terms, Article 34 of the Treaty comes into play and the second question is based specifically on that provision. What is important at this stage, however, is to assess the compatibility of that requirement with the common organization of the market.
10. The second question is concerned with the compatibility of rules such as those contained in the contested Netherlands legislation with Articles 30 and 34 of the Treaty. The court making the reference makes the question conditional on the first question's being answered in the negative. I have suggested that it should be answered in the affirmative, subject however to certain qualifications. Since my suggestion may not be accepted, however, I consider it appropriate to deal with the problems raised by the national court in Question (b).
11. The third question is concerned with the compatibility of Article 12 of the Royal Decree of 2 December 1981 (or, for that matter, any such rule) with Regulation No 804/68 and, once again, Articles 30 and 34 of the EEC Treaty. Article 12, I would recall, reserves the industrial production of cheese exclusively to members of the inspection agency (the Central Agency) set up by Article 10 of the same decree.
12. The fourth and final question is concerned with the general principles of Community law and, in particular, with the principle of proportionality. The national court wishes to ascertain whether that principle is directly applicable in a case such as that pending before it.
13. In the light of the foregoing considerations, I suggest that the Court answer as follows the questions referred to it by the Arrondissementsrechtbank, The Hague, by order of 14 September 1982 in the case brought by the limited company Jongeneel Kaas BV, Bodegraven, The Netherlands, and 14 other companies against the Netherlands State and the Stichting Centraal Orgaan Zuivelcontrole (COZ):
1 Translated from the Italian.