Opinion of Mr Advocate General Van Gerven delivered on 11 January 1990

1 Original language: Dutch.

2 OJ L 313, 4 11 1987, p. 24

3 GURI No 313, 14.11.1984.

4 GURI No 298, 29.10.1984.

5 GURI No 319, 20 11.1984.

6 Provvedimento No 39/1984, at paragraphs 5 and 7, and see Article 1 of the Commission's contested decision.

7 Paragraphs 1, 2 and 3 respectively of the aforementioned Decision No 39/1984.

8 Paragraph 7(a) and (b) of Prowidimento No 39/1984.

9 In this light, the phrase in respect of which the sovrappprezzo has been paid (see above, at the end of paragraph 1 and footnote 5 hereof) must be regarded as a passage included as a result of an oversight. In paragraph 7(b) of the Italian decision, which relates to aid to traders, this condition is not mentioned.

10 At the hearing, it was stated by the applicant's representative, who on this point was not contradicted by the defendant's representative, that the various maximum prices imposed by the authorities are in every day economic reality also the market prices, that is to say that sales below the maximum prices rarely take place.

11 LIT 40 for the retail price.

12 In its judgment of 17 September 1980 in Case 730/79 Philip Morris v Commission [1980] ECR 2671, which also related to a decision addressed to a Member State on the basis of Article 92, the Court disposed of the admissibility issue at paragraph 5 of its judgment as follows: The Commission does not dispute the applicant's right as a potential recipient of the aid referred to in the decision to bring an action for a declaration that the decision is void even though it is addressed to a Member State. Nor could the Commission contest admissibility, regard being had to the criterion laid down in the judgment of 15 July 1963 in Case 25/62 Plaumann v Commission [1963] ECR 95, where it was stated that the Commission's decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed. In a case such as the present one, which deals with aid for stocks which were held at a welldetermined date in the past, that criterion is, in my view, satisfied since an aid scheme of that kind (and the contested decision relating thereto) concerns a closed category of individuals. Whether it is a large or small number of persons concerned seems to me to be of no importance.

13 Sec footnote 1

14 See Article 169 and the third paragraph of Article 173 of the EEC Treaty.

15 Case 48/65 [1966] ECR 19 and the Opinion of Mr Advocate General Gand.

16 ECR 291, paragraphs 11 and 12 of the judgment.

17 In part II. 1. of the contested decision the Commission quotes its own letter to the Italian Government of 23 November 1984 in which it related (in the authentic Italian version subordinato) its view to its conclusions with regard to the principle of fixing sugar prices at the national level. The decision regarding the entire pricing system then followed on 18 December 1985 to the effect that the national rules were compatible with Community price rules, whereafter, on 7 May 1986, the Italian Government was informed that proceedings under Article 93(2) were being introduced.

18 Judgment of 14 February 1989 in Case 247/87, mentioned above in footnote 15, and see the Opinion of Advocate General Lenz, particularly at paragraphs 17 and 18.

19 This does not mean that it is not open to individuals, such as the applicants, to challenge national provisions before national courts as conflicting with (secondary) Community law. In the examination of questions raised in that way national courts must be guided by the Court's case-law and refer any further questions of interpretation of Community law under the Article 177 procedure (see, for example, the judgment of 9 October 1984 in Joined Cases 91 and 127/83 Heineken [1984] ECR 3435, paragraph 10). At the hearing, it was moreover announced by the applicants' representative that a case is pending before the tribunale di Roma between (some of) the applicants and the Italian authority in connection with the claim by the Italian authority for the return of the amounts of aid in implementation of the contested decision of the Commission. The case has been stayed pending the Court's decision in the present case.

20 I shall therefore express no opinion on the arguments deployed by the applicants, on the basis of the Court's abundant case-law, in order to demonstrate the incompatibility, certainly at wholesale level, of the Italian price rules with Community law, and merely state that no concrete answer has been given by the Commission to the question why the rules in question are, in its view, compatible with the common market.

21 Judgment of 27 March 1980 in Case 61/79 [1980] ECR 1205, paragraph 31.

22 Judgment of 10 July 1980 in Case 811/79 [1980] ECR 2545, paragraph 15-

23 I do not see how discrimination allegedly brought about by the Italian price system which, according to the applicants, is in breach of Community law, in particular Article 40(3) — assuming that this also prohibits discrimination between traders — can be made good by anocher national measure which, in its turn, creates discrimination prohibited by Community law, in this case Article 92 of the Treaty.

24 See Philip Morris v Commission (cited above at footnote 11), paragraphs 10 and 11 of the judgment.

25 Section IV(1), first paragraph of the contested decision.

26 Section IV(1), fourth paragraph of the cotested decision.

27 As far back as March 1959 in the judgment of 20 March 1959 in Case 18/57 Noldv High Authority [1959] ECR 41, the Court held that the obligation under Article 15 of the ECSC Treaty on the High Authority to state the reasons for its decisions is not only for the protection of interested parties, but also has as objective to enable the Court to review the decisions fully from the legal point of view as required by the Treaty. As a result the Court can and must of its own motion take exception to any deficiencies in the reasons which would make such review more difficult. In the context of an action for annulment under Article 173 of the EEC Treaty, the Court has confirmed that principle in connection with Article 190 of the EEC Treaty, which has wording identical to Article 15 of the ECSC Treaty, in its judgment of 7 July 1981 in Case 158/80 Rewe v Hmtptzollamt Kiel[1981) ECR 1805, paragraphs 18 and 19.

28 The contested decision refers to Italian traders It seems to me more correct to speak of traders selling in Italy holding sugar in storage there, because, if my understanding is correct (sec paragraphs 6 and 7 of the Italian Decision No 39/1984), the Italian aid scheme, although territorially limited to Italy, is not lied to a nationality condition

29 Commission Decision, part IV, second paragraph.

30 The same terminological observation as made in footnote 27

31 In its judgment of 26 November 1975 in Case 73/74 Papiers peiliti v Commission [1975] ECR 149, paragraphs 29 to 34, the Court held that the Commission had fallen short of us obligation to state its reasons in connection with the effect on inlra-Community trade (under the closely related Article 85(1) of the Treaty) in so far as concrete elements were lacking in the Commission's statement of reasons. It is true that, in its judgment in Philip Morns v Commission (see supra, footnote 11) the Court held that the requirement to give reasons in connection with intra-Statc trade was satisfied, regard being had to the (impressive) evidence provided by the Commission m connection with the distortion of competition requirement, but in the present case u is not possible, in my opinion, to infer from the arguments relating to this condition any clear conclusion as regards the other requirement, as is apparent from the unanswered questions mentioned further on m the text

32 It follows from the second subparagraph of paragraph 7 of Italian Decision No 39/1984 that, in the case of both producers and traders, the sale of stocks is a condition for the payment of the aid. It appears from the third subparagraph of paragraph 7 that producers, and from the third subparagraph of paragraph 6, sugar undertakings, which could include traders — this however cannot in my opinion be stated with certainly — arc obliged to sell first the sugar from the oldest harvest, 1984-85, and only thereafter ihe newer sugar

33 Paragraph 6, in particular the second subparagraph m ßne, and particularly paragraph 7, first subparagraph, under (a), first part of the sentence, expressly refer to imported sugar. In the first subparagraph or paragraph 7, at (b), sugar in general which is free of production tax is referred to. In contradistinction to the possible alternative formulation on which production tax has been paid, the expression used does not permit the conclusion that imported sugar (on which no production tax is payable) does not fall under its terms.