Opinion of Mr Advocate General Tesauro

Mr President,

Members of the Court,

1. In this case, the French Republic is seeking the annulment of Commission Regulation (EEC) No 530/88 of 26 February 1988 withdrawing new potatoes from the list of products covered by the supplementary trade mechanism (hereinafter referred to as the STM)

2. The legal framework: in the provisions of the Act concerning the Conditions of Accession of the Kingdom of Spain and the Portuguese Republic and the Adjustments to the Treaties (hereinafter referred to as the Act of Accession), the STM is a system of supervision set up between the Community of Ten and Spain to prevent excessive imports of certain agricultural products which might disturb the markets. The purpose of this mechanism is to ensure an harmonious and gradual opening up of the market and the full realization of free movement for the products at issue within the Community on the expiry of the period of application of transitional measures (Article 83(2) of the Act of Accession).

3. The French Government's application is based precisely on the Commission's failure to observe the procedure laid down in Article 82 of the Act of Accession when adopting the contested regulation.

4. The distortion of the nature and function of the ad hoc Committee can already be seen, in the applicant's view, from the way in which its internal regulation was adopted.

5. For its part, the Commission, supported by the Kingdom of Spain, intervening, does not deny that the ad hoc STM Committee is a single, specific committee of a horizontal nature, as can be inferred from its very definition, the limits of its powers and the extent to which it is to be consulted. However, it denies that the way in which it proceeded deprived the consultation of the committee of all meaning.

6. As can be seen from the applicant's arguments, the various submissions put forward in the application are in reality based on a single premiss, namely the failure to consult a properly constituted ad hoc committee. The Court should therefore concentrate its attention on that point.

7. Similarly, the provisions of Article 1 of the internal regulation, which provides for the convening of joint meetings of two or more ad hoc Committees, seem also to be the result of an error. That may be explained by the fact that the regulation was drafted on the basis of a model common to all the internal regulations of management and regulatory committees, which provide for joint meetings of several committees.

8. Similarly, the joint meetings of the ad hoc Committee and the Management Committees for Seeds and for Fruit and Vegetables held on 17 December 1987 and 8 January 1988 for the purpose of considering the contested regulation were not, in my opinion, convened and conducted in such a way as to make the applicant's theory plausible.

9. In the light of what has been said and having regard to the fact that the Member States could have no doubt that it was specifically a meeting of the ad hoc committee provided for under Article 82 of the Act of Accession that had been convened and that they were thus perfectly free to send to the meeting of that committee different representatives from those sent to the meetings of the management committees, I consider that the French Government's criticisms concerning the consultation of an ad hoc STM Committee which was not correctly constituted cannot be accepted.

10. In reality, it seems to me that, more than the failure to consult a properly constituted ad hoc STM Committee, the French Government seeks to criticize the Commission's practice of consulting the committee in question not simultaneously in respect of all the products it proposes to withdraw from the STM list but specifically in respect of each individual product, which prevents Member States interested in one product or another from acting in concert.

11. In conclusion, I consider that the Commission's conduct does not appear to be of such a nature as to make consultation of the ad hoc Committee a meaningless exercise and thereby endanger the objective which the establishment of the STM was intended to achieve, namely an harmonious and gradual opening up of the market in the products covered by it.

1 Original language: Italian

2 OJ 1988, L 53, p 71

3 OJ 1 302. 15 11 1985. p 23