Opinion of Mr Advocate General Tesauro

Mr President,

Members of the Court,

1. This request for a preliminary ruling concerns the validity of Commission Regulation (EEC) No 400/86, which was previously considered by the Court in Case 167/88. The judgment in that case provides an answer to many of the doubts regarding validity expressed in these proceedings, especially the doubts surrounding the geographical differentiation of the special intervention measure at issue. However, the task remains of examining certain matters not considered in the abovementioned judgment, concerning the specific issue of the special intervention price established by the Commission in Regulation No 400/86.

Powers of the Commission

2. The powers of the Commission are challenged on two counts.

3. In that connection, it must be explained at the outset that in the 1985/86 marketing year the Council had not been able to fix the agricultural prices for the sector. Faced with the task of dealing with the legal vacuum due to the Council's failure to act, the Commission, in order to ensure continuity in the operation of the agricultural policy, took the precautionary step of fixing the intervention price in the cereals sector by Regulation (EEC) No 2124/85. The intervention price was established by retaining the price for the preceding year, subject to a slight reduction to take account of the need to control surpluses.

4. Of course, the foregoing applies in normal circumstances. We must now consider the situation in a case such as the present one, in which the Commission finds itself obliged to carry out its task of managing the agricultural policy in a legal vacuum.

5. In doing so, the Commission has clearly not substituted its own findings on agricultural prices for those of the Council: it has not laid down a general definition of the reference price, even merely as a precautionary measure.

6. The applicants in the proceedings before the national court also took issue with the powers of the Commission in a more specific context.

7. It should be pointed out that under Article 3(2) of Regulation (EEC) No 2727/75, as amended by Article 1 of Regulation (EEC) No 1151/77, the reference price is fixed for common wheat which meets medium bread-making quality requirements; however, since the actual aim of the special intervention measures (namely to support the market in relation to the reference price) may also be attained by means of support measures for wheat of other than medium quality, Article 8(2) of Regulation No 2727/75, as amended by Article 5 of Regulation No 1151/77, provides that the special measures may apply to wheat of a quality other than that for which the reference price has been fixed, and in particular (see the third recital in the preamble to Regulation No 1151/77) to wheat meeting the minimum requirements for breadmaking: in that event, however, a reduction is applied to the price which would have been fixed had the special measure related to wheat of medium quality.

8. I do not find that line of argument convincing for a number of reasons.

Improper exercise by the Commission of its powers

9. The interveners in the proceedings before the national court note an inconsistency between the special intervention measure in Regulation No 400/86 and the measure which had been the subject of Regulation (EEC) No 1810/84 during the previous marketing year. Reduced to its simplest form, the problem raised is that Regulation No 400/86 applied a greater reduction coefficient in respect of a wheat of higher quality than the wheat qualifying for the special intervention measure the previous year.

10. In this regard it must be observed that the mere fact that one act diverges from another, earlier act cannot be considered to impair its validity, especially in a situation such as this, where it was specifically provided that the prices (and the appropriate reductions) were to be calculated at the same time as the special intervention measure was applied.

11. Furthermore, it is clear from the documents before the Court that the twofold decision contained in Regulation No 400/86, namely to increase the rate of reduction and to raise the qualitative requirements, was incorporated into a more general plan, familiar to traders (and endorsed by the economic consequences of Regulation No 1810/84), designed not only to lower the general level of incentives for producers in order to control the problem of cereal surpluses, which has worsened over the years, but also to pursue a more selective policy as regards quality, by concentrating special incentives on higher-quality production.

12. In the light of all the foregoing considerations, I propose that the following answer should be given to the national court:

1 Original language: Italian.

2 Commission Regulation (EEC) No 400/86 of 21 February 1986 (OJ 1986, L 45, p. 22).

3 Judgment of 8 June 1989 in Case 167/88 Association générale des producteurs de blé v OMC [1989] ECR 1653.

4 For the purposes of this Opinion, basic regulation means Regulation No 2727/75, as amended by Council Regulation (EEC) No 1143/76 of 17 May 1976 (OJ 1976, L 130, p. 1). When reference is made to versions of Regulation No 2727/75, as amended by regulations other than Regulation No 1143/76, the particulars of the amending regulation will be cited.

5 Commission Regulation (EEC) No 2124/85 of 26 July 1985 (OJ 1985, L 198, p. 31).

6 A restrictive approach of that kind had already become apparent in respect of the previous marketing year, in Council Regulation (EEC) No 1019/84 of 31 March 1984 fixing cereal prices for the 1984/85 marketing year (OJ 1984, L 107, p. 4); in particular, the second recital states that the policy of caution on prices should become a policy of restriction, requiring a reduction both of the intervention price and of the reference price. As far as the Commission's practice is concerned, it should be noted that the restrictive approach is reflected in Commission Regulation (EEC) No 1810/84 of 28 June 1984 (see the fourth recital) containing a special intervention measure for the 1984/85 marketing year (OJ 1984, L 170, p. 33) and also in Commission Regulation (EEC) No 2124/85 of 26 July 1985 (OJ 1985, L 198, p. 31; see the second recital) adopting — as seen above — the precautionary pricing measures necessitated by the Council's continuing failure to act.

7 Council Regulation (EEC) No 1950/81 of 13 July 1981 (OJ 1981, L 198, p. 3).

8 Council Regulation (EEC) No 1452/82 of 18 May 1982 (OJ 1982, L 164, p. 6)

9 Council Regulation (EEC) No 1564/83 of 14 June 1983 (OJ 1983, L 163, p. 1).

10 See most recently the judgment of 14 February 1990 in Case C-350/88 Bisanti Deiacre and Others v Commission [1990] ECR I -395.