Opinion of Mr Advocate General Capotorti Delivered on 3 December 1980 1
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OPINION OF MR CAPOTORTI — CASE 95/80 OPINION OF MR ADVOCATE GENERAL CAPOTORTI DELIVERED ON 3 DECEMBER 1980 1 Mr President, terms of Article 1 (2) of Regulation No Members of the Court, 974/71 the Commission may lay down compensatory amounts as regards specific products covered by the common 1. By a judgment of 19 February 1980, organization of agricultural markets which is based on Article 177 of the EEC where intervention arrangements are Treaty, the Tribunal d'Instance of the provided for them, or, alternatively, the First Arrondissement of Paris asks the price of them depends on the price of Court to consider the validity of the other products for which intervention regulations "pursuant to which monetary arrangements are provided (leaving aside compensatory amounts are levied on the case of products which are not exports of Roquefort cheese from France covered by the common organization of to other countries, both Member States the market and are subject to specific and non-member countries". The rules pursuant to Article 235 of the question arises out of an action pending Treaty). Moreover, the power conferred before that court in which a number of on the Commission may only be producers and exporters of Roquefort exercised as regards products in which cheese are claiming reimbursement from trade is disturbed by monetary fluc the French customs authorities of sums tuations (Article 1 (3) of Regulation No which were paid by way of monetary 974/71 as amended by Regulation No compensatory amounts on exports, and 2746/72 of the Council of 19 December which the plaintiffs consider were unduly 1972). paid, between March 1976 and June 1979 (the period during which the system of compensatory amounts applied In the case with which the Court is to Roquefort cheese). The answer to the concerned there is no question but that question makes it necessary for the regu Roquefort, like any other cheese, is lations by means of which the covered by the common organization of Commission laid down that Roquefort the market in milk and milk products cheese should be subject to that system (Article 1 of Regulation No 804/68 of to be examined in the light of Regulation 27 June 1968) and that, on the other No 974/71 of the Council of 12 May hand, no intervention arrangements are 1971 on certain measures of conjunctural provided for it. The points in dispute are policy to be taken in agriculture therefore two in number, namely following the temporary widening of the whether the price of Roquefort is to be margins of fluctuation for the currencies held to depend on that of other products of certain Member States, that is to say, for which intervention arrangements are the legislative measure which created the provided and whether in 1976 there were system of monetary compensatory disturbances in the trade in Roquefort amounts and laid down its basic because of the fluctuations undergone by conditions. the French franc. 2. It is appropriate to recall at the 3. In regard to the first point, the outset what those conditions are. In Commission observes first that all 1 — Translated from the Italian. 336 DERVIEU-DELAHAIS v DIRECTEUR GÉNÉRAL DES DOUANES ET DROITS INDIRECTS cheeses gain advantages of a general minimum price levels for cheese" nature from the common organization of (p. 1131). the market in milk products by benefiting from specific measures such as levies on imports, even though intervention prices were fixed only for two cheeses, Grana Padano and Parmigiano Reggiano. In the context of the common organization of the market That opinion was accepted by the Court. in question, the Commission perceives a In its judgment of 24 October 1973 in general relationship of dependence the Balkan case it in fact recognized (at between the prices of cheeses and those paragraph 39) the existence of a link of butter and powdered milk, two between the price of cheese on the one products for which intervention arrange hand and that of butter and skimmed- ments are provided. That relationship milk powder on the other hand, notably exists for all cheeses whether made from as regards threshold prices, by virtue of cow's or sheep's milk. Moreover, Regulations Nos 804/68 and 823/68 of Roquefort and "blue" cheeses made the Council of 27 and 28 June 1968, from cow's milk are interdependent as respectively, which contain provisions regards their selling prices since the price determining the groups of products and of Roquefort varies according to the special provisions for calculating variations in the prices of the other blue levies on milk and milk products. Then, cheeses which are in competition with it. more recently, the Court had another opportunity to attribute a broad interpre tation to the concept of dependence adopted in Article 1 (2) of Regulation No 974/71. It stated, in fact, in its judgment of 3 May 1978 in Case 131/77 Milac [1978] ECR 1041 that "the price of a product depends ... on the price of a product covered by intervention In support of the general relationship of arrangements under the common organi dependence which it asserts, the zation of agricultural markets, which is Commission recalls the observations governed by the common organization made by Mr Advocate General Roemer of the markets, if the former price fluc in his opinion delivered on 26 June 1973 tuates appreciably owing to the incidence in Case 5/73 Balkan-Import-Export of variations in the latter price" GmbH [1973] ECR 1091. What was (paragraph 5 of the decision). The two involved then was an examination of the precedents appear to me to be decisive. dependence of the prices of cheese (and in particular of a Bulgarian cheese made from sheep's milk to which compensa tory amounts had been applied on import) ön intervention prices for butter and skimmed-milk powder. The Advocate General stated inter alia: "For However, the producers of Roquefort even if there is no close connexion maintain that that cheese, in contrast to between the price of cheese and the the cheese, also made from sheep's milk, intervention prices mentioned, yet one to which the Balkan judgment related, cannot accept that there is no connexion has special characteristics which take it at all. Indeed the intervention prices in out of competition with other cheeses respect of butter and skimmed-milk and the influence of the Community powder could at least guarantee intervention machinery. The judgment of 337 OPINION OF MR CAPOTORTI — CASE 95/80 the Court making the reference itself that of cow's milk, is determined by also alludes to the specific characteristics the production of Roquefort, which of Roquefort cheese which are said to constitutes its principal outlet. If that is justify the doubt concerning the validity true, the variations in the price of of the Community regulations by which Roquefort must be regarded as produced payment of monetary compensatory by factors other than the price of sheep's amounts on export was laid down. milk and precisely by the trends in the market for blue cheeses produced from cow's milk. In fact, since the production It is in fact the case that Roquefort may of Roquefort is much more limited than be distinguished from other analogous that of similar cheeses made from cow's products because it is made from sheep's milk, it is necessary to hold that it is the milk. But that does not alter the fact that prices of the latter which influence the it belongs to the family oft "blue" cheeses price of Roquefort and not vice versa. (which are also defined: as "blue-veined cheese") and that, from the point of view of the consumer, its belonging to that It should be said finally that Roquefort, family constitutes its primary and like the other blue cheeses of the fundamental characteristic. It thus does Community, benefits at least indirectly not appear to me to be correct that the from the protection which flows from product in question is removed from the system of levies which are applicable competition because it is unique. In the to all blue-veined cheeses. In particular, experience of the average consumer, the it is protected against imports into the difference in taste compared with other Community of such cheeses coming from blue cheeses is. not such as to make the countries of Eastern Europe. Roquefort irreplaceable. I therefore share the Commission's view that, in the same way as other cheeses, Then, in regard to prices, it is well Roquefort must be regarded as part of known that Roquefort,, just because it the market in milk products as a whole is produced from sheep's milk, is and that the price of Roquefort is traditionally more expensive (by some included amongst those prices which 30% at least), than other blue cheeses have a relationship of dependence on the made from cow's milk. But what is of price of products subject to intervention interest to us is the constant relationship arrangements in the framework of the between the prices of the one and the common organization of the market in others. The table produced by the milk (butter and skimmed-milk powder). Commission, which has not been subject to any challenge in the course of the procedure, indicates that in the period between 1974 and 1978 the price of 4. The other point which must be Roquefort fluctuated, both up and down, clarified is whether there was in 1976 a following a curve parallel to that of risk of disturbance in trade in the similar cheeses made from cow's milk, product in question as a consequence of amongst which Bleu des Causses and fluctuations in the exchange rates.