Odbor kompatibility s právem ES
Úřad vlády ČR
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Informační Systém pro Aproximaci Práva
Databáze č. 17 : Databáze judikatury
ă Odbor kompatibility s právem ES, Úřad vlády ČR - určeno pouze pro potřebu ministerstev a ostatních ústředních orgánů

Číslo (Kód CELEX):
Number (CELEX Code):		61978J0083
Název:
Title: 		JUDGMENT OF THE COURT OF 29 NOVEMBER 1978. PIGS MARKETING BOARD V RAYMOND REDMOND. PRELIMINARY RULING REQUESTED BY THE RESIDENT MAGISTRATE, COUNTY ARMAGH. COMMON ORGANIZATION OF THE MARKET IN PIGMEAT. CASE 83-78.
Publikace:
Publication:		REPORTS OF CASES 1978 PAGES 2347 - 2377
Předmět (klíčová slova):
Keywords		AGRICULTURE;PIGMEAT;STATE MONOPOLIES OF A COMMERCIAL CHARACTER;FREE MOVEMENT OF GOODS;QUANTITATIVE RESTRICTIONS;MEASURES HAVING EQUIVALENT EFFECT;ACCESSION;
Související předpisy:
Corresponding acts:		157E030;157E034
Odkaz na souvisejicí judikáty:
Corresponding Judgements:
    Meilicke Case C-83/91 Meilicke v ADV/ORGA [1992] ECR I-4871
    · Costa/ENEL Case 6/64 Costa v ENEL [1964] ECR 1251
    · Van den Hazel Case 111/75 Officier van Justitie v Van den Hazel [1977] ECR, 909
    · Charmasson Case 48/74 Charmasson [1974] ECR 1383
Plný text:
Fulltext:		Ne

Fakta:
Mr Raymond Redmond was found to have on 12 January 1977 transported 75 bacon pigs without being covered by an authorization from the Board. He was therefor prosecuted before the Resident Magistrate, Armagh, for offences against local legislation requiring said authorization. In his defence, Mr Redmond argued that this legislation was incompatible with Community law.
The legislation in question established a “Pigs Marketing Scheme” (hereinafter “PMS”) under which,
inter alia,
only the Pigs Marketing Board (“the Board”) and the persons authorized by it were entitled to market, sell and transport pigmeat. Offences against the relevant provisions were punishable by a fine and/or imprisonment and/or the forfeiture of the pigs in question.
The Resident Magistrate decided to stay the proceedings and to refer a set of (six) questions to the Court of Justice under Article 177 of the Treaty. The Board challenged this decision before the Court of Appeal which, however, took the view that making the reference was within the Magistrate discretion. Thereupon the Resident Magistrate submitted questions contained in its decision to the Court of Justice, together with a second series of (seven) questions which it put forward in an accompanying letter.

Názor soudu a komentář:
In view of the large number of questions contained in the Magistrates decision on the one hand and in the cover letter on the other, the Court first puts forward the principles applying to a reference made under Article 177 of the Treaty. Whether a reference to the Court is necessary is, in principle, a matter for the national court to determine because it is the national court which alone has a complete picture of the facts and which must ultimately give a judgement in the case ( see e.g.
Meilicke
). However, in the event of questions’ having been improperly formulated or going beyond the scope of powers conferred on the Court of Justice by Article 177, the Court is free to extract from all the factors provided by the national court and in particular from the statement of grounds contained in the reference, the elements of Community law requiring interpretation - or, as the case may be, an assessment of validity - having regard to the subject-matter of the dispute.” (see also
Costa/ENEL
) The Court thus assumes the power to (i) examine the necessity of the reference made to it and (ii), if appropriate, to only answer those questions which it deems necessary. In fact, the Court commonly makes use of this power and e.g. addresses several questions together or refuses to answer a particular question which, in the view of answers given to preceding questions, deems devoid of purpose.
Of the several questions referred to it, the Court therefore only answers two: Whether the the PMS is to be classified so as to enjoy special privileges under the Treaty and, if not, whether it conforms with the common organization of the pig market established by the Community.
The PMS could be classified as a “State monopoly of a commercial character” under Article 37 of the Treaty - so that its activities would be exempted from the application for a transitional period provided for by Article 44 of the Act of Accession -, as an “undertaking” within the meaning of Articles 85
et seq.,
90, or as a “national marketing organization” within the meaning of Article 2 of Regulation 26 of the Council
Of 4 April 1962 applying certain rules of competition to production of and trade in agricultural products (OJ, English Special Edition 1959-1962, p.129).
. The Residents Magistrate, referring this question, apparently assumed that either of these qualifications would make the PMS subject to special rules and privileges. Upon closer consideration of general structure of the EEC Treaty deems this question to be irrelevant: Article 37 concerning State monopolies is, according to Article 38(2) being derogated by the provisions relating to the establishment of a Common Market. The special privileges provided for undertakings by Article 90 on the other hand could not, pursuant to Article 90(1), have the effect of exempting the undertakings activities from the provisions of Community law or in particular those relating to the free movement of goods and the common organization of the agricultural market. As regards the national market organization, the Court points out that under the respective provisions of Regulation 26 were of a provisional nature only (
Charmasson
) and that the transitional period of said Regulation has expired.
Consequently, the compatibility of the PMS with the provisions relating to the free movement of goods and the common organization of the market in pigmeat had to be examined. The Court points out that “once the Community has, pursuant to Article 40 of the Treaty, legislated for the establishment of the common organization of the market in a given sector, Member States are under an obligation to refrain from taking any measure which might undermine or create exceptions to it” (
Van den Hazel
).
As regards the pigmeat market, the Community had established a common organization in particular by Regulation No 2759/75 of the Council.
Of 29 October 1975 on the common organization of the market in pigmeat (OJ L 282, p. 1).
Although this is not expressly stated in the Regulation, the provisions of the Treaty relating to the abolition of tariff and commercial barriers to intra-Community trade and in particular Articles 30 and 34 on the abolition of quantitative restrictions and of all measures having an equivalent effect on imports and exports are to be regarded as an integral part of the common organization of the pigmeat market. The sales and marketing restrictions instituted by the PMS constitute measures having an equivalent effect to import and export restrictions contrary to Articles 30 and 34 of the Treaty. They are therefore also contrary to the common organization of the market in pigmeat which incorporates said provisions.

Shrnutí (Summary of the Judgment):
1. AS REGARDS THE DIVISION OF JURISDICTION BETWEEN NATIONAL COURTS AND THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE TREATY THE NATIONAL COURT, WHICH IS ALONE IN HAVING A DIRECT KNOWLEDGE OF THE FACTS OF THE CASE AND OF THE ARGUMENTS PUT FORWARD BY THE PARTIES, AND WHICH HAS TO GIVE JUDGMENT IN THE CASE, IS IN THE BEST POSITION TO APPRECIATE, WITH FULL KNOWLEDGE OF THE MATTER BEFORE IT, THE RELEVANCE OF THE QUESTIONS OF LAW RAISED BY THE DISPUTE BEFORE IT AND THE NECESSITY FOR A PRELIMINARY RULING SO AS TO ENABLE IT TO GIVE JUDGEMENT. IN THE EVENT OF QUESTIONS' HAVING BEEN IMPROPERLY FORMULATED OR GOING BEYOND THE SCOPE OF THE POWERS CONFERRED ON THE COURT OF JUSTICE BY ARTICLE 177, THE COURT IS FREE TO EXTRACT FROM ALL THE FACTORS PROVIDED BY THE NATIONAL COURT AND IN PARTICULAR FROM THE STATEMENT OF GROUNDS CONTAINED IN THE REFERENCE, THE ELEMENTS OF COMMUNITY LAW WHICH, HAVING REGARD TO THE SUBJECT-MATTER OF THE DISPUTE, REQUIRE AN INTERPRETATION OR, AS THE CASE MAY BE, AN ASSESSMENT OF VALIDITY.

2. IT FOLLOWS FROM ARTICLE 38 (2) OF THE EEC TREATY THAT THE PROVISIONS OF THE TREATY RELATING TO THE COMMON AGRICULTURAL POLICY HAVE PRECEDENCE, IN CASE OF ANY DISCREPANCY, OVER THE RULES RELATING TO THE ESTABLISHMENT OF THE COMMON MARKET. THE SPECIFIC PROVISIONS CREATING A COMMON ORGANIZATION OF THE MARKET HAVE PRECEDENCE IN THE SECTOR IN QUESTION OVER THE SYSTEM LAID DOWN IN ARTICLE 37 IN FAVOUR OF STATE MONOPOLIES OF A COMMERCIAL CHARACTER.

3. ONCE THE COMMUNITY HAS, PURSUANT TO ARTICLE 40 OF THE TREATY, LEGISLATED FOR THE ESTABLISHMENT OF THE COMMON ORGANIZATION OF THE MARKET IN A GIVEN SECTOR, MEMBER STATES ARE UNDER AN OBLIGATION TO REFRAIN FROM TAKING ANY MEASURE WHICH MIGHT UNDERMINE OR CREATE EXCEPTIONS TO IT.

4. THE COMMON ORGANIZATIONS OF THE AGRICULTURAL MARKETS ARE BASED ON THE CONCEPT OF THE OPEN MARKET TO WHICH EVERY PRODUCER HAS FREE ACCESS AND THE FUNCTIONING OF WHICH IS REGULATED SOLELY BY THE INSTRUMENTS PROVIDED FOR BY THOSE ORGANIZATIONS. ANY PROVISIONS OR NATIONAL PRACTICES WHICH MIGHT ALTER THE PATTERN OF IMPORTS OR EXPORTS OR INFLUENCE THE FORMATION OF MARKET PRICES BY PREVENTING PRODUCERS FROM BUYING AND SELLING FREELY WITHIN THE STATE IN WHICH THEY ARE ESTABLISHED, OR IN ANY OTHER MEMBER STATE, IN CONDITIONS LAID DOWN BY COMMUNITY RULES AND FROM TAKING ADVANTAGE DIRECTLY OF INTERVENTION MEASURES OR ANY OTHER MEASURES FOR REGULATING THE MARKET LAID DOWN BY THE COMMON ORGANIZATION ARE INCOMPATIBLE WITH THE PRINCIPLES OF SUCH ORGANIZATION.

5. THE PROVISIONS OF ARTICLES 30 AND 34 OF THE EEC TREATY AND OF REGULATION NO 2759/75 ARE DIRECTLY APPLICABLE AND CONFER ON INDIVIDUALS RIGHTS WHICH THE COURTS OF MEMBER STATES MUST PROTECT. AS REGARDS THE NEW MEMBER STATES, THE EFFECTS OF THOSE PROVISIONS APPLIED, ACCORDING TO THE TERMS OF THE ACT OF ACCESSION AND IN PARTICULAR OF ARTICLES 2, 42 AND 60 (1) THEREOF, AS FROM 1 FEBRUARY 1973.

Plný text judikátu (Entire text of the Judgment):