(Common organisation of the market in oils and fats Olive oil Article 12a of Regulation No 133/66/EEC Private storage Authorised bodies Recognised producer groups and associations thereof Joint venture seeking to maintain specific minimum price level Applicability of competition rules to agriculture Article 2 of Regulation (EEC) No 26)
- How far-reaching are the powers of national competition authorities in the agricultural sector? This is the central question in the present case and will afford the Court an opportunity of further elaborating its decision in Milk Marque. (2)
- Compañía Española de Comercialización de Aceite SA ('Cecasa'), a joint venture undertaking accounting for a major part of Spain's olive-oil production, was prohibited by the Spanish competition authority from intervening in a targeted manner in the functioning of the market to influence the market price of olive oil by support purchasing and selling activities. The prohibition was based on the general provisions of Spanish competition law. However, the point at issue is whether the provisions of that law are superseded or at any rate overlaid by certain special provisions concerning agriculture.
- The Spanish Tribunal Supremo (Supreme Court), before which this dispute has been brought, has submitted a total of five questions to the Court for a preliminary ruling; it seeks thereby to clarify whether in a case such as this the provisions of agricultural law can result in a situation in which general principles of competition law do not apply.
II Legal framework
A Community law
- The Community-law framework in this case is constituted on the one hand by the rules on the applicability of the competition rules in the field of agriculture and, on the other, by certain provisions of the common agricultural policy that are of relevance to the olive-oil sector.
1. Applicability of competition rules in the agricultural sector
- As regards the relationship between the competition rules of the EC Treaty and the common agricultural policy, Article 32(2) EC and Article 36(1) EC (formerly Article 38(2) and Article 42 of the EEC Treaty) are of fundamental significance. Article 32(2) EC provides that:
'Save as otherwise provided in Articles 33 to 38, the rules laid down for the establishment of the common market shall apply to agricultural products.'
- It is also provided in Article 36(1) EC that:
'The provisions of the Chapter relating to rules on competition shall apply to production of and trade in agricultural products only to the extent determined by the Council within the framework of Article 37(2) and (3) and in accordance with the procedure laid down therein, account being taken of the objectives set out in Article 33.'
- On the basis of the latter provision, the Council adopted Regulation No 26, (3) the first recital in the preamble to which contains the following statement of principle:
'Whereas by virtue of Article [36] of the Treaty one of the matters to be decided under the common agricultural policy is whether the rules on competition laid down in the Treaty are to apply to production of and trade in agricultural products ...'
- Article 1 of Regulation No 26 provides as follows:
'From the entry into force of this Regulation, Articles [81] to [86] of the Treaty and provisions made in implementation thereof shall, subject to Article 2 below, apply to all agreements, decisions and practices referred to in Articles [81](1) and [82] of the Treaty which relate to production of or trade in the products listed in Annex [I] to the Treaty.'
Olive oil is one of the agricultural products listed in Annex I to the EC Treaty (formerly Annex II to the EEC Treaty). (4)
- Article 2 of Regulation No 26 supplements Article 1 in the following terms:
'(1) Article [81](1) of the Treaty shall not apply to such of the agreements, decisions and practices referred to in the preceding Article as form an integral part of a national market organisation or are necessary for attainment of the objectives set out in Article [33] of the Treaty. In particular, it shall not apply to agreements, decisions and practices of farmers, farmers' associations, or associations of such associations belonging to a single Member State which concern the production or sale of agricultural products or the use of joint facilities for the storage, treatment or processing of agricultural products, and under which there is no obligation to charge identical prices, unless the Commission finds that competition is thereby excluded or that the objectives of Article [33] of the Treaty are jeopardised.
(2) After consulting the Member States and hearing the undertakings or associations of undertakings concerned and any other natural or legal person that it considers appropriate, the Commission shall have sole power, subject to review by the Court of Justice, to determine, by decision which shall be published, which agreements, decisions and practices fulfil the conditions specified in paragraph 1.
(3) The Commission shall undertake such determination either on its own initiative or at the request of a competent authority of a Member State or of an interested undertaking or association of undertakings.
...'
- Regulation No 26 was repealed with effect from 24 August 2006 and initially replaced by Regulation No 1184/2006 having the same content. (5) With effect from 1 July 2008, olive oil was eventually removed, together with certain other products, from the scope of application ratio materiae of Regulation No 1184/2006; olive oil is henceforth covered by the provisions of Article 175 and 176 in conjunction with Article 1(1)(g) of Regulation No 1234/2007, (6) which again substantively corresponds with its predecessor enactments. However, the act of the Spanish authorities that is challenged in the national proceedings was adopted before all these legislative changes, which is why Regulation No 26 continues to be relevant to the present case.
2. Agricultural provisions applicable to the olive oil sector
a) Common organisation of the market in oils and fats
- Regulation No 136/66 on the establishment of a common organisation of the market in oils and fats, (7) in the version in force from 1 November 1998, (8) contained the following Article 12a:
'In the event of serious disturbance of the market in certain regions of the Community, in order to regularise the market, a decision may be taken in accordance with the procedure laid down in Article 38 to authorise bodies offering sufficient guarantees, and approved by the Member States, to conclude contracts for the storage of olive oil that they market. Among the bodies concerned, priority shall be given to producer groups and associations thereof recognised in accordance with Regulation (EC) No 952/97.
The measures referred to in the first paragraph may be implemented inter alia when the average price recorded on the market during a representative period is less than 95% of the intervention price applicable during the 1997/98 marketing year.
The amount of the aid granted for the performance of contracts and the detailed rules for implementing this Article, in particular the quantities, qualities and duration of storage of the oils concerned, shall be established by the procedure laid down in Article 38 in such a way as to ensure a significant impact on the market. The aid may be granted by means of tenders.'
- As regards this provision, the 12th recital the preamble to Regulation No 1638/98 provides as follows:
'Whereas, if the supply of olive oil is to be regulated when there is serious disturbance of the market, there is a need for a system of aid for private storage contracts, with priority for such contracts being given to producer groups and associations thereof recognised under [Regulation No 952/97].'
- In addition, reference should also be made to the 11th recital in the preamble to Regulation No 1638/98:
'Whereas the system of public buying-in constitutes a production incentive which is liable to destabilise the market; whereas buying-in must therefore be discontinued and the references to the intervention price must be deleted or replaced.'
- In the meantime, Regulation No 133/66 was repealed and replaced, initially, for the 2005/2006 marketing year, by Council Regulation (EC) No 865/2004 of 29 April 2004 on the common organisation of the market in olive oil and table olives (9) and then, with effect from 1 July 2008, by Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets. (10) Articles 31 and 33 of the latter regulation likewise contain provision for optional aid for the private storage of olive oil. However, since the act of the Spanish authorities that is challenged in the main proceedings was adopted before those amendments, for the purposes of the present case reference should continue to be made to Regulation No 133/66.
b) Provisions concerning producer groups
- Council Regulation (EC) No 952/97 of 20 May 1997 on producer groups and associations thereof, (11) which was repealed with effect from 3 July 1999 without being replaced, (12) aimed to promote, as is apparent from Article 1 thereof, the setting up of producer groups and associations in certain regions of the Community which, under Article 2 of that regulation, also include Spain.
- Article 5 of Regulation No 952/97 contains the following definitions:
'(1) Producer groups shall:
(a) be set up for the purpose of jointly adapting the production and output of the producers who are members of such groups to market requirements;
(b) consist of:
individual producers, or
individual producers and organisations for producing or increasing returns from agricultural products, consisting solely of agricultural producers,
'Producer' shall mean any person working an agricultural holding situated within Community territory:
who produces the products of the soil and livestock products listed in Article 3, or
who, while being a primary producer, produces the processed products listed in Article 3.
(2) The Member States may, when their national provisions so provide, recognise producer groups which also include persons other than those covered by paragraph 1. In such cases, the groups' statutes must ensure that the members covered by paragraph 1 retain control over the groups and any decisions the latter may take.
(3) Associations shall consist of recognised producer groups and shall pursue the same objectives as those groups, but on a larger scale.'
- Article 6 of Regulation No 952/97 lays down general conditions to be satisfied by producer groups and their associations. In particular, Article 6(1)(b) provides that they are to:
'... decide on and apply, in respect of persons covered by Article 5(1),
common rules on production, in particular on product quality or use of organic practices;
common rules for placing goods on the market;
rules on production information, with particular regard to harvesting and availability.'
- Under Article 7 of that regulation, the Member States are to take a decision on recognition within three months of the date on which recognition is requested and must make their decision known to the Commission within two months.
- Additionally, mention should be made in this connection of Commission Regulation (EC) No 2768/98 of 21 December 1998 on the aid scheme for the private storage of olive oil. (13) Article 1(1) thereof provides:
'The competent bodies in producer Member States shall conclude contracts for the private storage of virgin olive oil in bulk on the conditions laid down in this Regulation.'
- Under Article 1(2) of Regulation No 2768/98, the Commission may, in order to determine the aid to be granted for carrying out contracts for private storage, issue invitations to tender for a limited period or partial invitations to tender. The potential candidates entitled to participate in these tendering procedures are specified in Article 3(1) as follows:
'Operators approved to that end by the competent body in the Member State concerned may submit tenders in respect of partial invitations to tender. Approved operators may include the following:
(a) a producers' group or an association of such groups, recognised in accordance with Regulation (EC) No 952/97, or
(b) a producers' group or an association of such groups, recognised in accordance with Article 20c of Regulation No 136/66/EEC, or
(c) a mill approved ... for more than two marketing years ... or
(d) a packaging firm ...'.
B National law
- As regards Spanish law, reference should be made to Law No 16/1989 of 17 July 1989 on the protection of competition (Ley de Defensa de la Competencia). (14) The definition of 'prohibited activities' in Article 1(1) adheres closely to Article 81(1) EC (15) and reads as follows:
'The following are prohibited: all agreements, decisions, collective recommendations or concerted or consciously synchronised practices, which have as their object or which result in or may result in the prevention, restriction or distortion of competition in all or part of the national market and, in particular, those which:
(a) directly or indirectly fix prices or other commercial or service conditions;
(b) limit or control production, distribution, technical development or investment;
(c) share markets or sources of supply;
...'
- Under the heading 'Conditions for authorisation', (16) Article 3 of Law No 16/1989 provides as follows:
'(1) Agreements, decisions, recommendations and practices which are referred to in Article 1, or categories thereof, which have the effect of improving the production or distribution of goods and services or promoting technical or economic progress, may be authorised, provided that:
(a) they allow consumers or users an appropriate share of the resulting benefit;
(b) they do not impose on the undertakings concerned restrictions which are not indispensable to the attainment of those objectives; and
(c) they do not afford participating undertakings the possibility of eliminating competition in respect of a substantial part of the goods or services in question.
(2) Similarly, the following may be authorised, to the extent that they are justified by general economic circumstances or by the public interest: those agreements, decisions, recommendations and practices which are referred to in Article 1, or categories thereof, that:
(a) have as their object the protection or promotion of exports, provided that they have no detrimental effect on competition in the domestic market and are compatible with obligations arising from international conventions ratified by Spain; or
(b) have as their result the raising of the social and economic level of a depressed area or economic sector to a sufficiently great extent; or
(c) by virtue of their minor importance, are not capable of materially affecting competition.'
III Facts and main proceedings
- Cecasa is a public limited company under Spanish law, 68% of whose shares are held by oil producers, oil pressers and cooperatives, whilst 32% are owned by credit and other institutions. The olive-growing members of the company account for between 50% and 60% of the national production of olive oil. The main object of Cecasa is the sale of olive oil: according to the order for reference the undertaking seeks to operate both on the national market for olive oil and on the Community and world markets.
- In order to prevent 'serious disturbance of the market' and in particular a collapse of prices for olive oil, Cecasa aims to purchase and store olive oil as soon as the price falls below a certain level (approximately 95% of the former Community intervention price), and to return it to the market as soon as prices recover.
- In order to implement this arrangement, Cecasa applied on 5 April 2001 for an individual authorisation under Article 3 of Law No 16/1989. (17) However, authorisation was refused by a decision of the Tribunal de Defensa de la Competencia (Competition Court) (Spain) (18) of 5 March 2002. In support of its decision, the competition authority stated that Cecasa's proposal was anti'competitive. It constituted an agreement between competitors that sought, in the same way as a cartel, to influence market prices and was intended to prevent a collapse in prices in the event of production surpluses. An exemption under Article 3 of Law No 16/1989 could not apply; in particular, the alleged advantages to the consumer had not been established.
- Cecasa brought an administrative-law appeal against the decision of the Tribunal de Defensa de la Competencia before the Audiencia Nacional (Chamber for Contentious Administrative Proceedings (Spain) (19)), which was dismissed by judgment of 22 July 2005. However, the Audiencia Nacional made clear that dismissal of the application for individual authorisation did not entail a prohibition on the claimant undertaking as such, as long as it pursued activities other than those for which it had sought individual authorisation and as long as those activities were lawful.
- Following an appeal in cassation by Cecasa, the legal dispute is now pending before the Spanish Supreme Court, the Tribunal Supremo (Chamber for Contentious Administrative Proceedings).
IV Reference for a preliminary ruling and proceedings before the Court
- By order of 22 October 2007, which was received at the Court on 19 November 2007, the Tribunal Supremo (hereinafter also referred to as 'the referring court') stayed proceedings before it and referred the following questions to the Court of Justice for a preliminary ruling:
'(a) Does the reference to 'bodies' authorised to conclude contracts for the storage of olive oil in Article 12a of Council Regulation (EEC) No 136/66 of 22 September 1966 on the establishment of a common organisation of the market in oils and fats, in the version introduced by Regulation No 1638/98, cover a company whose shareholders predominantly comprise producers, oil pressers and olive growers' cooperatives, as well as financial institutions? Can a company with these characteristics be considered equivalent to producer groups and associations thereof recognised under Regulation (EC) No 952/97?
(b) In the event that the company falls within the description of 'bodies' capable of carrying out storage activities, can the 'approval by the Member State' which such bodies require by virtue of Article 12a of Regulation No 136/66, be obtained as part of an application for an individual exemption ('authorisation') made to the national competition authorities?
(c) Does Article 12a of Regulation No 136/66 constitute an absolute requirement that the Commission authorise the private storage of olive oil in each case or, on the contrary, is it compatible with the existence of a mechanism agreed between producers for the privately-financed acquisition and storage of such olive oil, which would be activated exclusively on the same terms and conditions which activate Community-financed private storage, with the aim of supplementing and rationalising such Community-financed storage without going beyond it?
(d) Can the reasoning given by the Court of Justice in Case C-137/00 Milk Marque [2003] ECR I-7975 relating to the application by domestic authorities of national competition rules to producers' agreements which are capable, in principle, of being covered by Article 2 of Council Regulation No 26 (applying certain rules of competition to production of and trade in agricultural products) be extended to agreements which, by their nature and by the nature of the sector in question, could affect the Community market in olive oil as a whole?
(e) In the event that the national competition authorities are competent to apply national laws to the aforementioned agreements which are capable of affecting the common organisation of the market in oils and fats, can those authorities refuse absolutely to allow a company such as the appellant to make use of the storage mechanisms for olive oil, even in situations of 'serious disturbance' as contemplated by Article 12a of Regulation No 136/66?'
- In the proceedings before the Court, Cecasa, the Asociación española de la industria y comercio exportador de aceite de oliva (Asoliva), the Asociación nacional de industriales envasadores y refinadores de aceites comestibles (Anierac) and the Commission of the European Communities submitted written observations. Only Cecasa and the Commission took part in the hearing before the Court that took place on 17 December 2008.
V Assessment
A Admissibility of the reference for a preliminary ruling
1. Second part of the first question
- In the second part of the first question, the Tribunal Supremo refers to Regulation No 952/97, which, however, was no longer in force at the time when the decision challenged in the main proceedings was adopted. More specifically, that regulation had already been repealed at the material time in the main proceedings. In those circumstances, the question arises as to whether the second part of the first question can be material to the ruling to be given in the present case.
- On that point, it is as a matter of principle for the referring court alone to determine whether the questions submitted by it are material to the decision to be given. Accordingly, the Court is bound to rule on questions referred to it if they concern the interpretation of Community law. It can refuse to rule on a question referred for a preliminary question only where it is quite obvious that the interpretation of Community law sought bears no relation to the actual facts or of the main action or its purpose, where the problem is hypothetical or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (20) This is not such a case.
- It is true that in connection with the repeal of Regulation No 952/97 no successor instrument was enacted; instead, the Community legislature took the view at the time that specific support to producer groups was no longer necessary in the framework of rural development. Accordingly, it was clear that the aid scheme under Regulation No 952/97 should be discontinued. (21)
- None the less, Regulation No 952/97 did not lose all practical significance on being repealed. Thus, subsequent legal acts of the Community institutions expressly refer to Regulation No 952/97. (22) In addition, the terms 'recognised producer groups' and 'associations of producer groups' continue to be used even without actual reference to the provisions of Regulation No 952/97. (23) Therefore, the interpretation of that regulation cannot ab initio be denied all significance solely owing to the fact that it is no longer in force.
- A special additional factor in the present case is that recognised producer groups and their associations play a role in the context of Article 12a of Regulation No 136/66. The interpretation of this provision, which is applicable ratione temporis to the dispute in the main proceedings, (24) constitutes the main focus of the present reference for a preliminary ruling. In the drafting of that provision, the Community legislature expressly referred to Regulation No 952/97. (25)
- Against that background the second part of the first question, which seeks an interpretation of Regulation No 952/97, does not at any rate appear manifestly immaterial to the determination of the main proceedings. In such a case the Court is bound to reply to the questions referred to it for a preliminary ruling.
2. The questions relating to Article 12a of Regulation No 136/66
- Doubts were also raised before the Court as to whether the questions referred by the Tribunal Supremo were material to the decision to be given, in so far as these questions concern the interpretation of Article 12a of Regulation No 136/66. Since Cecasa has never claimed under the aid scheme provided for therein and the Commission did not issue authorisation for private storage under that provision, the questions in that connection could not affect the resolution of the dispute in the main proceedings in any way.
- I do not share this view of the matter. Admittedly, the mechanism for the subsidising by the Community of the private storage of olive oil is not to be applied in the present case. None the less, the interpretation and understanding of Article 12a of Regulation No 136/66 can be of considerable importance to the assessment of this case in the light of competition law. It may be possible to obtain guidance from that provision, and from its aims and interrelationship with other legislation, that could have a decisive impact on the interpretation and application of the competition rules in the present case.
- Thus, the reference for a preliminary ruling is also admissible in this respect.
B Substantive assessment of the questions referred
- The present reference for a preliminary ruling seeks in overall terms to ascertain the degree of latitude retained in the agricultural sector by national authorities for the application of their national competition law. Owing to the primacy of Community law this latitude cannot extend beyond the limits imposed by the agricultural law of the Community.
- If it should turn out that the intervention purchases and sales of olive oil envisaged by Cecasa are justified by provisions of agricultural law, that point would also have to be taken into account as regards the application of the competition rules. Against that background, the Tribunal Supremo requests the Court, first, for an interpretation of Article 12a of Regulation No 136/66 and the provisions connected with it, and, secondly, for an interpretation of Article 2 of Regulation No 26.
1. First question
- The first question concerns the scope ratione personae of Article 12a of Regulation No 136/66. It asks whether this provision can apply to a public limited company, such as Cecasa, which operates in the private sector.
a) First part of the first question
- In the first part of its first question, the referring court essentially wishes to know whether a public limited company, such as Cecasa, operating in the private sector can be classified as a body authorised to conclude contracts for the storage of olive oil for the purposes of Article 12a of Regulation No 136/66.
- The concept of 'body' is defined neither in Article 12a nor anywhere else in Regulation No 136/66. In the present case, the first issue is whether a private undertaking can be classified as a body for the purposes of this provision. The other matter to determine is whether classification as a body under Article 12a of Regulation No 136/66 is precluded by the fact that, in addition to oil producers, oil pressers and cooperatives, financial investors are also involved in the undertaking concerned.
No restriction to public or state entities
- As Cecasa rightly points out, it would be to misconstrue the concept of 'body' in Article 12a of Regulation No 136/66 to interpret it as meaning that only public or state entities (26) fall within the scope of that provision.
- It is true that the word for 'body' used in Article 12a of Regulation No 136/66 is the same word as is used in certain language versions to designate elsewhere, in particular in Article 1(1) of Regulation No 2768/98, State entities. (27) Yet, taken by itself, this does not necessarily mean that Article 12a of Regulation No 136/66 is to be read as referring only to public or State entities. It should be borne in mind that in the terminology of certain other language versions a clear distinction is drawn between 'bodies', as used in Article 12a of Regulation No 136/66, and 'competent bodies in Member States', as referred to in Article 1(1) of Regulation No 2768/98. (28) In the light of such differences between the different language versions of the applicable agricultural law, the provision in question must be interpreted on the basis of the general scheme and aim of the instrument of which it forms part. (29)
- It may be inferred from the meaning and purpose of Article 12a of Regulation No 136/66, which is to introduce a system of aid for private storage contracts, (30) that the scope of the provision cannot be limited only to public entities. Normally it will be the case that the bodies mentioned therein will be private entities.
- It is also to be inferred from the scheme of the provisions in question that private entities may well be regarded as bodies within the meaning of Article 12a of Regulation No 136/66. Thus, these bodies are authorised to enter into agreements for storage 'of olive oil that they market'. However, marketing is not an activity that is in any way reserved to public agencies and it can also be carried on by private undertakings, which is in any event the normal situation in an open market economy. (31) In addition, the requirement of 'sufficient guarantees' in Article 12a of Regulation No 136/66 relates more to the activity of private undertakings than that of public entities.
- Private undertakings may therefore be bodies for the purposes of Article 12a of Regulation No 136/66.
Involvement of financial investors
- In addition, it has to be examined whether classification as a body under Article 12a of Regulation No 136/66 is precluded if, in addition to oil producers, oil pressers and cooperatives, financial investors are also involved in the undertaking concerned.
- Article 12a of Regulation No 136/66 is silent on this point. However, in the interpretation of a Community-law provision regard must be had not only to its wording but also to the context in which it occurs and the objective pursued by the rules of which it forms part. (32)
- The objective of Regulation No 136/66, and of amending Regulation No 1638/98, does not preclude the inclusion of mixed undertakings in which financial investors are involved alongside oil producers, oil pressers and cooperatives. There is no evidence to indicate that the involvement of financial investors could undermine the objective of regulating the supply of olive oil through a system of private storage and of remedying market disturbances (33) in that way. In particular, it cannot be assumed ab initio that the involvement of financial investors goes hand in hand with lower quality standards or a lesser degree of expertise concerning the storage of olive oil. There is even less justification for drawing such a conclusion where the financial investors as here in the case of Cecasa hold only a minority holding in the undertaking concerned. On the contrary, a holding of that kind is likely to strengthen the financial power of the undertaking concerned and thus assist in providing the 'sufficient guarantees' required by Article 12a.
- As regards, finally, the interrelationship between the statutory provisions, mixed undertakings in to which financial investors are involved are not, it is true, expressly mentioned in Article 3(1) of implementing Commission Regulation No 2768/98. But it cannot be inferred from this fact alone that mixed undertakings are absolutely excluded from the scope of Article 12a of Regulation No 136/66. As the Commission itself has conceded, the list of the bodies set out in Article 3(1) of its implementing Regulation No 2768/98 is not definitive.
- Moreover, Regulation No 2768/98 is merely an implementing regulation in connection with a common organisation of the market established by the Council, in this case specifically in relation to Article 12a of Regulation No 136/66. As the basic regulation, this Council Regulation ranks above the implementing regulation and cannot be restricted in scope by the Commission without express authorisation. Nor does the third paragraph of Article 12a of Regulation No 136/66 provide the Commission with any form of authorisation in that connection. On the contrary, it merely allows the Commission to determine the amount of aid for private storage and to regulate technical details such as quantities, qualities and duration of storage for the olive oil to be stored and to lay down the procedure for the award of aid. Conversely, the authorisation to enact implementing provisions cannot justify, either in regard to subject'matter or objective, any restriction on the scope ratione personae of Article 12a of Regulation No 136/66.
- On the basis of all of those considerations, a private undertaking in which, alongside oil producers, oil pressers and cooperatives, financial investors are also involved, must be regarded as a body within the meaning of Article 12a of Regulation No 136/66.
- It goes without saying that, for Article 12a of Regulation No 136/66 to be applied to an undertaking of this kind, the other requirements laid down in that provision must be met: first, the undertaking in question must offer 'sufficient guarantees' and must be authorised in the Member State concerned. (34) Secondly, there must be a serious disturbance of the market and the Commission must issue authorisation for private storage in a comitology procedure under Article 38 of Regulation No 136/66. If these requirements are not complied with, there can be no legal basis for the private storage of olive oil under Article 12a of Regulation No 136/66.
b) The second part of the first question
- In the second part of its first question, the referring court seeks to ascertain whether a public limited company operating in the private sector, such as Cecasa, can be assimilated to recognised producer groups and associations thereof for the purposes of Regulation No 952/97.
Producer groups
- In order to be regarded as a producer group for the purposes of Regulation No 952/97, the body concerned must satisfy a series of requirements that are listed in Articles 5 and 6 of that regulation.
- Of fundamental importance in that connection are the requirements to be satisfied by the object for which a producer group is established: under Article 5(1)(a) of Regulation 952/97, the body in question must be established for the twofold purpose of jointly adapting the production and output of the producers who are members of such groups to market requirements. A body such as Cecasa is indeed engaged in the sale of olive oil and has specifically set itself the task of regulating the output of olive oil produced by its members by intervention buying and selling. Yet it does not meet at any rate from the information available the second requisite objective, namely that of adapting the production of olive oil to market requirements. In these circumstances, the purpose for which a company such as Cecasa was set up does not meet the two cumulative requirements of Article 5(1)(a) of Regulation No 952/97.
- That renders superfluous an examination of whether the other requirements of Regulation No 952/97 can be met by a company such as Cecasa. The fact that it does not satisfy the first requirement laid down under Article 5(1)( a) means that a company such as Cecasa cannot be regarded as a producer group for the purposes of Regulation No 952/97.
Association of producer groups
- Article 5(3) of Regulation No 952/97 defines associations as associations of recognised producer groups pursuing the same objectives as the groups but on a larger scale.
- In the same way as the producer groups belonging to it, an association of producer groups must pursue the objective of adapting the production and output of olive oil to market requirements (Article 5(1)(a) of Regulation No 952/97). That such an association may not limit itself solely to the output and attendant marketing of olive oil is apparent from the first part of Article 6(1)(b) of Regulation No 952/97: under that provision producer groups and associations thereof must also decide on and apply common rules for the production of olive oil.
- Where a company such as, in the present case, Cecasa pursues no such objective or activity with regard to the olive-oil production of the producers and cooperatives (35) which are members of it, it cannot be regarded as an association of producer groups.
- Accordingly, in circumstances such as those in the main proceedings, a company such as Cecasa can neither be regarded as a producer group nor as an association of producer groups for the purposes of Regulation No 952/97. However, that simply means that it cannot be given priority in regard to the conclusion of contracts for private storage (see the second sentence of Article 12(a)(1) of Regulation No 136/66). Irrespective of that, it can apply to the competent national authority for authorisation as a body within the meaning of the first sentence of Article 12(a)(1) of Regulation No 136/66 .
c) Interim conclusion
- A public limited company operating in the private sector whose object is the sale of olive oil and which has set itself the objective of influencing market output by means of targeted sales and purchases of olive oil may be regarded as a body for the purposes of Article 12(a)(1) of Regulation No 136/66 in the version set out in Regulation No 1638/98. That is not precluded by the fact that financial investors are also involved in the company in question alongside oil producers, oil pressers and cooperatives. However, in circumstances such as those of the main proceedings such a company cannot be regarded as a producer group or an association of producer groups for the purposes of Regulation No 952/97.
2. Second question
- My proposed reply to the first question means that a company such as Cecasa may be regarded as a body to which Article 12a of Regulation No 136/66 can apply. In these circumstances, the second question also calls for a reply. In it, the referring court essentially seeks to ascertain whether a body within the meaning of Article 12a of Regulation No 136/66 can obtain authorisation from the national competition authorities in proceedings to apply the competition rules.
- Neither Regulation No 136/66 nor Regulations Nos 952/97 and 2768/98 determine which authority within a given Member State is responsible for authorising the bodies that can be permitted to conclude contracts for the private storage of olive oil.
- The starting point for the reply to be given to the second question is thus the procedural autonomy enjoyed by the Member States. It is for the Member States to determine the national bodies responsible for transposing Community law and to determine the applicable procedures, in which connection they have to observe the principles of effectiveness and equivalence. (36)
- As a matter of Community law, it is therefore by no means impossible that a Member State may entrust its competition authorities with the task of also applying provisions of agricultural law in the context of competition-law procedures and in that connection to issue authorisations under agricultural law. Thus, it may for example, depending on the circumstances, be regarded as sensible to create a single authority with responsibility for particular authorisations, thus saving those concerned a multitude of different approaches to authorities and administrative procedures. (37)
- However, if national law permits recognition by the national competition authority of a body for the purposes of Article 12a of Regulation No 136/66, the principle of effectiveness requires that that authority may also apply the relevant provisions of agricultural law in an effective manner. In the present case, that means in particular that, in the proceedings conducted by it, a competition authority must undertake all verifications that are necessary in order to establish whether the body to be recognised under Article 12a of Regulation No 136/66 offers 'sufficient guarantees'.
- The salient points may therefore be summarised as follows:
Community law does not preclude a national legal situation in which bodies, within the meaning of Article 12a of Regulation No 136/66, may also be authorised by the national competition authorities in proceedings applying competition law, provided that it is established that in such a procedure the relevant provisions of agricultural law are applied in an effective manner and that all requisite verifications have been undertaken.
3. Third question
- In its third question, the referring court essentially seeks to ascertain whether Article 12a of Regulation No 136/66 precludes a privately agreed and financed system for the acquisition and storage of olive oil that is operated without the Commission's authorisation.
- In that connection, it should be noted that Article 12a of Regulation No 136/66 merely introduces a Community aid scheme for the private storage of olive oil. (38) It was not intended that this scheme should lay down an exhaustive set of rules governing the permissibility of the private storage of olive oil, whereby any private storage effected outside Article 12a would be prohibited. Neither the wording nor the aim or the general scheme of the provision allow the inference that the Community legislature envisaged such a restriction on entrepreneurial freedom of operation.
- In the light of the principle of subsidiarity (see Article 5(2) EC), it may be assumed that the Community legislature did not seek completely to exclude decentralised initiatives with respect to private storage. As discussed at the hearing, such initiatives may possibly react more swiftly and more flexibly to market trends in individual Member States and regions, than is permitted by the mechanism created at Community level by Article 12a of Regulation No 136/66 with its procedural and budgetary constraints; it is sensible for them to complement one another.
- Accordingly, it is open as a matter of principle to private bodies to take measures outside the regulatory scope of Article 12a of Regulation No 136/66 for the private storage of olive oil. This is precisely what Cecasa proposes in the present case; it finances its scheme privately and in that connection neither claims nor has any wish to claim Community aid for it, as was unanimously confirmed by statements from all the parties to the proceedings.
- If however the private storage is to be operated, as in this case, without using the scheme laid down under Article 12a of Regulation No 136/66, then it follows that it is not necessary in principle either to make a finding as to a serious disturbance of the market or to obtain authorisation from the Commission, in accordance with that provision. But at the same time, the body concerned cannot rely on Article 12a of Regulation No 136/66 in order to justify its proposal for private storage and to escape the application of the general rules governing the market for olive oil. In such a case, the private storage must instead be undertaken in compliance with the provisions of Community law in general and with the provisions of national law compatible with Community law, in particular the competition rules applicable in a given case, since agriculture is not an area exempt from the application of competition law. (39)
- My interim conclusion is therefore that:
Article 12a of Regulation No 136/66 does not preclude a privately agreed and financed scheme for the acquisition and storage of olive oil. However, such a scheme must be operated in compliance with the general rules governing the market for olive oil, in particular the rules of competition law applicable in a given case.
4. Fourth question
- By its fourth question, the referring court essentially seeks to ascertain whether national competition authorities may also apply their national competition law to an agreement between producers within the meaning of Article 2 of Regulation No 26 where that agreement could affect the market for olive oil not only at national level but also throughout the Community.
a) Preliminary observation on the referring court's two premisses
- In its question, the referring court proceeds on the basis of two fundamental premisses: first, the scheme of intervention purchases and sales envisaged by Cecasa could display 'a Community dimension' and affect the olive-oil market on a Community-wide basis (first premiss); secondly, this proposal could fall within the scope of the second sentence of Article 2(1) of Regulation No 26 (second premiss).
- The scheme envisaged by Cecasa would have a 'Community dimension' (first premiss) if it were liable to affect trade between Member States (see the 'clause regarding the cross-border effects on trade' in Article 81(1) EC). It is apparent from the findings of fact made by the Tribunal Supremo in this connection that the oil producing members of Cecasa account for between 50% and 60% of the national olive-oil production of Spain, which means that Cecasa's proposal could, depending on the circumstances, affect more than one half of the Spanish olive-oil market. In addition, Asoliva submits that the Spanish market, which is precisely the market at issue, accounts for around 45% of the Community market, that is to say almost one half. In those circumstances, it may be presumed that the intervention acquisition and selling envisaged by Cecasa may not only significantly affect the Spanish market for olive oil, but also the whole of the Community market in this product and thus, in the final analysis, trade between Member States.
- In order, moreover, to fall within the scope of the second sentence of Article 2(1) of Regulation No 26 (second premiss), Cecasa's proposal must be an agreement, a decision or a practice of farmers, farmers' associations or associations of such associations.
- While, as I observed above, (40) Cecasa cannot automatically be assimilated to a producer group or an association of producer groups, at any rate not if these concepts are interpreted in accordance with the definitions set out in Article 5 of Regulation No 952/97, it none the less remains the case that the shares in Cecasa are held as to 68% by oil producers, oil pressers and cooperatives, with the result that it would be possible to regard Cecasa's proposal as an agreement or decision of farmers for the purposes of the second sentence of Article 2(1) of Regulation No 26.
- In the final analysis, however, it is not absolutely necessary, in order to reply to the question referred, to establish the correctness of the two premisses of the referring court definitively. For, as I shall demonstrate below, the application of national competition law remains possible even if Cecasa's proposal were to fall within the scope of Article 81(1) EC and the second sentence of Article 2(1) of Regulation No 26.
b) Assessment of the question
- The point of departure in replying to the fourth question is the consideration that the common organisations of the markets for agricultural products are not a competition-free area; or the contrary, the maintenance of effective competition on the markets for agricultural products is one of the objectives of the common agricultural policy. (41)
- In accordance with settled case-law, Community competition law and national competition law apply in parallel, since they consider restrictive practices from different points of view. Whereas Articles 81 EC and 82 EC regard them in the light of the obstacles which may result for trade between Member States, national law proceeds on the basis of considerations particular to it and considers restrictive practices only in that context. (42) In the Milk Marque judgment, the Court expressly upheld that principle in regard to agricultural law including the common organisations of the market. (43)
- The fact that a case has cross-border effect or a 'Community dimension' does not preclude the application of national competition law. (44) The fact that agreements, decisions or concerted practices, within the meaning of the clause regarding the cross-border effects on trade in Article 81(1) EC, are liable to affect trade between Member States, does not entail the exclusive application of EC competition law and preclude the application of national competition law in any way; on the contrary, both systems of competition law will apply in parallel, as stated above.
- Nor is the application of national competition law precluded if the facts of the case bring it within the scope of Article 2 of Regulation No 26. The latter provision merely contains certain special rules governing the application of Community competition law in the agricultural sector: the substantive effect of Article 2(1) of Regulation No 26 is to remove certain agreements, decisions and concerted practices from the prohibition laid down under Article 81(1) EC. Seen from a procedural perspective, Article 2(2), read in conjunction with Article 2(3) of Regulation No 26, confers on the Commission inter alia sole power to determine on request which agreements, decisions and concerted practices are covered by the exception laid down in paragraph 1. (45)
- Conversely, Article 2 of Regulation No 26 makes no provision as regards the relationship between EC competition law and national competition law. In particular, Article 2(2) should not be wrongly construed as representing such provision. The exclusivity it confers does not preclude the application of national competition law, but merely determines the competent authority for the application of the competition law of the Community. Lastly, Article 2(2) of Regulation No 26 resembles, in view of the exclusivity it confers, the general provision concerning competence laid down in Article 9(1) of Regulation No 17, (46) in the version in force until 30 April 2004. (47)
- The fact that the Commission has exclusive competence to apply certain provisions of Community competition law does not preclude national competition law from being applied in parallel to the same case by a national authority. If, as in the present case, there are no proceedings before the Commission under Article 2(2) and (3) of Regulation No 26, national competition law may even be applied in isolation.
- For the sake of completeness only, it should be mentioned that the application of national competition law in the present case would be precluded if Cecasa were a concentration with a Community dimension (Article 1(1), read in conjunction with Article 21(2) and Article 22(1), of the Merger Regulation). (48) Of course, this would presuppose that the establishment of Cecasa as a joint venture satisfied the notion of concentration under Article 3 of the Merger Regulation and that the turnover threshold values laid down in Article 1(2) or (3) thereof were attained; it is for the referring court to verify these matters in the main proceedings.
c) Community law rules governing the application of national law
- While the national competition authorities may thus apply their national competition law to a case such as this, they are not, from a substantive-law point of view, entirely free, since settled case'law requires them to observe certain Community-law obligations that flow from the primacy of Community law. (49)
- In a case which falls within the material scope of both Article 81(1) EC and of national competition law, the national authorities may not act in a manner which conflicts with a Commission decision or which gives rise to such a conflict. (50) Since 1 May 2004, they have also been obliged to apply Article 81(1) EC in parallel with their national competition law; in that connection, national competition law may not give rise to a prohibition of agreements, decisions or concerted practices that are permissible under Community law (see Article 3(1) and (2), in conjunction with Article 45(2), of Regulation No 1/2003).
- Where agricultural products are concerned, national competition authorities must, in addition, refrain from all measures that are likely to deviate from a common organisation of the market, run counter to it or impede its proper functioning; more generally, they must also not undermine the aims of the common agricultural policy. (51)
- In summary:
The national competition authorities may also apply national competition law to an agreement between producers within the meaning of Article 2 of Regulation No 26, even where that agreement could affect the market for olive oil not only at national level but throughout the Community. In so doing the national competition authorities must refrain, however, from doing anything that could lead to their decision conflicting with the rules of Community law in the fields of competition and agriculture.
5. Fifth question
- If the fourth question is answered in the terms I have proposed, the fifth question also needs to be discussed. In posing it, the referring court is essentially seeking to ascertain whether the national competition authorities may, on the basis of national competition law, prohibit a privately agreed and financed scheme for the buying-in and storage of olive oil even if such a scheme draws inspiration from Article 12a of Regulation No 136/66 and is to apply in the event of 'serious disturbance of the market'.
- In other words, the Tribunal Supremo seeks clarification as to whether a scheme such as that proposed by Cecasa, notwithstanding any concerns from the point of view of competition law, must be authorised at least in so far as it is intended to avoid serious disturbance of the market.
- It is true that in applying the rules of competition law the national competition authorities have to observe the value judgments and requirements of Community agricultural law. Where Community competition law is applied (Articles 81 and 82 EC), agricultural policy takes precedence over the competition law chapter of the EC Treaty under Article 32(2) EC, read in conjunction with Article 36(1) EC. (52) If, conversely, national competition law is applied, the principle of the primacy of Community law (53) will result in the considerations underlying the common agricultural policy taking priority.
- Accordingly, if it were to be inferred from the agricultural law of the Community that private storage is always permissible without further conditions, at any rate to avert serious disturbance of the market, such a requirement would also have to be taken into consideration in the context of the application of the competition rules by the competition authorities.
- However, Community agricultural law, as it applies to the facts of the main proceedings, contains no such requirement. Article 12a of Regulation No 136/66 merely provides that the Commission can, under certain conditions that are more specifically detailed therein, implement a private-storage scheme subsidised by the Community. Conversely, no general rule of priority in favour of the private storage of olive oil may be inferred from the common organisation of the market for oils and fats, even in the event of a serious disturbance of the market.
- As already mentioned, (54) none of the foregoing can exclude the fact that a private, non-subsidised storage scheme may exist in isolation from the provisions of Article 12a of Regulation No 136/66. However, such a scheme must be set up and operated in compliance with the rules of competition law; in particular, it does not enjoy immunity as regards the prohibitions under competition law that may be applicable.
- If a national competition authority were to refuse to apply the relevant provisions of competition law to a privately agreed and financed scheme for the storage of olive oil, or to apply them only in diluted form, there would be a risk that the common agricultural policy would be jeopardised. Under Regulation No 26, an essential part of that policy is the application of the rules on competition to the production of agricultural products and trade in them. (55) Not least, that is a specific expression of the aim of the common agricultural policy to ensure that supplies reach consumers at reasonable prices (Article 33(1)(e) EC).
- Admittedly, it is possible that, in the context of the specific application of the rules on competition, even restrictive practices of undertakings may exceptionally be justified. Thus, at Community level, Article 81(3) EC provides that, under certain conditions more particularly described therein, the prohibition laid down in Article 81(1) EC can be declared inapplicable. Similarly, under Spanish law, Article 3 of Law No 16/1989 makes provision for certain 'conditions for authorisation'.
- However, the actual interpretation and application of such cases in which a derogation may be allowed or of the 'conditions for authorisation' of such a derogation from the relevant prohibitions under competition law may not lead to a result which is contrary to the considerations underlying the agricultural law of the Community. (56)
- In this connection, it should be recalled that Regulation No 1638/98 abolished the previously existing intervention scheme in the common organisation of the market in oils and fats because, in the view of the Community legislature, it constituted a production incentive which was liable to destabilise the market. (57)
- Thus, the Community legislature gave concrete form to the aims of the common agricultural policy for the oils and fats sector in such a way that market stabilisation (Article 33(1)(c) EC) and the provision of supplies to consumers at reasonable prices (Article 33(1)(e) EC), in particular, might best be secured at any rate in the current situation without any intervention scheme.
- Were private entities henceforth to be allowed on their own initiative to assume the existence of serious disturbances on the market (58) and on this basis to exercise a material influence on the functioning of the market in this case the output and price of olive oil that could eventually lead to an insidious reintroduction of an intervention scheme albeit with private resources. The result would be that the abolition of the intervention scheme by the Community legislature was circumvented.
- National authorities and courts must not permit such a situation to arise. In accordance with settled case-law, the Member States are required to refrain from taking any measures that might undermine or adversely affect a common organisation of the market. (59) Even if that organisation of the market has not exhaustively regulated the sector concerned, anything likely to impede its orderly functioning is incompatible with it. (60)
- In summary, therefore:
National competition authorities may on the basis of national competition law prohibit a privately agreed and financed scheme for the buying-in and storage of olive oil even if such a scheme draws inspiration from Article 12a of Regulation No 136/66 and is to apply in the order of 'serious disturbance of the market'.
VI Conclusion
- Against the background of the foregoing I propose that the Court should reply as follows to the questions submitted by the Tribunal Supremo:
(1) A public limited company operating in the private sector whose object is the sale of olive oil and which has set itself the objective of influencing market output by means of targeted sales and purchases of olive oil may be regarded as a body for the purposes of Article 12a(1) of Regulation No 136/66/EEC in the version set out in Regulation No 1638/98. That is not precluded by the fact that financial investors are also involved in the company in question alongside oil producers, oil pressers and cooperatives. However, in circumstances such as those of the main proceedings such a company cannot be regarded as a producer group or an association of producer groups for the purposes of Regulation No 952/97.
(2) Community law does not preclude a national legal situation in which bodies, within the meaning of Article 12a of Regulation No 136/66, may also be authorised by the national competition authorities in proceedings applying competition law, provided that it is established that in such a procedure the relevant provisions of agricultural law are applied in an effective manner and that all requisite verifications have been undertaken.
(3) Article 12a of Regulation No 136/66 does not preclude a privately agreed and financed scheme for the acquisition and storage of olive oil. However, such a scheme must be operated in compliance with the general rules governing the market for olive oil, in particular the rules of competition law applicable in a given case.
(4) The national competition authorities may also apply national competition law to an agreement between producers within the meaning of Article 2 of Regulation No 26, even where that agreement could affect the market for olive oil not only at national level but throughout the Community. In so doing, the national competition authorities must, however, refrain from doing anything that could lead to their decision conflicting with the rules of Community law in the fields of competition and agriculture.
(5) National competition authorities may on the basis of national competition law prohibit a privately agreed and financed scheme for the buying-in and storage of olive oil even if such a scheme draws inspiration from Article 12a of Regulation No 136/66 and is to apply in the event of 'serious disturbance of the market'.
1 Original language: German.
2 Case C-137/00 Milk Marque and National Farmers' Union [2003] ECR I-7975.
3 Regulation No 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, Series I 1959'1962, p. 129), in the version as amended by Regulation No 49 of the Council of 1 July 1962 (OJ, English Special Edition, Series I 1959'1962, p. 201).
4 See in that annex heading No 15.07 of the Brussels Nomenclature, which refers to vegetable oils.
5 Council Regulation (EC) No 1184/2006 of 24 July 2006 applying certain rules of competition to the production of, and trade in, agricultural products (OJ 2006 L 214, p. 7).
6 Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (OJ 2007 L 299, p. 1); the temporal application to olive oil of this regulation results from the combined application of the provisions of Articles 200 and Article 204(2)(a).
7 Regulation No 136/66/EEC of the Council of 22 September 1966 on the establishment of a common organisation of the market in oils and fats (OJ, English Special Edition 1965-1966, p. 221).
8 The relevant wording relating to the common organisation of the market in oils and fats is that provided for in Article 1(8) of Council Regulation (EC) No 1638/98 of 20 July 1998 amending Regulation No 136/66/EEC on the establishment of a common organisation of the market in oils and fats (OJ 1998 L 210, p. 32).
9 Council Regulation (EC) No 865/2004 of 29 April 2004 on the common organisation of the market in olive oil and table olives and amending Regulation (EEC) No 827/68 (OJ 2004 L 161, p. 97).
10 See, Article 201(1)(c), read in conjunction with Article 204(2)(a), of Regulation No 1234/2007.
11 OJ 1997 L 142, p. 30.
12 See the second indent of Article 55(1), read in conjunction with Article 56(1), of Council Regulation (EC) No 1257/1999 of 17 May 1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and amending and repealing certain Regulations (OJ 1999 L 160, p. 80).
13 OJ 1998 L 346, p. 14.
14 BOE No 170 of 18 July 1989, p. 22747. Law No 16/1989 has in the meantime been repealed and replaced by new Law No 15/2007 of 3 July 2007 on the protection of competition (Ley de Defensa de la Competencia) (BOE No 159 of 4 July 2007, p. 28848). According to the information provided by the national court, Law No 16/1989 continues to be the legislation applicable to the national proceedings.
15 Case C-217/05 Confederación Española de Empresarios de Estaciones de Servicio [2006] ECR I-11987, paragraph 7.
16 Supuestos de autorización.
17 As is also apparent from the file, the Subdirección General sobre Conductas Restrictivas de la Competencia, a sub-directorate of the Spanish competition authority had already instigated an investigation in this case on 16 June 2000.
18 The Tribunal de Defensa de la Competencia exercised at the material time certain powers of a competition authority.
19 Sala de lo Contencioso-Administrativo.
20 Settled case-law; see, among many, Case C-344/04 IATA and ELFAA [2006] ECR I-403, paragraph 24, Case C-11/07 Eckelkamp and Others [2008] ECR I-0000, paragraphs 27 and 28, and Case C-213/07 Michaniki [2008] ECR I-0000, paragraphs 32 to 34.
21 Recital 44 in the preamble to Regulation No 1257/1999.
22 See, for instance, Recital 7 to and Article 3 of Commission Regulation (EC) No 327/2001 of 16 February 2001 authorising the conclusion of private storage contracts for olive oil and opening an invitation to tender for a limited period for aid relating thereto (OJ 2001 L 48, p. 9).
23 See, for instance, the Commission notice entitled 'Community guidelines for State aid in the agricultural sector' (OJ 2000 C 28, p. 2), in particular section 10; see also Article 3 of Commission Regulation (EC) No 2153/2005 of 23 December 2005 on the aid scheme for the private storage of olive oil (OJ 2005 L 342, p. 39).
24 See, in that regard, point 14 of this Opinion.
25 See the wording of Article 12a(1) of Regulation No 136/66 and, for an explanation of it, Recital 12 of amending Regulation No 1638/98.
26 That is to say, state entities or public-law entities or at any rate, bodies specifically authorised by the State or by public-law entities.
27 This is particularly true of the Spanish ('organismos'), Estonian ('asutused'), Greek ('οργανισμοί'), English ('bodies'), French ('organismes'), Italian ('organismi'), Maltese ('korpi'), Portuguese ('organismos'), Slovakian ('orgány'), Finnish ('elimet' or 'elinten') and Swedish language versions ('organ' or 'organen').
28 In addition to the German language version ('Einrichtungen' or 'Stellen') that is true of the Czech ('hospodá�'ské subjekty' or 'orgány'), Danish ('organisationer' or 'organer'), Latvian ('organizācijas' or 'iestādes'), Lithuanian ('istaigos' or 'institucijos'), Hungarian ('szervezetek[et]' or 'szerve[k]'), Netherlands ('organismen' or 'instanties'), Polish ('instytucje' or 'organy') and Slovenian versions ('teles[a]' or 'organi').
29 See, in this connection, settled case-law, for instance Case C-372/88 Cricket StThomas [1990] ECR I-1345, paragraph 19; Case C-1/02 Borgmann [2004] ECR I-3219, paragraph 25; and Case C-270/06 CEPSA [2008] ECR I-0000, paragraph 50.
30 See Recital 12 in the preamble to amending Regulation No 1638/1998 that inserted Article 12a into Regulation No 136/66.
31 The open market economy must guide the economic policy of the Member States and the Community pursuant to Article 4(1) EC and Article 98 EC; see also, in that regard, Case C-198/01 CIF [2003] ECR I-8055, paragraph 47.
32 Settled case-law; see, among many, Case C-17/03 VEMW and Others [2005] ECR I-4983, paragraph 41, and Case C-76/06P Britannia Alloys & Chemicals v Commission [2007] ECR I-4405, paragraph 21.
33 As regards this objective, see once again Recital 12 in the preamble to amending Regulation No 1638/1998 that inserted Article 12a into Regulation No 136/66.
34 See, in this connection, my reasoning in regard to the second question (points 65 to 70 of this Opinion).
35 The fact that the common rules for production can be decided on and applied only as regards the producers or producer groups belonging to the relevant association results from the very nature of the matter. Additional clarification in that regard is afforded by the introductory words of Article 6(1)( b) of Regulation No 952/97: 'déterminer et appliquer, pour les personnes visées à l'article 5 paragraphe 1' (French language version) or 'decide on and apply, in respect of persons covered by Article 5(1)' (English language version) or 'determinar y aplicar, para las personas mencionadas en el apartado 1 del artículo 5' (Spanish language version); conversely, the German language version is open to misconstruction with its ambiguous formulation 'soweit es sich um unter Artikel 5 Absatz 1 fallende Personen handelt'.
36 Settled case-law; see, for example, Case 13/68 Salgoi l [1968] ECR 453, 463; Case 33/76 Rewe-Zentralfinanz [1976] ECR 1989, paragraph 5; and Case C-268/06 Impact [2008] ECR I-0000, paragraphs 46 to 48.
37 At Community level, for example, the principle of a one-stop agency has been introduced in the sector of merger control, but is limited to the examination of purely competition-law issues; see Article 21 and Recital 8 in the preamble to Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1).
38 Recital 12 of implementing Regulation No 1638/1998 that inserted Article 12a into Regulation No 136/66.
39 Milk Marque (cited in footnote 2, paragraph 61).
40 Points 57 to 63 of this Opinion.
41 Milk Marque (cited in footnote 2, paragraphs 57 and 61).
42 Case 14/68 Walt Wilhelm and Others [1969] ECR 1, paragraphs 3 and 4; Joined Cases 253/78 and 1/79 to 3/79 Giry and Guerlain and Others [1980] ECR 2327, paragraph 15; and Joined Cases C-295/04 to C-298/04 Manfredi and Others [2006] ECR I-6619, paragraph 38.
43 Milk Marque (cited in footnote 2, paragraphs 62 and 67), in the context of the common organisation of the market in milk and milk products.
44 The Milk Marque case, in which the Court recognised that application of national competition law was permissible, also concerned a case with a cross-border dimension; see Milk Marque (cited in footnote 2, paragraphs 110 to 120).
45 Notwithstanding the exclusive competence enjoyed by the Commission to make findings under Article 2 of Regulation No 26, national courts may find it necessary to apply that provision; see Joined Cases C-319/93, C-40/94 and C-224/94 Dijkstra and Others [1995] ECR I-4471, paragraphs 25 to 36.
46 Regulation (EEC) No 17 of the Council First regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition, Series I 1959-1962, p. 81).
47 Article 43(1), read in conjunction with Article 45(2) of Council Regulation No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).
48 Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ 1989 L 395, p. 1; republished after correction, in OJ 1990 L 257, p. 13), amended by Council Regulation (EC) No 1310/97 of 30 June 1997 (OJ L 180, p. 1, with corrigenda in OJ 1998 L 3, p. 16, and OJ 1998 L 40, p. 17). The new EC Merger Regulation (Regulation No 139/2004) is not applicable to the present case (see Article 26(2) thereof).
49 Case 6/64 Costa v ENEL [1964] ECR 585, 594; CIF (cited in footnote 31, paragraph 48); and Joined Cases C-295/94 to C-298/04 Manfredi and Others [2006] ECR I-6619, paragraph 39.
50 Walt Wilhelm (cited in footnote 42, paragraphs 4 to 8); see also Giry and Guerlain (cited in footnote 42, paragraph 16) and Case C-344/98 Masterfoods and HB [2000] ECR I-11369, paragraphs 51 and 52.
51 See, generally, Case C-1/96 Compassion in World Farming [1998] ECR I-1251, paragraph 41; Milk Marque (cited in footnote 2, paragraphs 63, 80 and 94); and Case C-283/03 Kuipers [2005] ECR I-4255, paragraph 37; see also, in this regard, my reasoning relating to the fifth question (points 94 to 107 of this Opinion).
52 Case 139/79 Maizena v Council [1980] ECR 3393, paragraph 23; Case C-280/93 Germany v Council [1994] ECR I-4973, paragraph 61; and Milk Marque (cited in footnote 2, paragraph 81); see also Kuipers (cited in footnote 51, paragraphs 32 and 34).
53 On the primacy of Community law, see the case-law cited in footnote 49 above.
54 See, in that regard, on that my observations on the third question (points 71 to 76 of this Opinion).
55 Recital 1 in the preamble to Regulation No 26.
56 See point 96 above.
57 Recital 11in the preamble to Regulation No 1638/98.
58 At the hearing Cecasa, confirmed that it intends to assess for itself when there is a 'serious disturbance of the market', on the basis of which it would activate its proposed scheme for private storage and would undertake the intervention purchases and sales contemplated by the scheme.
59 Compassion in World Farming (cited in footnote 51, paragraph 41), Milk Marque (cited in footnote 2, paragraphs 63 and 80) and Kuipers (cited in footnote 51, paragraph 37).
60 Compassion in World Farming (cited in footnote 51, paragraph 41) and Kuipers (cited in footnote 51, paragraph 37).
