law://eu/cjeu/1983/c-47-83/hd_1_1_2@2026-11-14The Board, in a general survey of the relevant Netherlands rules, states that the 1966 regulation (Verordening Kwaliteitseisen) was applicable to undertakings which traded in poultry or carried on the business of a commission agent oían intermediary in the poultry sector or which engaged in the industrial processing of, in particular, poultry. That regulation has since been replaced by the Verordening Kwaliteitseisen en Etikettering, which has broadly the same structure and which, for the products concerned, implements Council Directive 79/112/EEC of 18 December 1978 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer (Official Journal L 33, 8.2.1979, p. 1).The Board explains that the retail trade is governed by the Verordening Kwaliteitseisen Pluimvee en geslacht Gevogelte [Regulation on quality standards for poultry and slaughtered birds] and also by certain provisions relating to preservation laid down by the Produktschap voor Pluimvee en Eieren [Poultry and Eggs Production Board] on 27 May 1959.The Produktschap voor Pluimvee en Eieren laid down quality standards for inter alia slaughtered poultry in the Verordening Kwaliteitseisen en Aanduidingsvoorschriften geslacht Pluimvee, Wild en geslachte Konijnen [Regulation on quality standards and marking provisions for slaughtered poultry, game and rabbits] of 25 August 1982; that regulation also implemented the EEC directive on labelling. For the retail trade it forms the counterpart of the new regulation of the Board to which it refers.The Board points out that account must also be taken of the veterinary provisions implementing Council Directive 71/118/EEC of 15 February 1971 on health problems affecting the trade in fresh poultrymeat (Official Journal, English Special Edition 1971 (I), p. 106), laid down by the Netherlands Ministry of Agriculture and Fisheries and some of the general provisions of the Algemeen Besluit (Warenwet) [General Decree (Law on Goods)] of 11 July 1949 on hygiene standards.Turning specifically to the question referred to the Court for a preliminary ruling, and with regard to the objectives of Regulation No 2777/75, the Board quotes the third recital in the preamble to the regulation: “in the poultrymeat sector, in order to stabilize markets and to ensure a fair standard of living for the agricultural community concerned, provision should be made for measures to facilitate the adjustment of supply to market requirements.”The organization of the market therefore introduced a single trading system at the external frontiers of the Community, including a system of levies and refunds.The Board further states that in intra-Community trade, State aids, customs duties or charges having equivalent effect, quantitative restrictions or measures having equivalent effect and any intervention system, whatever form it took, are forbidden. Article 2 of the regulation also provides for the establishment of common marketing rules.Therefore the Community indisputably has the power to adopt measures in this field; however the regulation does not prescribe the period within which it is to be implemented.Regarding the question of the powers of the Member States, the Board points out that the disputes in the main action show the present proceedings concern the maintenance of existing national rules rather than the adoption of new provisions. The Verordening Kwaliteitseisen was adopted in 1966 and therefore antedates any organization of the market at Community level. The measures provided for by Article 2 of Regulation No 2777/75 seek to facilitate the adjustment of supply to market requirements, in order to attain the objectives set out in Article 39 of the Treaty. The Council has so far adopted only one measure implementing Article 2, namely Regulation No 2967/76, various proposals from the Commission having come to nought. The organization of the market in poultrymeat is aimed at promoting sales by means of a policy on quality standards; but, despite the fact that in the express terms of Article 2 (2) of Regulation No 2777/75 it considers common marketing standard to be necessary, the Council has not given practical effect to that policy except for one point.The Board observes that, in the absence of Community rules, the Member States still have the power to adopt themselves or to maintain quality standards for the marketing of poultrymeat. It is not sufficient to hold that the basic power lies with the Community; if the Community has not actually exercised its powers, the Member States still have the power to act.The case-law of the Court shows, in the Board's view, that a common organization of the market does not always confer exclusive legislative power òn the Community, but rather that Member States must refrain from any measure likely to undermine or create exceptions to that common organization.The first consequence of that reasoning is that national rules are contrary to a common organization of a market if they contravene one of the provisions of the common organization which already governs the matter adequately.The second consequence is that there is a conflict with the common organization if the national rules have recourse to an instrument that the Community legislature deliberately chose not to use on the basis of a given economic policy.The mere existence of a common organization of the market in poultrymeat does not prevent Member States from taking measures in an area in which Community rules have not yet been adopted. The absence of Community provisions on quality standards is not the result of deliberate economic choice since the Commission and the Council have stated that it is necessaiy to adopt quality standards.On the point whether the national regulation has a disruptive effect or whether its operation impinges upon the rules of the free movement of goods upon which the common organization of the market is based, in other words whether it includes restrictions which are disproportionate to the desired objectives, the Board observes that the national measures in question have a twofold purpose: to ensure fair trade by creating equal conditions of competition, and to protect the consumer by ensuring that the presentation of goods is clear and by guaranteeing minimum standards of quality and processing. Those measures were adopted also in order to promote sales by means of the quality guarantees offered. The regulation applies to products approved for human consumption pursuant to Directive 71/118 without imposing any supplementary restrictions.As for the content of the disputed national measures, the Board points out that they are provisions relating to the processed state of the slaughtered poultry, to the processing itself, to grading by quality, to weight, to packaging and to transport.Article 8 requires poultry to be graded and marked according to its processed state and thus contributes to the transparency of the market.The seventh paragraph of Article 9, prohibiting the injection of water, is necessary to ensure fair trade and to protect the interests of consumers.Grading into categories, instituted by Article 10, also encourages fair trade and is a guarantee of quality for the consumer; it is in conformity with the objective of the organization of the market set out in Article 2 (1) of Regulation No 2777/75.Weight tolerances, provided for by Article 11, are to take account of international commercial practice.Labelling rules, provided by Article 14 for individual packages, are fixed for the protection of the consumer, in the interest of trade and to facilitate inspection. At the time when the main action arose, there were no comparable provisions for the retail trade. The disputed measures were adopted in the interests of the consumer, since the producers or wholesalers supply products ready for consumption.Measures for the protection of public health in the national rules contain no restrictions going beyond those in Directive 71/118.The Board states that since their objective was the protection of consumers and of fair trade, the disputed national rules should be regarded as reasonable; they arc, moreover, as close as possible to the proposals made by the Commission at the time. The Board concludes that the national rules concerned are lawful in view of the fact that the Council has fulfilled only a very small part of its task under Article 2 of Regulation No 2777/75; those rules do not detract from the proper functioning of the common organization of the market. The Board therefore proposes that the following answer be given to the question submitted by the College van Beroep:For as long as and inasmuch as the Community has not fulfilled all its tasks and duties under Article 2 (1) and (2) of Regulation No 2777/75 on the common organization of the market in poultrymeat, Member States have the power to promulgate national measures on quality requirements, provided that they do not interfere with the proper functioning of the organization of the market.The Commission recalls that the preambles to Regulation No 2777/75 and Regulation No 123/67 both contain identical recitals on the purposes of the common agricultural policy with regard to Article 2 of each regulation, which is couched in substantially the same terms, setting out the need to be able to take measures to facilitate the adjustment of supply to market requirements in the poultry sector.In a judgment of 18 May 1977 (Case 111/76 Officier van Justitie v Beert van den Hazel [1977] ECR 901), relating to Regulation No 123/67, the Court ruled that certain national measures were incompatible with Community rules; the Court stated that Member States are under an obligation to refrain from taking any measure which might undermine or create exceptions to the common organization of the market and made action by trade and joint-trade organizations subject to the express condition that Community measures are concerned. The Court further stated that uncoordinated action by trade or joint-trade organizations in the various Member States is of such a nature as to cause discrimination between producers and consumers and to distort trade between the Member States.The Commission submits that the very existence of Article 2 in Regulation No 2777/75, its wording, the fact that it was taken from Regulation No 123/67, and the first recital of the preamble to Regulation No 2967/76, which refers to the aims of the marketing standards provided for in Article 2 of Regulation No 2777/75 and states that the special measures which it institutes are necessary pending the adoption of more comprehensive Community rules, suggest that the Community legislature intended by that provision to “occupy the ground” in that regard.If those indications are not sufficient, the Commission suggests adopting the reasoning followed by the Court in its judgment of 30 October 1974 (Case 190/73, Officier van Justitie v. J. W.J. Van Haaster[1974] ECR 1123); thus, for the purposes of the present case, in the absence of express provisions as to the compatibility of the national rules in question with the organization of the market set up by Regulation No 2777/75, it is necessary to seek the solution to the question from the national court in the light of the objects and the purposes of the regulation within the, framework of the principles laid down by the Treaty.In that context the Commission draws attention to the following points :In the poultrymeat sector, Regulation No 2777/75 established an organization of the market characterized by a system of quality standards and of rules governing trade;Article 11 of the Regulation seeks to eliminate all obstacles to free trading transactions within the Community;Article 19 states that the provisions of Articles 92 and 93 of the Treaty are applicable, in principle, to trade in the products concerned;Apart from rules relating to the marketing of the products, the organization of the market also includes various provisions applicable to. the production stage, in particular Article 2 (1);Paramount importance is attached to Community quality standards, which must contribute to adjusting supply to the requirements of the markets;To that end, Article 2 envisages a series of Community measures on the introduction of common quality standards and other measures to encourage action within the trade with a view to improving the quality of products and of the organization of production;Even if the quality standards are aimed only at the distribution of the products, they none the less have repercussions restricting the level of production;It follows from the general scheme of the regulation that, for intra-Community trade, the organization of the market is based on the freedom to enter into commercial transactions in conditions of fair competition by virtue of improvement in the quality of the products;Such a system excludes any national rules capable of hindering intra-Community trade, whether directly or indirectly, actually or potentially;It follows from the case-law of the Court (in particular from the judgment of 29 November 1978 in Case 83/78 (Pigs Marketing Board v Redmond [197'8] ECR 2347) that the common organization of the market in poultrymeat is also based on the concept of an open market, to which every producer has free access and the functioning of which is regulated solely by the instruments provided for by that organization;The case-law of the Court (sec the Van den Hazel case cited above) recognized that the absence of all measures of intervention from the regulation on the common organization of the market in poultrymeat is justified by the consideration that such measures would not be desirable on the market in eggs and poultrymeat since the volume of production is to be adjusted to demand not by means of the intervention mechanisms but by market forces; the Court recognized that the absence of such measures does not stem from an omission or from an intention to leave measures of this nature to the appraisal of the Member States but is rather the consequence of a considered choice of economic policy of relying essentially on market forces to attain the desired balance;It also follows from that case-law that national provisions which establish quality standards and which are not based on Community law are excluded by the regulation: such measures might derogate from or adversely affect the organization of the market and might endanger the fulfilment of its aims and proper functioning; any interference by a Member State with the market mechanism creates the risk of preventing the common organization of the market from working properly.Thus, the Commission submits, the existence of national rules on quality standards not based on Community law might prejudice the achievement of the objective of establishing quality standards at Community level. Moreover it leads to discrimination between producers and consumers, which is prohibited by Article 40 (3) of the Treaty, and distortions in trade between Member States, since the undertakings in the various Member States are not able to manufacture and market their products on the footing of equal conditions of competition.That inequality of conditions of competition, acting on the level of prices between the various Member States, could impede the proper functioning of the system of price protection laid down by Regulation No 2777/75. Like the measures mentioned in Article 2 (1) of Regulation No 123/67, the measures provided for in Article 2 (2) of Regulation No 2777/75 can only be taken on the express condition that they are Community measures.The Commission therefore suggests that the following answer be given to the questions referred to the Court:Taking account of the principles set out in the EEC Treaty, Regulation No 2777/75, and in particular Article 2 thereof, must be interpreted as meaning that national measures laying down quality standards for poultrymeat which are not based on Community law are incompatible with the aforementioned provisions.
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