JUDGMENT OF CASE 50/76

Transcription

1 JUDGMENT OF CASE 50/76 other than those for which the Commission has fixed minimum prices in Regulation No 369/75, which does not create exemptions from the Community system, does not limit its scope and seeks to achieve the same aim, that is, the stabilization of prices in trade with third countries, cannot be regarded as incompatible with Community law. 5. In the absence of any provision in the Community rules providing for specific sanctions to be imposed on individuals for a failure to observe those rules, the.member States are competent to adopt such sanctions as appear to them to be appropriate. In Case 50/76 Reference to the Court under Article 177 of the EEC Treaty by the College van Beroep voor het Bedrijfsleven (Administrative Court for Economic Matters) for a preliminary ruling in the action pending before that court between Amsterdam Bulb BV and PRODUKTSCHAP VOOR SIERGEWASSEN (Ornamental Plant Authority) on the interpretation of Regulation (EEC) No 1767/68 (OJ English Special Edition 1968 (II), p. 530) and Regulation (EEC) No 369/75 (OJ 1975 L 41, p. 1) on the system of minimum prices for exports to third countries of flowering corms, bulbs and tubers, THE COURT composed of: H. Kutscher, President, A. M. Donner and P. Pescatore, Presidents of Chambers, J. Mertens de Wilmars, M. Sørensen, Lord Mackenzie Stuart, A. O'Keeffe, G. Bosco and A. Touffait, Judges, Advocate-General: F. Capotorti Registrar: A. Van Houtte gives the following 138

2 AMSTERDAM BULB v PRODUKTSCHAP VOOR SIERGEWASSEN JUDGMENT Facts The order referring the matter and the written observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC may be summarized as follows: I Facts and procedure 1. The company Amsterdam Bulb BV exports flower bulbs from the Netherlands solely to its parent company which is established in the United States of America. It considers that the minimum prices fixed by the Netherlands Verordening Exportprijzen Bloembollen Oogst 1975 (Flower-bulb (1975 crop) Export Price Order) are so high as to render importation by the parent company unprofitable. Under Article 9 of the Netherlands Order the Chairman of the Produktschap voor Siergewassen is empowered to grant exemption from the minimum export prices. By letter of 5 August 1975 addressed to the said Chairman, Amsterdam Bulb BV applied for exemption from the minimum export prices fixed for America. By letter of 12 August 1975 the Chairman dismissed the application for exemption. Amsterdam Bulb BV appealed against this decision to the College van Beroep voor het Bedrijfsleven. That court considers that the dispute raises questions of Community law. 2. The Community regulations in question Having regard to the fact that exports of flowering bulbs to third countries are of considerable economic importance to the Community and that the continuation and development of such exports may be ensured by stabilizing prices in that trade, Article 7 of Regulation (EEC) No 234/68 of the Council on the establishment of a common organization of the market in live trees and other plants, bulbs, roots and the like, cut flowers and ornamental foliage (OJ English Special Edition 1968 (I), p. 26) provided that: 'For each of the products falling within heading No A of the Common Customs Tariff, one or more minimum prices for exports to third countries may be fixed each year in good time before the marketing season...' The common organization of the market provides for a system of quality standards and minimum prices, compliance with which must be ensured by the Member States. For flowering bulbs, corms and tubers a corresponding system was adopted by Regulation No 315/68 of the Council (OJ English Special Edition 1968 (I), p. 46), which provides in particular for minimum sizes which are applicable both in intra-community trade and in trade with third countries. In trade with third countries, however, the Member States may be authorized to derogate from certain requirements of the quality standards in order to allow exporters to meet the trade requirements of certain third countries (Article 2 (2)). Regulation No 537/70 of the Commission (OJ English Special Edition 1970 (I), p. 157) authorized the Member States to take measures derogating from quality standards in respect of sizing as regards a number of flowering bulbs, corms and tubers. 139

3 JUDGMENT OF CASE 50/76 In implementation of the basic regulation the Commission drew up Regulation (EEC) No 1767/68 on the system of minimum prices for exports to third countries of flowering corms, bulbs and tubers (OJ English Special Edition 1968 (II), p. 530). That regulation provides, in particular, that where no minimum price has been fixed for a particular size of a given product the lowest minimum export price fixed for that product shall apply to the size in question (Article 2 (2)). As regards the 1975/76 marketing year minimum prices for exports, in particular for tulip bulbs, were fixed by Regulation No 369/75 of the Commission (OJ 1975, L 41, p. 1). 3. The provisions of Netherlands law The Netherlands Order, the Verordening Exportprijzen Bloembollen Oogst 1975, restates in guilders the minimum export prices according to size fixed by Regulation No 369/75 of the Commission. Nevertheless, the Netherlands Order also includes a certain number of other provisions which are not contained in the Community regulations. The provisions in question: Impose a minimum export price for flower bulbs of a smaller size than those for which Regulation No 369/75 fixes minimum export prices (Article 2 (2)); Impose a minimum export price in respect of flower bulbs other than those for which Regulation No 369/75 fixes minimum export prices (Article 2 (5)); Grant the Chairman of the Produktschap voor Siergewassen the power in certain cases to allow or to lay down exceptions to the provisions of the Netherlands Order; Provide penal sanctions in respect of infringements of the regulation. (Article 7). 4. The preliminary question The College van Beroep voor het Bedrijfsleven stayed the proceedings and, by order of 15 June 1976, referred the following question to the Court under Article 177: 'Do the provisions of Regulations (EEC) Nos 234/68, 1767/68 and 369/75 or any other provisions or principles of European law forbid the Produktschap voor Siergewassen, as a Netherlands body invested with legislative authority, from adopting rules, such as those contained in the Verordening Exportprijzen Bloembollen Oogst 1975, which rules are in part essentially in conformity with those contained in Regulation (EEC) Nos 1767/68 and 369/75, and in part contain provisions which do not appear in the three abovementioned European regulations and have no legal foundation therein, such as those of Article 9 and of Articles 2 (2) and (5) and 7 of the Netherlands Order?' 5. Procedure The order making the reference was received at the Court on 17 June Written observations were submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC on behalf of Amsterdam Bulb BV, the Produktschap voor Siergewassen and the Commission of the European Communities. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate-General the Court decided to open the oral procedure without holding any preparatory inquiry. II Summary of the written observations Observations of the plaintiff in the main action The plaintiff in the main action maintains that as minimum export prices 140

4 AMSTERDAM BULB v PRODUKTSCHAP VOOR SIERGEWASSEN are governed by various Commission regulations, no further national regulations can, as a matter of principle, be adopted by the Netherlands on that matter (Neumann v Hauptzollamt Hof/Saale ([1967] ECR 441); Costa v ENEL ([1964] ECR 585)). Since the question of minimum export prices for flower bulbs is already dealt with by Community rules, the spirit of the Treaty and the existence of the EEC regulations on the subject render it unnecessary for the Produktschap to adopt separate rules of its own. The Netherlands Order is contrary to European law since, according to that law, the Produktschap voor Siergewassen was not empowered to adopt it Hauptzollamt Bremen-Freihafen v Krohn (Case 74/69 [1970] ECR 451); Hauptzollamt Hamburg-Oberelbe v Bollmann (Case 40/69 [1970] ECR 69). The prohibitions and penal sanctions which appear in the Netherlands Order must be regarded as an extension of the European regulations and were clearly adopted in order to ensure their implementation. From that point of view alone the Produktschap is in direct conflict with the Krohn judgment. Furthermore, the Produktschap has maintained on several occasions that it in fact intended to add to the provisions of the European regulations and has even stated that the purpose of Article 2 (5) of the Netherlands Order was to restrict freedom of trade with third countries even more than it is restricted directly by the EEC rules. Article 9 of the Order adopted by the Produktschap means that a national authority, namely the Chairman, is empowered by a national regulation to decide whether Community law shall or shall not be applied and, if so, to what extent and in what cases, even though the Community regulations do not provide for such a power. Even if the power to grant exemptions has never been used, which the plaintiff in the main action does not know, that does not render the provision in question any less incompatible with Community law: the problem is not to know whether a certain existing power is exercised but whether it may be exercised. Assuming that the Order adopted by the Produktschap were therefore to be declared not to be binding on the sole ground that detailed Community regulations already exist in the area which it covers, it is a fortiori contrary to Community law since its intention is to extend and amend the European rules. When Community regulations exist, a Member State is only empowered to adopt decisions to implement them and those decisions must further be necessary in order for that implementation to take place. The system of minimum export prices for flower bulbs at present in force within the Community greatly encourages legal inequality. So that no conflict with Community law may arise as a result of the persons subject to it being treated unequally, it -is at least necessary for the provision in question to be given uniform application (Case 63/69, La Compagnie Française Commerciale et Financière SA v Commission of the European Communities [1970] ECR 205; Case 65/69, La Compagnie d'approvisionnement, de Transport et de Credit SA v Commission of the European Communities [1970] ECR 229). In practice, regulations concerning minimum export prices appear to be applied only in the Netherlands. Community regulations are as much directly applicable in the other Member States as in the Netherlands but in the former they are any. paid scant attention, if If the produktschap's reliance on Article 5 of the Treaty were justified, each 141

5 JUDGMENT OF CASE 50/76 Member State might thus circumvent the principle of Community law that the Member States may not adopt measures whose purpose is to modify the scope of a regulation or to add to its provisions. If the Produktschap wishes to attain the objectives of the Treaty in the area of minimum export prices, it must have recourse to the competent Community authority, which is, in this instance, the European Commission. By adopting the rules in question the Produktschap did not contribute to the uniform application of Community law. In fact, the adoption of the rules in dispute and of the coercive measures to ensure their observation constitutes one of the reasons why Netherlands exporters are in an unfavourable and detrimental competitive situation in relation to exporters from other Member States. Most of the other Member States merely published the regulations in question. Furthermore, they do not respect the rule set out in Article 3 of Regulation (EEC) No 1767/68 which provides that each Member State shall designate agencies which shall supervise the application of the system and that the name and address of such agencies shall be notified to the other Member States and the Commission not later than one month after the entry into force of that regulation. It is quite incorrect to claim that the Community regulation takes no account of a link such as that between the plaintiff and its American parent company and, in such special circumstances, provides for no possibility of exemption. Furthermore, the minimum export prices which are fixed for Amsterdam Bulb BV involve the risk that that company will come into conflict with American anti-trust legislation. The plaintiff in the main action doubts that the Produktschap is empowered to impose legal sanctions for failure to observe the terms of a regulation which brings Netherlands exporters into conflict with the laws of third countries. Amsterdam Bulb BV considers that the reply to the preliminary question must be in the affirmative. The Produktschap voor Siergewassen, the defendant in the main action, observes that although the terms of Article 2 (2) of the Netherlands Order are not the same as those of Article 2 (2) of Regulation (EEC) No 1767/68, there is no difference of substance between them. The Netherlands text is clearer and is intended to avoid any misunderstanding. Article 2 (5), which concerns consignments of varieties not referred to in the EEC regulation, is only intended to avoid any circumvention of that regulation. The fact that the insertion of Article 2 (5) into the Netherlands Order restricts freedom of trade with third countries more, even if only to a very limited extent, than it is limited directly by the EEC rules is not contrary to Community law since the article in question was expressly adopted in order to reinforce those rules. In fact, the Produktschap fulfilled the obligation set out in Article 5 of the Treaty or, at least, acted within the spirit of that article. Article 7 of the Order of the Produktschap provides for a penal sanction although such a sanction is clearly not provided for by the EEC regulation. However, the insertion into Netherlands rules of a clause providing for sanctions is a well established practice and moreover constitutes the most effective method of ensuring that EEC rules are respected. The Produktschap merely fulfilled the obligation set out in Article 5 of the Treaty. Article 9, the provision which allows for exemptions to be made, has never been 142

6 AMSTERDAM BULB v PRODUKTSCHAP VOOR SIERGEWASSEN used. The Produktschap considers, however, that its Chairman must be empowered to take action in special cases, in particular where a member of the trade has such an overriding interest in obtaining an exemption that the Chairman cannot reasonably refuse to grant it or where the refusal of an exemption would affect or even contradict the purpose of the rules in question. However, the Produktschap was aware that it could make no use of that provision so long as the EEC rules had not been amended. For that reason, no exemption has ever been granted. On the other hand, it is possible that the Chairman of the Produktschap voor Siergewassen may make use of the exempting provision if the EEC authorities revoke the Community rules or add to them a similar exempting provision. The Produktschap considers that a negative reply must be given to the preliminary question referred. Observations of the Commission The Commission considers that the question referred by the College van Beroep may be divided into three sub-questions: What are the terms of the Community rules concerning minimum export prices (a) for flower bulbs which are smaller in size than those referred to by Regulation No 369/75; (b) for flower bulbs other than those referred to by that regulation? If the rules in question contain no provisions on that subject, do other principles or provisions of Community law prevent minimum export prices being applied to cases which are not expressly regulated by Community law? Do any principles or provisions of Community law prevent the application of a national provision which provides either for the possibility of granting exemption from the obligation to apply the minimum export price or for the possibility of laying down exceptions to the provisions applicable in a particular case? Do any principles or provisions of Community law prevent the application of a national provision which imposes penal sanctions in respect of failure to apply the minimum export prices fixed by or by virtue of Community measures? The scope of the Community rules In relation to sizes which are smaller than those for which Regulation No 369/75 of the Commission fixed minimum export prices The Commission maintains that a minimum export price is also applicable to sizes other than those for which a minimum export price was expressly fixed by Regulation No 369/75 and that it is equal to the lowest minimum export price fixed by Regulation No 369/75 for the product in question. This does not apply to products which are smaller than the minimum size laid down by the rules governing quality standards, since such products cannot be exported. 1. As regards the export of flower bulbs other than those for which the regulation fixed minimum prices The Commission observes in passing that Regulation No 369/75 fixes a minimum price for the export of the bulbs of every variety of tulip. The Commission considers that the present action concerns tulip bulbs alone. It therefore asks whether the question is relevant. A product or variety which is not expressly referred to by a regulation fixing minimum prices cannot be treated as a similar product or variety for the purposes of the application of minimum export prices. 143

7 JUDGMENT OF CASE 50/76 No provision adopted for the common organization of the market expressly or impliedly authorizes a Member State to impose minimum export prices which form an exception to or supplement minimum export prices fixed by the Community rules. Under Community law it is impossible for a Member State to fix autonomously minimum export prices which derogate from or supplement those fixed by the Community rules. If the Community has not fixed a minimum export price for a certain product or an certain variety it must be regarded as having decided, by virtue of the powers which are conferred upon it, that the proper functioning of the common organization of the market did not require the adoption of such a measure and, consequently, as having opted for a policy based upon freedom of trade. Therefore, by adopting a measure such as the imposition of minimum export prices, a Member State is not only taking action in an area with regard to which the Member States have already transferred legislative power to the Community but is also modifying the scope of a Community measure, which is prohibited under Community law (Case 40/69, Hauptzollamt Hamburg-Oberelbe v Bollmann [1970] ECR 69; Case 39/72, Commission v Italian Republic [1973] ECR 101; Case 131/73, Grosoli [1973] ECR 1555). 2. Exemptions and derogations provided for by national rules There seems to be no reason to regard the derogations as other than minimum export prices fixed by a Member State as a supplement to or a derogation from Regulation No 369/75. They are prohibited by Community law. As regards the exemptions, the application of the national provision in question to specific cases would not only modify the scope of the regulation but would set it aside unilaterally. Member States' may not, in the absence of a provision of Community law to the contrary, have recourse to national measures capable of modifiying the application of a regulation (Case 18/72, NV Granaria Graaninkoopmaatschappij v Produktschap voor Veevoeder [1972] ECR 1163). The Commission considers that in this instance the same solution must be adopted as in the Granaria case. 3. Penal sanctions It is clear that, as regards Community law, the validity of a national provision imposing penal sanctions depends on that of the provisions whose observance it is intended to ensure. A provision which imposes penal sanctions is compatible with Community law to the extent to which the rule of substance in relation to which it was adopted is itself compatible with that law. As regards rules of substance which are compatible with Community law, it is certain that the Member States are not only empowered but also, under Article 5 of the EEC Treaty, obliged to take all appropriate measures, whether general or particular, to ensure the proper implementation of Community rules. 4. Suggested reply The Commission considers that the following reply should be given to the question referred: Member States may not, in the absence of a provision of Community law to the contrary, have recourse to national measures capable of affecting the application of Regulation No 234/68 and the measures adopted in implementation thereof. That principle applies to the fixing of minimum export prices in respect of products governed by Regulation No 234/68 either as a supplement to or as a derogation from minimum export prices fixed by the Community, as well as to any other derogation and, in particular, to the 144

8 AMSTERDAM BULB v PRODUKTSCHAP VOOR SIERGEWASSEN grant of an exemption from the application of the minimum export prices fixed by the Community. There is no principle or rule of Community law to" prevent the adoption of a national provision which imposes penal sanctions in the case of infringement of the provisions of Regulation No 234/68 or of provisions adopted by virtue of that regulation. At the public hearing on 23 November 1976 Mr Koning, for the plaintiff in the main action, argued that Regulation (EEC) No 1767/68 is based upon the concept of a transaction between an individual exporter and an individual purchaser. However, the plaintiff company is a wholly-owned subsidiary of an American undertaking. The products are delivered in bulk and all the other operations are carried out by the parent company in the United States or on its behalf. The Community regulation obliges the plaintiff company to calculate prices which are more than double those which are commercially justified. Mr Koning considers that the Community regulation must be interpreted as meaning that an exception may be made in respect to the minimum prices for an undertaking in the position of the plaintiff company. On behalf of the Produktschap, Mr Heidinga admitted that the authority would like to make use of the clause enabling its Chairman to grant an exemption from the minimum prices in cases in which their application would cause particular hardship, but considers that the Community regulations does not permit such action. As long as the Community regulation itself does not provide for any possibility of exemption the Chairman will not make use of the provision in the national rules. The case-law of the Court shows that Community regulations must be given a strict interpretation. However, if the Court were to accept the possibility of an exemption in specific cases for reasons of natural justice, that would, in the opinion of the Produktschap, be a favourable development for Community law. On behalf of the Commission, Mr Bourgeois stated that the arguments put forward by the plaintiff in the main action regarding the lack of any possibility of exemption are a challenge not to the national Order but rather to the Community regulation. The Commission considers that there is no reason to reconsider the case-law of the Court on the possibility of granting exemptions. The Advocate-General delivered his opinion at the hearing on December Law 1 By order of 15 June 1976, received at the Court on 17 June, the College van Beroep voor het Bedrijfsleven requested the Court to give a preliminary ruling on the interpretation of Regulations (EEC) Nos 234/68 of the Council of 27 February 1968 (OJ English Special Edition 1968 (I), p. 26), 1767/68 of the Commission of 6 November 1968 (OJ English Special Edition 1968 (II), p. 530) and 369/75 of the Commission of 10 February 1975 (OJ L 41, 1975 p. 1) to the extent to which they concern the system of minimum prices for exports of flower bulbs. 145

9 JUDGMENT OF CASE 50/76 2 The Court is asked to rule whether the provisions of those regulations 'or any other provisions or principles of European law' forbid the adoption by a competent national organization of rules fixing export prices for flower bulbs which, whilst in part in conformity with the Community regulations, contain provisions which do not appear in those regulations and have no legal foundation therein. 3 In addition to the provisions which are identical to those contained in the Community regulations the national rules contain provisions which: impose a minimum export price for flower bulbs of a smaller size than those for which Regulation No 369/75 fixes minimum export prices; impose a minimum export price in respect of flower bulbs other than those for which Regulation No 369/75 fixes minimum export prices; grant exemptions, in certain cases, to the provisions of the national rules; provide penal sanctions in respect of infringements of the rules. 4 As the Court has already stated in other contexts, in particular in its judgment of 10 October 1973 (Variola SpA v Amministrazione Italiana delle Finanze [1973] ECR 981), the direct application of a Community regulation means that its entry into force and its application in favour of or against those subject to it are independent of any measure of reception into national law. 5 By virtue of the obligations arising from the Treaty the Member States are under a duty not to obstruct the direct effect inherent in regulations and other rules of Community law. 6 Strict compliance with this obligation is an indispensable condition of simultaneous and uniform application of Community regulations throughout the Community. 7 Therefore, the Member States may neither adopt nor allow national organizations having legislative power to adopt any measure which would conceal the Community nature and effects of any legal provision from the persons to whom it applies. 146

10 AMSTERDAM BULB v PRODUKTSCHAP VOOR SIERGEWASSEN 8 From the moment that the Community adopts regulations under Article 40 of the Treaty establishing a common organization of the market in a specific sector the Member States are under a duty not to take any measure which might create exemptions from them or affect them adversely. 9 The compatibility with the Community regulations of the provisions referred to by the national court must be considered in the light not only of the express provisions of the regulations but also of their aims and objectives. 10 The second recital of the preamble to Regulation No 234/68, the basic regulation in the sector in question, notes that the production of live trees and other plants, bulbs, roots and the like, cut flowers and ornamental foliage is of particular importance to the agricultural economy of certain regions of the Community and states the need to promote the rational marketing of such production and to ensure stable market conditions. 11 The fifth recital of the preamble to that regulation states that exports of flowering bulbs to third countries are of considerable economic importance to the Community, that the continuation and development of such exports may be ensured by stabilizing prices in this trade and that provision should therefore be made for minimum export prices for the products in question. 12 Article 3 of that regulation provides that the Council may adopt rules governing standards of quality, sizing and packaging of the products covered by the common organization of the market and the scope of such standards. 13 According to the same article, when standards have been adopted, the products to which they apply may not be displayed for sale, offered for sale, sold, delivered or otherwise marketed except in accordance with the said standards. 14 Under Article 7 of the said regulation, minimum prices for exports to third countries of those products may be fixed by the Commission. 15 Regulation (EEC) No 315/68 of the Council of 12 March 1968 fixing quality standards for flowering bulbs, corms and tubers (OJ English Special Edition 1968 (I), p. 46), which was adopted in implementation of the basic regulation, No 234/68, provides in Article 2 that the standards shall apply both to intra-community trade and to trade with third countries. 147

11 JUDGMENT OF CASE 50/76 16 The same article forbids the export to third countries of flowering bulbs, corms and tubers of a size smaller than the minimum size fixed in the annex to that regulation. 17 In implementation of Article 7 (2) of Regulation No 234/68, the Commission adopted Regulation (EEC) No 1767/68 on the system of minimum prices for exports to third countries of flowering corms, bulbs and tubers. 18 The rules for implementation contained in that regulation provide that the minimum Community prices shall be determined, according to Article 1, with particular reference to 'any minimum export prices which may have been applied by Member States during the three years preceding the year in which the minimum prices are fixed'. 19 Article 2 of that regulation prohibits the export to third countries of any product covered by the minimum export price system at a price lower than the minimum price applicable to that product and provides that where no minimum price has been fixed for a particular size of a given product the lowest minimum export price fixed for that product shall apply to the size in question. 20 Article 1 of Regulation (EEC) No 369/75 of the Commission fixing for the relevant marketing year minimum prices for exports to third countries of certain flowering corms, bulbs and tubers, provides that the minimum prices are fixed for each product at the levels indicated in the annex to that regulation. 21 The annex in question shows that minimum export prices are fixed in express terms only for certain of the products listed in the annex to Regulation No 315/68 and for certain sizes larger than the minimum sizes indicated in Regulation No 315/ However, it is clear from Article 2 of Regulation No 1767/68 that a minimum export price is also applicable to sizes other than those for which Regulation No 369/75 expressly fixed such a price. 23 That minimum export price is equal to the lowest minimum price fixed by Regulation No 369/75 for the product in question. 148

12 AMSTERDAM BULB v PRODUKTSCHAP VOOR SIERGEWASSEN 24 Furthermore, it emerges from the Community rules as a whole that products which are smaller than the minimum sizes fixed in the annex to Regulation No 315/68 of the Council cannot be exported. 25 The answer must therefore be that the lowest minimum export price fixed for the product in question by Regulation No 369/75 is applicable to products which are larger than the minimum size but smaller than the sizes expressly listed in the annex to the said regulation. 26 As regards the fixing by the national authority of minimum prices for exports to third countries of products covered by the common organization of the market but of a genus, species or variety other than those for which the Commission has so far fixed minimum prices, it must be stated that no provision of the Community rules expressly prohibits the fixing of such prices. 27 It is not clear from the regulations adopted from time to time fixing minimum prices why the Commission decided to impose minimum prices at Community level for certain varieties only of the products covered by the common organization of the market. 28 In the light of all the Community regulations on the subject it is not possible to conclude that the Commission wished to imply that other products must be exported at prices decided freely by market forces. 29 On the contrary, it may be inferred from the rules drawn up by the Commission for implementing the system of minimum prices that the Member States may continue to impose minimum export prices until such time as the Commission has decided to impose such prices itself at Community level. 30 The reply to be given to the national court must therefore be that a national provision which fixes minimum prices for exports to third countries of certain varieties of bulbs other than those for which the Commission has fixed minimum prices in Regulation No 369/75, which does not create exemptions from the Community system, does not limit its scope and seeks to achieve the same aim, that is, the stabilization of prices in trade which third countries, cannot be regarded as incompatible with Community law. 149

13 JUDGMENT OF CASE 50/76 31 As regards a national provision which lays down sanctions in respect of an infringement of the Community rules, it must be stated that whilst those rules prohibit exports to third countries of those of the products in question which do not conform to the Community quality standards, they do not provide for sanctions in respect of infringements of those prohibitions by individuals. 32 Although Article 5 of the EEC Treaty places Member States under a duty to take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations resulting from action taken by the institutions of the Community, it allows the various Member States to choose the measures which they consider appropriate, including sanctions which may even be criminal in nature. 33 The answer to be given to the national court must therefore be that in the absence of any provision in the Community rules providing for specific sanctions to be imposed on individuals for a failure to observe those rules, the Member States are competent to adopt such sanctions as appear to them to be appropriate. 34 As regards the question of the authorization by a national authority of an exemption from the minimum prices fixed by the Community, it must be stated that neither Regulation No 234/68 nor its implementing regulations provide for any such possibility. 35 The Member States may not, therefore, either directly or through the intermediary of organizations set up or recognized by them, authorize or tolerate any exemption from Community law. Costs 36 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. 37 As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision as to costs is a matter for that court. 150

14 AMSTERDAM BULB v PRODUKTSCHAP VOOR SIERGEWASSEN On those grounds, THE COURT hereby rules: 1. The Member States may neither adopt nor allow national organizations having legislative power to adopt any measure which would conceal the Community nature and effects of any legal provision from the persons to whom it applies. 2. The lowest minimum export price fixed for the product in question by Regulation No 369/75 is also applicable to products which are larger than the minimum size but smaller than the sizes expressly listed in the annex to that regulation. 3. A national provision which fixes minimum prices for exports to third countries of certain varieties of bulbs other than those for which the Commission has fixed minimum prices in Regulation No 369/75, which does not create exemptions from the Community system, does not limit its scope and seeks to achieve the same aim, that is, the stabilization of prices in trade with third countries, cannot be regarded as incompatible with Community law. 4. In the absence of any provision in the Community rules providing for specific sanctions to be imposed on individuals for a failure to observe those rules, the Member States are competent to adopt such sanctions as appear to them to be appropriate. 5. The Member States may not, either directly or through the intermediary of organizations set up or recognized by them authorize any exemption from the minimum prices fixed by the Community. Kutscher Donner Pescatore Mertens de Wilmars Sørensen Mackenzie Stuart O'Keeffe Bosco Touffait Delivered in open court in Luxembourg on 2 February A. Van Houtte H. Kutscher Registrar President 151