1BY A JUDGMENT OF 19 SEPTEMBER 1977 ENCLOSED WITH
A COVERING LETTER OF 10 MARCH 1978 AND RECEIVED AT THE COURT ON 16 MARCH
THE RESIDENT MAGISTRATE , ARMAGH , REFERRED TO THE COURT IN PURSUANCE OF
ARTICLE 177 OF THE TREATY A NUMBER OF QUESTIONS CONCERNING THE
INTERPRETATION OF REGULATION NO 2759/75 OF THE COUNCIL OF 29 OCTOBER 1975
ON THE COMMON ORGANIZATION OF THE MARKET IN PIGMEAT ( OFFICIAL JOURNAL NO
L 282 , P . 1 ) AND A NUMBER OF PROVISIONS OF THE TREATY RELATING TO THE
ABOLITION OF QUANTITATIVE RESTRICTIONS ( ARTICLE 30 ET SEQ .) TO THE
COMMON AGRICULTURAL POLICY ( IN PARTICULAR ARTICLE 40 ), TO THE PROVISIONS
RELATING TO STATE MONOPOLIES AND UNDERTAKINGS HAVING SPECIAL OR EXCLUSIVE
RIGHTS ( ARTICLES 37 AND 90 ) AS WELL AS TO THE RULES OF COMPETITION (
ARTICLES 85 AND 86 ) AND TO REGULATION NO 26 OF THE COUNCIL OF 4 APRIL
1962 APPLYING CERTAIN RULES OF COMPETITION TO PRODUCTION OF AND TRADE IN
AGRICULTURAL PRODUCTS ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION
1959-1962 , P . 129 ).
2THESE QUESTIONS WERE RAISED IN THE CONTEXT
OF THE PROSECUTION OF A PIG PRODUCER FOR OFFENCES AGAINST LOCAL
LEGISLATION IN FORCE IN NORTHERN IRELAND RELATING TO THE MARKETING OF
PIGMEAT , SETTING UP THE PIGS MARKETING SCHEME , ADMINISTERED BY THE PIGS
MARKETING BOARD ( HEREINAFTER REFERRED TO AS ' ' THE BOARD ' ' ) CREATED
BY THE SAME LEGISLATION , WHICH IS COMPOSED PARTLY OF PRODUCERS AND PARTLY
OF REPRESENTATIVES OF THE DEPARTMENT OF AGRICULTURE AND SUPERVISED BY THE
DEPARTMENT .
3IT APPEARS FROM THE INFORMATION CONTAINED IN THE
JUDGMENT REFERRING THE MATTER TO THE COURT OF JUSTICE THAT THIS SCHEME
APPLIES TO FAT PIGS , KNOWN AS ' ' BACON PIGS ' ' , DEFINED BY THE
RELEVANT LEGISLATION AS BEING PIGS WEIGHING OVER 77 KG LIVE WEIGHT
.
4SUCH PIGS MAY BE SOLD BY PRODUCERS ONLY TO OR THROUGH THE AGENCY
OF THE BOARD .
5THE BOARD HAS THE SOLE RIGHT TO MARKET BACON PIGS
AND THE POWER TO DETERMINE PRICES PAYABLE TO PRODUCERS AND ALL OTHER
CONDITIONS OF SALE .
6FOR THIS PURPOSE THE RELEVANT LEGISLATION
FORBIDS THE SALE OF SUCH PIGS - SUBJECT TO CERTAIN EXCEPTIONS - BY PERSONS
OTHER THAN PRODUCERS REGISTERED WITH THE BOARD AND PROHIBITS ALL SALES BY
SUCH PRODUCERS OTHERWISE THAN TO OR THROUGH THE AGENCY OF THE BOARD
.
7THESE PROVISIONS WERE SUPPLEMENTED BY THE MOVEMENT OF PIGS
REGULATIONS 1972 , WHICH FORBID THE TRANSPORTATION OF BACON PIGS UNLESS TO
A PURCHASING CENTRE OF THE BOARD AND COVERED BY A TRANSPORT AUTHORIZATION
ISSUED BY THE BOARD .
8OFFENCES AGAINST THE PROVISIONS REFERRED TO
ABOVE ARE PUNISHABLE BY A FINE AND/OR IMPRISONMENT AND/OR THE FORFEITURE
OF THE PIGS IN QUESTION .
9IT APPEARS FROM THE JUDGMENT REFERRING
THE MATTER TO THE COURT THAT THE DEFENDANT IN THE MAIN PROCEEDINGS , WHO
ON 12 JANUARY 1977 TRANSPORTED 75 BACON PIGS WITHOUT BEING COVERED BY AN
AUTHORIZATION FROM THE BOARD , IS BEING PROSECUTED FOLLOWING A COMPLAINT
BY THE BOARD TO THE RESIDENT MAGISTRATE , ARMAGH , FOR A BREACH OF
REGULATION 4 ( 1 ) OF THE MOVEMENT OF PIGS REGULATIONS ( NORTHERN IRELAND
) 1972 AND OF SECTION 17 ( 4 A ) OF THE AGRICULTURAL MARKETING ACT (
NORTHERN IRELAND ) 1964 , AS SUBSEQUENTLY AMENDED .
10AT THE SAME
TIME THE BOARD CLAIMED THE FORFEITURE OF THE GOODS BUT SUBSEQUENTLY
WITHDREW THE CLAIM AS THE DEFENDANT HAD FOR HIS PART AGREED TO PLEAD
GUILTY .
11THE DEFENDANT ARGUED IN HIS DEFENCE BEFORE THE RESIDENT
MAGISTRATE THAT THE PROVISIONS OF THE PIGS MARKETING SCHEME AND THE
MOVEMENT OF PIGS REGULATIONS UNDER WHICH HE WAS CHARGED WERE INCOMPATIBLE
WITH THE PROVISIONS OF COMMUNITY LAW , IN PARTICULAR WITH THE REGULATIONS
ON THE COMMON ORGANIZATION OF THE MARKET IN PIGMEAT AND THE PROVISIONS OF
THE TREATY WITH REGARD TO COMPETITION .
12THE BOARD CLAIMED THAT
THE PIGS MARKETING SCHEME WAS COMPATIBLE WITH THE COMMON MARKET AND
REFERRED TO ARTICLE 37 OF THE EEC TREATY DEALING WITH STATE MONOPOLIES OF
A COMMERCIAL CHARACTER AND TO ARTICLE 44 OF THE ACT OF ACCESSION WHICH
PRESCRIBES A PERIOD EXPIRING ON 31 DECEMBER 1977 FOR THE ADJUSTMENT OF
SUCH MONOPOLIES TO THE REQUIREMENTS OF THE COMMON MARKET .
13IN
VIEW OF THIS CONFLICT OF ARGUMENTS THE RESIDENT MAGISTRATE TOOK THE VIEW
THAT AS THE COMPLAINT WAS BROUGHT BEFORE HIM ON THE BASIS OF CRIMINAL
LEGISLATION THE APPLICATION OF WHICH MIGHT INVOLVE FOR THE DEFENDANT A
FINE OR IMPRISONMENT OR BOTH IT WAS IMPORTANT TO KNOW WHETHER OR NOT SUCH
A CONVICTION WOULD BE COMPATIBLE WITH COMMUNITY LAW .
14WITH A VIEW
TO CLARIFYING THIS QUESTION THE RESIDENT MAGISTRATE , IN A JUDGMENT OF 19
SEPTEMBER 1977 , DECIDED TO REFER THE MATTER TO THE COURT OF JUSTICE IN
PURSUANCE OF ARTICLE 177 OF THE EEC TREATY FOR A RULING AS TO WHETHER THE
CONVICTION OF THE DEFENDANT IN ACCORDANCE WITH THE LEGISLATION APPLICABLE
IN NORTHERN IRELAND WOULD BE COMPATIBLE WITH COMMUNITY LAW .
15IN
THE BODY OF THE JUDGMENT THE RESIDENT MAGISTRATE SET OUT THE FOLLOWING
QUESTIONS :
' ' IS THE PIGS MARKETING BOARD ( NORTHERN IRELAND ) ' AN
UNDERTAKING ' ? IT IS A ' NATIONAL MARKET ORGANIZATION ' ? IS IT A ' STATE
MONOPOLY OF A COMMERCIAL CHARACTER ' ? IS IT ALL THREE OR IS IT A
COMBINATION OF ANY TWO?
( 1 ) IF IT IS AN ' UNDERTAKING ' IS IT AN
UNDERTAKING WITHIN THE MEANING AND INTENTION OF ARTICLES 85 AND 86? IF IT
IS , THEN IN VIEW OF THE PROVISIONS OF ITS SCHEME THE BOARD ' S ACTIVITIES
CLEARLY VIOLATE THESE ARTICLES - PARTICULARLY ARTICLE 85 ( 1 ) ( A ), ( B
) AND ( C ).
( 2)IF IT IS A ' NATIONAL MARKET ORGANIZATION ' , DOES
IT FALL WITHIN ARTICLE 2 OF REGULATION NO 26 SO AS TO BE IN A POSITION TO
ATTRACT THE EXEMPTIONS PROVIDED FOR THERE? IN MY OPINION THIS PARTICULAR
REGULATION ONLY APPLIES TO NATIONAL MARKET ORGANIZATIONS WHICH ARE
ESTABLISHED BY AGREEMENT AND ABOUT WHICH THERE IS NOTHING COMPULSORY . THE
BOARD ADMINISTERS ITS SCHEME BY COMPULSION AND RESTRICTIONS E.G . ' A
PRODUCER WHO IS NEITHER A REGISTERED PRODUCER NOR A PERSON EXEMPT FROM
REGISTRATION SHALL NOT SELL ANY PIGS . ' BUT EVEN IF THE BOARD FALLS
WITHIN THE MEANING AND INTENTION OF ARTICLE 2 OF REGULATION NO 26 , NO
EVIDENCE HAS BEEN PRODUCED , NOR HAS RESEARCH ON MY PART BEEN ABLE TO
THROW UP ANY DECISION OF THE COMMON MARKET COMMISSION RELATING TO THE
EXEMPTION OF THE BOARD FROM THE OPERATION OF ARTICLE 85 OF THE TREATY OF
ROME .
( 3)IF IT IS A ' STATE MONOPOLY OF A COMMERCIAL CHARACTER '
DOES IT FALL WITHIN THE MEANING OF ARTICLE 37 ( 1 ) OF THE TREATY OF ROME
SO AS TO GAIN THE PROTECTION OF ARTICLE 44 OF THE TREATY OF ACCESSION
WHICH PROVIDES FOR A TRANSITION PERIOD UP TO 31 DECEMBER 1977?
(
4)IF IT IS A ' STATE MONOPOLY OF A COMMERCIAL CHARACTER ' WITHIN ARTICLE
37 OF THE TREATY OF ROME AND THE PERIOD OF GRACE FOR ADJUSTMENT DOES NOT
EXPIRE UNTIL 31 DECEMBER 1977 , DOES THIS SAVE IT FROM THE IMMEDIATE
EFFECT OF ARTICLES 85 AND 86 UNTIL THAT DATE? OR CAN IT BE ARGUED THAT '
UNDERTAKINGS ' WITHIN THE MEANING OF ARTICLES 85 AND 86 CAN BE CONSTRUED
TO INCLUDE STATE MONOPOLIES? COUNSEL FOR THE BOARD ARGUED THAT THE TERM '
UNDERTAKINGS ' IS NOT DEFINED BUT IS USED AS DISTINCT FROM ' STATE
MONOPOLIES ' .
( 5)DO THE BOARD ' S ACTIVITIES FALL WITHIN THE
PROVISIONS OF ARTICLE 85 ( 3 ) SO AS TO EXEMPT IT FROM THE PROVISIONS OF
PARAGRAPH ( 1)? THIS POINT WAS NOT RAISED . IF THE BOARD IS EXEMPT FROM
THE APPLICATION OF ARTICLE 85 BY THE OPERATION OF PARAGRAPH ( 3 ) IT HAS
NO NEED TO FALL BACK ON THE ' TRANSITIONAL PERIOD ' ARGUMENT .
(
6)AND WHAT ABOUT ARTICLE 8 OF THE TREATY OF ROME WHICH PROVIDES THAT -
( 1 ) THE COMMON MARKET SHALL BE PROGRESSIVELY ESTABLISHED DURING A
TRANSITIONAL PERIOD OF 12 YEARS ; AND
( 2)TO EACH STAGE THERE SHALL BE
ASSIGNED A SET OF ACTIONS TO BE INITIATED AND CARRIED THROUGH CONCURRENTLY
. ' ?
DOES THIS PROVISION AFFECT THE PRESENT CASE?
16THE
BOARD APPEALED BY WAY OF CASE STATED AGAINST THIS JUDGMENT TO THE NORTHERN
IRELAND COURT OF APPEAL , BELFAST , ASKING WHETHER THE MAGISTRATE ' S
COURT WAS LEGALLY ENTITLED TO REFER THE MATTER TO THE COURT OF JUSTICE OF
THE EUROPEAN COMMUNITIES AND WHETHER A QUESTION REGARDING THE
INTERPRETATION OF THE TREATY HAD IN FACT ARISEN IN THE PROCEEDINGS BEFORE
THE MAGISTRATE ' S COURT ; IF THE ANSWER WAS IN THE AFFIRMATIVE , WHETHER
A DECISION ON THAT POINT WAS NECESSARY TO ENABLE THE MAGISTRATE TO GIVE
JUDGMENT ; AND FINALLY WHETHER THE MAGISTRATE ' S COURT HAD PROPERLY
EXERCISED ITS DISCRETION TO REFER THE MATTER TO THE COURT OF JUSTICE
.
17THE COURT OF APPEAL , AFTER SETTING OUT THE GROUNDS WHICH LED
THE RESIDENT MAGISTRATE TO MAKE USE OF THE PROCEDURE FOR A PRELIMINARY
RULING UNDER ARTICLE 177 , AND TAKING THE VIEW THAT IT WAS WITHIN THE
MAGISTRATE ' S DISCRETION TO CLARIFY THE LEGAL QUESTIONS RELATING TO THE
EXERCISE OF HIS OWN JURISDICTION , REFUSED , BY JUDGMENT OF 8 MARCH 1978 ,
TO ENTERTAIN THE BOARD ' S CASE STATED .
18ON 10 MARCH 1978 THE
RESIDENT MAGISTRATE SENT HIS JUDGMENT OF 19 SEPTEMBER 1977 TO THE COURT OF
JUSTICE UNDER COVER OF A LETTER IN WHICH IT WAS STATED THAT ' ' A POINT
HAS ARISEN . . . AS TO WHETHER THE DOMESTIC COURT HAS JURISDICTION TO
PROCEED UNDER CERTAIN NORTHERN IRELAND LEGISLATION ' ' AND THAT THE FACTS
OF THE CASE AND THE QUESTIONS ARISING IN THE JUDGMENT OF 19 SEPTEMBER 1977
' ' ALSO , INCIDENTALLY , RAISE THE FOLLOWING QUESTIONS :
1 . ARE
ARTICLES 30 , 31 , 32 , 34 , 37 , 40 , 41 , 42 , 43 , 85 , 86 AND 90 OF
THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY DIRECTLY
APPLICABLE SO AS TO CONFER ON INDIVIDUALS RIGHTS ENFORCEABLE BY THEM IN
THE COURTS OF THE UNITED KINGDOM?
2 . ARE REGULATIONS NOS 121/67 ,
2759/75 AND ALL OTHER REGULATIONS ON THE COMMON ORGANIZATION OF THE MARKET
IN PIGMEAT ADOPTED IN ACCORDANCE WITH THE TREATY ESTABLISHING THE EUROPEAN
ECONOMIC COMMUNITY DIRECTLY APPLICABLE SO AS TO CONFER ON INDIVIDUALS
RIGHTS ENFORCEABLE BY THEM IN THE COURTS OF THE UNITED KINGDOM?
3
. IS THE PIGS MARKETING SCHEME IN NORTHERN IRELAND , UPON THE PROPER
INTERPRETATION OF THE ARTICLES AND REGULATIONS ALONE , OR ANY RELEVANT
COMMUNITY LAW , IN CONTRAVENTION OF THE RULES OF COMMUNITY LAW?
4
. UNDER THE ABOVE ARTICLES , REGULATION OR ANY RELEVANT COMMUNITY LAW CAN
A MEMBER STATE BE AUTHORIZED :
( A ) TO CONTINUE A NATIONAL
ORGANIZATION OF THE MARKET AT A TIME WHEN THE COMMON ORGANIZATION OF THE
MARKET IS IN FORCE?
( B)TO COMPEL PRODUCERS WITHIN ITS
JURISDICTION TO BECOME REGISTERED PRODUCERS WITH THE PIGS MARKETING BOARD
( NORTHERN IRELAND ) BEFORE THEY CAN SELL PIGS?
( C)TO COMPEL
PRODUCERS WITHIN THE JURISDICTION TO ENTER INTO CONTRACTS WITH THE BOARD
AND SELL PIGS SOLELY TO THE BOARD AT PRICES AND IN NUMBERS FIXED BY THE
BOARD?
( D)TO PERMIT THE BOARD BY WAY OF AN EXPRESS OR IMPLIED
INTERVENTION MEASURE TO BUY EVERY PIG REGULATED BY THE SCHEME?
5 .
DOES IMPOSITION OF THE AFORESAID OBLIGATIONS RELATING TO THE TOTAL
REGULATION OF NUMBERS OF PIGS PRODUCED , SALES AND CONTROLLED PRICES ,
CONSTITUTE INFRINGEMENT OF COMMUNITY LAW IN SO FAR AS THEY MAY REPRESENT
MEASURES HAVING AN EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION ON
EXPORTS , BEARING IN MIND THAT THE NORTHERN IRELAND LEGISLATION IN
QUESTION HAS AS ONE OF ITS MAIN AIMS AND EFFECTS THE PREVENTION OF
EXPORTATION OF PIGS TO THE REPUBLIC OF IRELAND?
6 . WAS THE UNITED
KINGDOM COVERED ON THE DATE OF ACCESSION BY A COMMON ORGANIZATION OF THE
MARKET IN SO FAR AS AGRICULTURE WAS CONCERNED , AND IN RELATION IN
PARTICULAR TO PIGMEAT AND LIVE PIGS , AND IF SO DID IT APPLY FROM 1
FEBRUARY 1973?
7 . WAS THE UNITED KINGDOM GOVERNMENT ENTITLED TO
INTRODUCE THE MOVEMENT OF PIGS REGULATIONS ( NORTHERN IRELAND ) 1972 IN
THE MONTH OF MAY 1972?
' '
19THE UNITED KINGDOM GOVERNMENT HAS PUT
FORWARD , BOTH IN ITS WRITTEN OBSERVATIONS AND IN ITS ORAL STATEMENTS
BEFORE THE COURT , A NUMBER OF CONSIDERATIONS REGARDING THE QUESTIONS
RAISED BY THE RESIDENT MAGISTRATE .
20IT CLAIMS THAT , ON THE ONE
HAND , THE QUESTIONS INCLUDED IN THE JUDGMENT OF 19 SEPTEMBER 1977 ARE FOR
THE MOST PART NOT JUST QUESTIONS OF INTERPRETATION BUT QUESTIONS RELATING
TO THE APPLICATION OF COMMUNITY LAW AND THAT AS SUCH THEY CANNOT BE
DECIDED BY THE COURT OF JUSTICE .
21ON THE OTHER HAND , THE
QUESTIONS FORMULATED IN THE COVERING LETTER OF 10 MARCH 1978 , WHICH ARE
DESCRIBED BY THE MAGISTRATE HIMSELF AS HAVING ARISEN ONLY ' ' INCIDENTALLY
' ' , CANNOT BE CONSIDERED AS HAVING BEEN VALIDLY CONFERRED TO THE COURT
.
22IN THE FACE OF THE LARGE NUMBER OF QUESTIONS RAISED AND HAVING
REGARD TO THE COMPLEXITY AND THE IMPORTANCE OF THE CASE THE UNITED KINGDOM
GOVERNMENT STATES THAT IT HAS DIFFICULTY IN IDENTIFYING THE LEGAL PROBLEMS
ARISING IN THE CONTEXT OF THE PROCEEDINGS PENDING BEFORE THE RESIDENT
MAGISTRATE .
23FOR THIS REASON THE GOVERNMENT HAS ASKED THE COURT ,
IN ORDER TO PERMIT IT TO WORK OUT ITS POSITION FOR THE ORAL HEARING , TO
INDICATE BEFORE HAND THE QUESTIONS WHICH IT REGARDS AS RELEVANT
.
24AT THIS STAGE , ONLY AN EXAMINATION OF ARTICLES 34 AND 37 OF
THE TREATY , RELATING RESPECTIVELY TO QUANTITATIVE RESTRICTIONS ON EXPORT
AND THE SYSTEM OF STATE MONOPOLIES , APPEARS TO THE GOVERNMENT TO BE
NECESSARY FOR THE SOLUTION OF THE PROBLEMS RAISED BEFORE THE NATIONAL
COURT .
25AS REGARDS THE DIVISION OF JURISDICTION BETWEEN NATIONAL
COURTS AND THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE TREATY THE
NATIONAL COURT , WHICH IS ALONE IN HAVING A DIRECT KNOWLEDGE OF THE FACTS
OF THE CASE AND OF THE ARGUMENTS PUT FORWARD BY THE PARTIES , AND WHICH
WILL HAVE TO GIVE JUDGMENT IN THE CASE , IS IN THE BEST POSITION TO
APPRECIATE , WITH FULL KNOWLEDGE OF THE MATTER BEFORE IT , THE RELEVANCE
OF THE QUESTIONS OF LAW RAISED BY THE DISPUTE BEFORE IT AND THE NECESSITY
FOR A PRELIMINARY RULING SO AS TO ENABLE IT TO GIVE JUDGMENT
.
26HOWEVER , IN THE EVENT OF QUESTIONS ' HAVING BEEN IMPROPERLY
FORMULATED OR GOING BEYOND THE SCOPE OF THE POWERS CONFERRED ON THE COURT
OF JUSTICE BY ARTICLE 177 , THE COURT IS FREE TO EXTRACT FROM ALL THE
FACTORS PROVIDED BY THE NATIONAL COURT AND IN PARTICULAR FROM THE
STATEMENT OF GROUNDS CONTAINED IN THE REFERENCE , THE ELEMENTS OF
COMMUNITY LAW REQUIRING AN INTERPRETATION - OR , AS THE CASE MAY BE , AN
ASSESSMENT OF VALIDITY - HAVING REGARD TO THE SUBJECT-MATTER OF THE
DISPUTE .
27IN THIS RESPECT IT MAY BE NOTED THAT THE RESIDENT
MAGISTRATE HAS BROUGHT OUT CLEARLY IN HIS JUDGMENT OF 19 SEPTEMBER 1977
THE DOUBTS WHICH HE FELT AS TO THE CLASSIFICATION OF THE SCHEME IN
QUESTION , HAVING REGARD TO THE PROVISIONS OF COMMUNITY LAW , AND HE HAS
SHOWN THAT THE SOLUTION OF THIS PRELIMINARY QUESTION MUST DEPEND UPON THE
CHOICE TO BE MADE BETWEEN THE VARIOUS PROVISIONS WHICH HAVE BEEN RELIED
UPON BY THE PARTIES .
28THE QUESTIONS CONTAINED IN THE LETTER OF 10
MARCH 1978 WERE CLEARLY INSPIRED BY THE BOARD ' S CONTENTION BEFORE THE
COURT OF APPEAL , BELFAST , THAT THE RESIDENT MAGISTRATE HAS NOT PROPERLY
EXERCISED HIS DISCRETION WITH REGARD TO THE LEGAL QUESTIONS RAISED AND THE
NECESSITY OF REFERRING THEM TO THE COURT OF JUSTICE .
29IN ANY
EVENT A COMPARISON WITH THE JUDGMENT OF 19 SEPTEMBER 1977 SHOWS THAT THE
PURPOSE OF THE SUPPLEMENTARY QUESTIONS IS MERELY TO EXPLAIN AND RENDER
MORE PRECISE THE QUESTIONS PREVIOUSLY SUBMITTED .
30IT IS THUS
APPROPRIATE TO READ THE TWO SERIES OF QUESTIONS TOGETHER SO AS TO EXTRACT
THE PROBLEMS OF INTERPRETATION RAISED IN THE CONTEXT OF THE PROSECUTION
BEFORE THE RESIDENT MAGISTRATE .
31AS REGARDS THE DIFFICULTY
MANTIONED BY THE UNITED KINGDOM GOVERNMENT OF IDENTIFYING WITHIN THE BROAD
COMPLEX OF QUESTIONS RAISED BY THE RESIDENT MAGISTRATE THOSE WHICH ARE TO
BE CONSIDERED AS DECISIVE , IT HAS NOT SEEMED POSSIBLE TO THE COURT TO
GIVE A PRIOR INDICATION AT THE REQUEST OF ONE OF THE PARTIES TO THESE
PROCEEDINGS WITHOUT INCURRING THE RISK OF SEEMING TO COMMIT ITSELF TO A
DEFINITE POSITION IN ADVANCE OF A FINAL JUDGMENT AND , WHAT IS MORE ,
WITHOUT COMPROMISING THE OTHER PARTIES ' OPPORTUNITIES TO PUT THEIR CASE
.
THE CLASSIFICATION OF THE PIGS MARKETING SCHEME UNDER THE
PROVISIONS , OF THE TREATY AND SECONDARY LEGISLATION
32AS A
PRELIMINARY THE RESIDENT MAGISTRATE WISHES TO OBTAIN ALL NECESSARY FACTORS
WHICH MAY ENABLE HIM TO INTERPRET COMMUNITY LAW AND TO CLASSIFY THE PIGS
MARKETING SCHEME UNDER THE PROVISIONS OF THE TREATY AND SECONDARY
LEGISLATION WITH A VIEW TO IDENTIFYING THOSE PROVISIONS WHICH WILL ENABLE
HIM TO DELIVER A JUDGMENT AS REGARDS THE COMPATIBILITY OF THE SCHEME WITH
COMMUNITY LAW .
33THREE POSSIBILITIES ARE ENVISAGED IN THIS RESPECT
, FIRST THAT THE PIGS MARKETING SCHEME AND ITS ADMINISTERING BODY , THE
BOARD , ARE TO BE CONSIDERED AS A ' ' STATE MONOPOLY OF A COMMERCIAL
CHARACTER ' ' WITHIN THE MEANING OF ARTICLE 37 OF THE TREATY - SO THAT ITS
ACTIVITIES WOULD BE EXEMPTED , AT LEAST UNTIL 31 DECEMBER 1977 , BY VIRTUE
OF ARTICLE 44 OF THE ACT OF ACCESSION FROM THE APPLICATION OF THE
PROVISIONS OF THE TREATY WITH REGARD TO QUANTITATIVE RESTRICTIONS - OR
SECONDLY AS AN ' ' UNDERTAKING ' ' WITH THE CONSEQUENCE THAT THE
PROVISIONS OF THE TREATY WITH REGARD TO COMPETITION ARE APPLICABLE SUBJECT
, HOWEVER , TO ANY SPECIAL PRIVILEGES WHICH MIGHT ARISE FROM ARTICLE 90 ,
OR , FINALLY , THAT IT IS A ' ' NATIONAL MARKET ORGANIZATION ' ' , WHICH
WOULD RAISE THE PROBLEM OF THE COMPATIBILITY OF SUCH AN ORGANIZATION WITH
THE COMMON ORGANIZATION OF THE MARKET EXISTING IN THE SECTOR IN QUESTION
.
34AN ANSWER TO THIS QUESTION OF CLASSIFICATION MUST BE DEDUCED
FROM THE GENERAL STRUCTURE OF THE EEC TREATY AND FROM THE FUNCTION IN THAT
STRUCTURE OF THE PROVISIONS RELATING TO AGRICULTURE .
35ON THIS
POINT IT MUST BE STATED FIRST THAT THE PIGS MARKETING SCHEME CONCERNS A
SECTOR OF ECONOMIC ACTIVITY , NAMELY THE PRODUCTION AND MARKETING OF A
SPECIFIC CATEGORY OF PIGS , COMING UNDER A COMMON ORGANIZATION OF THE
MARKET GOVERNED AT THE TIME OF THE ACCESSION OF THE UNITED KINGDOM BY
REGULATION NO 121/67 OF 13 JUNE 1967 ( OFFICIAL JOURNAL , ENGLISH SPECIAL
EDITION 1967 , P . 46 ) AND AT THE MATERIAL TIME BY REGULATION NO 2759/75
OF 29 OCTOBER 1975 , WHICH IS STILL IN FORCE AT PRESENT .
36IT IS
COMMON GROUND THAT THIS COMMON ORGANIZATION OF THE MARKET WAS APPLICABLE
ON THE WHOLE OF THE TERRITORY OF THE UNITED KINGDOM , BY VIRTUE OF THE
GENERAL PROVISIONS OF THE ACT OF ACCESSION AND OF THE SPECIFIC RULE
CONTAINED IN ARTICLE 60 ( 1 ) OF THE ACT , AS FROM 1 FEBRUARY 1973 .
37IT FOLLOWS FROM ARTICLE 38 ( 2 ) OF THE EEC TREATY THAT THE
PROVISIONS OF THE TREATY RELATING TO THE COMMON AGRICULTURAL POLICY HAVE
PRECEDENCE , IN CASE OF ANY DISCREPANCY , OVER THE OTHER RULES RELATING TO
THE ESTABLISHMENT OF THE COMMON MARKET .
38THE SPECIFIC PROVISIONS
CREATING A COMMON ORGANIZATION OF THE MARKET THEREFORE HAVE PRECEDENCE IN
THE SECTOR IN QUESTION OVER THE SYSTEM LAID DOWN IN ARTICLE 37 IN FAVOUR
OF STATE MONOPOLIES OF A COMMERCIAL CHARACTER .
39CONSEQUENTLY THE
SPECIAL TIME-LIMIT LAID DOWN BY ARTICLE 44 OF THE ACT OF ACCESSION CANNOT
BE RELIED ON SO AS TO COVER NATIONAL RULES AND THE ACTION OF A NATIONAL
BODY SUCH AS THE BOARD , RELATING TO A SECTOR FOR WHICH A COMMON
ORGANIZATION OF THE MARKET EXISTS .
40IT IS THEREFORE IRRELEVANT
WHETHER THE PIGS MARKETING SCHEME AND THE BOARD HAVE THE CHARACTER OF A '
' STATE MONOPOLY ' ' WITHIN THE MEANING OF ARTICLE 37 , AS THE APPLICATION
OF THAT PROVISION WAS IN ANY CASE EXCLUDED AS FROM 1 FEBRUARY 1973 BY THE
EFFECT OF THE EXTENSION TO THE UNITED KINGDOM OF THE COMMON ORGANIZATION
OF THE MARKET IN PIGMEAT .
41IN ITS OBSERVATIONS SUBMITTED TO THE
COURT THE BOARD MAINTAINED THAT IT CONSIDERS ITSELF , HAVING REGARD BOTH
TO THE NATURE OF ITS ACTIVITIES AND TO THE POWERS CONFERRED UPON IT BY
NORTHERN IRELAND LEGISLATION , AS BEING AN UNDERTAKING WHICH HAS ' '
SPECIAL OR EXCLUSIVE RIGHTS ' ' WITHIN THE MEANING OF ARTICLE 90 OF THE
TREATY .
42IT CLAIMS THAT THE PROVISIONS , READ IN CONJUNCTION WITH
ARTICLE 37 RELATING TO STATE MONOPOLIES , HAS THE EFFECT OF EXEMPTING ITS
ACTIVITIES FROM THE APPLICATION OF THE GENERAL RULES RELATING TO THE
COMMON ORGANIZATION OF THE MARKET IN PIGMEAT .
43IN THIS RESPECT IT
MUST BE POINTED OUT , IN ADDITION TO WHAT HAS BEEN STATED ABOVE ON THE
SUBJECT OF ARTICLE 37 , THAT ARTICLE 90 ( 1 ) PROVIDES EXPRESSLY THAT THE
MEMBER STATES , AS REGARDS THE UNDERTAKINGS IN QUESTION , ' ' SHALL
NEITHER ENACT NOR MAINTAIN IN FORCE ANY MEASURE CONTRARY TO THE RULES
CONTAINED IN THIS TREATY ' ' .
44THE CLASSIFICATION OF THE BOARD AS
AN UNDERTAKING HAVING SPECIAL OR EXCLUSIVE RIGHTS WITHIN THE MEANING OF
ARTICLE 90 WOULD NOT THEREFORE HAVE THE EFFECT OF EXEMPTING ITS ACTIVITIES
FROM THE PROVISIONS OF COMMUNITY LAW OR IN PARTICULAR FROM THOSE RELATING
TO THE FREE MOVEMENT OF GOODS AND THE COMMON ORGANIZATION OF THE
AGRICULTURAL MARKET .
45FINALLY THE QUESTION HAS BEEN RAISED
WHETHER THE ACTIVITIES OF THE BOARD MAY BE RECOGNIZED AS A SPECIAL SCHEME
INASMUCH AS THE PIGS MARKETING SCHEME CONSTITUTES A ' ' NATIONAL MARKET
ORGANIZATION ' ' .
46IN THE PROCEEDINGS BEFORE THE RESIDENT
MAGISTRATE , THIS CONCEPT SEEMS TO HAVE BEEN DRAWN PARTICULARLY FROM
ARTICLE 2 OF REGULATION NO 26 APPLYING CERTAIN RULES OF COMPETITION TO
PRODUCTION OF AND TRADE IN AGRICULTURAL PRODUCTS .
47AS THE COURT
HAD OCCASION TO EMPHASIZE IN ITS JUDGMENT OF 10 DECEMBER 1974 IN CASE
48/74 , CHARMASSON (( 1974 ) ECR 1383 ), NATIONAL MARKET ORGANIZATIONS
WERE ONLY ACCEPTED PROVISIONALLY AND THE INTENTION IS TO REPLACE THEM , IN
ACCORDANCE WITH ARTICLE 43 ( 3 ), BY THE INSTITUTION OF COMMON
ORGANIZATIONS OF THE MARKET .
48EXCEPT FOR THE PRODUCTS IN RESPECT
OF WHICH THERE IS A RESERVATION UNDER ARTICLE 60 ( 2 ) OF THE ACT OF
ACCESSION , THIS REPLACEMENT TOOK EFFECT FOR THE UNITED KINGDOM BY VIRTUE
OF THE SAME ACT ON 1 FEBRUARY 1973 , AS HAS BEEN INDICATED ABOVE
.
49AS REGARDS THE REFERENCE TO NATIONAL MARKET ORGANIZATIONS IN
REGULATION NO 26 , IT SHOULD BE POINTED OUT THAT THE PROVISIONS OF THAT
REGULATION , WHICH IS DATED 4 APRIL 1962 , TAKE ACCOUNT OF THE CONDITIONS
PREVAILING DURING THE TRANSITIONAL PERIOD AND THAT IN THE FIFTH RECITAL IN
THE PREAMBLE TO THAT REGULATION THE POSITION AS REGARDS THE SUBSEQUENT
DEVELOPMENT OF A COMMON AGRICULTURAL POLICY IS FULLY SAFEGUARDED
.
50ACCORDINGLY THE QUESTION WHETHER THE PIGS MARKETING SCHEME (
NORTHERN IRELAND ) MIGHT BE CLASSIFIED AS A ' ' NATIONAL MARKET
ORGANIZATION ' ' IS EQUALLY IRRELEVANT .
THE POSITION OF THE PIGS
MARKETING SCHEME VIS-A-VIS THE COMMON ORGANIZATION OF THE MARKET IN
PIGMEAT
51IT FOLLOWS FROM THE FOREGOING THAT THE DECISIVE QUESTIONS
FOR THE SOLUTION OF THE CASE BEFORE THE RESIDENT MAGISTRATE CONCERN THE
COMPATIBILITY WITH THE PROVISIONS RELATING TO THE FREE MOVEMENT OF GOODS
AND THE COMMON ORGANIZATION OF THE MARKET IN PIGMEAT OF A MARKET SYSTEM
LAID DOWN BY THE LEGISLATION OF A MEMBER STATE AND MANAGED BY A BODY WHICH
HAS POWER , THANKS TO THE COMPULSORY POWERS VESTED IN IT , TO CONTROL THE
SECTOR OF THE MARKET IN QUESTION BY MEASURES SUCH AS SUBJECTING THE
MARKETING OF THE GOODS TO A REQUIREMENT THAT THE PRODUCER SHALL BE
REGISTERED WITH THE BODY IN QUESTION , THE PROHIBITION OF ANY SALE
OTHERWISE THAN TO THAT BODY OR THROUGH ITS AGENCY , ON THE CONDITIONS
DETERMINED BY IT , AND THE PROHIBITION OF ANY UNAUTHORIZED TRANSPORT OF
THE GOODS IN QUESTION .
52WITH A VIEW TO ANSWERING THESE QUESTIONS
IT IS NECESSARY TO CLARIFY FIRST THE RELATIONSHIP EXISTING ON THE ONE HAND
BETWEEN THE REGULATIONS MENTIONED BY THE RESIDENT MAGISTRATE , NAMELY
REGULATIONS NOS 121/67 AND 2759/75 AND , ON THE OTHER HAND , THE
PROVISIONS OF THE TREATY RELATING TO THE ABOLITION OF QUANTITATIVE
RESTRICTIONS AND MORE PARTICULARLY ARTICLES 30 AND 34 OF THE TREATY
.
53REGULATION NO 121/67 , WHICH WAS APPLICABLE AT THE TIME OF THE
ACCESSION OF THE UNITED KINGDOM , CONTAINS IN ARTICLE 19 EXPRESS
PROVISIONS RELATING TO THE ABOLITION OF CUSTOMS DUTIES AND QUANTITATIVE
RESTRICTIONS .
54THE FACT THAT THESE PROVISIONS WERE NOT RE-ADOPTED
IN REGULATION NO 2759/75 , THE PURPOSE OF WHICH WAS TO CONSOLIDATE THE
WHOLE OF THE EXISTING PROVISIONS ON THIS SUBJECT , IS DUE , AS HAS BEEN
EXPLAINED BY THE COMMISSION , TO THE FACT THAT IT IS CURRENT PRACTICE NOT
TO INSERT IN THE CONSOLIDATED TEXT OF AGRICULTURAL REGULATIONS ANY
PROVISIONS WHICH MERELY RE-ENACT THE PROVISIONS OF THE TREATY ITSELF
.
55IT FOLLOWS THAT , HAVING REGARD TO THE STRUCTURE OF REGULATION
NO 2759/75 , WHICH IS NOW IN FORCE , THE PROVISIONS OF THE TREATY RELATING
TO THE ABOLITION OF TARIFF AND COMMERCIAL BARRIERS TO INTRA-COMMUNITY
TRADE AND IN PARTICULAR ARTICLES 30 AND 34 ON THE ABOLITION OF
QUANTITATIVE RESTRICTIONS AND OF ALL MEASURES HAVING EQUIVALENT EFFECT ON
IMPORTS AND EXPORTS ARE TO BE REGARDED AS AN INTEGRAL PART OF THE COMMON
ORGANIZATION OF THE MARKET .
56AS THE COURT HAS STATED IN ITS
JUDGMENT OF 18 MAY 1977 IN CASE 111/75 OFFICIER VAN JUSTITIE V VAN DEN
HAZEL (( 1977 ) ECR AT P . 909 ) ONCE THE COMMUNITY HAS , PURSUANT TO
ARTICLE 40 OF THE TREATY , LEGISLATED FOR THE ESTABLISHMENT OF THE COMMON
ORGANIZATION OF THE MARKET IN A GIVEN SECTOR , MEMBER STATES ARE UNDER AN
OBLIGATION TO REFRAIN FROM TAKING ANY MEASURE WHICH MIGHT UNDERMINE OR
CREATE EXCEPTIONS TO IT .
57WITH A VIEW TO APPLYING THAT STATEMENT
IN THE CASE OF THE PIGS MARKETING SCHEME IT SHOULD BE BORNE IN MIND THAT
THE COMMON ORGANIZATION OF THE MARKET IN PIGMEAT , LIKE THE OTHER COMMON
ORGANIZATIONS , IS 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 .
58HENCE ANY
PROVISIONS OR NATIONAL PRACTICES WHICH MIGHT ALTER THE PATTERN OF IMPORTS
OR EXPORTS OR INFLUENCE THE FORMATION OF MARKET PRICES BY PREVENTING
PRODUCERS FROM BUYING AND SELLING FREELY WITHIN THE STATE IN WHICH THEY
ARE ESTABLISHED , OR IN ANY OTHER MEMBER STATE , IN CONDITIONS LAID DOWN
BY COMMUNITY RULES AND FROM TAKING ADVANTAGE DIRECTLY OF INTERVENTION
MEASURES OR ANY OTHER MEASURES FOR REGULATING THE MARKET LAID DOWN BY THE
COMMON ORGANIZATION ARE INCOMPATIBLE WITH THE PRINCIPLES OF SUCH
ORGANIZATION OF THE MARKET .
59ANY ACTION OF THIS TYPE , WHICH IS
BROUGHT TO BEAR UPON THE MARKET BY A BODY SET UP BY A MEMBER STATE AND
WHICH DOES NOT COME WITHIN THE ARRANGEMENTS MADE BY COMMUNITY RULES CANNOT
BE JUSTIFIED BY THE PURSUIT OF SPECIAL OBJECTIVES OF ECONOMIC POLICY ,
NATIONAL OR REGIONAL ; THE COMMON ORGANIZATION OF THE MARKET , AS EMERGES
FROM THE THIRD RECITAL IN THE PREAMBLE TO REGULATION NO 2759/75 , IS
INTENDED PRECISELY TO ATTAIN SUCH OBJECTIVES ON THE COMMUNITY SCALE IN
CONDITIONS ACCEPTABLE FOR THE WHOLE OF THE COMMUNITY AND TAKING ACCOUNT OF
THE NEEDS OF ALL ITS REGIONS .
60ANY INTERVENTION BY A MEMBER STATE
OR BY ITS REGIONAL OR SUBORDINATE AUTHORITIES IN THE MARKET MACHINERY
APART FROM SUCH INTERVENTION AS MAY BE SPECIFICALLY LAID DOWN BY THE
COMMUNITY REGULATION RUNS THE RISK OF OBSTRUCTING THE FUNCTIONING OF THE
COMMON ORGANIZATION OF THE MARKET AND OF CREATING UNJUSTIFIED ADVANTAGES
FOR CERTAIN GROUPS OF PRODUCERS OR CONSUMERS TO THE PREJUDICE OF THE
ECONOMY OF OTHER MEMBER STATES OR OF OTHER ECONOMIC GROUPS WITHIN THE
COMMUNITY .
61IN THIS RESPECT IT IS IMPOSSIBLE TO ACCEPT THE BOARD
' S ARGUMENT TO THE EFFECT THAT ITS PRICE POLICY IS DEPENDENT UPON MARKET
TRENDS AND ACCORDINGLY DOES NOT PERTURB THE FORMATION OF PRICES ACCORDING
TO THE REGULATION .
62INDEED THIS SITUATION BY NO MEANS EXCLUDES
THE FACT THAT THE NATIONAL PROVISIONS IN DISPUTE HAVE THE EFFECT OF
PLACING PRODUCERS IN A POSITION OF COMPLETE DEPENDENCE ON THE BOARD AND
FORBIDDING THEM ACCESS TO THE MARKET IN THE CONDITIONS LAID DOWN BY THE
TREATY AND THE COMMON ORGANIZATION SET UP BY VIRTUE OF THE TREATY
.
63IN THIS RESPECT ACCOUNT BE TAKEN OF ARTICLE 2 OF REGULATION NO
2759/75 WHICH LAYS DOWN A SERIES OF MEASURES INTENDED TO ENCOURAGE ACTION
BY TRADE AND JOINT TRADE ORGANIZATIONS TO FACILITATE THE ADJUSTMENT OF
SUPPLY TO MARKET REQUIREMENTS BY REASON IN PARTICULAR OF A BETTER
ORGANIZATION OF PRODUCTION , PROCESSING OR MARKETING OF THE PRODUCTS IN
QUESTION .
64HOWEVER , THAT PROVISION MAKES POSSIBLE THE
INSTITUTION OF SUCH MEASURES ONLY WITHIN THE FRAMEWORK OF A COMMUNITY
PROCEDURE INTENDED TO GUARANTEE THAT THE GENERAL INTERESTS OF THE
COMMUNITY ARE SAFEGUARDED AND THAT THE OBJECTIVES LAID DOWN BY ARTICLE 39
OF THE TREATY ARE OBSERVED .
65THE QUESTIONS REFERRED TO THE COURT
BY THE RESIDENT MAGISTRATE SHOULD THEREFORE BE ANSWERED TO THE EFFECT THAT
A MARKETING SYSTEM ON A NATIONAL OR REGIONAL SCALE SET UP BY THE
LEGISLATION OF A MEMBER STATE AND ADMINISTERED BY A BODY WHICH , BY MEANS
OF COMPULSORY POWERS VESTED IN IT , IS EMPOWERED TO CONTROL THE SECTOR OF
THE MARKET IN QUESTION OR A PART OF IT BY MEASURES SUCH AS SUBJECTING THE
MARKETING OF THE GOODS TO A REQUIREMENT THAT THE PRODUCER SHALL BE
REGISTERED WITH THE BODY IN QUESTION , THE PROHIBITION OF ANY SALE
OTHERWISE THAN TO THAT BODY OR THROUGH ITS AGENCY ON THE CONDITIONS
DETERMINED BY IT , AND THE PROHIBITION OF ALL TRANSPORT OF THE GOODS IN
QUESTION OTHERWISE THAN SUBJECT TO THE AUTHORIZATION OF THE BODY IN
QUESTION ARE TO BE CONSIDERED AS INCOMPATIBLE WITH THE REQUIREMENTS OF
ARTICLES 30 AND 34 OF THE EEC TREATY AND OF REGULATION NO 2759/75 ON THE
COMMON ORGANIZATION OF THE MARKET IN PIGMEAT .
66IT SHOULD FURTHER
BE STATED IN REPLY TO THE QUESTIONS RAISED BY THE RESIDENT MAGISTRATE THAT
ALL THE PROVISIONS QUOTED ARE DIRECTLY APPLICABLE AND THAT AS SUCH THEY
CONFER ON INDIVIDUALS RIGHTS WHICH THE COURTS OF MEMBER STATES MUST
PROTECT .
67THIS RESULT FLOWS ON THE ONE HAND FROM THE VERY NATURE
OF ARTICLES 30 AND 34 OF THE TREATY AND ON THE OTHER HAND FROM ARTICLE 189
IN THE TERMS OF WHICH REGULATIONS ARE ' ' DIRECTLY APPLICABLE IN ALL
MEMBER STATES ' ' .
68AS WILL BE CLEAR FROM THE FOREGOING , THE
EFFECTS DESCRIBED ABOVE APPLIED , ACCORDING TO THE TERMS OF THE ACT OF
ACCESSION AND IN PARTICULAR OF ARTICLES 2 , 42 AND 60 ( 1 ) THEREOF , TO
THE WHOLE OF THE TERRITORY OF THE UNITED KINGDOM AS FROM 1 FEBRUARY 1973 .
69IN THIS RESPECT THE FACT THAT ONE OF THE FEATURES OF THE PIGS
MARKETING SCHEME - NAMELY THE MOVEMENT OF PIGS REGULATIONS - WAS
INTRODUCED IN 1972 SUBSEQUENTLY TO THE DATE OF THE SIGNATURE OF THE TREATY
OF ACCESSION DOES NOT ALTER THIS SITUATION SINCE THE PRECEDENCE OF
COMMUNITY LAW OVER THE PROVISIONS OF NATIONAL LAW APPLIES WITHOUT REGARD
TO THE RESPECTIVE DATES OF THE PROVISIONS IN QUESTION .
70THE
RESIDENT MAGISTRATE RAISES A FURTHER SPECIAL QUESTION , WITH REGARD TO THE
RESTRICTIONS RESULTING AS REGARDS TRANSPORT OF PIGS FROM THE APPLICATION
OF THE MOVEMENT OF PIGS REGULATIONS , AS TO WHETHER SUCH RESTRICTIONS
MIGHT POSSIBLY BE JUSTIFIED BY REASON OF THE CONTROL FACILITIES WHICH THEY
OFFER WITH REGARD TO LARGE-SCALE SMUGGLING WHICH APPARENTLY TAKES PLACE ON
THE FRONTIER BETWEEN NORTHERN IRELAND AND THE REPUBLIC OF IRELAND BY
REASON OF THE DISPARITY IN THE RATES FOR THE ' ' GREEN POUND ' ' AND THE
PAYMENT OF THE MONETARY COMPENSATORY AMOUNTS RESULTING THEREFROM
.
71THE BOARD , FOR ITS PART , ALSO EMPHASIZES THE CONNEXION
EXISTING BETWEEN THIS ASPECT OF THE PIGS MARKETING SCHEME AND THE
SUPPRESSION OF SMUGGLING .
72IT IS NOT POSSIBLE TO ACCEPT THAT A
PROHIBITION ON TRANSPORT WHICH IS INCOMPATIBLE BOTH WITH FREEDOM OF TRADE
BETWEEN MEMBER STATES AND WITH THE COMMON ORGANIZATION OF THE MARKET IN
PIGMEAT IS JUSTIFIED BY REASON OF THE FACT THAT SUCH A RESTRICTION MIGHT
INCIDENTALLY FACILITATE FRONTIER CONTROLS AND THE CAMPAIGN AGAINST CERTAIN
FRAUDULENT OPERATIONS .
73SUCH ABUSES , IF NOT ABOLISHED BY THE
REMOVAL OF THEIR MONETARY CAUSE , CAN ONLY BE DEALT WITH BY MEANS
COMPATIBLE WITH THE NORMAL FUNCTIONING OF THE COMMON MARKET
.
74CONSIDERATIONS AFFECTING THE REPRESSION OF FRAUD CANNOT
THEREFORE BE RELIED UPON TO JUSTIFY THE SCHEME WHICH IS THE SUBJECT OF THE
PROCEEDINGS BEFORE THE RESIDENT MAGISTRATE .
75IN VIEW OF THE
FOREGOING IT DOES NOT APPEAR NECESSARY TO REPLY TO THE QUESTIONS BY THE
RESIDENT MAGISTRATE REGARDING THE INTERPRETATION OF ARTICLES 85 AND 86 OF
THE TREATY AND THE RELATIONSHIP OF THOSE PROVISIONS WITH ARTICLE 37 .
COSTS
76THE COSTS INCURRED BY THE UNITED
KINGDOM GOVERNMENT AND THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH
HAVE SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE .
77AS
THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS
ARE CONCERNED , IN THE NATURE OF A STEP IN THE PROSECUTION PENDING BEFORE
THE NATIONAL COURT , COSTS ARE A MATTER FOR THAT COURT .
ON THOSE GROUNDS ,
THE COURT ,
IN ANSWER
TO THE QUESTIONS REFERRED TO IT BY THE RESIDENT MAGISTRATE , ARMAGH , BY
JUDGMENT OF 19 SEPTEMBER 1977 AND BY LETTER OF 10 MARCH 1978 , HEREBY
RULES :
1 . A MARKETING SYSTEM ON A NATIONAL OR REGIONAL SCALE SET UP
BY THE LEGISLATION OF A MEMBER STATE AND ADMINISTERED BY A BODY WHICH , BY
MEANS OF COMPULSORY POWERS VESTED IN IT , IS EMPOWERED TO CONTROL THE
SECTOR OF THE MARKET IN QUESTION OR A PART OF IT BY MEASURES SUCH AS
SUBJECTING THE MARKETING OF THE GOODS TO A REQUIREMENT THAT THE PRODUCER
SHALL BE REGISTERED WITH THE BODY IN QUESTION , THE PROHIBITION OF ANY
SALE OTHERWISE THAN TO THAT BODY OR THROUGH ITS AGENCY ON THE CONDITIONS
DETERMINED BY IT , AND THE PROHIBITION OF ALL TRANSPORT OF THE GOODS IN
QUESTION OTHERWISE THAN SUBJECT TO THE AUTHORIZATION OF THE BODY IN
QUESTION ARE TO BE CONSIDERED AS INCOMPATIBLE WITH THE REQUIREMENTS OF
ARTICLES 30 AND 34 OF THE EEC TREATY AND OF REGULATION NO 2759/75 ON THE
COMMON ORGANIZATION OF THE MARKET IN PIGMEAT .
2 . THE PROVISIONS
OF ARTICLES 30 AND 34 OF THE EEC TREATY AND OF REGULATION NO 2759/75 ARE
DIRECTLY APPLICABLE AND CONFER ON INDIVIDUALS RIGHTS WHICH THE COURTS OF
MEMBER STATES MUST PROTECT .
3 . THE EFFECTS DESCRIBED ABOVE
APPLIED , ACCORDING TO THE TERMS OF THE ACT OF ACCESSION AND IN PARTICULAR
OF ARTICLES 2 , 42 AND 60 ( 1 ) THEREOF , TO THE WHOLE OF THE TERRITORY OF
THE UNITED KINGDOM AS FROM 1 FEBRUARY 1973 .
