OPINION OF MR ADVOCATE-GENERAL CAPOTORTI
DELIVERED ON 15 DECEMBER 1976 ( 1 )
Mr President,
Members of the Court,
1.
Case 50/76 requires the Court to consider a fundamental issue of Community law — that of the limits within which a Member State may be allowed to add its own provisions to the Community regulations in force on a given matter. Although the answer to this question is quite easy in the case of Government provisions which purport to reproduce or derogate from the provisions of Community regulations, several difficulties, in my view, arise in the case of Government provisions the effect of which is, so to speak, to supplement the Community rules. These considerations make it desirable that the issue should be looked at afresh in the light of the features of the case before the Court.
The basic facts are as follows:
There is in the Netherlands an ornamental plant authority, called the Produktschap voor Siergewassen, which is empowered under Netherlands law to fix the prices of products in the industry for which it is responsible. The authority adopted a Flower-bulb (1975 Crop) Export Price Order (hereinafter referred to as ‘the 1975 Order’). The order contains four groups of provisions: some reproduce the minimum prices already fixed by Regulation (EEC) No 369/75 of the Commission of the European Communities; others, in particular Article 2 (5), impose minimum prices for bulbs other than those expressly provided for under the said Regulation (EEC) No 369/75; one provision (Article 7) lays down penalties for any infringements; and another provision (Article 9) empowers the President of the Produktschap, in certain cases or groups of cases, to agree or require exemptions from the 1975 Order.
The plaintiff in the main action, Amsterdam Bulb, a Netherlands company, exports flower bulbs to the United States of America. Under the 1975 Order, these products cannot be sold below a minimum price, which is based on the purchase price increased by 40 % for expenses and profits. The plaintiff considered this price to be too high in view of the fact that it exports the flower bulbs in bulk while the purchaser is responsible for packing them in bags and the execution of orders. On account of this it applied to the President of the Produktschap on 5 August 1975 for its exports to the United States to be exempted under the said Article 9 of the 1975 Order from the application of minimum prices. The application was refused on the following 12 August. The Amsterdam Bulb company appealed to the College van Beroep voor het Bedrijfsleven (Administrative Court for Economic Matters) against the decision to refuse such exemption.
During the proceedings before that court the plaintiff raised the objection inter alia that the national regulations were incompatible with the Community regulations relating to the flower bulb industry. The regulations mainly involved are Regulation (EEC) No 234/68 of the Council of 27 February 1968, which contains the basic provisions for 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, which the Court has on a number of occasions been called upon to consider in previous proceedings under Article 177; Regulation (EEC) No 1767/68 of the Commission of 6 November 1968, which provides for the introduction of a system of minimum prices for exports to third countries of flowering corms, bulbs and tubers; and Regulation (EEC) No 369/75 of the Commission which, implementing Regulation (EEC) No 1767/68, fixed minimum prices for the 1975/1976 marketing year.
By order of 15 June 1976, the Netherlands court submitted the following question for a preliminary ruling by the Court of Justice:
‘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 Regulations (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 regulation?’
2.
The fact that some provisions of the order made by the Produktschap are substantially the same as those contained in Regulations (EEC) Nos 1767/69 and 369/75 of the Commission, referred to above, makes it necessary to point out that this Court has already had occasion to condemn the practice of reproducing the provisions of Community regulations in domestic legislative measures (see the judgment of 7 February 1973 in Case 39/72, Commission v Italian Republic [1973] ECR 101 et seq. and that of 10 October 1973 in Case 34/73, Variola v Amministrazione Italiana delle Finanze [1973] ECR 981 et seq.). These precedents draw attention to the two most serious disadvantages of the practice in question: first, the uncertainty which arises concerning the legal effect of the provisions and the date when they come into force, and, secondly, doubts which are liable to arise on the question whether or not the procedure for an interpretation under Article 177 of the Treaty of Rome is available. The Court has rightly emphasized that strict complicance by the Member States with their duty not to obstruct the direct applicability of Community regulations ‘is an indispensable condition of simultaneous and uniform application’ of those regulations throughout the Community (judgment in the Variola case, Ground 10). Against this it is of no avail to argue that the national authorities may be motivated by the desire to promote knowledge and the observance of Community provisions: the first is ensured by publication of the regulations as provided for by the Treaty, and the second is secured by the national courts, which are bound to apply the regulations in accordance with Article 189 of the Treaty, and can, as necessary, refer to this Court if any question arises concerning their validity or interpretation. It may also happen, as in the present case, that rules of Community origin are ‘recast’ in a national enactment which contains other provisions on the same subject. In circumstances of this kind, the reproduction of Community rules is probably based on a desire to provide those to whom they are addressed with a homogeneous and comprehensive set of regulations in a given sector. But this objective is, also, to be condemned: to incorporate Community rules in a context of national law means submitting them to the same principles of interpretation, and, prima facie at least, making them subject to the scope of the national provision in terms of its validity, its effect in terms of time, and the parties to whom it is addressed. If we assume that, on any matter, it is possible for Community rules and national rules to exist side by side, it is for the court interpreting them to harmonize them, bearing in mind the different origin and the different nature of the two legal systems which exist alongside each other: any attempt to make homogeneous that which is not produces a distortion of Community law even if all the municipal legislature does is to transcribe the rules of that law.
3.
The inclusion in the 1975 Order of the provision referred to earlier (Article 9), empowering the President of the Produktschap to provide for exemptions from the said order raises the question of the validity of national devices for derogation from Community law inasmuch as other provisions of the 1975 Order reproduce Community rules. The answer to this question, like that to the previous one, is clear: the Member States can neither directly nor through bodies which they have created or recognized, derogate from the law of the European Communities, except in the circumstances (and under the procedures) provided for by the latter legal system itself. Among the decisions of this Court, this is clearly laid down in the judgment of 19 December 1961 in Case 7/61, Commission v Italian Republic (Rec. 1961, p. 635) and that of 30 November 1972 in Case 18/72, Granaria v Produktschap voor Veevoeder (Rec. 1972, p. 1163). No national authority is permitted to empower itself to adopt measures which conflict with binding Community provisions, even if such power is intended to dispose of individual cases and is exercised wholly by way of exception. This is forbidden not only by Article 5 (2) of the Treaty of Rome, which requires the States to abstain from any measure which could jeopardize the attainment of the objectives of the Treaty but also, in wider terms, by the principle that Community law prevails over national law, a principle which is, inter alia, designed to ensure the uniform application of Community provisions throughout the Member States and to ensure that it is observed by all parties, public and private.
Counsel for the Produktschap stated that the power of exemption in question has never yet been exercised; he moreover insisted that no exemption will be granted until Community regulations are amended so as to permit it. The first statement seems to involve the notion that an infringement of Community law can be established only through the granting of exemption in a specific case and not merely because of the introduction of a rule authorizing exemptions, as long as it has not been used. But this point of view, which has sometimes been regarded as correct in the field of international law, must be rejected here: the possibility of jeopardizing the attainment of the objectives of the Treaty referred to in Article 5 (2) thereof becomes a reality on the introduction under national law of a rule which is incompatible with the principles of Community law, and a ‘measure’ which could have such an effect within the meaning of Article 5 (2) includes a legislative as well as an administrative measure.
Again, as regards the statement that no exemption will be granted by the Produktschap until Community regulations permit it, all that needs to be said is that Article 9 of the 1975 Order contains no suspensive condition of this kind and that any question as to the validity of a provision of this type must be viewed in the light of mandatory Community provisions such as those at present in force in the sector concerned.
The conclusion is, therefore, inevitable that a national provision which introduces machinery for exemptions which is capable of impinging on the application of Community provisions automatically conflicts with the Community legal system. This does not, of course, affect the validity of machinery for exemptions designed to apply to national provisions which remain within the discretionary powers belonging to each Member State.
4.
Another provision of the 1975 Order to which express reference was made by the national court in the order making the reference is, as said above, Article 7, which imposes penalties for infringements of the regulation. The provision raises a problem of Community law in so far as the substance of the Community regulations is reproduced in part of the 1975 Order and in so far as, therefore, the penalty can be applied in the case of conduct which is actually contrary to Community law (even though, technically, it involves offences against the Netherlands order).
Counsel for the plaintiff maintains, in this connexion, that any national law incorporating a Community regulation is incompatible with Community law even if it is intended to make doubly sure that it is observed and on this point refers to the judgment of this Court of 18 June 1970 in Case 74/69 (Hauptzollamt Bremen v Krohn [1970] ECR 451 et seq.). It goes on to state that the principle that Community regulations must be uniformly applied in all the Member States is jeopardized when, of its own accord, a particular State imposes penalties for non-observance of a regulation. On the other hand, the Produktschap contends in its defence that to ensure compliance with Community provisions by means of penal sanctions is in full conformity with the spirit of Article 5 of the Treaty.
It is true that the decision of this Court in the Krohn case is to the effect that, in the absence of any provisions to the contrary, Member States are precluded from taking measures, even for the purpose of ensuring the application of the regulation ‘the purpose of which is to amend its scope or to add to its provisions’. The same view was moreover expressed in the judgment of 18 February 1970 in Case 40/69(Hauptzollamt Hamburg v Bollmann [1970] ECR 69 et seq). But this view was adopted in relation to cases where the Government provision in question had the effect of interpreting the Community regulation and in consequence modified its scope: the underlying reason for the Court's decision was an intention to exclude anything which might modify or compromise the scope or rather the substance of a Community measure. It cannot, however, be said that a penal sanction changes the substance of the provisions of the regulation; any penal provision related to a specific and substantive rule of conduct is based on the presumption of conduct contrary to that rule and the rule is, therefore, taken for granted, complete with its contents. As regards the possibility that the methods of enforcing a Community regulation may differ from one Member State to another according to whether or not a penal sanction has been introduced, this is a possibility which is inherent in the difference between national legal systems; the Treaty itself, in Article 5, which calls for the adoption of ‘all appropriate measures, whether general or particular, to ensure fulfilment of the obligations’ arising out of the Treaty, leaves individual Member States to decide on appropriate action in the light of the idiosyncrasies of the legal system of each of them and, having regard to the nature of the interests involved, the greater or lesser likelihood of non-observance.
It seems therefore justifiable to conclude that the only restriction on the introduction of penal sanctions on the part of a Member State in order to ensure that Community regulations are observed is the possibility that the regulation itself has already provided specific sanctions of a Community nature (as in the case of, for example, the competition rules applicable to undertakings by virtue of Regulation No 17/1962 of the Council of the EEC). Where this does not apply, the fact that, for the purposes of the safeguards referred to above, a State supplements Community legislation by penal sanctions does not conflict with the principles of the law of the European Communities.
5.
Finally, in its request for an interpretative ruling the court making the reference mentions two provisions (Article 2 (2) and (5)) of the 1975 Order which, in its view, introduced changes in the Community legislation and, in essence, asks whether the said national provisions are compatible with such legislation. To be more precise, the Netherlands court asks whether Community law, in particular, Regulations (EEC) Nos. 234/68, 1767/68 and 369/75, prohibit a national body invested with legislative authority from adopting a measure such as the 1975 Order in which there are, inter alia, provisions which are not part of the said regulations. Its expression in this way is certainly calculated to make the question compatible with the terms of the settled case-law of this Court according to which the Court is not competent to decide questions concerning the compatibility of internal provisions with Community law under the interpretation procedure provided for in Article 177 of the EEC Treaty; that procedure is, in fact, to be used only for the purposes of dealing with questions involving the interpretation of Community law. Nevertheless, it is clear that, although it is possible to express some issues in quite general terms (and this is what I tried to do in considering the possibility or otherwise of Community provisions being reproduced in national measures, of derogations being made from Community law, and of supplementing Community regulations with penalties under national criminal law), other issues require a stricter definition of the situation under consideration and accordingly an analysis of the features of the case in question. This is the position as regards that part of the question from the Netherlands court which remains to be considered. It is at the same time the most difficult and explicit.
The first point to be noted is that Article 2 (2), one of the provisions of the 1975 Order referred to by the national court, does not change Community legislation since it reproduces, in substance if not inform, something which was already contained in a regulation of the Commission. The provision in question prohibits the offer for sale and/or the sale of flower bulbs harvested in 1975 of a size smaller than those indicated in the price list annexed to the regulation at prices lower than the minimum prices prescribed for the importing country in the price list applicable to the smallest size of bulb of the same type or variety. The contents of this provision are substantially the same as paragraphs (1) and (2) of Article 2 of the said Regulation (EEC) No 1767/68, in which it is prohibited ‘to offer for sale, to sell or to deliver with a view to export to third countries any product covered by the minimum export price system at a price lower than the minimum price applicable to this product … 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’.
As far as the said Article 2 (2) of the 1975 Order is concerned, therefore, I confine myself to reiterating that it is not permissible for national provisions to incorporate Community regulations.
Consideration must now be given to the question raised by Article 2 (5) of the Netherlands regulation. As we saw earlier, this provision refers to products which were not included in the price lists annexed to Regulation (EEC) No 369/75 of the Commission and reproduced in their entirety in an annex to the 1975 Order. In respect of such products, Article 2 (5) of that order fixes minimum prices for exports to third countries and provides that prices charged and demanded shall not be lower than the purchase price paid by the exporter; in the case of the exporter's own products, prices must not be lower than the market price applicable in the case of products of the same type, variety and size.
The issue which is raised by a provision of this kind is whether, within a sector of agricultural products subject to a common organization, of the market, it is permissible for a State (or a public or private body to which the State has granted legislative power) to set up a minimum price system for products which do not belong to the categories or types to which Community minimum prices must be applied.
6.
There is no lack of precedents in the previous decisions of the Court to help in answering this question. However they disclose two separate trends which, in the present case, may lead to different conclusions.
The first trend favours the strict principle that any action by the national authorities in respect of products subject to a common organization of the market is incompatible with Community law if, although in some respects still incomplete, it is definitive. This view was expressed for the first time, even if not in the clearest terms, in the judgment of 21 March 1972 in Pubblico Ministero Italiano v SAIL (Case 82/71, Rec. 1972, p. 119 et seq., especially Ground 14) and for the second time, more explicitly, in the judgment of 23 January 1975 in the Galli case (Case 31/74 [1975] ECR 47 et seq.).
In the latter judgment, the Court held any national provisions which fixed selling prices to be prohibited not only when their effect was ‘to distort the formation of prices as brought about within the framework of the Community provisions applicable’ but also, more generally and independently of the existence of a common prices system, simply because of the existence of an organization of the market in the sector for the products concerned, which is based on freedom of trade; this would suffice to dreprive Member States of the power to adopt, in respect of that sector, unilateral provisions liable to obstruct intra-Community trade, (as would apply in the case of any measure designed to influence the formation of prices).
The second trend which has been followed in a greater number of cases especially, but not exclusively, in all the more recent cases, favours the view that the existence of a common organization of the market does not automatically prevent the States from adopting independent measures concerning the sector of products subject to that organization and capable of affecting trade in those products. The national measures may possibly be found to be incompatible with the common organization when they are inconsistent with the nature or objectives of Community legislation for the sector or, in any case, constitute an obstacle to its proper working.
This trend, which reflects an approach based rather on practice than on precept, is particularly evident in six judgments during the last four years and I shall consider them in chronological order.
In its judgment of 12 July 1973 in Riseria Geddo v Ente Nazionale Risi Case 2/73 [1973] ECR 865 et seq.) ( the Court rejected the argument, contended for by one of the parties, that when a common organization of the market is established for a given product the Member States no longer have any power to subject the purchase of that product to specific pecuniary charges. This argument was based on the more general principle that, in a field subject to a common organization of the market, all national intervention measures would be contrary to Community law since, being unilateral in character, they would interfere with the uniformity of control in the sector.
Mr Advocate-General Trabucchi, whose opinion was substantially adopted by the Court, commented on this point that the common organization did not constitute an automatic repeal of national measures relating to the sector of products subject to the organization but only those which were absolutely incompatible with it. He added that, even within the ambit of a unified market, many variations were destined to last some time longer as a result, for example, of the different fiscal systems and different levels of taxation in the Member States.
Subsequently, the judgment of 30 October 1974 in Off icier van Justitie v van Haaster (Case 190/73 [1974] ECR 1123 et seq.) was concerned with national measures restricting production in a sector subject to a common organization of the market and found them to be illegal, not because they were unilateral intervention measures in a sector subject to a common organization but because of their scope and effect in relation to the particular Community legislation involved.
Similarly, in its judgment of 23 January 1975 in Van der Hulst's Zonen v Produktschap voor Siergewassen (Case 51/74 [1975] ECR 79 et seq.) the Court, in a ruling concerning Regulation No 234/68 of the Council (the one involved in Case 190/73 and in the present case), did not a priori dismiss the possibility that Member States may adopt supplementary measures in a sector subject to a common organization but declared that Member States must refrain from taking any measure which might undermine or create exceptions to it. When a decision is taken as to the compatibility of national legislation with Community legislation this, said the Court, must be done ‘having regard not only to the express provisions of the legislation but also to its aims and objects’ (Ground No 26); it must be established ‘whether the existence of a national intervention mechanism … is of such a nature as to undermine the aims and objects’ of the regulation (Ground No 28).
Accordingly, national intervention measures relating to trade in the same products as those involved in the present proceedings were not considered to be in themselves incompatible with the existence of a common organization of the sector.
There was a more recent confirmation of this view in the two judgments of 26 February 1976 in the Tasca case (Case 65/75 [1967] ECR 291) and in SADAM v Comitato Interministeriale dei Prezzi (Joined Cases 88 to 90/75 [1976] ECR 323) which were concerned with a national system of maximum prices for the sale of sugar. Instead of the general and absolute prohibition, which appeared to emerge from the judgment in the Galli case, of unilateral interventions by the States in sectors for which a common organization of the market had been established, in these more recent decisions, the Court associated the possible incompatibility of a national system of maximum prices, applied to the sale of a product subject to a common organization of the market, with the question whether, on the facts, the national system jeopardized the objectives and the functioning of the common organization. In particular, the Court did not hold that the fixing by the State of a maximum selling price in itself constituted an obstacle to the proper functioning of the price system established under the common organization of the market; it found instead that the incompatibility consisted in the fixing by the State of maximum selling prices at such a low level that it was practically impossible for the producer to sell at the intervention price or for an importer to import except at a loss.
The judgment of 14 July 1976 in the Kramer case (Joined Cases 3, 4 and 6/76 [1976] ECR 1279) was on the same lines. The effect of this ruling was that the existence of a common organization of the market in a particular product does not prevent the States from adopting measures which, although constituting a restriction on the production or sale of those products, are (in so far as the Community itself has not adopted any such provision) justified by the objectives which they seek to achieve.
7.
In such a sensitive and complex sector of the economy and of human activity as agriculture it seems to me essential to avoid all dogmatism and attitudes based on fixed and absolute premises which, on that account, are liable to prove counter-productive in respect of needs deserving of attention which cannot be regarded as wholly covered by Community rules whilst they are still in the course of being elaborated or which at least are too recent to be exhaustive. It must not be forgotten that, long before the EEC was created, public authorities in many States had found it necessary to introduce wide-ranging intervention measures because of the well-known weaknesses and inadequacies of the economic structure for agriculture and because of the specially close connexion in agriculture between economic and social problems.
In the light of these general considerations, I can only endorse the pragmatic tendency of the most recent decisions mentioned above which, moreover, seem to me to come closer to the spirit and the letter of the Treaty and of Community legislation thereunder.
On the basis of these precedents, it is therefore necessary, before answering the national court's question concerning Article 2 (5) of the 1975 Order, to consider whether national measures such as that in the present case are such as to impede directly or indirectly, actually or potentially, (to use the criteria specified in the judgment in the van Haaster case) the full effectiveness of specific express provisions of the Community legislation or the pursuit of its objectives.
It is clear that the national legislation in question, which certainly does not derogate from the Community system of minimum export prices, not only does not limit its scope but, on the contrary, extends its underlying principles to other products of the same kind falling under the common organization of the market established by Regulation (EEC) No 234/68 of the Council.
It is worth noting that the extension of the minimum price was effected by the 1975 Order not by applying to the products in question the price fixed by the Community regulations for similar products but on the basis of an economic formula based on the prohibition on the sale of those products at a lower price than the purchase price paid by the exporter or, when the exporter and the producer are one and the same, on the prohibition of sale at a lower price than the market price for products of the same type, variety and size.
Without passing any actual judgment on this supplementary price system the Commission takes the view that it is illegal, arguing that Member States have absolutely no power to fix minimum export prices. It maintains that, if certain types of bulb were not included amongst those to which Community minium prices are applicable, this was because the fixing of minimum prices was not considered necessary to ensure the efficient working of the common organization of the market; in other words, in the case of those products the Community adopted a policy based on freedom of trade. In the circumstances, the unilateral adoption by a Member State of a system of minimum prices for types of bulbs to which the regulations do not apply is alleged to alter the scope of a Community measure.
There can be no doubt that under the case-law of this Court, the States are prohibited from adopting measures which change the scope of Community regulations but this applies to cases in which national legislation affects the application of Community provisions having a positive content. I have already referred to the judgments in the Bollmann and Krohn cases; reference may also be made to the decision of 11 February 1971 in Norddeutsches Vieh- und Fleischkontor v Hauptzollamt Hamburg-St. Annen (Case 39/70 [1970] ECR 49) which was concerned with national provisons making the entitlement of importers to benefit from a Community system of exemption from levy subject to additional conditions which were not required by Community legislation and were, in fact, incompatible with Community principles. It is this context which gives its precise significance to the declaration of the Court that 'the uniform application of Community provisions allows no recourse to national rules except to the extent necessary to carry out the regulations. In the present case, however, the national rules affect a field in which the Community legislature has made no provision in respect of prices.
According to recent decisions of the Court, considered earlier, if there is any incompatibility between a national measure and Community law it must arise by comparison either with a specific provision or with one of the objects of the regulation in question. It is not enough to refer in general terms to some assumed laissez faire principle according to which, regardless of the characteristics, requirements and objectives of the common organization concerned, anything which comes under a common organization of the market but is not governed by Community legislation cannot be subject to national legislation either. Such a principle would take us back to the inflexible attitude which appears to have found expression in the judgment in the Galli case and which, as we have seen, was corrected in subsequent decisions.
8.
Having regard, therefore, to the conditions laid down in Article 2 (5) of the 1975 Order for the fixing of minimum prices, its content does not appear to conflict with specific Community rules or with the objective operational requirements or aims of the common organization of the market in live trees and other plants, bulbs, roots and the like, cut flowers and ornamental foliage, and it can therefore be regarded as compatible with the Community system.
In my opinion, it is impossible to read into any provision of the Community regulations applicable to the sector in question the conclusion that products for which non minimum prices have been laid down must be excluded from any fixing of such prices by the national authorities.
Nor can I see how Government intervention of the kind at issue here can constitute an obstacle to the pursuit of the objectives of the common organization of the market in question. The fixing of minimum prices for exports of plants and floricultural products was provided for under the basic Regulation, No 234/68 of the Council, for the purpose of stabilizing prices in trade with third countries and thereby to ensure the continuation and development of exports to those countries (Recital No 5). There is no explanation in the Community instruments why Community minimum prices have not been fixed for certain products, even though they come under the common organization of the market provided for by the said regulation. The Commission has not supplied any clear reason for such exclusion. It is possible that this is simply due to their relatively minor importance.
Consideration must further be given to the question whether the national legislation at issue is not based on principles which are unacceptable from the Community standpoint.
The prohibition against sales by the exporter at a price lower than that at which he bought the product seems to be fully in conformity with the aims pursued by Regulation (EEC) No 234/68 ‘of promoting commercial relations on the basis of genuine competition’ (Recital 3) and (Rectial 5, quoted above) of stabilizing prices in trade with third countries.
The other factor in determining the minimum price applicable in the case of an exporter dealing in products cultivated by himself is, as we have seen, based on the market price for that kind of product having regard to type, variety and size. This factor, too, seems to answer to the needs provided for by the first factor: once again it is a question of preventing unfair competition between exporters or procuders and of ensuring some stability of prices in trade with third countries.
It is true that the plaintiff complains that it is forced to sell at a minimum price which is 40 % higher than the purchase price; it maintains that, without any processing of the product on its part, such a high additional percentage ‘for expenses and profits’ is excessive.
I do not think, however, that in the context of proceedings for a preliminary ruling, the Court ought to go into the merits of national legislation in such detail and depth as to be able to carry out all the calculations necessary to establish whether it corresponds to economic realities.
9.
On the basis of the foregoing considerations, I suggest that the Court should answer the questions submitted for a preliminary ruling on 17 June 1976 by the College van Beroep voor het Bedrijfsleven in the following terms:
1.
The direct applicability ascribed by Article 189 of the EEC Treaty to Community regulations and the duties imposed on Member States by Article 5 of the Treaty prevent the adoption by national authorities either of legislative measures which reproduce in whole or in part provisions of such regulations or of legislation which makes it possible to derogate from Community provisions thus reproduced.
2.
Community law, in so far as it does not itself provide for the imposition of penalties for failure to observe it, does not prevent the States from imposing penalties applicable in the event of its infringement, either directly or through national authorities empowered for that purpose.
3.
Regulation (EEC) No 234/68 of the Council and Regulation (EEC) Nos 1767/68 and 369/75 of the Commission do not prevent the fixing, in the sector of products to which Regulation (EEC) No 1767/68 applies, of minimum prices for exports to third countries in respect of products to which the minimum prices laid down by the Commission in Regulation (EEC) No 369/75 are not applicable, and neither does any other provision of Community law.
( 1 ) Translated from the Italian.
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