OPINION OF MR ADVOCATE GENERAL LENZ
delivered on 14 November 1990 ( *1 )
Mr President,
Members of the Court,
A — Facts
1.
These proceedings are a continuation of Case C-87/89. The applicant in the main proceedings was one of the undertakings that brought that action against the Commission, which was decided by the judgment of the Court of 17 May 1990. ( 1 )
2.
Having regard to that judgment and to the Report for the Hearing in the present case, there is no need for me to discuss further the details of the legal background to the case. The present case is again concerned essentially with the effects of Regulation No 989/84, which introduces guarantee thresholds for certain products processed from fruit and vegetables, ( 2 ) on production aid for processed tomato products. The regulation provides that if the guarantee threshold referred to in Article 1 of that Regulation — which corresponds to 4700000 tonnes of fresh tomatoes — is exceeded, the aid is to be reduced for the following marketing year, depending on the extent to which the threshold has been exceeded (Article 2(1)). Article 2(2) provides that the extent to which the threshold has been exceeded is to be calculated on the basis of the average of the quantities produced during the three marketing years preceding the marketing year for which aid is to be fixed.
3.
As the Court is aware, when fixing the production aid for processed tomato products for the 1984/85 to 1987/88 marketing years ( 3 ) the Commission took into account the fact that thresholds had been exceeded and, pursuant to Article 2 of Regulation No 989/84, reduced aid for some or all products.
4.
In the national administrative procedure, a tomato-processing undertaking based in France, the Société industrielle de transformation de produits agricoles (Sitpa, which I shall refer to as ‘the plaintiff’), was of the opinion that the Commission regulations fixing the aid in the abovementioned marketing years were invalid. It therefore requested the Office national interprofessionnel des fruits, des légumes et de l'horticulture (Oniflhor) to pay it the difference between the aid at the full rate which Oniflhor would have granted to Sitpa but for the reduction and the aid actually granted. Oniflhor refused that request on the ground that it could not grant additional aid in excess of the amounts fixed in the regulations.
5.
An action challenging that refusal was brought before the Tribunal administratif (Administrative Court), Dijon, which has now referred the following questions to the Court under Article 177 of the EEC Treaty:
‘Are Council Regulation (EEC) No 989/84 and Commission Regulations (EEC) Nos 1925/84, 2222/85, 2077/86 and 2160/87 valid having regard to Article 190 of the Treaty establishing the European Economic Community and the prohibition of discrimination laid down in that Treaty? If those regulations are unlawful, what are the financial consequences of that unlawfulness for the obligations of the Office national interprofessionnel des fruits, des légumes et de l'horticulture?’
B — Analysis
The first question (the validity of the contested regulations)
I — Regulation No 989/84
1. Inadequate statement of reasons (Article 190 of the EEC Treaty)
6.
The plaintiff in the main proceedings claims that Regulation No 989/84 is invalid on the ground that its statement of reasons is inadequate. The third recital in the preamble to the regulation, ( 4 ) which is the important one in this regard, does not describe the ‘nature of the market’ on which the Council bases its measure, and in addition there is no explanation of why it was decided to reduce the nominal amount of the aid rather than limit the aid to a certain quantity of products.
7.
(a)
Before I can consider that submission in detail, I must first summarize the principles laid down by the Court regarding the scope of the obligation to provide a statement of reasons in relation to regulations. The Court has consistently held ( 5 ) that the statement of reasons required by Article 190 of the EEC Treaty must be appropriate to the nature of the measure in question. It must show clearly and unequivocally the reasoning ( 6 ) of the Community authority which adopted the contested measure so as to inform the persons concerned of the justification for the measure adopted and enable the Court to exercise its powers of review.
8.
However, the Court has refined that principle in two respects in order to prevent excessive demands being made of the obligation to state reasons.
9.
First, the statement of the reasons on which regulations are based is not required to specify the often very numerous and complex matters of fact or of law dealt with in the regulations, provided that the latter fall within the general scheme of the body of measures of which they form part. ( 7 ) Secondly, a statement of reasons must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. ( 8 )
10.
(b)
Having regard to those principles, the Council and the Commission rightly assume that the statement of the reasons on which Regulation No 989/84 is based satisfies the requirements of Article 190 of the EEC Treaty.
11.
(i)
The plaintiff submits, first, that the reference to the ‘nature of the market’ (in the third recital) does not adequately describe the situation which caused the Council to take action.
12.
I cannot agree with that submission. The phrase ‘the nature of the market’ is explained in the legal measures which provide the legal basis for Regulation No 989/84, namely Regulation No 516/77 ( 9 ) (Article 3(3), ( 10 ) the third recital in the preamble to Regulation No 1152/78, ( 11 ) amending it, which introduced the legal basis now contained in Article 2(3) of Regulation No 426/86 ( 12 )) and subsequently Regulation No 426/86 (Article 2(3), fifth recital in the preamble). The second citation in the preamble to Regulation No 989/84 makes express reference to the regulation in force at that time, Regulation No 516/77, and to the relevant amending regulation, Regulation No 988/84. That reference is found again in the first recital in the preamble. The plaintiff has also recognized that relationship; its own arguments are based on the provisions cited above relating to the legal basis.
13.
The third recital in the preamble to Regulation No 1152/78 further states that ‘because of the abundant supply of raw materials and the elasticity of processing capacity ... the granting of aid for the production of processed fruit and vegetables might encourage such production to expand considerably’, which might result in difficulties as regards sales. Accordingly, in all versions the legal basis is linked to the statement that ‘the Community production potential’ for a given product is ‘likely to cause a major imbalance between production and market outlets’.
14.
Thus in so far as the objective of the provisions is to counteract a threatened undesirable trend on the market in question the reference in the third recital to the nature of the market, together with the provisions and recitals concerning the legal basis of the contested regulation, disclose, at least in essential terms, ( 13 ) the Council's assessment of the situation to which it intends to respond. The risk (an imbalance between production and market outlets) and its causes (an abundant supply of raw materials and the elasticity of processing capacity) are made sufficiently clear.
15.
Moreover, in so far as the obligation to provide a statement of reasons is intended mainly for the information of businesses, it must be assumed that the tomato processors had detailed knowledge of the trend that the Council deprecated because they were themselves directly confronted with the movements in the market.
16.
The recitals in the preamble to Regulation No 989/84 also enable the Court of Justice to exercise judicial review. From the abovementioned recitals and legal bases, taken as a whole, the situation that the Council considered to be unsatisfactory can be identified so clearly that the Court could, if necessary, establish whether, for example, the objective of the measure or the means it employs infringe principles of the common agricultural policy, or whether those means are manifestly inappropriate or disproportionate.
17.
(ii)
Besides that aspect of the statement of reasons, to which, for the reasons given above, there can be no objection, the plaintiff also submits that the Council did not adequately explain why it decided to reduce the nominal amount of the aid rather than limit it to part of production (quota system). Here, too, anyone applying the regulation is referred simply to the ‘nature of the market’, although Article 2(3) of Regulation No 426/86 envisages limiting aid to part of production as a possible measure, while in the fifth recital in the preamble to that regulation it is in fact the only measure mentioned.
18.
These arguments also appear to me to be unsound, since the reasons influencing the legislature could be deduced from the context of the provisions, that is to say from their nature and background.
19.
With regard to the first of those two aspects, the Commission and the Council rightly point out that the method chosen, which involves the introduction of a guarantee threshold and the reduction of the nominal amount of the aid, is obviously less burdensome, on average, for the individual producer than a quota system relating to the same quantity. Since the extent to which the threshold has been exceeded is calculated on the basis of the average production during the three marketing years preceding the marketing year in question (Article 2(2) of Regulation No 989/84), the disadvantages which arise when a quota is exceeded affect processors only progressively and with a certain delay, so that they are able to adjust gradually to the changed circumstances. A limitation on the aid which was based on the same quantities as the guarantee threshold and was implemented at the same time would have taken effect sooner and more abruptly and would therefore have proved to be a more drastic measure for the average producer. Such a measure was introduced only later, with Regulation No 1320/85, ( 14 ) the third recital in the preamble to which states it to be the basis for ‘more restrictive measures’.
20.
That factor also militates against the plaintiff's view that the text of Regulation No 426/86 requires a specific statement of reasons. In naming one particularly drastic measure as an example (the only other description of the measures is that they should be ‘appropriate’), Article 2(3) of Regulation No 426/86 ( 15 ) seeks to make clear the scope of the discretionary power. It cannot be inferred from the specific mention of that example that every other measure, in particular one that is less burdensome for the average producer, requires a special statement of reasons. That is ultimately the only possible explanation, in so far as the recitals in the preambles to Regulations No 426/86 and No 1152/78 mention only the limitation of aid to part of the production. In the absence of other indications it must be assumed that both texts (the provision and the preamble) are to be understood in the same way in this regard. Since the limitation of aid to a certain quantity obviously constitutes a particularly drastic measure, the legislature could, in my view, leave the text of the corresponding recital in the preamble unchanged when it made provision in Regulation No 988/84 ( 16 ) for the further possibility of adopting other ‘appropriate’ measures.
21.
However, the plaintiff considers — as it explained in more detail in the oral procedure — that before the adoption of the contested Regulation No 989/84, processors could and ought reasonably to have expected the Council's only measure against surplus production to be a limitation of aid to a certain quantity. The Council should therefore have provided a specific statement of reasons for the decision in the regulation to adopt a different measure. That view is based essentially on the fact that the abovementioned broadening of the legal basis to other kinds of measure dates from the same day as Regulation No 989/84.
22.
I cannot agree with that view. Firstly, I consider it sufficient, even under those circumstances, for the legislature — as in the present case — to allow the nature of the measure to speak for itself. Secondly, in my opinion it was already clear when Regulation No 1206/82 ( 17 ) was adopted that, should measures be required, the Council would not necessarily adopt a quota system. Regulation No 1206/82 introduced, with effect from 1 July 1982, a guarantee threshold for each marketing year for tomato concentrate and peeled tomatoes, corresponding to the guarantee thresholds in Regulation No 989/84 (Article 1(1)). If the thresholds in Regulation No 1206/82 were exceeded, the Council, on a proposal from the Commission, was to take the ‘appropriate measures’. There is no mention here of any quota system. The preamble to that regulation takes the same line. It is true that it is stated, first, that:
‘Whereas Article 3a of Regulation (EEC) No 516/77 introduced a system of production aid for certain products processed from fruit and vegetables; whereas, in the event of the situation provided for in paragraph 5 of the said Article arising, it is possible to limit the grant of production aid to a quantity ... ’.
23.
However, the next recital, which gives the actual reason for the regulation, avoids specifying the nature of the measure, which the Council reserves to itself:
‘Whereas there is a risk that this situation may arise for tomato concentrate and whole peeled tomatoes; whereas, at this stage, a guarantee threshold should be fixed to cover the said products; whereas provision should be made for taking appropriate measures should the said threshold be exceeded’. ( 18 )
24.
In my view, that clearly left open the possibility of other — perhaps less drastic — measures, even if their legal basis was created only later.
25.
From all the foregoing, it follows that the reasons on which the legislature based itself were sufficiently clear from the context of the provisions — their nature and background — to ensure that the persons concerned were provided with appropriate information and that judicial review was possible.
26.
Those considerations also reveal that the Council had concluded that the surplus production had still not reached such proportions that it was necessary to consider a quota system, particularly in view of the need to protect processors who were not — or only marginally — involved in such an increase. Whether that assessment is correct is a question that concerns not the (formal) obligation to provide a statement of reasons, but the substantive validity of the contested regulation.
27.
Accordingly, the submission that the statement of reasons is inadequate must be rejected.
2. The submission that Regulation No 989/84 infringes the prohibition of discrimination
28.
It is not entirely clear whether Regulation No 989/84 must also — in addition to the individual regulations for the 1984/85 to 1987/88 marketing years — be considered from the point of view of the prohibition of discrimination (the second subparagraph of Article 40(3) of the EEC Treaty). While it is true that the plaintiff did not claim in the main proceedings that the regulation infringed the prohibition of discrimination, nevertheless the order making the reference did not attribute the submissions individually to the contested regulations. Moreover, in its statement submitted on 23 April 1990 and in the oral procedure the plaintiff argued that Regulation No 989/84 was not compatible with the second subparagraph of Article 40(3). Accordingly, I should also like to deal with this point.
29.
As the Court is aware, the prohibition of discrimination laid down in the abovementioned provision is merely a specific enunciation of the general principle of equal treatment, which precludes comparable situations from being treated in a different manner unless the difference in treatment is objectively justified. ( 19 ) In accordance with the prohibition of discrimination different situations may not, moreover, be treated in the same way unless such treatment is objectively justified. ( 20 )
30.
As the Council rightly observed, with regard at least to the first aspect of the prohibition of discrimination, in accordance with which comparable situations must be treated in the same manner, no fault can be found with Regulation No 989/84; such a criticism could only be made if the regulation differentiated between processors, which is precisely what it does not do.
31.
However, the plaintiff considers that the regulation is incompatible with the second subparagraph of Article 40(3) of the EEC Treaty because it adversely affects economic operators regardless of their actual responsibility for the surplus production. That submission amounts to an accusation that different situations were treated in the same way; even if the regulation did not expressly provide for such treatment, that was the result in practice. That argument cannot easily be brushed aside.
32.
The question is thus whether, despite the differences in the situations, the equal treatment is justified; if it is justified, then the failure to differentiate is not arbitrary and therefore does not infringe the prohibition of discrimination. ( 21 ) Justification precluding arbitrariness can also result from the general objectives of the common agricultural policy. ( 22 ) As the Community legislature has a broad discretion in the manner in which it achieves those objectives, ( 23 ) its action can be said to be arbitrary only if it is no longer in any way possible to identify objectively plausible reasons for the method chosen.
33.
It follows from those principles that the regulation does not infringe the prohibition of discrimination. As I have already mentioned, the purpose of the measure was to exercise moderate pressure on the processing volume at as early a stage as possible in order thereby to eliminate or prevent an imbalance on the market for processed tomato products. Such timely and moderate intervention is directed — albeit not as markedly as a quota system — towards the objective of the (long-term) stabilization of markets (Article 39(1)(c) of the EEC Treaty). It is also consistent — to a greater extent than a more drastic measure — with the endeavour to ensure a fair standard of living for the agricultural community (Article 39(1)(b) of the EEC Treaty). Moreover, it also takes account of the concern expressed in Article 39(2)(b) of the EEC Treaty that the appropriate adjustments should be effected by degrees.
34.
Accordingly, if the legislature, in balancing the various interests, ( 24 ) has taken greater account of certain objectives of agricultural policy than was possible in another measure, and acted in an attempt to counteract an undesirable trend at a relatively early stage, ( 25 ) the resulting solution, which affects all producers in the Community in the same way, cannot be regarded as arbitrary.
35.
Whether the Council correctly assessed the economic situation when it chose the means used in the present case, is of course another question. Here too the Community legislature has a very broad discretion. In reviewing the legality of the exercise of such discretion the Court must confine itself to examining whether the measure in question contains a manifest error of assessment. ( 26 ) That is particularly true where the Community legislature must, when adopting provisions, assess their likely future effects and those effects cannot be accurately predicted. ( 27 )
37.
It is true that there was once more a considerable increase in the production of the processed products at issue in the 1984/85 marketing year, the first marketing year in which Regulation No 989/84 of 31 March 1984 was applicable. The producers tried, by increasing production, to retain and increase their share of the aid. However, the measure can be said to contain a manifest error of assessment on that account only under two conditions.
38.
The first condition is that it should be quite clear that if the Council had — at that early stage — clearly foreseen the trend in question, it would necessarily have introduced rules based on individual quotas in order to prevent discrimination between processors. That raises a difficult question, which in my opinion can be answered only with greater knowledge of the effects of the production in the 1984/85 marketing year on the individual producers. Those effects, in turn, can be determined only by means of a comprehensive comparison of data, the basic elements of which are not available to us in the present case. As a general rule, such a restriction of a discretionary power is acceptable only under extraordinary circumstances.
39.
However, I need not give further consideration to that point, because the second condition for such a criticism is that the Council would necessarily have assumed that its measure could not halt the trend. Such a finding is, in my opinion, not justified in this case. It is clear that the fact that the guarantee threshold had been exceeded would work to the disadvantage of processors in the medium term. Processors could avoid that disadvantage by continuously increasing production only for a limited time, because that increase would
36.
In my opinion, there is no such manifest error of assessment in the present case. in turn inevitably lead to further reductions. Thus, from the point of view of the individual processor, the short-term advantages of overproduction were set against medium-term disadvantages, which could affect the harmonious development of the individual undertaking.
40.
Moreover, as I have already mentioned, the measure at issue did not exhaust the Council's discretionary power. The processors should have expected the Council to adopt more drastic measures if the guarantee threshold was exceeded, as indeed it did.
41.
The Court must resist any temptation to appraise Council measures on the basis of facts which came to light subsequently and which the Council was not aware of when it adopted those measures. In other words, the Court must avoid appraising the measures adopted in the year 1984 from the perspective of 1990 rather than that of 1984.
42.
Accordingly, there is, in my opinion, no justification for accepting that there was a manifest error of assessment on the part of the Council.
43.
Therefore, and for the reasons stated above, the submission that Regulation No 989/84 infringes the prohibition of discrimination must be rejected.
44.
None of the submissions against the regulation are well founded and the questions referred for a preliminary ruling should therefore be answered accordingly.
II — The regulations fixing the amount of aid for the 1984/85 to 1987/88 marketing years
1. Inadequate statement of reasons
45.
The plaintiff takes the view that the statements of the reasons for the abovementioned Commission regulations do not fulfil the requirements of Article 190 of the EEC Treaty in a number of respects. As some parts of this submission concern all four regulations while other parts concern only some of them, I think it best to deal with the individual parts of the submission separately.
46.
(a)
It is submitted that none of the preambles to the four regulations say anything about the extent to which the guarantee threshold was exceeded and how the aid was calculated in detail.
47.
Let me begin with this latter aspect, as the more general one.
48.
The characteristic feature of the regulations at issue in the present case is that their provisions consist essentially of a set of figures together with some information which is necessary for the use of those figures in the situation to which the regulation applies. Contrary to what the plaintiff obviously believes, in such cases the recitals in the preamble need not explain how the individual figures were arrived at. As I have already mentioned in my observations on Regulation No 989/84, the Court has consistently held ( 28 ) that the ‘often very numerous and complex matters of fact or of law’ dealt with in regulations need not be set out, provided that the latter fall within the general scheme of the body of measures of which they form part.
49.
That limitation is justified in precisely the present case. A requirement for detailed calculations showing how the result was arrived at would frequently, depending on the scope of the regulation in question, exceed what was actually possible with regard to publication by the legislature. However, the Court has repeatedly held (in relation to decisions) that the demands made of the statement of reasons must be adapted to the practical realities and the time and technical facilities available. ( 29 ) In addition, the statement of reasons would contain numerous sources of error, which is not, after all, in the interest of the person applying the directive or of proper judicial review.
50.
It should be pointed out, incidentally, that the Commission has filled this information gap — albeit incompletely, owing to an absence of mandatory legal provisions — by setting up the Advisory Committee on Fresh and Processed Fruit and Vegetables, ( 30 ) to which, among others, representatives of the processing industry belong.
51.
In the present case the Commission has set out, in the second and third recitals in the preambles to Regulation No 1925/84 and in the third and fourth recitals in the preambles to Regulations Nos 2222/85, 2077/86 and 2160/87, the principal legal bases for its calculation and named those aspects which it considered particularly important. The reasons for the measure adopted are thereby made clear and the Court is able to exercise its power of review. In this regard, there is, in my view, no indication that Article 190 of the EEC Treaty was infringed.
52.
The same considerations essentially apply in respect of the plaintiff's submission that on each occasion the Commission should have stated the amount by which the guarantee threshold had been exceeded. Certainly there would have been no great expense incurred in providing that information and one might therefore have expected it to be provided. However, that information alone, without an explanation of the methods of calculation used, could not have contributed greatly to an understanding of the final amount arrived at. In this regard too Article 190 of the EEC Treaty has not been infringed.
53.
(b)
The plaintiff then criticizes the text of the third recital in the preamble to Regulation No 1925/84 and the fourth recital in the preambles to Regulations Nos 2222/85, 2077/86 and 2160/87 on the ground that there were insufficient data for the years taken into consideration in determining whether the guarantee thresholds had been exceeded. The regulations for the 1984/85 and 1985/86 marketing years ( 31 ) stated that production in the preceding marketing year had exceeded the guarantee threshold. However, under Article 2(2) of Regulation No 989/84, also cited in those regulations, it is the average of the quantities produced during the three marketing years preceding the marketing year in question that determines the amount by which the
threshold has been exceeded. In that regard the statement of reasons is ambiguous and contradictory.
54.
Although that contradiction is no longer present in the regulations for the 1986/87 ( 32 ) and 1987/88 ( 33 ) marketing years, there is still no express indication of which marketing years were taken into consideration.
55.
Those criticisms have induced me to compare all the — equally authoritative — language versions of the contested Commission regulations. That comparison shows that my analysis must be based on facts rather different from those which underlie the criticisms. It would be excessive to quote the wording of each of the language versions. Starting with the French text, on which the plaintiff bases itself, the picture is, in outline, as follows:
56.
In the French text of the regulations for the 1984/85 (third recital in the preamble) and 1985/86 marketing years — leaving aside the reference to Article 2(2) of Regulation No 989/84 — the extent to which the guarantee threshold has been exceeded is determined having regard to the production of the preceding marketing year (‘... production communautaire au cours de la campagne 1983/84’ and ‘1984/85’) The German, Danish and Greek language versions correspond to the French. However, according to the English and Dutch versions, the production ‘calculated in accordance with Article 2(2) of Regulation No 989/84’ exceeds the threshold for the 1983/84 (or 1984/85) marketing year. Thus, reference is clearly made only to Article 2(2) of Regulation No 989/84 for the production to be taken into account. The impression cannot arise that the extent to which the threshold was exceeded was determined only on the basis of the stated year. Because of the sentence structure chosen, the Italian version is not quite so unambiguous, but is still sufficiently precise to exclude inconsistency with Article 2(2) of Regulation No 989/84. ( 34 )
57.
In the regulations for the 1986/87 and 1987/88 marketing years (in each case the fourth recital in the preamble to the regulation), the French wording ( 35 ) has the same meaning as the abovementioned wording of the English and Dutch versions, which, for their part, have not changed. The Spanish and Portuguese versions agree with that meaning and the German and Italian versions are formulated very similarly. Only the Danish and Greek language versions retain the wording criticized by the plaintiff.
58.
Consequently, two language versions (Danish and Greek) use the wording criticized by the plaintiff in all four of the Commission regulations at issue, and there are two other language versions (German and French) which use it in the first two marketing years. It must be conceded to the plaintiff straight away that that wording does not correspond to Article 2(2) of Regulation No 989/84 — mentioned in the same breath — which refers to the three marketing years preceding the marketing year in question and not just to the previous marketing year. The Commission cannot really be said to have been particularly thorough, having regard also to the lack of agreement between the language versions.
59.
In spite of that reservation, I would suggest that the Court should reject the conclusion that there has been an infringement of Article 190 of the EEC Treaty. It is true that the reasons on which a legal measure is based must be given ‘clearly and unambiguously’. However, as with the provisions themselves, the person applying a measure can be expected to make a certain effort to interpret the reasons if the meaning of the text is not immediately clear. If it is possible to resolve contradictions by means of such interpretation, in my view Article 190 of the EEC Treaty has not been infringed. In this regard two considerations appear to me to be important.
60.
First of all, I do not consider the point at issue to be an essential part of the statement of reasons in the way, for example, that an explicit reference to the marketing years taken into account would be a condition of a proper statement of reasons. The relevant recital could just as well have simply stated — which, moreover, it does — that Regulation No 989/84 was applied and that that affected the amount of the aid since the threshold was found to have been exceeded. Such a statement informs the persons concerned of the application of an essential element of the calculation which the relevant provisions stipulate must be taken into account. It confirms that the Commission has not disregarded the very important reduction mechanism. The further consequences arising from the application of Regulation No 989/84 fall, to use the words of the judgment in Eridania, ( 36 ) within the general scheme of the body of measures of which they form part. The Court has also held that when such additional statements which are not directly required under Article 190 of the EEC Treaty are incorrect, regard must be had to whether the remainder of the statement of reasons fulfils the requirements. ( 37 ) As far as the regulations at issue are concerned, that appears to be the case.
61.
That principle is not, of course, directly applicable to the present case, because the reference to the preceding marketing year appears to call into question the reference to the provision concerning the method of calculation. Since the former reference is not essential, however, the latter takes precedence. The Commission did in fact intend to apply Regulation No 989/84 correctly, as its inclusion in the preamble shows. That order of precedence must be taken into account in interpreting the provision. It supports the view that the recital should be interpreted only in a way which is consistent with the reference to the provision cited. That also corresponds to the abovementioned principle laid down in the Court's case-law, according to which a statement of reasons is to be assessed having regard to its context and to the applicable legal provisions.
62.
As the Commission correctly observes, that also makes it possible to attach the proper significance to the reference to the preceding marketing year. In the light of Article 2(2) of Regulation No 989/84 it is quite clear that that is the year in which the threshold was found to have been exceeded and that the wording bearing the contrary meaning is obviously no more than a drafting error.
63.
Secondly, in all the marketing years there are three — in the last two marketing years, seven — language versions which do not contain the defect complained of. They include, in all the marketing years, the version in the language of the State with the largest production — Italy — and, in the last two marketing years, also the versions in the languages of the other producer States, with the exception of Greece. In those versions, the text of the recital in the preamble is entirely consistent with the reference to Regulation No 989/84. There is no doubt, in particular, that the mention of the preceding marketing year refers to the time when the relevant threshold was found to have been exceeded. One of the rules of construction in Community law is that when there are differences between language versions, methodological and teleological considerations lead to one version or the other being preferred. That means that the existence of language versions which are consistent with the meaning and objective of the body of measures is a further argument in favour of interpreting the text of the regulation in that light. According to those principles, the text at issue should be understood in the sense given to it by the correctly formulated language versions.
64.
In all my observations I have assumed that the Commission has, as it claims, correctly applied Regulation No 989/84. The plaintiff does not contest that; it simply considers that that is not sufficiently clear from the recitals in question. However, as I have shown, that submission is not sound.
65.
(c)
The plaintiff considers that Article 190 of the EEC Treaty has also been infringed in so far as the fourth recital in the preamble to Regulation No 2160/87 contains, in its submission, a factual error inasmuch as it states that the Commission found that thresholds had been exceeded for all products. That was not true in respect of whole peeled tomatoes, with the result that the aid was not reduced. That is not disputed by the Commission, so I can base my analysis on those facts.
66.
This alleged defect differs from the one just dealt with in so far as the aspect of the text at issue here cannot in any way be seen as contradictory. This submission is concerned instead with a detail that is factually incorrect. According to the abovementioned case-law ( 38 ) the question now is whether that error affects an essential part of the statement of reasons or whether the remainder of the statement, considered on its own, fulfils the requirements of Article 190 of the EEC Treaty.
67.
In my opinion, this last question can be answered in the affirmative. The results of the calculation for the individual products in the context of Regulation No 989/84 are the direct consequence of the application of that regulation. Since those results fall within the general scheme of the body of measures of which they form part, they need not be given. That result is also consistent with the view expressed above that it is unreasonable to require the individual calculations to be set out in the preambles.
68.
The submission that the statement of reasons is inadequate must therefore be rejected in that regard as well, and therefore in its entirety.
2. The submission that the regulations are based on a manifest error of assessment and thus infringe the prohibition of discrimination
69.
This submission is based on the plaintiff's claim that the Italian and Greek processors submitted inflated processing data. The Commission should not, it is argued, have concluded that the guarantee threshold had been exceeded on the basis of the declarations made by those States concerning the quantities processed.
70.
This submission has already been considered in detail in Case C-87/89. In that judgment, to which I referred at the beginning of my opinion, the Court held that the Commission did not act unlawfully since it had available only isolated and unreliable information concerning the alleged frauds; the Commission's own investigations failed to reveal frauds of the kind alleged.
71.
There are no fresh facts in the present case which could change that assessment. Consequently this submission must also be rejected.
III — Result of consideration of the first question
72.
As is evident from my observations on individual points, consideration of this question has disclosed no factor of such a kind as to affect the validity of Council Regulation No 989/84 or of Commission Regulations Nos 1925/84, 2222/85, 2077/86 and 2160/87.
The second question
73.
Having regard to the reply to the first question, there is no need to consider the second question.
C — Conclusion
74.
Consideration of the questions referred for a preliminary ruling has not disclosed any factor of such a kind as to affect the validity of Council Regulation No 989/84 or of Commission Regulations Nos 1925/84, 2222/85, 2077/86 and 2160/87.
( *1 ) Original language: German.
( 1 ) Judgment in Case C-87/89 Sonito v Commission [1990] ECR I-1981
( 2 ) Council Regulation (EEC) No 989/84 of 31 March 1984, OJ 1984 L 103, p. 19
( 3 ) For the 1984/85 marketing year by Regulation No 1925/84 of 5 July 1984 (OJ 1984 L 179, p. 15); for the 1985/86 marketing year by Regulation No 2222/85 of 31 July 1985 (OJ 1985 L 205, p. 16); for the 1986/87 marketing year by Regulation No 2077/86 of 30 June 1986 (OJ 1986 L 179, p. 11); for the 1987/88 marketing year by Regulation No 2160/87 of 22 July 1987 (OJ 1987 L 202, p. 32).
( 4 ) The third recital is worded as follows:
‘Whereas, given the nature of the market in processed tomato products, on the one hand, and of dried grapes, on the other hand, a reduction, as the case may be, of the aid or in the minimum price to be paid to the producer, during the following marketing year, depending on the extent to which the thresholds have been exceeded, is the most appropriate measure’.
( 5 ) Judgments in Case 250/84 Eridania v Casta conguaglio zucchero [1986] ECR 117, paragraph 37; Case 55/87 Moksel v Bundesanstalt für landwirtschaftliche Marktordnung [1988] ECR 3845, paragraph 23; Case 167/88 AGPB v OMIC [1989] ECR 1653, paragraph 34; Case C-156/87 Gestetner v Commission and Council [1990] ECR I-781, paragraph 69; Case C-27/89 Scarpe v OW/C [1990] ECR I-1701, paragraph 27; Joined Cases C-304/86 and C-185/87 Enital v Commission and Council [1990] ECR I-2939, paragraph 35.
( 6 ) Other formulations have used ‘reasons’ or ‘the facts and law’ here: judgments in Case 158/80 Rewe v Hauptzollatnt Kiel [1981] ECR 1805, paragraph 25; Case 45/86 Commission v Council 1987] ECR 1493, paragraph 5.
( 7 ) Judgments in Case 250/84, cited above, paragraph 38; Case 55/87, cited above, paragraph 23 ; Case 167/88, cited above, paragraph 34; Case 27/89, cited above, paragraph 27.
( 8 ) Judgments in Case 92/77 An Bord Bainne v Minister for Agriculture [1978] ECR 497, paragraphs 36 and 37; Case 125/77 Koninklijke Scholten-Honig v Hoofdproduktschap voor Akkerbouwprodukten [1978] ECR 1991, paragraph 19; similarly, in the case-law in relation to decisions: įudgmcnts in Case 185/83 University of Groningen v Inspecteur der Invoerrechten en Accijnzen, Groningen [1984] ECR 3623, paragraph 38; Case C-213/87 Gemeente Amsterdam and VIA v Commission [1990] ECR I-221, paragraph 27; Case C-350/88 Delacrei Commission [1990] ECR I-395, paragraph 16
( 9 ) Council Regulation (EEC) No 516/77 of 14 March 1977 on the common organization of the market in products processed from fruit and vegetables, OJ 1977, L 73, p. 1.
( 10 ) As amended by Regulation No 988/84, OJ 1984, L 103, p 11.
( 11 ) OJ 1978, L 144, p. 1.
( 12 ) Council Regulation (EEC) No 426/86 of 24 February 1986 on the common organization of the market in products processed from fruit and vegetables, OJ 1986, L 49, p. 1.
( 13 ) See the judgment in Case 250/84, cited above, paragraph 38.
( 14 ) OJ 1985, L 137, p. 41.
( 15 ) As does Article 3(3) of Regulation No 516/77 as amended by Regulation No 988/84.
( 16 ) Council Regulation (EEC) No 988/84 of 31 March 1984 amending Regulation (EEC) No 516/77 on the common organization of the market in products processed from fruit and vegetables and Regulation (EEC) No 950/68 on the Common Customs Tariff, OJ 1984 L 103, p. 11.
( 17 ) Council Regulation (EEC) No 1206/82 of 18 May 1982 fixing a guarantee threshold for tomato concentrate and whole peeled tomatoes, OJ 1982 L 140, p 50.
( 18 ) My emphasis.
( 19 ) Principle laid down in the judgment in Joined Cases 117/76 and 16/77 Ruckdeschel v Hauptzollamt Hamburg-St. Annen [1977] ECR 1753, paragraph 15; most recently confirmed in the judgment in Joined Cases C-267/88 to C-285/88 Wuidart [1990] ECR I-467, paragraph 13
( 20 ) Judgments in Case 13/63 Italy v Commission [1963] ECR 165, at p. 178; Case 8/82 Wagner v Bundesanstalt fur landwirtschaftliche Marktordnung [1983] ECR 371; Cast 106/83 Sermide v Cassa conguaglio zucchero [1984] ECR 4209, paragraph 28.
( 21 ) Judgments in Case 139/77 Denkavit v Finanzamt Warendorf [1978] ECR 1317, paragraph 15 infine. Case 106/81 Kind v EEC[1982) ECR 2885, paragraphs 22 and 24.
( 22 ) Sec the judgments in Kind, cited above (in the previous footnote), and in Joined Cases 9/71 and 11/71 Compagnie d'approvisionnement v Commission [1972] ECR 391, paragraph 42.
( 23 ) Judgments in Case 138/78 Stölting v Hauptzollamt Hamburg-Jonas [1979] ECR 713, paragraph 7, Case 179/84 Bozzetti v Invernizz i [1985] ECR 2301, paragraph 11; Joined Cases C-267/88 to C-285/88, cited above (footnote 19), paragraph 14.
( 24 ) See for example the judgment in Case 59/83 Biovilac v ££C[1984]ECR 4057, paragraph 16.
( 25 ) In other words, at a time when the aspect of the different degree of responsibility for the surplus production does not yet play so great a role.
( 26 ) Judgment in Case 167/88 Association générale des producteurs de blé et autres céréales v O/V/C [1989] ECR 1653, paragraph 29, referring to the judgment in Case 98/78 Räcke v Hauptzollamt Mainz [1979] ECR 69, paragraph 5.
( 27 ) See the judgment in Joined Cases C-267/88 to C-285/88, cited above (in footnote 19), paragraph 14.
( 28 ) See footnote 7.
( 29 ) Judgments in Case 16/65 Schwarze v Einfuhr- und Vorratsslelle jur Futtermittel [1965] ECR 877, at p. 888; Case C-350/88, cited above (footnote 8), paragraph 16.
( 30 ) See Commission Decision of 7 January 1987, OJ 1987 L 45, p. 28.
( 31 ) Regulation No 1925/84, third recital in the preamble; Regulation No 2222/85, fourth recital in the preamble.
( 32 ) Regulation No 2077/86, fourth recital in the preamble.
( 33 ) Regulation No 2160/87, fourth recital in the preamble.
( 34 ) ‘... la produzione de la communità per la campagna ... , calcolata supera il limite ... ’ (my emphasis)
( 35 ) ‘... la production communautaire, calculé conformément ... dépasse le seuil fixé pour la campagne 1985/86’ and ‘1986/87’ respectively.
( 36 ) See footnote 5.
( 37 ) See the judgment in Case 119/86 Spain v Council and Commission [1987] ECR 4121, paragraph 48 et seq. and 51.
( 38 ) See the previous footnote.
Full & Egal Universal Law Academy