C-26/72

JUDGMENT OF 26.10.1972 — CASE 26/72

without prejudice to the observance of 4. The common organizations of the the conditions laid down by Com­ agricultural markets can only carry munity provisions with regard to the out their functions if the provisions time and method of the control. which establish them are applied uniformly throughout all the Member States.

In Case 26/72

Reference to the Court under Article 177 of the EEC Treaty by the College van Beroep voor het Bedrijfsleven for a preliminary ruling in the action pending before that court between

NV VEREENIGDE OLIEFABRIEKEN , formerly H. SPITS & ZN . en H. de Haan & ZN., having its registered office in Rotterdam,

and

OLIEFABRIEKEN v PRODUKTSCHAP VOOR MARGARINE

JUDGMENT

Issues of fact and of law

JUDGMENT OF 26.10.1972 — CASE 26/72

determined according to the method known Vereenigde Oliefabrieken dated 21 and 29 as the diethyl ether method or the acetone December 1970 and 6 January 1971, the method (Source: ISO/TC 34/SC 6/WG Produktschap refused to pay the refund in 3/N 73). question on the ground that the 'Bömer' On 18 June 1970 the undertaking Handels­ value was 72.5 and that consequently the maatschappij Stern en Spierenburg NV, goods did not satisfy the condition laid of Rotterdam, the subsidiary of NV down in Annex I to Regulation No 2403/69, Vereenigde Oliefabrieken, declared for which requires a' minimum 'Bömer' value export a quantity 100 698 kg of refined of 73. lard packed in 6 000 tins. The matter was brought before the College The following was stated on the export van Beroep voor het Bedrijfsleven by an form: 'Refined lard — refund of the agri­ application lodged on 1 March 1971.

OLIEFABRIEKEN v PRODUKTSCHAP VOOR MARGARINE

quantity? 1 — The time when the samples must be The order of the College van Beroep voor taken (Question 1) het Bedrijfsleven was received at the Court Registry on 10 May 1972. NV Vereenigde Oliefabrieken, the plaintiff in accordance with Article 10 of the Proto in the main action, states that, although col on the Statute of the Court of Justice the objective of Article 1(3) of Regulation cf the EEC written observations were No 1041/67 is to determine the nature and submitted on 14 July 1972 by the plaintiff characteristics of the products exported in the main action, on 25 July by the on the day of exportation, that is to say, Government of the Kingdom of the the day on which the customs export Netherlands and on 27 July by the Com formalities are completed, this by no

were heard on 28 September 1972. consignment as a whole and when the The Advocate-General delivered his opin result of the analysis was obtained on the ion at the hearing on 5 October 1972. basis of such sample this fact establishes In the procedure before the court the the 'Bömer' value applicable to the said plaintiff in the main action was represented consignment on the day of exportation. by Ina H. Wildeboer, Advocate, of The Netherlands Government observes that Rotterdam, the Government of the King

It is thus for the mitted to the Court may be summarized as Member States to adopt measures in this follows: connexion.

If, in accordance with national provisions, In the present state of affairs it is thus for samples must be taken, it is of little im the Member States to ensure, with regard portance that the sample was taken and to the various products to be exported, the analysed before or after the day of ex observation of the conditions prescribed portation; the results of test must always for the granting of refunds and to fix be related to the operative day for deter the operative time for taking the samples. mining the characteristics of the product. With regard to questions of fact it is for The decisive characteristics are thus those the administrations or the courts of the which the product must reasonably be Member States to decide in each case held to have displayed on the day when the whether the method employed in taking customs authority accepted the document samples from a specific consignment of by which the applicant stated his intention products is capable of ensuring compliance to export the products in question and with those conditions. qualify for a refund.

by sampling. Those technical instructions accepts the export declaration, every guarantee the uniformity of methods of sample must necessarily be taken in control in all the Member States. The pro such a way that it is possible to establish vision whereby the control shall be carried with certainty those characteristics at out by sampling merely imposes a minimum the operative time. condition and in no way precludes a more This condition is fulfilled first by samples thorough control; no information is given taken at the time when the customs regarding the time when such control formalities are completed; it is not must be carried out. always possible to determine precisely With regard to products the characteristics the characteristics of the goods ex of which are capable of changing with the ported from samples taken some time passage of time, for example perishable before that day.

The Commission considers that Com and which by their nature and charac munity law does not expressly fix the time teristics qualify for a refund, it is of when control by sampling must be carried decisive importance that the goods out and that the document ISO/TC 34/SC analysed should conform to the goods 6/WG 3/N 73 to which it refers does not exported. Each sample should thus be specify the procedure to be followed for taken in such a way that there is no taking the samples. doubt as to the real identity of the goods

production of foodstuffs or by the Since at the time the methods of analysis producer himself really comes from a for determining the 'Bömer' value had not specific consignment of products ex­ yet been adopted and published by the IOS ported at a particular time. in the form of official recommendations, the Commission had to be satisfied with a reference to the document in which the 2. The method of analysis (Question 2) competent commission of the IOS provides a definitive description of those methods. In NV Vereenigde Oliefabrieken emphasizes order to avoid any subsequent amendment that, although Annex II to Regulation No of those methods which might be effected 2403/69 prescribes exclusively the ether by the IOS becoming automatically ap­ method or the acetone method for deter­ plicable as a provision of Community law, mining the 'Bömer' value, it only men­ a footnote to Annex I to Regulation No tions as a mere source, but not as the only 2403/69 contains an express reservation to one admissible, the ISO/TC 34/SC 6/WG the effect that the methods of analysis to be 3/N 73 method. It is clear from the wording applied are restricted to 'those operative on of the provision specifying the means for the date of the entry into force of this determining the other characteristics listed Regulation'. in Annex II that this method is not the Article 2(l)(b) of Regulation No 2403/69 only one which may be employed. This is leaves no room for doubt that a product confirmed by the fact that at present the may only be taken into consideration for ISO/TC 34/SC 6/WG 3/N 73 method has the granting of a refund on the sole basis not yet been fixed officially but still remains of the methods prescribed and that the at the stage of a draft recommendation. results obtained by any other method are The Netherlands Government considers invalid. It is of little material importance that the ISO/TC 34/SC 6/WG 3/N 73 that reference is made to a document of the method is the only one admitted by the IOS rather than to the methods published Community provision for determining the in the form of recommendations: the 'Bömer' value of refined lard. methods prescribed are provided in the The Commission observes that a provision document cited with as detailed and defini­ laying down conditions regarding uniform tive a description as they would receive in a quality which products must fulfil in recommendation. order to qualify for a refund would become largely meaningless if the Member States 3. The extent of the sample (Question 3) failed to check in the same way the ob­ servation of those conditions and if it NV Vereenigde Oliefabrieken states that the were uncertain whether the analysis of IOS method—which is still in draft—must the same goods would give the same results contain in particular provisions on the at the same time throughout the Com­ number of samples to be taken and on munity. Since the 'Bömer' value is difficult the method of taking them; the text of the to calculate and the results depend to a draft recommendation in its present state large extent on the method employed, thus cannot be used in this case. Annex II to Regulation No 2403/69 pre­ The control must be effected by sampling. scribes that it shall be determined by There are two possible interpretations:

were carried out this could not give rise to On the other hand, if the consignment the unjustified granting of refunds. Like­ intended for export is composed exclusively wise, the question whether a refund was of products which are obtained in the properly refused is purely factual. course of one and the same manufacturing Provision of control by sampling cannot process and display uniform characteristics be considered as preventing the person and, moreover, if the goods in question, concerned from proving, if necessary, by like lard, by their nature neither mix nor means of evidence to the contrary, that a dissociate after manufacture and if, because consignment which he has put forward for the goods are packed in hermetic con­ export fulfils the requisite conditions. tainers, they cannot alter appreciably as to Likewise, the absence of any other provi­ their rancidity and other chemical proper­ sion relating to the extent of the control to ties, it may be considered that analysis of a be exercised and the consequences relating few tins only is sufficient. to it show that it is not intended that the The question whether the samples taken Community provision should be sub­ may be considered as sufficiently re­ stituted for the complex body of national presentative to provide a complete guaran­ provisions on controls and tests. tee as to the contents of the whole con­ The Commission considers that, since the signment intended for export in a specific products for which the refund is requested case is a question of fact and of the par­ must as a whole fulfil the prescribed con­ ticular application of the law, which is a ditions as to quality, each sampling must of matter respectively for the competent cus­ necessity be carried out in such a way that toms authority or the national courts. the analysis of the samples taken provides reliable evidence as to the presence of the required characteristics in the entire con- 4. The nature of the sample to be analysed signment exported. (Question 4) Furthermore, account must be taken of the fact that the tins of lard from which the NV Vereenigde Oliefabrieken considers samples were taken must be opened and that, if the sample itself must be taken by

a sample obtained through numerous If the products were sent in bulk in large random samplings. In any case, there can containers, it might be proper to verify be no objection to a better means of taking the state of the consignment as a whole by a sample than merely selecting two tins analysing an average sample composed of from a consignment of 6 000. various separate samples taken at various Nevertheless, the control should only be points in the same container, particularly if carried out from time to time. The term it is not a priori clear that the quantity is 'by sampling' appearing in Article 2 of homogeneous. Regulation No 2403/69 relates to control Nevertheless, in the main action the pro­ and not to the taking of samples. duct exported does not consist of an un­ The Netherlands Government remarks that divided consignment of lard which might in accordance with the rules applicable to vary insignificantly in quality at certain this sphere in the Netherlands the exporter points; on the contrary the consignment may demand, when the samples are taken, for export consisted of separate tins in either that more samples are taken and which the lard was packed and thus set tested or that a certain number of extra apart as an individual export so that the samples are taken and put aside for a plaintiff in the main action could only supplementary test should the first test claim an export refund for the tins the prove unsatisfactory. contents of which fulfilled the minimum I he Commission maintains that the reply conditions as to quality. In those cir­ to the question whether, in order to verify cumstances, the samples taken should have that the relevant products fulfil the requisite been tested separately, since an average conditions for granting the refund, a sample indicates a product which does not separate analysis should be made of each of exist in that form in the tins analysed and the samples taken or an analysis should which consequently does not afford a be made of an average sample obtained sufficient guarantee with regard to the from all the various samples taken in contents of the tins considered separately.

4 On the other hand, Article 1 of the same regulation states that the refund shall be granted only where the exporter, 'at the time of the conclusion of the customs export formalities within the meaning of Article 1(2) of Regulation No 1041/67/ EEC declares in writing that the products in question fulfil the conditions referred to by the regulation.

5 In its turn Article 1(3) of Regulation No 1041/67 provides that 'The day on which the customs export formalities are completed shall be the operative date for deter­ mining the quantity, nature and characteristics of the product exported'.

6 Those provisions preclude a control carried out before the conclusion of the customs formalities from taking precedence over a control effected at the time when the goods are submitted to the customs, which affords the best guarantees as to the identity of the product exported and the prevention of any fraud.

7 The answer to the first question must thus be that control of the conditions as to quality laid down by Regulation No 2403/69 must be carried out on samples taken at the time of the conclusion of the customs export formalities.

Question 2 (method of analysis)

8 The second question asks whether Article 2(1) of Regulation No 2403/69 and Annex II(1) to that regulation, read together with the footnote to that annex is to be interpreted to mean that the 'Bömer' value of refined lard must be determined according to the method laid down by the International Organization for Stand­ ardization (Document ISO/TC 34/SC 6/WG 3/N 73).

14 The common organizations of the agricultural market, of which Regulation No 2403/69 forms an integral part, can only function if the provisions in implementa­ tion thereof are applied uniformly throughout all the Member States.

is When in the regulation a specific method of analysis is selected, intended to establish a criterion as to the quality of the goods in question the results obtained by any other method may not be taken into consideration.

16 That this is the conclusion which must be accepted emerges even more clearly from the fact that, according to the explanations given to the Court, the 'Bömer' value is difficult to determine and the result of the analyses varies appreciably according to the method employed.

17 The plaintiff in the main action claims that employment of the method indicated by Regulation No 2403/69 is not obligatory, since the document of the Inter­ national Organization for Standardization, which is quoted as a 'source' by Annex II, has not been officially adopted and remains merely at the stage of a draft recommendation.

18 The method described by the document of the International Organization for Standardization has been completely established as a method of physical and chemical analysis.

19 The fact that this method has not yet been finally approved by the said Organization did not prevent the Commission from rendering it now and henceforth legally binding within the Community.

24 According to Article 1 of Regulation No 2403/69 the exporter must, in order to obtain the refund, declare in writing that the products in question fulfil the condi­ tions laid down by the regulation.

25 The fulfilment of those conditions can only be appraised on the basis of the provisions as to quality and the methods of analysis laid down by Annexes I and II.

26 According to Article 2 of the regulation the declaration by the exporter shall be followed by a control 'by sampling' carried out by the competent authority.

27 Although the conditions prescribed by the Community provisions must be observed with regard to the time and method of the control, only the national court may appraise the validity of a control carried out in a particular case taking into ac­ count, on the one hand, the nature, the characteristics and the packaging of the goods and, on the other hand, any rights of complaint and re-testing conferred on the exporter under the national legal system, and to decide the consequences to be drawn therefrom.

Costs

28 The costs incurred by the Commission of the European Communities which sub­ mitted observations to the Court are not recoverable.

1. Article 2 of Regulation No 2403/69 of 1 December 1969 on special condi­ tions for granting export refunds on certain pigmeat products, read in conjunction with Article 1 of Regulation No 1041/67 of 21 December 1967 on detailed rules for the application of export refunds on products subject to a single price system, must be interpreted to mean that control of the con­ ditions as to quality laid down by Regulation No 2403/69 must be carried out on samples taken at the time when the customs export formalities are concluded.

2. Article 2(1) of Regulation No 2403/69 together with Annex II (1) thereto, read in conjunction with the footnote to that annex, must be interpreted to mean that the 'Bömer' value of refined lard must be determined solely in accordance with the method laid down by the International Organization for Standardization referred to in the said annex. 3. In a specific case the national court must appraise the validity of a control carried out 'by sampling' and decide the consequences resulting from its appraisal.

JUDGMENT OF 26.10.1972 — CASE 26/72

Lecourt Monaco Pescatore

Donner Mertens de Wilmars

Delivered in open court in Luxembourg on 26 October 1972.

Mr President, the Community regulations. The refund, Members of the Court, which is equal to the difference between the price on the world market and the I — The facts price in the Community, may in fact be granted at the time of the exportation to a The preliminary questions submitted to third country of lard and other rendered the Court by the College van Beroep het pig fats coming under tariff heading 15.01 Bedrijfsleven (the Netherlands Court of A II in implementation of Regulation No Appeal in economic matters) in accordance 121/67 of the Council of 13 June 1967 on with Article 177 of the Treaty of Rome the common organization of the market in lead the Court to interpret certain provi­ pigmeat. The general rules for granting sions of secondary Community law. Con­ export refunds and the criteria for fixing sideration of these questions also requires the amount of such refunds were laid down the Court to make an incursion into the by Regulation No 177/67 of the Com­ realms of organic chemistry. mission of 27 June 1967 whilst the Com­ This dispute in fact relates to the applica­ mission in Regulation No 2403/69 of 1 tion of certain methods of chemical analysis December 1969 laid down special condi­ of a product intended for human consump­ tions intended to restrict refunds to pro­ tion which was brought before the Nether­ ducts complying with certain criteria as to lands court in circumstances of which I quality with regard to their composition, shall briefly remind the Court. preparation and packaging. Annex I On 18 June 1970 /u the undertaking Handels- requires, amongst other criteria, that the maatschappij Stern en Spierenburg, the lard shall have a minimum 'Bömer' value subsidiary of the limited company Ver­ of 73 and stipulates that controls for the eenigde Oliefabrieken of Rotterdam, de­ observance of this condition shall be clared for export to Bolivia a consignment carried out according to the method known of 100 698 kg of refined lard packed in as the diethyl ether method or the acetone 6 000 tins each weighing 16.680 kg. method. To describe this method the In order to benefit from the export refund provision refers to a draft recommendation provided for this product, the undertaking of the IOS (International Organization for gave an assurance that the lard conformed Standardization) concerning the sampling to the standards of quality prescribed by and analysis of animal fats.