C-27/72
ECLI:EU:C:1972:97
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JUDGMENT OF THE COURT 15 NOVEMBER 1972 1
Jozef Aimer v Einfuhr- und Vorratsstelle für Getreide und Futtermittel (Reference for a preliminary ruling by the Verwaltungsgericht Frankfurt)
'Denaturing of cereals'
Case 27/72
Summary
Agriculture — Common organization of the markets — Common wheat — Rye of bread- making quality — Denaturing — Premium — Granting of premium — Balance of less than 40 tonnes denatured on any day — Taking such balance into consideration — Conditions (Regulation (EEC) No 1403/69 of the Commission, Article 4)
The second sentence of Article 4(3) of granting a denaturing premium if it arose Regulation (EEC) No 1403/69 of the as a result of a rational use of the under Commission of 18 July 1969 must be taking's capacity and provided that the interpreted as meaning that a balance of maximum duration of the whole process less than 40 tonnes denatured on any one is equivalent to an average of at least 40 day may be taken into consideration when tonnes per day.
In Case 27/72
Reference to the Court under Article 177 of the EEC Treaty by the Verwaltungs gericht (Administrative Court) Frankfurt am Main for a preliminary ruling in the action pending before that court between
Jozef JOZEFAIMR, Rotthalmünster, plaintiff in the main action,
and
EINFUHR- UND VORRATSSTEL E FÜR GETREIDE UND FUT ERMIT ELund Vorratsstelle fur Getreide und Futtermittel , Frankfurt am Main, defendant in the main action,
1 — Language of the Case: German.
JUDGMENT OF 15. 11. 1972 — CASE 27/72
on the interpretation of the second sentence of Article 4 (3) of Regulation (EEC) No 1403/69 of the Commission of 18 July 1969 laying down detailed rules for the application of the provisions concerning denaturing of common wheat and rye of bread-making quality (OJ Special Edition, 1969 (II), p. 345),
THE COURT
composed of: R. Lecourt, President, R. Monaco, President of Chamber, A. M. Donner, A. Trabucchi and J. Mertens de Wilmars (Rapporteur), Judges,
Advocate-General: K. Roemer
Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts and procedure Article 4 of Regulation No 1403/69 of the Commission provides that the granting The facts of the case and the procedure of a denaturing premium shall be subject may be summarized as follows: to supervision by the intervention agency of the process of denaturing of common 1. Regulation No 120/67/EEC of the wheat, or of its admixture, unaltered, with Council of 13 June 1967 on the common compound feeding-stuffs. organization of the market in cereals Under paragraph 3 of this article the dura (OJ Special Edition, 1967, p. 33) provides tion of the process 'shall not exceed one for the granting of a denaturing premium day per 40 tonnes of cereals processed' in by intervention agencies (Article 7(3)). the case of denaturing whereas it must not The general rules governing the denaturing exceed 'thirty days per 50 tonnes or one of wheat and rye of bread-making quality working day of eight hours per 20 tonnes were laid down in Regulation No 172/67/ of cereals processed' in the case of the EEC of the Council of 27 June 1967 (OJ process of admixture unaltered. Special Edition, 1967, p. 139). The detailed rules for the application of this regulation 2. The dispute before the national court have been laid down in turn by Regula turns on the refusal of the defendant in tions No 242/67/EEC of the Commission the main action to grant the plaintiff a (JO No 137 of 30.6.1967, p. 2963), No denaturing premium for a denaturing 956/68 of the Commission (JO L 164 of process carried out on 26 August 1971. 13.7.1968, p. 9) and No 1403/69 of the The plaintiff in the main action, a corn Commission (OJ Special Edition, 1969 merchant in Rotthalmünster, applied for (II), p. 345). and obtained a permit to denature 200 000
AIMER v EINFUHR- UND VORRATSSTELLE GETREIDE
kg of common wheat by adding fish oil. The court making the reference also On 24, 25 and 26 August 1971 he denatured makes the following observations in the part of this amount, 74.4 tonnes on 24 ground of its judgment: August, 21.5 tonnes on 25 August and 27.5 tonnes on 26 August 1971. — The defendant's interpretation of the Alter the defendant had carried out a second sentence of Article 4(3) of check, a denaturing premium was granted Regulation No 1403/69 in its Directive for the quantities denatured on 24 and of 30 July 1970 on the granting of a 25 August 1971, amounting in aggregate denaturing premium for common wheat to 145.9 tonnes, but was refused in respect during the 1970/71 cereal year appears of the amount denatured on 26 August to it to be open to question. because the minimum quantity per day of 40 tonnes had not been reached on that day. — On comparing the wording used in the The plaintiff objected to this decision. He disputed article with the wording of took the view that the amount denatured various other provisions relating to the on 26 August 1971 was a surplus and common organization of the market also pointed out that he could have split in cereals, which make certain benefits the amounts up in such a way that each conditional upon quantitative condi day the minimum quantity was processed. tions, the court making the reference is The defendant rejected this objection by of the opinion that in all these cases the relying on Article 4 of Regulation No provisions in question place the empha 1403/69 of the Commission. In its view sis on the concept of 'minimum quanti this provision is mandatory and admits ties', whereas in the disputed provision of no margin of discretion: since the mini the emphasis is placed on the concept of mum quantity per day of 40 tonnes had 'duration'.
not been denatured on 26 August a premium cannot be granted for that day. — In fact, although the recitals in the pre On 16 December 1971 the plaintiff amble to Regulation No 172/67, in commenced proceedings in the court mak respect of which the contested regula ing the reference requesting it to annul tion lays down the manner in which the contested decision and to order the they are to be put into effect, mention defendant to pay the disputed premium. 'minimum quantities', these minimum quantities are not specified in the body 3. Since the Verwaltungsgericht Frankfurt of that regulation, as a reading of considers that a question relating to the Article 3 thereof makes clear. interpretation of Community law had The minimum quantities specified in arisen, it referred the following question the recitals in the preamble to Regula to the Court: tion No 1403/69 olny apply to denatur ing by admixture and not to the addi 'Must the second sentence of Article 4(3) tion of fish oil which occurred in this of Regulation (EEC) No 1403/69 of the case. Commission of 18 July be interpreted as meaning that the plaintiff could denature in one day an amount of less than 40 — Article 4 of the latter regulation states tonnes of cereals, whether or not this inter alia that the duration of the amount is the total amount of the cereals denaturing process 'shall not exceed one to be denatured or the balance thereof, day per 40 tonnes of cereals processed'. or must it be interpreted as meaning that This sentence is concerned with the the authors of the regulation intended to duration of the denaturing process and determine by means of this provision the not with the quantity to be denatured minimum amount of cereals to be de with the result that it only means that natured per day and at the same time the 40 tonnes cannot be denatured in more duration of the denaturing process?' than one day.
JUDGMENT OF 15. 11. 1972 — CASE 27/72
— The court making the reference infers prior to the contested Regulation No 1403/ from this that the said rule implies, 69 which is merely a revised version of on the one hand, that an amount of less them. Article 5 (3) of Regulation No 242/67/ than 40 tonnes must, a fortiori, be EEC lays down a period of one day per denatured in 24 hours and, on the other 40 tonnes, irrespective of the method hand, that an amount of more than 40 adopted: denaturing by means of the tonnes must be processed within a addition of fish oil or admixture with period which altogether does not ex feeding-stuffs. Article 4(3) of Regulation ceed the period required to process the No 956/68, on the other hand, draws a said amount at the rate of 40 tonnes distinction between denaturing by addition per day. and denaturing by admixture and this provision has been reproduced without any 4. The order referring the matter was material alteration in Regulation No 1403/ 69. received at the Court Registry on 15 June 1972. Moreover a recital in the preamble to
The Commission of the European Com Regulation No 956/68 relating to this munities has submitted its written observa provision expressly specifies 40 tonnes as tions. The plaintiff and the defendant in the minimum quantity to be processed the main action stated that they did not each day. intend to make use of their right to submit written observations. 2. In the Commission's view the excep tion provided for by Article 5 of Regula Alter hearing the report of the Judge- Rapporteur and the views of the Advocate- tion No 1403/69 in the event of an inter General, the Court decided not to make any ruption of the denaturing process con firms the interpretation which it proposes. preparatory inquiries. The commission, represented by Mr Kalbe, submitted its oral observations at 3. Moreover, this interpretation is con the hearing on 5 October 1972. sistent with the objectives of the regula tion. The purpose of the denaturing pre The Advocate-General delivered his opinion at the hearing on 26 October 1972. mium is to open up for surplus common wheat, that is to say, for wheat which can not be sold as bread grains, an additional II — Observations submitted in ac market by transforming it into cattle cordance with Article 20 of feeding-stuffs, and such a use means that the Protocol on the Statute it is in general uneconomic to offer com mon wheat in this form to the interven of the Court of Justice of the EEC tion agencies. In the case of common wheat intended for use as fodder, either because it is of poor quality or because this way of The observations submitted pursuant to using it has always appeared to producers Article 20 of the said statute may be sum to be more profitable in the case of small marized as follows: amounts, it is neither necessary nor ad The Commission regards the second sen visable to provide for a denaturing pre tence of Article 4(3) of Regulation No mium of this kind to he granted. 1403/69 as being more than a rule pre The requirement that a minimum quantity scribing the maximum period allowed for of 40 tonnes is denatured per day is a denaturing: it regards it also as a man means of excluding the payment of any datory provision determining the minimum premium on the producer's own consump amount to be denatured each day. tion, that is to say, on that amount of wheat, which, in so far as it is a small 1. It bases its case in the first instance on balance, would probably be used as cattle Regulations No 242/67/EEC of 30 June feeding-stuffs. This requirement also makes 1967 (JO No 137 of 30.6.1967) and No it possible to limit the number of under 956/68 (JO L 164 of 13.7.1968) adopted takings which engage in denaturing to those
AIMER v EINFUHR- UND VORRATSSTELLE GETREIDE
having the technical equipment which The Commission takes the view that, by ensures that the denaturing complies with means of this interpretation which is the regulations in force and those where consistent with its own practice and that of the denaturing process can be supervised the intervention agencies, it has, on the without any difficulty. one hand, attained the material objectives set out above and, on the other hand, has The Commission argues that this inter also secured, to the extent to which this is pretation is also confirmed by the measures necessary, the uniform application in all for supervising the process of denaturing. the Member States of the regulations con The costs both of denaturing and also of cerning the premium which the financial supervision would only be justified if a interests involved necessitate. minimum quantity of 40 tonnes was This need for uniformity was stressed by the processed, because the intervention agen Court in Case 94/71 (Judgment of 6 June cies could not be compelled to set in 1972, Schlüter & Maack, Rec. 1972, p. 307) motion their administrative machine if it where the facts were similar in so far as were only necessary to denature a very the conditions for the granting of an export small amount. refund were concerned. When considering this relationship between These requirements may well mean that the costs and the usefulness of denaturing, the solution causing the least inconvenience it is necessary not only to exclude the cases to an undertaking cannot always be found where the total amount appears to be but this is a consequence which cannot be insufficient but also to keep the duration avoided and which should be accepted so of the denaturing process within narrow that the uniform application of the system limits and this according to the Com of granting premiums is ensured. mission can be more easily achieved by The Commission submits that the answer
fixing a daily minimum quantity. to the question referred should therefore The only case where the payment of the be that, as provided for in Article 4(3) premium is justified on quantities of less and the first sentence of Article 5 of than 40 tonnes per day is in the view of the Regulation No 1403/69, the denaturing Commission set out, subject to strict con premium must only be paid on quantities ditions, in the second sentence of Article 5 of which at least 40 tonnes of wheat per of the same regulation. day have been denatured.
Grounds of judgment
1 By order of 3 May 1972 which was received at the Court Registry on 15 May 1972 the Verwaltungsgericht Frankfurt am Main referred to the Court under Article 177 of the EEC Treaty for a preliminary ruling a question concerning the interpretation of the second sentence of Article 4(3) of Regulation No 1403/69 of the Commission of 18 July 1969 (OJ, Special Edition, 1969 (II), p. 345).
This regulation, which was adopted pursuant to Regulation No 172/67/EEC of the Council of 27 June 1967 (OJ, Special Edition, 1967, p. 139), lays down detailed rules for the application of the provisions concerning denaturing of common wheat and rye of bread-making quality and, in particular, defines the conditions to which the granting of a denaturing premium are subject.
JUDGMENT OF 15. 11. 1972 — CASE 27/72
Article 4 of the said regulation provides, inter alia, that 'the duration of the denaturing process shall not exceed one day per 40 tonnes of cereals processed'.
The Court is asked whether this provision must be interpreted as meaning that the owner of an undertaking is entitled to the premium if he denatures a quantity of less than 40 tonnes, whether or not this amount is the total amount or the balance thereof, if the duration of this denaturing process does not exceed one day, or whether the authors of the regulation intended to determine the minimum amount to be denatured each day at the same time as the duration of the denaturing process.
2 The file sent to the Court by the national court shows that, after the plaintiff in the main action had applied to the competent intervention agency for and obtained from it a permit to denature 200 tonnes of wheat, it notified the said agency in accordance with the administrative instructions in force in this connexion in the Federal Republic of Germany that it would carry out the denaturing on 24, 25 and 26 August 1971.
The total quantity to be denatured was reduced during the process to 173.4 tonnes 74.4 tonnes of which were processed on 24 August, 71.5 tonnes on 25 August and 27.5 tonnes on 26 August 1971 respectively.
The answer to this question must enable the national court to decide whether the amount of 27.5 tonnes can be taken into account when granting the denaturing premium.
3 Article 7 of Regulation No 120/67/EEC of the Council of 13 June 1967 on the common organization of the market in cereals (OJ, Special Edition, 1967, p. 33) authorizes the intervention agencies, with a view to supporting the market for products which cannot be sold in the normal way, to grant a denaturing premium for common wheat and pursuant to this provision Regulation No 172/67 lays down the general rules for attaining this objective.
The second recital in the preamble to this second regulation states that in view of the aim pursued denaturing can only be justified if it is applied to bread- making cereals of a certain minimum quality and if, having regard to the costs entailed by the supervision of denaturing, it is applied to minimum quantities thereof.
Consequently Article 3 of this regulation provides that 'Cereals for denaturing must be of a minimum quality and quantity to be determined'. Further, Article 7 of this regulation reads: To qualify for the premium, denaturing should be effected in agreement with the intervention agency and under its super vision'.
AIMER v EINFUHR- UND VORRATSSTELLE GETREIDE
4 The required conditions as to quality and quantity were determined by Regulation No 1403/69 for the period covered by the dispute.
Article 4(3) of this regulation provides that the duration of the denaturing process shall not exceed one day per 40 tonnes of cereals processed.
It is the Commission's view that the purpose of this provision is to make it obligatory to denature a minimum quantity of 40 tonnes of cereals each working day in any event, because processing a smaller amount cannot be allowed having regard to the heavy costs of supervising this process.
5 Although it is in keeping with the objective of the system which governs denaturing to preclude the granting of a premium on a total amount of less than 40 tonnes, the competent intervention agency is, however, in a position to decide whether to grant a premium on such an amount when it issues the denaturing permit.
The question of the total amount for which permission to denature is given cannot therefore be confused with the question of the duration of the denaturing process.
6 Supervision of this process entails considerable expense and the requirement that denaturing is carried out at the rate of 40 tonnes per day is therefore justified in order to avoid an increase in the amount of such supervision.
This minimum quantity stipulated by Article 1403/69 may, after taking account of the capacity of the undertaking in question, even by increased, by agreement between the operator and the intervention agency as provided for in Article 7 of Regulation No 172/67/EEC of the Council, with a view to using the undertaking's capacity in the most rational way.
7 If on the other hand the process of denaturing lasts several days, the objectives sought are attained if the total duration of the process does not exceed a period which is equivalent to a daily average of 40 denatured tonnes, provided that the undertaking's capacity has been used in a rational way.
Consequently a balance of less than 40 tonnes denatured on any one day may be taken into consideration, if it arose as a result of a rational use of the undertaking's capacity for denaturing and provided that the maximum duration of the whole process is equivalent to an average of at least 40 denatured tonnes per day.
A narrower interpretation of Article 4(3) would go beyond the objectives sought and must for this reason be rejected.
JUDGMENT OF 15. 11. 1972 — CASE 27/72
Costs
8 The costs incurred by the Commission of the European Communities which has submitted observations to the Court, are not recoverable.
As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the Verwaltungsgericht, Frankfurt am Main, the decision on costs is a matter for that court.
On those grounds.
Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the Commission of the European Com munities ; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Article 177; Having regard to Regulations Nos 120/67 and 172/67 of the Council of the European Economic Community of 13 June 1967 and 27 June 1967 respectively; Having regard to Regulation No 1403/69 of the Commission of the European Community of 18 July 1969; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities,
THE COURT
in answer to the question referred to it by the Verwaltungsgericht Frankfurt am Main by order of 3 May 1972, hereby rules:
The second sentence of Article 4 (3) of Regulation (EEC) No 1403/69 of the Commission of 18 July 1969 must be interpreted as meaning that a balance of less than 40 tonnes denatured on any one day may be taken into consideration if it arose as a result of a rational use of the undertaking's denaturing capacity and provided that the maximum duration of the whole process is equivalent to an average of at least 40 tonnes per day.
Lecourt Monaco Donner
Trabucchi Mertens de Wilmars
AIMER v EINFUHR- UND VORRATSSTELLE GETREIDE
Delivered in open court in Luxembourg on 15 November 1972.
A. Van Houtte R. Monaco
Registrar (President of Chamber) For the President
OPINION OF MR ADVOCATE-GENERAL ROEMER DELIVERED ON 26 OCTOBER 1972 1
Mr President, should be effected in agreement with the Members of the Court, intervention agency and under its super vision'. The Commission adopted further The subject-matter of the proceedings of implementing provisions, first of all in the national court giving rise to the refer Regulation No 242 of 30 June 1967 (JO ence which must be dealt with today is a No 137 of 30.6.1967, p. 2963/67), then in claim for payment of a denaturing pre Regulation No 956 of 12 July 1968 (JO mium for common wheat. In order to L 164, p. 9) and also in Regulation No understand these proceedings the following 1403/69 of 18 July 1969 (OJ, English preliminary observations are necessary. Special Edition, 1969 (II), p. 345) which In order to provide additional new markets has special relevance in this case. It is for surplus common wheat, which cannot necessary to quote the article of this latter be sold as bread grains on the market, regulation which provides that the de and in this way to support the market for naturing premium shall consist of two common wheat, Article 7(3) of Regulation components, one allowing for the differ No 120 of 13 June 1967 on the common ences between prices for common wheat organization of the market in cereals (OJ, and barley, the other allowing for the English Special Edition 1967, p. 33) technical costs of denaturing or the special provides that 'the intervention agencies costs of admixture, fixed at a flat rate. ... may ... grant a denaturing premium for Moreover Article 4(3) provides that 'The common wheat'. Regulation No 172/67/ granting of a denaturing premium shall be EEC of the Council of 27 June 1967 (OJ, subject to supervision by the intervention English Special Edition, 1967, p. 139) agency of the process of denaturing of contains additional 'general rules governing common wheat, or of its admixture, un the denaturing of wheat'. These include altered, with compound feeding-stuffs Article 3 which I now quote and which falling within heading No 23.07 of the reads 'Cereals for denaturing must be of a Common Customs Tariff. the duration of minimum quality and quantity to be the denaturing process shall not exceed determined'. Article 4(2) of this regulation one day per 40 tonnes of cereals processed. provides that the premium shall be granted The duration of the process of admixture, at the request of the interested party if the unaltered, with compound feeding-stuffs requirements of Article 3 inter alia are shall not exceed thirty days per 50 tonnes observed. Further, Article 7 provides: or one working day of eight hours per 'To qualify for the premium, denaturing 20 tonnes of cereals processed. The inter-
1 — Translated from the German.