C-92/74
ECLI:EU:C:1975:63
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JUDGMENT OF THE COURT
OF 15 MAY 1975 1
Melkproduktenmaatschappij G. van den Bergh B. V. v Produktschap voor Zuivel (preliminary ruling requested by the College van Beroep voor het Bedrijfsleven)
Case 92/74
Summary
Agriculture — Common organization of the markets — Skimmed milk powder —
Fat content — Concept (Regulation No 986/68 of the Council, Article 1 (c))
The expression 'fat content'
used in phosphatides, in so far as those
Article 1 (c) of Regulation No 986/68 substances are not extracted when
must be interpreted as referring to the applying the methods of analysis in fat content of skimmed milk powder, current use.
including fat-like substances such as
In Case 92/74
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 case pending before that court between
MELKPRODUKTENMAATSCHAPPIJ G. VAN DEN BERGH B.V.
and
PRODUKTSCHAP VOOR ZUIVEL
on the interpretation of Article 1 (c) of Regulation (EEC) No 986/68 of the
Council of 15 July 1968 laying down general rules for granting aid for skimmed milk and skimmed milk powder for use as feed,
1 — Language of the Case: Dutch.
JUDGMENT OF 15. 5. 1975 — CASE 92/74
THE COURT
composed of: R. Lecourt, President, J. Mertens de Wilmars and A. J. Mack enzie Stuart (Rapporteur), Presidents of Chambers, A. M. Donner, R. Monaco,
P. Pescatore, H. Kutscher, M. Sørensen and A. O'Keeffe, Judges,
Advocate-General: A. Trabucchi Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts
The facts of the case, the procedure and Because of a certain number of
the observations submitted under Article considerations, the College van Beroep 20 of Protocol on the Statute of the considered that it had to base its Court of Justice of the EEC may be decision on the results supplied by an
summarized as follows: analysis of samples according to the
Rose-Gottlieb method. T he applicant in the main action
maintained in this connexion that the
I — Facts and procedure percentage of fats revealed by the use of the Rose-Gottlieb method also includes a The Produktschap voor Zuivel, the certain amount of phosphatides, that
defendant in the main action, refused to that amount is equal to 0·165 and that
pay to Melkproduktenmaatschappij G. that percentage must be deducted in van den Bergh the aid provided for by order to obtain the pure fat content of
Regulation (EEC) No 986/68 of the milk powder to in Article 1 (c) referred
Council laying down general rules for of Regulation (EEC) No 986/68, which aid for skimmed milk and means that the fat content is in this case granting lower than 1·5 %. skimmed
milk powder for use as feed (OJ Special Edition 1968 (I), p. 260) in The expert called by the College van
respect of two consignments of Beroep emphasized in his statement 'that denatured milk powder of 1 850 kg and a chemist cannot lump together fat and
3 600 kg respectively. fat-like material (phosphatides). For phosphatides are chemically quite According to the Produktschap, the two different from fat. There are some six consignments had a fat content combinations which chemically behave exceeding 1·5 % which is considered by in an identical manner. Fats are built up the regulation as the maximum from glycerol and three esterified fatty permissible fat content. acids. Phosphatides on the other hand The applicant instituted proceedings are built up from glycerol and two against the decision of refusal before esterified fatty acids and a futher specific the College van Beroep voor het group. It is this specific group which
Bedrijfsleven. defines the character of the phosphatide'.
VAN DEN BERGH V PRODUKTSCHAP VOOR ZUIVEL
As the College van Beroep considered including the fat-like material contained
that a question of interpretation of in milk powder (phosphatides). Community law was raised, it referred The Commission points out that the the following question to the Court: expression 'fat content'
without any 'Does a correct interpretation of Article definition, is used in several regulations 1 (c) of Regulation (EEC) No 986/68 of and in particular in the basic regulation the Council involve that the term 'fat concerning the milk sector with regard content'
in that article must be to the target price of whole milk.
interpreted as meaning only the With regard to whole milk, the 'fats' proportion of pure milk fat present in expression includes pure fats and
milk powder and that that term does not fat-like material which constitute a
also include the proportion of other whole, which is also the case for fat-like substances present in milk skimmed milk in so far as it concerns
powder, such as in particular whole milk imperfectly skimmed. phosphatides?'
In the second place, the purpose of the
The order referring the matter was rule fixing a maximum fat content for received at the Court Registry on 12 skimmed milk is to avoid a milk product December 1974. receiving aid in respect of its lipidic The Produktschap voor Zuivel and the element also being taken into Commission of the European Communi consideration for aid in respect of its ties lodged written observations. protein element. The defendant takes the After of buttermilk: as a by-product hearing the report of the example
Judge-Rapporteur and the views of the of the processing of cream into butter, buttermilk the to Advocate-General, the Court decided not receives aid granted
butter. As skimmed milk to make any preparatory inquiry. powder, processed buttermilk in powdered form Written observations also receive aid since the two may
The products are similar in respect of their Produktschap voor Zuivel observes that the Rose-Gottlieb pure fat content. Buttermilk is method of distinguished from skimmed milk analysis was prescribed by the Food and Agriculture Organization United powder by its characteristically higher of the content of phosphatides. Nations and by the World Health Organization for the calculation of the In the third place, the Commission
fat content of milk powder. This method considers that in determining the fat is inter alia the legislature took into account also recognized by Belgium, content
the methods of analysis used Denmark, France, Britain, Ireland, Italy, currently do distinction Luxembourg, The Netherlands, Australia, which not make any New Zealand and the United States of between pure fats and phosphatides. America. The Commission contends that: in order to calculate the rat content 'The expression 'fat content'
used in to the of milk powder according Article 1 (c) of Regulation (EEC) No Rose-Gottlieb method, account is taken 986/68 must be interpreted as meaning at the same time of milk fats and fat-like that it defines the fat content of
material (phosphatides); the fat-like skimmed milk powder, including fat-like in the milk powder are phosphatides, in so far materials present materials such as considered as milk fats. as those materials cannot be extracted
The Produktschap submits that, as the when applying methods of analysis in Rose-Gottlieb method is used interna use.'
current
tionally as the standard method for the determination Oral procedure of the fat content of milk powder, milk fats should also be The hearing in open court took place on understood, at the Community level, as 23 April 1975.
JUDGMENT OF 15. 5. 1975 — CASE 92/74
A. Marres, appearing for Van den Bergh If the customs authorities had still to
B. V., observes that if the Röse-Gottlieb make deductions, this might be method is applied to a sample of prejudicial to exporters of other milk
skimmed milk powder the result also products which are thus in a group includes a certain percentage of inferior to that giving right to a large phosphatides. The phosphatides which subsidy.
are not chemically fats represent at least Mr for Bourgeois, appearing the 0·14%. Commission, maintains that the
As the Community provision only Community legislature may use terms by speaks of 'fats', the percentage of reference not to their chemical meaning phosphatides must be deducted from the but to the meaning given to them in result of the analysis in order to arrive at current commercial usage: cf. Case a more precise percentage. 51/70, Lütticke v Hauptzollamt Passau To interpret the expression fats' as ('chocolate') (Rec. 1971, p. 121). 'fats' including unextracted phosphatides has In commerce, are simply the
the effect not only of preventing the content fixed in terms of the current
grant of aid for the small proportion of method of analysis.
fats which were present in the skimmed In all the Member States of the milk belonging to Van den Bergh, but Community, except Ireland and also of the grant of aid for preventing Denmark, the Röse-Gottlieb method is the high protein content. currently used without, however, being Mr Bobeldijk, appearing for the compulsory. In Denmark a less precise
Produktschap voor Zuivel, considers method is used, but if the results are very that the question is not what the close to the limit, analysis according to 'fats'
meaning of the term is for a the Röse-Gottlieb method is recom
chemist but rather what is understood mended. The pure milk fats and the
by this term in commerce. phosphatides not extracted are con
The result of the application of the sidered as fats within the meaning of
Röse-Gottlieb method is regarded in the Community provisions. commerce as the fat content in milk The Advocate-General delivered his powder. opinion on 7 May 1975.
Law
1 By judgment of 10 December 1974, received at the Registry on 12 December 1974, the College van Beroep voor het Bedrijfsleven has asked the Court, under Article 177 of the Treaty, to rule whether the term 'fat content'
appea
ring in Article 1 (c) of Regulation (EEC) No 986/68 of the Council of 15 July 1968 (OJ Special Edition 1968 (I), p. 260) refers not only to the pure milk fat content but also to the content of other fat-like substances in milk powder, such as phosphatides.
2 It appears from the file that the company Van den Bergh was refused Commu
nity aid for a quantity of skimmed milk powder for use as feed, on the ground that that product had a fat content exceeding the limit of 1·5 %, according to the most widespread method of analysis, at both Community and inter-
VAN DEN BERGH v PRODUKTSCHAP VOOR ZUIVEL
national level, and conforming to the provisions of the Food and Agriculture Organization of the United Nations and the World Health Organization.
3 The company maintains that as the phosphatides, which are fat-like substan
ces chemically different from pure fats, cannot be extracted under that
method or under the majority of other methods of analysis, the fat content resulting from that method should be corrected by deduction of the estimated content of phosphatides.
4 The concept of fat content is used in Community legislation not only in connexion with aid for skimmed milk but also in connexion with the target
price of whole milk, the intervention price of butter and most of the products
relating to heading 04.04 of the Common Customs Tariff.
5 The minimum or maximum fat content always serves as the basic criterion for
enabling the national authorities to establish in practice the classification of
products and by-products in the milk sector.
6 The approximate nature of the criterion in question and the absence of a
Community provision prescribing a single method of analysis for each pro
duct indicate that it is not the definition of milk fats from the chemical point of view which is important but rather the practicability of an interpretation for the national authorities in their checking duties.
7 In practice in Member States 'fat content'
all the the expression of skimmed
milk powder indicates the content determined according to the method of
analysis used, without any alteration.
An interpretation of the expression 'fat have the effect content'
8 which would
of obliging the national authorities to correct in any manner the result of an analysis would introduce an element of uncertainty and cannot therefore be accepted.
9 In these circumstances, the reply to be given to the national court must be that the expression 'fat content'
used in Article 1 (c) of Regulation No 986/68 must be interpreted as referring to the fat content of skimmed milk powder, includ-
JUDGMENT OF 15. 5. 1575 — CASE 92/74
ing fat-like substances such as phosphatides, in so far as those substances
are not extracted when applying the methods of analysis in current use.
Costs
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 national court, costs
are a matter for that court.
On those grounds,
THE COURT
in answer to the question referred to it by the College van Beroep voor het Bedrijfsleven by order of 10 December 1974, hereby rules:
The expression 'fat content'
used in Article 1 (c) of Regulation No 986/68 must be interpreted as referring to the fat content of skimmed milk
powder, including fat-like substances such as phosphatides, in so far as analy those substances are not extracted when applying the methods of sis in current use.
Lecourt Mertens de Wilmars Mackenzie Stuart Donner Monaco
Pescatore Kutscher Sørensen O'Keeffe
Delivered in open court in Luxembourg on 15 May 1975.
A. Van Houtte R. Lecourt
Registrar President