C-61/82

JUDGMENT OF 15. 3. 1983 — CASE 61/82

intervention agencies, according to feedingstuffs for animals, to the which the selling-price of cereals must exclusion of processing waste, is be not less than the local market price eligible for the aids for skimmed milk is to avoid deterioration of the market processed into compound feeding- and not to guarantee the proper stuffs provided for in Regulation N o functioning of the Community 990/72. . intervention measures. 4. Although the provisions of It is not therefore possible for a Community law governing aids for Member State to contend, in order to the private storage of cheese do not justify the sale of cereals by its expressly lay down the form of the national intervention agency at prices storage contract, they are based on markedly lower than the local market the assumption that every storage price, that a particular economic operation must be preceded by the situation led the national authorities conclusion of a written contract in of that Member State to introduce a order to be eligible for the temporary price-freeze for certain Community aid provided for in food products consumed in large Article 10 (2) of Regulation N o quantities and that the prices of the 971/68. intervention cereals were determined on the basis of the price-freeze. It follows that, for the purposes of Regulation No 971/68, a storage 3. Only the milk product actually used contract is not concluded until the in the manufacture of compound written instrument is signed.

In Case 6 1 / 8 2

ITALIAN REPUBLIC, represented by A r n a l d o Squillante, President of Section at the Consiglio di Stato [State C o u n c i l ] , H e a d of the D e p a r t m e n t for C o n t e n t i o u s Diplomatic Affairs, acting as Agent, assisted b y O s c a r Fiumara, Avvocato dello Stato, with a n address for service in L u x e m b o u r g at t h e Italian Embassy, applicant,

Advocate General: S. Rozès Registrar: P. Heim

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of the Community through the Guarantee procedure, and the conclusions, sub- Section of the European Agricultural missions and arguments of the parties Guidance and Guarantee Fund (herein- may be summarized as follows : after referred to as "the Fund"). By Article 4 of that regulation the I — Facts and written procedure Commission is to make available to the designated national authorities and 1. Regulation (EEC) No 729/70 of the bodies the necessary funds. Council of 21 April 1970 on the financing of the common agricultural According to Article 5 (2) (b) of the policy (Official Journal, English Special same regulation the Commission is to Edition 1970 (I), p. 218) lays down a clear the accounts relating to the system whereby refunds on exports to expenditure incurred by the national non-member countries and intervention authorities and bodies on the basis of the intended to stabilize the agricultural annual accounts presented by the markets are directly financed by the Member States.

JUDGMENT OF 15. 3. 1983 — CASE 61/82

Expenditure amounting to LIT 1. Declare the decision of the 1 143 616 575 in respect of aid for the Commission of the European private storage of cheeses; Communities of 16 November 1981 void in so far as the following sums are excluded from being financed by 1 — Published in the Official Journal 1971, L 375, p. 25. the Fund's Guarantee Section:

ITALY v COMMISSION

LIT 2 264 702 642 the Community regulations governing LIT 712 953 004 agriculture, they often regard those regu- lations as simply providing an indication LIT 1 143 616 575 of the means to be adopted for the LIT 10 852 510 management of the markets or even (Total LIT 4 141 124 731); apply them in such a manner as to pursue objectives of national agricultural policy which are contrary to the 2. Order the defendant to pay the costs. common agriculture policy.

JUDGMENT OF 15. 3. 1983 — CASE 61/82

suggestion of preference for a national agricultural policy contrary to the As regards the Italian Government's common agricultural policy by a alternative argument the Commission, in deliberate failure to apply the latter. It its rejoinder, retorts that the common remarks, on the other hand, that the agricultural policy does not consist solely dispute which has arisen regarding the of objectives and that the methods to be charging of certain expenditure to the used to attain those objectives are not Fund results merely from different unaffected by the Treaty.

Moreover, the equal for a rule to be open to different inter- treatment of traders of the various pretations prior to the existence of any Member States is guaranteed only if all measure designed to achieve uniform those legal mechanisms and measures are clarification and even for each interpret- applied in a uniform manner. ation to be advanced in the conviction that it is correct. In such a situation it seems to the Italian Government that the The individual items in dispute a posteriori finding that the relevant rule had not been applied correctly is not a (a) The increase in receipts from the sale sufficient ground for regarding the of intervention cereals operation which had been carried out as not being a Community one, particularly The Italian Government asserts that the if the common agricultural policy rectification by the Commission of the objective laid down by that rule has "net losses" account by increasing the

ITALY v COMMISSION

studies. The Commission wrongly Italian legislation (Decreto Legge No referred to the prices quoted on the 427 of 24 July 1973, cited above, as Milan market and to products sold by amended by Legge No 496 of 4 August mutual agreement. Such prices only 1973, Gazetta Ufficiale N o 216, p. operate as a guide and the position is 5806), to sell the cereals at prices fixed different in other markets and in respect by the Comitato Interministeriale per la of sales by tender. Furthermore the Programmazione Economica [Interde- -'•••••quality-of-the intervention stocks varied partmental Committee for Economic

quantities. That was done for social and cultural policy but by reference to economic reasons of which the objectives and in accordance with rules Commission was aware. The transfers of which were part of national agricultural products from other intervention agencies took place by reference to those and economic policy. It follows, prices. according to the Commission, that it is not able to charge the cost thereof to the Community budget. Consequently the Commission has not shown that there was no relationship In its reply the Italian Government between the market prices and the prices observes that in fact during the first set for products sold by the intervention months of 1974 wheat held by the Italian agency. intervention agency was disposed of, in pursuance of a decision of the Com- The Commission explains that in the mittee, at a weighted average price of course of 1974 cereals coming from LIT 8 264 per quintal, that is to say

15 % below the market price (approxi- 376/70). Furthermore the purpose of mately LIT 9 500 per quintal). The that regulation was not to intervene Community institutions were aware of directly in the market price by selling the relevant Italian law. Furthermore the intervention products cheaply but was to grave shortage of wheat on the Italian ensure the continuity of supply and to market which had resulted in speculation discourage speculators. and hoarding and an abnormal increase in prices also led to the adoption of Community measures such as Regulation The Commission notes that the Italian (EEC) No 2104/73 of the Council of Republic was well aware of the fact that 1 August 1973 concerning the transfer to it was not authorized to sell the common and sale by the Italian intervention wheat in question at a price which was agency of common wheat held by lower than the market price because it the German, French and Belgian had attempted to obtain from the intervention agencies (Official Journal Commission a derogation from the terms 1973, L 214, p. 2). of Article 6 of Regulation No 2104/73 of the Council. There was nothing that the Commission could do but to refuse In that connection the Italian the request. Government maintains that it follows from the firmly established case-law of the Court that national operations which are not intended to have a direct effect (b) The exclusion of the expenditure in on the formation of market prices but respect of losses of 2 % in the are intended to stop the increase in processing of skimmed-milk powder consumer prices of certain foodstuffs are into animal feed not incompatible with the common organization of the markets where they do not jeopardize the objectives and The Italian Government points out that functioning of that organization. It by virtue of national practices applied argues that in the present case the selling even before the entry into force of the price of the cereals in question was lower common agricultural policy the Italian than the market price solely because the intervention agency has paid aid in latter was artificially high by reason of respect of skimmed-milk powder for speculation. quantities including losses amounting to no more than 2 % of the total. These losses represent the waste lost, for The Commission maintains in its technical reasons, during the manufac- rejoinder that the national measure turing process. which was adopted was not compatible with the common organization of the markets. Even in Regulation No The Government claims that the 2104/73, which was the last in a series Commission's argument to the effect that of special measures adopted by the aid may be granted only for skimmed- Community to enable the Italian milk powder which is actually used as Republic to deal with its difficulties in animal feed, an argument which led it to obtaining supplies of common wheat, it refuse Community finance for the was provided that the selling price was to expenditure in respect of such losses, is correspond essentially to the local not compatible with Regulation (EEC) market price (Article 6 (4), which refers No 990/72 of the Commission of 15 back to Article 3 (2) of Regulation No May 1972 on detailed rules for granting

Article 1 of that regulation states that "aid shall be granted for skimmed-milk powder which has . . . been used in the The Commission is of the opinion that manufacture of compound feedingstuffs the exclusion of the aid paid by the . . .". In the Italian Government's opinion Italian intervention agency to processors that can only refer to milk used in the in respect of "losses" accords with both process of the manufacture of the feed the scheme and with the letter of the including any loss due to that process. relevant rules of Community law. In that Such losses are in fact a necessary and connection it refers to the first recital in inevitable consequence of the process of the preamble to Regulation (EEC) No manufacture. The quantities lost thereby 986/68 of the Council of 15 July 1968 are therefore part of the product which laying down general rules granting aid has "been used in the manufacture" even for skimmed milk and skimmed-milk if not processed themselves. Further- powder for use as feed (Official Journal, more, the concept of "actual" use was English Special Edition 1968 (I), p. 260) included in the Community regulations which states that "provision must be to indicate that the products in question made for the granting of aid only for must be destined solely for animal feed. skimmed-milk powder which is denatured or used as feed". From that point of view it is essential that the powder be actually used as feed. It is not The Italian Government goes on to therefore sufficient that the relevant observe that the Commission's view is quantities are.intended for.use as feed by that the farmer does not benefit fully virtue of their use in the process of from Community aid inasmuch as he manufacturing the feed. As is confirmed must himself bear the costs of the losses by the third recital in the preamble to which inevitably occur in the processing Regulation No 990/72, which states that of the milk for the manufacture of feed. provision should be made to ensure that To that extent the view of the Italian "aid is granted only for . . . skimmed- Government corresponds more closely to milk powder processed into feeding- the objective of the Community rules, stuffs", to be eligible for aid the product that is to say to make the use of must be found in a processed form in the skimmed-milk powder competitive in compound feed. comparison to the use of substitute products.

be checked. T o accept such a margin amounts of the loss in the statement of would mean accepting that a part of the quantities incorporated into animal feed. product which was in the trader's business and of which there is no trace on the market is eligible for aid. Such a An inquiry relating to the processing concept cannot be accepted by the records of 11 manufacturers of animal Commission in the context of the proper feed who processed approximately 25 % management of the market and of the of all the milk powder processed in Italy Community budget. during the years 1974 and 1975 revealed that the average actual loss for which aid was granted was 1.745 % for the As regards the flat-rate reduction, with a financial year 1974 and 1.464 % for the maximum rate of 2 %, the Commission financial year 1975. states that the Italian Republic has not as yet provided the documents required by Article 5 (1) of Regulation N o 729/70 On the basis of those data the applicant for the purpose of determining the reaffirms its point of view and contends, precise sums paid by the Italian as an alternative argument, that the intervention agency in respect of reduction made by the Commission must skimmed-milk powder which is not to be correspond to the averages indicated, in found in a processed form of compound respect of which aid was granted, that is feed. Consequently the Commission had to say at the fixed rate of 1.5.%-. to limit the amount which it charged to the Fund to that part of the Italian expenditure which definitely complied with the requirements of the Community The Commission, in its rejoinder, rules. contends that the facts presented by the applicant in its reply show that the loss or waste during processing for which the Italian Republic granted aids was not Finally the Commission points out that it checked to ensure that they were did not raise any objection with regard genuine but simply for accounting to that question in the financial years purposes. It was therefore possible to prior to 1974 because in the case of Italy receive aid in respect of quantities of it had never checked that type of skimmed-milk powder which were not in expenditure in respect of earlier years. the hands of the undertaking, provided only that they had been recorded in the books of account as an acutal daily loss In its reply the Italian Government refers not exceeding 2 % of the quantity to a circular of the Italian Ministry of contained in the final product. Agriculture dated 10 July 1974 which provided for a margin of actual losses up to a maximum of 2 %. That maximum The Commission considers itself unable percentage was fixed on the basis of to accept such administrative manage- technical surveys carried out at the ment which would open the door to processing plants. The processors were abuses which could not be rectified. required to state the actual daily loss in their processing records and, at the state when the aid was calculated, the prov- incial agricultural inspectorate informed Finally the Commission points out that the Italian intervention agency of the the clearance of the accounts was carried

oui: on the basis of accounts presented in Aid was granted according to the the form laid down by Regulations Nos procedure laid down by the decision of 729/70 and 1723/72. It could not, at the the Italian intervention agency's time of such clearance, accept as eligible governing board dated 20 September for financing any part of the expenditure 1973 (Gazetta Ufficiale della Repubblica other than which, on the basis of the Italiana No 225 of 2 October 1973), accounts presented, corresponded to which contains the requirements to be operations which complied with the rules fulfilled under the relevant rules of of Community law. It is not possible to Community law. In conformity with that take into account the systematic error procedure the Italian intervention revealed by the accounts other than at its agency, having verified that the request maximum extent of 2 %, unless the for the conclusion of a contract figure could be proved precisely and not submitted by the person concerned on the basis of a presumption of a flat fulfilled those requirements, informed rate. that person, the relevant provincial agri- cultural inspectorate and the Consorzio di Tutela [producers' association for quality protection] that the said request had been granted subject to the inspectorate's supervising the product's (c) The exclusion of the expenditure in entry into storage. Subsequently the respect of aid for the private storage Italian intervention agency regarded the of cheese contract as concluded once the inspectorate confirmed by report the storage of the quantities of cheese. The transmission to the person concerned of the general terms, in which all the As regards the Commission's refusal to operations carried out were summarized, accept as chargeable to the Fund for his signature, was purely for expenditure in respect of aid for the accounting purposes. Although the aid private storage of Grana Padano and was paid only after receipt of the signed Parmigiano-Reggiano cheeses for the general terms it was nevertheless in fact financial years 1974 and 1975, the Italian due once the inspectorate's report had Government considers that the Com- been drawn up. mission erroneously based its decision on the fact that the storage contracts were concluded several months after the cheeses had gone into storage. According to Article 10 (2) of Regulation (EEC) No 971/68 of the Council of 15 July 1968 (Official Journal, English Special The Italian Government is therefore not Edition 1968 (I), p. 251) private storage able to agree with the Commission's view paid for those cheeses is to be that the contract cannot be said to be conditional on the conclusion of a concluded unless the general terms have contract of storage with the intervention been signed by the person concerned. It agency, and the requirements which states that under Article 1326 of the must be fulfilled for the conclusion of Italian Civil Code a contract is complete such a contract are laid down in Article at the moment when the offeror has 16 of Regulation (EEC) No 1107/68 of knowledge of the other party's the Commission of 27 July 1968 (Official acceptance. In the present case the Journal, English Special Edition 1968 contract was concluded at the moment (II), p- 382). when the intentions of the person

concerned expressed in his application Community regulations are in fact concurred with the intentions of the attained. Italian intervention agency expressed in its letter of acceptance, and came into effect as a result of the verification The Commission points out that by undertaken by the inspectorate and making the grant of aid for the private recorded in the report. storage of certain cheeses conditional on the conclusion of a contract Article 10 (2) of Regulation No 971/68 imposes an The Italian Government opposes the obligation to conclude the contract analogous application, proposed by the before the storage is effected. In Italy, Commission, of the Court's judgment of however, storage contracts were 27 January 1981 in Case 1251/79 concluded several months after the (Italian Republic v Commission of the storage had been effected, and even, in European Communities [1981] ECR 205), some cases, on the day before the expiry according to which the contract does not of the storage period. become perfect until the preparation of the written instrument, after verification As regards the concept of a contract the of all the relevant information by the Commission is of the opinion that in the intervention agency. The system of aid absence of a Community concept it is for the private storage of cheese is necessary to refer to the national law of clearly different from that relating to aid each Member State in relation to those for the storage of wine with which that matters which are not expressly regulated case was concerned. by Community law, such as the form of the contract and the moment at which it may be regarded as concluded and Thus Article 9 (1) of Regulation No binding upon the parties. 1437/70, which relates to wine, expressly provides for the drawing up of a contract in two copies, whereas Regulation Nos In that context it refers to the 971/68 and 1107/68, which relate to aforementioned decision of the Italian cheese, do not lay down any intervention agency's governing board of requirements as to the form of the 20 September 1973. According to Article contract itself. In the present case verifi- 2 of that decision the contract between cation both as to formal and as to sub- the Italian intervention agency and the stantive matters preceded the "con- storer is concluded "at the moment when clusion" of the contract. Moreover the the latter appends his signature to the general terms drawn up by the Italian instrument of acceptance whereby he intervention agency for accounting agrees to comply with the conditions set purposes are superfluous so far as the out in the general terms." Article 5 of Community rules are concerned. Finally, that decision requires the signature of the conclusion of storage contracts in that instrument to be authenticated respect of cheese is not subject to any within a period of five days failing which specific time-limit, such as that provided it will be void. for in the case of storage of wine.

trader to be the decisive factor for the all the required verifications had been purposes of the conclusion of a contract carried out beforehand. rather than the drawing up of a storage report by the provincial inspectorate. Furthermore, until the moment of The Commission in its rejoinder refers to signature the trader has not entered into the Court's judgment of 29 April 1982 in any obligation with regard to the Italian Joined Cases 66 and 99/81 Pommerehnke intervention agency even if there has and Others [1982] ECR 1363 in order to been compliance with all the necessary reaffirm its view that those aspects of a storage requirements. Consequently, storage contract which are not regulated until the signature of the instrument of by Community law are governed by acceptance the Italian intervention national law, that is to say in the present agency did not have at its disposal any case by the decision of the governing legal instrument which would enable it to board of the Italian intervention agency enforce the trader's obligations. dated 20 September 1973. It is of the opinion that it is not possible to assume that a trader has the intention to incur The Commission therefore takes the an obligation when he makes his view that the storage operations were not application since the aforesaid decision effected according to the Community explicitly defers the making of the rules but according to a system which contract to the later stage of the prevents a definitive verification by the signature of the general terms. The Italian intervention agency, sometimes reason why the contract does not come up to the last day of the storage period, into existence until such signature and which makes it impossible to enforce resides, even more than in any formal the obligations which it is the intention defect, in the absence of agreement of Community law to impose on the between the parties. trader by the system of contracts.

application as a contractual offer. verification. In that respect it refers to Nevertheless, even from that point of Article 7 of Regulation (EEC) No view, the trader's application is made by 1437/70 of the Commission of 20 July reference to the entirety of the storage 1970 (Official Journal, English Special system established by Community and Edition 1970 (II), p. 469) according to national provisions, including conditions which the producer is to be under an as to form. obligation to allow, at any time during the period for which the contract is concluded, the identity and volume of Finally, the Commission maintains that the wine which is the subject of the the verification to ensure that all the contract to be rectified. requirements for the grant of the aid are met did not take place until after the In its reply the Italian Government again delivery of the letter of acceptance which points out that the sale of products was regarded by the Italian intervention placed in storage during the period of agency as the beginning of the agreed validity of the contract, referred to by period of storage. In its judgment of 27 the Commission in the summary report, January 1981 in Case 1251/79 (cited has never been established. As a above) the Court has already stated that consequence of the results of the first an interpretation of the term "con- on-the-spot inspection the Italian clusion" of the contract which would intervention agency had to correct only enable a right to the Community aid to certain arithmetical errors on the part of be established, even before it was the producers. determined that the conditions governing that aid were fulfilled, cannot be accepted. The Commission states that the present proceedings relate to long-term storage contracts made during the marketing year 1971 to 1972, the clearance of (d) The exclusion of the expenditure in which had been suspended pending the respect of aids for the storage of judgment in Case 1251/79. It considers wine the problem to have been resolved by that judgment. Furthermore the sale of products placed in storage during the As regards the Commission's refusal to period of validity of the contract did not provide Community finance in respect of lead to any additional deduction other aids granted in connection with contracts than that made by reason of the delayed for the private storage of wine made conclusion of the contracts. with retroactive effect after the expiry of the period prescribed in the Community regulations, the Italian Government requests . the Court to reconsider this problem which was the subject of its IV — O r a l p r o c e d u r e judgment of 27 Januar 1981 in Case 1251/79 (cited above). In that judgment the Court based its reasoning on the The parties presented oral argument at need for the intervention agency to the sitting on 23 November 1982. verify before the conclusion of the contract that the conditions for the grant of the aid are satisfied. The Italian The Advocate General delivered her Government considers that the contract Opinion at the sitting on 18 January may be concluded independently of such 1983.

4 At the present stage of the proceedings the parties no longer dispute that at the relevant time the average of the prices recorded on the market places in Alessandria, Milan, Bologna, Padua, Ancona and Grosseto was about LIT 9 500 per quintal and that the selling prices of intervention cereals charged by the Italian intervention agency were between LIT 8 000 and LIT 8 200 per quintal.

JUDGMENT OF 15. 3. 1983 — CASE 61/82

5 Nevertheless the Italian Government contends that in 1973 and 1974 there was a particular economic situation which led the Italian authorities to introduce a temporary price-freeze for certain products, such as pasta products, which were consumed in large quantities. The prices of the intervention cereals were determined on the basis of the price-freeze. The intervention cereals were disposed of by the Italian intervention agency in order to facilitate, in the face of speculative operations on the market, the maintenance of the freeze which would have failed if the cereals had been sold at the market price.

6 That argument cannot be accepted. Whilst considerations of a social nature may justify the taking of appropriate steps in order to obtain, at a Community level the adaption of the relevant rules, they may not however lead to an interpretation of the Community regulations which is contrary to their wording and objectives.

7 In that connection it is necessary to record that the provisions of Regulation No 376/70, according to which the selling price of the intervention cereals put up for sale by intervention agencies must be no less than the local market price, are intended to avoid deterioration of the market and therefore to guarantee the proper functioning of the Community intervention measures.

11 According to the Commission only the milk product actually used for animal feed is eligible for Community aid. If the Italian Government's view were adopted aid would have to be granted for any quantity of the milk product used in the process of manufacturing animal feed.

12 The Commission's point of view must be regarded as correct. It accords with the actual wording of the provisions of Regulation No 990/72 and is based on the recitals in the preamble thereto which, after referring to the necessity of making certain changes to the existing regulations, state expressly that there is a need to ensure "that the skimmed milk and skimmed-milk powder for which aid is granted are in fact used as feed."

1 3 The Italian Government also claims that the Commission, even if its in- terpretation is correct, is not entitled to reduce the expenditure in question by 2 % since the rate of 2 % is the maximum laid down by the Italian rules. In reality the average percentage of waste for which the aid has been granted should be assessed at 1%.

u As evidence the Italian Government submitted to the Court a table which, however, related to only 2 5 % of the total quantity of milk powder processed into animal feed in Italy during the years 1974 and 1975. In relation to that quantity the average loss amounted to 1.745% in 1974 and 1.464% in 1975.

is In those circumstances it has not been established that of the total quantity which had been processed the percentage of actual waste differed to any appreciable degree from the maximum rate of 2 % which was laid down by the Italian rules and which the Commission adopted as a basis at the time of clearance.

20 It therefore follows that this part of the application must also be dismissed.

(d) Aids for t h e s t o r a g e of c h e e s e

2i Article 10 (2) of Regulation (EEC) No 971/68 of the Council of 15 July 1968 laying down general rules for the intervention on the market in Grana Padano and Parmigiano-Reggiano cheeses (Official Journal, English Special Edition 1968 (I), p. 251) provides that private storage aid in respect ol those

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cheeses is to be conditional on the conclusion of a storage contract between the intervention agency and any person capable of fulfilling the requirements or such a contract.

22 The Italian Government maintains that, according to the practice of the Italian intervention agency, the drawing up by a State official of the record of entry into storage, in which the date of commencement of the storage is stated, must be deemed to constitute the conclusion of a contract.

24 In essence the Italian Government relies on the argument to the effect that the conclusion of a storage contract is governed by national law. Unlike the Community provisions relating to the storage of wine, which were the subject of the judgment of 27 January 1981, those relating to the storage of cheese do not lay down any particular requirement as to the form of the contract. Under Italian law the general rules of the Civil Code provide that a contract is concluded at the moment when the intentions of the two parties concur By sending an application for the conclusion of a storage contract to the Italian, intervention agency the storer makes an offer to that agency which it accepts when the report recording the quantities of stored cheese is drawn up. The written instrument, in the form of the general terms, which the storer is later invited to sign, merely summarizes for accounting purposes the operations which have already been completed.

25 The Commission, like the Italian Government, starts from the premise that in the present case the question of the conclusion of the storage contract is governed by Italian law. Nevertheless the provisions of national law

JUDGMENT OF 15. 3. 1983 — CASE 61/82

applicable to the activities of the Italian intervention agency provide that the contract between that agency and a storer is concluded at the moment when the latter appends his signature to the instrument of acceptance by which he undertakes to comply with the conditions set out in the general terms.

26 It is necessary to point out that although the provisions of Community law do not expressly lay down the form of the contract for the storage of cheese, they are based on the assumption that every storage operation must be preceded by the conclusion of a written contract in order to be eligible tor the Community aid provided for in Article 10 (2) of Regulation N o 971/68.

so It follows that a contract of storage is not concluded, for the purposes of Regulation N o 971/68, until the moment when the written instrument is signed. Moreover, it is in order to comply with that requirement laid down by Community law that the provisions of Italian law governing the activities of the Italian intervention agency lay down the detailed rules in accordance with which the storage contracts are to be signed.

3i Consequently, the complaint made by the Italian Government against the refusal to charge to the Fund certain expenditure concerning aid for the storage of cheese cannot be upheld.

32 In the light of all the foregoing considerations the application must be dismissed.

Costs

33 Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. Since the applicant has failed in its submissions it must be ordered to pay the costs.

On those grounds,

Bosco Koopmans Due Bahlmann

Delivered in o p e n court in L u x e m b o u r g on 15 M a r c h 1983.

P. Heim J. Mertens de Wilmars

Registrar President

OPINION OF MRS ADVOCATE GENERAL ROZÈS DELIVERED ON 18 JANUARY 1983 '

Mr President, cases relate in effect to intervention Members of the Court, cereals, milk and milk products, wine and pigmeat. The Government of the Italian Republic has brought two actions for the partial annulment of two decisions of the 1 — Intervention cereals Commission dated 16 November 1981 2 concerning the clearance of accounts in By Decision 81/1043/EEC (Official respect of expenditure for 1974 and 1975 Journal 1981, L 375, p. 25) the financed by the European Agricultural Commission refused to recognize as Guidance and Guarantee Fund (herein- after referred to as "the Fund"), chargeable to the fund a sum of LIT Guarantee Section. 2 264 702 642 in respect of the sale of intervention cereals. I shall present my submissions in respect Regulation (EEC) No 2104/73 of the of both actions in a single opinion so as Council of 1 August 1973 (Official to avoid repetition, but in the interests of Journal 1973, L 214, p. 2) concerns the clarity I have chosen to present my transfer to and sale by the Italian arguments in relation to each product intervention agency of common wheat which has been the subject of litigation held by the German, French and Belgian as regards expenditure, since the two intervention agencies. Pursuant to the regulation 200 000 tonnes of common wheat were put at the disposal of the 1 — Translated from the French. 2 — Decisions 81/1043/EEC and 81/1044/EEC. Azienda di Stato per gli Interventi sul