C-215/85

Mr President, bility of the dough; and (c) the degree of Members of the Court, hardening, which is measured in amylogram units, depends on the relationship between the temperature and the viscosity of the dough. Hardening is measured by the 1. In this dispute between the Bundesanstalt Brabender method. A rye-flour suspension is für landwirtschaftliche Marktordnung heated in an amylograph vessel at a [Federal Office for the Organization of constantly rising temperature. As the Agricultural Markets, hereinafter referred to temperature rises, the progressive swelling as 'the Federal Office'], that is to say the of the starch grains increases the viscosity of German intervention agency, and Raiffeisen the paste. Beyond a certain temperature, Hauptgenossenschaft eG [hereinafter further swelling causes the grains to burst referred to as 'Raiffeisen'], the Bundesver­ and spill out their contents, which reduces waltungsgericht [Federal Administrative the viscosity of the paste. The degree of Court] is asking the Court to give a ruling viscosity is measured by a curve consisting on the interpretation and validity of the fifth of four sections, which rises in the first two indent of Article 6 (1) of Commission Regu­ sections and falls in the next two. The lation (EEC) No 1570/77 of 11 July 1977 maximum of 200 amylogram units is on price increases and reductions applicable reached in the first section, surpassed in the to intervention in cereals (Official Journal second and third sections and reached once 1977, L 174, p. 18). According to that more in the final section. provision, national intervention agencies 'may apply, at the time of intervention, a special increase of 3.11 units of account per tonne in respect of rye in production 2. Facts of the case: between August 1978 regions ... where that cereal is regularly and January 1979 the Federal Office bought sold for bread-making ... '. However, the into intervention from Raiffeisen over grant of that increase is subject to one 29 000 tonnes of bread rye harvested in condition, namely the rye must be of 1978. On several occasions Raiffeisen 'particularly good quality' which means that applied for the price increase referred to in 'the amylogram units, based on full milling, Regulation No 1570/77. However, its including the germ, with a hardening applications were rejected by the Federal temperature of the starch of at least 63° C, Office on the ground that the rye of which are not less than 200 units'. it had taken delivery did not satisfy the requirements laid down in the fifth indent of Article 6 (1) of that regulation. Tests carried out on the rye revealed an That wording may seem obscure. In fact, in amylogram curve showing that the order to understand the scope of that maximum of 360 amylogram units had provision, it is sufficient to bear in mind already been reached at a temperature of that: (a) the requirement to which it refers 60°C, whilst at the temperature required by concerns the suitability for baking of flour the aforesaid provision, namely 63° C, the made from bread rye; (b) the suitability of number of units on the now redescending the flour depends on the hardening capa­ amylogram curve was only 280.

2. If part (a) of Question 1 is answered in the affirmative, how is the fifth indent of The Federal Office appealed against that Article 6 (1) as a whole to be in­ judgment. In the proceedings before the terpreted, and in particular is it to be in­ Bundesverwaltungsgericht, it argued that terpreted as meaning that: the only rational interpretation of the contested provision was that the number of amylogram units is to be measured at the summit of the curve and that the (a) the coordinate of not less than 200 temperature is to be recorded at the time of units at a hardening temperature of maximum viscosity. The reason for that at least 63° C must be reached on a requirement is simple: rye-flour becomes rising amylogram curve, or less suitable for baking where the curve is falling. It follows that where rye has already passed the figure of 200 amylogram units on (b) is it sufficient if, at a hardening reaching the threshold temperature of 63° C, temperature of at least 63°C, the it no longer has the properties needed for units on a redescending amylogram the grant of a price increase. curve are not less than 200?

BALM v RAIFFEISEN HAUPTGENOSSENSCHAFT

That interpretation, moreover, is supported (b) the bread rye at issue, the by a number of factors, starting with the amylogram units of which (based on wording of the contested provision. full milling, including the germ) in According to Raiffeisen, it is indisputable certain cases that, had it considered the temperature at the time of maximum viscosity to be decisive, the legislature would have used the (i) reach 610 or 470 units on the expression 'final hardening temperature' or rising amylogram curve at a would have required the temperature of hardening temperature of 61°C, 63°C to be measured 'at the summit of the and, subsequently, curve'. That is borne out by the fact that those expressions are used in the amendment which was made to the provision in question, albeit after the (ii) still reach 560 or 390 units on material events in this case, by Commission the falling amylogram curve at a Regulation (EEC) No 2160/84 of 26 July hardening temperature of 63° C 1984.

OPINION OF MR MANCINI —CASE 215/85

Finally, Raiffeisen relies, in support of its argument, on the objectives pursued by Regulation No 1570/77, which contains the provision at issue. The preamble to that regulation states that the price increase is to That practice can be traced back to March be granted where the rye 'meets minimum 1976, when the International Association physical and 'technological criteria as to for Cereal Chemistry adopted Standard quality'. Raiffeisen points out that that Method ICC No 126, which was taken over sentence is deliberately couched in general by the Commission a few months later. That terms. Thus the legislature's purpose would is borne out by the first recital in the be frustrated if a court did not treat as preamble to Regulation No 1833/76, which eligible for the price increase all rye which, states that since 'the criteria as to quality having regard to the degree of hardening of required for granting the ... increase no the dough, may be considered suitable for longer correspond to present commercial bread-making. practices', it is necessary to amend the rules in force 'in accordance with market practices'. If that is so, and if the Community legislature has been referring to the Brabender method since the mid-1970s, 4. I am not swayed by those arguments. In Raiffeisen's reference to the earlier versions the first place I would point out that, in of the contested provision becomes wholly specifying the threshold temperature at irrelevant. It is indisputable from a technical which the number of amylogram units must point of view that, according to that be not less than 200, the legislature refers to method, at a temperature of at least 63°C 'a hardening temperature'. Hence, in my the 200 amylogram units must be measured view, to interpret those words as referring for the first time on the rising amylogram to a range of temperatures is dangerous to curve, and consequently at the time of say the least. maximum viscosity of the dough.

6. In the light of all the foregoing considerations, I suggest that the Court answer the questions submitted to it by the Bundesverwaltungsgericht by order of 9 May 1985 in the proceedings between the Bundesanstalt für landwirtschaftliche Markt­ ordnung and Raiffeisen Hauptgenossenschaft eG in the following manner:

The expression 'hardening temperature' in the fifth indent of Article 6 (1) of Commission Regulation (EEC) No 1570/77 of 11 July 1977 on price increases and reductions applicable to intervention in cereals must be interpreted as referring to a temperature of at least 63°C which is reached, on the curve described by a Brabender amylograph, at the time of maximum viscosity of the dough.