C-270/87
ECLI:EU:C:1989:70
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OPINION OF MR MISCHO —CASE 270/87
OPINION OF MR ADVOCATE GENERAL MISCHO delivered on 16 February 1989 *
Mr President, nothing has been added" in Article 1(a), Members of the Court, read in conjunction with the provisions of Regulation (EEC) No 1105/68 of the Commission, be interpreted as meaning that the application of a process which, in order 1. The plaintiff in the main proceedings, to attain the required dry-matter content, Coöperatieve Melkverwerkingsvereniging involves removing, after the buttermaking, DOC wa (hereinafter referred to as 'the the water that was used in its preparation Cooperative'), applied to the competent and that remained behind in the buttermilk Netherlands authorities for the grant of aid from the sweet buttermilk residue separated pursuant to Regulation (EEC) No 986/68 for the purpose, and subsequently remixing of the Council of 15 July 1968 laying down the sweet buttermilk, thus condensed, with general rules for granting aid for skimmed the sour buttermilk residue resulting from milk and skimmed-milk powder for use as the buttermaking, constitutes the addition of animal feed (Official Journal, English a product precluding the grant of aid Special Edition 1968 (I), p. 260) and Regu pursuant to Article 1 of Regulation (EEC) lation (EEC) No 1105/68 of the No 986/68?' Commission of 27 July 1968 on detailed rules for granting aid for skimmed milk for use as animal feed (Official Journal, English Special Edition 1968 (II), p. 379). 4. Under Article 10(1) of Regulation (EEC) No 804/68 of the Council of 27 June 1968 on the common organization of the market in milk and milk products (Official Journal, 2. That aid was ultimately refused on the English Special Edition 1968 (I), p. 176), as grounds that 'a condensed milk product' amended by Regulation (EEC) No 465/75 had allegedly been added to the buttermilk. of the Council of 27 February 1975 The Cooperative thereupon appealed to the (Official Journal 1975, L 52, p. 8), aid is to College van Beroep voor het Bedrijfsleven, be granted inter alia to skimmed milk and The Hague, which considered that the case buttermilk produced in the Community and turned on the interpretation of the used for feed if those products meet certain Community rules, since the applicable conditions. Those conditions are laid down Netherlands provisions were identical to the in particular in Article 1 of Regulation No Community provisions. 986/68, as amended, which is worded as follows: 1
3. The College van Beroep therefore 'For the purposes of this Regulation: referred the following question to the Court of Justice:
(a) "milk"
'Must Regulation (EEC) No 986/68 of the means the milk-yield of one or more Council, in particular the words "to which cows, to which nothing has been added
* Original language: French. 1 — Emphasis added-
COÖPERATIEVE MELKVERWERKINGSVERENIGING DOC v PRODUKTSCHAP VOOR ZUIVEL
and which, at the most, has been only (5) The granting of aid shall be subject to partially skimmed; the following conditions being met:
(b) "buttermilk" (a) ...
means the by-product of the manu facture of butter from milk or cream, (b) in the case of buttermilk the defatted even though naturally or artificially dry matter content must be at least soured; 8.00%.
(c) "skimmed milk" (6) However, these minimum values shall not apply in the following cases:
means milk or buttermilk with a maximum fat content of 1%; (a) when the average of the minimum values for the product in a Member State or in a region of a Member State exceeds the limit fixed in the preceding paragraph, this limit shall be replaced by the average value for the Member State or region concerned; this 5. Rules for the implementation of that replacement may be limited to the Regulation were laid down by the portion of the year during which the Commission in Regulation No 1105/68, as minimum value is used; amended by Regulation (EEC) No 2114/75 of 11 August 1975 (Official Journal 1975, L 215, p. 12) and Regulation No 1645/78 of 13 July 1978 (Official Journal 1978, (b) ... L 191, p. 23); Article 1(2) of Regulation No 1105/68 provides that: 'Aid shall be granted only for qttantities of skimmed milk mixed with feed milk'. Article 1(4), (5) and (c) when in the case of buttermilk the dry (6) of Regulation No 1105/68, as amended, matter content is for justified techno add the following further conditions: logical reasons not less than 4 % but less than the minimum specified defatted dry matter content. In such '(4) Where skimmed milk and buttermilk cases the aid which may be granted resulting from the processing of milk into shall be reduced proportionately to the cream or butter are intended for incor reduction in the dry matter content.' poration in milk for animals and to qualify for aid, they may not be diluted in any way which is not normally part of the production methods used, in particular with 6. It follows from those provisions that aid water and/or whey. is granted only for buttermilk within the
OPINION OF MR MISCHO — CASE 270/87
meaning of Article 1(1) of Regulation No 10. It is therefore quite clear that any 986/68 and the question here is what is the addition, whether to the buttermilk or to scope of the conditions laid down by the the milk, precludes the product from qual Community rules. ifying for the aid in question.
7. It is plain, first of all, that the buttermilk 11. The Cooperative further maintains that must result from the processing of milk to in any event there was no such addition in which nothing has been added (Article this instance but rather a partial separation 1(1)(b) of Regulation No 986/68). followed by a remixing. However, buttermilk would not result from processing of milk if it was also partly the result of the addition of substances not in the milk, such as the rinsing water. The prohibition of any additions to milk would 12. However, the Commission argues in lose its purpose if substances could be added this respect that the Community rules at the following stage when buttermilk was exclude not only any addition to the milk or made. buttermilk but also any further processing of the buttermilk intended to increase its defatted dry-matter content.
8. The wording of Article 1(4) of Commission Regulation No 1105/68 bears out this view. 13. That view is borne out by the wording of Article 1 under which the buttermilk must result from the processing of the milk. If a further processing stage were permitted, the buttermilk finally obtained and for 9. There can also be no doubts in this which aid is sought would actually also respect in the light of the case-law of the result from further processing of the Court. It held in a case which also buttermilk, and not only from processing of concerned a product obtained from milk the milk. The extraction, by means of evap within the meaning of Article 1 of Regu oration or other methods, of the water lation No 986/68 2that: contained in the sweet buttermilk and the addition of the condensed buttermilk thus obtained to the sour buttermilk would constitute such further processing. The same would apply if the rinsing water were evap 'A product for the manufacture of which orated off in order to recover the buttermilk substances other than the milk-yield of one contained therein in a diluted state. or more cows have been used cannot attract aids under the intervention machinery referred to above, regardless of the chemical composition of the final product obtained in that way'. 14. Article 1(5) and (6) of the Commission's implementing regulation, No 1105/68, as 2 — Judgment of 11 September 1983 in Joined Cases 205 to 215/82 Deutsche Milchkontor v Germany [1983] ECR 2633. amended, also confirm that interpretation.
COOPERATIEVE MELKVERWERKINGSVERENIGING DOC v PRODUKTSCHAP VOOR ZUIVEL
15. It is quite plain that by referring to the follows that those rules would not achieve average of the minimum values for defatted their purpose if there were no control on dry-matter content in a Member State or in the origin of buttermilk qualifying for aid. a region of a Member State, that the Regu The Commission has convincingly demon lation intended to refer to the values arising strated that it would be extremely difficult in the course of buttermaking and in the to carry out such controls if certain absence of any other operation, namely the processing was allowed because the final values resulting naturally from the product would not reveal what processes processing of the milk, since such a had been carried out and the buttermilk reference would be meaningless if each could therefore have been subject to producer could obtain such values as he processing which in fact merely served to wished by carrying out the necessary oper conceal processes contrary to the purposes ations. of the aid, such as the addition of products or its dilution. It is therefore clear that the purpose of the aid scheme can only be achieved if there is no doubt that the buttermilk results only from the making of butter from milk which, in the absence of adequate means of control, means that any processing is excluded. The facts of this case show the extent of the difficulties since the 16. The same reasoning applies a fortiori to national authorities were unable to Article 1(6)(c). Why should a lower amount determine themselves how the buttermilk of aid for buttermilk having a lower had been processed or what had been added dry-matter content be provided for, if a to it. producer could in any event carry out the necessary processing to alter that content more or less at will?
18. In view of the foregoing the use of the rinsing water and the increase of the buttermilk's defatted dry-matter content by 17. It is, finally, essential to note that the means of any process whatsoever cannot be exclusion of any processing other than that justified by the wish to avoid payment of a of the milk into butter is indispensable for tax on waste water, which was one question the practical application of the rules in raised before the College van Beroep. question, in view of their aim which is to ensure that the best possible return is made from dairy production by means of opti mizing the use of by-products from butter- making. It is therefore absolutely essential that the by-product in question, namely buttermilk, stems exclusively from butter- making rather than from the addition of 19. For all the abovementioned reasons I products having a similar chemical compo propose that the following answer be given sition (whey, condensed milk) which the to the question asked by the College van rules in question do not seek to support. It Beroep voor het Bedrijfsleven.
OPINION OF MR MISCHO — CASE 270/87
20. The provisions of Regulation No 986/68 of the Council in conjunction with those of Regulation No 1105/68 of the Commission should be interpreted as precluding any addition to the buttermilk of substances not contained in the milk and also any further processing intended to raise the defatted dry-matter content of the buttermilk for which aid is sought by the extraction of the water contained in the sweet buttermilk and the mixing of the sweet buttermilk thus concentrated with the sour buttermilk.