C-22/89

2. The dispute is a straightforward one and turns on the interpretation of the relevant Community rules. Those rules are set out in 4. It is common ground that Article 6 Commission Regulation (EEC) No 685/69 implicitly requires Member State authorities of 14 April 1969 on detailed rules of to carry out tests on the keeping quality of application for intervention on the market butter put into trial storage in order to in butter and cream (Official Journal determine whether abnormal deterioration English Special Edition 1969 (I), p. 194) has taken place. The dispute turns on when as amended by Commission Regulation those tests should be carried out. The (EEC) No 1829/80 of 11 July 1980 practice of the Dutch authorities is to take (Official Journal 1980 L 178, p. 22) and samples towards the end of the trial Commission Regulation (EEC) No 1836/86 two-month period, on average around day of 12 June 1986 (Official Journal 1986 53. In the Commission's view, the tests L 158, p. 57). should not take place before the end of that period, at the earliest on the last day, at the latest several days afterwards.

3. Under Regulation No 685/69, inter­ vention agencies are to buy in butter only if it satisfies certain requirements, including requirements as to good keeping quality 5. Case C-11/90 Netherlands v Commission (Articles 2 and 3). To that end, Article 6(1) raises the same issue in relation to the

* Original language: English.

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OPINION OF MR JACOBS —CASE C-22/89

6. In the present case, the Netherlands Government argues that the wording of Article 6(2) of Regulation No 685/69, which refers to deterioration 'during the storage test period', indicates that testing 7. The Commission argues that its interpre­ must take place before the end of that tation is in keeping with the purpose of the period. It points out that, in view of the trial period, which, by guaranteeing that the consequences of the rejection of butter as butter meets the required standards for substandard, it is in the interests of the seller keeping quality, reduces the risk for the to know before the end of the trial period Community of deterioration in the quality whether or not the butter will be purchased: of the butter during the period of inter­ the Commission's interpretation in effect vention storage which follows that period. results in an extension of the trial period, While acceptable results to tests carried out which would leave the seller in continuing towards the end of the trial period might uncertainty and could result in his incurring indicate a probability that the butter will increased storage costs. The Netherlands meet the required standards at the end of Government also considers that its interpre­ that period, it cannot establish this with any tation is perfectly in keeping with the certainty. The Commission argues that the objective of Article 6, which is to ensure interest of the seller in knowing what his that the butter meets the necessary obligations are can be met by carrying out conditions for keeping quality. In this the tests as soon as possible after the end of regard, it relies on a Danish study (annexed the trial period. As regards the arguments to the Application) on the effect of on legal certainty and legitimate expec­ temperature on the keeping quality of tations, the Commission points out that it different butter varieties put in cold storage. did not discover the Dutch practice until it According to the Netherlands Government, carried out certain inspections in 1987; in that study suggests that butter kept in cold any event, it explained its interpretation at a storage at a temperature of -18° C which has meeting of the Milk Management not shown any abnormal deterioration after Committee in August 1985 and confirmed it 45 days will not show any after 60 days. in an interpretative note of March 1986.

Member States thus had adequate time to 11. It is, of course, conceivable that that adapt their practice to the correct interpre­ objective could be achieved by other tation. methods. The Netherlands Government, relying on the Danish report already referred to, argues that tests carried out after only 14 days on samples of butter taken at the time of entry into cold storage 8. In my opinion, the wording of the regu­ and kept at a temperature of 13°C, already lation supports the Commission's strict provide a sufficient guarantee of keeping interpretation. Article 6(1) provides for quality and that butter which passes those butter to be put through a 'storage test tests will not manifest serious deterioration period', the purpose of which, as the cited for some 564 days. If that is correct, then it words clearly indicate, is to permit an might indicate that the two-month trial assessment to be made of the keeping period is longer than is necessary and that quality of the butter before it is definitively the regulation should be amended to take taken over by the intervention agency. The account of technical advances in testing trial period is expressly fixed at two months, methods. The issue is a technical one which not more and not less. The wording of has certainly not been determined by these Article 6(1) thus clearly indicates that proceedings. The significance of the Danish testing for keeping quality cannot take place report was the subject of a written question before the end of the trial period. put by the Court to the Netherlands Government and of questions asked at the hearing, the answers to which have not in my view removed the doubts about its relevance. 9. It is not possible for the words 'during the storage test period' in Article 6(2) to bear the strained interpretation put on them by the Dutch Government. These words cannot indicate that it is sufficient to carry out tests on keeping quality in the course of the trial period, ,since that would be in flat contradiction with the requirement in 12. In any event, the Court has consistently Article 6(1) that the trial period is fixed at ruled, notably in Case 819/79 Germany v two months. In my view, Article 6(2) is Commission [1981] ECR 21 , that where merely concerned with the consequences of Community legislation prescribes a the finding, at the end of the trial period, particular system of supervision, the need that the butter has suffered an abnormal for a uniform application of Community deterioration in quality, and contains no regulations requires that Member States indication as to the timing of the tests. must comply with that system, so that it is not necessary to consider whether an alter­ native system might be no less effective than that prescribed. Accordingly, for so long as Regulation No 685/69 lays down a storage 10. The objective of the two-month trial test period of two months, there is in my . period and the quality tests, namely, to view no doubt that Member State auth­ provide a guarantee of keeping quality orities must test for keeping quality at the. before the butter is definitively taken into end of the test period, even if they have intervention storage, also supports a strict already carried out other tests at the outset interpretation of the regulation. of or during the period.

14. It also appears to me that the arguments in relation to legal certainty and protection 15. Finally, I would also reject the of legitimate expectations must be rejected. argument of the Netherlands Government The Netherlands Government has itself that, having regard to the difficulties of produced, as annex to the Application, the interpretation raised by Article 6 of Regu­ Minutes (in French) of the 726th meeting of lation No 685 / 69 , and to the number of the Management Committee for Milk and Member States which applied a different Milk Products, held on 16 August 1985, interpretation from that of the Commission, which records at paragraph 7f(1) an inter­ the reasons given for the disallowance in the pretative statement by the Commission to Summary Report on the clearance of the effect that 'les contrôles de l'organisme accounts for 1986 must be regarded as d'intervention doivent [donc] être effectués inadequate. The Commission's position is au terme de cette période probatoire' fully set out at paragraph 3.3.4.2 (at pp. 54 (emphasis added). The Netherlands and 55) of the Summary Report, and I have Government also appends an Interpretative already indicated that in my view there was Note of the Commission (in English) of 18 no basis for an alternative interpretation, March 1986, which at paragraph 2, second even if held by a relatively large number of indent, sets out in relation to Article 6(2) of Member States. As regards the specific Regulation No 685/89 the consequences 'if, percentage of disallowance, i.e. 0.25% of at the end of the probationary period, it is relevant expenditure, it appears from the established that the butter does not meet the Summary Report that the Commission quality requirements referred to in Article reached this figure on the basis of two 2 ... ' (emphasis added). The Netherlands considerations. First, the quality controls on Government contends that these statements, production carried out in the five affected and in particular the underlined phrases, Member States were, on the whole,