C-2/93

EXPORTSLACHTERIJEN VAN OORDEGEM

OPINION OF ADVOCATE GENERAL LENZ delivered on 10 March 1994 *

Mr President, processed into products for purposes other Members of the Court, than human consumption.

A — Facts 3. The measures adopted by the Commis­ sion included Regulation (EEC) No 2351/90. 1 The regulation provided inter alia that pigmeat from the buffer zone (III) could, after heat treatment, be processed nor­ mally and used for human consumption (Articles 4 to 8). 1. In 1990 classical swine fever broke out in certain regions in Belgium with a high con­ centration of pig farms. Both the Belgian State and the European Commission adopted measures to deal with the situation. In order to combat the swine fever the Belgian State established three zones: a protection zone 4. Articles 9 and 10 concern the buying-in of around the centre of infection (I), around pigmeat from the buffer zone (III) by the that a surveillance zone (II) and around the Belgian intervention agency (the BDBL) at latter zone a buffer zone (III). Community cost subject to the maximum quantities and the prices laid down in the regulation. This meat was to be processed into products unfit for human consumption.

2. The Commission also adopted a series of measures in order to prevent the spread of swine fever to other Member States and to support the Belgian pigmeat market. The 5. In accordance with that Commission reg­ most important of those measures was a pur­ ulation the BDBL issued Notice No 55.200, chasing arrangement whereby the Belgian laying down detailed rules for contracts intervention agency (the BDBL), the defen­ between the BDBL and slaughterhouses for dant in these proceedings, bought in pigs the purchase of the meat in question and lay­ from the contaminated zones at Community ing down the conditions which were to gov­ cost. The animals had to be slaughtered and ern such purchases.

6. Article 1 of the notice provided that the requirement to lodge a security was unlawful submission of an application to purchase by because there was no such requirement in a slaughterhouse entailed an undertaking by the relevant Community provisions. the latter to comply with the terms and con­ ditions laid down by the BDBL. Article IX provided in addition that by making an application the slaughterhouse undertook to comply without reserve or restriction with all the obligations set out in the notice. Art­ 9. The Rechtbank van Eerste Aanleg, Brus­ icle XII provided, finally, that invoices con­ sels, thereupon referred the following ques­ 2 cerning payment for the goods must include tions to the Court of Justice for a prelimin­ the lodging of a security in the amount ary ruling: of 110% of the asking price (including VAT) and that that security would be released once the BDBL was in possession of proof that all the conditions laid down in the notice had been met. 'Is the Belgian State, through the intermedi­ ary of the BDBL, in breach of Commission Regulation No 2351/90 of 9 August 1990 when in Article XII of Notice No 55.200 it imposes the prior requirement that a security be lodged for payments chargeable to the European Community of the buying-in 7. In August 1990 the BDBL concluded prices of pigmeat contaminated with swine contracts with the plaintiff in the main pro­ fever? ceedings, on application by the latter, for the purchase of pigmeat from the buffer zone (III). In accordance with Notice No 55.200 that undertaking lodged a security in favour of the BDBL with the second defendant, Generale Bank NV. 1. Is it compatible with Community law for the Belgian intervention agency, in appli­ cation of inter alia Article 8 of Regulation (EEC) No 729/70 of the Council of 21 April 1970, and in connection with measures adopted in order to combat swine fever, in particular the buying-in by 8. Subsequent checks by the authorities the intervention agency of pigmeat in revealed that the meat supplied by the plain­ accordance with Commission Regulation tiff did not meet the conditions agreed upon (EEC) No 2351/90 of 9 August 1990, to with the BDBL. Consequently, the BDBL impose the prior requirement that a secu­ requested the plaintiff to repay the money rity be lodged for payments chargeable to already received, failing which, so it the European Community of the informed the latter, the security would be buying-in prices of pigmeat coming from forfeit. The plaintiff applied to the Belgian the buffer zone? courts for an injunction to prevent the sec­ ond defendant from releasing the security to the BDBL. It relied on the argument that the 2 — OJ C 33 of 5 February 1993.

2.(b) If the Court of Justice rules that the security may not be wholly forfeit may 11. The plaintiff in the main proceedings the Belgian intervention agency, the claims that the contracts it concluded with BDBL, extrapolate from the results of the BDBL concern normal measures for the samples taken in the course of checks support of the pigmeat market, that is to say, of goods sold an overall percentage the purchase of pigmeat by the BDBL for which does not meet the requirements, destruction and processing into products and on that basis require the amounts unfit for human consumption. Regulation paid to be returned and consequently No 2351/90, pursuant to which Notice the security to be called in?' 55.200 was issued, makes no provision for lodging securities in relation to such con­ tracts; such a procedure is provided for only in the case of contracts made with the BDBL in relation to the special aid envisaged in Articles 4 to 8 of the regulation. The security it was asked to lodge cannot therefore be B — Analysis based on that regulation but must be regarded, on the contrary, as an independent security which was required exclusively on the basis of Notice 55.200.

Admissibility

12. This case is governed by the provisions of Council Regulation (EEC) No 2759/75 of 29 October 1975 on the common organi­ zation of the market in pigmeat, 3 which contains an exhaustive set of rules. The 10. Apart from stating the claims of the par­ ties the reference for a preliminary ruling contains no further grounds for the refer­ ence. The facts of the case may be elicited, 3 — OJ 1975 L 282, p. 1.

17. The plaintiff maintains that as a conse­ quence Community law cannot permit the BDBL to require the prior lodging of a secu­ rity, as was the case in the main proceedings.

15. The reason why Regulation No 2351/90 provides for a security only with regard to the support measures provided for in Art­ icles 4 to 8 is that they concern the processing of pigmeat which, after heat

18. That argument cannot be upheld.

4 — Case 16/83 Prantl [1984] ECR 1299. 5 — Case 106/77 Amministrazione Delle Finanze dello Stato v Simmenthal [1978] ECR 629. 6 — OJ, English Special Edition 1970(1), p . 218.

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20. According to Article 8(1) of Regulation No 729/70, which is a concrete expression of the principle laid down in Article 5 of the EEC Treaty, the Belgian authorities have a Second question duty, moreover, to adopt the measures they consider necessary in order to prevent fraud in implementing the buying-in rules con­ 8 tained in Regulation No 2351/90. The mea­ sures must be sufficiently effective, in order in particular to prevent the buying-in of pig- 23. The second question seeks essentially to meat which does not come from the affected ascertain whether and how the Community zone or which is not eligible because of its legal principle of proportionality is to be characteristics. The rules providing for the applied to the requirement of a security. The prior lodging of a security constitute an security is intended to ensure that the meat effective means and, moreover, a method fre­ suppliers comply with a Community-law quently used in the context of the common obligation, but it stems from an autonomous agricultural policy which is necessary in (though compatible with Community law) decision of the national legislature. The court which has made the reference asks to what extent Community law is applicable to that 7 — BayWa, paragraph 29. 8 — Case C-8/88 Germany v Commission [1990] ECR I-2321. obligation. It must be said that in principle

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OPINION OF MR LENZ — CASE C-2/93

legal relationships which have their origin in 25. The Commission is also right to argue national law are governed by national law. that in this case two of the obligations pro­ However, if as in the present case the nature vided for in the Belgian rules governing the of the legal relationship is governed by its buying-in of pigmeat must be regarded as purpose, Community law may have a role to principal obligations: in the first case the play in that manner in interpreting and obligation to supply the BDBL with a prod­ applying the contract regarding the security. uct described in Article 9 of Regulation It is for the national court to establish No 2351/90 and secondly the obligation to whether that is so. ensure that the products supplied come from the affected zones.

EXPORTSLACHTERIJEN VAN OORDEGEM

to combat swine fever, in particular the buying-in of pigmeat by the interven­ tion agency pursuant to Commission Regulation (EEC) No 2351/90 of 9 August 1990, to require the prior lodging of a security for the payment, financed by the European Community, of the purchase price for pigmeat com­ ing from the buffer zone.

(2) The question to what extent national authorities are entitled to forfeit the security in whole or in part is one to be settled in accordance with domestic law. In so far as according to domestic law Community law is applicable, a distinction must be drawn between breaches of the principal and of the ancil­ lary obligations. In the case of breach of principal obligations the security may be forfeited in full. The following are to be regarded as principal obligations: first, the duty to supply the BDBL with goods described in Article 9 of Reg­ ulation No 2351/90; secondly, the duty to supply goods from the buffer zone. In the case of breach of ancillary obligations the security may be declared for­ feit only in part, to an extent commensurate with the severity of the fault.

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