1.

The first group of questions relates to the extent of the duty of a purchaser of butter sold at a reduced price to have it processed within a specified period (four months) and only into certain specified products (icecream, ice-cream powder and fine bakers' wares), a duty imposed by Article 6 (1) (c), the third option provided by Regulation No 1259/72, which refers to the manufacture of powder for the preparation of edible ices falling within subheadings Nos ex 18.06 D or ex 21.07 F of the Common Customs Tariff. In that connection the national court seeks guidance as to whether the obligation in question is satisfied even if the powder is not used for the preparation of edible ices but is instead separated into its constituent parts and if those ingredients are further processed into milk powder preparations and chocolate. The question makes it clear that here, too, the aforementioned Article 6 (a) of Regulation No 1259/72, the effect of which is one of the points to be determined under Question (c), is relevant. The view adopted by the plaintiffs and Suwelack with reference to that point is that a purchaser of butter sold at a reduced price is only under an obligation, in the circumstances of the main actions, to manufacture ice-cream powder. According to the wording and the general scheme of the legislation, the powder is to be regarded as the end product. Its subsequent use, however, has no bearing on the obligation placed upon the purchaser of the butter, because it is not referred to in the legislation and there is nothing in the required conditions of purchase relating to the ultimate destination of the product, so that the purchaser is not obliged to place corresponding obligations upon his customers. The Bundesanstalt and the Commission take the contrary view that the regulation on the disposal of butter at a reduced price must be construed strictly because it is a special measure. According to them the ultimate use of the butter is very important. It must be so defined as to preclude the possibility of the product's finding its way back to the ordinary butter market and thereby distorting competition. The rules governing the use of the butter under Regulation No 1259/72 are exclusive and exhaustive. Thus it must be ensured that the ice-cream powder, which must be regarded as an intermediate product (subject to the effect of Article 6 (a)), is processed only into ice-cream. With reference to the aforementioned Article 6 (a), the plaintiffs and Suwelack consider that the only conclusion to be drawn from the fact that the preamble to Regulation No 1910/73 refers solely to products falling within heading No 19.08 of the Common Customs Tariff (fine bakers' wares), and from the consideration that Article 6 (1) (c) provides for two other possible methods of processing, is that Article 6 (a) does not apply to the third option therein mentioned, namely the manufacture of ice-cream powder. In addition they have stated that even on the assumption that Article 6 (a) has broader scope, there are no grounds for holding that it has been infringed by them. In fact, they maintain, it has not by any means been established beyond dispute that the sugar in the powder preparation manufactured by Suwelack was extracted, and even if it was the resulting alteration in the level of sweetness would not bring Article 6 (a) into play because the product that resulted was still ice-cream powder, and no other product had been produced at any intermediate stage of processing. The Bundesanstalt and the Commission argue, however, that the interpretation of Article 6 (a) does not depend on the preamble to the regulation (because the statements of reasons such preambles contain are not always comprehensive), but on the wording of the provision itself; and that provision makes it quite clear that it is not restricted to fine bakers' wares but covers all the products referred to in Article 6 (1) (c), and therefore includes ice-cream powder. Furthermore, on the basis of that interpretation and the facts as presented by the court making the reference Article 6 (a) must apply in view of the conditions laid down by it (which are cumulative) precisely because sugar has been extracted from the ice-cream powder and sold: sugar falls within Chapter 17 of the Common Customs Tariff, and is thus a product which belongs to another tariff heading within the meaning of Article 6 (a). (a) If in considering those arguments the last-mentioned question, concerning the interpretation of Article 6 (a), is taken first, it will be seen immediately from the wording of that provision that it was intended to determine the only permitted form of further processing for all the products referred to in Article 6 (1) (c), and not only for the fine bakers' wares falling within heading No 19.08 of the Common Customs Tariff. Since the wording of the legislation is quite unequivocal, it is clear that the preamble to Regulation No 1910/73, which naturally carries less weight by comparison, cannot be interpreted so as to restrict its scope. In addition, the preamble may plausibly be accounted for by the fact that evidently attempts to circumvent the rules in the case of pastries provided the immediate occasion for the introduction of Article 6 (a). However, if, as may be concluded from the preamble, it is the purpose of the provision to ensure that processed butter is not diverted from its proper destination, then that purpose itself suggests a broad interpretation, since it is obvious — and the facts of this dispute are a case in point — that the risk of circumvention is present in the case of all the products referred to in Article 6 (1) (c). Thus Article 6 (a) supports a conclusion which might in any event have been drawn solely from the list of goods contained in Article 6 (1) (c), and the latter provision itself makes it clear that the subsequent destination of the intermediate products made from butter and their ultimate use are by no means irrelevant as far as the legislation is concerned. It may also be added that if the facts are correctly described by the national court (and it is not for this Court to determine whether they are) and sugar was indeed extracted from the powder preparations manufactured by Suwelack in a further processing, that would certainly amount to a failure to comply with Article 6 (a); it does not matter whether the powders that remained could still be regarded as ice-cream powder, albeit with less sweetening; the decisive fact is simply that further processing resulted in the production of sugar, a product which certainly does not fall within the tariff headings referred to in Article 6 (1) (c). (b) It is in fact already clear from that inescapable conclusion regarding Article 6 (a) that the central argument of the plaintiffs and Suwelack, namely that only the manufacture of a powder preparation is relevant and that its subsequent destination is not relevant for the purposes of the legislation, is untenable. However, there are other arguments in favour of the position adopted by the Commission and the Bundesanstalt. There is the important point that Article 6 lays down an obligation to have concentrated butter processed ‘only’ into certain clearly specified products, namely those set out in subparagraph (c), and this clearly implies that it cannot be used for any other purpose. It is apparent from the third option — powder for the preparation of edible ices suitable for consumption without any treatment other than the addition of water and refrigeration — that subject to the abovementioned Article 6 (a), the powder preparations must be put to that use alone, and that therefore a purchaser of butter who is not processing the butter further himself must ensure that it is used for the purpose specified for it. Another important consideration is that the preamble to Regulation No 1259/72 states that its purpose is ‘to ensure that the butter is not diverted from its destination.’ That implies that steps must be taken, if necessary by means of contractual provisions to that effect, to ensure that processing results in permanent withdrawal of the product from the market in butter and milk products; there must also be a guarantee that the products of processing do not find their way back to the ordinary market in another form (for instance, as milk powder), which would not be possible if the subsequent fate of a powder preparation manufactured in accordance with Article 6 (1) (c) were irrelevant for the purposes of the legislation. Furthermore, reference may be made to the case-law of the Court on this topic. For instance, I may recall the position adopted in the judgment in Joined Cases 99 and 100/76 ( 1 ) that it must be ensured that the butter sold at a reduced price does not reach the normal market ([1977] ECR 861 at p. 871, paragraph 7). I refer the Court to a similar conclusion in the judgment in Case 217/78 ( 2 ) (to ensure that the butter thus disposed of is used in accordance with that purpose and that it is not freely marketed, [1979] ECR 2287 at p. 2300, paragraph 9). Finally, I refer to the judgment in Case 64/81, ( 3 ) in which it was stressed that suitability for consumption as an edible ice within the meaning of Regulation No 1259/72 requires treatment of the basic product such that its sole possible application is the production of edible ices [(1982] ECR 13 at p. 25, paragraph 9). The arguments put forward by the plaintiffs and Suwelack in support of their views provide no conclusive answer to that. Thus, where they interpret the word ‘only’ in Article 6 (1) (c) of Regulation No 1259/72 as meaning that the purchaser's obligation in relation to the third option extends only to the manufacture of the intermediate product, their argument is open to the objection that it ignores not only the clear meaning and purpose of the legislation, as it appears from the preamble, but also the context of the provision and above all Article 6 (a), which, as is stated in the preamble to Regulation No 1910/73, was only intended to define more precisely what processing was permitted (thus making it clear that further processing of a kind not provided for was already prohibited by Regulation No 1259/72 itself). The following points must, it is true, be conceded. The obligations of the purchaser as regards the manufacture of ice-cream powder in respect of the keeping of stock records, storage and cooperation (particularly those that are imposed by national provisions) end with the manufacture of the intermediate product. Again, Community legislation does not specifically deal with the manufacture of the end product ‘ice-cream’. Lastly, the manufacture of the ice-cream is not subject to official controls or to a time-limit. However, this evidently means only that certain administrative and even economic constraints were taken into account. Nevertheless, it cannot be. concluded, contrary to the clear meaning and purpose of the legislation, that as far as the achievement of the aim of the legislation is concerned the purchaser's obligation ends with the manufacture of the intermediate product. Reference was also made to the third subparagraph of Article 18 (2), which provides that Member States may deem the necessary proof to have been furnished in the case of small quantities provided that a statement from the final user is submitted. With regard to that point (I shall return later to the extent of the duty to furnish proof), it has been rightly pointed out that an alleviation of the duty to furnish proof does not provide any conclusive indication as to the extent of the substantive legal obligations at issue. Finally, it is clear that the plaintiffs' reference to remarks said to have been made by Commission officials (but disputed in the oral proceedings), to the effect that the further use of the ice-cream powder was immaterial is irrelevant. Similarly, it cannot be claimed that obliging the purchaser to provide a guarantee covering the manufacture of the end product constitutes a breach of the principle of proportionality (on the ground that the purchaser may thereby be required in certain circumstances to check the destination of the intermediate product personally over a long period and through a number of commercial transactions). The principle applies only to onerous administrative measures, whereas the obligations that arise in the context of Regulation No 1259/72 relate to contracts governed by private law. However, apart from that it does not seem unreasonable to include appropriate conditions in contracts for the resale of intermediate products and to take precautions to ensure that the aims of the legislation are achieved. (c) Thus it may be concluded with regard to the first group of questions that under Regulation No 1259/72, which contains ample guidance for our purposes, the obligation imposed on the tenderer under Article 6 (1) (c) in respect of the manufacture of ice-cream powder is only fulfilled if ice-cream (or, in accordance with Article 6 (a), one of the products referred to therein) is actually made from the powder preparation, and therefore the relevant undertaking is breached if the ice-cream powder is separated into its constituents and the sugar thus obtained is sold separately.