Judgment of the Court of 14 March 1973. - Westzucker GmbH v Einfuhr- und Vorratsstelle für Zucker. - Reference for a preliminary ruling: Hessischer Verwaltungsgerichtshof - Germany. - Premiums for denaturing sugar. - Case 57-72.



European Court reports 1973 Page 00321

Greek special edition Page 00499

Portuguese special edition Page 00167



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

++++

1 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - SUGAR - DENATURING - PREMIUMS - SYSTEM - IMPLEMENTATION - COUNCIL AND COMMISSION - RESPECTIVE POWERS

( EEC TREATY, ARTICLE 155 AND REGULATION NO 1009/67 OF THE COUNCIL, ARTICLE 9 ( 8 ))

2 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - SUGAR - INTERVENTION ON THE MARKET - FORMS - PRIORITY - ABSENCE OF PRIORITY

( REGULATION NO 1009/67 OF THE COUNCIL )

3 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - SUGAR - INTERVENTIONS ON THE MARKET - COMMISSION - POWERS OF EVALUATION - JUDICIAL CONTROL - LIMITS

( REGULATION NO 1009/67 OF THE COUNCIL )

4 . AGRICULTURE - COMMON AGRICULTURAL POLICY - IMPLEMENTATION - PREPARATORY DISCUSSIONS-MANAGEMENT COMMITTEE - MECHANICS OF COLLECTIVE DISCUSSION - INTERESTS ON MEMBER STATES - CONFLICTS - GENERAL INTEREST - ARBITRATION BY THE COMMISSION

5 . ACTS OF AN INSTITUTION - REGULATION - IMMEDIATE ENTRY INTO FORCE - JUSTIFICATION

( EEC TREATY, ARTICLE 191 )

6 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - SUGAR - DENATURING - PREMIUMS - APPLICATIONS FOR THE GRANT OF PREMIUMS - ADDITIONAL INFORMATION - MEMBER STATES - POWERS

( REGULATION NO 833/68 OF THE COMMISSION, ARTICLE 2 )

Summary

1 . THE COMMISSION IS ENABLED, UNDER ARTICLE 9 ( 8 ) OF REGULATION NO 1009/67, TO EXERCISE THE POWERS NECESSARY TO ENSURE THE FUNCTIONING OF THE SYSTEM OF DENATURING PREMIUMS, IN SO FAR AS THE COUNCIL HAS NOT ITSELF PROVIDED FOR IT IN IMPLEMENTING REGULATION NO 768/68 .

IT FOLLOWS THAT, SUBJECT TO THE GENERAL RULES LAID DOWN BY THE COUNCIL, THE COMMISSION HAS THE RIGHT TO DECIDE ON BOTH THE GRANT AND THE AMOUNT OF THE DENATURING PREMIUMS AND THAT, THEREFORE, IT HAS THE POWER TO DECIDE WHETHER THEY SHOULD BE SUSPENDED .

WITH THIS END IN VIEW, IT ALSO FALLS TO IT TO DETERMINE THE APPROPRIATE TECHNICAL METHOD, WHICH MEANS THAT, RATHER THAN ANNOUNCING THE SUSPENSION OF THE PREMIUM, IT MAY FIX IT AT NIL, IN ACCORDANCE WITH A METHOD CURRENT IN FISCAL LAW AND ADOPTED BY COMMUNITY LAW .

2 . REGULATION NO 1009/67 DOES NOT EVIDENCE ANY INTENTION ON THE PART OF THE COMMUNITY LEGISLATURE TO ESTABLISH ANY PRIORITY BETWEEN THE DIFFERENT FORMS OF INTERVENTION ON THE MARKET FOR SUGAR .

THE CHOICE IS CONDITIONAL AT ONE AND THE SAME TIME UPON THE VARIABLE CIRCUMSTANCES OF THE MARKET, THE FINANCIAL CHARGES ARISING FROM THE IMPLEMENTATION OF THE CHOSEN MEASURES AND THE DIFFICULTIES WHICH THE DISPOSAL OF DENATURED SUGAR MAY CREATE ON THE MARKET FOR FEEDINGSTUFFS .

3 . IN REGARD TO INTERVENTIONS ON THE MARKET FOR SUGAR, THE COMMISSION ENJOYS A SIGNIFICANT FREEDOM OF EVALUATION, WHICH MUST BE EXERCISED IN THE LIGHT OF THE OBJECTIVES OF THE ECONOMIC POLICY LAID DOWN BY REGULATION NO 1009/67 WITHIN THE FRAMEWORK OF THE COMMON AGRICULTURAL POLICY .

WHEN EXAMINING THE LAWFULNESS OF THE EXERCISE OF SUCH FREEDOM, THE COURTS CANNOT SUBSTITUTE THEIR OWN EVALUATION OF THE MATTER FOR THAT OF THE COMPETENT AUTHORITY BUT MUST RESTRICT THEMSELVES TO EXAMINING WHETHER THE EVALUATION OF THE COMPETENT AUTHORITY CONTAINS A PATENT ERROR OR CONSTITUTES A MISUSE OF POWER .

4 . ONE OF THE AIMS OF THE MANAGEMENT COMMITTEE PROCEDURE IS TO ENABLE THE COMMISSION TO PREPARE ITS INTERVENTION MEASURES IN CLOSE COOPERATION WITH THE NATIONAL AUTHORITIES CHARGED WITH THE MANAGEMENT OF THE MARKET SECTORS CONCERNED .

IT IS CONSONANT WITH THE VERY IDEA OF THE COMMUNITY THAT, WITHIN THE FRAMEWORK OF THE MECHANICS OF COLLECTIVE DISCUSSION SET UP WITH A VIEW TO THE IMPLEMENTATION OF THE COMMON AGRICULTURAL POLICY, THE MEMBER STATES SHOULD EMPHASIZE THEIR OWN INTERESTS, WHILST IT FALLS TO THE COMMISSION TO ARBITRATE, THROUGH THE MEASURES TAKEN BY IT, BETWEEN POSSIBLE CONFLICTS OF INTEREST FREE FROM THE POINT OF VIEW OF THE GENERAL INTEREST .

5 . ARTICLE 191 OF THE EEC TREATY RESERVED TO THE COMPETENT INSTITUTIONS THE RIGHT TO SPECIFY THE DATE OF ENTRY INTO FORCE OF LEGISLATIVE ACTS ACCORDING TO THE CIRCUMSTANCES .

IMMEDIATE ENTRY INTO FORCE DOES NOT NEED TO BE ESPECIALLY REASONED IF IT EXPRESSES A REQUIREMENT OF EFFICIENCY INHERENT IN THE VERY NATURE OF THE MEASURE INTRODUCED BY THE REGULATION .

6 . ARTICLE 2 OF REGULATION NO 833/68 DOES NOT PERMIT NATIONAL AUTHORITIES TO ADD NEW CONDITIONS TO THOSE SPECIFIED IN THE REGULATIONS IN QUESTION BUT MERELY AUTHORIZES MEMBER STATES TO ASK APPLICANTS FOR FULLER INFORMATION THAN THAT REQUIRED BY THE REGULATION .

THIS PROVISION, WHICH IS INTENDED TO ALLOW FOR ADAPTATION OF ADMINISTRATIVE FORMALITIES TO NATIONAL NEEDS AND THEREFORE TO FACILITATE SUPERVISION OF THE OPERATIONS, MUST NOT LEAD TO DIFFERENCES IN TREATMENT IN THE APPLICATION OF THE COMMUNITY RULES FOR THE MARKET FOR SUGAR .

Parties

IN CASE 57/72

REFERENCE TO THE COURT, UNDER ARTICLE 177 OF THE EEC TREATY, BY THE HESSISCHER VERWALTUNGSGERICHTSHOF FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

WESTZUCKER GMBH, HAVING ITS REGISTERED OFFICE AT DORTMUND,

AND

EINFUHR - UND VORRATSSTELLE FUER ZUCKER, HAVING ITS HEAD OFFICE AT FRANKFURT-ON-MAIN,

Subject of the case

ON THE VALIDITY OF ARTICLE 1 ( 1 ) AND ARTICLE 2 OF REGULATION NO 354/69 OF THE COMMISSION OF 26 FEBRUARY 1969, ALTERING THE PREMIUMS FOR DENATURING SUGAR FIXED BY REGULATION NO 840/68, AS WELL AS OF ARTICLE 2 ( 2 ), LAST SENTENCE, OF REGULATION NO 833/68 OF THE COMMISSION OF 28 JUNE 1968, LAYING DOWN RULES CONCERNING THE DENATURING OF SUGAR FOR ANIMAL FEEDING STUFFS,

Grounds

1 BY ORDER DATED 21 JULY 1972, RECEIVED AT THE COURT REGISTRY ON 4 AUGUST 1972, THE HESSISCHER VERWALTUNGSGERICHTSHOF, UNDER ARTICLE 177 OF THE EEC TREATY, REFERRED QUESTIONS RELATING TO THE VALIDITY OF CERTAIN PROVISIONS OF REGULATION NO 833/68 OF THE COMMISSION OF 28 JUNE 1968, LAYING DOWN RULES CONCERNING THE DENATURING OF SUGAR FOR ANIMAL FEEDING STUFFS ( OJ NO L 151, P . 29 ) AND REGULATION NO 354/69 OF THE COMMISSION OF 26 FEBRUARY 1969, ALTERING THE PREMIUMS FOR DENATURING SUGAR ( OJ NO L 49, P . 14 ).

ON THE FIRST QUESTION

2 THE COURT IS ASKED BY THE FIRST QUESTION TO RULE ON THE VALIDITY OF ARTICLE 1 ( 1 ) OF REGULATION NO 354/69 WHICH FIXED THE PREMIUM FOR DENATURING WHITE SUGAR AT 0 UNITS OF ACCOUNT PER 100 KGS .

IN THIS RESPECT, THE VERWALTUNGSGERICHTSHOF ASKS WHETHER THE COMMISSION HAD POWER TO ADOPT A MEASURE THE EFFECT OF WHICH WAS TO SUSPEND PAYMENT OF THE PREMIUM OR WHETHER SUCH A MEASURE COULD ONLY HAVE BEEN ADOPTED BY THE COUNCIL .

IT IS ALSO ASKED WHETHER THE LEGALITY OF THAT MEASURE WAS DEPENDENT ON THE EXISTENCE OF SURPLUSES OF SUGAR WITHIN THE COMMUNITY AND, IF SO, WHETHER SUCH SURPLUSES EXISTED AT THE DATE IN QUESTION .

3 THE PLAINTIFF IN THE MAIN ACTION, FOR ITS PART, ACCUSES THE COMMISSION OF HAVING EXCEEDED ITS POWERS IN SUSPENDING PAYMENT OF THE PREMIUM, OF HAVING IGNORED THE PRIORITY ACCORDED TO THE PAYMENT OF PREMIUMS FOR DENATURING AS OPPOSED TO REFUNDS ON EXPORTS, OF HAVING BEEN INFLUENCED BY AN INCORRECT APPRECIATION OF THE STATE OF THE MARKET AND, LASTLY, OF HAVING SHOWN AN IMPROPER COMPLACENCY IN REGARD TO CERTAIN NATIONAL INTERESTS, TO THE DETRIMENT OF THE INDUSTRY CARRYING OUT DENATURING OF SUGAR .

AS TO THE POWERS OF THE COMMISSION

4 THE PRINCIPLES OF THE COMMON ORGANIZATION OF THE MARKET IN SUGAR WERE ESTABLISHED BY REGULATION NO 1009/67 OF THE COUNCIL OF 18 DECEMBER 1967 ( OJ NO 308, P . 1 ), WHICH LAYS DOWN A BODY OF MEASURES INTENDED TO STABILIZE THE MARKET IN QUESTION AND TO GUARANTEE THE MAINTENANCE OF PRICES FIXED BY THE COUNCIL .

THESE MEASURES INCLUDE THE OBLIGATION FOR INTERVENTION AGENCIES TO PURCHASE, THE APPLICATION OF LEVIES ON IMPORTS AND THE PAYMENT OF REFUNDS ON EXPORTS TO THIRD COUNTRIES, STOCK-PILING ARRANGEMENTS AND THE GRANT OF DENATURING PREMIUMS .

ARTICLE 9 ( 2 ) OF REGULATION NO 1009/67 LAYS DOWN AS TO THIS THAT INTERVENTION AGENCIES MAY GRANT DENATURING PREMIUMS FOR SUGAR RENDERED UNFIT FOR HUMAN CONSUMPTION ".

UNDER THE TERMS OF ARTICLE 9 ( 7 ), THE COUNCIL RESERVES THE POWER SUBSEQUENTLY TO DETERMINE " GENERAL RULES FOR THE APPLICATION OF THE ABOVE PARAGRAPHS ", INCLUDING THE SYSTEM OF DENATURING PREMIUMS .

UNDER THE TERMS OF ARTICLE 9 ( 8 ), " DETAILED RULES FOR THE APPLICATION OF THIS ARTICLE ... " ARE ADOPTED IN ACCORDANCE WITH ARTICLE 40, THAT IS BY THE COMMISSION IN ACCORDANCE WITH THE SO-CALLED MANAGEMENT COMMITTEE PROCEDURE, AND " ( SHALL DEAL ) IN PARTICULAR WITH ... CONDITIONS FOR GRANTING DENATURING PREMIUMS AND THE AMOUNT OF SUCH PREMIUMS ".

5 THE GENERAL RULES ON THE DENATURING OF SUGAR FOR ANIMAL FEEDING STUFFS WERE LAID DOWN BY REGULATION NO 768/68 OF THE COUNCIL OF 18 JUNE 1968 ( OJ NO L 143, P . 12 ), ON THE BASIS OF ARTICLE 9 ( 7 ).

THE COMMISSION IN TURN LAID DOWN DETAILED RULES FOR THE DENATURING OF SUGAR BY REGULATION NO 833/68, ADOPTED BY VIRTUE OF ARTICLE 9 ( 8 ) OF THE MAIN REGULATION, THE PROVISIONS ADOPTED BY THE COUNCIL IN IMPLEMENTING REGULATION NO 768/68 ALSO HAVING BEEN TAKEN INTO ACCOUNT .

IN EXECUTION OF THESE PROVISIONS, THE COMMISSION FIRST FIXED THE DENATURING PREMIUM AT 14.03 UNITS OF ACCOUNT PER 100 KG OF WHITE SUGAR BY REGULATION NO 840/68 OF 28 JUNE 1968 ( OJ NO L 151, P . 50 ).

BY THE DISPUTED REGULATION NO 354/69 THE COMMISSION, AFTER HAVING STATED IN THE PREAMBLE " THAT THE MARKET FOR SUGAR IS AT PRESENT BEING REORGANIZED ", REDUCED THE PREMIUM TO 0 UNITS OF ACCOUNT, THAT IS, IN PRACTICE SUSPENDED PAYMENT OF IT .

6 ARTICLE 9 ( 2 ) OF REGULATION NO 1009/67 EXPRESSLY GAVE A DISCRETIONARY CHARACTER TO THE GRANT OF DENATURING PREMIUMS, IN CONTRAST TO THE PERMANENT AND OBLIGATORY CHARACTER OF OTHER INTERVENTIONS PROVIDED FOR BY THE SAME REGULATION .

NO OBLIGATION EXISTS, THEREFORE, BY VIRTUE OF THE REGULATION, PERMANENTLY TO MAINTAIN THE SYSTEM OF DENATURING PREMIUMS, WITH THE RESULT THAT THOSE PREMIUMS MAY BE REDUCED OR EVEN SUSPENDED ENTIRELY, ACCORDING TO THE DEVELOPMENT OF PRODUCTION AND MARKET FLUCTUATIONS .

THEREFORE, THE ONLY QUESTION LEFT UNANSWERED ON THIS POINT BY THE MAIN REGULATION IS WHICH AUTHORITY IS ENABLED TO ADOPT SUCH PROVISIONS .

7 THE POWER, WHICH IS GIVEN BY ARTICLE 9 ( 2 ) OF REGULATION NO 1009/67 TO " INTERVENTION AGENCIES ", CAN ONLY BE EXERCISED WITHIN THE FRAMEWORK OF CONDITIONS TO BE DETERMINED IN ACCORDANCE WITH ARTICLE 9 ( 7 ) AND ( 8 ), THAT IS IN CONFORMITY, ON THE ONE HAND, WITH THE GENERAL RULES LAID DOWN BY THE COUNCIL AND, ON THE OTHER HAND, WITH THE DETAILED RULES OF APPLICATION LAID DOWN BY THE COMMISSION IN ACCORDANCE WITH THE SO-CALLED MANAGEMENT COMMITTEE PROCEDURE .

AS THE GENERAL RULES LAID DOWN BY ARTICLE 9 ( 7 ) WERE FIXED BY REGULATION NO 768/68, IT FOLLOWS THAT IT WAS THE COUNCIL' S INTENTION THAT THE FIXING OF ALL OTHER DETAILED RULES OF APPLICATION WERE TO BE REFERRED TO THE COMMISSION .

THIS INTERPRETATION CONFORMS AS MUCH WITH THE SPIRIT OF ARTICLE 155 OF THE EEC TREATY, WHICH PROVIDES THAT THE COMMISSION SHALL " EXERCISE THE POWERS CONFERRED ON IT BY THE COUNCIL FOR THE IMPLEMENTATION OF THE RULES LAID DOWN BY THE LATTER " AS TO THE WORDING OF ARTICLE 9 ( 8 ) OF REGULATION NO 1009/67 THE DRAFTING OF WHICH SHOWS, BY THE USE OF THE WORDS " IN PARTICULAR ", THAT THE CONCEPT OF " DETAILED RULES FOR THE APPLICATION ... " MUST BE GIVEN A WIDE MEANING .

THEREFORE THE COMMISSION WAS ENABLED, UNDER ARTICLE 9 ( 8 ) OF REGULATION NO 1009/67, TO EXERCISE THE POWERS NECESSARY TO ENSURE THE FUNCTIONING OF THE SYSTEM OF DENATURING PREMIUMS, INSOFAR AS THE COUNCIL HAD NOT ITSELF PROVIDED FOR IT IN IMPLEMENTING REGULATION NO 768/68 .

8 IT FOLLOWS THAT, SUBJECT TO THE GENERAL RULES LAID DOWN BY THE COUNCIL, THE COMMISSION HAS THE RIGHT TO DECIDE ON BOTH THE GRANT AND THE AMOUNT OF DENATURING PREMIUMS AND THAT, THEREFORE, IT HAS THE POWER TO DECIDE WHETHER THEY SHOULD BE SUSPENDED .

WITH THIS END IN VIEW, IT ALSO FALLS TO IT TO DETERMINE THE APPROPRIATE TECHNICAL METHOD AND THE MEASURE ADOPTED CANNOT BE CRITICIZED BECAUSE THE COMMISSION, RATHER THAN ANNOUNCING THE SUSPENSION OF THE PREMIUM, CHOSE TO FIX IT AT NIL, IN ACCORDANCE WITH A METHOD CURRENT IN FISCAL LAW AND ADOPTED BY COMMUNITY LAW .

AS TO THE STATE OF THE MARKET AND THE CHOICE OF THE METHODS OF INTERVENTION

9 THE PLAINTIFF IN THE MAIN ACTION POINTS OUT THAT THE COMMISSION WAS OBLIGED TO RECOGNIZE THE PRIORITY WHICH, IN THE OPINION OF THE FORMER, EXISTED IN FAVOUR OF DENATURING PREMIUMS AS OPPOSED TO REFUNDS ON EXPORTS .

FAR FROM OBSERVING THIS ORDER OF INTERVENTIONS, THE COMMISSION CONTINUED TO GRANT REFUNDS ON EXPORTS DURING THE PERIOD WHEN DENATURING PREMIUMS WERE SUSPENDED .

10 REGULATION NO 1009/67 ADMITS OF NO INTENTION OF THE COMMUNITY LEGISLATURE TO ESTABLISH ANY PRIORITY BETWEEN THE DIFFERENT FORMS OF INTERVENTION ON THE MARKET FOR SUGAR .

THE ONLY DIFFERENCE ESTABLISHED IN THIS RESPECT BY THE REGULATION IS THAT CERTAIN ACTIONS, AND IN PARTICULAR THOSE WITH THE OBJECT OF REGULATING IMPORTS AND EXPORTS, HAVE A PERMANENT, OR AT LEAST REGULAR, CHARACTER, WHILE OTHERS, INCLUDING DENATURING ARE ESSENTIALLY DISCRETIONARY .

THE CHOICE OF INTERVENTIONS IS IN EFFECT CONDITIONAL AT ONE AND THE SAME TIME UPON THE VARIABLE CIRCUMSTANCES OF THE MARKET, THE FINANCIAL CHARGES ARISING FROM THE IMPLEMENTATION OF THE CHOSEN MEASURES AND THE DIFFICULTIES WHICH THE DISPOSAL OF DENATURED SUGAR MAY CREATE ON THE MARKET FOR FEEDING STUFFS .

ONE CANNOT THEREFORE ADMIT OF A PRIORITY IN FAVOUR OF DENATURING PROGRAMMES AS OPPOSED TO THE OTHER MEANS OF INTERVENTION PROVIDED FOR BY REGULATION NO 1009/67 .

11 ACCORDING TO THE OPINION OF THE PLAINTIFF IN THE MAIN ACTION, THE COMMISSION RELIED ON AN INCORRECT APPRECIATION OF THE ECONOMIC SITUATION AT THE TIME IN QUESTION IN RELATION AS MUCH TO THE ACTUAL MARKET DATA AS TO THE PROVISIONS FOR FUTURE CONTINGENCIES, AS SURPLUSES EXISTED ON THE MARKET WHICH REQUIRED DENATURING PREMIUMS TO BE MAINTAINED .

THEREFORE THE FINDING IN THE PREAMBLE TO REGULATION NO 354/69 THAT " THE MARKET FOR SUGAR IS AT PRESENT BEING REORGANIZED ", DID NOT CORRESPOND TO THE FACTS AT THAT TIME .

12 AS STATED IN THE RECITALS IN THE PREAMBLE TO REGULATION NO 768/68 OF THE COUNCIL, IN ORDER TO FIX THE DENATURING PREMIUM " OBJECTIVE TESTS SHOULD BE ADOPTED, TAKING ACCOUNT OF THE MOST RATIONAL USE IN RELATION TO THE SITUATION ON THE SUGAR MARKET AND THE COMPETITIVE POSITION OF SUGAR WITH REGARD TO OTHER ANIMAL FEEDING STUFFS FOR WHICH IT CAN BE A SUBSTITUTE ".

TO THIS END, ARTICLE 2 OF THE SAME REGULATION LAID DOWN A CERTAIN NUMBER OF CRITERIA WHICH THE COMMISSION MUST TAKE INTO CONSIDERATION IN DECIDING ON THE PAYMENT OF DENATURING PREMIUMS AND FIXING THEIR AMOUNT, NAMELY THE LEVEL OF THE INTERVENTION PRICE, THE STANDARD AMOUNTS FOR THE TECHNICAL COSTS OF DENATURING AND TRANSPORT CHARGES, THE FORESEEABLE, MARKET PRICES FOR ANIMAL FEEDING STUFFS WITH WHICH DENATURED SUGAR HAS TO COMPETE, THE COMPARISON BETWEEN THE NUTRITIVE VALUE OF SUGAR AND THE NUTRITIVE VALUE OF THE COMPETING ANIMAL FEEDING STUFFS AND, LASTLY, THE WHOLE OF THE SUGAR SURPLUS AVAILABLE FOR DENATURING IN THE COMMUNITY .

13 ALTHOUGH CERTAIN OF THESE CRITERIA ARE CAPABLE OF BEING DETERMINED RELATIVELY PRECISELY, OTHERS MUST BE ESTIMATED APPROXIMATELY OR ON A FLATRATE BASIS .

FURTHER, OVER AND ABOVE THE CRITERIA WHICH REFER TO ACTUAL DATA, ARTICLE 2 OF REGULATION NO 768/68 IMPLIES TAKING FORECASTS INTO ACCOUNT .

SUCH IS THE CASE, PARTICULARLY, IN ESTIMATING " THE WHOLE OF THE SUGAR SURPLUS AVAILABLE FOR DENATURING IN THE COMMUNITY " UNDER ARTICLE 2 ( E ).

IN FACT, THIS DATUM, CAN ONLY COME FROM A COMPARISON BETWEEN, ON THE ONE HAND, STATISTICAL INDICATIONS OF THE AMOUNT OF SUGAR PRODUCED AND, ON THE OTHER HAND, ESTIMATION OF THE FORESEEABLE CONSUMPTION REQUIREMENTS, THE BALANCE OF IMPORTS AND EXPORTS AND, FINALLY, THE NECESSITY TO MAINTAIN BRIDGING STOCKS WITH THE OBJECT OF ENSURING EMERGENCY SUPPLIES AT ALL TIMES .

FINALLY, IT ALSO FALLS TO THE COMMISSION TO FIX THE TIMING AND SPACING OF ITS INTERVENTIONS, TAKING ACCOUNT OF BOTH THE DEVELOPMENT AND TRENDS OF THE MARKET AND POSSIBLE NECESSARY ADJUSTMENTS DUE TO THE EFFECT OF THE MEASURES IMPLEMENTED .

14 THUS THE COMMISSION ENJOYS A SIGNIFICANT FREEDOM OF EVALUATION, WHICH MUST BE EXERCISED IN THE LIGHT OF THE OBJECTIVES OF THE ECONOMIC POLICY LAID DOWN BY REGULATION NO 1009/67 WITHIN THE FRAMEWORK OF THE COMMON AGRICULTURAL POLICY .

WHEN EXAMINING THE LAWFULNESS OF THE EXERCISE OF SUCH FREEDOM, THE COURTS CANNOT SUBSTITUTE THEIR OWN EVALUATION OF THE MATTER FOR THAT OF THE COMPETENT AUTHORITY BUT MUST RESTRICT THEMSELVES TO EXAMINING WHETHER THE EVALUATION OF THE COMPETENT AUTHORITY CONTAINS A PATENT ERROR OR CONSTITUTES A MISUSE OF POWER .

15 THE ALLEGATIONS OF THE PLAINTIFF IN THE MAIN ACTION HAVE REVEALED NO INDICATION OF SUCH AN ERROR OR SUCH A MISUSE OF POWER .

IN FACT THE ARGUMENT OF THE PLAINTIFF IN THE MAIN ACTION IS REDUCED ESSENTIALLY TO STATING THAT AT THE TIME OF THE MEASURE IN DISPUTE, THE MARKET IN SUGAR WAS NOT BEING REORGANIZED AND THAT SURPLUSES OF SUGAR EXISTED IN THE COMMUNITY WHICH CALLED FOR THE MAINTENANCE OF DENATURING PREMIUMS .

HOWEVER, ALTHOUGH THE EXISTENCE OF SUCH SURPLUSES HAS BEEN PROVED, THE COMMISSION' S FREEDOM OF EVALUATION WITH REGARD TO THE MEANS TO BE APPLIED TO ELIMINATE THEM AND THE MOST OPPORTUNE TIME FOR POSSIBLE ACTION TO THIS END REMAINED UNAFFECTED .

16 FINALLY, THE PLAINTIFF IN THE MAIN ACTION CONTENDS THAT THE PROVISION IN DISPUTE WAS VITIATED BY THE FACT THAT DURING THE PREPARATORY DISCUSSIONS OF REGULATION NO 354/69 BY THE MANAGEMENT COMMITTEE, THE COMMISSION YIELDED TO IMPROPER PRESSURES FROM THE FRENCH AND ITALIAN GOVERNMENTS TO PROMOTE CERTAIN INTERESTS OF THOSE STATES TO THE DETRIMENT OF THE INDUSTRY CONCERNED WITH THE DENATURING OF SUGAR .

17 ONE OF THE AIMS OF THE MANAGEMENT COMMITTEE PROCEDURE IS TO ENABLE THE COMMISSION TO PREPARE ITS INTERVENTION MEASURES IN CLOSE COOPERATION WITH THE NATIONAL AUTHORITIES CHARGED WITH THE MANAGEMENT OF THE MARKET SECTORS CONCERNED .

IT IS CONSONANT WITH THE VERY IDEA OF THE COMMUNITY THAT, WITHIN THE FRAMEWORK OF THE MECHANICS OF COLLECTIVE DISCUSSION SET UP WITH A VIEW TO THE IMPLEMENTATION OF THE COMMON AGRICULTURAL POLICY, THE MEMBER STATES SHOULD EMPHASIZE THEIR INTERESTS, WHILST IT FALLS TO THE COMMISSION TO ARBITRATE, THROUGH THE MEASURES TAKEN BY IT, BETWEEN POSSIBLE CONFLICTS OF INTEREST FROM THE POINT OF VIEW OF THE GENERAL INTEREST .

THE CONSIDERATIONS ARISING FROM CERTAIN EXPORT OBLIGATIONS OF THE ITALIAN AUTHORITIES, ON THE ONE HAND, AND FROM CERTAIN COMMERCIAL INTERESTS OF THE FRENCH ANTILLES, ON THE OTHER HAND, PRESUMING THEY BOTH EXISTED, WERE AMONG THOSE WHICH THE COMMISSION COULD LEGITIMATELY TAKE INTO ACCOUNT .

THE VALIDITY OF REGULATION NO 354/69 CANNOT, THEREFORE, BE HELD TO BE AFFECTED .

ON THE SECOND QUESTION

18 THE SECOND QUESTION IS WHETHER ARTICLE 2 OF REGULATION NO 354/69, WHICH SPECIFIED THE ENTRY INTO FORCE OF THE REGULATION ON A DATE COINCIDING WITH THAT OF PUBLICATION IN THE OFFICIAL JOURNAL OF THE COMMUNITIES, IS VALID .

IT IS ALSO ASKED WHETHER THAT PROVISION COULD BE CONSIDERED TO BE INVALID BECAUSE IT WAS NOT ESPECIALLY REASONED AND WHETHER THE COMMISSION SHOULD POSSIBLY HAVE BEEN OBLIGED TO INCLUDE TRANSITIONAL PROVISIONS IN THE REGULATION FOR PURCHASING CONTRACTS ENTERED INTO BEFORE PUBLICATION OF THE REGULATION .

19 UNDER THE TERMS OF ARTICLE 191 OF THE EEC TREATY, REGULATIONS SHALL ENTER INTO FORCE " ON THE DATE SPECIFIED IN THEM OR, IN THE ABSENCE THEREOF, ON THE TWENTIETH DAY FOLLOWING THEIR PUBLICATION ".

BY THIS PROVISION THE TREATY RESERVED TO THE COMPETENT INSTITUTIONS THE RIGHT TO SPECIFY THE DATE OF ENTRY INTO FORCE OF LEGISLATIVE ACTS ACCORDING TO THE CIRCUMSTANCES .

IN THIS CASE, THE IMMEDIATE ENTRY INTO FORCE OF REGULATION NO 354/69 IS OBVIOUSLY JUSTIFIED BY THE NECESSITY TO PREVENT, DURING THE TIME WHICH WOULD OTHERWISE HAVE ELAPSED BETWEEN PUBLICATION OF THE MEASURE AND ITS ENTRY INTO FORCE, THE DEPOSIT OF APPLICATIONS FOR DENATURING CERTIFICATES WHICH, DUE IN PARTICULAR TO THEIR LONG DURATION, COULD HAVE COMPROMISED THE EFFECT OF THE MEASURE OF ECONOMIC POLICY TAKEN BY THE COMMISSION .

THIS CLAUSE DID NOT HAVE TO BE ESPECIALLY REASONED AS IT EXPRESSED A REQUIREMENT OF EFFICIENCY INHERENT IN THE VERY NATURE OF THE MEASURE INTRODUCED BY THE REGULATION .

20 THE COMMISSION, LIKEWISE, WAS UNDER NO OBLIGATION TO PROVIDE FOR TRANSITIONAL PROVISIONS .

IN FACT, THE DURATION OF THE VALIDITY OF DENATURING CERTIFICATES, ISSUED SIMPLY ON APPLICATION BY THE PARTIES CONCERNED, IS SUCH THAT IT IS POSSIBLE FOR THE APPLICANTS TO HAVE THEM ISSUED AT THE TIME OF ENTERING INTO THEIR PURCHASING CONTRACTS AND SO TO OBTAIN THE GUARANTEE THAT, DURING THE PERIOD OF VALIDITY OF THE CERTIFICATE, THOSE CONTRACTS MAY BE CARRIED OUT, TAKING INTO ACCOUNT THE AMOUNT OF THE PREMIUM FIXED IN THE CERTIFICATE .

UNDER THESE CIRCUMSTANCES, AND PRESUMING THAT THE PERSONS CONCERNED ACTED WITH DUE DILIGENCE AT THE TIME OF CONCLUDING THEIR CONTRACTS, THE ENTRY INTO FORCE OF THE REGULATION WITH IMMEDIATE EFFECT COULD NOT HAVE PROVED INJURIOUS TO LEGITIMATE INTERESTS .

IT IS APPROPRIATE TO NOTE, MOREOVER, THAT THE OBJECTIVE OF THE ORGANIZATION OF THE MARKET INTRODUCED BY REGULATION NO 1009/67 IS NOT TO CONFER ON THE UNDERTAKINGS CONCERNED A GUARANTEE OF BEING ABLE TO CARRY OUT DENATURING UNDER THE MOST ADVANTAGEOUS FINANCIAL CONDITIONS BUT TO ENSURE THE NORMAL FUNCTIONING OF THE MARKET IN SUGAR ON THE BASIS OF THE PRICE POLICY DEFINED BY THE COUNCIL .

ON THE THIRD QUESTION

21 FINALLY IT IS ASKED WHETHER ARTICLE 2 ( 2 ), SECOND SENTENCE, OF REGULATION NO 833/68 OF THE COMMISSION IS VALID IN THAT IT PERMITS MEMBER STATES TO REQUIRE ADDITIONAL INFORMATION IN APPLICATIONS FOR THE GRANT OF DENATURING PREMIUMS OVER AND ABOVE THAT SPECIFIED IN THE FIRST SENTENCE OF THAT PROVISION .

22 THE PLAINTIFF IN THE MAIN ACTION SUBMITS THAT, BY MAKING USE OF THAT AUTHORIZATION, THE GERMAN AUTHORITIES HAVE DISCRIMINATED AGAINST THEIR OWN NATIONALS IN MAKING IT MORE DIFFICULT FOR CONTRACTS WHICH COULD GIVE RISE TO THE BENEFIT OF A DENATURING PREMIUM TO BE CONCLUDED .

23 AFTER SPECIFYING THE INFORMATION WHICH MUST BE CONTAINED IN EVERY APPLICATION FOR THE GRANT OF A DENATURING PREMIUM - THE NAME AND ADDRESS OF THE APPLICANT, THE NATURE AND QUANTITY OF THE SUGAR TO BE DENATURED AND THE MEMBER STATE WHERE DENATURING WILL TAKE PLACE - ARTICLE 2 OF REGULATION NO 833/68 STATES THAT " MEMBER STATES MAY REQUIRE ADDITIONAL INFORMATION ".

THE GERMAN ADMINISTRATION HAS MADE USE OF THIS OPTION BY REQUIRING ADDITIONAL INFORMATION CONCERNING THE SUPPLIER OF THE SUGAR AND THE UNDERTAKING CHARGED WITH CARRYING OUT DENATURING .

24 THE PROVISION CRITICIZED DOES NOT PERMIT NATIONAL AUTHORITIES TO ADD NEW CONDITIONS TO THOSE SPECIFIED IN THE REGULATIONS IN QUESTION BUT MERELY AUTHORIZES MEMBER STATES TO ASK APPLICANTS FOR FULLER INFORMATION THAN THE EXTREMELY SUMMARY INFORMATION REQUIRED BY THE REGULATION .

READ THUS, THIS PROVISION, WHICH IS INTENDED TO ALLOW FOR ADAPTATION OF ADMINISTRATIVE FORMALITIES TO NATIONAL NEEDS AND THEREFORE TO FACILITATE SUPERVISION OF THE OPERATIONS, MUST NOT LEAD TO DIFFERENCES IN TREATMENT IN THE APPLICATION OF THE REGULATION IN QUESTION .

25 THE VALIDITY OF THIS ENABLING PROVISION CANNOT THEREFORE BE HELD IN DOUBT .

Decision on costs

26 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE .

AS THESE PROCEEDINGS ARE, INSOFAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE HESSISCHER VERWALTUNGSGERICHTSHOF, THE DECISIONS AS TO COSTS IS A MATTER FOR THAT COURT .

Operative part

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE HESSISCHER VERWALTUNGSGERICHTSHOF, BY ORDER OF THAT COURT DATED 21 JULY 1972, HEREBY RULES :

EXAMINATION OF THE QUESTIONS REFERRED DOES NOT REVEAL ANY ELEMENT CAPABLE OF AFFECTING THE VALIDITY OF ARTICLE 1 ( 1 ) AND ARTICLE 2 OF REGULATION NO 354/69 OF THE COMMISSION OF 26 FEBRUARY 1969, OR OF ARTICLE 2 ( 2 ), SECOND SENTENCE, OF REGULATION NO 833/68 OF THE COMMISSION OF 28 JUNE 1968 .