Judgment of the Court (First Chamber) of 2 May 1985. - Josef Hoche and Roomboterfabriek "De Beste Boter" v Bundesanstalt für landwirtschaftliche Marktordnung. - References for a preliminary ruling: Hessischer Verwaltungsgerichtshof - Germany. - Disposal of butter at a reduced price - Conditions for the release of the security. - Joined cases 154 and 155/83.



European Court reports 1985 Page 01215



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - MILK AND MILK PRODUCTS - BUTTER FROM INTERVENTION STOCKS - DISPOSAL AT REDUCED PRICE TO PROCESSING UNDERTAKINGS - FURTHER PROCESSING - PRODUCTS CONCERNED

( REGULATION NO 1259/72 OF THE COMMISSION , ART . 6 ( 1 ) ( C ) AND ART . 6 ( A ) AS INSERTED BY REGULATION NO 1910/73 )

2 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - MILK AND MILK PRODUCTS - BUTTER FROM INTERVENTION STOCKS - DISPOSAL AT REDUCED PRICE TO PROCESSING UNDERTAKINGS - FURNISHING OF SECURITY - DIVERSION OF PROCESSED PRODUCTS FROM INTENDED FINAL USE - SECURITY FORFEIT

( REGULATION NO 1259/72 OF THE COMMISSION , ARTS 6 ( 1 ) ( C ), 6 ( A ), AND 18 ( 2 ))

3 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - MILK AND MILK PRODUCTS - BUTTER FROM INTERVENTION STOCKS - DISPOSAL AT REDUCED PRICE TO PROCESSING UNDERTAKINGS - FURNISHING OF SECURITY - RELEASE OF SECURITY - CONDITIONS - NATIONAL RULES REGULATING QUALITY OF FOODSTUFFS - NO EFFECT

( REGULATION NO 1259/72 OF THE COMMISSION , ART . 6 ( 1 ) ( C ))

Summary

1 . ARTICLE 6 ( A ), WHICH WAS INSERTED INTO REGULATION NO 1259/72 OF THE COMMISSION ON THE DISPOSAL OF BUTTER AT A REDUCED PRICE TO CERTAIN COMMUNITY PROCESSING UNDERTAKINGS BY REGULATION NO 1910/73 , APPLIES TO POWDER FOR THE PREPARATION OF EDIBLE ICES WITHIN THE MEANING OF ARTICLE 6 ( 1 ) ( C ) ( THIRD OPTION ) OF REGULATION NO 1259/72 .

THE ABOVE-MENTIONED ARTICLE 6 ( A ) PERMITS FURTHER PROCESSING OF THE PRODUCTS REFERRED TO IN ARTICLE 6 ( 1 ) ( C ) OF REGULATION NO 1259/72 ONLY IF THE RESULTING PRODUCTS ARE ALSO PRODUCTS REFERRED TO IN THAT ARTICLE .

2 . WHERE THE SECURITY HAS NOT YET BEEN RELEASED THE NATIONAL INTERVENTION AGENCY MUST DECLARE IT FORFEIT IF IT IS FOUND THAT ALTHOUGH POWDER FOR THE PREPARATION OF EDIBLE ICES WAS PRODUCED FROM THE BUTTER AS PROVIDED BY ARTICLE 6 ( 1 ) ( C ) ( THIRD OPTION ) OF REGULATION NO 1259/72 OF THE COMMISSION AS AMENDED BY REGULATION NO 2161/72 , THE POWDER WAS NOT USED FOR THE PREPARATION OF EDIBLE ICES BUT WAS SEPARATED INTO PRODUCTS FALLING WITHIN HEADINGS OF THE COMMON CUSTOMS TARIFF OTHER THAN THOSE MENTIONED IN THE RELEVANT PROVISIONS .

3 . LEGISLATION OF A MEMBER STATE REGULATING THE QUALITY OF FOODSTUFFS CANNOT AFFECT THE RELEASE OF THE SECURITY WHERE THE PROCESSED PRODUCTS FOR WHICH THE SECURITY WAS FURNISHED SATISFY THE REQUIREMENTS CONTAINED IN ARTICLE 6 ( 1 ) ( C ) OF REGULATION NO 1259/72 .

THEREFORE THE ADDITION OF THE BINDING AGENT KNOWN AS SODIUM CASEINATE TO POWDER FOR THE PREPARATION OF EDIBLE ICES DOES NOT ADVERSELY AFFECT THE RIGHT TO RELEASE OF THE SECURITY WHERE THE CONDITIONS LAID DOWN BY ARTICLE 6 ( 1 ) ( C ) ARE SATISFIED WITHIN THE PRESCRIBED PERIOD .

Parties

IN JOINED CASES 154 AND 155/83

REFERENCES TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE HESSISCHER VERWALTUNGSGERICHTSHOF ( HIGHER ADMINISTRATIVE COURT OF HESSE ) ( EIGHTH SENATE ) FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

JOSEPH HOCHE , SPEIKERN , FEDERAL REPUBLIC OF GERMANY ,

ROOMBOTERFABRIEK ' DE BESTE BOTER ' , BEST , NETHERLANDS ,

PLAINTIFFS IN THE MAIN PROCEEDINGS ,

AND

BUNDESANSTALT FUR LANDWIRTSCHAFTLICHE MARKTORDNUNG ( FEDERAL OFFICE FOR THE ORGANIZATION OF AGRICULTURAL MARKETS ), FRANKFURT AM MAIN ,

DEFENDANT IN THE MAIN PROCEEDINGS ,

DR OTTO SUWELACK NACHFOLGER KG , BILLERBECK , FEDERAL REPUBLIC OF GERMANY ,

PARTY JOINED IN THE MAIN PROCEEDINGS ,

Subject of the case

ON THE INTERPRETATION OF ARTICLES 6 , 6 ( A ) AND 18 OF REGULATION ( EEC ) NO 1259/72 OF THE COMMISSION OF 16 JUNE 1972 ON THE DISPOSAL OF BUTTER AT A REDUCED PRICE TO CERTAIN COMMUNITY PROCESSING UNDERTAKINGS ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( II ), P . 559 ), AS AMENDED BY REGULATIONS OF THE COMMISSION NOS 2161/72 OF 10 OCTOBER 1972 , 1237/73 OF 10 MAY 1973 , AND 1910/73 OF 13 JULY 1973 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 , 10 TO 31 OCTOBER , P . 5 ; OFFICIAL JOURNAL 1973 , L 128 , P . 1 ; L 196 , P . 10 ),

Grounds

1 BY TWO ORDERS OF 30 MAY 1983 , WHICH WERE RECEIVED AT THE COURT ON 27 JULY 1983 , THE HESSISCHER VERWALTUNGSGERICHTSHOF ( HIGHER ADMINISTRATIVE COURT OF HESSE ) REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A NUMBER OF QUESTIONS ON THE INTERPRETATION OF ARTICLES 6 , 6 ( A ) AND 18 OF REGULATION ( EEC ) NO 1259/72 OF THE COMMISSION OF 16 JUNE 1972 ON THE DISPOSAL OF BUTTER AT A REDUCED PRICE TO CERTAIN COMMUNITY PROCESSING UNDERTAKINGS ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( II ), P . 559 ), AS AMENDED BY REGULATIONS OF THE COMMISSION NOS 2161/72 OF 10 OCTOBER 1972 , 1237/73 OF 10 MAY 1973 , AND 1910/73 OF 13 JULY 1973 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 , 10 TO 31 OCTOBER , P . 5 ; OFFICIAL JOURNAL 1973 , L 128 , P . 1 ; L 196 , P . 10 ).

2 THE QUESTIONS WERE RAISED IN THE COURSE OF PROCEEDINGS BROUGHT BY TWO UNDERTAKINGS , FIRMA JOSEPH HOCHE , OF SPEIKERN IN THE FEDERAL REPUBLIC OF GERMANY , AND ROOMBOTERFABRIEK ' DE BESTE BOTER ' , OF BEST IN THE NETHERLANDS , AGAINST THE BUNDESANSTALT FUR LANDWIRTSCHAFTLICHE MARKTORDNUNG ( FEDERAL OFFICE FOR THE ORGANIZATION OF AGRICULTURAL MARKETS ) IN GERMANY . THE PLAINTIFFS IN THE MAIN PROCEEDINGS ARE SUPPORTED BY THE PARTY JOINED TO THE MAIN PROCEEDINGS , FIRMA DR OTTO SUWELACK NACHFOLGER KG , OF BILLERBECK IN THE FEDERAL REPUBLIC OF GERMANY .

3 BECAUSE THE QUESTIONS CONTAINED IN THE TWO ORDERS FOR REFERENCE WERE IDENTICAL IN CONTENT , THE COURT , BY ORDER OF 21 SEPTEMBER 1983 , JOINED THE CASES FOR THE PURPOSES OF THE PROCEDURE AND THE JUDGMENT .

4 THE MAIN ACTIONS WERE BROUGHT AGAINST DECISIONS OF THE RELEVANT NATIONAL INTERVENTION AGENCY DECLARING FORFEIT THE PROCESSING SECURITIES FURNISHED BY THE PLAINTIFFS , WHICH HAD PURCHASED INTERVENTION BUTTER AT A REDUCED PRICE , ON THE GROUND THAT THE END USE TO WHICH THE PROCESSED PRODUCT WAS PUT WAS IN BREACH OF THE COMMUNITY REGULATIONS .

5 WITH A VIEW TO MAKING IT POSSIBLE FOR BUTTER TO BE USED AS A SUBSTITUTE FOR OTHER FATS IN ORDER TO REDUCE BUTTER SURPLUSES BY CREATING NEW OUTLETS , THE COMMISSION ADOPTED REGULATION NO 1259/72 , WHICH ESTABLISHED A PROCEDURE FOR THE SALE OF BUTTER BY TENDER AT A REDUCED PRICE TO CERTAIN PROCESSING UNDERTAKINGS IN THE COMMUNITY . ARTICLE 6 OF THAT REGULATION PROVIDES THAT AN UNDERTAKING MAY ONLY TAKE PART IN THAT PROCEDURE IF IT GIVES CERTAIN UNDERTAKINGS , WHICH ARE ENUMERATED IN PARAGRAPH ( 1 ) ( A ), ( B ), ( C ), ( D ) AND ( E ). ARTICLE 6 , ( 1 ) ( C ) ( AS AMENDED ) PROVIDES THAT IT MUST UNDERTAKE ' TO HAVE THE PRODUCTS REFERRED TO UNDER ( B ) ( THE CONCENTRATED BUTTER ) PROCESSED ONLY INTO :

- PRODUCTS FALLING WITHIN HEADING NO 19.08 OF THE COMMON CUSTOMS TARIFF , OR

- EDIBLE ICES FALLING WITHIN SUBHEADINGS NOS EX 18.06 B AND EX 21.07 C OF THE COMMON CUSTOMS TARIFF , OF A MILKFAT CONTENT OF LESS THAN 15% , OR

- POWDER FOR THE PREPARATION OF EDIBLE ICES FALLING WITHIN SUBHEADING NO EX 18.06 D OR EX 21.07 F OF THE COMMON CUSTOMS TARIFF , OF A MILKFAT CONTENT OF 33% OR LESS AND SUITABLE FOR CONSUMPTION WITHOUT ANY TREATMENT OTHER THAN THE ADDITION OF WATER AND REFRIGERATION .

PROCESSING INTO THE PRODUCTS LISTED ABOVE SHALL TAKE PLACE IN THE COMMUNITY WITHIN 120 DAYS FROM THE DAY OF REMOVAL FROM STORAGE REFERRED TO IN ARTICLE 13 ( 2 ). '

6 IN ORDER TO ENSURE THAT THE UNDERTAKING WITH REGARD TO PROCESSING IS CARRIED OUT , THE SUCCESSFUL TENDERER MUST FURNISH A SECURITY , THE AMOUNT OF WHICH IS FIXED IN SUCH A WAY AS TO COVER THE DIFFERENCE BETWEEN THE MARKET PRICE OF BUTTER AND THE MINIMUM SELLING PRICE ( ARTICLES 9 ( 2 ) AND 12 OF REGULATION NO 1259/72 ).

7 ARTICLE 18 ( 2 ) OF REGULATION NO 1259/72 PROVIDES THAT EXCEPT IN CASES OF FORCE MAJEURE , THE PROCESSING DEPOSIT IS TO BE RELEASED ONLY FOR QUANTITIES IN RESPECT OF WHICH THE SUCCESSFUL TENDERER HAS FURNISHED PROOF , AS PROVIDED THEREIN , THAT THE CONDITIONS REFERRED TO IN ARTICLE 6 HAVE BEEN MET .

8 FINALLY , BY REGULATION NO 1910/73 OF 13 JULY 1973 , CITED ABOVE , THE COMMISSION INSERTED INTO THE ORIGINAL REGULATION , NO 1259/72 , AN ARTICLE NUMBERED 6 ( A ) WHICH READS AS FOLLOWS : ' FURTHER PROCESSING OF THE PRODUCTS REFERRED TO IN ARTICLE 6 ( 1 ) ( C ) SHALL BE ALLOWED WHERE SUCH PRODUCTS FALL WITHIN THE HEADING REFERRED TO IN THAT ARTICLE WITHOUT , AT AN INTERMEDIATE STAGE OF SUCH PROCESSING , RESULTING IN A PRODUCT WHICH FALLS WITHIN ANY OTHER HEADING . '

9 THE NATIONAL COURT APPEARS TO REGARD IT AS ESTABLISHED THAT THE CONCENTRATED BUTTER WAS DULY PROCESSED INTO POWDER FOR THE PREPARATION OF EDIBLE ICES IN ACCORDANCE WITH ARTICLE 6 ( 1 ) ( C ) OF REGULATION NO 1259/72 . IT ASKS WHETHER THE SUBSEQUENT SEPARATION OF THE PROCESSED PRODUCT AND ITS USE FOR PURPOSES OTHER THAN THE PRODUCTION OF EDIBLE ICES JUSTIFIES THE FORFEITURE OF THE SECURITY UNDER ARTICLE 18 ( 2 ) OF REGULATION NO 1259/72 . IN THAT CONNECTION IT HAS REFERRED THE FOLLOWING SEVEN QUESTIONS TO THIS COURT FOR A PRELIMINARY RULING :

' ( A ) ARE THE REQUIREMENTS OF ARTICLE 6 ( 1 ) ( C ) ( THIRD OPTION ) OF REGULATION ( EEC ) NO 1259/72 OF THE COMMISSION OF 16 JUNE 1972 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( II ), P . 559 ) AS AMENDED BY ARTICLE 1 ( 2 ) OF REGULATION ( EEC ) NO 2161/72 OF THE COMMISSION OF 10 OCTOBER 1972 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( 10 TO 31 OCTOBER ), P . 5 ) TO BE REGARDED AS SATISFIED EVEN IF THE POWDER FOR THE PREPARATION OF EDIBLE ICES FALLING WITHIN TARIFF SUBHEADINGS NOS EX 18.06 D OR EX 21.07 F OF THE COMMON CUSTOMS TARIFF HAS ULTIMATELY NOT BEEN USED FOR THE PREPARATION OF EDIBLE ICES AND IF THAT POWDER HAS BEEN SEPARATED INTO ITS CONSTITUENT PARTS BY FURTHER PROCESSING AND THOSE INGREDIENTS HAVE BEEN FURTHER PROCESSED INTO MILK POWDER PREPARATIONS AND CHOCOLATE?

( B)DOES THE SUCCESSFUL TENDERER ' S DUTY TO FURNISH PROOF PURSUANT TO THE FIRST SENTENCE OF ARTICLE 18 ( 2 ) OF REGULATION NO 1259/72 AS AMENDED BY ARTICLE 3 OF REGULATION ( EEC ) NO 1237/73 OF THE COMMISSION OF 10 MAY 1973 ( OFFICIAL JOURNAL 1973 , L 128 , P . 1 ) ALSO EXTEND TO PROCESSING WHICH TAKES PLACE AFTER THE MANUFACTURE OF THE POWDER FOR THE PREPARATION OF EDIBLE ICES IN ACCORDANCE WITH ARTICLE 6 ( 1 ) ( C ) ( THIRD OPTION ) OF REGULATION NO 1259/72 AS AMENDED BY ARTICLE 1 ( 2 ) OF REGULATION NO 2161/72?

( C)DOES ARTICLE 6 ( A ) ( WHICH WAS INSERTED BY REGULATION ( EEC ) NO 1910/73 OF THE COMMISSION OF 13 JULY 1973 ( OFFICIAL JOURNAL 1973 , L 196 , P . 10 ) APPLY , AS IS SUGGESTED BY THE PREAMBLE , ONLY TO PRODUCTS FALLING WITHIN HEADING NO 19.08 OF THE COMMON CUSTOMS TARIFF OR DOES IT INCLUDE ICE-CREAM PRODUCTS FALLING WITHIN TARIFF SUBHEADINGS NOS EX 18.06 D OR EX 21.07 F OF THE COMMON CUSTOMS TARIFF?

( D)DOES THE ' 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 ARTICLE 6 ( 1 ) ( C ) AS AMENDED BY REGULATION NO 2161/72 REPRESENT THE SOLE PRODUCT OF THAT CATEGORY INTO WHICH THE BUTTER MAY BE PROCESSED OR , WITHIN THE FRAMEWORK OF THE FURTHER PROCESSING PERMITTED BY ARTICLE 6 ( A ), MAY ALL THE PRODUCTS FALLING WITHIN SUBHEADINGS NOS EX 18.06 D AND EX 21.07 F BE MANUFACTURED WITHOUT THE SECURITY BEING FORFEITED?

( E)DOES THE FACT THAT ARTICLE 18 ( 2 ) AS AMENDED BY REGULATION NO 1237/73 MAKES NO REFERENCE TO ARTICLE 6 ( A ) MEAN THAT AN INFRINGEMENT OF ARTICLE 6 ( A ) DOES NOT AFFECT THE RELEASE OF THE SECURITY OR MUST THE RELEASE OF THE SECURITY BE REFUSED IF IT IS ESTABLISHED THAT THERE HAS BEEN AN INFRINGEMENT OF THE SAID ARTICLE?

( F)IS THE ADDITION OF THE BINDING AGENT SODIUM CASEINATE INCONSISTENT WITH THE AIM OF ARTICLE 6 ( 1 ) ( C ) ( THIRD OPTION ) OF REGULATION NO 1259/72 , WHICH IS TO PROMOTE THE MANUFACTURE OF ICE-CREAM POWDER SUITABLE FOR CONSUMPTION , IF THE RESULT OF THE ADDITION THEREOF IS A PRODUCT WHICH MAY NOT BE USED IN THE MANUFACTURE OF ICE-CREAM UNDER THE LEGISLATION RELATING TO FOOD PRODUCTION AND DISTRIBUTION IN THE FEDERAL REPUBLIC OF GERMANY , ALTHOUGH IT MAY IN SOME MEMBER STATES?

( G)IF THE ADDITION OF SODIUM CASEINATE IS HELD TO BE OF NO SIGNIFICANCE , IS IT RELEVANT FOR THE RELEASE OF THE SECURITY UNDER ARTICLE 18 ( 2 ), FIRST SENTENCE , OF REGULATION NO 1259/72 AS AMENDED BY ARTICLE 3 OF REGULATION NO 1237/73 THAT THE SUCCESSFUL TENDERER IS UNABLE TO PROVE THAT THE POWDER FOR THE PREPARATION OF EDIBLE ICES MIXED WITH SODIUM CASEINATE HAS BEEN DISPATCHED TO MEMBER STATES SUCH AS BELGIUM , LUXEMBOURG AND THE NETHERLANDS WHICH ALLOW THE USE OF THE BINDING AGENT EVEN FOR ICE-CREAM POWDER?

'

10 THOSE QUESTIONS MAY BE SUBDIVIDED INTO THREE GROUPS . QUESTIONS ( C ) AND ( D ), WHICH CONCERN THE DEFINITION OF THE PRODUCTS FALLING WITHIN THE SCOPE OF ARTICLE 6 ( A ) ( CITED ABOVE ), FORM THE FIRST GROUP . A SECOND GROUP , COMPOSED OF QUESTIONS ( A ), ( B ) AND ( E ), RAISES THE ISSUE OF WHETHER , HAVING REGARD TO ARTICLES 6 ( 1 ) ( C ), 6 ( A ) AND 18 ( 2 ), THE FINAL USE OF THE PROCESSED PRODUCT ( THE POWDER FOR THE PREPARATION OF EDIBLE ICES REFERRED TO IN ARTICLE 6 ( 1 ) ( C ) ( THIRD OPTION )) IS A DECISIVE FACTOR FOR THE RELEASE OF THE SECURITY . FINALLY , A THIRD SET OF QUESTIONS , QUESTIONS ( F ) AND ( G ), IS CONCERNED WITH THE POSSIBLE EFFECT FOR THE RELEASE OF THE SECURITY OF THE ADDITION OF THE BINDING AGENT SODIUM CASEINATE TO THE POWDER FOR THE PREPARATION OF EDIBLE ICES REFERRED TO IN ARTICLE 6 ( 1 ) ( C ) ( THIRD OPTION ).

QUESTIONS ( C ) AND ( D )

11 THE NATIONAL COURT TAKES THE VIEW THAT IF ARTICLE 6 ( A ) APPLIES TO ALL THE PRODUCTS ENUMERATED IN ARTICLE 6 ( 1 ) ( C ) AND NOT ONLY TO FINE BAKERS ' WARES FALLING WITHIN HEADING 19.08 OF THE COMMON CUSTOMS TARIFF , FURTHER PROCESSING OF THE POWDER FOR THE PREPARATION OF EDIBLE ICES INTO PRODUCTS OTHER THAN ICE-CREAM MUST GIVE RISE TO THE FORFEITURE OF THE SECURITY . THAT LINE OF REASONING CANNOT BE ACCEPTED IN SO FAR AS THE RANGE OF PRODUCTS REFERRED TO IN ARTICLE 6 ( A ) DOES NOT IN ITSELF PREDETERMINE THE EXTENT OF THE DUTIES IMPOSED ON THE PROCESSING UNDERTAKING IN ITS DEALINGS WITH THE PURCHASERS OF THE PROCESSED PRODUCT . THE EXTENT OF THOSE DUTIES IS DEFINED IN THE ANSWER TO THE SECOND SET OF QUESTIONS , QUESTIONS ( A ), ( B ) AND ( E ).

12 THE PLAINTIFFS AND THE PARTY JOINED IN THE MAIN PROCEEDINGS ARGUE THAT THE PREAMBLE TO REGULATION NO 1910/73 OF 13 JULY 1973 , WHICH INSERTED ARTICLE 6 ( A ), REFERS ONLY TO PRODUCTS FALLING WITHIN HEADING 19.08 OF THE COMMON CUSTOMS TARIFF ( FINE BAKERS ' WARES ), AND THAT CONSEQUENTLY ARTICLE 6 ( A ) DOES NOT APPLY TO THE POWDER FOR THE PREPARATION OF EDIBLE ICES REFERRED TO IN ARTICLE 6 ( 1 ) ( C ) OF REGULATION NO 1259/72 .

13 THE COURT IS UNABLE TO ACCEPT THAT VIEW . AS THE BUNDESANSTALT FUR LANDWIRTSCHAFTLICHE MARKTORDNUNG AND THE COMMISSION RIGHTLY ARGUED , THE DECISIVE FACTOR IN THE INTERPRETATION OF ARTICLE 6 ( A ) ON THAT POINT IS NOT THE PREAMBLE TO THE REGULATION WHICH INTRODUCED IT , WHICH MERELY SETS OUT THE GENERAL AIMS OF THE REGULATION , BUT THE WORDING OF THE ARTICLE ITSELF , WHICH MAKES IT CLEAR THAT ARTICLE 6 ( A ) IS NOT RESTRICTED TO PRODUCTS FALLING WITHIN HEADING 19.08 OF THE COMMON CUSTOMS TARIFF BUT APPLIES TO ALL THE PRODUCTS REFERRED TO IN ARTICLE 6 ( 1 ) ( C ).

14 IT MUST THEREFORE BE STATED IN ANSWER TO QUESTION ( C ) THAT ARTICLE 6 ( A ), WHICH WAS INSERTED INTO REGULATION NO 1259/72 OF THE COMMISSION OF 16 JUNE 1972 ON THE DISPOSAL OF BUTTER AT A REDUCED PRICE TO CERTAIN COMMUNITY PROCESSING UNDERTAKINGS BY REGULATION NO 1910/73 OF THE COMMISSION OF 13 JULY 1973 , APPLIES TO POWDER FOR THE PREPARATION OF EDIBLE ICES WITHIN THE MEANING OF ARTICLE 6 ( 1 ) ( C ) ( THIRD OPTION ) OF REGULATION NO 1259/72 .

15 IN QUESTION ( D ), THE NATIONAL COURT ASKS WHETHER THE FURTHER PROCESSING OF THE PRODUCTS REFERRED TO IN ARTICLE 6 ( 1 ) ( C ) PERMITTED BY ARTICLE 6 ( A ) MAY BE TAKEN TO INCLUDE THE PRODUCTION OF ANY PRODUCTS FALLING WITHIN SUBHEADINGS 18.06 D AND 21.07 F OF THE COMMON CUSTOMS TARIFF OR WHETHER IT COVERS ONLY POWDER FOR THE PREPARATION OF EDIBLE ICES WITHIN THE MEANING OF ARTICLE 6 ( 1 ) ( C ) ( THIRD OPTION ).

16 THE ANSWER TO THAT QUESTION IS CLEAR FROM THE PURPOSE OF ARTICLE 6 ( A ). ALTHOUGH THAT PROVISION PERMITS FURTHER PROCESSING OF THE PRODUCTS REFERRED TO IN ARTICLE 6 ( 1 ) ( C ) OF REGULATION NO 1259/72 OF THE COMMISSION PROVIDED THAT THE RESULTING PRODUCTS FALL WITHIN ONE OF THE TARIFF HEADINGS REFERRED TO IN THAT ARTICLE , IT CANNOT FULFIL ITS PURPOSE , WHICH IS TO PREVENT THE PROCESSED PRODUCTS FROM BEING DIVERTED FROM THEIR INTENDED DESTINATION , UNLESS ONLY FURTHER PROCESSING INTO PRODUCTS REFERRED TO IN ARTICLE 6 ( 1 ) ( C ) IS PERMITTED .

17 FOR THIS REASON IT MUST BE STATED IN ANSWER TO QUESTION ( D ) THAT ARTICLE 6 ( A ), WHICH WAS INSERTED INTO REGULATION NO 1259/72 OF THE COMMISSION OF 16 JUNE 1972 ON THE DISPOSAL OF BUTTER AT A REDUCED PRICE TO CERTAIN COMMUNITY PROCESSING UNDERTAKINGS BY REGULATION NO 1910/73 OF THE COMMISSION OF 13 JULY 1973 , PERMITS FURTHER PROCESSING OF THE PRODUCTS REFERRED TO IN ARTICLE 6 ( 1 ) ( C ) OF REGULATION NO 1259/72 ONLY IF THE RESULTING PRODUCTS ARE ALSO PRODUCTS REFERRED TO IN THAT ARTICLE .

QUESTIONS ( A ), ( B ) AND ( E )

18 THE SECOND GROUP OF QUESTIONS ASKS IN SUBSTANCE WHETHER THE NATIONAL INTERVENTION AGENCY IS REQUIRED TO RELEASE THE SECURITY IF , BEFORE IT DOES SO , IT IS FOUND THAT ALTHOUGH THE BUTTER WAS PROCESSED INTO POWDER FOR THE PREPARATION OF EDIBLE ICES WITHIN THE MEANING OF ARTICLE 6 ( 1 ) ( C ) ( THIRD OPTION ) OF REGULATION NO 1259/72 AS AMENDED BY REGULATION NO 2161/72 , THE POWDER , INSTEAD OF BEING USED FOR THE PREPARATION OF EDIBLE ICES , WAS SEPARATED INTO PRODUCTS FALLING WITHIN HEADINGS OF THE COMMON CUSTOMS TARIFF OTHER THAN THOSE SPECIFIED IN THE REGULATIONS .

19 IN THAT REGARD IT MUST BE BORNE IN MIND THAT UNDER THE TERMS OF ARTICLE 6 ( A ), FURTHER PROCESSING OF THE PRODUCTS REFERRED TO IN ARTICLE 6 ( 1 ) ( C ) IS ALLOWED ONLY WHERE SUCH PRODUCTS FALL WITHIN ONE OF THE HEADINGS REFERRED TO IN THAT ARTICLE . WITHIN THE SCHEME OF THE REGULATIONS AS A WHOLE , ARTICLE 6 ( A ) IS A SUPPLEMENT TO ARTICLE 6 . THAT IS CONFIRMED BY THE FACT THAT REGULATION NO 232/75 OF THE COMMISSION OF 30 JANUARY 1975 ON THE SALE OF BUTTER AT REDUCED PRICES FOR USE IN THE MANUFACTURE OF PASTRY PRODUCTS AND ICE CREAM ( OFFICIAL JOURNAL 1975 , L 24 , P . 45 ) INCLUDES A PROVISION CORRESPONDING TO ARTICLE 6 ( A ) AS A DISTINCT PARAGRAPH WITHIN ARTICLE 6 ITSELF .

20 FURTHERMORE , BY PERMITTING FURTHER PROCESSING WHILE LIMITING THE PRODUCTS INTO WHICH PROCESSING IS PERMITTED , ARTICLE 6 ( A ) IS WHOLLY IN ACCORDANCE WITH THE AIMS PURSUED BY THE SCHEME OF THE REGULATION .

21 THE COMMISSION ' S PURPOSE IN ADOPTING REGULATION NO 1259/72 WAS TO REDUCE BUTTER SURPLUSES BY SELLING BUTTER BY TENDER AT A REDUCED PRICE TO CERTAIN PROCESSING UNDERTAKINGS IN THE COMMUNITY . THOSE UNDERTAKINGS ARE TO GIVE AN UNDERTAKING FIRST TO PROCESS THE BUTTER ( THE RAW MATERIAL ) INTO CONCENTRATED BUTTER ( THE INTERMEDIATE PRODUCT ) AND THEN TO PROCESS THE CONCENTRATED BUTTER INTO ONE OF THREE SPECIFIED PRODUCTS ( PROCESSED PRODUCTS ) WITHIN 120 DAYS .

22 IN THE CASE OF POWDER FOR THE PREPARATION OF EDIBLE ICES , WHICH IS REFERRED TO IN ARTICLE 6 ( 1 ) ( C ) ( THIRD OPTION ), THAT MEANS THAT APART FROM BEING REPROCESSED INTO ONE OF THE OTHER TWO PROCESSED PRODUCTS , THEY MAY ONLY BE USED FOR THE PREPARATION OF EDIBLE ICES .

23 CONSEQUENTLY , WHERE IT IS ESTABLISHED , BEFORE THE SECURITY HAS BEEN RELEASED , THAT THE POWDER FOR THE PREPARATION OF EDIBLE ICES OBTAINED BY PROCESSING THE BUTTER IN ACCORDANCE WITH ARTICLE 6 ( 1 ) ( C ) ( THIRD OPTION ) HAS NOT ULTIMATELY BEEN USED FOR THE PREPARATION OF EDIBLE ICES NOR BEEN REPROCESSED INTO ONE OF THE OTHER PROCESSED PRODUCTS , THE NATIONAL INTERVENTION AGENCY MUST DECLARE THE SECURITY FORFEIT .

24 FOR THOSE REASONS IT MUST BE STATED IN ANSWER TO QUESTIONS ( A ), ( B ) AND ( E ) THAT WHERE THE SECURITY HAS NOT YET BEEN RELEASED THE NATIONAL INTERVENTION AGENCY MUST DECLARE IT FORFEIT IF IT IS FOUND THAT ALTHOUGH POWDER FOR THE PREPARATION OF EDIBLE ICES WAS PRODUCED FROM THE BUTTER AS PROVIDED BY ARTICLE 6 ( 1 ) ( C ) ( THIRD OPTION ) OF REGULATION NO 1259/72 OF THE COMMISSION OF 16 JUNE 1972 ON THE DISPOSAL OF BUTTER AT A REDUCED PRICE TO CERTAIN COMMUNITY PROCESSING UNDERTAKINGS AS AMENDED BY REGULATION NO 2161/72 OF THE COMMISSION OF 10 OCTOBER 1972 , THE POWDER WAS NOT USED FOR THE PREPARATION OF EDIBLE ICES BUT WAS SEPARATED INTO PRODUCTS FALLING WITHIN HEADINGS OF THE COMMON CUSTOMS TARIFF OTHER THAN THOSE MENTIONED IN THE RELEVANT PROVISIONS .

QUESTIONS ( G ) AND ( F )

25 THE THIRD GROUP OF QUESTIONS CONCERNS WHETHER THE ADDITION OF THE BINDING AGENT SODIUM CASEINATE TO THE POWDER FOR THE PREPARATION OF EDIBLE ICES REFERRED TO IN ARTICLE 6 ( 1 ) ( C ) ( THIRD OPTION ) AFFECTS THE RELEASE OF THE SECURITY .

26 ALL THE PARTIES TO THE MAIN PROCEEDINGS AGREE THAT THE APPLICATION OF ARTICLE 6 ( 1 ) ( C ) DOES NOT DEPEND ON THE POSSIBILITY OF SELLING THE PROCESSED PRODUCT IN THE VARIOUS MEMBER STATES AND THAT IT IS SUFFICIENT IF ITS USE IS PERMITTED IN AT LEAST ONE MEMBER STATE .

27 AS THE COURT STATED IN ITS JUDGMENT OF 14 JANUARY 1982 ( CASE 64/81 CORMAN V HAUPTZOLLAMT GRONAU ( 1982 ) ECR 13 ), THE REQUIREMENTS REGARDING THE CHARACTERISTICS WHICH THE PROCESSED PRODUCTS MUST HAVE ' ARE BASED ON THE PROVISIONS OF THE COMMON CUSTOMS TARIFF READ IN CONJUNCTION WITH REGULATION NO 1259/72 , THAT IS TO SAY , ON PROVISIONS OF COMMUNITY LAW WHICH DO NOT REFER TO LEGAL SYSTEMS OF THE MEMBER STATES IN DETERMINING THEIR MEANING AND SCOPE . ' IN CONSEQUENCE LEGISLATION OF A MEMBER STATE REGULATING THE QUALITY OF FOODSTUFFS CANNOT AFFECT THE RELEASE OF THE SECURITY WHERE THE PROCESSED PRODUCTS FOR WHICH THE SECURITY WAS FURNISHED SATISFY THE REQUIREMENTS CONTAINED IN ARTICLE 6 ( 1 ) ( C ) OF REGULATION NO 1259/72 .

28 IT MUST THEREFORE BE STATED IN ANSWER TO QUESTION ( F ) THAT THE ADDITION OF THE BINDING AGENT KNOWN AS SODIUM CASEINATE TO POWDER FOR THE PREPARATION OF EDIBLE ICES DOES NOT ADVERSELY AFFECT THE RIGHT TO RELEASE OF THE SECURITY WHERE THE CONDITIONS LAID DOWN BY ARTICLE 6 ( 1 ) ( C ) OF REGULATION NO 1259/72 OF THE COMMISSION OF 16 JUNE 1972 , ON THE DISPOSAL OF BUTTER AT A REDUCED PRICE TO CERTAIN COMMUNITY PROCESSING UNDERTAKINGS , ARE SATISFIED WITHIN THE PRESCRIBED PERIOD .

29 THE ANSWER GIVEN TO QUESTION ( F ) REMOVES THE PURPOSE OF QUESTION ( G ).

Decision on costs

COSTS

30 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , IN THE NATURE OF A STEP IN THE PROCEEDINGS PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

Operative part

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER ),

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE HESSISCHER VERWALTUNGSGERICHTSHOF BY ORDERS OF 30 MAY 1983 , HEREBY RULES :

( 1 ) ARTICLE 6 ( A ), WHICH WAS INSERTED INTO REGULATION ( EEC ) NO 1259/72 OF THE COMMISSION OF 16 JUNE 1972 ON THE DISPOSAL OF BUTTER AT A REDUCED PRICE TO CERTAIN COMMUNITY PROCESSING UNDERTAKINGS BY REGULATION ( EEC ) NO 1910/73 OF THE COMMISSION OF 13 JULY 1973 , APPLIES TO POWDER FOR THE PREPARATION OF EDIBLE ICES WITHIN THE MEANING OF ARTICLE 6 ( 1 ) ( C ) ( THIRD OPTION ) OF REGULATION NO 1259/72 .

( 2)ARTICLE 6 ( A ), WHICH WAS INSERTED INTO REGULATION ( EEC ) NO 1259/72 OF THE COMMISSION OF 16 JUNE 1972 ON THE DISPOSAL OF BUTTER AT A REDUCED PRICE TO CERTAIN COMMUNITY PROCESSING UNDERTAKINGS BY REGULATION ( EEC ) NO 1910/73 OF THE COMMISSION OF 13 JULY 1973 , PERMITS FURTHER PROCESSING OF THE PRODUCTS REFERRED TO IN ARTICLE 6 ( 1 ) ( C ) OF REGULATION NO 1259/72 ONLY IF THE RESULTING PRODUCTS ARE ALSO PRODUCTS REFERRED TO IN THAT ARTICLE .

( 3)WHERE THE SECURITY HAS NOT YET BEEN RELEASED THE NATIONAL INTERVENTION AGENCY MUST DECLARE IT FORFEIT IF IT IS FOUND THAT ALTHOUGH POWDER FOR THE PREPARATION OF EDIBLE ICES WAS PRODUCED FROM THE BUTTER AS PROVIDED BY ARTICLE 6 ( 1 ) ( C ) ( THIRD OPTION ) OF REGULATION ( EEC ) NO 1259/72 OF THE COMMISSION OF 16 JUNE 1972 ON THE DISPOSAL OF BUTTER AT A REDUCED PRICE TO CERTAIN COMMUNITY PROCESSING UNDERTAKINGS AS AMENDED BY REGULATION ( EEC ) NO 2161/72 OF THE COMMISSION OF 10 OCTOBER 1972 , THE POWDER WAS NOT USED FOR THE PREPARATION OF EDIBLE ICES BUT WAS SEPARATED INTO PRODUCTS FALLING WITHIN HEADINGS OF THE COMMON CUSTOMS TARIFF OTHER THAN THOSE MENTIONED IN THE RELEVANT PROVISIONS .

( 4)THE ADDITION OF THE BINDING AGENT KNOWN AS SODIUM CASEINATE TO POWDER FOR THE PREPARATION OF EDIBLE ICES DOES NOT ADVERSELY AFFECT THE RIGHT TO RELEASE OF THE SECURITY WHERE THE CONDITIONS LAID DOWN BY ARTICLE 6 ( 1 ) ( C ) OF REGULATION ( EEC ) NO 1259/72 OF THE COMMISSION OF 16 JUNE 1972 , ON THE DISPOSAL OF BUTTER AT A REDUCED PRICE TO CERTAIN COMMUNITY PROCESSING UNDERTAKINGS , ARE SATISFIED WITHIN THE PRESCRIBED PERIOD .