2.

The second question concerns the problem of when the aid, and its payment, may be claimed, and in particular the question whether, although all the obligations set out in Article 6 (2) and (3) of Regulation No 1889/76 have been fulfilled, it cannot be claimed if the documents relating to the storage have not been sent without delay to the intervention agency, as is prescribed in Article 3 (2) (c) of the said regulation. In this connexion the Commission has rightly pointed out that the Community regulations lay down binding rules governing contractual relations concerning the private storage of pigmeat, which is to be considered as an intervention measure, and accordingly to a certain degree replace the domestic law of contract. The Community provisions also leave open the appraisal of the distinction to be drawn with regard to the intervention measures in question between the principal and subsidiary obligations of persons who wish to benefit from those measures. The obligation contained in Article 3 (2) (a) of Regulation No 1889/76 of the Commission, namely ‘at his [the private storer's] own risk and expense to take the agreed quantity of the product into store within the time-limits laid down and to store it for the stipulated period’, is plainly to be considered as the principal obligation. This is clearly to be deduced from Article 6 (2) of that regulation which provides that, without prejudice to the other obligations of the storer, aid may only be claimed if the obligations set out in Article 3 (2) (a) are fulfilled in their entirety. In fact that provision leaves no doubt that the sole condition attached to the right to aid is that the obligations concerning storage have been fulfilled. If the acquisition of that right were in fact conditional upon the fulfilment of ail the contractual obligations the wording adopted in Article 6 (2) of the regualtion of the Commission, namely ‘without prejudice to the other obligations of the storer’, would certainly not have been used and express reference would have been made to all the obligations under Article 3 (2) and not only those mentioned in subparagraph (a). On the other hand, as is clear from Article 6 (3), which is clearly distinguished from Article 6 (2) and contains an entireley independent statement, the aid is only paid when it has been ascertained that all the conditions of the contract have been fulfilled, which covers fulfilment of the obligation under Article 3 (2) (c) to produce documentary evidence. According to the general system of the regulation the last-mentioned obligation thus constitutes only a subsidiary obligation which merely serves efficient administration and is intended to enable the competent bodies to exercise the necessary supervision. In view of these considerations and having regard to the various interests concerned it would certainly be inappropriate to classify the provision as to time in Article 3 (2) (c) — the sending without delay of the documents relating to the storage — as a prescriptive time-limit in the sense that failure to observe it entails forfeiture of the right to aid. That would constitute a glaring contrast to the clear statement contained in Article 6 (2) and would completely eliminate the distinction which the authors of the legislation wished to draw between the creation of the right and its execution. Furthermore, the Commission has rightly recalled that in accordance with the general system of the rules the fulfilment of the obligation to provide proof in good time can be ensured effectively by other means, namely through forfeiture of part of the deposit lodged. there is no doubt that such a penalty is sufficient in relation to that duty, which must be considered a subsidiary obligation of the storer, and is the only one which is in accordance with the principle of proportionality, which is important in this connexion. Furthermore, the fact should also be borne in mind — I make this point with some diffidence since its clarification was not requested — that the expression ‘in good time’ as understood by the regulation of the Commission, which in fact employs the words ‘without delay’, need not mean that the time-limit of one week laid down by the Netherlands intervention agency must in all circumstances be complied with and that, in accordance with the circumstances, a longer or shorter period might instead be appropriate. Accordingly, the second question should be answered to the effect that a right to payment of the aid following due fulfilment of all the contractual obligations may be claimed despite a failure to comply with the time-limit for sending the documents relating to storage, which is to be considered as a mere procedural provision, contained in Article 3 (2) (c) of Commission Regulation No 1889/76.