Opinion of Mr Advocate General Mischo delivered on 28 June 1989. - Casa Fleischhandels-GmbH v Bundesanstalt für landwirtschaftliche Marktordnung. - Reference for a preliminary ruling: Bundesverwaltungsgericht - Germany. - Agriculture - Common organization of the market in beef and veal - Private storage aid. - Case 215/88.



European Court reports 1989 Page 02789



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . In the context of a dispute concerning the repayment of private storage aid in the beef and veal sector, the Bundesverwaltungsgericht ( Federal Administrative Court ) has submitted to the Court of Justice three questions concerning the interpretation of the relevant legislation . The full text of those questions may be found in the Report for the Hearing .

First question

2 . The first question asks, in substance, whether the "quantity placed in store" within the meaning of Article 9(3 ) of Regulation ( EEC ) No 2711/75 of 24 October 1975 on the granting at a standard rate fixed in advance of private storage aid for beef ( 1 ) must consist exclusively of meat which satisfies the conditions governing the grant of aid, that is to say, meat from recently slaughtered animals .

3 . In order to answer that question, it is, in my view, advisable to go back to the more general provisions contained in Regulation ( EEC ) No 1071/68 of the Commission of 25 July 1968 which laid down detailed rules for granting private storage aid for beef and veal . ( 2 )

4 . That text introduced inter alia the following three rules :

( a ) Private storage aid may be granted only for products derived from animals slaughtered not more than six days previously ( Article 2(2 ) ).

( b ) Storage must be made under a contract which may not relate to a quantity of meat which is less than a minimum to be determined by the implementing regulation ( Article 2(3 ) ).

( c ) The obligation to store the agreed quantity is to be considered as fulfilled if not less than 90% and not more than 110% of that quantity has been taken in store and stored ( Article 3(4 ) ).

5 . It follows from the inclusion of all those provisions in one single regulation that they impose conditions which must be satisfied either simultaneously or cumulatively . The expressions "the agreed quantity" and "the quantity placed in store" can refer only to products which satisfy the rule regarding the date of slaughter . It follows that, when they check to ensure that at least 90% of the agreed quantity has been placed in storage, the competent authorities can take into account only meat which is of the prescribed degree of freshness . ( Article 5 of Regulation No 2711/75 derogated, for the duration of its validity, from Article 2(2 ) of Regulation No 1071/68 in so far as it authorized aid to be granted in respect of products derived from animals slaughtered not more than 10 days previously, instead of six days previously ).

6 . That interpretation is confirmed by the provisions of the first and third subparagraphs of Article 4(2 ) of Regulation No 2711/75, under which part of the quantity contracted for may be withdrawn from storage after three months, subject to an automatic reduction in the amount of aid . For those reasons, it is clear that the quantity contracted for includes, in the view of the Community legislature, only that meat which qualifies for aid, since any reduction in that quantity involves a decrease in the amount of aid .

7 . Finally, the wording of Article 9(3 ) of Regulation No 2711/75 is in no way at variance with that reasoning; indeed, the contrary is the case . The purpose of that provision is to specify the extent to which storage aid may be affected if the "quantity placed in store" is less than the quantity contracted for . Article 9(3 ) first provides that aid is to be reduced proportionately if the quantity placed in store is between 100% and 90% of the agreed amount . It then goes on to confirm the situation which already exists under Article 3(4 ) of Regulation No 1071/68, cited above, namely, that no aid is to be be paid if the quantity placed in store is less than 90 %.

8 . The sanction represented by the reduction or non-payment of the aid where the quantity stored is too small would be nugatory if, in order to bring the quantity placed in store up to the desired level, the trader could increase it merely by placing in store products which did not satisfy the conditions governing the grant of the aid .

9 . Moreover, I agree entirely with the Commission' s arguments based on the aim and the spirit of the legislation and I would propose that the Court' s answer to the first question should be in the terms suggested by the Commission .

Second question

10 . The second question essentially asks whether the rule laid down in Article 2(2 ) of Regulation No 1071/68, that is to say, the imposition of a maximum period of six days between slaughter and storage, has been repealed or whether it was applicable to aid granted under Regulation No 1500/76 of the Commission of 25 June 1976 . ( 3 )

11 . In that matter, I entirely agree with the opinion expressed by the Commission that the maximum period of six days was indeed applicable . As I have nothing to add to the Commission' s arguments in support of that view, I would merely refer to them and, at the same time, endorse the answer which the Commission proposes for the second question .

Third question

12 . In view of the suggested answer to the second question, the third question no longer has any purpose .

Conclusion

13 . The proposed answers to the questions referred by the Bundesverwaltungsgericht are therefore as follows :

1 . The concept of "quantity placed in store" in the first subparagraph of Article 9(3 ) of Regulation ( EEC ) No 2711/75 of the Commission must be interpreted as applying only to that quantity which satisfies the conditions governing the grant of aid laid down by the combined provisions of Article 2(2 ) of Regulation ( EEC ) No 1071/68 and Article 5 of Regulation ( EEC ) No 2711/75 of the Commission .

2 . Article 2(2 ) of Regulation ( EEC ) No 1071/68 of the Commission was not repealed by Regulation ( EEC ) No 2778/74 or by Regulations Nos 1860/75, 2711/75 or 1500/76 . The latter regulations, with the exception of Regulation No 1500/76, merely derogated from Article 2(2 ) of Regulation No 1071/68 as regards the intervention measures which they introduced and so long as those regulations remained in force . In the case of the intervention measure provided for in Regulation ( EEC ) No 1500/76, Article 2(2 ) of Regulation ( EEC ) No 1071/68 remained in force .

3 . In view of the answer to the second question, the third question no longer has any purpose .

(*) Original language : French .

( 1 ). Official Journal 1975 L 274, p . 27 .

( 2 ). Official Journal, English Special Edition 1968 ( II ), p . 354 .

( 3 ). Official Journal 1976 L 167, p . 31 .