1.

Couched in those terms, that question can be given only one answer, namely that the principle of proportionality has indeed been infringed by Regulation No 1844/77. Clearly, it is contrary to the principle of proportionality, and indeed simply unfair, to impose the same sanction for the breach of two obligations laid down in the same instrument, one being a fundamental obligation and the other an obligation which is manifestly of secondar)' importance. It was in those terms, moreover, that the Court gave its ruling in the Buitoni case, ( 8 ) a precedent repeatedly relied upon during the proceedings by the plaintiff in the main action, the operative part of which provided a starting-point for the wording of the question raised. It is still necessary to ascertain, however, whether those difficulties arise in the present case. Is there any certainty that, in this case too, a Community regulation imposes a single sanction for breach of a fundamental obligation (where no denaturing at all has taken place) and for breach of an obligation which is clearly of secondary importance (where denaturing has been carried out but not wholly in the prescribed manner)? If this case falls outside that category, the answer which I have just proposed should be disregarded, even though it is entirely appropriate to the question as worded. The Tribunal Administratif made a reference to the Court because it considered that determination of the dispute depended on the interpretation of Community law and therefore an incomplete answer to the questions submitted would prevent the national court from reaching a decision in the case. I believe that there are two reasons for the excessive disparity between the terms in which the question is couched and the problems of Community law which the case raises, particularly as far as compliance with the principle of proportionality is concerned. The first of those reasons concerns the use of a word such as “sanction”. Since the withholding of an aid is involved, in other words a benefit linked to an operation (the processing of skimmed milk into animal feed) which the owners of the skimmed milk were not obliged to perform, a word implying the imposition of a penalty is inappropriate. That was the view taken by the Court in its judgment of 26 June 1980 in Case 808/79, Pardini, which concerned the interpretation and validity of a provision laying down that no duplicates issued in the event of the loss of expon licences might be used for the purpose of carrying out an export transaction. Since the court making the reference had described that provision as imposing a very severe penalty, the Court was anxious to point out “in the first place that the provisions in question cannot be regarded as imposing a ‘penalty’ the proper sense of the term, upon a trader in the event of his licence or certificate being lost”. ( 9 ) How relevant is the comparison underlying the wording adopted between an undertaking which has failed, manifestly in breach of Regulation No 1844/77, to carry out any denaturing at all and an undertaking which has fulfilled that fundamental obligation but has failed to comply with a technical specification concerning the method of denaturing? I doubt whether it is relevant at all. The first limb of the comparison strikes me as academic since, in view of the security lodged, to submit a tender under a tendering procedure pursuant to Regulation No 1844/77 only to refrain subsequently from carrying out the denaturing or from having it carried out would be a very risky matter. In the first place, the existence and the amount of the bank guarantee which must accompany the tender and, secondly, the fact that the aid is paid on completion of the denaturing operation — which must, moreover, be carried out on approved premises and in the presence of an official supervisor — rule out in my opinion the participation in that type of tendering procedure either of a dishonest trader who has no intention of denaturing the product or of a trader who lacks the requisite technical or financial means or commercial ability to honour his commitments. However, if that question needs to be reworded, how is it to be understood? Is it sufficient to eliminate the reference to a trader who has not carried out any denaturing at all and to ask whether there is not an excessive disparity, contrary to the principle of proportionality, between the failure to comply with the Community legislation and the sanction imposed for such failure? I share the view expressed by the Commission that if the rule which was not complied with is essential for attainment of the objective laid down by the Community legislation, an infringement of that rule must inevitably entail the withholding of the aid; a less strict course of action would be insufficient to ensure that the denatured milk was not used as feed for calves. For that reason, it is impossible, in my opinion, to extend to the present case the approach adopted in Commission Regulation (EEC) No 1725/79 of 26 July 1979 on the rules for granting aid to skimmed milk processed into compound feedingstuffs and skimmed-milk powder intended for feed for calves, as amended by Commission Regulation (EEC) No 2851/80 of 31 October 1980. The first regulation provides for a decrease in the amount of the aid in proportion to the water content in excess of the amount stipulated; ( 10 ) the second regulation provides that in certain cases the aid may be paid out subject to the furnishing of a guarantee where the product as manufactured does not contain the requisite quantity of milk. ( 11 ) Those solutions cannot be applied in the present case because they are not directed towards the same objectives as those of Regulation No 1844/77, a condition which — as Mr Advocate General Reischl emphasized in his opinion in Case 77/81 Zuckerfabrik Franken ( 12 ) — is essential for that purpose. As regards feed for calves, the object of Regulation No 1725/79, as amended, is not, and could not be, to prevent fraud resulting from diversion of the product from its intended use. However, those considerations do not, as they stand, go far enough. To reply that a breach of a provision of a regulation may, on condition that the provision is not manifestly irrelevant for the attainment of an objective laid down by that regulation, lawfully entail the withholding of the aid in its entirety is to beg the question. It is tantamount to asking the Tribunal Administratif, Paris, to assess the validity of that rule, although that is the very question which the Tribunal Administratif has referred to the Court. In my opinion, therefore, the provision which has been infringed must be assessed in a different manner in the light of the principle of proportionality. A comparison must be made not between the provision and the consequence of the infringement thereof but, as Counsel for the Fund suggested at the hearing, between the provision and the aim of the regulation observance of which that provision is designed to ensure. Accordingly, the real question at issue, on which determination of the case depends, seems to be whether or not the requirement contained in Section 3 D of the Annex to Regulation No 368/77 relating to the uniform distribution of copper sulphate used for denaturing in accordance with Formula I B in Section 1 of the same annex is manifestly irrelevant for attainment of the objective of Regulation No 1844/77, which is to prevent products thus denatured from being used as feed for young calves. If it is, the conclusion must be drawn that the principle of proportionality has been contravened. I would add that, in my opinion, the Court has not so far had occasion to exercise its power of review in order to determine in the light of the principle of proportionality the validity of a provision of that kind.