Keywords

Summary



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1. Agriculture ° Common organization of the markets ° Milk and milk products ° Butter from public storage ° Sale at a reduced price to processors ° Obligation to ensure a uniform diffusion of the tracer products which have to be incorporated in the course of processing of concentrated butter ° Burden of proving non-compliance rests on the competent national authorities ° Discretionary power regarding details of supervision ° Examination of their probative value under national law

(Commission Regulation No 262/79 Art. 5(2) and Art. 22(5))

2. Agriculture ° Common organization of the markets ° Milk and milk products ° Butter from public storage ° Sale at a reduced price to processors ° Rules on security ° Obligation to incorporate tracer products in the butter to prevent it from being diverted from its intended use ° Non-compliance ° Forfeiture of the security for the batch concerned ° Principle of proportionality ° Breach ° Absence

(Commission Regulation No 262/79 Art. 22(5))

Summary

1. While Article 5(2) of Regulation No 269/79 on the sale of butter at reduced prices for use in the manufacture of pastry products, ice-cream and other foodstuffs requires that tracer products be incorporated in the butter in the course of its processing and their uniform distribution throughout the concentrated butter, it does so for the purpose of enabling the intervention butter sold at a reduced price to be distinguished from other butter until its final use and of thus preventing it from being diverted from its intended use. In view of this risk, it is necessary to interpret that provision as meaning that it requires the tracer products to be uniformly distributed not only throughout the heated concentrated butter but also throughout the cooled concentrated butter.

Article 22(5) of the same regulation is to be interpreted as meaning that it is for the competent national authority to prove that the conditions laid down in Article 5 of the regulation have not been fulfilled and, on the other hand, it is for the national court to determine, in accordance with its national law, whether the taking of a sample during the transport of the concentrated butter and the results of the analysis of that sample may be used to establish such an infringement.

2. Since the processing security required by Regulation No 262/79 was instituted in order to ensure that the purchaser of public stock butter intended for processing complies with one of his principal obligations, namely the incorporation in the butter of certain products determined on the basis of its intended use and thus enabling it to be distinguished from other butter, breach of this obligation in the absence of force majeure may be penalized by total forfeiture of that security without such forfeiture constituting a breach of the principle of proportionality. A fortiori, Article 22(5) of the regulation does not infringe this principle inasmuch as it provides for the forfeiture only of that part of the security corresponding to the batch in respect of which the purchaser has not fulfilled his obligation is to be forfeit, and for only partial forfeiture of the security in the event of a shortfall of less than 20% in the quantity of the tracer products to be incorporated.