3.

Commenting on the first question, the Verwaltungsgericht considers the possibility that for the purposes of the ‘6 kg rule’ the expression ‘maximum number’ in Article 4 may refer rather to the average number of calves kept on a farm during the quarter concerned. It is that court's view that, construed in that sense, the provision ceases to penalize farmers who for a certain period keep a higher number of calves than normal and ensures genuine equality of treatment for all the farms. However, I would note that, besides being contrary to the letter of the provision, that intepretation is not consistent with the aim of increasing the consumption of milk intended for animal feed and undermines the effectiveness of the control carried out by the dairy. In the light of those aims, the expression ‘maximum number’ can only mean the highest number of calves kept by the farmer at any one time throughout the quarter. Indeed that information enables the dairy to ascertain in advance the total amount of livestock kept on a mixed farm in order to calculate the quantity of milk to be supplied under the special scheme and also serves as a basis for determining the supplies of milk which do not qualify under that scheme and of which the farmer must take delivery in accordance with the third indent of Article 4 (1) (c). On the other hand, declarations based on the average number of calves would make it possible for the farms to acquire a smaller quantity of milk under the less advantageous, ordinary aid scheme and then to offset the maximum number of calves against the minimum number registered during the quarter, thus frustrating any control by the dairy, with which — it must be recalled — primary responsibility for ensuring the proper implementation of the aid scheme lies. Those considerations also apply to the second and third questions. In the opinion of the Verwaltungsgericht there are two reasons for considering that Article 4 (3) may be contrary to the principle of proportionality. In the first place, it takes the view that the farmer's obligation to communicate within a certain period information concerning the type and number of animals kept is of a secondary nature. It therefore appears excessive to penalize failure to comply therewith by imposing a heavy penalty such as the forfeiture of the entire aid. It also considers that the penalty for providing false information is too severe. According to the national court, in such circumstances ‘it would be more appropriate to recover the ... aid only in so far as it was granted on the basis of incorrect statements’. What can be said of such observations? As the Court is aware, a Community rule is consistent with the principle of proportionality if the means which it employs correspond to the importance of its aim and are necessary for the achievement of that aim (judgment of 23 February 1983 in Case 66/82 Fromançais [1983] ECR 395). As I stated at the beginning of this Opinion, the special aid was established to increase the consumption of skimmed milk by promoting its use as feed for animals other than calves and the regulation in question here was adopted in order to prevent the fraudulent abuses which could occur in such a scheme. In that context and having regard to the fact that responsibility for the proper implementation of the scheme lies with the dairies, the obligation imposed on mixed farms under Article 4 (3) is in no way secondary in nature. On the contrary it fulfils an essential function. It enables the dairy to supply milk in quantities corresponding to the genuine requirements of each farmer. Although conscious of how important it was for the proper functioning of the scheme that the information which is the subject of that obligation should be communicated in good time, the legislature recognized that slight delays are always possible and imposed a lesser penalty for delays not exceeding 10 days, namely a 10% reduction in the aid. However, it can certainly not be claimed that the forfeiture of the entire aid where the information is communicated even later or not at all is an excessive penalty in relation to the aims of the regulation. Moreover such a measure is not punitive in the real sense of the word and cannot therefore be equated to measures such as the confiscation of a security. It is merely the refusal to grant aid for the purchase of milk for a period of one quarter. Similar reasoning applies where the information supplied is incorrect; indeed the argument is even more convincing. To provide, out of regard for the principle of proportionality, that the aid should be reduced by an amount corresponding to the extent to which the information supplied by the farm is found to be incorrect would deprive the rules of any deterrent effect and would incite farmers to attempt to commit fraud. If caught their aid would be reduced only to the amount to which they would have been entitled if they had given the correct information. There is, moreover, little to be gained by arguing that in the course of the quarter events may occur which are unforeseeable and thus liable to modify the information previously supplied, as for example the premature birth of a calf. In that respect it is enough to note that according to Article 6 of the regulation ‘the farmers concerned (those eligible for special aid) shall forward to the competent agency in their Member State: ... an undertaking immediately to notify any change in ... (the) information which might involve a change in the rate of aid’. Although that provision concerns principally farms which themselves produce the milk intended for animal feed, the rule is of general application, as is clear from subparagraph (b). It therefore applies to all the farmers. In conclusion I shall deal briefly with Questions (d) and (e). In my view Article 5 does not leave the national authorities any discretion in deciding when and why the repayment of the aid should be in full or in part. As the Commission pointed out, the wording used in the provision merely indicates that the obligation to repay exists only in relation to the undertakings made by farmers whose failure to comply with conditions laid down in Article 3 has been ascertained by the supervisory body. As regards the other undertakings entered into by farmers the application for aid remains valid.