OPINION OF MR ADVOCATE GENERAL MISCHO

delivered on 27 May 1986 ( *1 )

Mr President,

Members of the Court,

1. Facts

The plaintiff in the main proceedings, Firma E. Danhuber (‘Danhuber’), put into storage 1827 boxes of boneless forequarters under a contract for the private storage of beef and veal. The meat originated from animals slaughtered in Belgium less than 10 days before storage. When loaded in Belgium the meat was not frozen. However, it arrived frozen at the storage plant. The intervention agency was not aware of that fact, and accordingly granted private-storage aid. In 1977 an investigation of the accounts disclosed that the meat had been delivered frozen. The defendant in the main proceedings, the Bundesanstalt für landwirtschaftliche Marktordnung [Federal Office for the Organization of Agricultural Markets, hereinafter referred to as ‘the Bundesanstalt’] thereupon demanded repayment of the aid.

Danhuber brought an action against that decision.

2. Questions submitted for a preliminary ruling

The First Chamber of the Verwaltungsgericht [Administrative Court] Frankfurt am Main has submitted the following questions arising from the dispute to the Court of Justice for a preliminary ruling:

‘(1) Is meat from an animal which has been slaughtered sufficiently recently to comply with Article 2 (2) of Regulation (EEC) No 1071/68 of the Commission of 25 July 1968 laying down detailed rules for granting private-storage aid for beef and veal (Official Journal, English Special Edition 1968 (II), p. 354) or Article 5 of Regulation (EEC) No 2778/74 of the Commission of 31 October 1974 on the granting at a standard rate fixed in advance of private-storage aid for beef (Official Journal 1974, L 294, p. 73) ‘fresh or chilled’ within the meaning of Article 5 (2) of Regulation (EEC) No 805/68 of the Council of 27 June 1968 on the common organization of the market in beef and veal (Official Journal, English Special Edition 1968 (I), p. 187) even if it is delivered frozen to the place of storage? If that question is answered in the affirmative:

(2) Is it compatible with the rules governing private storage, in particular Article 3 of Regulation No 1071/68, for the steps preparatory to storage, in particular the freezing of meat, to be carried out at a place other than the place of actual storage? If that question is answered in the affirmative :

(3) Is the aid forfeited if the storer fails to comply with his obligation under Article 3 (2) (b) of Regulation No 1071/68?’

With regard to the first question, the Verwaltungsgericht raises the point whether, in determining whether meat is ‘fresh’ or ‘frozen’, reference should be made to the temperature of the meat or to the date of slaughter of the animal. On the latter interpretation, meat must be considered ‘fresh’ when it comes from animals slaughtered not more than 10 days previously. In that connection the national court refers to Article 2 (2) of Regulation No 1071/68, as amended by Article 5 of Regulation No 2778/74, which provides that private-storage aid may be granted only for products obtained from animals slaughtered not more than 10 days previously. The Verwaltungsgericht goes on to ask why meat reaching the storage plant frozen may not qualify for storage aid when it must in any case be frozen in order to be stored.

The national court concedes that it is more difficult to inspect the quality of and to identify the meat put into storage, as required by Community law, if it is frozen. None the less, it believes that on-the-spot inspections are very rare and that usually the competent German authorities confine themselves to an examination of the written records. Moreover, in this instance it has been established that no inspector was present in the storage plant at the time when the meat was unloaded.

As regards the second question, the Verwaltungsgericht points out that the Bundesanstalt itself has sometimes permitted meat intended for storage to be frozen in a place other than the storage plant. Consequently, it would be illogical, in its view, to exclude freezing during transportation.

As far as the third question is concerned, the Verwaltungsgericht records that it is common ground that Danhuber was in breach of its duty to advise the intervention agency of the day and place of storage, as is required by Article 3 (2) (b) of Regulation No 1071/68. However, it takes the view that this is merely a secondary duty and cannot entail forfeiture of the aid.

3. First question

I propose to begin by considering the applicable legislation.

Paragraphs (1) and (2) of Article 5 of Regulation No 805/68 of the Council on the common organization of the market in beef and veal provide as follows:

‘(1) The following intervention measures may be taken to prevent or mitigate a substantial fall in prices: (a) aid for private storage, ...

(2) The intervention measures specified in paragraph 1 may be taken for adult bovine animals as well as for fresh or chilled meat of such animals, presented in the form of carcases, half carcasses, compensated quarters, forequarters or hindquarters.’

It follows from the wording of those provisions that frozen meat does not qualify for private-storage aid. That is also apparent from Regulation No 1071/68 laying down detailed rules for granting private-storage aid for beef and veal, Article 5 (1) of which provides:

‘(1) The amount of aid shall be fixed per unit of weight ascertained on entry into store and before freezing.’ ( 1 )

Article 1 (1) of Regulation No 2778/74 of the Commission on the granting at a standard rate fixed in advance of private-storage aid for beef provides as follows:

‘(1) Private-storage aid shall be granted for the products specified in the annex hereto ...’

The annex refers to subheading 02.01 A II (a) 1 (bb) 11 of the Common Customs Tariff, which relates only to fresh or chilled meat.

Frozen meat does not qualify for private-storage aid because it can be identified and its quality and freshness can be checked only when it is not frozen. Furthermore, there is always the risk that frozen meat might be substituted for other meat or that meat for which aid has already been granted might be taken into storage a second time.

Lastly, it should be added that the fact that no inspection was carried out in this case is quite immaterial. As the Court held in paragraph 21 of its judgment of 5 December 1985 in Case 124/83 (Direktoratet for Markedsordningerne v Corman [1985] ECR 3777), a duty to carry out such inspections is owed by Member States to the Community, and only the Community authorities may act upon any breach of such duty. The absence of such inspections does not release the recipient of the aid from his obligations towards the intervention agency.

4. Second question

The answer to the first question also determines the answer to be given to the second question. If the meat arrives frozen at the chosen storage plant, the inspections mentioned above can no longer be carried out. What is more, as the Commission has rightly pointed out, Article 2 of Regulation (EEC) No 989/68 of the Council laying down general rules for granting private-storage aid for beef and veal provides that:

‘Unless specially authorized, a request for private-storage aid may only be made in the country where the product is to be stored.’

Consequently, if the storage contract has been concluded in the Federal Republic of Germany, the freezing of the meat, which is a preliminary to storage, may not be carried out in Belgium unless authorized by the intervention agency.

5. Third question

Since the second question is to be answered in the negative, the third question has become devoid of purpose.

It is nevertheless appropriate, in my view, to say a word or two about an argument put forward by Danhuber during the oral procedure. Danhuber relied upon the judgment of the Court of 11 June 1979 in Case 240/78 (Atalanta v Produktschap voor Vee en Vlees [1979] ECR 2137) in support of the view that the obligation laid down by Article 3 (2) (b) of Regulation No 1071/68, namely ‘to advise the competent intervention agency of the day and place of storage and the nature and the quantity of the products to be stored’ constitutes a secondary obligation which, if not complied with, is not such as to cause the claimant to forfeit the aid.

In that regard it may be seen that Regulation No 1071/68 and Regulation No 1889/76, ( 2 ) which was at issue in the Atalanta case, are not drafted in identical terms. Article 6 (2) of Regulation No 1889/76 provides that ‘... aid may only be claimed [by the storer] if the obligations set out in Article 3 (2) (a) are fulfilled in their entirety’ (those obligations are to take the agreed quantity into storage within the time-limits laid down and to store it for the stipulated period without altering or replacing the products stored during that period), whilst Regulation No 1071/68 contains no comparable provision.

Hence it is difficult, in my view, to draw a distinction in the case of Regulation No 1071/68 between primary and secondary obligations.

Article 3 (4) of that regulation, which was cited by the Verwaltungsgericht, merely defines what is meant by ‘agreed quantity’.

Moreover, the Atalanta case related only to the belated transmission of supporting documents, and not to an obligation so essential for inspection purposes as that of advising the intervention agency of the day and place of storage and the nature and quantity of the products to be stored.

I am thus of the opinion that the aid is forfeited if the storer does not fulfil the obligations imposed upon him by Article 3 (2) (b) of Regulation No 1071/68, in any event where the meat is frozen in a place other than the place of actual storage, without prejudice to the fact that proper authorization is required whenever freezing takes place in another country.

6. Conclusions

I propose that the questions referred to the Court by the Verwaltungsgericht be answered as follows:

(1) Frozen meat may not be regarded as ‘fresh or chilled’, within the meaning of Article 5 (2) of Regulation No 805/68 of the Council, whatever the date of slaughter of the animals in question.

(2) In the absence of special authorization by the intervention agency, the product must be stored in the country in which the request for aid is made.

( *1 ) Translated from the French.

( 1 ) It is clear from the Explanatory Notes drawn up by the Customs Cooperation Council that frozen meat is meat cooled to below freezing point until it is frozen throughout.

( 2 ) Commission Regulation (EEC) No 1889/76 of 29 July 1976 laying down detailed rules for granting private-storage aid for pigmeat (OJ 1976, L 206, p. 82).