Judgment of the Court of 3 March 1977. - North Kerry Milk Products Ltd. v Minister for Agriculture and Fisheries. - Reference for a preliminary ruling: High Court - Ireland. - Case 80-76.



European Court reports 1977 Page 00425

Greek special edition Page 00129

Portuguese special edition Page 00149



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . COMMUNITY LAW - LINGUISTIC DISCREPANCIES - ELIMINATION - INTERPRETATION

2 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKET - SKIMMED MILK - PROCESSING INTO CASEIN BEFORE 7 OCTOBER 1974 - MARKETING AFTER THAT DATE - AID - CALCULATION - RATE OF CONVERSION

Summary

1 . THE ELIMINATION OF LINGUISTIC DIS- CREPANCIES BY WAY OF INTERPRETATION MAY IN CERTAIN CIRCUMSTANCES RUN COUNTER TO THE CONCERN FOR LEGAL CERTAINTY , INASMUCH AS ONE OR MORE OF THE TEXTS INVOLVED MAY HAVE TO BE INTERPRETED IN A MANNER AT VARIANCE WITH THE NATURAL AND USUAL MEANING OF THE WORDS . CONSEQUENTLY , IT IS PREFERABLE TO EXPLORE THE POSSIBILITIES OF SOLVING THE POINTS AT ISSUE WITHOUT GIVING PREFERENCE TO ANY ONE OF THE TEXTS INVOLVED .

2 . A MERE READING OF THE RELEVANT TEXTS LEADS TO THE CONCLUSION THAT MARKETING WAS THE EVENT BY WHICH THE MANU- FACTURER BECAME ENTITLED TO AID . IT FOLLOWS THAT MARKETING WAS ' LE FAIT GENERATEUR DE LA CREANCE ' WITHIN THE MEANING OF THE FRENCH TEXT AND THE OTHER CORRESPONDING TEXTS AS WELL AS ' THE EVENT BY WHICH THE AMOUNT BECAME DUE AND PAYABLE ' WITHIN THE MEANING OF THE ENGLISH TEXT OF ARTICLE 6 OF REGULATION NO 1134/68 . THAT PROVISION , IN CONJUNCTION WITH REGULATION NO 756/70 MUST THEREFORE BE UNDERSTOOD TO MEAN THAT THE AMOUNT OF AID FOR SKIMMED MILK PROCESSED INTO CASEIN BEFORE 7 OCTOBER 1974 BUT MARKETED AFTER THAT DATE IS TO BE CALCULATED BY REFERENCE TO THE RATE OF CONVERSION BETWEEN THE IRISH POUND AND THE UNIT OF ACCOUNT APPLICABLE ON THE DATE OF MARKETING .

Parties

IN CASE 80/76

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE HIGH COURT OF JUSTICE , IRELAND , FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

NORTH KERRY MILK PRODUCTS LTD

AND

MINISTER FOR AGRICULTURE AND FISHERIES

Subject of the case

PRIMARILY ON THE INTERPRETATION OF ARTICLE 6 OF REGULATION ( EEC ) NO 1134/68 OF THE COUNCIL OF 30 JULY 1968 , LAYING DOWN RULES FOR THE IMPLEMENTATION OF REGULATION ( EEC ) NO 653/68 ON CONDITIONS FOR ALTERATIONS TO THE VALUE OF THE UNIT OF ACCOUNT USED FOR THE COMMON AGRICULTURAL POLICY ( JO L 188 , P . 1 - OJ , ENGLISH SPECIAL EDITION 1968 ( II ), P . 396 ),

Grounds

1 BY ORDER OF 21 JUNE 1976 , RECEIVED AT THE COURT REGISTRY ON THE FOLLOWING 13 AUGUST , THE HIGH COURT OF IRELAND REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION CONCERNING THE INTERPRETATION OF CERTAIN COMMUNITY RULES RELATING TO THE PAYMENT OF AID FOR THE MANUFACTURE OF CASEIN AND CASEINATES FROM SKIMMED MILK .

2 THIS QUESTION AROSE WITHIN THE CONTEXT OF AN ACTION BROUGHT BY AN IRISH MANUFACTURER OF MILK PRODUCTS ( HEREINAFTER REFERRED TO AS ' THE COMPANY ' ) AGAINST THE MINISTER FOR AGRICULTURE AND FISHERIES WHICH IS THE AGENCY IN IRELAND RESPONSIBLE FOR CARRYING OUT THE OPERATIONS AND ARRANGEMENTS OF THE COMMON AGRICULTURAL POLICY . THE DISPUTE BETWEEN THESE PARTIES CONCERNS THE RATE OF CONVERSION AS BETWEEN THE UNIT OF ACCOUNT AND THE IRISH POUND WHICH SHOULD BE APPLIED IN RESPECT OF COMMUNITY AID FOR CERTAIN QUANTITIES OF CASEIN WHICH HAD BEEN MANUFACTURED BY THE COMPANY BEFORE 7 OCTOBER , THE DATE ON WHICH THE CONVERSION RATE WAS ALTERED , BUT HAD NOT BEEN MARKETED UNTIL AFTER THAT DATE .

3 UNDER REGULATION NO 3061/73 OF THE COMMISSION OF 12 NOVEMBER 1973 , WHICH APPLIED AT THE MATERIAL TIME , THE AID HAD BEEN FIXED AT 3.20 U.A . PER 100 KG OF SKIMMED MILK . THE PARTIES IN THE MAIN ACTION ARE IN AGREEMENT AS TO THE AMOUNT IN UNITS OF ACCOUNT TO WHICH THE COMPANY IS ENTITLED IN RESPECT OF THE CASEIN IN QUESTION , AND THE DISPUTE ONLY CONCERNS THE CONVERSION RATE WHICH SHOULD BE APPLIED FOR CALCULATING THE AID IN NATIONAL CURRENCY .

4 THE HIGH COURT HAS ASKED THE COURT OF JUSTICE TO GIVE A PRELIMINARY RULING ON THE QUESTION WHETHER THE AMOUNT OF AID PAYABLE TO THE COMPANY IS TO BE CALCULATED WITH REFERENCE TO THE RATE OF EXCHANGE BETWEEN THE IRISH POUND AND THE UNIT OF ACCOUNT APPLICABLE ON THE DATE OF MANUFACTURE OR TO THE RATE OF EXCHANGE APPLICABLE ON THE DATE OF MARKING THE CASEIN .

5 FOR THE PURPOSE OF ANSWERING THIS QUESTION IT IS NECESSARY FIRST TO LOOK AT THE PROVISIONS OF REGULATION NO 1134/68 OF THE COUNCIL OF 30 JULY 1968 LAYING DOWN RULES FOR THE IMPLEMENTATION OF REGULATION NO 653/68 ON CONDITIONS FOR ALTERATIONS TO THE VALUE OF THE UNIT OF ACCOUNT USED FOR THE COMMON AGRICULTURAL POLICY ( JO L 188 , P . 1 - OJ , ENGLISH SPECIAL EDITION 1968 ( II ), P . 396 ).

6 ACCORDING TO ARTICLE 4 ( 2 ) OF THAT REGULATION SUMS OWED IN NATIONAL CURRENCY BY A MEMBER STATE FOR TRANSACTIONS UNDER THE COMMON AGRICULTURAL POLICY AND REPRESENTING AMOUNTS FIXED IN UNITS OF ACCOUNT SHALL BE PAID ON THE BASIS OF THE RELATIONSHIP BETWEEN THE UNIT OF ACCOUNT AND THE NATIONAL CURRENCY WHICH OBTAINED AT THE TIME WHEN THE TRANSACTION WAS CARRIED OUT .

7 THE MEANING OF THIS LATTER TERM FOR THE PURPOSES OF THE REGULATION IS DEFINED BY ARTICLE 6 ACCORDING TO WHICH THE TIME WHEN A TRANSACTION IS CARRIED OUT SHALL BE CONSIDERED TO BE THE DATE ON WHICH OCCURS THE EVENT BY WHICH ' THE AMOUNT INVOLVED IN THE TRANSACTION BECOMES DUE AND PAYABLE ' . THEREFORE , THE CRUCIAL ISSUE IN THE PRESENT CASE IS WHETHER THAT EVENT OCCURRED AT A POINT IN TIME BEFORE OR AFTER THE ALTERATION OF THE CONVERSION RATE , OR IN OTHER WORDS WHETHER THAT EVENT SHOULD BE UNDERSTOOD TO BE THE PROCESSING OR THE MARKETING OF THE CASEIN .

8 ON THIS POINT THE COMPANY ARGUES THAT IT FOLLOWS FROM THE RULES CONCERNING THE GRANT OF AID FOR SKIMMED MILK PROCESSED INTO CASEIN THAT MARKETING IS THE DECISIVE EVENT , WHEREAS THE COMMISSION ARGUES THAT THESE RULES MUST BE UNDERSTOOD TO MEAN IN THIS CONTEXT THAT THE PROCESSING IS THE RELEVANT EVENT .

9 BEFORE EXAMINING THE QUESTION FURTHER IT SHOULD BE NOTED THAT THERE IS AN APPARENT DISCREPANCY BETWEEN THE ENGLISH WORDING OF ARTICLE 6 AND THE WORDING OF THAT ARTICLE IN THE OTHER OFFICIAL LANGUAGES . THE WORDS IN ENGLISH ' THE EVENT . . . IN WHICH THE AMOUNT . . . BECOMES DUE AND PAYABLE ' ARE RENDERED IN FRENCH BY THE WORDS ' LE FAIT GENERATEUR DE LA CREANCE ' AND BY EQUIVALENT EXPRESSIONS IN THE OTHER LANGUAGES .

10 IN ITS WRITTEN AND ORAL OBSERVATIONS BEFORE THE COURT THE COMMISSION CONCEDES THE EXISTENCE OF THIS DISCREPANCY AND SUBMITS THAT THE ENGLISH TEXT SHOULD BE INTERPRETED IN THE LIGHT OF THE OTHER VERSIONS .

11 THE ELIMINATION OF LINGUISTIC DISCREPANCIES BY WAY OF INTERPRETATION MAY IN CERTAIN CIRCUMSTANCES RUN COUNTER TO THE CONCERN FOR LEGAL CERTAINTY , INASMUCH AS ONE OR MORE OF THE TEXTS INVOLVED MAY HAVE TO BE INTERPRETED IN A MANNER AT VARIANCE WITH THE NATURAL AND USUAL MEANING OF THE WORDS . CONSEQUENTLY , IT IS PREFERABLE TO EXPLORE THE POSSIBILITIES OF SOLVING THE POINTS AT ISSUE WITHOUT GIVING PREFERENCE TO ANY ONE OF THE TEXTS INVOLVED .

12 IN THE CIRCUMSTANCES OF THE PRESENT CASE IT IS AT ANY RATE NECESSARY RO CONSIDER THE RULES GOVERNING THE GRANT OF AID FOR THE MANUFACTURE OF CASEIN .

13 ARTICLE 11 ( 1 ) OF REGULATION NO 804/68 OF THE COUNCIL OF 27 JUNE 1968 ON THE COMMON ORGANIZATION OF THE MARKET IN MILK AND MILK PRODUCTS ( JO L 148 , P . 13 - OJ , ENGLISH SPECIAL EDITION 1968 ( I ), P . 176 ) PROVIDES THAT UNDER CONDITIONS LAID DOWN BY THE COUNCIL AID SHALL BE GRANTED FOR COMMUNITY-PRODUCED SKIMMED MILK PROCESSED INTO CASEIN . UNDER ARTICLE 2 OF REGULATION NO 987/68 OF THE COUNCIL OF 15 JULY 1968 LAYING DOWN GENERAL RULES FOR THE GRANTING OF SUCH AID ( JO L 169 , P . 6 - OJ , ENGLISH SPECIAL EDITION 1968 ( I ), P . 262 ) AID SHALL BE PAID BY THE NATIONAL INTERVENTION AGENCY TO THE MANUFACTURER OF CASEIN . BY SUCCESSIVE REGULATIONS OF THE COMMISSION IT HAS BEEN PRESCRIBED THAT AID SHALL BE GRANTED ONLY AFTER THE CASEINS HAS BEEN MARKETED , AND THAT THE APPLICATION IN WRITING BY THE MANUFACTURER TO THE INTERVENTION AGENCY MUST SHOW THE QUANTITY OF CASEIN OF HIS OWN MANUFACTURE WHICH HE HAS MARKETED AND FOR WHICH HE SEEKS AID . AT THE MATERIAL TIME IN THE PRESENT CASE PROVISIONS TO THAT EFFECT HAD BEEN LAID DOWN IN ARTICLE 4 OF REGULATION NO 756/70 OF THE COMMISSION OF 24 APRIL 1970 ON GRANTING AID FOR SKIMMED MILK PROCESSED INTO CASEIN , ( JO L 91 , P . 28 - OJ , ENGLISH SPECIAL EDITION 1970 ( I ), P . 201 ).

14 IT FOLLOWS FROM THESE PROVISIONS THAT THE PROCESSING AS SUCH DOES NOT CONFER UPON THE MANUFACTURER ANY ENFORCEABLE RIGHT TO AID . NOT ONLY IS HE NOT THEREBY ENTITLED TO PAYMENT OF AID , BUT HE CANNOT EVEN SUBMIT AN APPLICATION TO THE NATIONAL INTERVENTION AGENCY BEFORE HAVING MARKETED THE QUANTITIES OF CASEIN FOR WHICH HE SEEKS AID .

15 FURTHERMORE , AT THE TIME OF THE EVENTS IN THE PRESENT CASE , THE MANUFACTURER COULD NOT EVEN KNOW FOR CERTAIN BEFORE HAVING MARKETED THE PRODUCT TO WHAT AMOUNT OF AID EXPRESSED IN UNITS OF ACCOUNT HE WOULD ULTIMATELY BE ENTITLED , SINCE IT WAS THE PRACTICE OF THE COMMISSION WHEN ALTERING THE AMOUNTS OF AID TO MAKE THE NEW AMOUNTS APPLICABLE TO CASEIN WHICH HAD BEEN PROCESSED BUT NOT YET MARKETED . IT WAS NOT UNTIL AFTER THE EVENTS OF THE PRESENT CASE , NAMELY BY REGULATION NO 533/75 OF THE COMMISSION OF 28 FEBRUARY 1975 AMENDING REGULATION NO 756/70 ( OJ L 56 , P . 24 ), THAT PROVISION WAS MADE TO THE EFFECT THAT THE AMOUNT OF THE AID GRANTED WAS TO BE THAT APPLICABLE ON THE DAY OF MANUFACTURE OF THE CASEIN .

16 IN THESE CIRCUMSTANCES IT IS NOT TENABLE AS THE COMMISSION HAS ARGUED THAT THE ENTITLEMENT TO AID , AT THE PERIOD IN QUESTION , WAS CREATED BY THE MANUFACTURING OF THE CASEIN , AND THAT MARKETING WAS NOTHING BUT A CONDITION FOR PAYMENT OF THE AID . A PROPER READING OF THE RELEVANT TEXTS MUST LEAD TO THE CONCLUSION THAT MARKETING WAS THE EVENT BY WHICH THE MANUFACTURER BECAME ENTITLED TO AID .

17 IT FOLLOWS THAT ANY DISCREPANCY BETWEEN THE VERSIONS IN THE DIFFERENT LANGUAGES OF ARTICLE 6 OF REGULATION NO 1134/68 IS IRRELEVANT IN THE PRESENT CONTEXT . MARKETING WAS ' LE FAIT GENERATEUR DE LA CREANCE ' WITHIN THE MEANING OF THE FRENCH TEXT AND THE OTHER CORRESPONDING TEXTS AS WELL AS ' THE EVENT BY WHICH THE AMOUNT BECAME DUE AND PAYABLE ' WITHIN THE MEANING OF THE ENGLISH TEXT .

18 THE ANSWER TO THE QUESTION REFERRED TO THE COURT BY THE HIGH COURT OF IRELAND IS THEREFORE THAT ARTICLE 6 OF REGULATION NO 1134/68 IN CONJUNCTION WITH REGULATION NO 756/70 MUST BE UNDERSTOOD TO MEAN THAT THE AMOUNT OF AID FOR SKIMMED MILK PROCESSED INTO CASEIN BEFORE 7 OCTOBER 1974 BUT MARKETED AFTER THAT DATE IS TO BE CALCULATED BY REFERENCE TO THE RATE OF CONVERSION BETWEEN THE IRISH POUND AND THE UNIT OF ACCOUNT APPLICABLE ON THE DATE OF MARKETING .

Decision on costs

COSTS

19 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE AND AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

Operative part

ON THOSE GROUNDS ,

THE COURT

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE HIGH COURT OF JUSTICE , IRELAND , HEREBY RULES :

ARTICLE 6 OF REGULATION NO 1134/68 IN CONJUNCTION WITH REGULATION NO 756/70 MUST BE UNDERSTOOD TO MEAN THAT THE AMOUNT OF AID FOR SKIMMED MILK PROCESSED INTO CASEIN BEFORE 7 OCTOBER 1974 BUT MARKETED AFTER THAT DATE IS TO BE CALCULATED BY REFERENCE TO THE RATE OF CONVERSION BETWEEN THE IRISH POUND AND THE UNIT OF ACCOUNT APPLICABLE ON THE DATE OF MARKETING .