4.

The central issue in this case must, therefore, be expressed in a manner related to the terms of Article 6 of Regulation (EEC) No 1134/68 in the versions other than the English one. It is necessary to establish the date on which ‘il fatto generatore del credito relativo all'importo dell'operazione’ (the event by virtue of which the amount involved in the transaction becomes due), took place. In the present case, ‘il fatto generatore’ (the event by virtue of which, etc.) is not to be determined in accordance with the law of the Member State concerned: this is because of the existence of the Community regulations which I have already had occasion to review and to which priority must be given in accordance with the said Article 6. Certain features of those regulations seem, prima facie, to suggest that the ‘fatto generatore del credito’ (the event by virtue of which the amount becomes due) to the producer of casein is its manufacture. I refer in the first place to the terms of the two regulations of the Council (Nos 804/68 and 987/68) in which there is reference to the granting of an aid for skimmed milk processed into casein and to the requirements for each, without any reference to the marketing of the product. Secondly, as stated above, the condition relating to marketing appears in the regulations of the Commission as part of the procedure for the payment of the aid (first recital of Regulation (EEC) No 1102/68, and second recital of Regulation (EEC) No 533/75); and the Commission rightly regards it as important to differentiate between the creation of entitlement to an amount as aid and payment of that amount. Finally, bearing in mind that Article 2 of Regulation (EEC) No 987/68 obliges manufacturers of casein to include the aid in the purchase price paid to the suppliers of skimmed milk, it seems reasonable to conclude that to determine the amount due to the producer by way of aid at the time of manufacture would, for the purpose of settling accounts between each producer and his milk suppliers, present less difficulty than to determine the said amount at a later date, namely at the time of marketing. In fact, the events in the present case go to show that between these two points in time there may be variations in the exchange rate affecting the unit of account which will give rise to the problem of their repercussions on the amount of aid. On the other hand, there can be no doubt that the calculation of the amount of aid can also be made at the time of manufacture, given the presumption, embodied in the Community rules, that every kilogramme of casein has been manufactured from a specified quantity of skimmed milk (see Article 2 (2) of Regulation (EEC) No 756/70) and the fact that aid is fixed at a certain figure of units of account per 100 kg of skimmed milk processed (see Article 2 (1) of the same regulation). Notwithstanding the foregoing considerations, manufacture of the casein is not, in my view, the event by virtue of which the amount becomes due to the producer. An individual right to the payment of a specific amount, within the meaning of Article 6 of Regulation (EEC) No 1134/68, can certainly not arise by virtue only of the regulations of the Council; as I said at the beginning, Article 11 of Regulation (EEC) No 804/68 left the Commission with the task of determining detailed rules for their application, especially as regards the amount of aid. When the Commission laid down that aid could be granted only after marketing (Article 3 (1) of Regulation (EEC) No 1102/68 and Article 4 (1) of Regulation (EEC) No 756/70), the event of marketing became the condition, not of payment of a sum which had already been fixed, but of the calculation of the amount to be paid to the producer: there can be no doubt that a producer who manufactures a given quantity of casein and markets only a smaller quantity is entitled to aid based on that smaller quantity only. No other interpretation can be placed on the Regulations cited (Nos 1102/68 and 756/70). This is the only way of explaining how the Commission, on the occasion of the various changes in the amount of aid, could lay down that the change did not apply to caseins and caseinates marketing (marketed, not merely manufactured) before the change came into force and that the previous regulations each time repealed must apply to them (see Article of Regulation (EEC) No 756/70, Article 2 of Regulation (EEC) No 2814/71, Article 2 of Regulation (EEC) No 455/73 and Article 2 of Regulation (EEC) No 1399/73). If, in fact, the debt due to each producer arose solely from the fact that the milk had been processed into casein, it would be difficult to accept that the Commission could, in one of its regulations, change all the amounts due in respect of quantities of casein produced but not marketed. This applies in particular in the case of a reduction in the amount of aid which took place in pursuance of Regulation (EEC) No 2814/71. There is also the possibility that the casein produced may be accidentally destroyed before being sold. Asked about this at the hearing, the Commission admitted that the producer would not be able to obtain aid in respect of the quantities lost. To my mind, this confirms that the producer has no aid due to him until after marketing. Even if, as laid down in Article 1 of Regulation (EEC) No 533/75, the amount is calculated at the date of manufacture, it can always be re-calculated at the date when the quantity sold is known and according to whether the quantity is or is not the same as that manufactured. In these circumstances, would it make sense to consider the amount of the aid as due on the date of manufacture and the payment of that amount as subject to sale? The factors constituting a debt and the conditions for payment can be separated only if the latter do not affect the existence of the debt or the amount to be paid: it is conceivable that a debt is not payable for a certain time or in the absence of certain conditions, and that hence the exercise of the right is suspended or conditional, provided, however, that the right remains unimpaired. But if a given ‘condition’ can affect the existence or the amount of the debt, it cannot be a mere condition of payment. In its judgment of 17 May 1972 in Leonesio v Italian Ministry for Agriculture (Case 93/71) the Court held that the right of farmers to payment of the slaughtering subsidy came into being on fulfilment of the conditions laid down in Regulation (EEC) No 1975/69 (of the Council) and Regulation (EEC) No 2195/69 (of the Commission). In the present case, in view of the fact that the regulations of the Council placed the emphasis on the processing and ignored the subsequent stage of marketing, it is possible to criticize the Commission for having decided to introduce a further condition for the granting of aid for the processing of milk into casein but, as the Commission was responsible for laying down the detailed rules for the application of the regulations and it did so on the basis of a favourable Opinion from the competent Management Committee, I find it difficult to dispute the applicability of the Commission's regulations (or, at least, of the provision which has appeared in them from the beginning, that the producer must have marketed the casein which he has produced before he can receive aid). If this is correct the principle contended for by the Commission in this case, that the event by virtue of which the amount of aid becomes due is the manufacture of the casein, is belied by the Commission's own regulations and practice. Of course, it would not, in my view, be correct to state that the marketing of the casein or caseinates constitutes, in itself, the event which entitles the manufacturer to aid from the national intervention agency. Such a right arises only if a number of conditions obtain: skimmed milk and raw casein made from Community-produced milk must have been used (Article 1 of Regulation (EEC) No 756/70); manufacture must take place within the Community, and producers must keep a monthly record containing specific information (Article 3 of the said regulation: the books must show, inter alia, the quantities of casein and caseinates sold and the name of the purchaser); producers must be ready to submit to supervision; and, finally, the product must have been marketed. The marketing is, from the point of view of time, the last of the events which create the entitlement provided for by Community law. In addition, there is the procedure under national law involving the application to the intervention agency and the formal decision of the agency, which is responsible for ascertaining whether the conditions imposed by Community law exist, but these subsequent stages do not affect the application of Article 6 of Regulation (EEC) No 1134/68 which, as I have already emphasized, refers to the event creating the entitlement as it is defined by Community law.