Opinion of Mr Advocate General Gulmann delivered on 27 October 1993. - Hans Irsfeld OHG v Bundesanstalt für landwirtschaftliche Marktordnung. - Reference for a preliminary ruling: Hessischer Verwaltungsgerichtshof - Germany. - Beef and veal - Private storage aid - Beef cuts - Partial premature removal from storage - Conditions of entitlement to aid. - Case C-374/92.



European Court reports 1994 Page I-00301



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1. The Hessischer Verwaltungsgerichtshof (Higher Administrative Court, Hesse) has referred to the Court for a preliminary ruling a question on the interpretation of Commission Regulation (EEC) No 2267/84 providing for the grant of private storage aid fixed at a standard rate in advance in respect of carcases, half-carcases, hindquarters and forequarters of beef. (1)

2. For an appreciation of the background to the question referred, it is sufficient to set out the following facts.

3. The supply of beef on the common market is sometimes disproportionately large. That supply can be reduced if traders store the beef, and the Community can encourage such storage by providing financial aid to that end. The purpose of the above regulation is to provide such aid. The grant of aid is subject to compliance with certain conditions, which include the conditions that storage should be for a specified period, that it should involve sufficiently large quantities of beef and that removal from storage before the end of the agreed period should not take place prior to the expiry of a specified minimum storage period.

4. The Commission regulation provided that aid could be granted for the storage of carcases, half-carcases, hindquarters and forequarters. It also provided that the meat could be boned prior to storage. Boning involves the cutting of the meat into separate portions such as ribs, breast, shanks and thin flanks. The advantage of boning is that it reduces storage space.

5. Article 4(2) of the regulation provides that a trader may limit the amount stored to 90% of the quantity of beef for which the contract was concluded, subject to a proportionate reduction in aid.

6. The present case involves the storage by a German undertaking, with Community aid, of a large consignment of boned forequarters. The storage originally involved the full amount in respect of which aid had been promised.

Before the expiry of the minimum storage period, however, the undertaking wished to remove part of the stored beef in accordance with the 90% rule mentioned above. The undertaking pointed out that Article 4(2) of the regulation provided the necessary authorization for such subsequent removal from storage, a view with which, according to the documents on the case-file, the German authorities are in agreement. The Commission has also accepted that view.

7. The problem in the case arose because the undertaking did not remove whole boned forequarters, but only portions of such forequarters. As already mentioned, a forequarter consists of various portions such as ribs, breast, shanks and thin flanks. The undertaking did not remove the shanks and thin flanks.

8. The German authorities argue that the undertaking failed to comply with the 90% rule contained in Article 4(2), which in their view must be interpreted as meaning that only whole boned forequarters may be removed. They accordingly refused to grant aid. The undertaking has contested that interpretation of Article 4(2) of the regulation.

It is not disputed in this case that the undertaking will have complied with the 90% rule only if it is immaterial, for the calculation of the 90%, which parts of the stored beef have been removed from storage. It is also not disputed that only 89.9% of the beef can be regarded as remaining in storage if the beef removed is to be treated as including the shank and thin flank portions which belong to it but which were not removed.

9. It was with a view to resolving that dispute that the Hessischer Verwaltungsgerichtshof referred the abovementioned question to the Court for a preliminary ruling.

10. Article 4(2) of the regulation provides as follows:

"If the quantity stored unboned, or, if cut or boned, the quantity of unboned meat employed, is less than the quantity for which the contract was concluded and:

(a) not less than 90% of that quantity, the amount of aid referred to in the second subparagraph of Article 1(1) shall be reduced proportionally;

(b) less than 90% of that quantity, private storage aid shall not be paid."

11. The German authorities have not made any submissions to the Court, but the grounds on which they base their opinion are clear from the order making the reference. According to the German authorities, the storer is under an obligation to place in store whole forequarters. The possibility of placing boned meat in store should be available solely with a view to saving storage space. The meat portions placed in storage after boning must accordingly be capable of constituting whole forequarters during the full period of storage and removal from storage, which is permitted by way of authorization under Article 4(2), can therefore also only relate to whole forequarters. In this way, according to the German authorities, it is possible to ensure that it is not simply the less valuable portions of forequarters that are put in storage, while the more valuable cuts of meat, which can profitably be sold on the common market, are not placed in storage.

12. The undertaking and the Commission argue for a different interpretation of the provision. In my opinion, the view which they take is the correct one. While it is undoubtedly correct, as the German authorities contend, that Article 4(1) in principle means that storage must relate to whole boned forequarters, one must agree with the view of the undertaking and the Commission that Article 4(2) cannot be interpreted as requiring the undertaking to remove whole forequarters from storage if it makes use of the opportunity to remove a smaller portion of the meat placed in storage, in accordance with the 90% rule. Such a requirement does not follow from the wording of the provision and cannot be read into it. The objective of the regulation and the context of the provision do not provide an adequate basis for the interpretation proposed by the German authorities, which would involve a restriction on the freedom of traders to dispose of their products. On the contrary, as pointed out by the Commission, it may be presumed that the requirement runs counter to the objective of the regulation, which is to ensure the maximum possible amount of storage, and it is in any event correct to point out that the administration of such a requirement would be problematic.

Conclusion

13. I therefore propose that the Court should answer the question as follows:

Article 4(2) of Regulation No 2267/84 must be interpreted as meaning that, in the event that portions of boned forequarters of beef are removed from storage prior to the expiry of the minimum storage period, aid may still be claimed on condition that the portions of beef remaining in storage together make up at least 90% of the contractual amount, irrespective of whether or not the remaining portions of beef are capable of constituting whole boned forequarters.

(*) Original language: Danish.

(1) - OJ 1984 L 208, p. 31.