OPINION OF MR ADVOCATE GENERAL

VERLOREN VAN THEMAAT

delivered on 9 May 1985 ( *1 )

Summary

1. Introduction (Similarities and differences between the three cases) 1.1. The regulation to which the three cases relate 1.2. The extent of the tenderer's strict liability 1.3. The relationship between the release of the securities and the question whether or not the contractual obligations continue to exist 1.4. Reliance on general principles 1.5. Specific problems in the different cases 2. Preliminary analysis of the relevant regulations 2.1. Regulation (EEC) No 232/75 2.2. Regulation No 729/70 of the Council 3. Case 124/83 (the Danish case) 3.1. The facts and the questions submitted 3.2. Regrouping the questions 3.3. Questions 1 to 5 and Question 8 3.4. Questions 6, 7 and 9 3.5. Conclusion 4. Case 125/83 (the Belgian case) 4.1. The facts and the questions submitted 4.2. The first question (the phrase ‘day on which the butter was taken over’) 4.3 The second question (the concept of force majeure) 4.4. The third question (consideration of the second subparagraph of Art. 19 (2) of Regulation No 232/75 in the light of the principle of proportionality) 4.5. Conclusion 5. Case 20/84 (the Netherlands case) 5.1. The facts and relevant provisions 5.2. The main action and the question submitted 5.3. Answering the question raised 5.4. Conclusion

Mr President,

Members of the Court,

1. Introduction (Similarities and differences between the three cases)

1.1. The regulation to which the three cases relate

Although the three cases with which I shall deal today are not joined, they are nevertheless so closely related that I consider it useful to discuss them together despite the differences between them.

In the first place they all concern the application of Regulation (EEC) No 232/75 of the Commission of 30 January 1975 on the sale of butter at reduced prices for use in the manufacture of pastry products and ice-cream (Official Journal 1975, L 24, p. 45) with which the Court will be familiar from a number of earlier cases. After these introductory remarks I shall therefore first discuss the scheme of that regulation in so far as this is necessary for a proper understanding of the three cases.

1.2. The extent of the tenderer's strict liability

Secondly, a key point in all three cases is a special aspect of the extent of the tenderer's strict liability for the proper processing of the quantities of butter offered for sale at a reduced price and sold by the relevant intervention agency in accordance with the regulation. In these three cases this strict liability relates only to the processing of butter into one of the final products (pastry products or ice-cream) referred to in Article 6 (1) (c). The Court has in principle recognized the existence of such strict liability in its judgment in Joined Cases 99 and 100/76, Roomboterfabriek ‘De Beste Boter’ NV and Firma Josef Hoche Butterschmelzwerk v Bundesanstalt für landwirtschaftliche Marktordnung, [1977] ECR 861, having regard in particular to Article 6 (1) (c), (d) and (e), Article 9, Article 10 (5), Article 12 and Article 18 of Regulation No 1259/72 which are worded in identical terms. In this regard I refer in particular to paragraphs 7 and 11 of that judgment. However, that judgment only concerned in general the question of the tenderer's liability for the default of one or more final users of the concentrated butter if he had complied with the obligations laid down in Article 6 (1) and it was clear in particular that the final users concerned had agreed to assume in their sales contracts the processing obligations under the provision which is now Article 6 (1) (f). On the other hand, another aspect of the extent of the tenderer's strict liability plays a major part in one form or another throughout these present cases. This aspect concerns the question of the extent to which a tenderer may retrospectively be held liable for the negligence of the supervisory authorities of the Member States of which the authorities later prove to be guilty by wrongly issuing the documents of proof referred to in Article 18 (2) of the regulation and thus triggering the release of the processing security. So far as I have been able to ascertain, an entirely comparable problem has never been before the Court in a previous case. The only remotely comparable case is perhaps the Court's judgment of 21 September 1983 in Joined Cases 205 to 215/82, Deutsche Milchkontor GmbH and Others v Federal Republic of Germany, [1983] ECR 2633. That case concerned aid which was wrongly paid to producers of compound feeding-stuffs under Regulation No 804/68 owing to insufficient supervision of suppliers of skimmed-milk powder and was later required to be repaid. On this question the Court ruled: ‘Community law does not prevent national law from having regard, in excluding the recovery of unduly-paid aids, to such considerations as the protection of legitimate expectation, the loss of unjustified enrichment, the passing of a time-limit or the fact that the administration knew, or was aware owing to gross negligence on its part, that it was wrong in granting the aids in question, provided however that the conditions laid down are the same as for the recovery of purely national financial benefits and the interests of the Community are taken fully into account’ (paragraph 3 of the operative part). The principle about ‘taking into account of the interests of the Community’ is defined more closely in paragraph 19 of the judgment in relation to another question raised by the national court; the Court, referring to earlier relevant decisions, stated that ‘the rules and procedures laid down by national law (for recovery) must not have the effect of making it virtually impossible to implement Community regulations’.

In so far as the facts and Community provisions in the present cases appear sufficiently comparable on this point to those in the Milchkontor cases, the conclusion will readily be reached that the rejection of the tenderer's liability for breaches of the processing obligations committed after the securities have been released would indeed make it virtually impossible to implement the relevant Community regulations. Under Article 8 (2) of Regulation (EEC) No 729/70 of the Council of 21 April 1970 on the financing of the common agricultural policy (Official Journal, English Special Edition, 1970 (I), p. 218) Member States which had proved themselves negligent in checking in good time whether the processing obligations had been fulfilled would themselves run the risk of having to bear the financial consequences of the infringements established a posteriori. That risk would undoubtedly deter Member States from later carrying out thorough checks to ascertain whether the regulation had been complied with supplementary to the inevitably more general and random checks which usually precede the issue of the documentary evidence referred to in Article 18 (2) of the regulation in question. Compliance with the directive would thus no longer be sufficiently guaranteed in order for it to fulfil its purpose. When examining the different cases I shall concentrate especially on the question how far the differing facts of each of these cases and the terms of the relevant Community provisions justify a different conclusion with regard to this key question.

1.3. The relationship between the release of the securities and the question whether or not the contractual obligations continue to exist

A second question which plays a different part in all three cases is the question of the relationship between the basic obligations assumed by tenderers and the securities lodged to secure their fulfilment. In view of the nature of securities in general, I think that it must be assumed for the time being as a working hypothesis that the release of a security does not in principle cause the basic contractual or other type of obligations secured by the security to be discharged. In this regard it will also be necessary to examine the question how far the different facts of the three cases on this point and the provisions of the relevant regulation lead to different or additional conclusions.

1.4. Reliance on general legal principles

Thirdly, general principles of law, such as force majeure, good faith, legitimate expectation and proportionality, play a part in all three cases, although in different ways.

1.5. Specific problems in the different cases

Finally, different specific facts exist in each of the three cases and in the Belgian case (Case 125/83) some specific legal questions arise (date of ‘taking over’ and whether the second subparagraph of Article 19 (2) of Regulation No 232/75 is valid in the light of the principle of proportionality). Naturally, the different tenor of the questions submitted to the Court in the three cases and the different specific facts and questions of law, or the different contexts in which those questions arise, exclude uniform answers. Nevertheless, I shall now consider those basic issues of Community law in the following analysis of the regulation in question and of a number of other relevant regulations. Only after that examination will I then proceed to examine each of the three cases in turn. I consider that the chronological order of the cases is the most logical order for the separate analyses.

2. Preliminary analysis of the relevant regulations

2.1. Regulation (EEC) No 232/75

(a) Aims of the regulation. After it is explained in the first two recitals of the preamble to the regulation that large stocks of butter exist and that measures should be adopted to facilitate disposal of the butter, the aims of the regulation are described in the next two recitals in the following terms: ‘Whereas the sale of butter at reduced prices to certain Community processing undertakings for use in the manufacture of pastry products and ice-cream constitutes such a measure; whereas, to ensure that all purchasers have equal access to the butter and to keep a check on the quantities disposed of, the standing tendering procedure should be followed; Whereas a system of supervisison should be set up to ensure that the butter is not diverted from its destination; whereas this supervision must operate from the time the butter is removed from storage until it is processed; whereas in addition to the provision of a security stock records of all stages of marketing, the incorporation of an indicator in butter intended for processing may contribute to this end.’ Those recitals show in particular that the system of supervision set up by that regulation is meant ‘to ensure that the butter is not diverted from its destination’ which is ‘the manufacture of pastry products and icecream’.

(b) The tenderer's basic obligations. The text of both the fourth recital and the regulation itself show that, apart from the obligation to keep and make available particulars of cold stores and of the butter contained in each cold store imposed on the intervention agency by Article 5 and apart from the control obligations laid down on Member States in Article 5, the system of supervision established by the regulation is also intended to cover in particular the contractual obligations which the tenderer must enter into pursuant to Article 6 of the regulation. Of those obligations Article 6 (1) (c), (d), (e) and (f) are relevant as far as these cases are concerned. Article 6 (c) provides that the tenderer must undertake to have the butter purchased processed only into pastry products or ice-cream. Article 6 (d) provides inter alia that the tenderer must undertake to have the processing specified in subparagraph (c) done within six months of the day on which the butter was taken over as provided for in Article 13 (2). That time-limit is particularly relevant in the Belgian case (Case 125/83). According to subparagraph (e), the tenderer must undertake ‘to keep stock records showing, for each delivery, the quantity sold, the name and address of the purchaser of the product obtained as a result of the processing provided for in (a) and (b) (that is to say the concentrated butter into which “indicators” have been incorporated) and the use to which it is to be put (pastry products or ice-cream).’ Finally, subparagraph (f) lays down the obligation to include in the contract of sale, in the case of any subsequent resale of such product, the requirements laid down in subparagraphs (c) and (d). It is noticeable and of some importance for these cases that this obligatory transfer of obligations provided for in the regulation does not therefore concern the obligation to keep stock records. Naturally, this omission does not make it any easier to check whether the obligations entered into have been complied with in the event of resale. That applies both to the tenderer's supervisory duty which (in view of the Court's judgment in the De Beste Boter case, cited above) arises from the regulation and to the supervisory duty of the Member States themselves arising out of Article 8 of Regulation No 729/70 and Article 15 of Regulation No 232/75. The omissions which emerged in these cases as regards the performance of those two supervisory duties, which must be distinguished, are undoubtedly attributable to that lacuna. However, it must be deduced from the Court's judgment in De Beste Boter that the Court did not regard the lacuna as a ground for excluding the tenderer's liability for an improper use of the concentrated butter by his buyer or by the final user. That conclusion also appears inescapable in view of Article 10 (5) of the regulation which provides that the rights and obligations arising in connection with the invitation to tender are not transferable. Apart from the application of Article 18 (3) of the regulation, the Member States therefore have no possibility of imposing sanctions directly on the final processor and in no case are they able to demand repayment from those processors.

(c) The rides regarding the security. Article 9 (2) of the regulation provides that: ‘At the same time as the minimum selling prices are fixed and under the same procedure, the securities required under Article 12 shall be fixed per 100 kg by reference to the difference between the market price of butter and the minimum prices’. If the actual tender price is higher than the minimum price, this means that the amount of security may be higher than the actual difference between the purchase price and the market price. This is of some relevance to the question whether the amount of the security or only the actual difference between the purchase price and the market price may be recovered from the tenderer after a security has been wrongly released. The Danish intervention agency (Case 124/83) appears to have pursued a different policy in this regard than the Belgian intervention agency (Case 125/83). In the Netherlands case (Case 20/84) the legal approach adopted appears different yet again owing to Netherlands law on guarantees. Article 12 (to which Article 9 (2) refers) provides in paragraph (1) that before taking over the butter the successful tenderer must give the processing security referred to in Article 9 (2) which I have just discussed. Paragraph (2) of Article 12 provides that the processing security is to be given as provided in Article 8 (2), that is to say it must ‘take the form, according to the preference of the Member State, either of a cheque made out to the intervention agency, or of a guarantee satisfying criteria laid down by the Member State concerned’. The reason why in the Netherlands case the questions have been submitted by the Hoge Raad is that the Netherlands has chosen neither the form of a cheque nor the form of a bank guarantee but the form of a borgtocht [performance bond]. When the giver of the borgtocht refused to provide the amount secured, it had to be recovered in the ordinary courts. In the case of a cheque or a bank guarantee, it will normally be possible, of course, for the amount secured to be collected without any further steps once it has been declared forfeit unless the forfeiture is challenged in the competent court. In the Netherlands, that court would be the College van Beroep voor het Bedrijfsleven [administrative court of last instance in matters of trade and industry].

(d) Rules concerning the release of the processing security. The rules governing the release of the processing security are, in so far as they are relevant to these cases, contained in Article 18 (2) of the regulation which reads as follows: ‘Except in cases of force majeure and save as otherwise provided in Article 19 (2) the processing security provided for in Article 12 shall be released only for quantities in respect of which the successful tenderer has furnished proof that the conditions laid down in Article 6 have been fulfilled. Such proof shall be furnished depending on the circumstances, as follows: (a) where operations provided for in subparagraphs (a), (b) and (c) of Article 6 (1) or in Article 6 (2) or carried out in the Member State of sale, proof shall be furnished by the production of a document specified by the Member State of sale; (b) where operations provided for in Article 6 (1) (a) and (b) are carried out in the Member State of sale, and operations provided for in Article 6 (1) (c) are carried out in another Member State, or the operation provided for in Article 6 (2) is carried out in a Member State other than that of sale, proof shall be furnished by the control copy or copies referred to in Annexes III (II) and (IV); (c) where operations provided for in Article 6 (1) (a), (b) and (c) are all carried out in a single Member State which is not the Member State of sale, proof shall be furnished by the production of a document specified by the Member State in which the processing has taken place; (d) where operations provided for in Article 6 (1) (a) and (b) are carried out in a Member State other than that of sale and the operation provided for in Article 6 (1) (c) if carried out in a Member State other than that in which the operations provided for in Article 6 (1) (a) and (b) have been carried out, proof shall be furnished by the control copy or copies referred to in Annex III (I) (cc).’

(e) Special provisions for cases of force majeure and cases in which time-limits are exceeded by narrow margins For cases of force majeure and cases in which the processing time-limits are exceeded by narrow margins Article 19 provides as follows : ‘1. In cases oí force majeure the intervention agency shall determine the measures necessary in view of the circumstances invoked. 2. In all cases which cannot be regarded as cases of force majeure where (a) the aggregate of the periods prescribed in Article 6 (1) (d) or the period prescribed in the first subparagraph of Article 6 (2) for processing; (b) has been exceeded by no more than 30 days, and (c) the period or periods were exceeded for reasons other than serious negligence on the part of the person concerned, the amount of the processing security to be retained shall, if the person concerned submits a reasoned application to that effect, be only two units of account per metric tonne for each day by which the prescribed period or periods have been exceeded. Such application shall be considered only if it is lodged with the intervention agency concerned within 30 days of the day on which the period or periods in question expire. 3. Member States shall inform the Commission each quarter of the cases in which they have applied paragraphs (1) or (2), specifying the circumstances invoked, the quantity involved and the measures taken.’ This provision is particularly relevant in the Belgian case (Case 125/83).

(f) Provisions relevant to the calculation of the processing period. The way in which the processing period must be calculated is also particularly relevant in the Belgian case. In this connection Articles 11 and 13 of the regulation are particularly significant. Those articles read as follows: Article 11 ‘1. Every tenderer shall immediately be notified by the intervention agency of the result of his participation in an individual invitation to tender. 2. The successful tenderer shall, before taking over any quantity of butter, pay the intervention agency an amount corresponding to his tender for the quantity which he intends to remove from store. However, in the case of successful tenderers who have undertaken to conform to the provisions of Article 6 (1) (a), (b) and (c), the price shall be reduced by 10 units of account per 100 kg.’ Article 13 ‘1. When the payment provided for in Article 11 (2) has been made and the processing security required under Article 2 has been given, the intervention agency shall issue the removal order indicating: (a) the quantity in respect of which the conditions specified at the beginning of this paragraph have been satisfied; (b) the cold store in question; (c) the final date for taking over the butter; (d) the closing date for the submission of tenders in response to the individual invitation to tender as a result of which the butter was sold. 2. The successful tenderer shall take over the butter awarded to him within 30 days of receiving the notification provided for in Article 11 (1). The butter may be taken over in stages. Except in cases of force majeure, if the successful tenderer has not taken over the butter within the period prescribed the sale shall be cancelled in respect of the remaining quantities.’ It follows from Article 6 (1) (d), which I have just looked at, that the six-month processing period laid down therein begins to run on the date on which the butter is taken over referred to in Article 13 (2). The first question of the Belgian court concerns this ‘date of taking over’. It follows from Article 13 (1) that in no case may this date precede the date on which the tenderer pays for the butter or the date on which the processing security is given. However, Article 13 (1) also appears to indicate that the date on which the butter is taken over cannot be before the date on which the intervention agency issues a removal order, for it provides that the removal order must indicate inter alia:‘(c) the final date for taking over the butter’ (‘la date limite de prise en charge du beurre’). On the other hand, the application of Article 13 (2) may lead to a different conclusion. I shall revert to this point, which is decisive for the answer to the Belgian court's first question, and consider it in detail when examining that question and the different views of the parties involved.

(g) The supervisory duty of the Member States. Finally, with regard to the supervisory duty of the Member States, Article 15 of the regulation provides as follows: ‘From the time of its removal from store and until it is processed into one of the products specified in the two indents of Article 6 (1) (c), the butter shall be subject to customs or equivalent administrative control’. This provision is relevant in all three cases.

2.2. Regulation No 729/70 of the Council

As pointed out earlier, the system of supervision established by Regulation No 232/75 governs in particular the obligations of the tenderer (see the fourth recital of the preamble, cited above). The control obligations of the Member States are themselves governed by Article 8 of Regulation No 729/70 of the Council (Official Journal, English Special Edition 1970 (I), p. 218). That regulation is general in nature. It concerns the financing of the common agricultural policy in general. This also applies to the control obligations of the Member States laid down in Article 8 which are of course absolutely indispensable for the prevention of fraud. This is why they are reiterated in Article 15 of Regulation No 232/75 for the purposes of that regulation. The basic provision of Regulation No 729/70 reads as follows:

‘(1) The Member States in accordance with national provisions laid down by law, regulation or administrative action shall take the measures necessary tò : (a) satisfy themselves that transactions financed by the Fund are actually carried out and are executed directly; (b) prevent and deal with irregularities; (c) recover sums lost as ä result of irregularities or negligence. The Member States, shall inform the Commission of the measures taken for those purposes and in particular of the state of the administrative and judicial procedures.

(2) In tne absence of total recovery, the financial consequences of irregularities or negligence shall be borne by the Community, with the exception of the consequences of irregularities or negligence attributable to administrative authorities ör other bodies of the Member States. The sums recovered shall be paid to the paying authorities or bodies and deducted, by them from the expenditure financed by the Furid.

(3) The Council; acting by a qualified majority on a proposal from the Commission, shall lay down general rules for the application of this Article.’

From that provision there arises inter alia an obligation to investigate and pursue irregularities but in addition an obligation to ‘recover sums lost as a result of irregularities or negligence’. In my view, it follows that the private law control system laid down in Regulation (EEC) No 232/75 (governing the tenderer's obligations) exists side by side with the public law control system laid down in Regulation No 729/70 and Article 15 of Regulation No 232/75 (governing the obligations of the Member States regarding supervision and the pursuance of irregularities). It then follows, in my view, that the defective or delayed operation of the public law control system may have practical consequences, but in principle no legal consequences, for the application of the private law control system. Since the regulation in question in the Milchkontor cases which I discussed above (see paragraph 1.2 of this Opinion) did not provide for any comparable contractually established private law control system, it is not possible to draw from the relevant judgment any argument supporting possible derogations from that principle. However, that conclusion does not rule out further examination of the possibility of invoking force majeure and other general legal principles.

Also relevant to the application of Regulation No 729/70 as regards cross-frontier events of the kind involved in these cases is Council Directive No 76/398/EEC óf 15 March 1976 on mutual assistance for the recovery of claims resulting from operations forming part of the system of financing the European Agricultural Guidance and Guarantee Fund, and of agricultural levies and customs duties (Official Journal 1976, L 73, p. 18). Finally, Commission Regulation (EEC) No 2315/69, of 19 November 1969, on the use of Community transit documents for the purpose of applying Community measures for verifying the use and/or destination of goods (Official Journal, English Special Edition 1969 (II), p. 515) is also important for a proper understanding of these cases. Article 18 (2) of Regulation No 232/75 appears to be an application of that earlier general regulation. However, I do not think it is possible to conclude from Regulation No 2315/69 that it is also relevant to the application of Article 6 (1) of Regulation No 232/75.

Finally, in case the Court might consider this important for the assessment of the case, I would point out that Regulation No 232/75 was amended no less than 23 times although those amendments do not appear directly relevant to these cases. A complete amendment of the regulation and of the system laid down therein was made by Commission Regulation (EEC) No 262/79 (Official Journal 1979, L 41, p. 1). Only then was the omission which I pointed out in Article 6 (1) of Regulation No 232/75 (regarding the obligation to keep stock records) remedied.

3. Case 124/83, (Direktoratet for Markedsordningerne, Copenhagen v Nicolas Corman et fils SA, Brussels)

3.1. The facts and the questions submitted

I will now examine Case 124/83 more closely. As in the two following cases, a precise understanding of the main facts is essential for answering the questions submitted. I will adopt a summary of those facts from the Report for the Hearing.

(a) Acting pursuant to Regulation (EEC) No 232/75 (Official Journal 1975, L 24, p. 45) and on behalf of the Direktoratet for Markedsordningerne (‘the plaintiff’) and the competent intervention agencies of the other Member States the Commission published in Official Journal 1975, C 25, p. 1, a notice of standing invitation to tender for the sale of butter for use in the manufacture of pastry products and ice-cream. Acting on the basis of that notice Nicolas Corman et fils SA (‘the defendant’) submitted a tender for the purchase of a quantity of butter amounting in all to 513994 kg for processing in accordance with Article 6 (1) of the regulation for use in the production of pastry products. In submitting the tender the defendant undertook to observe the provisions of the regulation and those contained in the notice of invitation to tender published in accordance with the regulation. That entailed the defendant's undertaking to process the butter into concentrated butter, adding certain tracers, and to ensure that the concentrated butter was processed only into pastry products. By a letter of 20 February 1975 the plaintiff accepted the tender. The amount of DKR 3318582.22 corresponding to the tender price, was paid to the plaintiff, which, after receiving notification from the Belgian intervention agency, the Office belge de l'economie et de l'agriculture, that the defendant had provided the processing security required by the regulation, issued orders for the removal of the butter from storage. The defendant subsequently took delivery of the butter in the period between 6 and 21 March 1975. Then, after processing by the defendant and the incorporation of tracers in Belgium, 53730 kg of concentrated butter, equivalent to 65101 kg of butter, was sold in consignments to the German undertaking Sahne-Heinrich, Frankenthal, which resold them to the undertaking Scheunemann, Bad-Kreuznach, Federal Republic of Germany. The undertaking Sahne-Heinrich gave a signed undertaking that it would use the butter exclusively for the manufacture of pastry products in accordance with Regulation No 232/75. The consignments subsequently passed through various transit warehouses in Northern Germany to German foodstuffs manufacturers. In connection with the sale of the concentrated butter by the defendant the required control documents known as T5 were issued and subsequently sent to the Belgian intervention agency with a certificate from the German customs authorities to the effect that the concentrated butter had been used for the prescribed purpose. On the basis of those documents the security provided by the defendant was released by the Belgian intervention agency. However, a subsequent investigation carried out at the premises of the undertaking Scheunemann by the competent customs authorities at Frankfurt am Main revealed that concentrated butter which the undertaking Sahne-Heinrich had supplied to Scheunemann between the end of 1975 and the beginning of 1976 had eventually been used for the manufacture of products other than pastry products.

(b) By application of 18 January 1980 the plaintiff brought an action against Corman in the Østre Landsret, Copenhagen, asking that court to order Corman to pay DKR 485382.90 together with statutory interest to be calculated as from the date of commencement of proceedings. That sum corresponds to the difference between the intervention price on the day of purchase and the purchase price for 65101 kg of butter. The plaintiff contended that the defendant had failed to fulfil the conditions for the purchase of the butter in question at the specially low price and submitted that the obligation to pay the amount arose directly from the terms of the contracts entered into and, in the alternative, that the amount constituted damages for nonperformance of that contract. The defendant asked the Danish court to declare the action inadmissible and in the alternative to dismiss the action. In support of its claim that the action should be declared inadmissible, it challenged the jurisdiction of the Danish court and contended that the plaintiff was not the person properly entitled to bring the action. In its view, the action ought to have been brought in Belgium by the Belgian intervention agency, the Office belge de l'economie et de l'agriculture, which had received and subsequently released the processing security. By judgment of 6 March 1981 the Østre Landsret dismissed the objection of inadmissibility on the grounds that the jurisdiction clause contained in paragraph VII of the Notice of Invitation to Tender was applicable to the parties to the proceedings. The defendant appealed against that judgment to the Højesteret which, however, upheld the judgment of the Landsret on 18 February 1982. In support of its claim that the action should be rejected, the defendant argued in particular that it had acted in accordance with the Community regulations and in good faith. It also argued that there was a case of force majeure within the meaning of Article 18 (2) of the regulation because the failure of the German authorities to carry out proper supervision rendered it impossible for the defendant to produce any form of proof.

(c) Considering it necessary before giving its judgment to request the Court of Justice for a preliminary ruling the Østre Landsret submitted the following questions by order of 30 June 1983: ‘(1) Is it in accordance with the provisions of Community law, in particular Regulation (EEC) No 232/75 of the Commission of 30 January 1975, that a purchaser of butter who has given an undertaking to comply with the conditions relating to Formula A in Article 6 (1) (c) of that regulation is released from his obligations when the processing security which he has provided is released on the basis of a control copy which is in the form required by Article 18 (2) of the regulation but the contents of which subsquently proved to contain an error? (2) Is it relevant to the answer to be given to Question 1 whether the error in the contents of the control copy arose from the failure of the customs authorities to carry out a check on subsequent purchasers? (3) Is it relevant to the reply whether the undertaking which bought the butter from the intervention agency acted in good faith as regards using the butter in accordance with the relevant provisions at the time when the processing security was released? (4) Is it relevant to the reply that a purchaser has previously obtained the release of the processing security, in connection with the resale of butter, on the basis of control copies whose contents were erroneous? (5) Are the circumstances mentioned in Questions 1 to 4 relevant to the defence of force majeure contained in Article 18 (2) of Regulation No 232/75? (6) If the replies to the above questions mean that the purchaser is not released from his obligations, must a Member State require the purchaser to pay to the intervention agency the difference between the price previously paid and the intervention price on the day when the purchaser submitted his tender? (7) If the answer to Question 6 is not in the affirmative, is it contrary to Community law if the provisions of the Member State's domestic law on the sale of goods bring about the effect in law which is mentioned in Question 6? (8) If it is held that the purchaser is not released from his obligations, does it follow from Community law, including considerations of legal certainty, that even the circumstance that the processing security has been released itself excludes a claim against the purchaser? (9) If the processing security was released on the basis of a control document, the contents of which were erroneous in the circumstances related above, does Community law contain rules as to the party on whom the burden of proof rests in establishing whether the butter purchased was used in accordance with the relevant provisions?’

3.2. Regrouping the questions

On the basis of my preceding analysis of the three cases and of the scheme of Regulations Nos 729/70 and 232/75 I share the view of the plaintiff in the main action, the Commission and the Government of the Federal Republic of Germany that the first five questions submitted by the national court and the eighth question, which is directly related to them, are best dealt with together.

I will then go on to examine the sixth, seventh and ninth questions, which are also interconnected and deal with the object and amount of the sum to be recovered as well as the burden of proof.

3.3. Questions 1 to 5 and Question 8

(a) First of all, the defendant in the main action, Nicolas Corman & fils SA, has made a number of interesting factual observations on the lacunae in the German control system and the origin of the butter in question. The butter was not bought exclusively in Denmark but most of it was bought from intervention agencies in Belgium, Germany, France and the Netherlands whereas only the Danish intervention agency has brought an action for recovery. Corman also considers that the Belgian intervention agency ought to have brought the action in this case since it was the agency which released the security in question. However, those factual and legal aspects of the case do not seem to me to be decisively important for the Court's answer to the questions submitted. With regard to the first five questions and the eighth question of the national court, the defendant argues (in particular in its second statement of observations) that Regulation No 232/75 does not provide for any other sanction than the loss of the security when the butter is used for a purpose other than that for which it was intended. Considerations of legal security and the legitimate expectation of tenderers regarding fulfilment by the Member States of their supervisory duties also suggest that the Member States themselves should be solely liable for any breaches of the processing obligation which are discovered after the security has been released in a regular manner. If the processing security is to be regarded only as a security for another economic sanction, that ought to have been expressly laid down in Regulation No 232/75 and the exceptions in the case of force majeure should also apply to the other sanctions and not only to the security. Where the irregularity is the result of inaccuracies, discovered only after the security was released, in the documents of proof which were submitted, an irregular use of the butter must constitute a case of force majeure as far as the tenderer is concerned. In the defendant's view, the means of proof referred to in Article 18 (2) also have an absolute character. It refers in this regard to Article 1 of Regulation (EEC) No 2315/69 which I mentioned earlier. If formally valid proof is furnished in accordance with Article 18 (2), the intervention agency to which the security was given is not entitled to verify on its own initiative whether the butter was used within the period prescribed and in accordance with the intended purpose. It must release the security. Nor may the intervention agency which sold the butter, in this case the plaintiff in the main action, provide proof to the contrary. If the Member State concerned has availed itself of Article 18 (3), a direct action against the final user is possible. In view of the considerable risk which the tenderer must bear under Regulation No 232/75 in the event of the non-application of Article 18 (3), arising from the fact that he is also liable for the actions of subsequent buyers, he can and must be able to rely on the effectiveness of the customs control. In particular, he must be entitled to assume that his contractual liability ends as soon as the proof referred to in Article 18 (2) is furnished. Only in the case of manifest bad faith on the part of the tenderer, but not in the case of negligence on the part of the supervising customs authority, may the interests of the intervention agency prevail over the interests of the tenderer and an action against the tenderer be justified. Neither Article 15 of the regulation in question nor the German implementing provisions provide for a control to be carried out a posteriori. As far as concerns the principle that the legitimate expectation of the undertaking also deserves protection in Community law, the defendant refers to the judgments of the Court in Case 44/59, Rodolf Fiddelaar v Commission (a staff case), [1960] ECR 535, Case 78/74, Deuka Deutsche Kraftfutter GmbH, B.J. Stolp v Einfuhr- und Vorratsstelle für Getreide und Futtermittel (legal certainty in the event of the amendment of provisions), [1975] ECR 421 and in Case 18/76, Germany v Commission (incorrect application of provisions regarding agricultural policy based on an interpretation adopted in good faith by the national authorities), [1979] ECR 343. The defendant therefore suggests that the first three questions should be answered as follows: ‘If the processing security was released on the basis of a control copy issued in accordance with Article 18 (2) and the tenderer believed in good faith that the butter had been properly used within the prescribed period, the tenderer is in any event discharged from the obligations which he assumed in the sale contract concluded with the intervention agency if the control copy subsequently proves to contain an error which owes its origin to a failure in whole or in part to carry out the customs control prescribed in Article 15 of Regulation No 232/75.’ As regards the fourth question, which in view of its answer to the first three questions, it regards as superfluous, the defendant refers to a principle which has been developed in German revenue law (judgment or the Finanzgericht Düsseldorf of 14 May 1980 in Case IV 270/77 Z) and which in its view also applies in Community law and suggests that it should be answered as follows: ‘When the processing security has been released on the basis of a control copy issued in accordance with Article 18 (2) and the tenderer believed in good faith that the butter had been properly used within the prescribed period, then, if the control copy should subsequently prove to contain an error, the tenderer is in any event discharged from the obligations which he assumed in the contract of sale concluded with the intervention agency if the error in the control copy is attributable to the complete or partial failure of the customs authority to carry out the customs control prescribed in Article 15 of Regulation No 232/75 and processing securities had previously been released to the tenderer in similar cases in which the controlling customs authorities acted in the same way.’ In the defendant's view, the fifth question also has a subsidiary character. Despite the Court's decision in Case 42/79, Milch-, Fett- und Eierkontor GmbH v Bundesanstalt fúr landwirtschaftliche Marktordnung, [1979] ECR 3703, in particular the first sentence of paragraph 10 in which the Court defines the concept of force majeure appearing in the regulation concerned which the defendant considers inapplicable in this case, the defendant proposes a less absolute answer, referring to other cases (concerning export licences) cited by Mr Advocate General Capotorti in that case. Finally, owing to the reliance which the tenderer, in view of Article 15 of the regulation, may place on the effectiveness of the customs control, the defendant suggests that the fifth question should be answered as follows: ‘It follows from the aims and provisions of Regulation No 232/75 that the concept of force majeure within the meaning of Article 18 (2) must not only be understood in the sense of absolute impossibility but also in the sense of exceptional circumstances beyond the control of the purchaser of the stored butter whose consequences could not have been avoided despite the exercise of all due care and prudence except through excessive sacrifices. The tenderer may plead force majeure when the improper use of the butter at later marketing stages was made possible by the lack of control by the controlling customs authority because it failed to verify in accordance with Article 15 of the regulation whether the butter had been finally processed and despite that omission confirmed in accordance with the second subparagraph of Article 18 (2) that the butter had been used for the prescribed purpose and within the period laid down, thereby preventing the tenderer from taking the measures needed to prevent the butter from being used for a purpose contrary to the aim of the Community regulation.’ As regards the national court's eighth question the defendant proposes the following answer on the basis of the arguments summarized above: ‘If the processing security was released on the basis of a control copy issued in accordance with Article 18 (2) and the tenderer believed in good faith that the butter had been properly used within the period laid down, then, if the control copy should subsequently prove to contain an error, the tenderer may plead good faith in order to resist a claim by the intervention agency for payment of the difference between the tender price and the intervention price if the error in the control copy was caused by the complete or partial failure of the competent customs authority to carry out the customs control prescribed in Article 15 of Regulation No 232/75.’ To that answer the following might be added: ‘and if the tenderer had previously obtained the release of processing securities in similar cases in which the controlling customs authorities had acted in the same way’. Although the eighth question does not relate to this point, I would mention for the sake of completeness the answer which the defendant suggests the Court should give to it in the event that a principle of good faith recognized in national law proves to be applicable. That answer is as follows: ‘At the present stage of its development, Community law, in particular the provisions of Regulation (EEC) No 232/75, does not prevent a principle of protecting good faith recognized in national law from being applied in cases in which the intervention agency claims from the tenderer the difference between the tender price and the intervention price with the effect that this amount may not be recovered if the processing security was released after confirmation by the controlling customs authority that the butter had been used for the required purpose and within the period laid down and processing securities had previously been released to the tenderer in similar cases in which the controlling customs authority acted in the same way.’ Finally, in its written observations the defendant also emphasized the importance of the time-barring of the tenderer's right of action against subsequent buyers and processors (should the Court decide, contrary to its own submission, that they are in principle contractually liable). According to the statements which the defendant made on this point at the hearing, the requiring of a bank guarantee or other security of equivalent value from those intermediaries is also practically impossible owing to limitation periods which are often quite short. In view of that consideration, it suggests that the following sentence should be added to the Court's answer to the eighth question: ‘A person who has obtained the release of a security in good faith may plead as against the intervention agency that, because the processing security was released on the basis of an error, he is in a situation such that his own right of recourse is time-barred or that he has relinquished the securities provided.’ With regard to that argument of the defendant in the main proceedings, whose essential points I have just summarized, I would point out immediately that all its arguments rest on the hypothesis that the tenderer's liability stands or falls with the security, that is to say that the tenderer remains liable only as long as the security has not been released. The plea of force majeure and the principles of legal certainty and legitimate expectation also stands or falls, in my view, with the basic proposition that the submission of documents justifying the release of the security also creates the legitimate expectation that the contractual obligations entered into have been discharged. As regards the inaccuracies contained in the documents furnished in accordance with Article 18 (2), which later proved to be inadequate control, the defendant might then invoke the abovementioned principles, not only in relation to the system of security (i.e. if it is sought to recover the amount of a wrongly released security) but also in proceedings to compel performance of the contractual obligations entered into, or in proceedings for damages for nonperformance of those obligations.

(b) On reading the written observations of the Netherlands Government it seems to me that its argument is also based on that basic hypothesis. Like the defendant, it reaches the conclusion, on the basis of that hypothesis, that if the buyer has furnished the right documents proving that the product has been processed in the proper way, he is in principle also released from his contractual obligation, subject to certain provisos. On that basis the first question must be answered in the affirmative. As regards the second, third, eighth and ninth questions, the Netherlands Government then deduces from the Court's decisions (in particular its judgment in Case 275/78, H. Ferwerda BV v Prodiiktschap voor Vee en Vlees [1980] ECR 617) that Community law does not prevent the national court from applying legal principles such as the principle of good faith or of legal certainty whereby the recovery of a wrongly paid Community premium becomes impossible. The Netherlands Government considers that in this case there is sufficient scope for the application of the general principle of administrative law that a person cannot be held liable for a mistake made by the administration unless he is not acting in good faith. However, the limits imposed by Community law indicated in the Ferwerda judgment must still be respected.

(c) In my opinion, the Danish intervention agency, the Commission and the Government of the Federal Republic of Germany have, however, sufficiently demonstrated in their written observations that the basic hypothesis is wrong. In view of my earlier analysis I also consider that the regulation contains nothing to suggest that one of the aims of the provisions relating to the processing security and its release is to give the tenderer special protection against subsequent demands to pay the proper purchase price based on the contractual obligations into which he entered in order to guarantee that the butter would be processed in the way prescribed. In paragraph 7 of the Court's judgment in De Beste Boter, cited above, the Court has already explained in detail why those contractual obligations cannot be satisfied by simply transferring the burden of the processing obligation to a subsequent buyer. The Court also had regard to the third paragraph of Article 18 (2) of the regulation in question in that case, which corresponded to Article 18 (3) of Regulation No 232/75 on which the defendant wrongly relies in view of those passages in the Court's judgment. The question of the extent to which the amount of the security itself might be recovered on the ground that the contents of the documents referred to in Article 18 (2) subsequently prove to be false is one to which I shall revert when examining Case 125/83. That question does not arise in this case. The defendant is wrong to argue with regard to the national court's first three questions that the adoption of the Commission's and intervention agency's point of view would be tantamount to reading into the regulation, besides the forfeiture of the security, a second ‘economic sanction’ for which the regulation does not expressly provide. It is not in fact an ‘economic sanction’ but simply a way of compelling the performance of contractual obligations, that is to say a way of obtaining compensation for the loss arising from nonperformance of those obligations or of nullifying the unlawfully obtained advantage of a reduced purchase price. Those contractual obligations, which form the legal basis of the action in question, are expressly provided for in the regulation. The intervention agency also rightly argues that the transfer of obligations provided for in Article 6 enables tenderers to recover such damages from subsequent buyers who, unlike the tenderers, do not assume any direct obligations towards the intervention agency. It therefore clearly follows from the scheme of the regulation that the first buyer is fully liable for the actions of subsequent buyers. Such unlimited liability must also be considered compatible with the principle of proportionality, although, in my view, only as long as recovery from the subsequent buyers remains possible in practice and is not time-barred. Like the defendant in the main proceedings, I consider that such a qualification should be made in the Court's reply to the questions submitted. The Court has consistently held that the ‘recognition of circumstances of force majeure presupposes that the external cause relied on by individuals has consequences which are inexorable and inevitable to the point of making it objectively impossible for the persons concerned to comply with their obligations’. I refer in this regard to the judgments of the Court in Case 42/79, Milch-, Fett- und Eierkontor GmbH v Bundesanstalt für landwirtschaftliche Marktordnung, [1979] ECR 3703 (in particular the first sentence of paragraph 10 on p. 3716 and the opinion of Mr Advocate General Capotorti on p. 3723 in which he refers to further cases) and in Case 154/78 and other cases, Ferriere Valsabbia SpA and Others v Commission, [1980] ECR 907, in particular paragraph 140 on p. 1022 and the opinion of Mr Advocate General Capotorti on p. 1067. As I pointed out earlier, the defendant's argument on this point disregards the existence of its own independent contractual obligation to ensure that the cheap butter is used properly. The failure of the investigating authorities of the Member State concerned to carry out proper controls did not make it objectively impossible for the defendant to comply with its own contractual obligations. The test laid down in the decisions of the Court for the recognition of force majeure is not therefore satisfied. For that reason, namely that the tenderer's contractual obligations must be clearly distinguished from the system of security for ensuring their fulfilment, the furnishing of the documents to which Article 18 (2) subordinates the release of the security cannot yet entitle the tenderer to assume that his contractual obligations are also discharged once the security is released. Not even his acting in good faith can discharge him from the strict liability he bears in respect of the risk of improper use by a subsequent buyer. As I pointed out earlier, the adoption of any different view would render the entire system established by the regulation impracticable. The Commission also rightly observed in its written observations that neither Article 15 of Regulation No 232/75 nor the Court's case-law on this question in general (Joined Cases 146, 192 and 193/81, BayWa AG and Others v Bundesanstalt fiir landwirtschaftliche Marktordnung, [1982] ECR 1503) prevent an action from being brought against the tenderer on the basis of facts which emerge during subsequent controls carried out after the documents provided for in Article 18 have been issued. The Government of the Federal Republic of Germany also refers to that judgment in its written observations and moreover reaches conclusions similar to those of the Danish intervention agency and the Commission. On the basis of the foregoing analyses I consider that the national court's first five questions and eighth question could be answered by the Court as follows: ‘(1) Regulation (EEC) No 232/75 must be interpreted as meaning that the tenderer remains liable for the use of the butter which he acquired at a reduced price in accordance with Article 6 (1) (c) of the regulation if the processing security was released on the basis of a control copy which was issued in accordance with Article 18 (2) of that regulation but whose contents later prove to be incorrect. (2) Negligence or delay in carrying out the controls provided for in Article 15 of the regulation may discharge the tenderer from that liability by virtue of the principle of proportionality only in so far as the inaccuracy of the contents of the control copy in question was established so late that he can no longer exercise his right of recourse against subsequent buyers in the marketing chain owing to rules of limitation. (3) The tenderer may not rely on his good faith or on force majeure due to a failure to perform the control obligations laid down in Article 15 of the regulation since his obligations to ensure that the butter is properly used are independent obligations. Owing to that independent nature of his contractual obligations, the release of the processing security cannot prevent an action from being brought against him on grounds of legal certainty either.’

3.4. Questions 6, 7 and 9

(a) Questions 6 and 7 essentially seek to establish the amount which the buyer will have to pay to the intervention agency on the assumption that the obligations entered into by a tenderer have an independent character. In view of my analysis of the first five questions and of the eighth question, these questions must in fact be answered on the basis of the contractual obligations assumed by the tenderer. The ninth question then relates to the question who bears the burden of proving that the butter has been used as prescribed in the event that a recovery action is brought on the basis of the contractual obligations assumed by the tenderer.

(b) The defendant in the main proceedings, who, as we have seen, disputes that the undertakings it gave to ensure that the butter was used for the prescribed purposes are independent in nature, deduces from the system laid down in Article 18 (2) regulating the release of the security that neither Community law nor national law can provide a basis for a claim for payment of the remainder of the purchase price. In its view, Questions 6 and 7 must therefore be answered in the negative. However, in case the Court should adopt a different view of the relationship between the undertakings entered into and the security provisions, the defendant contends that the claim of the intervention agency which sold the butter for payment of the remainder of the purchase price or for damages for noncompliance with those undertakings nevertheless depends on the question whether the intervention agency with which the processing security was lodged and which released it (in this case the Belgian intervention agency) could reverse its decision that the tenderer had fulfilled his contractual obligations and whether it did reverse its decision. In the defendant's view, the Danish intervention agency cannot in any case bring an action so long as the Belgian intervention agency has not withdrawn its decision to release the security. The adoption of a different view would mean that the question whether or not the defendant has satisfied his obligations under the contract of sale might be decided differently, which would not be acceptable from the point of view of public law. It believes that the differences between the legal systems of the Member States could then lead to a difference in treatment between tenderers, depending on the Member State in which the processing undertaking is established. Finally, the defendant considers that in no case may the tenderer be placed, as a result of an action of the kind referred to in the questions, in a situation less favourable than if he was faced with an action for unjust enrichment following the release of the securities. He must therefore be able to plead the same defences, including force majeure, the protection of legal certainty and the principle of legitimate expectation. Finally, as its main submission, the defendant in the main proceedings suggests that Questions 6 and 7 should be answered as follows: ‘Once the intervention agency with which the security had to be lodged pursuant to Regulation No 232/75 has released the security, the intervention agency which sold the butter cannot demand from the tenderer the difference between the tender price and the intervention price if the processing security proves to have been released on the basis of control copies whose contents were incorrect.’ In the alternative, it suggests that the question should be answered as follows: ‘The intervention agency which sold the butter may demand the difference between the tender price and the intervention price from the tenderer only if the intervention agency which released the processing security furnished pursuant to Article 6 (3) of Regulation No 232/75 has first withdrawn its decision that the tenderer must be regarded as having satisfied all his obligations under the contract of sale. In such a case the tenderer may plead the same defences which he could have pleaded if the action had been for the recovery of enrichment arising from the release of the security, namely the difference between the intervention price and the tender price.’ As regards the ninth question, the defendant considers that the allocation of the burden of proof must be deduced from the provisions of Regulation No 232/75. It believes, however, that the scope of those provisions does not extend beyond the date on which the processing security is released. Until that date the tenderer bears the burden of proof which may be sufficiently discharged by production of the documents referred to in Article 18 (2). As regards the period after the release of the processing security, the defendant deduces a general principle from the Court's judgment of 9 June 1964 in Joined Cases 94 and 96/63, Bernussetv Commission, [1964] ECR 297, in particular the third and fourth paragraphs on p. 311, to the effect that an institution which adopts provisions favourable to the person concerned must bear the burden of proof itself. In this case, if its argument concerning the absolute value of the documents referred to in Article 18 (2) is rejected, such proof must consist of proof that the declaration in the margin of the T5 control copy that the goods have been used in accordance with the provisions is incorrect. Finally, the defendant considers that the answer to the ninth question depends on the answer to be given to the sixth and seventh questions. In any event, it considers that the intervention agency bears the entire burden of proving that the processing conditions laid down in Article 6 have not been satisfied since the controlling customs authorities deprived the defendant of the only means of proof allowed by Article 18 (2) by not extending its controls to the person who finally processed the butter. The defendant therefore suggests that the ninth question should be answered as follows: ‘Once the processing security has been released the burden of proving that the processing conditions laid down in Article 6 of Regulation No 232/75 have not been complied with rests entirely on the intervention agencies.’

(c) The Danish intervention agency suggests that Questions 6 and 7 should be answered as follows: ‘If the butter purchased is not used in the way prescribed and if the buyer has not been discharged from his obligations, the purchase price to be paid by the buyer may in no case be lower than the intervention price on the day of purchase.’ As regards the ninth question, the intervention agency also takes the view that, once the customs authorities have issued a declaration as provided for in Article 18 (2), the competent intervention authority may be required to produce evidence showing that the declaration is wrong. However, that does not mean that all the burden of proof which, according to the main rule established by the regulation, rests on the tenderer, may be shifted onto the intervention agency. From the practical point of view, it appears from its repeated references to this obligation that the intervention agency attaches much importance to the fact that in this case the successive buyers did not comply with their obligation under the regulation to keep stock records, which is essential for providing conclusive proof of the use to which the butter was eventually put. Finally, on the basis of its arguments briefly summarized above, the intervention agency suggests that the ninth question should be answered as follows: ‘If the competent intervention authorities have established facts suggesting that the customs declaration certifying that the butter has been used for its prescribed purpose is based on an error, the buyer wishing to be discharged from his obligations must produce the necessary evidence to show that the butter has in fact been used for the prescribed purpose.’ In reply to that submission I would point out straightaway that the assumption it contains, namely that by providing for a compulsory transfer of obligations the regulation requires not only the tenderer but also his successive buyers to keep stock records, is wrong according to my earlier analysis of Regulation No 232/75.

(d) In the Commission's view, the answer to the national court's sixth and seventh questions follows from Article 8 of Regulation No 729/70 of the Council to which I have already referred in my general analyses (Part 2 of this Opinion). The Commission argues that it follows from the Court's case-law that this provision expressly requires the Member States to recover undue or irregularly paid amounts without leaving the national agencies any discretion as to the expediency of demanding their repayment. In this regard the Commission refers again to the Court's judgment in Joined Cases 192 and 193/81, BayWa, cited above. The fact that in this case it is a matter of ensuring the performance of a contract is considered irrelevant by the Commission for the purposes of Article 8 of Regulation No 729/70. That provision covers any economic advantage granted under Community legislation and financed by the common agricultural policy. Since neither Article 8 (1) of Regulation No 729/70 nor Regulation No 232/75 contains specific rules concerning claims arising from a contract as in this case, national provisions, for example on limitation, compensation and unjust enrichment, will fill any gap. However, according to the Court's case-law, national law will have to be applied in the same way as in similar, purely national cases and the rules of procedure must not bar the exercise of rights under Community law. In view of those considerations the Commission suggests that the answer to be given to the sixth question (and therefore by implication to the seventh question) should be that: ‘The intervention agency which sold the butter is obliged to bring an action against the tenderer for payment of the market price of the butter (without having any discretion in the matter) but it must be recovered in accordance with the provisions of national law.’ The decision whether to bring such an action or an action to recover an amount corresponding to the security is also governed by the applicable national law; however, Community law should be observed as closely as possible. As regards the ninth question, the Commission believes that, since Article 8 (1) of Regulation No 729/70 is silent on this point, the answer must be based on Regulation No 232/75. Examination of that regulation leaves no doubt that the burden of proving that the butter has been used in accordance with the regulation rests on the tenderer. The Commission also believes that if the contents of the documents on the basis of which the security was released proved to be wrong after the security was released, the intervention agency concerned must prove that they are wrong. However, the tenderer then has to produce positive proof that the products have been used in accordance with the conditions laid down in the regulation. This has to be proved by means of information showing to whom the products concerned were sold and that the final buyer used them in accordance with the regulation. The tenderer must assume the risk that a later buyer against whom he acquires a contractual claim under the regulation might fail to provide the necessary proof. The Commission therefore proposes that the ninth question should be answered as follows: ‘The competent authorities of the Member States must show that the security was released on the basis of wrong information. The tenderer must prove, even after the processing security has been released, that the butter was used to manufacture the products referred to in Article 6 (1) (c) of the regulation.’

(e) The Government of the Federal Republic of Germany suggests that the sixth question should be answered in the affirmative. It argues that the use prescribed in the regulation is the quid pro quo for the reduced price of the butter. If the obligation to process the butter is not fulfilled, the tenderer must bear the legal consequences arising from nonperformance and eventually pay a total amount equivalent at least to the market price of the butter purchased. If the difference between the market price and the reduced price cannot be recovered by forfeiting the security, it must be recovered from the tenderer. As regards the ninth question, the German Government takes the view that, since Community law is silent on this point, the burden of proof is determined by national law within the limits laid down by the Court in its judgment of 21 September 1983 in Joined Cases 205 to 215/82, Deutsche Milchkontor v Germany [1983] ECR 2633.

(f) On examining the various points of view I would state at the outset that the Court's answer will have to take account, in my view, of the fact that the Danish intervention agency (and probably in an implicit way, the Commission) wrongly starts from the assumption that the regulation in question requires the tenderer to impose the obligation to keep stock records on later purchases as well. I also think that the independent character of the tenderer's contractual obligations suggests that the burden of proof rules laid down in Article 18 (2) for the purposes of the release of the processing security cannot automatically be applied if those contractual obligations are not fulfilled. However, I consider the burden of proof rules laid down in Article 18 (2) relevant in so far as it seems reasonable, as was suggested in the first part of the Commission's proposed answer, to impose on the competent authorities of the Member States the burden of proving that the documents furnished pursuant to Article 18 (2) are incorrect. On the other hand, the extent to which that burden of proof also includes the burden of proving the volume of the quantities of butter improperly used is a question which, as is submitted by the German Government, will have to be answered on the basis of the applicable national law within the limits laid down by the Court in its judgment in Deutsche Milchkontor. As I pointed out in my introductory observations (Part 1 of this Opinion), the most important of those limits seems to me to be the criterion laid down in paragraph 19 of that decision, namely that the rules and procedures regarding recoverylaid down by national law must not have the effect of making it virtually impossible to implement Community regulations. The national court will of course also have to take account of the contractual basis of this action, which is different from the basis of the recovery action brought in the Milchkontor cases. Finally, I agree with the German Government that the repayment of a wrongly received advantage must be regarded as a normal consequence of a failure to fulfil contractual obligations of the kind involved in this case. There is no reasonable ground why the tenderer should be allowed to keep the advantage of a reduced purchase price if the irregularity of that advantage did not come to light until after the security was released. Those considerations are also relevant to the reply to be given to the national court's sixth and seventh questions. In conclusion, I therefore suggest that the Court should answer Questions 6, 7 and 9 of the national court as set out below. The numbering follows on from the answers I suggested to Questions 1 to 5 and Question 8. ‘(4) Since, having regard to the preceding answers, the release of the processing security on the strength of the document provided for in Article 18 (2) of Regulation (EEC) No 232/75, whose contents subsequently prove to be incorrect, does not have the effect of releasing the tenderer from his contractual obligations arising under Article 6 (1) (c) and (d) of that regulation, a Member State must in that case require the tenderer to pay in respect of the incorrectly processed quantities of butter the difference between the purchase price agreed in his contract and paid by him and the market price or intervention price prevailing on the day on which he lodged his tender. (5) The recovery of that amount and the allocation of the burden of proof as regards the quantities of butter which the national authorities have proved were not processed correctly are governed by the rules of national law applicable to comparable claims within the limits imposed by the relevant Community law. In particular, the rules and procedures for recovery and the allocation of the burden of proof must not make it virtually impossible to implement the Community regulations.’

3.5. Conclusion

To sum up, then, I suggest that the Court should give the following answers to the questions submitted to it in this case:

‘(1) Regulation (EEC) No 232/75 must be interpreted as meaning that the tenderer remains liable for the use of the butter which he acquired at a reduced price in accordance with Article 6 (1) (c) of the regulation if the processing security was released on the basis of a control copy which was issued in accordance with Article 18 (2) of that regulation but whose contents later prove to be incorrect.

(2) Negligence or delay in carrying out the controls provided for in Article 15 of the regulation may discharge the tenderer from that liability by virtue of the principle of proportionality only in so far as the inaccuracy of the contents of the control copy in question was established so late that he can no longer exercise his right of recourse against subsequent buyers in the marketing chain owing to rules of limitation.

(3) The tenderer may not rely on his good faith or force majeure due to a failure to perform the control obligations laid down in Article 15 of the regulation since his obligations to ensure that the butter is properly used are independent obligations. Owing to that independent nature of his contractual obligations, the release of the processing security cannot prevent an action from being brought against him on grounds of legal certainty.‘

(4) Since, having regard to the preceding answers, the release of the processing security on the strength of the document provided for in Article 18 (2) of Regulation (EEC) No 232/75, whose contents subsequently prove to be incorrect, does not have the effect of releasing the tenderer from his contractual obligations arising under Article 6 (1) (c) and (d) of that regulation, a Member State must in that case require the tenderer to pay in respect of the incorrectly processed quantities of butter the difference between the purchase price agreed in his contract and paid by him and the market price or intervention price prevailing on the day on which he lodged his tender.

(5) The recovery of that amount and the allocation of the burden of proof as regards the quantities of butter which the national authorities have proved were not processed correctly are governed by the rules of national law applicable to comparable claims within the limits imposed by the relevant Community law. In particular, the rules and procedures for recovery and the allocation of the burden of proof must not make it virtually impossible to implement the Community regulations.’

4. Case 125/83 (Office belge de l'economie et de l'agriculture v Nicolas Corman & fils SA)

4.1. The facts and the questions submitted

(a) As I pointed out in my introductory remarks in Part 1 of this opinion, the tenderer's liability for alleged maladministration on the part of the authorities of the various Member States also plays a certain part in the second Corman case. However, the facts on this point are entirely different from those in the first Corman case which I have just considered. Moreover, the interpretation of other facts and provisions is probably of still greater practical importance for the solution of this dispute than the extent of the tenderer's strict liability under Regulation No 232/75.

(b) For an analysis of the provisions of Regulation (EEC) No 232/75 relevant to this case I refer to Part 2 of this opinion. In that part of my opinion I also analysed the provisions which are particularly relevant to this case.

(c) Most of the facts of the present case I have taken from the Report for the Hearing. However, I have incorporated a number of other facts and comments which in view of the arguments advanced at the hearing also appear relevant to the Court's answer to the questions raised.

(d) In August 1975 the Société interprofessionnelle du lait et de ses dérivés Interlait (which I shall call ‘Interlait’) informed Corman that it had been allocated 75 tonnes of butter stocked at Ploermel (France) and that the butter had to be taken over by 19 September 1975 at the latest.

(e) After Corman had lodged a security with the Office belge de l'economie et de l'agriculture on 15 September 1975, it concluded a contract with Interlait under the terms of which the butter had to be taken over before 19 September 1975. According to the Commission, Interlait's invoice, dated 29 September 1975, bears under the heading ‘taking over’ the words: ‘transferred to your name on 19 September 1975’. However, those words are illegible on the copy of the invoice submitted to the Court. The removal order issued by Interlait on 29 September 1975 in accordance with Article 13 (1) of Regulation No 232/75 bears the words ‘transférer au nom du bénéficiaire le 19 septembre 1975’ which rather appear to refer to a future action which would correspond more closely with my previous analysis of Article 13(1) and also with the term ‘removal order’ itself.

(f) The T5 document, issued on 11 October 1975 by the French customs authorities, gives 10 October 1975 as the ‘date of departure’ of the butter. The Commission observes on this point that, although the ‘date of taking over’ ought to have been marked on the T5 document pursuant to Annex III, Point I (bb) to Regulation No 232/75, the document in question stated the ‘date of departure’.

(g) The consignment of butter was imported into Belgium where, as appears from the attestation of the Office national du lait of 22 October 1975, carotene tracers were incorporated. It appears from that attestation that the conditions set out in Article 6 (1) (a) and (b) were fulfilled.

(h) The Office belge de l'economie et de l'agriculture in turn issued two documents referring to a sale by tender and a taking over on 12 September 1975, a taking of delivery of the butter to be processed between 1 October and 20 November 1975 and the manufacture of the processed butter between 3 October and 20 November 1975.

(i) The butter was then exported to the United Kingdom pursuant to a sale contract between Corman and Ernest George Ltd of 22 October 1975 which stipulated that the latest date for use was 23 February 1976. Ernest George Ltd resold the butter to the English group, J. Lyons, which in turn sold it to its subsidiary, Lyons Maid.

(j) On account of the exportation of the butter to the United Kingdom the Belgian customs authorities issued new T5 documents on 22 October 1975 which, according to the Commission, indicate a taking-over of the butter on 15 September 1975. The relevant copy submitted to the Court is again illegible on this point.

(k) According to a letter from British customs dated 23 November 1978, only a part of the butter was used before 12 March 1976 and all the rest was used by 1 April 1976.

(l) On 8 April 1976 British customs noted on the Belgian T5 customs documents that the goods had been used in accordance with the regulation.

(m) On the strength of those documents the Office belge de l'economie et de l'agriculture partially released the security on 31 May 1976.

(n) Following an inspection carried out at the Office belge de l'economie et de l'agriculture by officers of the European Agricultural Guidance and Guarantee Fund the Belgian agency, by letter dated 13 October 1977, claimed the security on the ground that the butter had not been used for the prescribed purpose until three weeks after the expiry of the prescribed period.

(o) Corman then contacted its British contracting partners which assured it that the delay in using the butter, caused by the production plan, had been brought to the attention of the British customs and that an extension of the period within which the butter had to be used had been granted orally. This information was passed on to the Office belge de l'economie et de l'agriculture.

(p) By letter dated 26 December 1977 Corman requested the Office belge de l'economie et de l'agriculture to apply Article 19 (2) of Regulation No 232/75 which allows the security to be released if the period has been exceeded by no more than 30 days for reasons other than serious negligence on the trader's part.

(q) On 18 June 1979, the Office belge de l'economie et de l'agriculture, which refused that request by letter of 10 January 1978, finally sued Corman in the Tribunal de commerce, Brussels, for payment of an amount of BFR 1040350 together with interest.

(r) The arguments advanced before the Tribunal de commerce relate to: (a) the date of taking-over; (b) the existence of force majeure, and (c) the validity of the second subparagraph of Article 19 (2) of Regulation No 232/75 considered in the light of the principle of proportionality inasmuch as its application is conditional on the lodging within 30 days of the request for an extension of the period permitted for processing.

(s) By judgment of 24 June 1983, which was registered at the Court on 6 July 1983, the Tribunal de commerce, Brussels, stayed the proceedings and requested the Court to give a preliminary ruling on the following questions: ‘(1) How is the phrase “day on which the butter was taken over” in Article 6 (1) (d) of Regulation No 232/75 to be interpreted? Does it refer to the actual date on which the goods are taken over, as indicated by the expediting customs authorities on the T5 import form, in accordance with the provisions of Annex III (I) (bb)? (2) Is it possible to regard as force majeure within the meaning of Articles 18 and 19 (1) of Regulation No 232/75 a case in which permission to extend the time-limits is given to the final processor by the customs officer responsible for supervising the final processing of the butter and for entering the final date of use on the T5 export form? In answering this question regard should be had to the particular circumstances of the present case, namely: (i) the successful tenderer had required his contracting partners to comply with a date prior to the latest permissible date for processing under the regulation, in order to ensure that final processing was carried out within the prescribed period; (ii) the final processor of the butter would have amended its production programme if the responsible customs officer in charge had not stated to him that he was empowered to authorize an extension of time-limits orally. (3) Is the second subparagraph of Article 19 (2) of Regulation No 232/75 valid in the light of the principle of proportionality inasmuch as its application is conditional on the lodging within 30 days of the request for an extension of the period permitted for processing?’

4.2. Examination of the first question (the phrase ‘day on which the butter was taken over’ in Article 6 (1) (d) of Regulation No 232/75)

(a) In Corman's view the day on which the butter was actually taken over must be taken into account for the following reasons : (i) On that day the goods are actually removed from the intervention stocks and enter the successful tenderer's possession; (ii) In accordance with Annex III to Regulation No 232/75 the expediting customs authorities must enter the date of taking-over in the T5 import document. This can only be the date of actual taking-over, since the expediting customs authorities do not know the date on which the trader was informed that he was a successful tenderer (see Article 17 (1) of Regulation No 232/75). (iii) In view of the spirit of the regulation and in order to give it proper effect only the date of actual taking-over can be taken into account since the continuous customs control referred to in Regulation No 232/75 does not start until after the butter's ‘removal from store’ (Article 15) and since the removal is shown in the T5 import document in which the expediting customs authorities enter the date on which the successful tenderer actually took over the butter; (iv) Precisely because the definition of the ‘date of taking-over’ — which is essential to the application of the regulation — created certain problems, the Commission replaced it in Regulation No 262/79, which replaced Regulation No 232/75, with an objective criterion, namely the closing date for the submission of tenders. Therefore, in Corman's view, the answer to the first question must be that the phrase ‘the day on which the butter was taken over’ in Article 6 (1) (d) of Regulation No 232/75 must be interpreted as meaning the day on which the goods are actually taken over, as indicated by the expediting customs authorities on the T5 import form, in accordance with the provisions of Annex III (I) (bb).

(b) In the Commission's view, the ‘day on which the butter was taken over’ was 19 September 1975 which is the date entered in the removal document. If the date of departure (10 October 1975) was the date on which the butter was taken over, as argued by Corman, the sale would be cancelled in accordance with Article 13 (2) of Regulation No 232/75 on the ground that the successful tenderer had not taken over the butter within the period prescribed and consequently the French customs authorities ought not to have issued the relevant T5 documents. In any case, the fact that one of the documents gives 10 October 1975 as the date of departure does not, in the Commission's view, deprive the other documents, some of which were signed by Corman and which give the dates of 12, 15 or 19 September as the date on which the butter was taken over, of their evidential value. The Commission therefore suggests that the first question should be answered as follows : ‘The entry of the “day on which the butter was taken over” in the control document provided for in Annex III (I) (bb) of Regulation No 232/75 of the Commission of 30 January 1975 is not incontrovertible proof of the date on which the butter sold by tender as provided for in that regulation was actually taken over by the successful tenderer. ’

(c) In addition to the facts summarized in the Report for the Hearing and set out above, the defendant in the main proceedings also pointed out at the hearing without being contradicted that the butter was allocated to Corman by the French intervention agency on 20 August 1975 and that it was told that it had to be taken over before 19 September. I would point out that this time-limit is in accordance with Article 13 (2) of the regulation which also provides that ‘except in cases of force majeure, if the successful tenderer has not taken over the butter within the period prescribed the sale shall be cancelled in respect of the remaining quantities’. On the other hand, in circumstances such as those of this case, it is difficult to reconcile that time-limit with Article 13 (1) which provides that after the payment provided for in Article 11 (2) has been made and the processing security required under Article 2 has been given, the intervention agency is to issue a removal order indicating inter alia:‘(c) the final date for taking over the butter’. Since, according to the copy submitted to the Court, the removal order was not issued until 29 September 1975, it is hardly logical to consider on the basis of that document and its significance under Article 13 (1) thqt the butter had already been taken over before that date. However, this does not necessarily mean that the actual day on which the butter was taken over entered by the expediting customs authorities on the T5 import document in accordance with Annex III (I) (bb) must in fact be regarded, as the ‘day on which the butter was taken over’, as the defendant suggests. Nor does the defendant's reference to the phrase ‘from the time of its removal’ in Article 15 of the regulation or to the flexible practice followed by the intervention agencies in the application of the time-limit laid down in Article 13 (2) constitute in itself a sufficiently convincing argument for accepting its suggested answer to the first question. At the hearing the Commission, answering questions put by the Court, clarified its position by stating that in its view the butter is ‘taken over’ for the purposes of Article 13 when the property, and therefore the risk and power of control, are transferred to the successful tenderer, even he still leaves the butter on that date in the cold-storage warehouse in which it is stored. I find it impossible to advocate the adoption of the Commission's view as I have stated it. As the Court is aware, legal theories concerning the date on which property and risk pass upon the sale of movable property are not the same in all the Member States. Reference to such a criterion of civil law would therefore make a uniform application of Article 6 (1) (d) and of Article 13 impossible in all the Member States. When an individual tenderer buys butter in a number of Member States, as in the first Corman case, then in some circumstances different criteria for determining the dates on which the butter was taken over will have to be applied, even in the case of that individual tenderer. Furthermore, if such a criterion of civil law is accepted, the intervention agencies will be confronted in cross-border transactions with at times complex problems of private international law which could not have been intended by the Community legislature. On the other hand, of course, the legislature and the courts generally apply civil law concepts with circumspection when determining and interpreting actions governed by economic legislation. If they did not do so, the persons to whom such legislation applied could easily use principles of civil law to thwart its aims. Therefore, in the final analysis, the defendant's suggestion that the phrase ‘day on which the butter was taken over’ in Article 6 (1) (d) of Regulation No 232/75 should be interpreted as meaning the date on which the butter was actually taken over is more in accordance with the usual methods of interpretation as regards the factual points of reference used in economic law. Furthermore, that interpretation is in principle easy to use by the intervention agencies and may be applied uniformly in all the Member States. Finally, such an interpretation fits in with the term ‘removal order’ in Article 13 (1) and with the possibility of the butter's being taken over ‘in stages’ for which Article 13 (2) expressly provides. If the answer suggested by the defendant is adopted in principle, it is still necessary, however, to resolve the conflicts which, as the facts of the present case show, may be produced by the application of Article 13 (1) on the one hand and of Article 13 (2) on the other. The Court will recall that these possible contradictions, which arise from the text of those provisions themselves, were the subject of keen argument at the hearing. They arise more particularly from the fact that, if a logical interpretation is placed on Article 13 (1), the date on which the butter is taken over may not in principle precede the date on which the removal order is issued, whereas according to Article 13 (2) the date on which the butter is taken over may not be more than 30 days after receipt of the notification (of the result of participation in the invitation to tender) provided for in Article 11 (1). That provision certainly explains why in all the forms issued before the last-mentioned date different dates prior to the expiry of the period laid down in Article 13 (2) are entered as the intended date of taking-over. However, those entries may not be regarded as proof that the butter was in fact taken over on one of those intended dates. Therefore, the removal order provided for in Article 13 (1) cannot logically indicate a taking-over date preceding the date on which the removal order itself is issued, unless it is in fact proved that the butter was actually taken over on the earlier date. Finally, so that those possible contradictions contained in Article 13 of the regulation and arising in this case are also taken into account, I suggest that the Court should answer the first question as follows: ‘The phrase “day on which the butter was taken over” in Article 6 (1) (d) of Regulation No 232/75 must be understood as meaning the date on which the butter is actually taken over which, in a cross-border transaction, may for example be shown on the T5 import document which is produced. However, that date may not be subsequent to the expiry of the period referred to in Article 13 (2) of the regulation unless the removal order provided for in Article 13 (1) was not issued until after the expiry of that period either. In that case, the period referred to in Article 13 (2) must be regarded as having been extended by a number of days which should depend on the circumstances of the particular case and provide reasonable time for fulfilling the obligation to take over the butter as soon as possible after receipt of the removal order.’

4.3. Examination of the second question (the concept of force majeure within the meaning of Articles 18 and 19 (1) of Regulation No 232/75)

(a) Corman argues that, according to the decisions of the Court, the concept of force majeure in Community agricultural law is not confined to absolute impossibility and so must be interpreted as meaning abnormal circumstances which occurred through no fault of the trader and despite the fact that he took all the precautions which a careful and prudent trader may be expected to take. Corman maintains that it took all the precautions required of a careful and prudent trader. In particular, it included in its contracts the obligation to comply with Regulation No 232/75 and in its invoices it gave the date of 23 February 1976 as the latest date for processing in order to be sure that the butter would be processed within the prescribed time. It kept track of the goods by maintaining daily telephone contact with its English buyer, Ernest George Ltd, which did not report any foreseeable delay since it clearly was unaware of the extension which an English customs official had granted to Lyons Maid. In Corman's view, a trader is in fact legitimately entitled to have confidence in the customs authorities, especially since the entire system is based on their intervention. Therefore, if the competent authorities give a wrong interpretation of the applicable regulations, this constitutes a case of force majeure for a prudent trader. By way of example, Corman points out that in Belgian law a mistake of law may have the characteristics of force majeure and constitute an extraneous ground of mitigation. This argument is made more forceful by the fact that it has been shown that, if the wrong interpretation had not been made, the final user would have changed his planned programme in order to use the butter within the period laid down. Corman therefore submits that the second question should be answered as follows: ‘Where the competent authority places a wrong interpretation on a provision and (i) the trader acted like a careful and prudent businessman and (ii) the wrong interpretation had decisive effect since the final processor of the butter would have changed his production plan if that information had not been provided, this constitutes force majeure within the meaning of Articles 18 and 19 (1) of Regulation No 232/75.’

(b) The Commissioyi refers to the Court's decision in Case 42/79, Milch-, Fett- und Eierkontor v Bundesanstalt für landwirtschaftliche Marktordnung [1979] ECR 3703, p. 3716 in which it held that the concept of force majeure‘must be understood as referring to absolute impossibility caused by abnormal circumstances unrelated to the purchaser of the butter from storage, the consequences of which could not have been avoided except at the cost of excessive sacrifices, despite the exercise of all due care.’ Corman invokes two sets of circumstances. The first concerns the nature of its relations with the final processor which it had instructed as the successful tenderer to comply with Regulation No 232/75 and in particular to observe the date by which the butter had to be processed. In its judgment in Milch-, Fett- und Eierkontor the Court has held that where the butter resold by the original buyer to a third party is diverted from its proper purpose as a result of punishable conduct on the part of the third party, this does not constitute a case oí force majeure. In the Commission's view, that decision is in line with the judgment in Joined Cases 99 and 100/76, De Beste Boter and Hoche v Bundesanstalt für landwirtschaftliche Marktordnung, [1977] ECR 861 in which the Court pointed out that the obligations for which the security was provided rested on the first buyer of the goods and were not transferable to a third party. The action of a trader who is not the initial buyer and who participated in the processing of the butter cannot therefore constitute a case of force majeure which may discharge the initial buyer from his obligations towards the intervention agency. Secondly, Corman's contention that the final processor of the butter (Lyons Maid) would have changed its production plan if it had not been told by the responsible British customs officer that he was empowered to authorize an extension of time-limits orally may not, in the Commission's view, be regarded as a case of force majeure either. Indeed, by virtue of the principle that the successful tenderer is solely liable, such a circumstance must be treated as being directly related to the initial buyer. However, that does not change the fact that a prudent trader must know that, by virtue of Article 19 (2), only the Belgian intervention agency could grant the request for an extension of the time-limit. The Commission therefore submits that the second question should be answered as follows : ‘Where the buyer of stored butter covered by Regulation No 23