4.

It is of course possible to take the view that in the first reference for a preliminary ruling the Court gave a general answer in view of the general question contained in the order making the reference to the Court and that it did not tacitly deal with the specific problem of calf fatteners but rather disregarded it. This view does not seem to me very reasonable having regard to the constant endeavour of the Court to assist the national courts to the full in coming to their decisions. If nevertheless this view is taken then there is basically no objection to there being a second order for a preliminary ruling on the facts in the main action in which the question to be investigated is more restricted and to the raising of a specific question in the present case regarding the treatment of industrial calf fatteners with regard to revaluation compensation. Nevertheless if this view is taken another problem immediately arises. The question now put to us concludes with the clause: ‘if agricultural calf fatteners use the same industrially produced feeding-stuffs for fattening calves as industrial calf fatteners’. In this respect it is stated in the grounds of the order making the reference to the Court: ‘In fact, however, for fattening calves “agricultural” calf fatteners within the meaning of German tax law use the same feeding-stuffs as “industrial” calf fatteners within the meaning of German tax law, that is to say, solely industrially-produced milk-based substitute feedingstuffs such as that which the plaintiff itself produces and also uses for fattening its calves. Both agricultural and industrial calf fatteners must use exclusively manufactured milk-based substitute feedingstuffs for fattening calves in order to obtain “white” meat which has a special market value and which alone is sold as “veal”. In theory certain agricultural calf fatteners can (also) fatten their calves with feeding-stuffs from their own agricultural production. In that case, however, they produce red meat which is sold as beef.’ As is known the Commission has vigorously challenged these findings both in its pleading and at the hearing. It is convinced that there is evidence that agricultural calf fatteners to a considerable extent use feeding-stuffs other than industrial feeding-stuffs, namely their own products which presuppose the working of the land. In support the Commission refers to facts obtained from the rules existing since 1969 on aids for the use of milk in animal feeds and on statistics on the use of full-cream milk and skimmed milk as animal feeds in the Federal Republic of Germany which were put forward at the hearing. It is clear from this that large quantities of full-cream and skimmed milk are fed to animals and that a very large part, namely more than half, goes to calves as is apparent from a breakdown of figures made since 1978. From this it may be assumed that a third, previously probably even more, of feed for calves consists of milk and that the findings in the preliminary ruling in Case 139/77 apply quite clearly to calf fatteners, if to a somewhat lesser extent. Against this the plaintiff in the main action accuses the Commission of wrongly confusing the sectors of calf breeding and calf fattening for which different methods of feeding apply and the products of which do not compete with one another. It is clear, and for this reference may be made to the German animal feeds regulation of 16 June 1976 and the relevant literature, that owing to its low fat content skimmed milk does not come into question for calf fattening or does so only if enriched with other feeding-stuffs which have to be purchased. Moreover this issue is irrelevant for the preliminary ruling since as the relevant case-law of the Court shows the Court is bound by the facts as established by the national court. In answering the question put the Court must therefore in any event proceed on the basis of the facts which the Finanzgericht has set out in its order for reference to the Court. (a) In view of this controversy the first question is whether the Court is in fact unconditionally bound by the facts as found by the court making the reference to it and whether it has to answer questions based on these even if there are well-founded doubts whether the questions relate to the true facts and permit a proper judgment in the main action. I have considerable misgivings concerning this. In my view the Commission rightly stresses that the argument put forward by the plaintiff may have some merit where the facts are set out by the parties as may happen in many civil actions. It can certainly not be valid with regard to the investigation of the validity of Community measures for which there may have been some cause in the first reference for a preliminary ruling and on this I refer to my opinion at the time. If questions of fact, such as the existence of a serious economic disturbance as a precondition for the adoption of a regulation, are significant in judging basic Community regulations, the Court is entitled to adopt a critical stance, nay perhaps even bound to investigate the questions of fact at issue. Further the same must however be assumed if, as in the present case, it is a question of the interpretation of Community law for the purpose of assessing the validity of a national provision. If this depends on a particular economic situation as a whole and if there are serious doubts regarding the assessment made by the national court, then it seems to me hardly sustainable that the Court should simply overlook it and give an interpretation of Community law in respect of facts which are probably not true. In this respect the way in which the Court proceeded in Case 51 /74 P. J. van der Hulst's Zonen v Produktschap voor Siergewassen, judgment of 23 January 1975, [1975] ECR 79 is of some interest. In that reference for a preliminary ruling the question of the interpretation of Article 93 (3) of the EEC Treaty was put. Since however it became apparent from documents produced in the proceedings that the Commission in truth had initiated an inquiry under Article 93 (1), the Court in reliance on this did not answer the question as put. On the other hand Case 104/77 Firma Wolfgang Oeblschläger v Hauptzollamt Emmerich, judgment of 16 March 1978 [1978] ECR 791, cited by the plaintiff in support of its view, was special in so far as it was concerned only with the description of goods for the purpose of classification under the Common Customs Tariff. In Case 131/77 Firma Milac, Groß- und Außenhandel Arnold Noll v Hauptzollamt Saarbrücken, judgment of 3 May 1978 [1978] ECR 1041, also cited by the plaintiff, it was expressly stressed in connexion with the consideration of the validity of a Community regulation that the observations of the national court on the facts were confirmed by the documents produced by the Commission and could therefore be treated as proved. (b) If this critical view of the question whether the Court is bound by the facts as found by the national court is accepted, then it is further necessary to consider what course should be adopted in the present case. Here, as is apparent from the plaintiff's pleading, the findings of the Finanzgericht, which are contested by the Commission, are obviously based solely on the statements of the plaintiff and the fact that the defendant Finanzamt which has no expertise for this special question, has not challenged it. Such a challenge came only with the pleading sent to the Court with the observation that the use of milk-based substitute feeding-stuffs was by no means the only way of obtaining white veal. (aa) Without settling the dispute or allowing it to be settled, the Court could, in principle, give an answer to any possible set of facts, just as happened in Case 48/75 Jean Noël Royer, judgment of 8 April 1976, [1976] ECR 497, in which the national court had not established the facts before making the reference to this Court. It must however be borne in mind that the case cited was concerned with provisions of the Treaty on freedom of movement, right of establishment and provision of services and the implementating provisions relating thereto, which, as was expressly mentioned in the judgment, rest on the same principles and that there was much general interest in clarifying them for the purpose of future similar situations. The present case on the other hand concerns a single measure taken quite some time ago. Moreover it may well be asked in view of the increasing number of references for a preliminary ruling, especially if a question of the validity of national provisions is at issue, whether it is reasonable for the Court to give possibly purely academic rulings, which may well be quite irrelevant for the resolution of the problems in the main action. This seems to me very dubious. (bb) Further the Court could correct the facts in the reference for a preliminary ruling, as happened to a certain extent in the said Case 51/74. I think however this can be contemplated only if it is clearly possible from the documents, that is to say, without additional, time-consuming evidence, for which there is basically no place in proceedings for interpretation. This can hardly be said to be the position here, in contrast to the case cited. I have the impression that the submissions of the Commission have not been completely shattered by the submissions of the plaintiff to the contrary. From the figures produced for the feeding of calves on milk, that is to say, on the farm's own product, it is indeed hardly conceivable that these relate solely to the breeding of calves and not to their fattening. In order however to be certain in this respect it would be necessary to have more thorough investigations, for which, as stated, there is no place in proceedings of the present kind. (cc) If for the reasons which I gave at the outset it should not be thought unnecessary to answer the question put, then, because the Commission has succeeded in casting a doubt on the statement of facts by the Finanzgericht, it remains only to observe that it has not been sufficiently clearly shown that the problem raised in the second reference for a preliminary ruling is necessary for judgment to be given. Following the practice of the Bundesverfassungsgericht [Federal Constitutional Court] regarding the necessity of a prior thorough clarification of the facts, the reference should accordingly be returned to the Finanzgericht with the intimation that the present question should be put only if after hearing expert evidence it is established for certain that both industrial and agricultural calf fatteners use only milk-based substitute feedingstuffs which they purchase and that agricultural livestock keepers do not use their own products or do so only to a negligible extent.