Judgment of the Court of 17 June 1987. - Coöperatieve Melkproducentenbedrijven Noord-Nederland BA ("Frico") and others v Voedselvoorzienings In- en Verkoopbureau. - References for a preliminary ruling: College van Beroep voor het Bedrijfsleven - Netherlands. - Validity of a system setting different rates in respect of aid for the private storage of butter. - Joined cases 424/85 and 425/85.



European Court reports 1987 Page 02755



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

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1 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - MILK AND MILK PRODUCTS - AID FOR THE PRIVATE STORAGE OF BUTTER - REIMBURSEMENT OF FINANCING COSTS - TAKING INTO ACCOUNT OF DIFFERENT INTEREST RATES ACCORDING TO THE MEMBER STATE WHERE THE BUTTER IS STORED - LEGALITY

( REGULATION NO 985/68 OF THE COMMISSION, ART . 10 ( 1 ); REGULATION NO 685/69 OF THE COMMISSION, ART . 24 ( 3 ) ( C ), AS AMENDED BY COMMISSION REGULATION NO 1746/84 )

2 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - DISCRIMINATION BETWEEN PRODUCERS OR CONSUMERS - PROHIBITION - SCOPE

( EEC TREATY, ART . 40 ( 3 ), SECOND SUBPARAGRAPH )

3 . COMMUNITY LAW - PRINCIPLES - PROTECTION OF LEGITIMATE EXPECTATION - LIMITS - AMENDMENTS TO THE RULES CONCERNING A COMMON ORGANIZATION OF THE MARKETS - POWER OF APPRAISAL OF THE COMMUNITY INSTITUTIONS

Summary

1 . ARTICLE 10 ( 1 ) OF REGULATION NO 985/68 LAYING DOWN GENERAL RULES FOR INTERVENTION ON THE BUTTER MARKET, INTERPRETED IN THE LIGHT OF THE PREAMBLE TO THE REGULATION, DOES NOT PREVENT THE INTEREST RATE TAKEN INTO ACCOUNT AS PART OF FINANCING COSTS IN THE CALCULATION OF THE AMOUNT OF AID FOR THE PRIVATE STORAGE OF BUTTER FROM VARYING ACCORDING TO THE MEMBER STATE WHERE THE BUTTER IS STORED, AS PROVIDED FOR IN REGULATION NO 1746/84, BECAUSE ALTHOUGH THE UNIFORMITY OF THE SYSTEM OF PRIVATE STORAGE OF BUTTER IN THE COMMUNITY IMPLIES A UNIFORM METHOD OF CALCULATING THE AID WITH REFERENCE TO STORAGE COSTS AND MARKET DEVELOPMENTS, IT DOES NOT IMPLY THAT THE AMOUNT OF AID ITSELF SHOULD BE THE SAME THROUGHOUT THE COMMUNITY .

THE DIFFERENTIATION OF THE AMOUNT OF AID FOR THE PRIVATE STORAGE OF BUTTER PERMITS THE OBJECTIVE OF ENABLING STOCKS TO BE HELD ON THE MOST EFFECTIVE BASIS POSSIBLE TO BE ACHIEVED, AND, BECAUSE IT DOES NOT CALL INTO QUESTION THE SINGLE INTERVENTION PRICE AND DOES NOT AFFECT THE AMOUNT OF THE SINGLE TARGET PRICE, DOES NOT ADVERSELY AFFECT THE SINGLE MARKET FOR BUTTER .

2 . AS A SPECIFIC ENUNCIATION OF THE GENERAL PRINCIPLE OF EQUALITY, THE PROHIBITION OF DISCRIMINATION EXPRESSED IN THE SECOND SUBPARAGRAPH OF ARTICLE 40 ( 3 ) OF THE EEC TREATY DOES NOT PREVENT LIKE SITUATIONS FROM BEING TREATED DIFFERENTLY WHERE SUCH TREATMENT IS OBJECTIVELY JUSTIFIED .

3 . TRADERS ARE UNABLE TO CLAIM THAT THEY HAVE A LEGITIMATE EXPECTATION THAT AN EXISTING SITUATION WHICH IS CAPABLE OF BEING ALTERED BY THE INSTITUTIONS OF THE COMMUNITY IN THE EXERCISE OF THEIR POWER OF APPRAISAL WILL BE MAINTAINED . THIS IS ESPECIALLY TRUE OF AN AREA SUCH AS THE COMMON ORGANIZATION OF THE MARKETS WHOSE PURPOSE INVOLVES CONSTANT ADJUSTMENTS TO CHANGES IN THE ECONOMIC SITUATION .

Parties

IN JOINED CASES 424 AND 425/85

REFERENCES TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN ( ADMINISTRATIVE COURT OF LAST INSTANCE IN MATTERS OF TRADE AND INDUSTRY ) FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

COOEPERATIEVE MELKPRODUCENTENBEDRIJVEN NOORD-NEDERLAND BA (" FRICO ") AND AN BORD BAINNE LIMITED AND J . WIJFFELS BV

AND

VOEDSELVOORZIENINGS IN - EN VERKOOPBUREAU,

ON THE VALIDITY OF COMMISSION REGULATION ( EEC ) NO 1746/84 OF 21 JUNE 1984 AMENDING REGULATION ( EEC ) NO 685/69 ON DETAILED RULES OF APPLICATION FOR INTERVENTION ON THE MARKET IN BUTTER AND CREAM ( OFFICIAL JOURNAL 1984, L 164, P . 32 ) AND ESTABLISHING A SYSTEM OF DIFFERENT INTEREST RATES IN CERTAIN MEMBER STATES IN CONNECTION WITH AID FOR THE PRIVATE STORAGE OF BUTTER,

THE COURT

COMPOSED OF : LORD MACKENZIE STUART, PRESIDENT, Y . GALMOT, T . F . O' HIGGINS AND F . SCHOCKWEILER, PRESIDENTS OF CHAMBERS, G . BOSCO, O . DUE, U . EVERLING, K . BAHLMANN, R . JOLIET, J . C . MOITINHO DE ALMEIDA AND G . C . RODRIGUEZ IGLESIAS, JUDGES,

ADVOCATE GENERAL : J . MISCHO

REGISTRAR : P . HEIM

AFTER CONSIDERING THE OBSERVATIONS SUBMITTED ON BEHALF OF

NOORD-NEDERLAND BA (" FRICO "), AN BORD BAINNE LIMITED AND J . WIJFFELS BV, BY H . J . BRONKHORST OF THE HAGUE BAR,

THE COMMISSION OF THE EUROPEAN COMMUNITIES, BY R . C . FISCHER, LEGAL ADVISER, ACTING AS AGENT,

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 25 FEBRUARY 1987,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 26 MARCH 1987,

GIVES THE FOLLOWING

JUDGMENT

Grounds

1 BY TWO ORDERS DATED 13 DECEMBER 1985, WHICH WERE RECEIVED AT THE COURT ON 18 DECEMBER 1985, THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN ( ADMINISTRATIVE COURT OF LAST INSTANCE IN MATTERS OF TRADE AND INDUSTRY ) REFERRED QUESTIONS TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING ON THE VALIDITY OF COMMISSION REGULATION ( EEC ) NO 1746/84 OF 21 JUNE 1984 ( OFFICIAL JOURNAL 1984, L 164, P . 32 ) AMENDING ARTICLE 24 ( 3 ) OF REGULATION ( EEC ) NO 685/69 OF 14 APRIL 1969 ON DETAILED RULES OF APPLICATION FOR INTERVENTION ON THE MARKET IN BUTTER AND CREAM AND FIXING DIFFERENT RATES FOR THE REIMBURSEMENT OF FINANCING COSTS GRANTED AS AID FOR THE PRIVATE STORAGE OF BUTTER .

2 THE QUESTIONS WERE RAISED IN THE COURSE OF PROCEEDINGS BROUGHT BEFORE THE COLLEGE VAN BEROEP BY COOEPERATIEVE MELKPRODUCENTENBEDRIJVEN NOORD-NEDERLAND BA (" FRICO ") IN ONE CASE AND AN BORD BAINNE LIMITED AND J . WIJFFELS BV IN ANOTHER CASE . THOSE UNDERTAKINGS ( HEREINAFTER REFERRED TO AS "THE PLAINTIFFS IN THE MAIN PROCEEDINGS ") WHOSE BUSINESS IS, IN PARTICULAR, THE MANUFACTURE, MARKETING, IMPORTING AND EXPORTING OF BUTTER, HAD CONCLUDED CONTRACTS FOR THE STORAGE OF BUTTER WITH THE VOEDSELVOORZIENINGS IN - EN VERKOOPBUREAU ( FOOD PURCHASING AND SALES BUREAU ), THE NETHERLANDS INTERVENTION AGENCY RESPONSIBLE FOR APPLYING THE COMMUNITY RULES CONCERNING THE STORAGE OF BUTTER IN THE NETHERLANDS . PURSUANT TO THE APPLICABLE COMMUNITY RULES, THE PLAINTIFFS IN THE MAIN PROCEEDINGS APPLIED TO THAT INTERVENTION AGENCY FOR AN ADVANCE PAYMENT OF THE AID TO WHICH THEY WERE ENTITLED . BY DECISIONS OF 14 AND 28 SEPTEMBER 1984, THE INTERVENTION AGENCY GRANTED THEM THE ADVANCE PAYMENTS BUT TOOK INTO ACCOUNT IN THEIR CALCULATION THE 7% INTEREST RATE PROVIDED FOR IN REGULATION ( EEC ) NO 1746/84 . THE PLAINTIFFS IN THE MAIN PROCEEDINGS CONTESTED THOSE DECISIONS BEFORE THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN CONTENDING THAT THE REGULATION WAS CONTRARY TO COMMUNITY LAW .

3 THE NATIONAL COURT THEREFORE DECIDED, BY TWO ORDERS DATED 13 DECEMBER 1985, TO STAY THE PROCEEDINGS IN ORDER TO REFER THE FOLLOWING QUESTIONS, DRAFTED IN ALMOST IDENTICAL TERMS, TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING :

"IS REGULATION ( EEC ) NO 685/69 OF THE COMMISSION OF 14 APRIL 1969, AS AMENDED BY COMMISSION REGULATION ( EEC ) NO 1746/84 OF 21 JUNE 1984, INVALID IN SO FAR AS THE LAST SENTENCE OF ARTICLE 24 ( 3 ) PROVIDES, AS A RESULT OF THE SAID AMENDMENT, THAT THE ANNUAL INTEREST RATE IS 7% IN THE CASE OF BUTTER STORED IN THE FEDERAL REPUBLIC OF GERMANY AND THE NETHERLANDS AND 9.5% IN THE CASE OF BUTTER STORED IN THE UNITED KINGDOM, IN PARTICULAR ON ANY OF THE FOLLOWING GROUNDS OR COMBINATION THEREOF :

( A ) INFRINGEMENT OF ARTICLE 10 ( 1 ) OF REGULATION ( EEC ) NO*85/68 OF THE COUNCIL;

( B ) INFRINGEMENT OF ARTICLE 40 ( 3 ) OF THE EEC TREATY;

( C ) ( IN CASE 424/85 ONLY ) INFRINGEMENT OF ARTICLE 30 OF THE EEC TREATY;

( D ) INFRINGEMENT OF THE PRINCIPLES OF THE SINGLE MARKET AND UNIFORM PRICES WHICH UNDERLIE THE COMMON ORGANIZATION OF THE MARKET IN MILK PRODUCTS;

( E ) INSUFFICIENT OR INCORRECT STATEMENT OF REASONS;

( F ) BREACH OF THE PRINCIPLE OF LEGAL CERTAINTY;

( G ) INFRINGEMENT OF ONE OR MORE OTHER PROVISIONS OF THE EEC TREATY OR OF ONE OR MORE OF THE OTHER PRINCIPLES UNDERLYING THE EEC TREATY?"

4 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE RELEVANT COMMUNITY RULES AND THE OBSERVATIONS OF THE PLAINTIFFS IN THE MAIN PROCEEDINGS AND OF THE COMMISSION, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IT IS NECESSARY FOR THE REASONING OF THE COURT .

THE QUESTION OF THE COMPATIBILITY OF THE CONTESTED REGULATION WITH ARTICLE 10 ( 1 ) OF REGULATION ( EEC ) NO 985/68 AND WITH THE PRINCIPLES THAT THERE SHOULD BE UNIFORM PRICES AND A SINGLE MARKET FOR BUTTER

5 ACCORDING TO THE PLAINTIFFS IN THE MAIN PROCEEDINGS, IT FOLLOWS FROM ARTICLE 10 ( 1 ) OF REGULATION ( EEC ) NO 985/68 OF THE COUNCIL OF 15 JULY 1968 ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1968 ( I ), P . 256 ) AND FROM THE PRINCIPLE OF UNIFORM PRICES AND A SINGLE MARKET FOR BUTTER THAT THE AMOUNT OF AID FOR PRIVATE STORAGE SHOULD BE THE SAME IN ALL MEMBER STATES OF THE COMMUNITY .

6 IT SHOULD BE POINTED OUT IN THE FIRST PLACE THAT, ACCORDING TO ARTICLE 10 ( 1 ) OF REGULATION ( EEC ) NO 985/68, "THE AMOUNT OF PRIVATE-STORAGE AID SHALL BE FIXED FOR THE COMMUNITY WITH REFERENCE TO STORAGE COSTS AND FORESEEABLE PRICE TRENDS FOR FRESH BUTTER AND STORED BUTTER ". THAT PROVISION MUST BE INTERPRETED IN THE LIGHT OF BOTH THE PREAMBLE TO THE REGULATION AND THE OBJECTIVES OF THE SYSTEM OF AID FOR THE PRIVATE STORAGE OF BUTTER .

7 IN THIS REGARD, IT MUST BE OBSERVED THAT THE NINTH RECITAL IN THE PREAMBLE TO REGULATION ( EEC ) NO 985/68 MERELY EMPHASIZES THE NEED FOR UNIFORMITY IN THE SYSTEM OF PRIVATE STORAGE OF BUTTER AND THE REQUIREMENT OF A UNIFORM METHOD OF CALCULATING THE AMOUNT OF AID ACCORDING TO THE COST OF STORAGE AND MARKET DEVELOPMENTS . HOWEVER, NEITHER THE WORDING OF ARTICLE 10 ( 1 ) NOR THAT RECITAL REQUIRE THAT THAT UNIFORM METHOD OF CALCULATION SHOULD RESULT IN THE FIXING OF A SINGLE AMOUNT OF AID FOR PRIVATE STORAGE FOR THE WHOLE COMMUNITY .

8 FURTHERMORE, ACCORDING TO THE PREAMBLE TO REGULATION ( EEC ) NO 985/68, "PRIVATE STORAGE MUST CONTRIBUTE TO THE ATTAINMENT OF A BALANCED MARKET" AND THE COMMUNITY PROVISIONS MUST "ENABLE STOCKS TO BE HELD ON THE MOST EFFECTIVE BASIS POSSIBLE ". THOSE OBJECTIVES CAN ONLY BE ACHIEVED IF THE AMOUNT OF AID FOR PRIVATE STORAGE IS ADJUSTED TO THE REAL NEEDS OF STORERS SO THAT THEY NEITHER SUFFER UNJUSTIFIED LOSSES NOR GAIN UNJUSTIFIED PROFITS .

9 IN THE SECOND PLACE IT MUST BE OBSERVED THAT THE SETTING OF DIFFERENT AMOUNTS OF AID FOR THE PRIVATE STORAGE OF BUTTER DOES NOT CALL INTO QUESTION THE SINGLE INTERVENTION PRICE WHICH CONTINUES TO SERVE AS THE BASIS FOR THE CALCULATION OF STORAGE COSTS . IT ALSO HAS NO EFFECT ON THE SINGLE TARGET PRICE OR ON THE POSSIBILITY OF ACHIEVING ITS OBJECTIVE . THE SINGLE MARKET FOR BUTTER WHICH RESULTS FROM THOSE UNIFORM PRICES IS THUS PRESERVED .

10 IT MUST THEREFORE BE STATED THAT THE CONTESTED REGULATION DOES NOT INFRINGE EITHER ARTICLE 10 ( 1 ) OF REGULATION ( EEC ) NO 985/68 OF THE COUNCIL OF 15 JULY 1968 OR THE PRINCIPLE OF UNIFORM PRICES AND A SINGLE MARKET FOR BUTTER .

THE QUESTION OF THE COMPATIBILITY OF THE CONTESTED REGULATION WITH THE PRINCIPLE OF EQUAL TREATMENT LAID DOWN IN THE SECOND SUBPARAGRAPH OF ARTICLE 40 ( 3 ) OF THE EEC TREATY

11 THE COURT HAS CONSISTENTLY HELD THAT, AS A SPECIFIC ENUNCIATION OF THE GENERAL PRINCIPLE OF EQUALITY, THE PROHIBITION OF DISCRIMINATION EXPRESSED IN THE SECOND SUBPARAGRAPH OF ARTICLE 40 ( 3 ) OF THE EEC TREATY DOES NOT PREVENT LIKE SITUATIONS FROM BEING TREATED DIFFERENTLY WHERE SUCH TREATMENT IS OBJECTIVELY JUSTIFIED .

12 ALTHOUGH THE DIFFERENTIATION INTRODUCED BY THE CONTESTED REGULATION IS BASED ON AN OBJECTIVE FACTOR, NAMELY THE INTEREST RATES ACTUALLY PREVAILING ON THE FINANCIAL MARKETS OF THE DIFFERENT MEMBER STATES, THE PLAINTIFFS IN THE MAIN PROCEEDINGS CLAIM THAT THIS FACTOR IS NOT DECISIVE AND THAT THE DISPUTED MEASURE INTRODUCES IN FACT AN UNJUSTIFIED DIFFERENCE OF TREATMENT BETWEEN THE TRADERS CONCERNED .

13 THEY POINT OUT FIRST OF ALL THAT EACH TRADER IS FREE TO CHOOSE THE CURRENCY IN WHICH HE WILL FINANCE THE STORAGE AND THUS MAY TAKE ADVANTAGE OF LOW INTEREST RATES, IRRESPECTIVE OF THE MEMBER STATE IN WHICH HE CARRIES OUT THE STORAGE .

14 THAT ARGUMENT CANNOT BE UPHELD . ALTHOUGH TRADERS WHO STORE BUTTER IN MEMBER STATES WITH HIGH INTEREST RATES MAY FINANCE THOSE OPERATIONS BY LOANS IN CURRENCIES OF MEMBER STATES WHERE INTEREST RATES ARE LOW, THAT ADVANTAGE IS OFFSET BY THE RISK, TO WHICH THAT PRACTICE EXPOSES THEM, THAT THE EXCHANGE RATES OF THOSE CURRENCIES MIGHT CHANGE TO THEIR DETRIMENT .

15 THE PLAINTIFFS IN THE MAIN PROCEEDINGS CONTEND, SECONDLY, THAT BECAUSE OF THE DELAY IN PAYMENT BY THE NATIONAL INTERVENTION AGENCIES, THE MARKET PRICE FOR BUTTER TENDS IN EACH MEMBER STATE TO FALL LOWER THE HIGHER THE PREVAILING INTEREST RATE . A UNIFORM RATE OF REIMBURSEMENT OF FINANCING COSTS COULD THUS ELIMINATE THE COMPETITIVE DISADVANTAGE SUFFERED BY TRADERS WHO STOCK BUTTER IN MEMBER STATES WITH THE LOWEST INTEREST RATES WHERE, CONSEQUENTLY, THE MARKET PRICE IS THE HIGHEST .

16 THAT SECOND ARGUMENT CANNOT BE ACCEPTED EITHER . THE SOLE PURPOSE OF AID FOR THE PRIVATE STORAGE OF BUTTER IS IN FACT TO PROVIDE, AS FAR AS POSSIBLE, COMPENSATION FOR THE COSTS NORMALLY INCURRED BY TRADERS IN STORING BUTTER AND NOT TO ENABLE SOME OF THEM TO IMPROVE THEIR COMPETITIVENESS IN RELATION TO THEIR COMPETITORS OPERATING IN OTHER MEMBER STATES .

17 FINALLY, THE PLAINTIFFS IN THE MAIN PROCEEDINGS CONSIDER THAT DIFFERENTIATION OF THE INTEREST RATES TAKEN INTO ACCOUNT FOR THE FINANCING OF THE PRIVATE STORAGE OF BUTTER INTRODUCES DISCRIMINATION BETWEEN BUTTER PRODUCERS AND PRODUCERS OF OTHER AGRICULTURAL PRODUCTS FOR WHICH THERE IS NO SUCH DIFFERENTIATION .

18 THAT LAST ARGUMENT MUST ALSO BE DISMISSED . EACH COMMON ORGANIZATION OF THE MARKET HAS ITS OWN CHARACTERISTICS; IN THE ORGANIZATION OF THE BUTTER MARKET, STORAGE PLAYS A PARTICULAR ROLE AND REQUIRES MEASURES WHICH ARE NOT COMPARABLE WITH ANY MEASURES APPLIED TO OTHER AGRICULTURAL PRODUCTS . THE COURT HAS CONSISTENTLY HELD THAT THE FACT THAT DIFFERENT SITUATIONS ARE TREATED DIFFERENTLY DOES NOT CONSTITUTE DISCRIMINATION CONTRARY TO THE PRINCIPLE OF EQUALITY .

19 IT MUST THEREFORE BE STATED THAT THE CONTESTED REGULATION DOES NOT INFRINGE THE PRINCIPLE OF EQUAL TREATMENT ENUNCIATED IN THE SECOND SUBPARAGRAPH OF ARTICLE 40 ( 3 ) OF THE EEC TREATY .

THE COMPATIBILITY OF THE CONTESTED REGULATION WITH ARTICLE 30 OF THE TREATY

20 ACCORDING TO THE PLAINTIFFS IN THE MAIN PROCEEDINGS, THE UNIFORM REIMBURSEMENT OF FINANCING COSTS USED TO COMPENSATE FOR THE COMPETITIVE DISADVANTAGE SUFFERED BY TRADERS IN MEMBER STATES WITH THE LOWEST INTEREST RATES AND HIGHEST MARKET PRICES . IN REMOVING THAT COMPENSATING FACTOR, THE MEASURE ESTABLISHING DIFFERENT RATES FOR THE REIMBURSEMENT OF FINANCING COSTS CAUSES ARTIFICIAL PATTERNS OF TRADE AND, BY MAKING IT MORE DIFFICULT TO EXPORT BUTTER TO SOME MEMBER STATES, CONSTITUTES A MEASURE HAVING EQUIVALENT EFFECT TO A QUANTITATIVE RESTRICTION ON IMPORTS PROHIBITED BY ARTICLE 30 OF THE EEC TREATY .

21 AS HAS ALREADY BEEN POINTED OUT, AID FOR THE PRIVATE STORAGE OF BUTTER IS INTENDED SOLELY TO PROVIDE, AS FAR AS POSSIBLE, COMPENSATION FOR THE COSTS NORMALLY INCURRED BY TRADERS IN STORING BUTTER . THE DIFFERENTIATION IN THE REIMBURSEMENT OF FINANCING COSTS BASED ON THE INTEREST RATES ACTUALLY PAID ENABLES THAT OBJECTIVE TO BE ATTAINED MORE EFFECTIVELY AND DOES NOT CAUSE ARTIFICIAL PATTERNS OF TRADE . THEREFORE IT CANNOT IN ANY EVENT CONSTITUTE A MEASURE HAVING EQUIVALENT EFFECT PROHIBITED BY ARTICLE 30 OF THE EEC TREATY .

22 IT MUST THEREFORE BE STATED THAT THE CONTESTED REGULATION DOES NOT INFRINGE ARTICLE 30 OF THE EEC TREATY .

THE STATEMENT OF REASONS IN THE CONTESTED REGULATION

23 IN ORDER TO SUBSTANTIATE THEIR VIEW THAT THE CONTESTED REGULATION WAS ADOPTED IN BREACH OF ARTICLE 190 OF THE EEC TREATY, THE PLAINTIFFS IN THE MAIN PROCEEDINGS CONTEND THAT ITS REASONING CONTAINS FOUR INACCURACIES .

24 THEY POINT OUT FIRST OF ALL THAT THE SECOND RECITAL OF THE PREAMBLE TO REGULATION ( EEC ) NO 1746/84 ERRONEOUSLY STATES THAT THE FINANCING COSTS OF STORAGE ARE INCURRED "BY" EACH MEMBER STATE WHEN IN ACTUAL FACT THOSE COSTS ARE BORNE BY THE TRADERS CONCERNED .

25 IT MUST BE NOTED, HOWEVER, THAT THIS MISTAKE, WHICH THE PLAINTIFFS IN THE MAIN PROCEEDINGS HAVE CORRECTLY POINTED OUT, AFFECTS ONLY THE DUTCH VERSION OF THE REGULATION AND IS THE RESULT OF A MISTRANSLATION . IT CANNOT THEREFORE HAVE AFFECTED THE CONTENTS OF THE REGULATION AND CANNOT THEREFORE VITIATE ITS VALIDITY .

26 SECONDLY, THE APPLICANTS IN THE MAIN PROCEEDINGS DISPUTE THE ACCURACY OF THE STATEMENT IN THE SECOND RECITAL OF THE PREAMBLE TO THE CONTESTED REGULATION TO THE EFFECT THAT A UNIFORM ASSESSMENT OF THE FINANCING COSTS BORNE BY THE STORERS CONSTITUTES IN SOME MEMBER STATES A FURTHER INCENTIVE TO SEND PRODUCTS INTO STORAGE .

27 ALTHOUGH THE DECISION TO SEND CERTAIN QUANTITIES OF BUTTER INTO PRIVATE STORAGE INVOLVES A NUMBER OF GENERAL AND LOCAL ECONOMIC CONSIDERATIONS, IT MUST NOT BE OVERLOOKED THAT IN THE MEMBER STATES WHERE REAL INTEREST RATES WERE CONSIDERABLY LOWER THAN THE UNIFORM INTEREST RATE PREVIOUSLY TAKEN INTO ACCOUNT BY THE COMMUNITY AUTHORITIES WHEN ASSESSING THE COSTS OF FINANCING STORAGE, A FURTHER INCENTIVE TO STORE BUTTER THUS EXISTED FOR THE TRADERS CONCERNED .

28 THIRDLY, CONTRARY TO THE CONTENTION OF THE PLAINTIFFS IN THE MAIN PROCEEDINGS, THE COMMISSION WAS NOT WRONG TO MAKE CLEAR IN THE SECOND RECITAL OF THE PREAMBLE TO THE CONTESTED REGULATION ITS AIM TO AVOID "UNJUSTIFIED PROFITS FOR THE OPERATORS CONCERNED ". THE ASSESSMENT OF THE COSTS OF FINANCING STORAGE ON THE BASIS OF A UNIFORM INTEREST RATE HAD THE RESULT THAT TRADERS WHO STORED THEIR BUTTER IN A COUNTRY WHERE THE REAL INTEREST RATE WAS LOWER THAN THAT UNIFORM RATE RECEIVED COMPENSATION WHICH EXCEEDED THEIR ACTUAL FINANCING COSTS . IN APPRAISING WHETHER THE COMMISSION' S REASONING WAS CORRECT IT IS IRRELEVANT WHETHER THAT OVERCOMPENSATION WAS USED BY THE TRADER TO INCREASE HIS PROFITS OR TO IMPROVE HIS COMPETITIVENESS BY REDUCING HIS SELLING PRICES .

29 FINALLY, THE PLAINTIFFS IN THE MAIN PROCEEDINGS COMPLAIN THAT THE STATEMENT OF REASONS IN THE CONTESTED REGULATION IGNORED THE FACT THAT UNDERTAKINGS OPERATING IN MEMBER STATES WITH HIGH INTEREST RATES MAY STILL FINANCE THEIR STORAGE COSTS IN THE CURRENCIES OF MEMBER STATES WHERE INTEREST RATES ARE LOW .

30 AS HAS ALREADY BEEN POINTED OUT, THE ADVANTAGE THAT SUCH A PRACTICE AFFORDS THE TRADERS CONCERNED IS OFFSET BY THE RISK THAT EXCHANGE RATES MAY CHANGE TO THEIR DETRIMENT . THE COMMISSION WAS THEREFORE ENTITLED TO DISREGARD THAT POSSIBILITY WHEN ESTABLISHING THE SYSTEM FOR THE REIMBURSEMENT OF STORAGE COSTS .

31 ALL THINGS CONSIDERED, IT WOULD THEREFORE APPEAR THAT THE STATEMENT OF REASONS IN THE CONTESTED REGULATION IS NOT VITIATED BY ANY ERROR OF SUBSTANCE .

THE COMPATIBILITY OF THE CONTESTED REGULATION WITH THE PRINCIPLE OF LEGAL CERTAINTY

32 ACCORDING TO THE PLAINTIFFS IN THE MAIN PROCEEDINGS, THE PRINCIPLE OF LEGAL CERTAINTY HAS BEEN INFRINGED IN TWO WAYS . FIRST, REPLYING ON 31 JANUARY 1984 TO A WRITTEN QUESTION BY A MEMBER OF THE EUROPEAN PARLIAMENT, THE COMMISSION STATED THAT IT "(( DID )) NOT ENVISAGE DIFFERENTIATING AID ON THE BASIS OF INTEREST RATES CURRENT IN THE VARIOUS MEMBER STATES"; SECONDLY, IT SHOULD HAVE ADOPTED TRANSITIONAL PROVISIONS FOR PURCHASE AND SALE CONTRACTS CONCLUDED BEFORE THE REGULATION CAME INTO FORCE .

33 AS REGARDS THE FIRST POINT, IT MUST BE POINTED OUT THAT ARTICLE 10 ( 2 ) OF REGULATION ( EEC ) NO 985/68 OF THE COUNCIL AUTHORIZES THE COMMISSION TO AMEND THE AMOUNT OF AID FOR THE PRIVATE STORAGE OF BUTTER "IF THE STATE OF THE MARKET SO REQUIRES ". IF IT FOUND THAT LARGE PRIVATE STOCKS OF BUTTER WERE ACCUMULATING IN MEMBER STATES WITH LOW INTEREST RATES, THE COMMISSION WAS ENTITLED TO ASSESS THE SITUATION IN A DIFFERENT WAY THAN SEVERAL MONTHS BEFORE . IT IS ESTABLISHED CASE-LAW ( SEE IN PARTICULAR THE JUDGMENT OF 15 JULY 1982 IN CASE 245/81 EDEKA ZENTRALE AG V FEDERAL REPUBLIC OF GERMANY (( 1982 )) ECR 2745 AND THE JUDGMENT OF 28 OCTOBER 1982 IN CASE 52/81 FIRMA WERNER FAUST V COMMISSION (( 1982 )) ECR 3745 ) THAT TRADERS ARE UNABLE TO CLAIM THAT THEY HAVE A LEGITIMATE EXPECTATION THAT AN EXISTING SITUATION WHICH IS CAPABLE OF BEING ALTERED BY THE INSTITUTIONS OF THE COMMUNITY IN THE EXERCISE OF THEIR POWER OF APPRAISAL WILL BE MAINTAINED . A REDUCTION OF THE INTEREST RATE TAKEN INTO ACCOUNT FOR THE REIMBURSEMENT OF THE COSTS OF FINANCING STORAGE WAS THUS A POSSIBILITY THAT A PRUDENT TRADER SHOULD HAVE TAKEN INTO CONSIDERATION, ESPECIALLY IN AN AREA SUCH AS THE COMMON ORGANIZATION OF THE MARKETS WHOSE PURPOSE INVOLVES CONSTANT ADJUSTMENTS TO CHANGES IN THE ECONOMIC SITUATION .

34 AS REGARDS THE SECOND POINT IT MUST BE OBSERVED THAT, ACCORDING TO ARTICLE 2, THE CONTESTED REGULATION WAS APPLICABLE ONLY TO BUTTER SENT INTO STORAGE AFTER IT CAME INTO FORCE . THEREFORE THE REGULATION HAS NO RETROACTIVE EFFECT . IF THE PLAINTIFFS IN THE MAIN PROCEEDINGS CLAIM THAT ON THE BASIS OF THE SINGLE RATE OF INTEREST TAKEN INTO ACCOUNT PREVIOUSLY THEY CONCLUDED CERTAIN CONTRACTS FOR THE PURCHASE AND SALE OF BUTTER BEFORE THE CONTESTED REGULATION WAS PUBLISHED, THEN, AS POINTED OUT ABOVE, THEY HAVE ONLY THEMSELVES TO BLAME FOR NOT HAVING FORESEEN THE POSSIBILITY OF A REDUCTION IN THAT RATE .

35 IT MUST THEREFORE BE STATED THAT THE CONTESTED REGULATION DOES NOT OFFEND AGAINST THE PRINCIPLE OF LEGAL CERTAINTY .

THE COMPATIBILITY OF THE CONTESTED REGULATION WITH OTHER PROVISIONS OF THE EEC TREATY

36 IN THIS REGARD, THE PLAINTIFFS IN THE MAIN PROCEEDINGS CONFINE THEMSELVES TO THE SUBMISSION THAT THE CONTESTED REGULATION ADVERSELY AFFECTS THE RIGHT OF TRADERS TO BORROW MONEY IN THE CURRENCY OF THEIR CHOICE AND IS THUS IN BREACH OF THE PRINCIPLE OF THE FREE MOVEMENT OF CAPITAL LAID DOWN IN ARTICLE 67 ( 1 ) OF THE EEC TREATY .

37 IT SUFFICES TO OBSERVE ON THIS POINT THAT THE FIXING OF DIFFERENT INTEREST RATES TO BE TAKEN INTO ACCOUNT FOR THE REIMBURSEMENT OF FINANCING COSTS RELATING TO THE PRIVATE STORAGE OF BUTTER CANNOT IN ANY WAY RESTRICT THE CHOICE OF TRADERS REGARDING THE CURRENCY IN WHICH THEY WISH TO FINANCE THE STORAGE .

38 IT MUST THEREFORE BE STATED THAT THE CONTESTED REGULATION IS NOT CONTRARY TO THE PRINCIPLE OF THE FREE MOVEMENT OF CAPITAL OR TO ARTICLE 67 ( 1 ) OF THE TREATY .

39 IN THE RESULT, CONSIDERATION OF THE QUESTIONS RAISED BY THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF COMMISSION REGULATION ( EEC ) NO 1746/84 OF 21 JUNE 1984, AMENDING ARTICLE 24 ( 3 ) OF REGULATION ( EEC ) NO 685/69 OF 14 APRIL 1969 .

Decision on costs

COSTS

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

Operative part

On those grounds,

THE COURT,

in answer to the questions referred to it by the College van Beroep voor het Bedrijfsleven by orders of 13 December 1985, hereby rules :

Consideration of the questions raised by the College van Beroep voor het Bedrijfsleven has disclosed no factor of such a kind as to affect the validity of Commission Regulation ( EEC ) No*1746/84 of 21 June 1984 ( Official Journal 1984, L 164, p . 32 ), amending Article 24 ( 3 ) of Regulation ( EEC ) No 685/69 of 14 April 1969 .