PRODUCED WITHIN THE PERIOD THEREIN PRESCRIBED BEFORE THE DEPOSIT MAY BE RELEASED .
9 THE SECOND QUESTION PUT BY THE VERWALTUNGSGERICHT IS WHETHER ARTICLE 18 SO INTERPRETED IS COMPATIBLE WITH SUPERIOR RULES OF COMMUNITY LAW AND IN PARTICULAR WITH THE PRINCIPLE OF PROPORTIONALITY .
10 THE LEGAL BASIS OF THE SYSTEM ESTABLISHED BY REGULATION NO 1259/72 IS , INTER ALIA , REGULATION NO 985/68 OF THE COUNCIL OF 15 JULY 1968 ( OJ , ENGLISH SPECIAL EDITION , 1968 ( I ), P . 256 ) AND IN PARTICULAR ARTICLE 7A INSERTED BY REGULATION NO 750/69 OF THE COUNCIL OF 22 APRIL 1969 ( OJ , ENGLISH SPECIAL EDITION 1969 ( I ), P . 204 ). THIS PROVIDES THAT THE COMMISSION SHALL EXAMINE THE SITUATION AND ADOPT APPROPRIATE MEASURES AS REGARDS PRODUCTS IN PUBLIC STORAGE WHICH CANNOT BE MARKETED ON NORMAL TERMS DURING A MILK YEAR . THERE IS NO REASON FOR THINKING THAT THE SYSTEM ESTABLISHED BY REGULATION NO 1259/72 , TAKEN AS A WHOLE AND MORE PARTICULARLY PROVIDING FOR THE LODGING OF A PROCESSING DEPOSIT , IS NOT AN APPROPRIATE MEASURE WITHIN THE MEANING OF ARTICLE 7A . THIS ARTICLE IS THEREFORE THE PROPER LEGAL BASIS FOR REGULATION NO 1259/72 THE ADOPTION OF WHICH IS IN ACCORDANCE WITH THE OPINION OF THE MANAGEMENT COMMITTEE FOR MILK AND MILK PRODUCTS .
11 AS REGARDS THE QUESTION OF PROPORTIONALITY IT IS APPROPRIATE TO CONSIDER WHETHER THE LODGING OF A PROCESSING DEPOSIT WHICH IS FORFEIT EVEN WHERE THE FAILURE OF THE SUCCESSFUL TENDERER TO FULFIL HIS UNDERTAKINGS IS DUE TO THE DEFAULT OF A SUBSEQUENT PURCHASER , EXCEEDS THE LIMITS WHICH ARE APPROPRIATE AND NECESSARY FOR ATTAINING THE OBJECTIVE DESIRED . IN THIS RESPECT IT IS NECESSARY TO TAKE INTO ACCOUNT THE CHARACTERISTICS OF THE PROCESSING DEPOSIT PROVIDED FOR BY REGULATION NO 1259/72 . ARTICLE 9 ( 2 ) SHOWS THAT THE DEPOSIT IS INTENDED TO COVER THE DIFFERENCE BETWEEN THE MARKET PRICE OF BUTTER AND THE MINIMUM SELLING PRICE FIXED FOR EACH TENDER . THE EFFECT OF FORFEITURE OF THE DEPOSIT WHERE THE OBLIGATION TO PROCESS IS NOT FULFILLED IS THEREFORE IN PRINCIPLE TO MAKE THE SUCCESSFUL TENDERER PAY A TOTAL AMOUNT EQUIVALENT TO THE MARKET PRICE OF THE BUTTER IN ACCORDANCE WITH THE CONTRACTUAL OBLIGATION WHICH HE HAS FREELY ENTERED INTO . IN THESE CIRCUMSTANCES THE FORFEITURE OF THE DEPOSIT CANNOT BE REGARDED AS IN THE NATURE OF A PENALTY FOR NOT FULFILLING AN INDEPENDENT OBLIGATION . IT MUST THEREFORE BE CONCLUDED THAT THE SYSTEM OF THE PROCESSING DEPOSIT ESTABLISHED BY REGULATION NO 1259/72 DOES NOT EXCEED WHAT IS APPROPRIATE AND NECESSARY TO ATTAIN THE OBJECTIVE DESIRED .
12 THE PLAINTIFFS IN THE MAIN ACTION HAVE CLAIMED THAT THE DEPOSIT IS FIXED AT A LEVEL HIGHER THAN THE DIFFERENCE BETWEEN THE MARKET PRICE OF BUTTER AND THE MINIMUM PRICE AND THAT THEY SUFFER A FINANCIAL DISADVANTAGE AS A RESULT . THIS QUESTION CONCERNS THE CORRECT APPLICATION OF ARTICLE 9 OF REGULATION NO 1259/72 AND NOT THE QUESTIONS WHICH