INSERTING APPROPRIATE CLAUSES IN HIS CONTRACTS .
43 IT IS TO BE NOTED THAT REGULATION NO 232/75 IMPOSES A PERSONAL RESPONSIBILITY ON THE SUCCESSFUL TENDERER AND THAT THE RELEASE OF THE SECURITY OR THE EXISTENCE OF SPECIAL CIRCUMSTANCES CANNOT DISCHARGE HIM FROM HIS OBLIGATIONS . HE MAY NOT THEREFORE SUCCESSFULLY PLEAD THE FACT THAT THE SECURITY WAS RELEASED OR THE PRINCIPLE OF LEGAL CERTAINTY IN ORDER TO AVOID THE PAYMENT OF AN AMOUNT TO OFFSET A WRONGLY-GRANTED ADVANTAGE .
44 THE ANSWER TO THE EIGHTH QUESTION MUST THEREFORE BE THAT AN ACTION AGAINST THE SUCCESSFUL TENDERER FOR FAILURE TO FULFIL HIS OBLIGATIONS IS NOT BARRED BY APPLICATION OF THE PRINCIPLE OF LEGAL CERTAINTY ONCE THE SECURITY HAS BEEN RELEASED .
THE NINTH QUESTION
45 THE DIREKTORATET FOR MARKEDSORDNINGERNE , THE PLAINTIFF IN THE MAIN PROCEEDINGS , SUGGESTS THAT THE COURT SHOULD ANSWER THIS QUESTION TO THE EFFECT THAT , IF THE COMPETENT INTERVENTION AUTHORITIES HAVE MANAGED TO ESTABLISH THAT THE CUSTOMS DECLARATION CERTIFYING THAT THE BUTTER WAS USED CORRECTLY IS WRONG , THE ONUS IS ON THE TENDERER SEEKING TO BE DISCHARGED FROM HIS OBLIGATIONS TO PRODUCE EVIDENCE SUBSTANTIATING FULLY THAT , DESPITE ALL APPEARANCES , THE BUTTER WAS IN FACT USED FOR THE PRESCRIBED PURPOSE . THAT CONCLUSION FOLLOWS FROM THE ABSOLUTE BURDEN OF PROOF RESTING ON THE SUCCESSFUL TENDERER WHICH IS CONSISTENT WITH THE FUNDAMENTAL RULE ESTABLISHED BY THE REGULATION THAT THE SUCCESSFUL TENDERER BEARS PERSONAL RESPONSIBILITY AND FROM THE FACT THAT THE SUBSEQUENT BUYERS FAILED TO COMPLY WITH THE OBLIGATION TO KEEP STOCK RECORDS WHICH THUS MADE IT IMPOSSIBLE TO PROVE HOW THE BUTTER HAD FINALLY BEEN USED . THE DISADVANTAGES OF THAT SITUATION MUST BE BORNE BY THE SUCCESSFUL TENDERER . THE DIREKTORATET FOR MARKEDSORDNINGERNE SUBMITS THAT IT IS A GENERALLY ACCEPTED PRINCIPLE IN THE LEGAL SYSTEMS OF THE MEMBER STATES THAT THE BURDEN OF PROOF RESTS ON THE PERSON HAVING THE MEANS OF PROOF OR ON THE PERSON WHO OUGHT TO HAVE SECURED THE MEANS OF PROOF .
46 THE DEFENDANT CONTENDS THAT UNDER THE PROVISIONS OF REGULATION NO 232/75 THE MATERIAL BURDEN OF PROOF RESTS ON THE SUCCESSFUL TENDERER UNTIL THE SECURITY IS RELEASED AND THAT THE PROOF IS PROVIDED BY THE ENDORSEMENT OF THE T5 CONTROL DOCUMENT BY THE COMPETENT AUTHORITIES . HOWEVER , IT CONSIDERS THAT REGULATION NO 232/75 IS SILENT ON THE QUESTION OF THE BURDEN OF PROOF AFTER THE RELEASE OF THE SECURITY . NEVERTHELESS , IT BELIEVES THAT IT IS POSSIBLE TO DEDUCE FROM THE COURT ' S JUDGMENT OF 9 JUNE 1964 ( JOINED CASES 94 AND 96/63 BERNUSSET V COMMISSION ( 1964 ) ECR 297 ) THAT A GENERAL PRINCIPLE EXISTS ACCORDING TO WHICH AN AUTHORITY WHICH ADOPTS MEASURES ADVERSELY AFFECTING THE PERSONS CONCERNED OR WHICH WITHDRAWS A FAVOURABLE DECISION MUST BEAR THE BURDEN OF PROOF ITSELF . IN ANY EVENT , THE INTERVENTION AGENCY BEARS THE ENTIRE BURDEN OF PROVING THAT THE PROCESSING REQUIREMENTS SET OUT IN ARTICLE 6 WERE NOT FULFILLED , ESPECIALLY SINCE IN