OF REGULATION NO 663/74 OF THE COUNCIL PROVIDED THAT , IN TRADE BETWEEN EACH OF THE MEMBER STATES REFERRED TO IN PARAGRAPH ( 1 ) AND THE OTHER MEMBER STATES AND THIRD COUNTRIES , THE CORRECTIVE AMOUNT WAS TO BE APPLIED ONLY TO ' ' THE PRODUCT IN QUESTION ' ' , THAT IS TO SAY SKIMMED-MILK POWDER . IN AN ANNEX TO REGULATION NO 712/74 SETTING OUT THE METHODS OF APPLICATION FOR ARTICLE 3 OF REGULATION NO 663/74 , THE COMMISSION FIXED THE CORRECTIVE AMOUNTS APPLICABLE TO MILK OF A FAT CONTENT NOT EXCEEDING 3% BY WEIGHT AND TO CERTAIN KINDS OF FORAGE .
ARTICLE 2 OF THAT REGULATION PROVIDED THAT THE MONETARY COMPENSATORY AMOUNTS FIXED IN ACCORDANCE WITH REGULATION NO 974/71 WERE TO REDUCED BY THE AMOUNTS FIXED IN THE ANNEX . IN REGULATION NO 725/74 THE COMMISSION FIXED NEW RATES FOR THE MONETARY COMPENSATORY AMOUNTS TO BE APPLIED INTER ALIA TO MILK AND MILK PRODUCTS . THAT REGULATION DID NOT PROVIDE FOR ANY SPECIFIC REDUCTION OF THE MONETARY COMPENSATORY AMOUNTS TO BE APPLIED IN GERMANY TO MILK POWDER HAVING A FAT CONTENT IN EXCESS OF 3% BY WEIGHT .
20IN THE PREVIOUS CASE , 28/76 , THE PLAINTIFF IN THE MAIN ACTION HAD CLAIMED THAT REGULATION NO 725/74 WAS TO BE INTERPRETED AS MEANING THAT THE CORRECTIVE AMOUNT REFERRED TO IN REGULATION NO 663/74 OF THE COUNCIL MUST BE APPLIED IN ALL CIRCUMSTANCES , AT LEAST IN SO FAR AS MILK POWDER COMING WITHIN TARIFF SUBHEADING 04.02 A II B 2 OF THE COMMON CUSTOMS TARIFF WAS CONCERNED .
21IN ITS JUDGMENT OF 23 NOVEMBER 1976 THE COURT DISMISSED THAT INTERPRETATION OF THE REGULATION AT ISSUE .
22AS REGARDS THE QUESTIONS SUBMITTED IN THIS CASE , THE PLAINTIFF IN THE MAIN ACTION CLAIMS THAT REGULATION NO 725/74 , AND POSSIBLY REGULATIONS NO 663/74 OF THE COUNCIL AND NO 712/74 OF THE COMMISSION , ARE UNLAWFUL FOR BREACH OF THE PRINCIPLE OF NON-DISCRIMINATION LAID DOWN IN ARTICLE 40 ( 3 ) OF THE TREATY . IN SUPPORT OF THIS ARGUMENT IT ALLEGES THAT THE FAILURE TO APPLY A CORRECTIVE AMOUNT TO WHOLE-MILK POWDER CAUSES DISTORTIONS OF COMPETITION IN THE MILK MARKET . IT CLAIMS THAT PURCHASERS OF WHOLE-MILK POWDER WERE ABLE TO OBTAIN THAT PRODUCT IN BELGIUM , THE NETHERLANDS AND IN GERMANY AT A PRICE 2 UNITS OF ACCOUNT PER 100 KG LOWER THAN THE PRICE PREVAILING IN FRANCE AND THAT THERE IS NO APPRECIABLE DIFFERENCE BETWEEN THE MARKET FOR WHOLE-MILK POWDER AND THE MARKET FOR SKIMMED-MILK POWDER . IT STATES FURTHER THAT AT THE TIME IN QUESTION THE CHOCOLATE AND ICE-CREAM INDUSTRY CHANGED OVER FROM USING WHOLE-MILK POWDER TO USING SKIMMED-MILK POWDER SUPPLEMENTED BY BUTTER-FAT .
23ON THE OTHER HAND , THE COMMISSION IS OF THE VIEW THAT THE USERS OF WHOLE- MILK POWDER AND OF SKIMMED-MILK POWDER ARE DIFFERENT : SKIMMED-MILK POWDER IS USED FOR MAKING SOUPS AND DIETETIC FOODSTUFFS AND FOR MAKING CERTAIN KINDS OF FORAGE , WHEREAS WHOLE-MILK POWDER IS USED BY THE