CHOCOLATE AND ICE-CREAM INDUSTRY . THE COMMISSION STATES THAT WHOLE-MILK POWDER AND SKIMMED-MILK POWDER ARE NOT USUALLY COMPETING PRODUCTS , AND THAT IF AT THE TIME IN QUESTION THE CHOCOLATE AND ICE-CREAM INDUSTRY HAD BEGUN TO SUBSTITUTE SKIMMED-MILK POWDER AND BUTTER-FAT FOR WHOLE-MILK POWDER , THE REASON FOR THAT SUBSTITUTION IS NOT TO BE FOUND IN THE FAILURE TO APPLY A CORRECTIVE AMOUNT TO WHOLE-MILK POWDER BUT IN THE RELATIVELY LOW PRICE OF BUTTER , SINCE THE INTERVENTION PRICE FOR BUTTER HAD NOT BEEN INCREASED FOR THE MILK YEAR 1974/75 AND SINCE INTERVENTION BUTTER WAS AT THAT TIME BEING OFFERED TO THE CAKE-MAKING AND ICE-CREAM INDUSTRIES AT A PARTICULARLY FAVOURABLE RATE .
24THE PRINCIPLE OF NON-DISCRIMINATION LAID DOWN IN ARTICLE 40 ( 3 ) OF THE TREATY DOES NOT PROHIBIT DIFFERENT TREATMENT OF PRODUCTS WHICH ARE NOT IDENTICAL , UNLESS IT RESULTS IN DISCRIMINATION BETWEEN PRODUCERS OR BETWEEN CONSUMERS WITHIN THE COMMUNITY .
25THE PLAINTIFF HAS NOT SHOWN WHAT CONSTITUTES THE DISCRIMINATION ALLEGED TO RESULT FROM THE PROVISIONS AT ISSUE , EITHER AS REGARDS PRODUCERS OR AS REGARDS CONSUMERS WITHIN THE COMMUNITY . AS TO THE ALLEGATION BY THE PLAINTIFF IN THE MAIN ACTION TO THE EFFECT THAT PURCHASERS OF WHOLE-MILK POWDER WERE ABLE TO OBTAIN THAT PRODUCT IN BELGIUM , THE NETHERLANDS OR GERMANY AT A PRICE 2 UNITS OF ACCOUNT PER 100 KG LOWER THAN THE PRICE PREVAILING IN FRANCE , THAT ALLEGATION IS NOT BASED ON ANY COMPARISON OF ACTUAL MARKET PRICES IN THE LIGHT OF ACTUAL RATES OF EXCHANGE , AND CORRESPONDS ONLY TO A PURELY THEORETICAL DEDUCTION FROM THE PROVISIONS OF THE REGULATIONS THEMSELVES . THE STATISTICS SUPPLIED BY THE COMMISSION SHOW THAT EVEN IN THE FEDERAL REPUBLIC OF GERMANY , WHERE THE CORRECTIVE AMOUNT WAS NOT APPLIED TO WHOLE-MILK POWDER , PRODUCTION OF THAT PRODUCT DECLINED SHARPLY AT THE TIME IN QUESTION . CONSEQUENTLY , IT CANNOT BE CONCLUDED THAT THE LEVEL OF IMPORTS INTO THE FEDERAL REPUBLIC OF GERMANY OF WHOLE-MILK POWDER FROM FRANCE WAS APPRECIABLY AFFECTED BY THE FAILURE TO APPLY THE CORRECTIVE AMOUNT .
26AS TO THE COMPLAINT OF THE PLAINTIFF IN THE MAIN ACTION CONCERNING THE SUBSTITUTION OF SKIMMED-MILK POWDER SUPPLEMENTED BY BUTTER-FAT FOR WHOLE- MILK POWDER , IT IS TO BE NOTED THAT THE ARGUMENT CONCERNING ' ' SUBSTITUTION ' ' CONFIRMS THE COMMISSION ' S STATEMENT THAT THEY ARE TWO DIFFERENT PRODUCTS WHICH ARE NOT USUALLY IN COMPETITION WITH ONE ANOTHER . EVEN IF IT WERE ESTABLISHED THAT THE PROVISIONS AT ISSUE WERE THE CAUSE OF THAT SUBSTITUTION , THAT FACT CANNOT BE CONSIDERED IN ITSELF AS CONSTITUTING DISCRIMINATION EITHER BETWEEN PRODUCERS OR BETWEEN CONSUMERS WITHIN THE COMMUNITY WITHIN THE MEANING OF ARTICLE 40 OF THE TREATY .
27THE ANSWER SHOULD THEREFORE BE THAT CONSIDERATION OF THE QUESTIONS RAISED HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF REGULATION NO 725/74 , HAVING REGARD TO ARTICLE 40 ( 3 ) OF THE EEC TREATY .
Decision on costs
COSTS
28THE COSTS INCURRED BY