HIS OWN LAND AT BAD DRIBURG IN THE FEDERAL REPUBLIC OF GERMANY ON WHICH HE KEPT A HERD OF DAIRY COWS , APPLIED FOR AND OBTAINED A PREMIUM FOR THE NON-MARKETING OF MILK AND MILK PRODUCTS . IN ACCORDANCE WITH ARTICLE 2 ( 2 ) ( A ) OF COUNCIL REGULATION ( EEC ) NO 1078/77 HE UNDERTOOK NOT TO MARKET MILK OR MILK PRODUCTS FOR A PERIOD OF FIVE YEARS .
4 IN 1981 DR VON MENGES LEASED HIS FARM TO A FARMER WHO PLANNED , INTER ALIA , TO USE IT TO RAISE MILK SHEEP . DR VON MENGES INQUIRED OF THE COMPETENT AUTHORITIES WHETHER THE KEEPING OF MILK SHEEP AND THE SALE OF EWE ' S MILK WAS COMPATIBLE WITH THE UNDERTAKINGS WHICH HE HAD GIVEN WHEN APPLYING FOR THE NON-MARKETING PREMIUM AND WITH WHICH HIS TENANT HAD ALSO AGREED TO COMPLY . HIS INQUIRY WAS ANSWERED IN THE NEGATIVE . HE THEN APPLIED TO THE GERMAN COURTS FOR A DECLARATION THAT THE MARKETING OF EWE ' S MILK AND EWE ' S MILK PRODUCTS WAS NOT PREJUDICIAL TO THE GRANT OF THE NON-MARKETING PREMIUM .
5 THOSE ARE THE CIRCUMSTANCES IN WHICH THE NATIONAL COURT REFERRED THE FOLLOWING QUESTION TO THE COURT OF JUSTICE :
' ARE EWE ' S MILK AND EWE ' S MILK PRODUCTS COVERED BY THE TERMS ' ' MILK AND MILK PRODUCTS ' ' APPEARING IN ARTICLE 2 ( 2 ) ( A ) OF COUNCIL REGULATION ( EEC ) NO 1078/77 OF 17 MAY 1977 INTRODUCING A SYSTEM OF PREMIUMS FOR THE NON-MARKETING OF MILK AND MILK PRODUCTS AND FOR THE CONVERSION OF DAIRY HERDS?
'
6 WRITTEN OBSERVATIONS HAVE BEEN SUBMITTED BY DR VON MENGES , THE LAND OF NORDRHEIN-WESTFALEN AND THE COMMISSION OF THE EUROPEAN COMMUNITIES .
7 DR VON MENGES SUGGESTS THAT THE QUESTION SHOULD BE ANSWERED IN THE NEGATIVE , ON THE GROUND THAT , EVEN THOUGH THERE IS NO DEFINITION OF ' MILK ' IN COMMUNITY LAW , ' MILK ' AND ' COW ' S MILK ' ARE INEVITABLY EQUATED OWING TO THE VERY CLOSE CONNECTION WHICH EXISTS BETWEEN THE AIMS OF THE COMMON ORGANIZATION OF THE MARKET IN MILK AND MILK PRODUCTS AND THE AIMS OF THE COMMON ORGANIZATION OF THE MARKET IN BEEF AND VEAL . HE ALSO REFERS TO A NUMBER OF PROVISIONS OF COMMUNITY LEGISLATION ON MILK WHICH IN HIS VIEW MAKE NO SENSE UNLESS ' MILK ' IS UNDERSTOOD ONLY AS COW ' S MILK .
8 THE LAND OF NORDRHEIN-WESTFALEN ARGUES THAT THE COMMON CUSTOMS TARIFF , ' BASIC ' REGULATION NO 804/68 AND INTERNATIONAL RULES , SUCH AS THE FAO CODE OF PRINCIPLES , SUPPORT A BROADER INTERPRETATION OF THE TERM ' MILK ' . IT CONTENDS THAT NONE OF THOSE INSTRUMENTS CONTAIN PROVISIONS EXPRESSLY EXCLUDING ' EWE ' S MILK ' FROM THE DEFINITION OF ' MILK ' .
9 THE COMMISSION CONTENDS THAT THE OBJECT OF THE PREMIUM SYSTEM , WHICH IS TO HELP TO