SIMPLY ON THE BASIS OF ALLEGATIONS PRESENTED BY THE PLAINTIFF, CAN MAKE AN ORDER AGAINST THE OTHER PARTY WITHOUT HAVING GIVEN HIM THE OPPORTUNITY TO PRESENT HIS OBSERVATIONS . THE PROCEEDINGS ARE CONTESTED ONLY IN THE EVENT OF THE PARTY AGAINST WHOM THE ORDER IS MADE RAISING OBJECTIONS TO THE DECISION . IN THE COURSE OF THE PROCEEDINGS THE PARTY CONCERNED HAS NO OPPORTUNITY TO SUBMIT HIS OBSERVATIONS ON THE EXPEDIENCY OF A REFERENCE FOR A PRELIMINARY RULING OR, IF NEED BE, TO TAKE PART OR COLLABORATE WITH THE NATIONAL COURT IN DRAWING UP THE QUESTIONS TO BE REFERRED TO THE COURT OF JUSTICE .
3 ACCORDING TO ARTICLE 177 OF THE TREATY, THE PROCEDURE REGARDING PRELIMINARY RULINGS IS OPEN TO ANY NATIONAL COURT OR TRIBUNAL . IT IS SUFFICIENT TO DETERMINE THAT THE PRETORE, IN HEARING THE APPLICATION FOR THE GRANT OF AN ORDER, IS EXERCISING THE FUNCTIONS OF A COURT OR TRIBUNAL WITHIN THE MEANING OF ARTICLE 177 - AS HAS MOREOVER PREVIOUSLY BEEN DECIDED - AND THAT AN INTERPRETATION OF COMMUNITY LAW HAS BEEN CONSIDERED BY THAT COURT AS ESSENTIAL FOR IT TO ARRIVE AT A DECISION, WITHOUT ITS BEING NECESSARY FOR THE COURT OF JUSTICE TO CONSIDER THE STAGE OF THE PROCEEDINGS AT WHICH THE QUESTION WAS PUT . ARTICLE 177 DOES NOT MAKE THE REFERENCE TO THE COURT SUBJECT TO WHETHER THE PROCEEDINGS AT THE CONCLUSION OF WHICH THE NATIONAL COURT HAS DRAWN UP THE REFERENCE FOR A PRELIMINARY RULING WERE OR WERE NOT DEFENDED .
AS TO THE SUBSTANCE OF THE CASE
4 THE QUESTIONS PUT ARE DIRECTED SUBSTANTIALLY TO ENQUIRING WHETHER THE RIGHT TO THE REFUND LAID DOWN BY REGULATIONS NOS 367/67 AND 2085/68 FOR BROKEN RICE USED BY THE BREWING INDUSTRY IS VESTED EXCLUSIVELY IN THE PRODUCER OR WHETHER THE BENEFIT OF THE REFUND MAY IN CERTAIN CIRCUMSTANCES BE CLAIMED DIRECTLY BY THE BREWERY USING THE RICE .
WHEREAS THE FIRST AND SECOND QUESTIONS RELATE TO THE ECONOMIC OBJECTIVE PURSUED BY THE ABOVE REGULATIONS,
- THE THIRD QUESTION ENQUIRES WHETHER A BREWER WHO HAS PAID FOR BROKEN RICE AT THE 'NORMAL' MARKET PRICE - THAT IS, THE PRICE FIXED WITHOUT TAKING ACCOUNT OF THE PAYMENT OF THE REFUND - CAN ASSERT A RIGHT TO BENEFIT DIRECTLY FROM IT; AND
- THE FOURTH QUESTION ENQUIRES WHETHER MEMBER STATES CAN, BY DOMESTIC IMPLEMENTING LEGISLATION, MAKE THE EXERCISE OF ANY RIGHT ON THE PART OF THE BREWER TO PAYMENT OF THE REFUND SUBJECT TO THE PRODUCTION OF THE WRITTEN AGREEMENT OF THE PRODUCER OF THE BROKEN RICE .
5 IN PURSUANCE OF ARTICLE 9 OF REGULATION NO 359/67 OF THE COUNCIL OF 25 JULY 1967 ON THE COMMON ORGANIZATION OF THE MARKET IN RICE ( OJ NO 174, P . 1 ), A 'PRODUCTION REFUND' SHALL BE GRANTED FOR BROKEN RICE WHICH HAS BEEN USED EITHER BY THE STARCH INDUSTRY OR BY THE BREWING INDUSTRY .
THIS PROVISION CORRESPONDS TO THAT OF ARTICLE 11 OF REGULATION NO 120/67 OF THE COUNCIL OF 13 JUNE 1967