CELEX: 61991CC0088
Language: en
Date: 1992-04-08
Title: Opinion of Mr Advocate General Van Gerven delivered on 8 April 1992. # Federazione Italiana dei Consorzi Agrari v Azienda di Stato per gli Interventi nel Mercato Agricolo. # Reference for a preliminary ruling: Corte d'appello di Roma - Italy. # Determination of the value of a quantity of lampante virgin olive oil stolen from an intervention warehouse where it was in storage. # Case C-88/91.

OPINION OF ADVOCATE GENERAL
      VAN GERVEN
      delivered on 8 April 1992 (
            *1
         )
      Mr President,
      Members of the Court,
      
               1. 
            
            
               The Corte d'Appello di Roma (Court of Appeal, Rome) has referred to the Court for a preliminary ruling a question on the interpretation of the fourth subparagraph of Article 3(2) of Council Regulation (EEC) No 3247/81 of 9 November 1981, (
                     1
                  ) as amended by Council Regulation (EEC) No 2632/85 of 16 September 1985, (
                     2
                  )and of Section VIII ‘Olive Oil’ of Annex II to that regulation, to which the former provision refers. Section VIII of Annex II reads as follows:
               
                        ‘VIII.
                     
                     
                        Olive Oil
                        For the purposes of applying the provisions dealing with discrepancies in quantities due to theft or loss attributable to identifiable causes, the intervention price for the relevant quality of oil shall be used, increased by all the monthly increments’.
                     
                  The question was raised in a dispute between Federazione Italiana dei Consorzi Agrari (‘Federconsorzi’) and Azienda di Stato per gli Interventi nel Mercato Agricolo (‘AIMA’), the Italian intervention agency, concerning the amount which Federconsorzi had to pay to AIMA in respect of a quantity of oil which was stolen from one of Federconsorzi's warehouses during the 1985/1986 marketing year.
               In order that the main proceedings may be better understood, I shall first indicate the relevant provisions of Community law. They are concerned with fixing the buying-in price for olive oil, on the one hand, and the establishment of the annual accounts with a view to the financing by the European Agricultural and Guarantee Fund (EAGGF), Guarantee Section, of intervention measures involving storage, on the other. Unless I state otherwise, I shall be referring to the provisions which were applicable in the 1985/1986 marketing year, which was when the theft which gave rise to the main proceedings took place.
            
         Relevant legislation
      
               2.
            
            
               I shall start with the provisions on fixing the buying-in price of olive oil offered for intervention.
               In order to achieve the desired stability in the olive oil sector, by Regulation No 136/66/EEC (
                     3
                  ) the Council gave producers and producer groups the possibility to offer olive oil to the competent authorities in the Member States. The intervention agencies designated by the Member States are obliged to purchase at the intervention price the olive oil offered. (
                     4
                  )
               Under Article 4(1) and (2) of Regulation No 136/66, as amended by Regulation No 1562/78 (see footnote 4), the intervention price is to be fixed each year for the standard quality of oil of a type answering one of the descriptions in the annex. However, the last sentence of the first subparagraph of Article 12(1) of Regulation No 136/66 provides that the buying-in price is to be adjusted by means of a scale of price increases and reductions where the description or quality of the oil offered to the intervention agency does not correspond to that for which the intervention price was fixed (and hence does not answer to the aforementioned standard quality).
               The annex to Regulation No 136/66 provides descriptions and definitions for seven types of olive oil, the first of which (‘virgin olive oil’, also known as ‘pure virgin olive oil’) breaks down as follows:
               
                        ‘(a)
                     
                     
                        Extra: olive oil of absolutely perfect flavour, with a free fatty acid content expressed as oleic acid of not more than 1 g per 100 g;
                     
                  
                        (b)
                     
                     
                        Fine: olive oil with the same characteristics as “Extra” but with a free fatty acid content expressed as oleic acid of not more than 1.5 g per 100 g;
                     
                  
                        (c)
                     
                     
                        Ordinary (the expression “semi-fine” may also be used): olive oil of good flavour with a free fatty acid content expressed as oleic acid of not more than 3.3 g per 100 g;
                     
                  
                        (d)
                     
                     
                        Lampante (lamp-oil): off-flavour olive oil or olive oil with a free fatty acid content expressed as oleic acid of more than 3.3 g per 100 g.’
                     
                  
         
               3.
            
            
               In accordance with Article 12(4) of Regulation No 136/66, the Commission laid down, by Regulation (EEC) No 3472/85 of 10 December 1985, (
                     5
                  ) implementing rules governing the buying-in and storage of olive oil by intervention agencies. According to Article 3(1) and (2) of Regulation No 3472/85, the buying-in price is to be ‘that valid on the day of delivery, adjusted in accordance with Article 5 in the case of goods delivered in to the warehouse but not unloaded, allowance being made for the price increases and reductions provided for in this Regulation’, and is to be ‘adjusted by applying to the intervention price such increases and reductions as are specified in the Annex’.
               For the purposes of the proper understanding of this case, I have reproduced the annex to Regulation No 3472/85 in its entirety.
               
                           Description and quality as defined in the Annex to Regulation 136/66/EEC (the degree of acidity represents the free fatty acid content, expressed as grams of oleic acid/100 grams of oil)
                        
                        
                           Price increase
                        
                        
                           Price reduction
                        
                     
                           Virgin olive oil extra
                        
                        
                           17,29
                        
                        
                           —
                        
                     
                           Virgin olive oil, fine
                        
                        
                           12,09
                        
                        
                           —
                        
                     
                           Virgin olive oil, semi fine
                        
                        
                           —
                        
                        
                           —
                        
                     
                           Virgin olive oil, lampante 1o
                           
                        
                        
                            
                        
                        
                           8,14
                        
                     
                           Other virgin olive oils, lampante:
                        
                        
                            
                        
                        
                            
                        
                     
                           — more than 1o, up to and including 8o acidity
                        
                        
                            
                        
                        
                           Reduction increased by 0.32 ECU for each additional tenth of a degree of acidity
                        
                     
                           — more than 8o acidity
                        
                        
                            
                        
                        
                           Reduction increased by 0.35 ECU for each additional degree of acidity
                        
                     
                           Olive oil from olive residues, up to and including 5o acidity
                        
                        
                            
                        
                        
                           123.00
                        
                     
                           Other olive oils from residues:
                        
                        
                            
                        
                        
                            
                        
                     
                           — more than 5o, up to and including 8o acidity
                        
                        
                            
                        
                        
                           Reduction increased by 0.17 ECU for each additional tenth of a degree of acidity
                        
                     
                           — more than 8o acidity
                        
                        
                            
                        
                        
                           Reduction increased by 0.20 ECU for each additional tenth of a decree of acidity
                        
                     It appears from that annex that ‘semi-fine virgin olive oil’ (to which I shall henceforward refer as ‘semi-fine oil’) is the standard quality for which the intervention price is fixed. (
                     6
                  )‘Lampante virgin oil’ (hereinafter ‘lampante oil’) is bought in, also according to that annex, at a price equal to the intervention price, less a reduction which increases with the degree of acidity, starting at ECU 8.4 per 100 kg of oil of 1o acidity.
            
         
               4.
            
            
               I would now turn to the provisions on the establishment of annual accounts with a view to the financing of the intervention of the EAGGF.
               Council Regulation (EEC) No 1883/78 of 2 August 1978 (
                     7
                  ) lays down the general rules for the financing of intervention by the European Agricultural Guidance and Guarantee Fund, Guidance Section. Article 4(1) of that regulation provides that where an intervention measure involves the buying-in and storage of products, the amount financed is to be determined by the annual accounts drawn up by the payment services or agencies, in which the various items of expenditure and revenue have been respectively debited and credited.
               By Regulation No 3247/81, cited above, the Council laid down pursuant to Article 4(3) of Regulation No 1883/78 the accounting rules applicable to intervention measures involving the buying-in, storage and sale of agricultural products for the purpose of drawing up the annual accounts of intervention agencies. Under Article 3(1) of Regulation No 3247/81, a tolerance may be fixed with regard to the preservation of products stored, that is to say, as I understand it, the limit below which missing quantities are not deducted. According to the first subparagraph of Article 3(2) of Regulation No 3241/81, the value of any quantities exceeding the tolerance is to be entered on the credit side of the accounts and is to be calculated in accordance with the following provision:
               ‘Subject to the specific provisions in Annex II, this value shall be calculated by multiplying such quantities by the basic intervention price valid for the standard quality on the first day of the marketing year commencing during the marketing year, increased if necessary by all the monthly increases’.
               Since the initial version of Annex II to Regulation No 3247/81 did not contain specific measures for olive oil, the value of quantities exceeding the tolerance had to fixed in accordance with that version on the basis of the intervention price for the standard quality, that is to say, for semi-fine oil.
            
         
               5.
            
            
               The fourth subparagraph of Article 3(2) of the initial version of Regulation No 3274/81 provides that discrepancies in quantities due to theft or loss attributable to identifiable causes are not to be taken into account for the purposes of calculating the tolerance. According to that provision, the value of those quantities is be entered on the credit side of the accounts on the date when the theft or loss took place or when the theft or loss was noticed. The value is to be determined ‘in accordance with the provisions laid down for quantities exceeding the tolerance’. Consequently, for olive oil for which no specific provisions are laid down in Annex II, that value should be determined on the basis of the intervention price for that standard quality. According to the last sentence of Article 3(2), the intervention price to be used is that for the current marketing year, increased if necessary by all the monthly increases.
               The fourth subparagraph of Article 3(2) of Regulation No 3247/81 was amended by Regulation No 2632/85. The provision according to which discrepancies in quantities due to theft or loss were to be determined in accordance with the provisions relating to quantities exceeding the tolerance was supplemented by the phrase ‘subject to the specific provisions in Annex II’. At the same time, Section VIII ‘Olive Oil’, the text of which is quoted in section 1 above, was added to Annex II. It appears that, as from the entry into force of amending Regulation No 2632/85 — and hence for thefts committed during the 1985/1986 marketing year, which is the relevant one for these proceedings, — the value of the quantities of olive oil stolen was to be determined on the basis of the intervention price for the relevant
                  quality. In other words, for that time onwards, the general rule that the value of qualities misappropriated should be determined on the basis of the intervention price for the standard quality was no longer applicable.
               However, the rule laid down by Regulation No 2632/85 was not a long time in force. By Regulation (EEC) No 3492/90 of 27 November 1990, (
                     8
                  ) the Council repealed Regulation No 3247/81 and empowered the Commission to determine the value of quantities misappropriated (see Article 5(2) and Article 8 of Regulation No 3492/90). By Regulation (EEC) No 3597/90 of 12 December 1990, (
                     9
                  ) the Commission, acting pursuant to that power, drew up new accounting rules. According to Article 2(1) of that regulation, the value of missing quantities due to theft is to be calculated ‘by multiplying these quantities by the basic intervention price in force for the standard quality on the first day of the current financial year, increased by 5%’ (my emphasis). That rule is to apply ‘unless special provisions in the Annex provide otherwise’. No special provisions are to be found in the annex for olive oil. Lastly, Article 2(5) of Regulation No 3597/90 provides that, for the purpose of fixing the quantities referred to in paragraph 1, ‘any increases, premiums, reductions, percentages and coefficients applicable to the intervention price at the time of purchase shall not be taken into consideration’.
            
         The main proceedings and the Court's jurisdiction
      
               6.
            
            
               By a contract of 1 February 1986, AIMA entrusted the successful tenderer, Federconsorzi, with the practical implementation of intervention measures (including buying-in and sales) in the olive oil market during the 1985/1986 marketing year, as it had in the preceding years. In its observations submitted to the Court, the Italian Government stated that Federconsorzi's mandate had to be carried out in accordance with the tendering terms set out in the Ministerial Decree of 12 April 1984 (
                     10
                  ) and in the ‘atto disáplinare’ of 24 September 1985. (
                     11
                  )
               The second paragraph of Article 3 of the contract set out Federconsorzi's obligations in the event of the loss of the olive oil which it was responsible for storing in the following terms:
               ‘the contractor shall be liable ... for any losses for which he is responsible to the amount stipulated by the Community legislation in force’.
               On 25 August 1986 (that is, during the 1985/1986 marketing year), it was noticed that 6127.33 quintals of lampante virgin olive oil which had been bought in during the 1983/1984 marketing year had been stolen from Federconsorzi's warehouse in Gioia Tauro. It is common ground that the oil in question was ‘lampante virgin olive oil’ bought-in during the 1983/1984 marketing year. In contrast, the acidity of the stolen oil is in dispute. Federconsorzi claims that the acidity to be taken into account is 7o, whereas AIMA claims that the degree of acidity cannot be determined with certainty. Nevertheless, it is certain that in no event could the olive oil stolen have had an acidity of 1o, since the national court indicates that, according to the facts determined by the arbitration board (see section 7 below), during the 1983/1984 marketing year, that is to say, the year in which the stolen oil was bought in, no olive oil with an acidity of 1o was bought in at Gioia Tauro, but only lots in the range 2o to 13.8o.
            
         
               7.
            
            
               A dispute arose between AIMA and Federconsorzi as to the interpretation of the provisions of the Community legislation setting out the way in which the value of the stolen olive oil had to be calculated. According to the second paragraph of Article 3 of the contract, which I quoted earlier, the relevant provisions of the Community legislation were to be binding on the parties. According to AIMA, which relies on an opinion endorsing its view which was given to it by the Commission of the European Communities at its request, those provisions have to be interpreted as meaning that the intervention agency should be paid the equivalent value of the quantities misappropriated at the buying-in price applicable in the 1985/1986 marketing year, including monthly increases, for ‘lampante virgin olive oil of 1o acidity’. In contrast, Federconsorzi argues that the reimbursement in respect of the quantities misappropriated should be effected on the basis of the lower buying-in price for ‘lampante virgin olive oil of 7o acidity’ applicable in the 1983/1984 marketing year or, in the alternative, in the 1985/1986 marketing year.
               In accordance with the contract, the dispute was submitted to an arbitration board. In its award, which was declared enforceable on 14 January 1989 by the Pretore di Roma (Magistrate, Rome), the arbitration board opted for a compromise solution: it held that the sum to be credited to AIMA had to be calculated on the basis of the buying-in price applicable in the 1985/86 marketing year, with any monthly increases due at the date of the theft, for quantities with a low degree of acidity bought in during the 1983/1984 marketing year (that is to say, as is clear from the national court's question, for lampante olive oil of the lowest degree of acidity recorded in the warehouse concerned during the 1983/1984 marketing year, in which the stolen oil was bought in, namely 2o).
            
         
               8.
            
            
               Federconsorzi brought an action against AIMA in the Corte d'Appello di Roma to have the arbitration award set aside. AIMA lodged a cross-appeal also claiming that the award should be set aside. The Corte d'Appello considered that its determination depended on the way in which the relevant provisions of Community law had to be interpreted, and referred the following question to the Court of Justice for a preliminary ruling:
               ‘Are the provisions of Community law contained in the fourth subparagraph of Article 3(2) and in Section VIII of Annex II to Council Regulation (EEC) No 3247/81, as amended by Article 1 of Council Regulation (EEC) No 2632/85, in conjunction with the provisions contained in Regulation (EEC) No 136/66/EEC of the Council and in Commission Regulation (EEC) No 3472/85, to be interpreted as meaning that, for the purposes of European Agricultural Guidance and Guarantee Fund accounts, the value of lampante virgin olive oil, in intervention storage and subsequently stolen, is to be determined, having regard to the quantities stolen, on the basis of the price fixed — in the marketing year in which the theft was noticed, increased by all the monthly increments — for lampante virgin olive oil with 1o acidity or with the lowest degree of acidity recorded at the warehouse in question in the marketing year to which the stolen oil relates, or must that value be determined by specific and precise reference to the price paid on entry into store for the quantity and quality of the stolen oil, or by reference to a different criterion from those proposed above?’
            
         
               9.
            
            
               The question relating to the interpretation of Regulation No 3247/81 has been referred by the national court in connection with a dispute which is not governed directly by that regulation, but by an agency contract which refers to that regulation. It therefore has to be considered whether the Court has jurisdiction under Article 177 of the EEC Treaty to give a preliminary ruling on the national court's question.
               Ever since the judgment in Dzodzi, (
                     12
                  ) it is clear that the Court has jurisdiction to give a preliminary ruling on a provision of Community law where the national law of a Member State refers to the content of the provision in question in order to determine the rules applicable to a situation which is purely internal to that State (paragraph 36 of the judgment). In view of the reason which prompted the Court to take that view — namely to forestall future differences of interpretation (paragraph 37 of the judgment) — it is plain that the Court also has jurisdiction to give a preliminary ruling on a provision of Community law to whose content reference is made, not by a national provision, but by a clause in a contract in order to determine the parties' obligations.
               However, it is worth recalling (see, inter alia, paragraph 42 of the judgment in Dzodzi) that the Court is competent only to consider the provisions of Community law. In its reply to the national court, it is not competent to the Court to take account of the system of the contract or of provisions of national law (for example, the Ministerial Decree of 12 April 1984 or the ‘atto disciplinare’ of 24 September 1985 to which I referred earlier) which may help to determine the scope of the contractual obligations. The question whether Community law has to be applied in full to the contractual relationship between the parties, that is to say, to the exclusion of national or contractual provisions, is therefore a matter for the assessment of the national court.
            
         Answer to the question raised
      
               10.
            
            
               In its question, the national court essentially seeks to establish how the expression ‘the intervention price for the relevant quality of oil’ in Section VIII of Annex II to Regulation No 3247/81, as amended by Regulation No 2632/85, should be interpreted (see the second paragraph of section 5 above), since, according to the fourth subparagraph of Article 3(2) of Regulation No 3247/81, as amended, it is that price which should be used to determine the value of the quantities of oil which went missing on account of a theft noticed during the 1985/1986 marketing year.
               More specifically, the national court is asking which of the following four prices should be used to determine the value of the stolen oil:
               
                        (l)
                     
                     
                        the price applicable to 1o lampante olive oil in the marketing year when the theft was noticed;
                     
                  
                        (2)
                     
                     
                        the price applicable, in the marketing year when the theft was noticed, to lampante olive oil of the lowest acidity recorded in the warehouse in the marketing year when the oil was bought in;
                     
                  
                        (3)
                     
                     
                        the price which was paid when oil of the same quality as that which was later stolen was bought in; or
                     
                  
                        (4)
                     
                     
                        some other price.
                     
                  It is clear from this Ust of possible interpretations that a distinction has to be made between two aspects: first, there is the question of the relevant time (when the theft was carried out or noticed or when the stolen oil was bought in); secondly, there is the question of the degree of acidity to be adopted for the lampante olive oil in respect of which reimbursement is to be made. I shall consider those two questions in turn.
            
         
               11.
            
            
               As regards the relevant time, the Italian Government and the Commission agree with the arbitration board. According to the latter, the value of the stolen oil should be determined on the basis of the buying-in price for the relevant quality which was applicable at the time when the theft was noticed, that is to say, on the basis of the buying-in price applicable in the 1985/1986 marketing year, increased by the monthly increases which had taken effect at that time.
               In view of the second and third sentences of the fourth subparagraph of Article 3(2) of Regulation No 3247/81, I take the view that, in a case such as this where the date on which the theft was carried out is apparently unknown, (
                     13
                  ) the reimbursement in respect of the stolen oil should be made on the basis of the buying-in price for the relevant quality of oil which was applicable at the time when the theft was noticed. Those provisions read as follows:
               ‘The value of these quantities shall be entered on the credit side of the accounts on the date when the theft or loss took place or when the theft or loss was noticed; the value shall be determined in accordance with the provisions laid down for quantities exceeding the tolerance. However, if on that date the new marketing year has not yet begun, the intervention price for the current marketing year shall be used, increased if necessary by all the monthly increases.’
               The expressions ‘the new marketing year’ and ‘monthly increases’ clearly refer to the price which was applicable at the time when the theft took place or was noticed.
            
         
               12.
            
            
               As regards the relevant quality, the parties agree with the arbitration board that, in view of the amendment made by Regulation No 2632/85 to Regulation No 3247/81 (see the second paragraph of section 5 above), the value of oil stolen in the 1985/1986 marketing year should be determined in accordance with the specific provisions applicable to the olive oil sector, that is to say, on the basis of the intervention price for the relevant quality and therefore no longer on the basis of the intervention price for the standard quality. Consequently, they agree that in this case the basis should be the buying-in price of lampante oil (that is to say, the type of oil which was stolen) and not that of semi-fine oil (the standard quality). What is in dispute is simply whether the reduction for the decree of acidity of the stolen oil should be taken into account. Essentially, the dispute turns on whether the expression ‘the relevant quality’ in Section VIII of Annex II to Regulation No 3247/81, as amended, also covers the degree of acidity and, if so, what degree.
               On this subject, the Italian Government and the Commission submit that the term ‘quality’ refers to the four types of oil (extra, fine, ordinary and lampante) referred to in the version of the annex to Regulation No 136/66 set out in section 2 above. Lampante oil with a different degree of acidity could not be regarded as constituting a separate ‘quality’. On this view, the expression ‘the relevant quality’ in Regulation No 3247/81 refers solely to one of the abovementioned four types of oil and, since lampante oil was stolen, the relevant price is that for that type of oil, less the reduction for a degree of acidity of 1o.
            
         
               13.
            
            
               I cannot agree. It is true that the annex to Regulation No 136/66 does set out descriptions and definitions for four types of virgin olive oil. But even if each of those four types of oil should be regarded as quality categories, that does not mean that when olive oil of the quality ‘lampante’ has been stolen, a reduction for a degree of acidity other than 1o should not be applied. The opposite view is the correct one. According to the last sentence of the first subparagraph of Article 12(1) of Regulation No 136/66, as amended by Regulation No 1562/78 (see section 2 above), the buying-in price is to be adjusted by means of a scale of price increases and reductions ‘where the description or quality of the oil offered to the intervention agency does not correspond to that for which the intervention price was fixed’ (my emphasis).
               On the basis of that provision, which expressly refers to the quality as well as to the description, the Commission, in the annex to Regulation No 3472/85, divided ‘lampante’ oil under the heading ‘Description and quality as defined in the Annex to Regulation 136/66/EEC’ into categories determined by the degree of acidity: alongside ‘Virgin olive oil, lampante 1o’ (to which a price reduction of ECU 8.14/100 kg applies), there are other lampante oils of ‘more than 1o, up to and including 8o acidity’ (for that subcategory, the price reduction is increased by ECU 0.32 for each additional tenth of a degree of acidity) and of ‘more than 8o acidity’ (for which the reduction is increased by ECU 0.35 for each additional tenth of a degree of acidity). Since those subcategories appear in the column headed by the words ‘Description and quality’ and the reduction in the intervention price depends on the degree of acidity of the lampante oil, I infer that the degree of acidity helps to determine the ‘relevant quality’ of lampante olive oil. Consequently, in order to determine the value of the stolen lampante oil, in accordance with Section VIII of Annex II to Regulation No 3247/81 account should be taken of the acidity of the oil.
            
         
               14.
            
            
               The history of the legislation bears out this view. As I have already mentioned (in section 5), Council Regulation No 3247/81 provides, as a general rule, that the value of the quantities stolen has to be determined on the basis of the intervention price for the standard quality. That general rule, which also applied to the olive oil sector until the 1984/1985 marketing year, therefore entailed a flat-rate reimbursement, which allowed no account to be taken of the actual quality of the oil stolen. Consequently, the value to be reimbursed was sometimes greater than the true value (when oil of lower quality than the standard quality had been stolen) and sometimes lower (where oil of better quality than the standard quality had been taken). However, in Regulation No 2632/85, the Council discarded this flat-rate rule for the olive oil sector: as of the 1985/1986 marketing year, the intervention price for the relevant quality of olive oil had to be taken into account.
               Subsequently, the Commission (authorized by Council Regulation No 3492/90, which replaced Regulation No 3247/81) introduced yet another new rule by means of Regulation No 3597/90 (see the third paragraph of section 5 above). The general rule introduced by Article 2(1) of Commission Regulation No 3597/90 still provides — but now once again for the olive oil sector, for which there are now no specific provisions — for flat-rate reimbursement, determined on the basis of the intervention price for the standard quality of the products stolen, but the rule is stricter than it used to be, since the price is now increased by 5%. In its observations submitted to the Court, the Commission states that a deliberate decision was taken to abandon specific provisions on olive oil on account of the fact that substantial quantities were being stolen inexplicably frequently.
               It appears from this historical survey of the legislation that, by Regulation No 2632/85 and until the entry into force of Commission Regulation No 3587/90, the Council introduced for the olive oil sector a system based on the actual value of the stolen produce, rather than flat-rate determination of their value. Taking into account of the acidity of lampante olive oil therefore better reflects the desire that reimbursement should be based on actual value.
            
         
               15.
            
            
               Thus far, I have not yet given an entirely satisfactory answer to the national court's question. The Italian Government and the Commission point out that virgin olive oil is stored by marketing year on the basis of the four types of oil mentioned in the annex to Regulation No 136/66. As far as lampante oil in particular is concerned, the storage agency could have stored all the oil of that type bought in during a particular marketing year in the same container, irrespective of its degree of acidity. In the view of the Italian Government and the Commission, this means that in the event of theft it is possible in fact to determine that lampante oil bought in during a particular marketing year has been stolen, but impossible to ascertain its degree of acidity.
               Federconsorzi contests this assertion. It points out that, under Article 7(3) of Regulation No 3472/85, the storage agency must keep daily stock records, containing, inter alia, the purchase invoice for each lot bought in and a copy of the analysis certificate. It further maintains that for each lot bought in a whole series of particulars is available, including details of the degree of acidity. It goes on to observe that, under Article 8(3) of Regulation No 3472/85, the storage agency is required to lodge with the intervention agency three representative samples of each storage lot formed so that the oil from each lot can be identified. (
                     14
                  ) It maintains that it is possible to determine from that evidence the acidity — as I understand it, the average acidity — of the stolen lampante oil.
            
         
               16.
            
            
               It appears to me that the question of the degree of acidity of the stolen lampante oil is a matter for the national court to determine in the light of the available evidence, bearing in mind that, in the absence of cogent evidence, the evidential risk should not lie with the Community. The reason for this lies, to my mind, in the Community's interest in protecting its finances against fraud and, more specifically, theft. It seems to me that, in the absence of evidence, the outcome which is most favourable to the Community should be adopted, a view which is borne out by that which the Court has consistently held in relation to the financing in the agricultural sector of payments which the Member States have made unlawfully, that is to say, payments which have not been made in conformity with the Community rules on the financing of expenditure. According to that case-law, (
                     15
                  ) such payments must be borne by the Member States in so far as, even if it is impossible to prove with certainty the extent to which a national measure incompatible with Community law has resulted in an (unlawful) increase in expenditure, the Community authority is bound to refuse to finance all the expenditure in question. (
                     16
                  ) It follows that in case of doubt the burden of proof should be discharged by the person seeking funding for the expenditure, which, in any event, is consistent with the general principle of the law of evidence that the evidential risk is to be borne by the person who cannot fulfil his obligation to prove with certainty the facts (in this case the degree of acidity of the stolen oil) on which the amount of the funding depends.
               This means that if there is probative evidence from which the national court can determine the degree of acidity (the actual figure or an average) of the stolen lot of oil, it must have regard to that degree of acidity. In that connection, the national court may base itself on the stock records of the storage agency or other probative evidence, such as the fact, as mentioned by the arbitration board, that during the marketing year in which the stolen oil was bought in the storage agency did not buy in any 1o lampante oil, which means that oil of that type could not have been stolen. In the event, however, that the available information does not enable the acidity of the stolen oil to be determined with certainty, I consider (in common with the arbitration board) that, for the reasons which I have given above, the value should be determined by reference to the oil with the lowest acidity stored in the warehouse where the theft took place during the marketing year in which the stolen oil was bought in, as this is the most favourable outcome for the Community.
            
         
               17.
            
            
               I propose that the Court's reply to the national court's question should be as follows:
               ‘The fourth subparagraph of Article 3(2) of Council Regulation (EEC) No 3247/81 of 9 November 1981 and Section VIII of Annex II to that regulation, as amended by Council Regulation (EEC) No 2632/85 of 16 September 1985, must be interpreted as meaning that, for the purposes of drawing up the annual accounts on the financing of intervention measures in the form of storage by the European Agricultural Guidance and Guarantee Fund, Guarantee Section, the value of the quantities of lampante virgin olive oil which are missing by reason of theft must be determined by multiplying the quantities stolen by the buying-in price — applicable in the marketing year in which the theft was carried out or noticed, increased by all monthly increments — for the type of oil in question with a degree of acidity corresponding to that of the quantities stolen or, if the degree of acidity of the stolen oil cannot be established with certainty, the buying-in price corresponding to the lowest degree of acidity of the oil stored in the warehouse in which the theft took place during the marketing year in which the lampante oil was bought in.’
            
         (
            *1
         )	Original language: Dutch.
      (
            1
         )	Council Regulation (EEC) No 3247/81 of 9 November 1981 on the financing by the European Agricultural Guidance and Guarantee Fund, Guarantee Section, of certain intervention measures, particularly those involving the buying-in, storage and sale of agricultural products by intervention agencies (OJ 1981 L 327, p. 1).
      (
            2
         )	OJ 1985 L 251, p. 1.
      (
            3
         )	Regulation of the Council No 136/66/EEC of 22 September 1966 on the establishment of a common organization of the market in oils and fats (OJ, English Special Edition 1965-1966, p. 221).
      (
            4
         )	See the first and second sentences of Article 12(1) of Regulation (EEC) No 136/66, as amended by Regulation (EEC) No 1562/78 of 29 June 1978 (OJ 1978 L 185, p. 1).
      (
            5
         )	OJ 1985 L 333, p. 5.
      (
            6
         )	Sec also Article 2 of Council Regulation (EEC) No 1502/85 of 23 May 1985 fixing the production target price, the production aid and the intervention price for olive oil for the 1985/86 marketing year (OJ 1985 L 151, p. 27), according to which the intervention price referred to in Article 1 (ECU 227.62 per 100 kg) relates to semi-fine virgin olive oil with a free fatty acid content, expressed as oleic acid, of 3.3 grams for 100 grams.
      (
            7
         )	OJ 1978 L 216, p. 1.
      (
            8
         )	OJ 1990 L 337, p. 3.
      (
            9
         )	OJ 1990 L 350, p. 43.
      (
            10
         )	Gazzetta Ufficiale della Repubblica Italian (GURI) No 114 of 26 April 1984.
      (
            11
         )	GURI No 235 of 5 October 1985.
      (
            12
         )	Joined Cases C-297/88 and C-197/89 Dzodzi v Belgian State [1990] ECR I-3763. See also Case C-231/89 Gmurzynska [1990] ECR I-4003 and Case C-384/89 Tomatis [1991] ECR I-127 (summary publication only).
      (
            13
         )	The national court simply sutes that the theft was discovered on 25 August 1986.
      (
            14
         )	Article 9(2) of Regulation No 3472/85 provides that in cases where the intervention agency entrusts intervention to storage agencies it must check on a random basis that the oil stored corresponds to the samples specified in Article 8(3).
      (
            15
         )	See, most recently, Case C-197/90 Italy v Commission [1992] ECR I-1, paragraph 38.
      (
            16
         )	See in particular Case 347/85 United Kingdom v Commis-sión [1988] ECR 1749, paragraph 13.