1 BY AN ORDER OF 1 NOVEMBER 1978 WHICH WAS RECEIVED AT THE COURT REGISTRY ON 3 NOVEMBER 1978 THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN REFERRED , UNDER ARTICLE 177 OF THE TREATY , FOUR QUESTIONS TO THE COURT ON THE INTERPRETATION AND VALIDITY OF VARIOUS PROVISIONS OF REGULATION ( EEC ) NO 2759/75 OF THE COUNCIL OF 29 OCTOBER 1975 ON THE COMMON ORGANIZATION OF THE MARKET IN PIGMEAT ( OFFICIAL JOURNAL L 282 , P . 1 ), REGULATION ( EEC ) NO 2763/75 OF THE COUNCIL OF 29 OCTOBER 1975 LAYING DOWN GENERAL RULES FOR GRANTING PRIVATE STORAGE AID FOR PIGMEAT ( OFFICIAL JOURNAL L 282 , P . 19 ) AND COMMISSION REGULATION ( EEC ) NO 1889/76 OF 29 JULY 1976 LAYING DOWN DETAILED RULES FOR GRANTING PRIVATE STORAGE AID FOR PIGMEAT ( OFFICIAL JOURNAL L 206 , P . 82 ).
2 THOSE QUESTIONS HAVE BEEN RAISED IN THE CONTEXT OF AN ACTION BETWEEN THE PRODUKTSCHAP VOOR VEE EN VLEES , THE INTERVENTION AGENCY COMPETENT IN THE NETHERLANDS FOR THE GRANTING OF STORAGE AIDS , THE RESPONDENT IN THE MAIN ACTION , AND AN UNDERTAKING , THE APPELLANT IN THE MAIN ACTION , WHICH HAD CONCLUDED A NUMBER OF CONTRACTS FOR THE STORAGE OF PIGMEAT WITH THE VOEDSELVOORZIENINGS IN- EN VERKOOPBUREAU , HEREINAFTER REFERRED TO AS ' ' THE V.I.B . ' ' , THE INTERVENTION AGENCY COMPETENT IN THE NETHERLANDS FOR THE CONCLUSION OF STORAGE CONTRACTS AND FOR SETTLING MATTERS CONCERNING DEPOSITS LODGED BY STORERS . SINCE THE APPELLANT IN THE MAIN ACTION HAD FAILED IN CONNEXION WITH CERTAIN STORAGE OPERATIONS TO SEND TO THE V.I.B . WITHIN THE PERIOD LAID DOWN THE DOCUMENTS RELATING TO THOSE OPERATIONS THE V.I.B . DECIDED THAT THE DEPOSITS LODGED IN RESPECT OF THE STORAGE CONTRACTS IN QUESTION SHOULD BE FORFEITED . FOR THE SAME REASON THE PRODUKTSCHAP VOOR VEE EN VLEES REFUSED TO GRANT THE STORAGE AID REQUESTED BY THE APPELLANT IN THE MAIN ACTION , WHICH ACCORDINGLY INSTITUTED PROCEEDINGS BEFORE THE NATIONAL COURT . QUESTION I
3 THE FIRST QUESTION SUBMITTED BY THE COLLEGE IS INTENDED TO ESTABLISH WHETHER POWER TO TAKE DECISIONS CONCERNING THE APPLICATION OF THE RULES LAID DOWN BY THE PROVISIONS OF REGULATION NOS 2759/75 , 2763/75 AND 1889/76 IS HELD BY THE NATIONAL INTERVENTION AGENCIES OR BY THE MEMBER STATES .
4 IT MUST BE NOTED IN THIS CONNEXION THAT THE COMMUNITY REGULATIONS IN QUESTION DID NOT DETERMINE WHICH INSTITUTIONS IN EACH MEMBER STATE ARE COMPETENT TO TAKE THE INTERVENTION MEASURES ENVISAGED AND ASSIGNED TO THE MEMBER STATES THE TASK OF DESIGNATING THE SAID INSTITUTIONS ( SEE ARTICLE 4 ( 3 ) OF REGULATION NO 2759/75 ).
5 IT IS ACCORDINGLY FOR EACH MEMBER STATE TO DETERMINE THE INSTITUTIONS WHICH ARE EMPOWERED WITHIN ITS DOMESTIC LEGAL SYSTEM TO ADOPT MEASURES IN IMPLEMENTATION OF THE ABOVE-MENTIONED COMMUNITY REGULATIONS . SINCE THE POSSIBILITY WAS NOT EXPRESSLY EXCLUDED BY THE SAID REGULATIONS , THE MEMBER STATES MAY APPORTION AMONGST SEVERAL NATIONAL INSTITUTIONS THE TASK OF ADOPTING THE VARIOUS NECESSARY IMPLEMENTING MEASURES . IN THIS LATTER CASE IT IS HOWEVER INCUMBENT ON THE SAID NATIONAL INSTITUTIONS TO ENSURE BY APPROPRIATE MEANS THAT THE MEASURES WHICH THEY ADOPT ARE CO-ORDINATED IN SUCH A WAY THAT THEY DO NOT JEOPARDIZE THE PROPER FUNCTIONING OF THE ORGANIZATION OF THE MARKET .
6 THE REPLY TO QUESTION I MUST THEREFORE BE THAT THE POWER TO TAKE DECISIONS WITH REGARD TO THE APPLICATION OF THE RULES LAID DOWN BY THE PROVISIONS OF REGULATIONS NOS 2759/75 , 2763/75 AND 1889/76 IS HELD BY THE INSTITUTIONS DESIGNATED FOR THAT PURPOSE BY EACH MEMBER STATE . QUESTION II
7 IN THE SECOND PLACE THE COURT OF JUSTICE IS ASKED TO STATE WHETHER ARTICLE 6 ( 2 ) OF REGULATION NO 1889/76 MUST BE INTERPRETED AS MEANING THAT THE RIGHT TO PAYMENT OF AN AID MUST BE CONSIDERED TO HAVE BEEN ACQUIRED IF ALL THE OBLIGATIONS SET OUT IN ARTICLE 3 ( 2 ) ( A ) OF THAT REGULATION HAVE BEEN FULFILLED IN THEIR ENTIRETY AND INTER ALIA THE DOCUMENTS RELATING TO THE STORAGE HAVE BEEN SENT , ALBEIT TOO LATE , TO THE INTERVENTION AGENCY OR WHETHER ON THE OTHER HAND ARTICLE 6 ( 2 ) OF THE ABOVE-MENTIONED REGULATION MUST BE INTERPRETED AS MEANING THAT THE STORER CANNOT CLAIM THE RIGHT TO AN AID IF THE DOCUMENTARY PROOF OF STORAGE HAS NOT BEEN SENT TO THE INTERVENTION AGENCY ' ' WITHOUT DELAY ' ' .
8 ARTICLE 3 ( 2 ) OF REGULATION NO 1889/76 PROVIDES THAT CONTRACTS CONCERNING THE PRIVATE STORAGE OF PRODUCTS IN THE PIGMEAT SECTOR CONCLUDED WITH INTERVENTION AGENCIES MUST IN PARTICULAR IMPOSE THE FOLLOWING OBLIGATIONS ON THE STORER : ' ' ( A ) AT HIS OWN RISK AND EXPENSE TO TAKE THE AGREED QUANTITY OF THE PRODUCT INTO STORE WITHIN THE TIME-LIMITS LAID DOWN AND TO STORE IT FOR THE STIPULATED PERIOD , AND DURING THAT PERIOD NOT TO ALTER THE STORED PRODUCTS IN ANY WAY OR EXCHANGE THEM FOR OTHER PRODUCTS ' ' . ARTICLE 3 ( 2 ) ALSO PROVIDES THAT THE CONTRACT CONCLUDED BETWEEN THE INTERVENTION AGENCY AND THE STORER MUST IN ADDITION IMPOSE A NUMBER OF OTHER CONDITIONS WHICH ARE PRINCIPALLY INTENDED TO PERMIT THE AGENCY TO CHECK THAT THE UNDERTAKINGS GIVEN BY THE STORER ARE COMPLIED WITH , IN PARTICULAR THAT REQUIRING HIM : ' ' ( C ) TO FORWARD TO THAT INTERVENTION AGENCY WITHOUT DELAY THE DOCUMENTS RELATING TO THE VARIOUS STORAGE OPERATIONS ' ' .
9 ARTICLE 6 ( 2 ) OF REGULATION NO 1889/76 PROVIDES THAT : ' ' WITHOUT PREJUDICE TO THE OTHER OBLIGATIONS OF THE STORER , AID MAY ONLY BE CLAIMED IF THE OBLIGATIONS SET OUT IN ARTICLE 3 ( 2 ) ( A ) ARE FULFILLED IN THEIR ENTIRETY ' ' .
10 IT ACCORDINGLY APPEARS FROM ARTICLE 3 ( 2 ) ( A ), READ IN CONJUNCTION WITH ARTICLE 6 ( 2 ), THAT THE REGULATION DRAWS A DISTINCTION BETWEEN , ON THE ONE HAND , THE PRINCIPAL OBLIGATIONS WHICH ARE INCUMBENT ON THE STORER UNDER THE STORAGE CONTRACT , THE FULFILMENT OF WHICH IS A CONDITION OF ACQUISITION OF THE RIGHT TO THE AID AND , ON THE OTHER HAND , OBLIGATIONS INTENDED TO PERMIT THE SUPERVISION OF THE STORAGE OPERATIONS . THUS ARTICLE 6 ( 2 ) OF THE REGULATION PRECLUDES THE STORER FROM CLAIMING THE AID ONLY IF THE PRINCIPAL OBLIGATIONS HAVE NOT BEEN FULFILLED IN THEIR ENTIRETY .
11 IT FOLLOWS THAT , ALTHOUGH THE STORER CANNOT CLAIM PAYMENT OF THE AID IF HE HAS NOT IN PARTICULAR SENT TO THE INTERVENTION AGENCY THE DOCUMENTS RELATING TO THE STORAGE OPERATIONS , THE MERE FACT THAT HE DID NOT DO SO WITHIN THE PRESCRIBED PERIOD DOES NOT IN ITSELF ENTAIL THE LOSS OF THE RIGHT TO AID WHERE THE PRINCIPAL OBLIGATIONS IMPOSED IN THE CONTRACT HAVE BEEN FULFILLED IN THEIR ENTIRETY .
12 THE REPLY TO QUESTION II MUST ACCORDINGLY BE THAT BELATED TRANSMISSION TO THE COMPETENT INTERVENTION AGENCY OF THE DOCUMENTS RELATING TO THE VARIOUSSTORAGE OPERATIONS DOES NOT PREVENT THE ACQUISITION OF THE RIGHT TO AID WITHIN THE MEANING OF ARTICLE 6 ( 2 ) OF REGULATION NO 1889/76 PROVIDED THAT THE OBLIGATIONS SET OUT IN ARTICLE 3 ( 2 ) OF THE SAID REGULATION HAVE BEEN FULFILLED IN THEIR ENTIRETY . QUESTIONS III AND IV
13 FINALLY , THE COURT IS REQUESTED TO DEFINE THE SCOPE AND PRONOUNCE UPON THE VALIDITY OF ARTICLE 5 ( 2 ) OF COMMISSION REGULATION NO 1889/76 WITH PARTICULAR REFERENCE TO THE PROVISIONS LAID DOWN IN ARTICLE 4 ( 2 ) ( B ) OF REGULATION NO 2763/75 OF THE COUNCIL .
14 ARTICLE 4 ( 2 ) ( B ) OF THE REGULATION OF THE COUNCIL PROVIDES THAT : ' ' ONLY APPLICANTS WHO HAVE GIVEN SECURITY FOR THE FULFILMENT OF THEIR CONTRACT OBLIGATIONS BY LODGING A DEPOSIT , WHICH SHALL BE FORFEITED IN WHOLE OR IN PART IF THESE ARE NOT FULFILLED OR ARE ONLY PARTIALLY FULFILLED , SHALL BE PERMITTED TO TENDER AND TO CONCLUDE A CONTRACT ' ' . ON THE SPECIFIC POINT OF THE ACTION TO BE TAKEN WITH REGARD TO THE DEPOSIT WHERE THE CONTRACTUAL OBLIGATIONS HAVE NOT BEEN FULFILLED ARTICLE 5 ( 2 ) OF COMMISSION REGULATION NO 1889/76 PROVIDES , ON THE OTHER HAND , THAT ' ' THE SECURITY SHALL BE WHOLLY FORFEIT IF THE OBLIGATIONS IMPOSED BY THE CONTRACT ARE NOT FULFILLED ' ' .
15 APART FROM THE DIFFICULTY IN RECONCILING THE WORDING OF ARTICLE 5 ( 2 ) OF COMMISSION REGULATION NO 1889/76 WITH THAT OF ARTICLE 4 ( 2 ) ( B ) OF REGULATION NO 2763/75 OF THE COUNCIL , IN IMPLEMENTATION OF WHICH REGULATION NO 1889/76 WAS ADOPTED , IT SHOULD ALSO BE OBSERVED THAT THE ABSOLUTE NATURE OF ARTICLE 5 ( 2 ) OF THE ABOVE-MENTIONED REGULATION IS CONTRARY TO THE PRINCIPLE OF PROPORTIONALITY IN THAT IT DOES NOT PERMIT THE PENALTY FOR WHICH IT PROVIDES TO BE MADE COMMENSURATE WITH THE DEGREE OF FAILURE TO IMPLEMENT THE CONTRACTUAL OBLIGATIONS OR WITH THE SERIOUSNESS OF THE BREACH OF THOSE OBLIGATIONS .
16 THE REPLY TO QUESTIONS III AND IV REFERRED BY THE NATIONAL COURT MUST THEREFORE BE THAT NOTWITHSTANDING THE PROVISIONS OF ARTICLE 5 ( 2 ) OF COMMISSION REGULATION NO 1889/76 , ARTICLE 4 ( 2 ) ( B ) OF REGULATION NO 2763/75 OF THE COUNCIL REMAINS APPLICABLE IN THE SENSE THAT THE COMPETENT AUTHORITY MAY DECLARE THE DEPOSIT FORFEIT IN WHOLE OR IN PART ACCORDING TO THE GRAVITY OF THE BREACH OF THE CONTRACTUAL OBLIGATIONS .