1BY AN ORDER OF 29 SEPTEMBER 1977 , WHICH WAS RECEIVED AT THE COURT ON 25 JANUARY 1978 , THE FINANZGERICHT BADEN-WURTTEMBERG , PURSUANT TO ARTICLE 177 OF THE EEC TREATY , SUBMITTED THREE QUESTIONS FOR A PRELIMINARY RULING ON THE VALIDITY OF REGULATION ( EEC ) NO 725/74 OF THE COMMISSION OF 29 MARCH 1974 ALTERING THE MONETARY COMPENSATORY AMOUNTS ( OFFICIAL JOURNAL 1974 , L 89 , P . 1 ) AND THE INTERPRETATION OF THE SECOND SUBPARAGRAPH OF ARTICLE 40 ( 3 ) OF THE EEC TREATY .
2THESE QUESTIONS WERE RAISED IN THE COURSE OF A CASE CONCERNING THE CALCULATION OF MONETARY COMPENSATORY AMOUNTS AND OF THE CORRECTIVE AMOUNT APPLICABLE TO IMPORTS OF UNSWEETENED WHOLE-MILK POWDER HAVING A FAT CONTENT BETWEEN 9.6% AND 24.5% BY WEIGHT FROM FRANCE INTO THE FEDERAL REPUBLIC OF GERMANY BETWEEN 26 JUNE AND 14 AUGUST 1974 CARRIED OUT BY THE PLAINTIFF IN THE MAIN ACTION . THE COMPETENT CUSTOMS OFFICE , THE DEFENDANT IN THE MAIN ACTION , CLASSIFIED THE PRODUCT UNDER SUBHEADING 04.02 A II B 2 OF THE COMMON CUSTOMS TARIFF AND , PURSUANT TO REGULATION NO 725/74 , CHARGED COMPENSATORY AMOUNTS AT THE RATE OF DM 25.74 AS THE BASIC AMOUNT PLUS A SUPPLEMENTARY AMOUNT OF DM 0.91 FOR EVERY ADDITIONAL 1% OF FAT CONTENT PER 100 KG NET WEIGHT .
3IN THE COURSE OF THE SAME MAIN ACTION , BY AN ORDER OF 3 DECEMBER 1975 THE FINANZGERICHT REFERRED TO THE COURT , PURSUANT TO ARTICLE 177 OF THE EEC TREATY , TWO QUESTIONS FOR A PRELIMINARY RULING ON THE INTERPRETATION AND VALIDITY OF REGULATION NO 725/74 ( CASE 28/76 MILAC ). THE QUESTIONS SUBMITTED BY THAT ORDER WERE AS FOLLOWS : ' ' 1 . ARE THE MONETARY COMPENSATORY AMOUNTS UNDER ARTICLE 1 OF REGULATION ( EEC ) NO 974/71 IN CONJUNCTION WITH ARTICLE 1 OF REGULATION ( EEC ) NO 218/74 , ANNEX I , PART 5 AS AMENDED BY REGULATION ( EEC ) NO 725/74 , FOR MILK POWDER UNDER SUBHEADING 04.02 A II B 2 OF THE COMMON CUSTOMS TARIFF , TO BE REDUCED BY THE AMOUNT OF 2 OR LESS UNITS OF ACCOUNT EVEN WHERE THE FAT CONTENT IS IN EXCESS OF 3% BY WEIGHT AND THE REMAINING CONDITIONS OF REGULATION ( EEC ) NO 712/74 ARE FULFILLED? 2 . WERE THE RATES OF THE MONETARY COMPENSATORY AMOUNTS UNDER REGULATION ( EEC ) NO 725/74 REFERRED TO IN QUESTION 1 COMPATIBLE WITH THE BASIC ENABLING PROVISION BETWEEN 25 JUNE AND 15 AUGUST 1974? ' '
4ON THE GROUNDS STATED IN ITS JUDGMENT OF 23 NOVEMBER 1976 ( CASE 28/76 ( 1976 ) ECR 1639 ), THE COURT GAVE THE FOLLOWING ANSWER TO THE FIRST QUESTION : ' ' THE COMBINED PROVISIONS OF ARTICLE 1 OF REGULATION ( EEC ) NO 974/71 , ARTICLE 1 OF REGULATION ( EEC ) NO 218/74 AND PART 5 OF ANNEX I TO THAT REGULATION IN THE VERSION CONTAINED IN REGULATION ( EEC ) NO 725/74 AND APPLICABLE TO POWDERED MILK UNDER TARIFF SUBHEADING 04.02 A II B 2 OF THE COMMON CUSTOMS TARIFF MUST BE INTERPRETED AS MEANING THAT THEY DO NOT ALLOW THE REDUCTION OF THE MONETARY COMPENSATORY AMOUNTS BY 2 UNITS OF ACCOUNT OR LESS WHERE THE FAT CONTENT BY WEIGHT IS IN EXCESS OF 3% . ' '
5IN ITS ORDER FOR REFERENCE THE FINANZGERICHT EXPLAINED THE SCOPE OF THE SECOND QUESTION BY STATING THAT IT MIGHT BE ASKED WHETHER THE MONETARY COMPENSATORY AMOUNTS CHARGED ON THE IMPORTS OF MILK POWDER PURSUANT TO REGULATION ( EEC ) NO 725/74 OF THE COMMISSION WERE WITHIN THE SCOPE OF THE AUTHORIZATION CONTAINED IN REGULATION ( EEC ) NO 974/71 OF THE COUNCIL ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( I ), P . 257 ) AND WERE COMPATIBLE WITH THE AIMS OF THAT REGULATION , BUT DID NOT ASK WHETHER THE PROVISIONS OF THE REGULATION CONSTITUTED DISCRIMINATION WITHIN THE MEANING OF ARTICLE 40 ( 3 ) OF THE TREATY .
6IN ITS AFOREMENTIONED JUDGMENT , THE COURT ANSWERED THE SECOND QUESTION AS FOLLOWS : ' ' CONSIDERATION OF THE SECOND QUESTION HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF REGULATION NO 725/74 ' ' .
7WHILST , IN THE COURSE OF THE PROCEEDINGS , THE PLAINTIFF IN THE MAIN ACTION HAD ALLEGED THAT THERE WAS DISCRIMINATION WITHIN THE MEANING OF ARTICLE 40 ( 3 ) OF THE TREATY , THE ANSWER GIVEN BY THE COURT REFERRED ONLY TO THE TERMS OF THE SECOND QUESTION AS SUBMITTED BY THE FINANZGERICHT , THAT IS TO SAY TO THE COMPATIBILITY OF REGULATION NO 725/74 WITH THE BASIC ENABLING PROVISION , NAMELY REGULATION NO 974/71 OF THE COUNCIL .
8TAKING THE VIEW THAT IN ORDER TO GIVE JUDGMENT IN THE MAIN ACTION IT ALSO NEEDED TO KNOW WHETHER THE PROVISIONS OF THE REGULATION IN QUESTION HAD BEEN ADOPTED IN BREACH OF THE PRINCIPLE OF NON-DISCRIMINATION LAID DOWN IN ARTICLE 40 ( 3 ) OF THE TREATY , THE FINANZGERICHT HAS FURTHER REFERRED THE FOLLOWING QUESTIONS TO THE COURT : ' ' 1 . DID THE JUDGMENT OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES OF 23 NOVEMBER 1976 IN CASE 28/76 DETERMINE AUTHORITATIVELY THE VALIDITY OF REGULATION ( EEC ) NO 725/74 FOR THE PURPOSES OF THE FURTHER CONDUCT OF THE MAIN ACTION SO THAT IT MAY NO LONGER BE QUESTIONED WHETHER THAT REGULATION INFRINGES THE PROHIBITION ON DISCRIMINATION CONTAINED IN THE SECOND SUBPARAGRAPH OF ARTICLE 40 ( 3 ) OF THE EEC TREATY? IF THE FIRST QUESTION IS ANSWERED IN THE NEGATIVE : 2 . DOES THE SECOND SUBPARAGRAPH OF ARTICLE 40 ( 3 ) OF THE EEC TREATY CREATE INDIVIDUAL RIGHTS WHICH THE NATIONAL COURTS MUST RESPECT? IF THE FIRST QUESTION IS ANSWERED IN THE NEGATIVE AND THE SECOND IN THE AFFIRMATIVE : 3 . MAY THE NATIONAL COURT DECIDE UPON THE DISCRIMINATORY EFFECT AND REDUCE THE AMOUNT OF THE CHARGE ACCORDINGLY?
9THE THREE QUESTIONS SHOULD BE DEALT WITH TOGETHER .
10 REGULATION NO 804/68 OF THE COUNCIL OF 27 JUNE 1968 ON THE COMMON ORGANIZATION OF THE MARKET IN MILK AND MILK PRODUCTS ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( I ), P . 176 ) PROVIDES THAT EACH YEAR THERE SHALL BE FIXED A TARGET PRICE FOR MILK AND INTERVENTION PRICES - DESIGNED TO ASSIST IN ACHIEVING THE TARGET PRICE OF MILK - FOR CERTAIN PRODUCTS PROCESSED FROM MILK : BUTTER , SKIMMED-MILK POWDER AND CERTAIN CHEESES .
11ARTICLE 1 ( 2 ) OF REGULATION NO 974/71 OF THE COUNCIL PROVIDES THAT THE PRODUCTS FOR WHICH COMPENSATORY AMOUNTS MAY BE CHARGED ON IMPORTS FROM MEMBER STATES AND THIRD COUNTRIES OR GRANTED ON EXPORTS TO MEMBER STATES AND THIRD COUNTRIES SHALL BE : ' ' ( A ) PRODUCTS COVERED BY INTERVENTION ARRANGEMENTS UNDER THE COMMON ORGANIZATION OF AGRICULTURAL MARKETS ; ( B ) PRODUCTS WHOSE PRICE DEPENDS ON THE PRICE OF THE PRODUCTS REFERRED TO UNDER ( A ) AND WHICH ARE GOVERNED BY THE COMMON ORGANIZATION OF MARKETS ' ' . FOR THE PRODUCTS REFERRED TO IN SUBPARAGRAPH ( B ), ARTICLE 2 ( 2 ) OF THAT REGULATION PROVIDES THAT ' ' THE COMPENSATORY AMOUNTS SHALL BE EQUAL TO THE INCIDENCE , ON THE PRICES OF THE PRODUCT CONCERNED , OF THE APPLICATION OF THE COMPENSATORY AMOUNT TO THE PRICES OF THE PRODUCT . . . ON WHICH THEY DEPEND ' ' .
12THE PARTICULAR SITUATION OBTAINING IN THE CERTAIN MEMBER STATES DID NOT PERMIT THE APPLICATION OF A UNIFORM INTERVENTION PRICE FOR SKIMMED-MILK POWDER AND THEREFORE ARTICLE 2 OF REGULATION NO 1188/73 OF THE COUNCIL OF 8 MAY 1973 FIXING THE TARGET PRICE FOR MILK AND THE INTERVENTION PRICES FOR BUTTER , SKIMMED-MILK POWDER AND GRANA PADANO AND PARMIGIANO REGGIANO CHEESES FOR THE 1973/74 MILK YEAR ( OFFICIAL JOURNAL 1973 , L 122 , P . 1 ) LAID DOWN A CORRECTIVE AMOUNT OF 2 UNITS OF ACCOUNT PER 100 KG TO REDUCE THE INTERVENTION PRICE AT WHICH THE INTERVENTION AGENCIES IN BELGIUM , GERMANY , LUXEMBOURG AND THE NETHERLANDS WOULD BUY IN SKIMMED-MILK POWDER AND PROVIDED FOR THE APPLICATION OF THIS CORRECTIVE AMOUNT TO THE PRODUCT IN QUESTION IN TRADE BETWEEN EACH MEMBER STATE REFERRED TO ABOVE AND THE OTHER MEMBER STATES AND THIRD COUNTRIES .
13REGULATION NO . 663/74 OF THE COUNCIL OF 28 MARCH 1974 FIXING THE PRICES FOR THE 1974/75 MILK YEAR ( OFFICIAL JOURNAL 1974 , L 85 , P . 52 ) AGAIN INCREASED THE TARGET PRICE FOR MILK , MAINTAINED THE INTERVENTION PRICE FOR BUTTER IN THE ORIGINAL MEMBER STATES ( WHICH HAD BEEN REDUCED FOR THE 1973/74 MILK YEAR ) AND INCREASED THE INTERVENTION PRICE FOR SKIMMED-MILK POWDER .
14THE FIFTH RECITAL OF THAT REGULATION STATES : ' ' . . . THE PARTICULAR SITUATION OBTAINING IN CERTAIN MEMBER STATES AT PRESENT DOES NOT PERMIT THE APPLICATION OF A UNIFORM INTERVENTION PRICE FOR SKIMMED-MILK POWDER ; . . . IT IS THEREFORE NECESSARY TO APPLY A CORRECTIVE FACTOR TO THE AFORESAID PRICE ' ' . THE SIXTH RECITAL STATES : ' ' . . . IN ORDER TO ENSURE THAT THIS CORRECTIVE FACTOR AFFECTS MARKET PRICES IN THE SAID MEMBER STATES WITHOUT LEADING TO DISTORTIONS OF COMPETITION IT IS NECESSARY TO COMPENSATE FOR PRICE DIFFERENCES OCCURRING IN TRADE IN SKIMMED-MILK POWDER ' ' .
15ARTICLE 40 ( 3 ) OF THE TREATY PROVIDES THAT ANY COMMON PRICE POLICY SHALL BE BASED ON COMMON CRITERIA AND UNIFORM METHODS OF CALCULATION .
16IN ITS ORDER OF 3 DECEMBER 1975 , THE FINANZGERICHT HAD EXPRESSED DOUBTS AS TO WHETHER THE INTERVENTION PRICE FOR SKIMMED-MILK POWDER ACTUALLY APPLIED IN GERMANY WAS COMPATIBLE WITH THE OBJECTIVES OF THE ORGANIZATION OF THE MILK MARKET , AND HAD DRAWN THE ATTENTION OF THE COURT TO THE PREAMBLE TO REGULATION NO 663/74 OF THE COUNCIL WHICH , ACCORDING TO THE FINANZGERICHT , GIVES NO LEGAL JUSTIFICATION FOR THE DIFFERENCE IN TREATMENT RESULTING FROM THE PROVISIONS OF ARTICLE 3 OF THE REGULATION BUT MERELY STATES THAT THE PARTICULAR SITUATION OBTAINING IN CERTAIN MEMBER STATES AT PRESENT DOES NOT PERMIT THE APPLICATION OF A UNIFORM INTERVENTION PRICE FOR SKIMMED-MILK POWDER AND THAT IT IS THEREFORE NECESSARY TO APPLY A CORRECTIVE FACTOR TO THE AFORESAID PRICE . NEVERTHELESS , THE FINANZGERICHT HAD NOT RAISED ANY QUESTION CONCERNING THE LEGALITY OF THAT PROVISION BUT , FOR THE QUESTIONS WHICH IT REFERRED TO THE COURT , HAD STARTED OUT FROM THE ASSUMPTION THAT THE DIFFERENT INTERVENTION PRICES WERE LAWFUL . IN ITS WRITTEN OBSERVATIONS IN CASE 28/76 , THE PLAINTIFF IN THE MAIN ACTION HAD ALSO STATED THAT THE QUESTION WHETHER THE INTRODUCTION OF DIFFERENT INTERVENTION PRICES WAS COMPATIBLE WITH THE COMMON ORGANIZATION OF THE MILK MARKET WAS NOT THE SUBJECT OF THE REFERENCE FOR A PRELIMINARY RULING , AND THAT IT COULD BE ASSUMED THAT DIFFERENT INTERVENTION PRICES WERE LAWFUL .
17HOWEVER , IT SHOULD BE NOTED THAT OWING TO THE REVALUATION OF CERTAIN NATIONAL CURRENCIES , IN PARTICULAR THAT OF THE FEDERAL REPUBLIC OF GERMANY , AND TO THE DEVALUATION OF OTHER NATIONAL CURRENCIES , THE UNITY OF THE INTERVENTION PRICE EXPRESSED IN UNITS OF ACCOUNT HAD BEEN BROKEN SINCE MARCH 1971 , AND SUBSEQUENTLY HAS BEEN ONLY FORMAL OR NOTIONAL IN THE COMMUNITY . ALTHOUGH THE STATEMENT OF THE REASONS ON WHICH THE COUNCIL ' S REGULATION WAS BASED WAS ELLIPTICAL , IT EXPRESSED SUFFICIENTLY THE COUNCIL ' S INTENTION TO FIX A FRESH INTERVENTION PRICE FOR SKIMMED-MILK POWDER WHICH IN REAL TERMS WOULD BE AS UNIFORM AS POSSIBLE . THE PROVISIONS OF ARTICLE 3 OF REGULATION NO 663/74 , WHICH WERE ADOPTED IN ORDER THAT INTERVENTION PRICES MIGHT BE FIXED AT A UNIFORM LEVEL IN REAL TERMS , ARE NOT INCOMPATIBLE EITHER WITH THE PROVISIONS OF REGULATION NO 805/68 OF THE COUNCIL OR WITH THE PROVISIONS OF ARTICLE 40 ( 3 ) OF THE TREATY .
18AS THE COURT HAS ALREADY RULED IN ITS JUDGMENT OF 2 JULY 1974 ( CASE 153/73 HOLTZ & WILLEMSEN ( 1974 ) ECR 675 ), THE OBJECTIVES REFERRED TO IN ARTICLE 40 OF THE TREATY , THAT IS , THE ESTABLISHMENT OF A COMMON AGRICULTURAL POLICY AND A COMMON ORGANIZATION OF AGRICULTURAL MARKETS , PRESUPPOSE THE ADOPTION OF COMMON RULES AND CRITERIA FOR PRODUCERS AND CONSUMERS OF AGRICULTURAL PRODUCTS AND THE CONSEQUENT EXCLUSION OF ANY DISCRIMINATION BASED ON NATIONALITY OR LOCALITY . IN THIS LIGHT THE VARIOUS FACTORS IN THE COMMON ORGANIZATION OF THE MARKETS , PROTECTIVE MEASURES , AIDS , SUBSIDIES , AND THE LIKE MAY BE DISTINGUISHED ACCORDING TO THE AREAS AND OTHER CONDITIONS OF PRODUCTION OR CONSUMPTION ONLY IN TERMS OF CRITERIA OF AN OBJECTIVE NATURE WHICH ENSURE A PROPORTIONATE DISTRIBUTION OF ADVANTAGES AND DISADVANTAGES FOR THOSE CONCERNED WITHOUT DISTINGUISHING BETWEEN THE TERRITORY OF MEMBER STATES . THEREFORE THE PRINCIPLE OF NON-DISCRIMINATION BETWEEN PRODUCERS OR CONSUMERS WITHIN THE COMMUNITY IS ONE OF THE FUNDAMENTAL PRINCIPLES OF THE TREATY WHICH MUST BE OBSERVED BY ANY COURT . CONSEQUENTLY IT IS NECESSARY TO CONSIDER THE COMPATIBILITY OF THE PROVISIONS OF THE REGULATION AT ISSUE WITH THAT PRINCIPLE .
19ARTICLE 3 OF REGULATION NO 663/74 OF THE COUNCIL PROVIDED THAT , IN TRADE BETWEEN EACH OF THE MEMBER STATES REFERRED TO IN PARAGRAPH ( 1 ) AND THE OTHER MEMBER STATES AND THIRD COUNTRIES , THE CORRECTIVE AMOUNT WAS TO BE APPLIED ONLY TO ' ' THE PRODUCT IN QUESTION ' ' , THAT IS TO SAY SKIMMED-MILK POWDER . IN AN ANNEX TO REGULATION NO 712/74 SETTING OUT THE METHODS OF APPLICATION FOR ARTICLE 3 OF REGULATION NO 663/74 , THE COMMISSION FIXED THE CORRECTIVE AMOUNTS APPLICABLE TO MILK OF A FAT CONTENT NOT EXCEEDING 3% BY WEIGHT AND TO CERTAIN KINDS OF FORAGE . ARTICLE 2 OF THAT REGULATION PROVIDED THAT THE MONETARY COMPENSATORY AMOUNTS FIXED IN ACCORDANCE WITH REGULATION NO 974/71 WERE TO REDUCED BY THE AMOUNTS FIXED IN THE ANNEX . IN REGULATION NO 725/74 THE COMMISSION FIXED NEW RATES FOR THE MONETARY COMPENSATORY AMOUNTS TO BE APPLIED INTER ALIA TO MILK AND MILK PRODUCTS . THAT REGULATION DID NOT PROVIDE FOR ANY SPECIFIC REDUCTION OF THE MONETARY COMPENSATORY AMOUNTS TO BE APPLIED IN GERMANY TO MILK POWDER HAVING A FAT CONTENT IN EXCESS OF 3% BY WEIGHT .
20IN THE PREVIOUS CASE , 28/76 , THE PLAINTIFF IN THE MAIN ACTION HAD CLAIMED THAT REGULATION NO 725/74 WAS TO BE INTERPRETED AS MEANING THAT THE CORRECTIVE AMOUNT REFERRED TO IN REGULATION NO 663/74 OF THE COUNCIL MUST BE APPLIED IN ALL CIRCUMSTANCES , AT LEAST IN SO FAR AS MILK POWDER COMING WITHIN TARIFF SUBHEADING 04.02 A II B 2 OF THE COMMON CUSTOMS TARIFF WAS CONCERNED .
21IN ITS JUDGMENT OF 23 NOVEMBER 1976 THE COURT DISMISSED THAT INTERPRETATION OF THE REGULATION AT ISSUE .
22AS REGARDS THE QUESTIONS SUBMITTED IN THIS CASE , THE PLAINTIFF IN THE MAIN ACTION CLAIMS THAT REGULATION NO 725/74 , AND POSSIBLY REGULATIONS NO 663/74 OF THE COUNCIL AND NO 712/74 OF THE COMMISSION , ARE UNLAWFUL FOR BREACH OF THE PRINCIPLE OF NON-DISCRIMINATION LAID DOWN IN ARTICLE 40 ( 3 ) OF THE TREATY . IN SUPPORT OF THIS ARGUMENT IT ALLEGES THAT THE FAILURE TO APPLY A CORRECTIVE AMOUNT TO WHOLE-MILK POWDER CAUSES DISTORTIONS OF COMPETITION IN THE MILK MARKET . IT CLAIMS THAT PURCHASERS OF WHOLE-MILK POWDER WERE ABLE TO OBTAIN THAT PRODUCT IN BELGIUM , THE NETHERLANDS AND IN GERMANY AT A PRICE 2 UNITS OF ACCOUNT PER 100 KG LOWER THAN THE PRICE PREVAILING IN FRANCE AND THAT THERE IS NO APPRECIABLE DIFFERENCE BETWEEN THE MARKET FOR WHOLE-MILK POWDER AND THE MARKET FOR SKIMMED-MILK POWDER . IT STATES FURTHER THAT AT THE TIME IN QUESTION THE CHOCOLATE AND ICE-CREAM INDUSTRY CHANGED OVER FROM USING WHOLE-MILK POWDER TO USING SKIMMED-MILK POWDER SUPPLEMENTED BY BUTTER-FAT .
23ON THE OTHER HAND , THE COMMISSION IS OF THE VIEW THAT THE USERS OF WHOLE- MILK POWDER AND OF SKIMMED-MILK POWDER ARE DIFFERENT : SKIMMED-MILK POWDER IS USED FOR MAKING SOUPS AND DIETETIC FOODSTUFFS AND FOR MAKING CERTAIN KINDS OF FORAGE , WHEREAS WHOLE-MILK POWDER IS USED BY THE 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 .