CJEC, 2nd chamber, May 17, 1984, No 15-83

The court (second chamber)

1 By order of 25 january 1983, which was received at the court on 26 january 1983, the college van beroep voor het bedrijfsleven )administrative court of last instance in matters of trade and industry ) referred to the court for a preliminary ruling under article 177 of the eec treaty, a question on the interpretation of article 34, 40 )3 ) and 43 )3 ) )b ) of the eec treaty, of article 22 of regulation n°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 ) and of the principle of proportionality. The national court asks whether those rules, read togethger, are to be construed as meaning that articles 6 )2 ) and 7 of commission regulation n°1725-79 of 26 july 1979 on the rules for granting aid to skimmed milk processed into compound feedingstuffs and skimmed-milk powder intended for feed for calves )official journal 1979, l 199, p. 1 ) are incompatible therewith.

2 That question was raised in the course of an action brought by Denkavit Nederland BV against the Hoofdproduktschap voor Akkerbouwprodukten )central board for agricultural products ) for an order that the aid in respect of compound feedingstuffs for animals delivered in bulk from the netherlands to belgium should be paid to it as soon as the monthly application and the corresponding processing and summary reports were submitted, subject to the condition that the aid might have to be repaid.

3 In the course of those proceedings, the plaintiff maintained, inter alia, that the provisions of articles 6 )2 ) and 7 of regulation n°1725-79 imposed in the case of exports a heavier burden of proof as to the use to which products delivered in bulk had been put than in the case of inland deliveries and in consequence the aid in respect of exports was paid on average one month later than that in respect of deliveries to the domestic market of the member state.

4 The plaintiff in the main proceedings thus considers that the provisions at issue should be regarded as measures having an effect equivalent to quantitative restrictions on exports, contrary to article 34 of the eec treaty and regulation n°804-68, and as constituting discrimination against producers, contrary to articles 40 )3 ) and 43 )3 ) )b ) of the eec treaty; it also considers them to be contrary to the principle of proportionality.

5 The defendant in the main proceedings rejected that view and stated that it was bound by the provisions at issue.

6 It was in the light of that factual and legal situation that the college van beroep voor het bedrijfsleven submitted the following question to the court for a preliminary ruling:

' ' Must articles 34, 40 )3 ) and 43 )3 ) )b ) of the treaty, regulation )eec ) n°804-68, the principle of proportionality, or any of these, as well as any other principle underlying the treaty be construed as meaning that the provisions of article 6 )2 ) read together with article 7 of regulation )eec ) n°1725-79 are incompatible therewith inasmuch as the effect of those provisions is that the aid referred to in that regulation for skimmed-milk powder which has been processed into feedingstuffs in one of the member states and delivered by tanker or container is paid one month later in respect of exports than it is for inland deliveries?

' '

7 That question, although formally concerned with the interpretation of certain provisions of the eec treaty and of regulation n°804-68, in reality raises the question of the validity of articles 6 )2 ) and 7 of regulation n°1725-79.

The existence of a difference of treatment

8 As a preliminary to consideration of the substance of the case, it must be decided to what extent compound feedingstuffs exported in bulk are actually subject to rules different from those applicable to compound feedingstuffs marketed in bulk within the country.

9 In that connection, it should be borne in mind that article 6 )1 ) )b ) of regulation n°1725-79 provides for administrative supervision of all deliveries in bulk of compound feedingstuffs, in order to ensure that delivery is made to a farm or to a breeding or fattening concern which uses feedingstuffs, without distinguishing between exports and inland deliveries; in the same way, paragraph )2 ) of that article provides that in both situations the aid is to be paid only when the undertaking has supplied the competent national agency with supporting documents establishing that delivery was made under the conditions referred to in paragraph )1 ) )b ).

10 As a result, there is only one difference between the two situations mentioned above and that relates to the type of document which must be supplied to obtain the aid:

As regards, on the one hand, deliveries in bulk to a member state other than the selling member state, proof that delivery was made under the conditions referred to in article 6 )1 ) )b ) may be supplied, according to article 7 )1 ) of regulation n°1725-79, only by production of the control copy referred to in article 10 of commission regulation n°223-77 of 22 december 1976 )official journal 1977, l 38, p. 20 ), that is to say document t 5, except in the case of exports within the benelux countries, where that proof may be supplied by producing the benelux 5 document, in accordance with article 58 of council regulation n°222-77 of 13 december 1976 )official journal l 38, p. 1 ).

As regards, on the other hand, deliveries in bulk within the selling member state, each member state may, in accordance with article 14 of regulation n°223-77 and notwithstanding the specific provisions on this point in regulation n°1725-79, require that proof is to be furnished in accordance with a national procedure.

11 However, it must be emphasized that when a member state has chosen to apply a national procedure, it must nevertheless ensure that an equivalent result is achieved in conformity with the objective of article 6 of regulation n°1725-79.

12 Since the supervision requirements are essentially the same for both exports in bulk and inland deliveries in bulk, any delay in the payment of aid in respect of exports is merely the result of the different conditions under which exports are made, that is to say, the fact that in intra-community trade the document t 5 is in circulation for a greater length of time than a national document within a member state.

Infringement of article 34 of the treaty and of article 22 of regulation n°804-68

13 The question raised by the national court is intended to ascertain in the first place whether the provisions at issue constitute measures having an effect equivalent to a quantitative restriction on exports within the meaning of article 34 of the eec treaty.

14 Article 34 provides that ' ' quantitative restrictions on exports, and all measures having equivalent effect, shall be prohibited between member states ' '.

15 The prohibition of quantitative restrictions on exports and of all measures having equivalent effect applies, as the court has repeatedly held, not only to national measures but also to measures adopted by the community institutions )judgment of 20 april 1978 in joined cases 80 and 81-77 )1978 ) ecr 927 ).

16 According to well-established case-law of the court, article 34 relates to measures ' ' which have as their specific object or effect the restriction of patterns of exports and thereby the establishment of a difference in treatment between the domestic trade of a member state and its export trade in such a way as to provide a particular advantage for national production or for the domestic market of the state in question at the expense of the production or of the trade of other member states ' ' )see, for example, the judgment of 8 november 1979 in case 15-89, groenveld, )1979 ) ecr 3409, paragraph 7 of the decision ).

17 That does not apply to community rules such as those at issue in the present case which, whilst not laying down identical conditions, prescribe at least equivalent conditions regarding administrative supervision both for exports in bulk of compound feedingstuffs and for the marketing thereof within the country.

18 That finding is not altered by the fact that the aid available for compound feedingstuffs exported in bulk may be paid later than that paid in respect of inland deliveries. That difference is attributable exclusively to the particular situation of intra-community traffic, namely the fact that the circulation of documents between the various agencies involved in the member states necessarily takes more time than the circulation of the same documents within one member state, and does not constitute a difference of treatment within the meaning of article 34.

19 As the commission has correctly stated, the only discrimination which may be considered in an application for a preliminary ruling under article 177 of the treaty is that which results from incorrect application of the relevant provisions by the national authorities.

20 That is equally true of the prohibition of measures having equivalent effect provided for in article 22 )1 ) of regulation n°804-68, which adapts article 34 to the common organization of the market in milk and milk products.

Infringement of articles 40 and 43 of the treaty

21 As regards the alleged infringement of article 40 )3 ) of the treaty, that provision states that the common organization of agricultural markets is to ' ' exclude any discrimination between producers or consumers within the community ' '.

22 Since the difference in the method by which the aid is paid corresponds to an objective difference between the export situation, on the one hand, and that of trade within a member state, on the other, it does not constitute discrimination within the meaning of the aforementioned article which requires that like situations should not be treated differently unless such different treatment is objectively justified )judgments of 15 july 1982 in case 245-81 edeka )1982 ) ecr 2745, paragraph 11; of 13 june 1978 in case 139-77 denkavit )1979 ) ecr 1317; and 15 september 1982 in case 106-81 kind )1982 ) ecr 2885, paragraph 22 ).

23 Those considerations are equally true in the case of the alleged infringement of article 43 )3 ) )b ), which provides that the common organization of the market must ' ' ensure conditions for trade within the community similar to those existing in a national market ' '.

Breach of the principle of proportionality

24 The last point raised in the question submitted by the college van beroep voor het bedrijfsleven relates to breach of the principle of proportionality.

25 By virtue of that principle, according to well-established case-law of the court, measures adopted by community institutions must not exceed what is appropriate and necessary to attain the objective pursued )judgments of 20 february 1979 in case 122-78 buitoni )1979 ) ecr 677, paragraph 16, and of 23 february 1983 in case 66-82 fromancais )1983 ) ecr 395, paragraph 8 ).

26 The plaintiff in the main proceedings maintains that the provisions at issue impose a burden on exporters which goes beyond what is necessary to attain the objective of supervision. It would be sufficient, in its view, to prove that delivery was made under the conditions laid down for exports, in accordance with the same rules as those prescribed in article 6 )2 ) of regulation n°1725-79 for deliveries within the country of production, without recourse to document t 5.

27 It should be noted in the first place that, according to the fourth recital in the preamble to regulation n°222-77, the implementation of a community transit procedure, including the use of uniform control documents, will facilitate transport within the community and in particular simplify the formalities to be carried out when frontiers are crossed.

28 It should also be noted that the community rules at issue require prior administrative supervision and, therefore, the return of the control copy to the competent authorities of the country of production before the aid is paid, both for exports in bulk and for inland deliveries in bulk, whether that document is the t 5 or the benelux 5, or a document required by the national procedure pursuant to article 14 of regulation n°223-77.

29 Since the purpose of those rules is to exclude the possibility of aid being paid twice, as well as that of the goods re-entering normal market channels, and thereby to prevent fraudulent practices, the formalities regarding proof must continue to be rigorously applied both to exports and to inland deliveries.

30 During the oral procedure the commission correctly observed that recourse to another method of checking compliance with the conditions laid down in article 6 )1 ) )b ) of regulation n°1725-79, namely subsequent inspections followed, if necessary, by repayment of the aid granted, would entail, in particular, excessive administrative work for the member states responsible for carrying out those inspections.

31 It must be stated that the principle of proportionality is not breached by community rules which prescribe prior administrative supervision to ensure compliance with the conditions for the payment of aid where the sums involved are particularly large and there is a particular danger of fraud.

32 Therefore, even though the contested measures entail the result that aid in respect of exports is paid later than aid in respect of inland deliveries, they do not, by reason of the special conditions applicable to intra-community transit, breach the principle of proportionality.

33 The answer to the question submitted by the national court must therefore be that consideration of the question raised has disclosed no factor of such a nature as to affect the validity of articles 6 )2 ) and 7 of regulation n°1725-79.

Costs

34 The costs incurred by the commission of the european communities, which presented oral argument in the proceedings before the court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

The court )second chamber ),

In reply to the question submitted to it by the college vana beroep voor het bedrijfsleven by order of 25 january 1983, hereby rules:

Consideration of the question raised by the college van beroep voor het bedrijfsleven has disclosed no factor of such a nature as to affect the validity of articles 6 )2 ) and 7 of regulation n°1725-79.