JUDGMENT OF 26.10.1972 — CASE 26/72 OLIEFABRIEKEN v PRODUKTSCHAP VOOR MARGARINE

In Case 26/72 Reference to the Court under Article 177 of the EEC Treaty by the College van Beroep voor het Bedrijfsleven for a preliminary ruling in the action pending before that court between

THE COURT composed of: R. Lecourt, President, R. Monaco and P. Pescatore (Rapporteur), Presidents of Chambers, A. M. Donner and J. Mertens de Wilmars, Judges, Advocate-General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

II — Observations submitted to the Court

A — Admissibility

B — The substance of the case

1 — The time when the samples must be taken (Question 1)

2. The method of analysis (Question 2)

3. The extent of the sample (Question 3)

4. The nature of the sample to be analysed (Question 4)

Grounds of judgment

Question 1 (the time of taking samples)

Question 2 (method of analysis)

Questions 3 and 4 (Method of taking samples)

Costs

I —. Facts and procedure

(a). the products in question comply with the conditions laid down in Annex I; and

(b). the exporter, at the time of the conclusion of customs export formalities within the meaning of Article 1(2) of Regulation No 1041/67, declares in writing that the products in question fulfil those conditions.

(a). an organoleptic examination; and

(b). physical and chemical analyses carried out by applying the methods laid down in Annex II.

1. Must Article 2 of Regulation No 2403/69, read in conjunction with Article 1 of Regulation No 1041/67 and any other relevant provisions of Community law, be interpreted to mean that the control referred to by this article must be carried out exclusively on samples taken on the day laid down in Article 1 of Regulation No 1041/67 or must Article 2 be interpreted to mean that such control may also be carried out on samples taken some time before the said day?

2. Must Article 2(1) of Regulation No 2403/69 and Annex II(1) to that regulation, read together with the footnote to that annex, be interpreted to mean that the Bömer value of refined lard must be determined according to the method laid down in Annex II(1) to Regulation No 2403/69 in the following manner ISO/TC 34/SC 6/WG 3/N 73?

3. Does a correct interpretation of Article 2(1) of Regulation No 2403/69 imply the restriction of the control by sampling, understood in the sense envisaged by this provision, of the Bömer value of a quantity of refined lard having a nett weight of 10698 kg packed in 6000 tins to the analysis of the contents of two of such tins?

4. Must Article 2(1) of Regulation No 2403/69 be interpreted to mean that only the result of an analysis based on a control by sampling, understood in the sense envisaged by this provision, must be taken into consideration in deciding whether the condition as to the Bömer value has been fulfilled or, on a correct interpretation of this provision, must account be taken in addition, or if appropriate exclusively, of the result of an analysis fulfilling the conditions laid down in this respect by the same provision and adopted thereunder, despite the fact that such analysis was not carried out on samples taken by random sampling but on the basis of a large number of samples taken continuously from the relevant quantity?

II —. Observations submitted to the Court

A —. Admissibility

B —. The substance of the case

1 —. The time when the samples must be taken (Question 1)

2. The method of analysis (Question 2)

3. The extent of the sample (Question 3)

4. The nature of the sample to be analysed (Question 4)

1. By an order of 9 May 1972 which reached the Court on 10 May 1972 the College van Beroep voor het Bedrijfsleven requested the Court, in accordance with Article 177 of the EEC Treaty, to give a preliminary ruling on the interpretation of certain provisions of Regulation No 2403/69 of the Commission of 1 December 1969 on special conditions for granting export refunds on certain pigmeat products (OJ, Special Edition, 1969 II, p. 523), together with Regulation No 1041/67 of the Commission of 21 December 1967 on detailed rules for the application of export refunds on products subject to a single price system (OJ, Special Edition, 1967, p. 323), with regard to conditions for granting export refunds on the exportation of refined lard and to the methods of control applicable.

2. In the first question the Court is asked to rule whether Article 2 of Regulation No 2403/69—read in conjunction with Article 1 of Regulation No 1041/67 and any other relevant provisions of Community law—must be interpreted to mean that the control of the conditions as to quality laid down by this regulation must be carried out exclusively on samples taken on the day when the customs export formalities are completed or whether the control may be carried out on samples taken earlier.

3. Article 2 of Regulation No 2403/69 does not expressly fix the time when the control must be carried out on the goods submitted for the refund.

4. On the other hand, Article 1 of the same regulation states that the refund shall be granted only where the exporter, at the time of the conclusion of the customs export formalities within the meaning of Article 1(2) of Regulation No 1041/67/EEC declares in writing that the products in question fulfil the conditions referred to by the regulation.

5. In its turn Article 1(3) of Regulation No 1041/67 provides that The day on which the customs export formalities are completed shall be the operative date for determining the quantity, nature and characteristics of the product exported.

6. Those provisions preclude a control carried out before the conclusion of the customs formalities from taking precedence over a control effected at the time when the goods are submitted to the customs, which affords the best guarantees as to the identity of the product exported and the prevention of any fraud.

7. The answer to the first question must thus be that control of the conditions as to quality laid down by Regulation No 2403/69 must be carried out on samples taken at the time of the conclusion of the customs export formalities.

8. The second question asks whether Article 2(1) of Regulation No 2403/69 and Annex II(1) to that regulation, read together with the footnote to that annex is to be interpreted to mean that the Bömer value of refined lard must be determined according to the method laid down by the International Organization for Standardization (Document ISO/TC 34/SC 6/WG 3/N 73).

9. Under Article 2 of Regulation No 2403/69 controls for the observance of the conditions to which the payment of the refund is subject shall consist inter alia of physical and chemical analyses carried out by applying the methods laid down in Annex II.

10. According to Annex I to the same regulation the goods in question must have inter alia a minimum Bömer value of 73.

11. Pursuant to Annex II to the regulation the Bömer value must be determined according to the method known as the diethyl ether method or the acetone method.

12. With regard to the method of analysis, reference is made to the document ISO/TC 34/SC 6/WG 3/N 73 of the International Organization for Standardization.

13. The aim of the provisions the interpretation of which is requested is to restrict the payment of the refund to products of good quality with a high standard of purity.

14. The common organizations of the agricultural market, of which Regulation No 2403/69 forms an integral part, can only function if the provisions in implementation thereof are applied uniformly throughout all the Member States.

15. When in the regulation a specific method of analysis is selected, intended to establish a criterion as to the quality of the goods in question the results obtained by any other method may not be taken into consideration.

16. That this is the conclusion which must be accepted emerges even more clearly from the fact that, according to the explanations given to the Court, the Bömer value is difficult to determine and the result of the analyses varies appreciably according to the method employed.

17. The plaintiff in the main action claims that employment of the method indicated by Regulation No 2403/69 is not obligatory, since the document of the International Organization for Standardization, which is quoted as a source by Annex II, has not been officially adopted and remains merely at the stage of a draft recommendation.

18. The method described by the document of the International Organization for Standardization has been completely established as a method of physical and chemical analysis.

19. The fact that this method has not yet been finally approved by the said Organization did not prevent the Commission from rendering it now and henceforth legally binding within the Community.

20. In accordance with the foregoing, recourse to this method alone in the form of a reference to a document of the International Organization for Standardization must thus be interpreted as constituting a binding obligation and not a mere recommendation.

21. The reply to Question 2 must thus be that, with regard to payment of the refund, only the method of analysis described in Annex II to Regulation No 2403/69 is valid.

22. The third question asks whether a correct interpretation of Article 2(1) of Regulation No 2403/69 allows the restriction of the control by sampling, referred to in that provision, of the Bömer value of a quantity of refined lard having a nett weight of 100698 kg packed in 6000 tins to the analysis of the contents of only two such tins.

23. The fourth question asks in addition whether Article 2(1) of Regulation No 2403/69 must be interpreted to mean that only the result of an analysis based on a control by sampling must be taken into consideration or whether account must be taken in addition, or if appropriate exclusively, of the result of an analysis fulfilling the conditions laid down by the regulation despite the fact that such analysis was not carried out on samples taken by random sampling but on the basis of a large number of samples taken continuously from the relevant quantity.

24. According to Article 1 of Regulation No 2403/69 the exporter must, in order to obtain the refund, declare in writing that the products in question fulfil the conditions laid down by the regulation.

25. The fulfilment of those conditions can only be appraised on the basis of the provisions as to quality and the methods of analysis laid down by Annexes I and II.

26. According to Article 2 of the regulation the declaration by the exporter shall be followed by a control by sampling carried out by the competent authority.

27. Although the conditions prescribed by the Community provisions must be observed with regard to the time and method of the control, only the national court may appraise the validity of a control carried out in a particular case taking into account, on the one hand, the nature, the characteristics and the packaging of the goods and, on the other hand, any rights of complaint and re-testing conferred on the exporter under the national legal system, and to decide the consequences to be drawn therefrom.

28. The costs incurred by the Commission of the European Communities which submitted observations to the Court are not recoverable.

29. As the proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the College van Beroep voor het Bedrijfsleven, the decision on costs is a matter for that court.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the Commission of the European Communities ; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Article 177; Having regard to Regulation No 2403/69 of the Commission of 1 December 1969 on special conditions for granting export refunds on certain pigmeat products and Regulation No 1041/67 of the Commission of 21 December 1967 on detailed rules for the application of export refunds on products subject to a single price system; Having regard to the Protocol on the Statute of the Court of Justice of the European Communities, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, THE COURT in answer to the questions referred to it by the College van Beroep voor het Bedrijfsleven by order of 9 May 1972, hereby rules:

1 Article 2 of Regulation No 2403/69 of 1 December 1969 on special conditions for granting export refunds on certain pigmeat products, read in conjunction with Article 1 of Regulation No 1041/67 of 21 December 1967 on detailed rules for the application of export refunds on products subject to a single price system, must be interpreted to mean that control of the conditions as to quality laid down by Regulation No 2403/69 must be carried out on samples taken at the time when the customs export formalities are concluded.

2 Article 2(1) of Regulation No 2403/69 together with Annex II (1) thereto, read in conjunction with the footnote to that annex, must be interpreted to mean that the Bömer value of refined lard must be determined solely in accordance with the method laid down by the International Organization for Standardization referred to in the said annex.

3 In a specific case the national court must appraise the validity of a control carried out by sampling and decide the consequences resulting from its appraisal.