Opinion of Mr advocate general Reischl
Mr President,
Members of the Court,
The common organization of the market in pigmeat (Regulation (EEC) No 2759/75 of the Council of 29 October 1975, Official Journal L 282 of 1 November 1975, p. 1) provides in Article 3 that intervention measures may be taken if there is a substantial fall in prices. These measures include inter alia aid in respect of private storage.
The Council, as is provided for in Article 7 of Regulation No 2759/75, laid down basic rules for that purpose in Regulation (EEC) No 2763/75 of 29 October 1975 (Official Journal L 282, p. 19); implementing provisions in that connexion were enacted in Commission Regulation (EEC) No 1889/76 of29 July 1976 (Official Journal L 206 of 31 July 1976, p. 82).
In Article 1 of Regulation No 2763/75 private storage, within the meaning of Article 3 of Regulation No 2759/75, is defined as the holding in a warehouse, at their own risk and expense by natural or legal persons established in the Community … of products covered by the market in pigmeat. It is provided in Article 1 (3) that Private storage aid shall be granted in accordance with the terms of contracts concluded with intervention agencies; such contracts shall express the reciprocal obligations of the contracting parties in standard terms for each product. In accordance with Article 4 of the regulation 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 are permitted to conclude storage contracts.
In Article 3 of the said Commission Regulation (No 1889/76) it is provided that every contract shall contain inter alia details on the form and amount of the security and must in particular impose the following obligations on the private 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 (c) to forward to the intervention agency without delay the documents relating to the various storage operations. Article 5 (2) provides:
Finally, it is stated in Article 6 (2) and (3) of the regulation:
In the Netherlands the intervention agency within the meaning of Article 4 (3) of Regulation No 2759/75, at all events for certain specified operations, is the Voedselvoorzieningsin- en verkoop-bureau (Office for the purchase and sale of food supplies, hereinafter referred to as the V.I.B.) which is responsible to the Ministry of Agriculture and Fisheries. In Notice No 9/77 the V.I.B. stated the conditions which contracts concerning the granting of private storage aid for pigmeat must fulfil. That notice requires the products stored to be listed each week on a special form, set out separately according to each product and refrigerated store. It is further required that the list, together with proof of entry into storage, be sent to the V.I.B. so as to arrive within one week of entry into store.
The appellant in the main action, Atalanta Amsterdam B.V., concluded a series of contracts in 1977 with that intervention agency concerning the granting of private storage aid for pigmeat. As it was stated without challenge in the main action, the appellant entirely fulfilled the obligations under Article 3 (2) (a) of Regulation No 1889/76 (delivery of the product into store within the time-limits and storage for the stipulated period). However, the necessary proof of the entry into store of certain consignments was not sent to the V.I.B. in good time, within the meaning of the said Notice No 9/77; the said agency considers this to constitute a failure to fulfil in their entirety the obligations laid down in Article 3 (2) (c) of Regulation No 1889/76. The V.I.B. accordingly notified the appellant on 1 November 1977 that it had forfeited its deposit. With regard to the payment of a storage aid the appellant was required to apply to the Produktschap voor Vee en Vlees [Board for Cattle and Meat] which was competent in that sphere.
When the appellant lodged a request to this effect with the Produktschap, concerning the forfeiture of the deposit, it was notified by a letter of 15 November 1977 that it had failed to quality for a storage aid because it had not produced the necessary proof of entry into store in good time.
The appellant then instituted proceedings before the College van Beroep voor het Bedrijfsleven [administrative court of last instance in matters of trade and industry] concerning both the refusal of the aid and the forfeiture of the deposit. In those proceedings the Produktschap explained that it had been unwilling to take a decision in its letter of 15 November 1977 concerning the forfeiture of the deposit because such forfeiture fell within the competence of the V.I.B. The College, in its judgment of 1 November 1978, stayed the proceedings and, in accordance with the third paragraph of Article 177 of the EEC Treaty, referred the following questions to the Court for a preliminary ruling:
My views on these questions are as follows:
1 Translated from the German.