Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. The purpose of this reference for a preliminary ruling is to obtain an interpretation of the Community rules governing the payment of aid in respect of exports of feedingstuffs made from milk powder. It must be decided whether those rules allow such aid to be paid according to different procedures and at different times depending on whether the products are exported or marketed within the country. For the first category of products, Community rules provide for special inspections to be carried out by the importing country and it is only when this has been done that the aid is paid. No such inspections are carried out in the case of feedingstuffs sold on the national market (and therefore there are no delays).

2. I shall consider first the relevant provisions of Regulation No 1725 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.

3. Articles 6 and 7 of Commission Regulation No 1725/79 are central to the dispute. Those articles provide for special prior inspections to be carried out by the importing State with a view to ensuring that feedingstuffs delivered in bulk are actually used for the purposes laid down in the regulation. It is clear that, because of those inspections, aid to exporters is paid later than that paid in respect of products sold on the domestic market. It is also certain that as regards exports from the Netherlands to Belgium the delay is about one month. Nor can it be denied that this makes the aid granted in respect of imported products less favourable than that paid in respect of products sold on the domestic market.

4. I shall now consider the alleged infringement of the second subparagraph of Article 40 (3) and of Article 43 (3) (b) of the EEC Treaty. The former provides that the common organization of the market is to exclude any discrimination between producers... within the Community. In Denkavit's view, the disputed measures discriminate between those producers who sell feedingstuffs on the internal market and those who export them, and are therefore illegal. I do not believe, however, that there is any question of discrimination. The reason for this is, once again, the fact that exports entail a much greater risk of fraud and are much more difficult to supervise than domestic transactions. Since the situations are different, it is right that the rules governing them should be different, particularly since the differences between the rules correspond exactly to the differences between the actual circumstances in each case.

5. Denkavit's final complaint is based on the principle of proportionality. The supervision exercised over the use of exported feedingstuffs may indeed be intended to serve a higher Community interest and, in the abstract, must be considered to be in conformity with the system and thus legal. But the articles in question are conceived in such a way that they go beyond what is necessary. In order to attain the worthy objective of supervision, another no less essential Community interest has been sacrificed: the uniform treatment of domestic trade and trade between States. In Denkavit's view, the same result could have been achieved without giving rise to that problem if the Commission had established a less rigorous system of supervision.

6. In view of the foregoing considerations, I suggest that the Court reply to the question submitted to it for a preliminary ruling by the College van Beroep voor het Bedrijfsleven by order of 25 January 1983 in the proceedings between the private limited company Denkavit Nederland BV and the Hoofdproduktschap voor Akkerbouwprodukten as follows :

1 Translated from the Italian.