Opinion of Mr Advocate General Lenz

Mr President,

Members of the Court,

The references for a preliminary ruling on which I am giving my opinion today concern the interpretation of provisions which were introduced in order to reduce the butter surplus in the Community; under those provisions, butter may be sold to certain processing undertakings at reduced prices. The legislation is intended to make the butter held in storage by intervention agencies competitive by comparison with other, cheaper fats which would normally be used in the processing industry.

So far as it is relevant to the two references with which the Court is concerned today the effect of the legislation, in the version that was in force in 1974, may be explained as follows:

1. The butter is sold by way of tender under Article 2 of Regulation No 1259/72 on the disposal of butter at a reduced price to certain Community processing undertakings (Official Journal, English Special Edition 1972 (II), p. 559), as amended by Regulation No 2815/72 (Official Journal, English Special Edition, 30/31 December 1972, p. 5). Under Article 6 of the regulation, a tenderer may not take part in the invitation to tender unless he gives a number of written undertakings, namely:

2. The legislation described above is relevant to the determination of the cases pending before the national court for the following reasons:

3. The plaintiffs first lodged an unsuccessful objection against the decision and then appealed to the Verwaltungsgericht [Administrative Court], which granted their appeal. As regards the main issue, which was whether the powder preparation manufactured by Suwelack met the requirements of tariff subheadings Nos 18.06 D or 21.07 F, the court held in December 1980 that the expert opinions which had led to the security's being declared forfeit were valueless because the samples of ice-cream powder upon which they were based were already nine months old. Furthermore, the court held that the small proportion of flavouring agents which was found did not necessarily mean that ice-cream made from the powder would not be suitable for consumption, and that the addition of the binding agent sodium caseinate was unobjectionable because it was permitted in the Benelux countries and whether or not such a powder could be marketed in Germany (where the addition of such agents is prohibited) was not decisive. Moreover, the Verwaltungsgericht adopted the view that it was immaterial that the powder produced by Suwelack was processed by third parties into products other than icecream, since Regulation No 1259/72 governed only the production of powders for the preparation of edible ices and not the final use of the product. In that connection the court also attached significance to the fact that Suwelack had submitted the processing declaration referred to above. It took the view that the burden of proof was thereby reversed, especially as German legislation had not yet established the form of the document which was to be produced under Article 18 (2) of Regulation No 1259/72. Furthermore, it was the consistent practice of the Bundesanstalt für landwirtschaftliche Marktordnung to treat the processing declaration as the document referred to in the abovementioned regulation.

4. The dispute raised a number of questions for the Hesse Higher Administrative Court in connection with the interpretation of Community law, and an answer to those questions, as it explained in detail, was necessary before it could make its decision. Consequently, by orders dated 30 May 1983, it stayed the actions pending before it and submitted the following questions, which were the same in both cases, for a preliminary ruling under Article 177 of the EEC Treaty:

On those questions my opinion is as follows.

1. The first group of questions relates to the extent of the duty of a purchaser of butter sold at a reduced price to have it processed within a specified period (four months) and only into certain specified products (icecream, ice-cream powder and fine bakers' wares), a duty imposed by Article 6 (1) (c), the third option provided by Regulation No 1259/72, which refers to the manufacture of powder for the preparation of edible ices falling within subheadings Nos ex 18.06 D or ex 21.07 F of the Common Customs Tariff. In that connection the national court seeks guidance as to whether the obligation in question is satisfied even if the powder is not used for the preparation of edible ices but is instead separated into its constituent parts and if those ingredients are further processed into milk powder preparations and chocolate. The question makes it clear that here, too, the aforementioned Article 6 (a) of Regulation No 1259/72, the effect of which is one of the points to be determined under Question (c), is relevant.

2. The second group of questions, to which I now turn, relates to the duty to furnish proof, which is governed by Article 18 (2) of Regulation No 1259/72 (as amended by Regulation No 1237/73) on the fulfilment of which the release of the processing security depends. The national court asks whether the purchaser's duty to furnish proof extends to the stages of processing subsequent to the manufacture of ice-cream powder, or in other words whether, if he does not process the ice-cream powder himself but sells it, he must prove that one of its subsequent purchasers has in fact manufactured ice-cream. That question may be taken together with Question (e), in which a ruling is sought on whether it is correct that an infringement of Article 6 (a) does not affect the release of the security because that provision is not referred to in Article 18 (2).

3. A further question, namely question (d), also relates to the interpretation of Article 6 (a) of Regulation No 1259/72. The purpose of the question is to establish whether the permitted further processing of the products referred to in Article 6 (1) (c) includes all the products referred to under tariff subheadings Nos 18.06 D and 21.07 F, or whether it is only powder preparations under tariff subheadings Nos ex 18.06 D or ex 21.07 F, as referred to in Article 6 (1) (c), that may be so manufactured.

4. Finally, I must deal with the group of questions relating to the addition of the binding agent sodium caseinate to the icecream powders. The first question that arises in that connection is whether such additives are compatible with Article 6 (1) (c) (third option) of Regulation No 1259/72, if powder preparations including them are permitted in the manufacture of ice-cream in only some EEC countries, and not in the Federal Republic of Germany. The second question is whether, if such additives are not harmful, the release of the security depends on whether the successful tenderer can prove that powder preparations of the kind described have been dispatched to a Member State where their use in the manufacture of ice-cream is permitted.

To sum up, I propose that the questions submitted by the Hessischer Verwaltungsgerichtshof should be answered as follows:

1 Translated from the German.

2 Judgment in Joined Cases 99 and 100/76 Roomboterfabriek De Beste Boter NV and Firma Joseph Hoche, Butterschmelzwerk v Bundesanstalt ßir landwirtschaftliche Marktordnung [1977] ECR 861.

3 Judgment in Case 217/8 Nicolas Corman & Fils SA v Hauptzollamt Aachen-Süd [1979] ECR 2287.

4 Judgment in Case 64/81 Nicolas Corman & Fils SA v Hauptzollamt Gronau [1982] ECR 13.

5 Judgment in Joined Cases 99 and 100/76 Roomboterfabriek De Beste Boter NV and Firma Joseph Hoche, Butterschmelzwerk v Bundesanstalt Jur landwirtschafiliche Marktordnung [1977] ECR 861.

6 Judgment in Case 64/81 Nicolas Corman & Fils SA v Hauptzollamt Gronau [1982] ECR 13.