JUDGMENT OF 17. 5. 1984 — CASE 15/83 DENKAVIT NEDERLAND / HOOFDPRODUCTSCHAP VOOR AKKERBOUWPRODUCTEN

In Case 15/83 REFERENCE to the Court under Article 177 of the EEC Treaty by the College van Beroep voor het Bedrijfsleven [administrative court of last instance in matters of trade and industry] for a preliminary ruling in the proceedings pending before that court between

THE COURT (Second Chamber) composed of: K. Bahlmann, President of Chamber, P. Pescatore and O. Due Judges, Advocate General: G. F. Mancini Registrar: J. A. Pompe, Deputy Registrar

gives the following

JUDGMENT

Facts and Issues

I — Legal background to the dispute and summary of the facts

1. Legal background

2. Facts and written procedure

II — Written observations

III — Oral procedure

Decision

The existence of a difference of treatment

Infringement of Article 34 of the Treaty and of Article 22 of Regulation No 804/68

Infringement of Articles 40 and 43 of the Treaty

Breach of the principle of proportionality

Costs

I —. Legal background to the dispute and summary of the facts

1. Legal background

(a). a statement that the contents are compound feedingstuff s ;

(b). a marking enabling the undertaking benefiting from the aid to be identified. This marking may be in code and in that case shall include the first letter of the name of the country of origin;

(c). the month and year of manufacture;

(d). the skimmed-milk powder content of the finished product.

(a). ...

(b). compound feedingstuffs delivered by tanker or container to a farm or a breeding or fattening concern which uses these compound feedingstuffs under the conditions laid down in Articles 6 and 7.

1. When compound feedingstuffs are delivered by tanker or container the following provisions shall apply:

2. In this case the aid shall be paid only when the undertaking has supplied the competent agency with supporting documents establishing that delivery was made under the conditions referred to in paragraph 1 (b)

(a). the applicant shows to the satisfaction of the competent authority that the corresponding quantity of skimmed milk or skimmed-milk powder has been denatured or processed into compound feedingstuffs during the month for which the aid is applied for;

(b). the analysis report and inspection report referred to in Article 10 (3), issued after the checks made under Article 10 (1) and (2) (a), (b) and (c), during the month preceding that for which the aid is applied for, indicate that the provisions of this Regulation are being complied with.

2. Facts and written procedure

(a). In the case of bulk deliveries within the Netherlands, the Hoofdproduktschap applies the Netherlands provisions, that is to say the Beschikking Denaturatie- en Verwerkingssteun Magere-Melkpoeder 1980 [1980 Order on denaturing and processing aid for skimmed-milk powder]. Consequently, the producer undertaking must attach a detailed record of all bulk deliveries to the processing report which it must submit each month. On receipt of these supporting documents, the Hoofdproduktschap pays the aid, that is to say at the same time as it receives the application for the month in question.

(b). In the case of bulk deliveries to another Member State, the Hoofdproduktschap required proof, in accordance with Article 7 of Regulation No 1725/79, by production of the Control Copy T 5 referred to in Article 10 of Regulation No 223/77; instead of that document it accepts, for deliveries in Belgium the Benelux 5 document referred to in Article 58 of Regulation No 222/77. Since those documents must be certified by the State of destination, the aid is in fact not usually paid until one month after the month of the application.

II —. Written observations

III —. Oral procedure

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 No 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 No 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 Akkerbouwproducten [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 No 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 No 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 :

7. That question, although formally concerned with the interpretation of certain provisions of the EEC Treaty and of Regulation No 804/68, in reality raises the question of the validity of Articles 6 (2) and 7 of Regulation No 1725/79.

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 No 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:

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 No 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.

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 No 804/68, which adapts Article 34 to the common organization of the market in milk and milk products.

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.

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 Bnitoni [1979] ECR 677, paragraph 16, and of 23 February 1983 in Case 66/82 Fromançais [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 No 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 No 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 No 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 No 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 No 1725/79.

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 berore 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: