Opinion of Mr Advocate General Darmon

Mr President,

Members of the Court,

1. The Coöperatieve Melkproducentenbedrijven Noord-Nederland, trading under the name of Frico (I shall refer to it as such) was requested early in 1983 to supply butter to an entrepreneur organizing Butterfahrten (butter-buying cruises) — that is to say, as the Netherlands court explains,

2. For the purposes of this case, it should be added that Article 17 of Commission Regulation No 2730/79 of 29 November 1979 laying down common detailed rules for the application of the system of export refunds on agricultural products (Official Journal L 317, p. 1) provides as follows:

3. In Frico's view the prohibition contained in Article 17 of Regulation No 2730/79 is constitutive and not declaratory in character, since it was necessary to adopt an express provision to put a stop to the deflection of trade due to the reintroduction into the Community of tax-free products on which refunds had previously been granted.

4. The Netherlands Government admits that granting MCAs on the exportation of products which are to be reintroduced into the Community is contrary to the purpose of the compensatory system. Nevertheless, it takes the view that since payment of MCAs on exportation is compulsory under Article 2 of Regulation No 1371/81 and there is no condition in the regulation as to the destination of the goods exported (see Article 1 (2) (c)), the powers of the national authorities are restricted. In other words, it would require an express provision to restrain them from paying MCAs for goods sold for butter-buying cruises.

5. Neither the arguments set forth by Frico nor those of the Netherlands Government carry conviction. Rather, it is the main arguments put forward by the Commission in its written observations which should be upheld.

6. In the light of those considerations the a contrario argument derived from Article 17 of Regulation No 2730/79 seems to be irrelevant. It is not possible to override the purpose and the actual terms of the legislation governing MCAs by pleading the silence of that legislation on the supplies in question — in other words, by sheer formalism to infer meaning from the absence of any express provision equivalent to Article 17.

7. In conclusion I propose that the Court should reply to the College van Beroep as follows:

1 Translated from the French.