Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. The Verwaltungsgericht [Administrative Court] Frankfurt am Main has asked the Court for a ruling on the validity and the interpretation of various provisions of Commission Regulation (EEC) No 2793/77 of 15 December 1977 (Official Journal 1977, L 321, p. 30). The Court considered that regulation recently in its judgment of 28 June 1984 in Joined Cases 187 and 190/83 Nordbutter v Federal Republic of Germany [1984] ECR 2553. It is therefore sufficient merely to recall that in order to increase the consumption of milk in the Community the Council made provision for two types of aid. The first was instituted in 1968 for skimmed milk used for feed for animals for slaughter. The second, which is worth more and which is known as special aid, was introduced in 1977 and is intended for fresh skimmed milk used solely for the feeding of animals other than young calves. However, those schemes provided opportunities for fraud, in particular where the livestock of the farms concerned consisted of calves and other animals. Such farms, which are known as mixed farms were able to obtain skimmed milk on the more advantageous terms of the special aid, while using it for feeding calves.

2. The facts of this case are as follows: According to the order requesting a preliminary ruling the Bundesamt für Ernährung und Forstwirtschaft [Federal Board for Food and Forestry, hereinafter referred to as the Board] established in the course of inspections intended to determine whether the above schemes were being properly operated that in the period 1980-1981 various mixed farms had failed to abide by their undertakings and had not complied with the time-limits established in Article 4. The Board therefore ordered the dairy, Nordbutter GmbH (Rendsburg), which had received special aid on behalf of those farms, to reimburse the sums concerned. The dairy brought an action before the Verwaltungsgericht [Administrative Court] against that decision claiming that in calculating the maximum number of calves present on the farms supplied by the dairy, the supervisory body had applied a different criterion to that laid down in Article 4. It also argued that the obligation to reimburse the full amount of the aid where it was found that the declarations of the farmers had not been submitted in time or contained errors exceeded the aims of the regulation and was therefore contrary to the principle of proportionality. Although the Verwaltungsgericht was to a large extent prepared to accept those arguments, it considered it necessary to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling:

3. Commenting on the first question, the Verwaltungsgericht considers the possibility that for the purposes of the 6 kg rule the expression maximum number in Article 4 may refer rather to the average number of calves kept on a farm during the quarter concerned. It is that court's view that, construed in that sense, the provision ceases to penalize farmers who for a certain period keep a higher number of calves than normal and ensures genuine equality of treatment for all the farms.

4. On the basis of the foregoing I propose that the Court should reply as follows to the questions referred to it by the Verwaltungsgericht Frankfurt am Main by order of 13 December 1984 in proceedings between Nordbutter GmbH and the Federal Republic of Germany:

1 Translated from the Italian.