Opinion of Mr Advocate General Mischo

Mr President,

Members of the Court,

In these proceedings the Court is asked to interpret a provision of Commission Regur lation (EEC) No 649/78 of 31 March 1978 on the sale at reduced prices of intervention butter for direct consumption as concentrated butter (Official Journal 1978, L 86, p. 33).

The third indent of Article 5 (1) of that regulation provides that:

In accordance with that regulation, between 25 March 1978 and 12 February 1979, Nicolas Corman et fils SA (hereinafter referred to as Corman) concluded with the Office belge de l'economie et de l'agriculture [Belgian Trade and Agriculture Board, hereinafter referred to as the Board] five contracts pursuant to which it agreed to purchase 210 tonnes of intervention butter at a reduced price. As a guarantee that the butter would be processed into concentrated butter and marketed in accordance with' Regulation No 649/78, Corman lodged the securities provided for in Article 2 of that regulation.

It subsequently re-sold the concentrated butter in packs fitted with transparent plastic lids.

Inside the packs a sheet of paper was placed on the concentrated butter, bearing the required statement, which could be read through the transparent lid.

Following an investigation the Commission informed the Board that that packaging did not comply with the requirements of the abovementioned article and that it was liable to create opportunities for fraud in connection with the subsequent use of the butter.

At that point the securities lodged in respect of two of the five contracts had already been released. The Board refused to release the remaining three securities.

In order to obtain the release of those securities, Corman brought an action against the Board before the tribunal de première instance [Court of First Instance], Brussels.

The Board in its turn lodged a counterclaim for the repayment of the other two securities.

In order to determine the exact scope of the abovementioned Article 5, the Brussels court referred the following question to the Court of Justice :

In order to show that its packaging of the concentrated butter complied with the requirements of the regulation, Corman relied on the following arguments:

I propose to examine those arguments in turn.

In two judgments of 7 February 1979 (Case 11/76 Netherlands v Commission [1979] ECR 245, paragraph 9 of the decision, and Case 18/76 Germany v Commission [1979] ECR 343, paragraph 8 of the decision), the Court held that:

As far as this case is concerned it has been seen that it was probably slightly less expensive to use packs with transparent lids requiring the addition of only a sheet of paper bearing a printed statement than to use packs with lids on which the statement was printed. That would seem to be established by the fact that Corman was able to deliver concentrated butter in Germany after removing the sheet of paper and replacing it with another sheet bearing the required statements in German. It is thus possible that competition was to some extent distorted.

It may consequently be concluded that the presentation chosen by Corman

It is for the national court to consider what importance may be attached to the fact that the Board, at least tacitly, accepted the solution chosen by Corman because, together with the national milk board, it carried out inspections at the premises of the company during the processing and packaging operations without raising any objection. Each packaging would seem even to have been the subject of a certificate of conformity signed by representatives of those two bodies.

Clearly the Board could easily have asked the Commission in good time how Article 5 should be interpreted. But it is also true that the same possibility was open to Corman.

I would further note in passing that I have not found any provision of Community law which provides clearly that the repayment of a processing security should be refused where packaging does not comply with requirements of the abovementioned Article 5.

A provision concerning the forfeiture of the security was indeed inserted in Regulation No 649/78 by Commission Regulation No 131/79 of 25 January 1979 (Official Journal 1979, L 19, p. 19).

The article in question is Article 10a. That article provides for a reduction in the amount of security forfeited where the time-limit for processing has been exceeded by less than 20 days; in addition, paragraph (4) thereof reads as follows:

Commission Regulation (EEC) No 1687/76 of 30 June 1976 lays down common detailed rules for verifying the use and/or destination of products from intervention (Official Journal 1976, L 190, p. 1). It has been repeatedly amended.

Article 13 (4), as amended by Regulation No 1723/77 of 28 July 1977 (Official Journal 1977, L 189, p. 39), provides that:

Article 12, which would seem to apply in this case, reads as follows:

Article 2 (1) of Regulation No 1687/76 provides that:

Finally Article 3 of Regulation No 1687/76, as amended by Regulation No 3135/75 (Official Journal 1976, L 353, p. 38), provides that:

The Commission would therefore seem to have omitted to adapt Regulation No 1687/76 to the requirement of presentation in packs.

On the other hand, I consider that it is difficult to infer from the abovementioned regulation that a method of packaging such as that chosen by Corman which differs only partially from the method described must necessarily lead to the confiscation of the entire security.

However, those observations go beyond the scope of the question submitted by the tribunal de première instance, Brussels, to which I propose that the Court should reply as follows:

1 Translated from the French.

2 Translator's note: the word packaging (emballage) does not appear in the English version.

3 Das Butterreinfett muß in Bechern von höchstens 250 g, die so aufgemacht sind, dass Butterreinfett nicht mit Butter verwechselt werden kann, vermarktet werden und auf der Oberseite der Verpackung in mindestens 5 mm grossen Buchstaben eine oder mehrere der folgenden Aufschriften tragen