Opinion of Mr Advocate General Van Gerven delivered on 24 May 1989

1 Original language Dutch

2 Commission Regulation (EEC) No 45/84 amending Regulation (EEC) No 1687/76 laving down common detailed rules for verifying the use and/or destination of products from intervention; OJ 1984. L 7, p 5

3 Commission Regulation (EEC) No 1687/76 of 30 june 1976, OJ 1976, L 190. p 1

4 Sec Council Regulation (EEC) No 1278/84 of 7 May 1984 laying down the implementing rules for 1984 for Regulation (EEC) No 3331/82 concerning food-aid policy and food-aid management, OJ 1984, L 124, p 1. and Commission Regulation (EEC) No 1354/83 of 17 Mas 1983 laying down general rules for the mobilization and supply of skimmed-milk powder, butter and butteroil as food aid, OJ 1983, L 142, p 1, as amended by Regulation (EEC) No 1986/83, OJ 1983, L 187, p 29, see in particular also Commission Regulation (EEC) No 3295/84 of 23 November 1984 on the supply of various lots of skimmed-milk powder as food aid, OJ 1984, L 309, p 16, and Annex E thereto

5 See Annex E cited in footnote 3 above

6 Article 18(2) of Regulation (EEC) No 1354/83, from Article 18(8) of the same Regulation it is moreover clear tbat he must bear the risk of deterioration until the time of shipment

7 It is not clear whether the security was released on the basis of Article 26(2) (proof that the conditions on use and/or destination have been satisfied) or on the basis of Article 26(9) (force majeure) of Regulation (EEC) No 1354/83. The answer to this question is in any event irrelevant for the purposes of the question of law at issue. It is clear from Article 16(3) of the same Regulation that the rights and obligations arising from the award are not transferable. This means that the legal relationship between Schenker and the German intervention agency was not transferred to Vreugdenhil.

8 Council Regulation (EEC) No 75-1/76 of 25 March 1976, OJ 1976, L 89, p 1

9 The rights and obligations arising from the award shall not he transferable

10 Council Regulation (EEC) No 1147/86 amending Regulation (EEC) No 734/76 on the customs treatment applicable to goods returned to the customs directory of the Community, OJ 1986. L 105, p 1

11 These are rules which, instead of providing for export refunds, give the right to import specified quantities of the same product free of import duties. These rules are regularly applied in the heef and veal sector and were for a long time also applied in the fats and oils sector.

12 Article 7 of Commission Regulation (EEC) No 2437/87 of 11 August 1987 providing for the grant of private storage aid fixed at a standard rate in advance in respect of carcasses, half-carcasses, hindquarters and forequarters from adult male bovine animals; OJ 1987, L 225, p. 13.

13 Sec Commission Regulation (EEC) No 3916/88 of 15 December 1988 extending the period of validity of the measures provided for by Regulation (EEC) No 3191/80 on transitional measures concerning non-recovery of the variable slaughter premium for sheepmeat and goatmeat products exported from the Community; OJ 1988, L 347, n. 57.

14 Regulation (EEC) No 569/88 laying down common detailed rules for verifying the use and/or destination of goods from intervention; OJ 1988, L 55, p. 1

15 Judgment of 10 March 1971 in Case 38/70 Tradax v Einfuhr und Vorratsstelle Getreide [1971] ECR 145, chiefly at paragraph 10, second sentence.

16 Judgment of 10 March 1971 in Case 58/70 Compagnie Continentale v Hoofdproduktschap voor Akkerbouwpro-dukten [1971] ECR 163, paragraph 15.

17 This Committee was set up by Article 7 of Regulation (EEC) No 1798/75 of the Council of 10 July 1975 on the importation free of Common Customs Tariff duties of educational, scientific and cultural materials; OJ 1975, L 184, p. 1. Article 9 of that Regulation prescribes the procedure: the Committee gives an opinion on a draft submitted by the Commission. If the proposed measures conform with the opinion of the Committee acting by a weighted majority, the Commission may adopt the text. If the proposed measures do not conform with the opinion of the Committee, the Commission forthwith submits a proposal to the Council, which acts by a qualified majority. If after three months the Council has not acted, the proposed measures are adopted by the Commission.

18 Regulation (EEC) No 2945/76 laying down provisions for the implementation of Council Regulation (EEC) No 754/76 on the customs treatment applicable to goods returned to the customs territory of the Communitv; OJ 1976, L 335, p. 1.

19 Judgment of 11 March 1987 in Joined Cases 279, 280, 285 and 286/84 Ran v Commission [1987] ECR 1069, paragraphs 14 and 15.

20 Judgment of 15 May 1984 in Case 121/83 Zuckerfabrik Franken v Hailptzollamt Würzburg [1984] ECR 2039, paragraph 13.

21 See, for example, Article 11(5) and 26(3) of Regulation No 136/66/EEC of the Council on oils and fats, cued in the preamble to Regulation (EEC) No 1687/76 and, for the milk-products sector, Anicie 6(7) and Article 7(5) of Regulation (EEC) No 804/68, OJ, English Special Edition 1968 (1), p 176

22 See the ludgmcnt of 14 February 1989 in Case 13/88 Knoeckel v Hauplzollamt Landau [1989] ECR 337, in particular paragraph 28.

23 Case 66/82 Fromençais SA v Forma [1983] ECR 395.

24 See, for example, the judgment of 20 January 1979 in Case 122/78 Buitoni v forma [1979] ECR 677; of 21 June 1979 in Case 240/78 Atalanta Amsterdam BVv Produktschap voor Vee en Vlees ĮI979] ECR 2137; of 23 February 1983 in Case 66/82, cited above; and of 24 September 1985 in Case 181/84 The Queen, ex parte Man (Sugar) Limited v Intervention Board for Agricultural Products [1985] ECR 2889.

25 That is apparent, moreover, from Article 16(3) of Regulation (EEC) No 1354/83: The rights and obligations arising from the adjudication are not transferable which I have already cited (in paragraph 1, footnote 7, and paragraph 3).

26 Neither the Court (nor the Commission) has been told of the precise circumstances and conditions of the transaction, such as the identity of the purchasers (Schenker, an insurer, the intervention agency?), the moment at which ownership was transferred, the risks and any insurance against damage or force majeure, the price and whether the security to be lodged may be deducted from it.

27 See, for example, paragraph 20 of the judgment in Case 122/78 Buitoni; paragraph 10 of the judgment in Case 240/78 Atalanta; and paragraphs 20 to 28 of the judgment in Case 181/84 Man (Sugar) Limited, cited in footnote 23 above.

28 In paragraphs 10 to 13 and 18. See also judgment of 2 December 1982 in Case 272/81 RUMI v Forma [1982] ECR 4167, and in particular paragraphs 11 and 12.