Opinion of Mr Advocate General Gulmann delivered on 14 September 1993

1 Original language: Danish.

2 OJ, English Special Edition 1968 (I), p. 176.

3 [1990] ECR I-1345. The Court had previously considered various aspects of the scheme in Case 23/84 Commission v United Kingdom [1986] ECR 3581 and in Case 347/85 United Kingdom v Commission [1988] ECR 1749.

4 See the Documents concerning the Accessions to the European Communities, 1987, Volume II, p. 106.

5 OJ 1978 L 171, p. 12.

6 OJ 1978 L 171, p. 14.

7 Sec point 2.2 in the rejoinder.

8 Article 3 of Regulation (EEC) No 1411/71 of the Council of 29 June 1971 laying down additional rules on the common organization of the market in milk and milk products for products falling within tariff heading No 04.01 (OJ, English Special Edition 1971 (II), p. 412) provides the following definitions:... (b) Drinking milk means the following products for delivery as such to the consumer; raw milk: milk ... full cream milk: milk which has been subject to at least one heat treatment or an authorized treatment of equivalent effect by a milk processor and whose fat content is cither at least 3.50% naturally or has been brought to at least 3.50%; semi-skimmed milk: milk which has been subject to at least one heat treatment or an authorized treatment of equivalent effect by a milk processor and whose fat content has been brought to at least 1.50% and at most 1.80% skimmed milk: milk which has been subject to at least one heat treatment or an authorized treatment of equivalent effect by a milk processor and whose fat content has been brought to not more than 0.30%.

9 The variable fat content of cheese obviously docs not affect the product's inherent character as cheese.

10 See Article 9 of Regulation No 1422/78, which provides that with regard to the selling prices applied by the MMBs to milk sold by them, the following shall apply: 1. Prices shall be identical for all buyers concerned and may be differentiated only: (a) on the basis of the use intended by the buyer ....

11 Those heads of claim are as follows: 1. (a) declare that, by failing to ensure that the Milk Marketing Boards do not exceed the exclusive rights granted to them only in relation to whole milk, the United Kingdom has failed to fulfil its obligations under Article 25 (1) of Regulation (EEC) No 804/68; (b) declare that, by failing to prevent the Milk Marketing Boards from rcstricting the possibilities of producers to legally produce and market milk products outside the exclusive rights of the Milk Marketing Boards, the United Kingdom has failed to fulfil its obligations under Regulation (EEC) No 804/68; (c) ... (d) declare that, by failing to ensure that competition is not affected more than is absolutely necessary, the United Kingdom has failed to fulfil its obligations under Article 25 (3) of Regulation (EEC) No 804/68; (e) declare that, by extending the Milk Marketing Schemes in Scotland to tow-fat milk, the United Kingdom has failed to fulfil its obligations under Article 25 (1) of Regulation (EEC) No 804/68; (f) ... So far as head (d) is concerned, the Commission, with the agreement of the United Kingdom, amended it to relate, not to a breach of Article 25 (3) of Regulation No 804/68, but to a breach of Article 10 of Regulation No 1422/78. But that docs not alter the fact that head (d) presupposes that the Court accepts the Commission's primary view regarding the scope of the exclusive right.

12 Case C-40/92 R Commission v United Kingdom [1992] ECR I-3389.