61973J0003

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AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - CEREALS - DENATURING - SUPERVISION - MEMBER STATES - POWERS - OBLIGATIONS

( REGULATION NO 172/67 OF THE COUNCIL, ART . 7; REGULATION NO 1403/69 OF THE COMMISSION, ART . 4 ( 3 ))

THE COMMUNITY LEGISLATURE REFRAINED FROM ENACTING PROVISIONS REGULATING IN DETAIL THE PROCEDURE FOR SUPERVISION OF DENATURING OF CEREALS, LEAVING THE MEMBER STATES THE POWER TO REGULATE THE DETAILED RULES OF SUPERVISION UNDER THEIR OWN LEGAL SYSTEM AND ON THEIR OWN RESPONSIBILITY .

THE NATIONAL LEGISLATURE IS OBLIGED TO ENSURE BY ADEQUATE SUPERVISION THAT DENATURING IS CARRIED OUT IN ACCORDANCE WITH THE RELEVANT PROVISIONS AND THAT CLAIMS FOR PREMIUMS ARE WELLFOUNDED . FOR THIS PURPOSE IT MAY SUBJECT PLANTS WISHING TO CARRY OUT DENATURING TO A SYSTEM OF SPECIAL APPROVAL, AND DEMAND THAT THE MANAGERS POSSESS THE PERSONAL QUALITIES NECESSARY TO AVOID RISKS OF ABUSE . THE REFUSAL TO PLACE ANY TRUST IN A PLANT IS SUBJECT TO JUDICIAL CONTROL .

IN CASE 3/73

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE HESSISCHER VERWALTUNGSGERICHTSHOF, VIITH SENATE, FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN :

HESSISCHE MEHLINDUSTRIE KARL SCHOETTLER KG

AND

EINFUHR - UND VORRATSSTELLE FUER GETREIDE UND FUTTERMITTEL,

ON THE INTERPRETATION OF CERTAIN PROVISIONS OF REGULATION NO 172/67/EEC OF THE COUNCIL OF 27 JUNE 1967 AND OF REGULATION NO 1043/69/EEC OF THE COMMISSION OF 18 JULY 1969,

1 BY ORDER DATED 20 NOVEMBER 1972, RECEIVED AT THE COURT ON 23 JANUARY 1973, THE HESSISCHER VERWALTUNGSGERICHTSHOF REFERRED, UNDER ARTICLE 177 OF THE EEC TREATY TO THE COURT, FOR A PRELIMINARY RULING ON THE INTERPRETATION OF REGULATION NO 172/67/EEC OF THE COUNCIL OF 27 JUNE 1967 ( OJ NO 130 OF 28 JUNE 1967, P . 2602 ) ON GENERAL RULES GOVERNING THE DENATURING OF WHEAT AND RYE OF BREAD-MAKING QUALITY AND OF REGULATION NO 1403/69/EEC OF THE COMMISSION OF 18 JULY 1969 LAYING DOWN DETAILED RULES FOR THE APPLICATION OF THE PROVISIONS CONCERNING DENATURING OF COMMON WHEAT AND RYE OF BREADMAKING QUALITY .

BY THE TERMS OF THE QUESTION, IT IS ASKED WHETHER THESE REGULATIONS MUST " BE INTERPRETED AS MEANING THAT THE DENATURING MUST BE CARRIED OUT ENTIRELY UNDER THE PERSONAL SUPERVISION OF AN OFFICIAL OF THE INTERVENTION AGENCY " - OR " WHETHER THE REQUIREMENT OF SUPERVISION MAY BE SATISFIED IF THE INTERVENTION AGENCY MERELY ENSURES THE POSSIBILITY OF AN INSPECTION OF THE DENATURING OPERATION AT ANY MOMENT, BUT REQUIRES " RELIABILITY " ( ZUVERLAESSIGKEIT ) ON THE PART OF THE PERSON IN CHARGE OF THE DENATURING PLANT ".

2 ARTICLE 2 OF REGULATION NO 172/67/EEC PROVIDES THAT THE METHODS EMPLOYED FOR DENATURING MUST ENSURE THAT DENATURED WHEAT AND RYE CAN NO LONGER BE USED FOR HUMAN CONSUMPTION AND THAT THESE METHODS MUST BE AT LEAST AS EFFECTIVE AS A STANDARD METHOD TO BE DETERMINED .

ARTICLE 7 PROVIDES THAT " TO QUALIFY FOR THE PREMIUM DENATURING SHOULD BE EFFECTED IN AGREEMENT WITH THE INTERVENTION AGENCY AND UNDER ITS SUPERVISION ".

3 REGULATION NO 1403/69/EEC FIXES THE STANDARD METHOD FOR DENATURING BY COLOURING, PROVIDES THAT IN THE CASE OF DENATURING OTHERWISE THAN BY COLOURING THE MEANS USED MUST BE AT LEAST AS RELIABLE AS THE STANDARD METHODS, OUTLINES THE COMPOUND FEEDINGSTUFFS TO BE USED IN DENATURING BY ADMIXTURE, AND DEFINES THE QUALITY OF CEREALS QUALIFYING FOR A PREMIUM .

IN PURSUANCE OF THE TERMS OF REGULATION NO 172/67/EEC, ARTICLE 4 ( 3 ) OF REGULATION NO 1403/69/EEC PROVIDES THAT " THE GRANTING OF A DENATURING PREMIUM SHALL BE SUBJECT TO SUPERVISION BY THE INTERVENTION AGENCY OF THE PROCESS OF DENATURING OF COMMON WHEAT OR OF ITS ADMIXTURE UNALTERED WITH COMPOUND FEEDINGSTUFFS ... "

( A ) AS TO THE FIRST PART OF THE QUESTION

4 THE PROVISIONS ARE RESTRICTED TO INDICATING THAT SUPERVISION IS INDISPENSABLE WITHOUT SPECIFYING IN WHAT MANNER AND BY WHAT METHOD THE NATIONAL INTERVENTION AGENCIES ARE TO FULFIL THEIR OBLIGATIONS OF SUPERVISION .

THE WORD SUPERVISION IMPLIES AN ADEQUATE INSPECTION CARRIED OUT BY THE STATE AGENCIES OR BY AGENCIES APPOINTED BY IT .

IN THE MANAGEMENT OF THIS SUPERVISION THE NATIONAL LEGISLATURE IS OBLIGED TO ENSURE THAT THE DENATURING IS CARRIED OUT IN ACCORDANCE WITH THE RELEVANT PROVISIONS AND THAT CLAIMS FOR PREMIUMS ARE WELL FOUNDED .

5 DIFFERENT METHODS OF SUPERVISION SUCH AS SAMPLING, AUDIT, OR RECOGNITION OF DENATURING PLANTS CAN, INDIVIDUALLY OR IN COMBINATION, BE EQUALLY EFFECTIVE EVEN THOUGH NONE OF THEM CONSTITUTES AN ABSOLUTE GUARANTEE .

6 THE COMMUNITY LEGISLATURE REFRAINED FROM ENACTING PROVISIONS REGULATING THE PROCEDURE FOR SUPERVISION IN DETAIL, LEAVING THE MEMBER STATES THE POWER TO REGULATE THE DETAILED RULES OF SUPERVISION UNDER THEIR OWN LEGAL SYSTEM AND ON THEIR OWN RESPONSIBILITY BY CHOOSING THE MOST APPROPRIATE SOLUTION, WITHOUT REQUIRING THE CONSTANT PRESENCE OF AN OFFICIAL THROUGHOUT THE DENATURING PROCESS .

7 IT FOLLOWS THAT THE FIRST PART OF THE QUESTION MUST BE ANSWERED IN THE NEGATIVE .

( B ) AS TO THE SECOND PART OF THE QUESTION

8 THERE IS NO RULE OF COMMUNITY LAW OPPOSED TO A MEMBER STATE SUBJECTING THE POSSIBILITY OF A DENATURING PLANT BENEFITING FROM THE SYSTEM PROVIDED TO THE CONDITION OF SPECIAL RECOGNITION .

THE RIGHT TO A PREMIUM IS NOT AFFECTED BY REFUSAL TO RECOGNIZE A PLANT AS ONE FOR DENATURING AS THE OWNER OF CEREALS IS STILL FREE TO HAVE HIS STOCKS DENATURED IN ACCORDANCE WITH THE LAW IN A RECOGNIZED DENATURING PLANT .

9 IN VIEW OF THIS, THE INTERVENTION AGENCIES CAN DEMAND THAT THE MANAGERS OF PLANTS POSSESS THE PERSONAL QUALITIES NECESSARY TO AVOID THE RISKS OF ABUSE .

IT HAS ALREADY BEEN STATED THAT, AS THE COMMUNITY REFRAINED FROM MAKING RULES FOR THE PROCEDURE FOR SUPERVISION, THE MEMBER STATES WERE LEFT WITH THE TASK OF ENACTING DETAILED RULES FOR THIS IN RELATION TO THEIR OWN LEGAL SYSTEM AND ON THEIR OWN RESPONSIBILITY .

MOREOVER, IT IS TO BE NOTED THAT THE REFUSAL TO PLACE ANY TRUST IN A PLANT CARRYING OUT DENATURING IS, AS CAN BE SEEN FROM THE DOCUMENTS IN THE FILE, NOT WITHDRAWN FROM JUDICAL CONTROL BUT IN FACT SUBJECT TO IT .

10 IT FOLLOWS THAT THE SECOND PART OF THE QUESTION MUST BE ANSWERED IN THE AFFIRMATIVE .

11 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES AND BY THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE AND AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE HESSISCHER VERWALTUNGSGERICHTSHOF, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

THE COURT

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE HESSISCHER VERWALTUNGSGERICHTSHOF BY ORDER DATED 20 NOVEMBER 1972, HEREBY RULES :

1 . ARTICLE 7 OF REGULATION NO 172/67/EEC OF THE COUNCIL OF 27 JUNE 1967 AND ARTICLE 4 ( 3 ) OF REGULATION NO 1403/67/EEC OF THE COMMISSION OF 18 JULY 1969 DO NOT REQUIRE THAT THE ENTIRE DENATURING PROCESS BE CARRIED OUT UNDER THE PERSONAL SUPERVISION OF AN OFFICIAL OF THE INTERVENTION AGENCY .

2 . THE REQUIREMENT OF SUPERVISION IMPOSED BY THE REGULATIONS IN QUESTION MAY BE SATISFIED IF THE INTERVENTION AGENCY MERELY ENSURES THE POSSIBILITY OF AN INSPECTION OF THE DENATURING OPERATION AT ANY MOMENT, BUT REQUIRES " RELIABILITY " ( ZUVERLAESSIGKEIT ) ON THE PART OF THE PERSON IN CHARGE OF THE DENATURING PLANT .