OPINION OF MR ADVOCATE-GENERAL TRABUCCHI

DELIVERED ON 7 MAY 1975 (*1)

Mr President,

Members of the Court,

The College van Beroep voor het Bedrijfsleven has referred under Article 177 of the EEC Treaty for a preliminary ruling on the following questions:

Does a correct interpretation or Article 1 (c) of Regulation (EEC) No 986/68 (of the Council involve that the term ‘at content’ in that Article must be interpreted as meaning only the proportion of pure milk fat present in milk powder and that that term does not also include the proportion of other fat-like substances present in milk powder, such as, in particular, phosphatides?

The regulation referred to lays down general rules for granting aid for skimmed milk and skimmed milk powder for use as feed. Article 1 of the regulation defines the products qualifying for these aids. Among them is skimmed milk powder, which is defined as ‘milk in powder form with a maximum fat content of 1·5 %’.

The plaintiff in the main action was refused aid by the competent national authority in respect of two consignments of denatured milk powder because it had a fat content greater than the 1·5 % provided for under the abovementioned provision. The firm concerned objected that the amount of fats registered by use of the Röse-Gottlieb method of analysis includes a certain percentage of phosphatides and that, in order to establish the real quantity of pure fats in the milk powder analysed by this method it is therefore necessary to deduct from the above-mentioned percentage the amount of phosphatides included in it; in the present case this would result in reducing the actual level of fats below 1·5 %.

It seems clear that when the Röse-Gottlieb method is used to measure the amount of fats it includes phosphatides and that these fat-like substances are, from the chemical point of view, distinguishable from fats. However, it has also been made clear that, in the trade, a reference to fat content in the case of the product concerned usually refers, purely and simply, to the outcome of analysis by the method currently used without any implication that it is necessary to subtract the percentage of any phosphatides it may contain. Moreover, it appears that the Röse-Gottlieb method must, for the purpose of determining the fat content of milk powder, be recognized as the most correct and precise and that it is the method of calculation generally relied upon. In the absence, therefore, of a Community rule specifying the method of analysis to be adopted, its use must be accepted as correct. However, this does not suffice to dispose of the question submitted by the Netherlands court or to answer the question put by the plaintiff in the main action who, after pointing out that the outcome of the Röse-Gottlieb method of analysis undoubtedly includes the figure of 0·14 % of phosphatides, has asked why the accuracy of this method should not be enhanced by subtracting this percentage from the result obtained.

As the Commission has pointed out, various other Community regulations refer to the criterion of the fat content of milk. The regulations do not normally differentiate between pure fats and impure fats and they normally include fat-like substances which, when the methods of analysis known to the Community legislature and in current use in the Member States for skimmed milk powder are applied, cannot be separated from fats in the strict meaning of this word. Furthermore, under the legislation applied in the majority of the Member States it appears to be the general practice, in the absence of provision to the contrary, to include phosphatides in the proportion of fats in milk.

As the legislature drew no distinction between pure fats and the fat-like substances which are normally found with them, and since the result of applying the methods of analysis generally used is well known, it is reasonable to conclude that fat-like substances such as phosphatides should not be excluded from the percentage of fats referred to in Article 1 (c) of the regulation.

This conclusion seems to be consistent with practical requirements, as is shown by the fact, accepted by the Commission, that a method of analysis based on the percentage of pure fats would be less satisfactory than the Rose-Gottlieb method in ensuring that there is no duplication of aid, i.e. that a milk-based product in receipt of aid in respect of its fatty ingredients is not also the subject of consideration for additional aid in respect of its protein ingredients, in such a way as to exceed the permitted amount of aid for whole milk which is the basis on which the level of the subsidy is fixed for the various products derived from milk.

For these reasons, I recommend that the reply to the question referred by the Netherlands court should be as follows: the expression ‘fat content’ contained in Article 1 (c) of Regulation (EEC) No 986/68 of the Council does not exclude the fat-like substances, such as phosphatides, which are normally found with the pure fat in milk powder.

(*1) Translated from the Italian.

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Language of the case: English.