delivered on 5 July 1984 (*1)

CONTENTS

A — Facts

1. Provisions of Community law

2. The facts of the dispute

3. Proceedings in the main action

4. The questions referred for a preliminary ruling

B — Opinion

1. The extent of the purchaser's duty to ensure that butter sold at a reduced price is only processed into certain specified products

(a) Interpretation of Article 6 (a) of Regulation No 1259/72

(b) Interpretation of the word ‘only’ Article 6 (1) (c) of Regulation No 1259/72

(c) Conclusion

2. Conditions for the release of the security (duty to furnish proof)

(a) Proof of manufacture of the end product

(b) Proof of manufacture of the intermediate product within the prescribed period

3. Funher processing of the intermediate products

4. The addition of sodium caseinate

(a) Whether permitted

(b) Duty to funish proof concerning the final destination of the product

C — Conclusions

Mr President,

Members of the Court,

The references for a preliminary ruling on which I am giving my opinion today concern the interpretation of provisions which were introduced in order to reduce the butter surplus in the Community; under those provisions, butter may be sold to certain processing undertakings at reduced prices. The legislation is intended to make the butter held in storage by intervention agencies competitive by comparison with other, cheaper fats which would normally be used in the processing industry.

So far as it is relevant to the two references with which the Court is concerned today the effect of the legislation, in the version that was in force in 1974, may be explained as follows:

1. The butter is sold by way of tender under Article 2 of Regulation No 1259/72 on the disposal of butter at a reduced price to certain Community processing undertakings (Official Journal, English Special Edition 1972 (II), p. 559), as amended by Regulation No 2815/72 (Official Journal, English Special Edition, 30/31 December 1972, p. 5). Under Article 6 of the regulation, a tenderer may not take part in the invitation to tender unless he gives a number of written undertakings, namely:

(a) To have the butter processed into concentrated butter in an approved establishment and in the course of that processing to have certain products incorporated into it (for instance, sugar or a substance derived from vanilla);

(b) To have the resulting products processed only into fine bakers' wares falling within tariff heading No 19.08 of the Common Customs Tariff, edible ices falling within tariff subheadings Nos ex 18.06 B and ex 21.07 C of the Common Customs Tariff, or powder ‘for the preparation of edible ices’ falling within subheadings Nos ex 18.06 D or ex 21.07 F of the Common Customs Tariff (here it is specified that the powders must be suitable for consumption ‘without any treatment other than the addition of water and refrigeration’) (see Regulation (EEC) No 2815/72, Article 6, as cited above).

Article 6 also provides that processing must take place within four months, that the tenderer is to keep stock accounts showing the purchasers of the product obtained as a result of the first processing operation (concentrated butter with certain additives), and that he must ensure that the obligation to process into the final products specified and the obligation to keep stock accounts (referred to above) are incorporated into any contract for resale of the intermediate product which I have just mentioned. Subsequently, by virtue of Regulation No 1910/73 (Official Journal 1973, L 196, p. 10), Article 6 (a) was inserted, whereby further processing of the abovementioned end products is allowed only if such products also fall within the tariff headings referred to above ‘without, at an intermediate stage of such processing, resulting in a product which falls within any other heading.’

Article 9 of Regulation No 1259/72 provides that the minimum selling price and the amount of the processing security to be given by the successful tenderer are to be fixed (the latter in the light of the difference between the market price of butter and the minimum price, according to the provision) on the basis of the tenders received. Article 11 provides that before removing the butter from store, the successful tenderer must pay in principle only the amount of his tender.

Article 15 of the regulation provides that from the time of the butter's removal from store until it is processed into one of the products referred to in Article 6 (1) (c), it is to be subject to customs control or to an administrative control providing equivalent guarantees. Finally, Article 18 of the regulation, as amended by Regulation No 1237/73 (Official Journal 1973, L 128, p. 1), provides that the processing deposit is to be released only for quantities ‘in respect of which the successful tenderer has furnished the proof that the conditions referred to in Article 6 have been met’. The article also provides that the necessary proof, where processing is carried out in the selling Member State, is to be furnished ‘by the production of a document drawn up by the selling Member State’.

2. The legislation described above is relevant to the determination of the cases pending before the national court for the following reasons:

2. In March 1974, the plaintiff in the first action bought butter from the German intervention agency and gave an undertaking, together with a processing security by way of guarantee, to have it processed into concentrated butter and from thence into products including ice-cream powder. It sold part of the butter to Otto Suwelack (a company), which was joined as a party in the administrative proceedings. The latter gave the plaintiff a written undertaking that it would process the butter in accordance with the provisions mentioned above. In July 1974, after the processing of the concentrated butter, Suwelack presented a certificate of the use of raw materials (Rohstoffverwendungsnachweis, a document required by German law) to the customs authorities, together with a processing declaration which stated that a powder for the preparation of edible ices falling within subheadings Nos 18.06 D or 21.07 F of the Common Customs Tariff had been made. However, according to the judgment making the reference, the correctness of which has been disputed in certain respects by the plaintiff and the party joined to the proceedings, considerable amounts of the product were sold not to ice-cream manufacturers but to, inter alia, a company which extracted the sugar (which was apparently sold to a chocolate factory) and processed the rest into milk powder preparations containing varying proportions, as set out in the order making the reference, of ice-cream powder. The milk powder preparations were then sold to a number of undertakings, and it has evidently not been discovered what finally became of them (in any event it has not been established, as was emphasized by the plaintiff, that ice-cream was not in fact manufactured).

The plaintiff in the second action bought butter from the German intervention agency in June 1974, and similarly gave an undertaking that it would process the butter into concentrated butter, which would then be used to manufacture, inter alia, ice-cream powder. It sold some of the butter to the plaintiff in the first action (which was authorized to process it into concentrated butter), and the latter in turn sold the concentrated butter, subject to the written undertaking mentioned above, to Suwelack. Again in this case Suwelack submitted its certificate of use of raw materials in July 1974, after the processing of the concentrated butter, together with a processing declaration in the same terms as those described above, and again (according to the order making the reference, with regard to which the plaintiff has expressed reservations), much of the production was sold not to ice-cream manufacturers but to other undertakings, one of which extracted the sugar and sold it, whilst the rest was processed into milk powder preparations; it is not known what was finally done with the latter after they were sold to various undertakings.

An examination of samples of the powder preparations produced by Suwelack established that they consisted of cream powder containing added sugar falling within tariff heading No 04.02 of the Common Customs Tariff. Thereupon the predecessor in law of the Bundesanstalt für landwirtschaftliche Marktordnung [Federal Office for the Organization of Agricultural Markets, hereinafter ‘the Bundesanstalt’] declared in January and February 1975 that the processing security was forfeit on the ground that the concentrated butter manufactured by the applicant had not been used for the purpose specified.

3. The plaintiffs first lodged an unsuccessful objection against the decision and then appealed to the Verwaltungsgericht [Administrative Court], which granted their appeal. As regards the main issue, which was whether the powder preparation manufactured by Suwelack met the requirements of tariff subheadings Nos 18.06 D or 21.07 F, the court held in December 1980 that the expert opinions which had led to the security's being declared forfeit were valueless because the samples of ice-cream powder upon which they were based were already nine months old. Furthermore, the court held that the small proportion of flavouring agents which was found did not necessarily mean that ice-cream made from the powder would not be suitable for consumption, and that the addition of the binding agent sodium caseinate was unobjectionable because it was permitted in the Benelux countries and whether or not such a powder could be marketed in Germany (where the addition of such agents is prohibited) was not decisive. Moreover, the Verwaltungsgericht adopted the view that it was immaterial that the powder produced by Suwelack was processed by third parties into products other than icecream, since Regulation No 1259/72 governed only the production of powders for the preparation of edible ices and not the final use of the product. In that connection the court also attached significance to the fact that Suwelack had submitted the processing declaration referred to above. It took the view that the burden of proof was thereby reversed, especially as German legislation had not yet established the form of the document which was to be produced under Article 18 (2) of Regulation No 1259/72. Furthermore, it was the consistent practice of the Bundesanstalt für landwirtschaftliche Marktordnung to treat the processing declaration as the document referred to in the abovementioned regulation.

In February and March 1981, the Bundesanstalt appealed against the judgment in the two cases to the Hesse Higher Administrative Court. In the first place it argued that the decision to declare the security forfeit was correct, because powder for the preparation of ice-cream suitable for consumption had not been manufactured. The powder had not in fact been perceptibly sweetened and flavoured, and the ice-cream made from it had not shown sufficient consistency. In the second place, the Bundesanstalt submitted, the issue turned on whether it was proved that the powder had been processed into ice-cream. For that purpose the processing declaration submitted by Suwelack, which did not meet the requirements of Article 18 of Regulation No 1259/72 because it was not accompanied by a customs certificate, was clearly insufficient. Furthermore, the Bundesanstalt emphasized that it was under a Community obligation to extend its supervision to the stages of processing subsequent to the manufacture of the powder, and denied that its practice was to regard the further processing of the ice-cream powder as irrelevant. None the less, even if as a rule it had confined its supervision to the second stage of processing and had formerly released the security after the production of ice-cream powder, the plaintiffs had no right whatsoever to insist that the practice be continued. The existence of such a practice could certainly not prevent the Bundesanstalt from having regard to the fact that after manufacture a powder had been put to a use other than that specified by the legislation.

The respondents in the appeal contended in the first place that as regards the characteristics of the powder, the case-law of the Court of Justice indicated that either sweetening or flavouring was a condition of suitability for consumption, and that since the powder preparation at issue was perceptibly sweetened or flavoured it satisfied that requirement. They also took the view that it was not the end product into which the ice-cream powder was processed that was important but rather whether, as they claimed, the powder complied with the provisions of Article 6 (1) (c) of Regulation No 1259/72. The icecream powder should have been regarded as the end product, and that was why the Bundesanstalt itself regarded any further processing as irrelevant and also why there was no provision for checking what became of the powder, nor for any obligation to impose restrictions on the use of the icecream powder by a subsequent purchaser. The respondents in the appeal had relied on the continuance of that practice; in any event, as they also maintained, it was clear that the abovementioned Article 6 (a) of Regulation No 1259/72 was not applicable in their case because the preamble to Regulation No 1910/73, which introduced that provision, expressly refers only to products in tariff heading No 19.08 of the Common Customs Tariff (fine bakers' wares).

4. The dispute raised a number of questions for the Hesse Higher Administrative Court in connection with the interpretation of Community law, and an answer to those questions, as it explained in detail, was necessary before it could make its decision. Consequently, by orders dated 30 May 1983, it stayed the actions pending before it and submitted the following questions, which were the same in both cases, for a preliminary ruling under Article 177 of the EEC Treaty:

(a) Are the requirements of Article 6 (1) (c) (third option) of Regulation (EEC) No 1259/72 of the Commission of 16 June 1972 (Official Journal, English Special Edition 1972 (II), p. 559) as amended by Article 1 (2) of Regulation (EEC) No 2161/72 of the Commission of 10 October 1972 (Official Journal, English Special Edition 1972 (10 to 31 October), p. 5) to be regarded as satisfied even if the powder for the preparation of edible ices falling within tariff subheadings Nos ex 18.06 D or ex 21.07 F of the Common Customs Tariff has ultimately not been used for the preparation of edible ices and if that powder has been separated into its constituent parts by further processing and those ingredients have been further processed into milk powder preparations and chocolate?

(b) Does the successful tenderer's duty to furnish proof pursuant to the first sentence of Article 18 (2) of Regulation No 1259/72 as amended by Article 3 of Regulation (EEC) No 1237/73 of the Commission of 10 May 1973 (Official Journal 1973, L 128, p. 1) also extend to processing which takes place after the manufacture of the powder for the preparation of edible ices in accordance with Article 6 (1) (c) (third option) of Regulation No 1259/72 as amended by Article 1 (2) of Regulation No 2161/72?

(c) Does Article 6 (a) (which was inserted by Regulation (EEC) No 1910/73 of the Commission of 13 July 1973 (Official Journal 1973, L 196, p. 10)) apply, as is suggested by the preamble, only to products falling within heading No 19.08 of the Common Customs Tariff or does it include ice-cream products falling within tariff subheadings Nos ex 18.06 D or ex 21.07 F of the Common Customs Tariff?

(d) Does the ‘powder for the preparation of the edible ices falling within subheadings Nos ex 18.06 D or ex 21.07 F of the Common Customs Tariff’ in Article 6 (1) (c) as amended by Regulation No 2161/72 represent the sole product of that category into which the butter may be processed or, within the framework of the further processing permitted by Article 6 (a), may all the products falling within subheadings Nos ex 18.06 D and ex 21.07 F be manufactured without the security's being forfeited?

(e) Does the fact that Article 18 (2) as amended by Regulation No 1237/73 makes no reference to Article 6 (a) mean that an infringement of Article 6 (a) does not affect the release of the security or must the release of the security be refused if it is established that there has been an infringement of the said article?

(f) Is the addition of the binding agent ‘sodium caseinate’ inconsistent with the aim of Article 6 (1) (c) (third option) of Regulation No 1259/72, which is to promote the manufacture of ice-cream powder suitable for consumption, if the result of the addition thereof is a powder for the preparation of edible ices which may not be used in the manufacture of ice-cream under the legislation relating to food production and distribution in the Federal Republic of Germany, although it may in some Member States?

(g) If the addition of ‘sodium caseinate’ is held to be of no significance, is it relevant for the release of the security under Article 18 (2), first sentence, of Regulation No 1259/72 as amended by Article 3 of Regulation No 1237/73 that the successful tenderer is unable to prove that the powder for the preparation of edible ices mixed with sodium caseinate has been dispatched to Member States such as Belgium, Luxembourg and the Netherlands which allow the use of the binding agent even for ice-cream powder?

On those questions my opinion is as follows.

1. The first group of questions relates to the extent of the duty of a purchaser of butter sold at a reduced price to have it processed within a specified period (four months) and only into certain specified products (icecream, ice-cream powder and fine bakers' wares), a duty imposed by Article 6 (1) (c), the third option provided by Regulation No 1259/72, which refers to the manufacture of powder for the preparation of edible ices falling within subheadings Nos ex 18.06 D or ex 21.07 F of the Common Customs Tariff. In that connection the national court seeks guidance as to whether the obligation in question is satisfied even if the powder is not used for the preparation of edible ices but is instead separated into its constituent parts and if those ingredients are further processed into milk powder preparations and chocolate. The question makes it clear that here, too, the aforementioned Article 6 (a) of Regulation No 1259/72, the effect of which is one of the points to be determined under Question (c), is relevant.

If in considering those arguments the last-mentioned question, concerning the interpretation of Article 6 (a), is taken first, it will be seen immediately from the wording of that provision that it was intended to determine the only permitted form of further processing for all the products referred to in Article 6 (1) (c), and not only for the fine bakers' wares falling within heading No 19.08 of the Common Customs Tariff. Since the wording of the legislation is quite unequivocal, it is clear that the preamble to Regulation No 1910/73, which naturally carries less weight by comparison, cannot be interpreted so as to restrict its scope. In addition, the preamble may plausibly be accounted for by the fact that evidently attempts to circumvent the rules in the case of pastries provided the immediate occasion for the introduction of Article 6 (a). However, if, as may be concluded from the preamble, it is the purpose of the provision to ensure that processed butter is not diverted from its proper destination, then that purpose itself suggests a broad interpretation, since it is obvious — and the facts of this dispute are a case in point — that the risk of circumvention is present in the case of all the products referred to in Article 6 (1) (c). Thus Article 6 (a) supports a conclusion which might in any event have been drawn solely from the list of goods contained in Article 6 (1) (c), and the latter provision itself makes it clear that the subsequent destination of the intermediate products made from butter and their ultimate use are by no means irrelevant as far as the legislation is concerned. It may also be added that if the facts are correctly described by the national court (and it is not for this Court to determine whether they are) and sugar was indeed extracted from the powder preparations manufactured by Suwelack in a further processing, that would certainly amount to a failure to comply with Article 6 (a); it does not matter whether the powders that remained could still be regarded as ice-cream powder, albeit with less sweetening; the decisive fact is simply that further processing resulted in the production of sugar, a product which certainly does not fall within the tariff headings referred to in Article 6 (1) (c).

It is in fact already clear from that inescapable conclusion regarding Article 6 (a) that the central argument of the plaintiffs and Suwelack, namely that only the manufacture of a powder preparation is relevant and that its subsequent destination is not relevant for the purposes of the legislation, is untenable. However, there are other arguments in favour of the position adopted by the Commission and the Bundesanstalt.

There is the important point that Article 6 lays down an obligation to have concentrated butter processed ‘only’ into certain clearly specified products, namely those set out in subparagraph (c), and this clearly implies that it cannot be used for any other purpose. It is apparent from the third option — powder for the preparation of edible ices suitable for consumption without any treatment other than the addition of water and refrigeration — that subject to the abovementioned Article 6 (a), the powder preparations must be put to that use alone, and that therefore a purchaser of butter who is not processing the butter further himself must ensure that it is used for the purpose specified for it.

Another important consideration is that the preamble to Regulation No 1259/72 states that its purpose is ‘to ensure that the butter is not diverted from its destination.’ That implies that steps must be taken, if necessary by means of contractual provisions to that effect, to ensure that processing results in permanent withdrawal of the product from the market in butter and milk products; there must also be a guarantee that the products of processing do not find their way back to the ordinary market in another form (for instance, as milk powder), which would not be possible if the subsequent fate of a powder preparation manufactured in accordance with Article 6 (1) (c) were irrelevant for the purposes of the legislation.

Furthermore, reference may be made to the case-law of the Court on this topic. For instance, I may recall the position adopted in the judgment in Joined Cases 99 and 100/76 that it must be ensured that the butter sold at a reduced price does not reach the normal market ([1977] ECR 861 at p. 871, paragraph 7). I refer the Court to a similar conclusion in the judgment in Case 217/78 (to ensure that the butter thus disposed of is used in accordance with that purpose and that it is not freely marketed, [1979] ECR 2287 at p. 2300, paragraph 9). Finally, I refer to the judgment in Case 64/81, in which it was stressed that suitability for consumption as an edible ice within the meaning of Regulation No 1259/72 requires treatment of the basic product such that its sole possible application is the production of edible ices [(1982] ECR 13 at p. 25, paragraph 9).

The arguments put forward by the plaintiffs and Suwelack in support of their views provide no conclusive answer to that.

Thus, where they interpret the word ‘only’ in Article 6 (1) (c) of Regulation No 1259/72 as meaning that the purchaser's obligation in relation to the third option extends only to the manufacture of the intermediate product, their argument is open to the objection that it ignores not only the clear meaning and purpose of the legislation, as it appears from the preamble, but also the context of the provision and above all Article 6 (a), which, as is stated in the preamble to Regulation No 1910/73, was only intended to define more precisely what processing was permitted (thus making it clear that further processing of a kind not provided for was already prohibited by Regulation No 1259/72 itself).

The following points must, it is true, be conceded. The obligations of the purchaser as regards the manufacture of ice-cream powder in respect of the keeping of stock records, storage and cooperation (particularly those that are imposed by national provisions) end with the manufacture of the intermediate product. Again, Community legislation does not specifically deal with the manufacture of the end product ‘ice-cream’. Lastly, the manufacture of the ice-cream is not subject to official controls or to a time-limit. However, this evidently means only that certain administrative and even economic constraints were taken into account. Nevertheless, it cannot be concluded, contrary to the clear meaning and purpose of the legislation, that as far as the achievement of the aim of the legislation is concerned the purchaser's obligation ends with the manufacture of the intermediate product.

Reference was also made to the third subparagraph of Article 18 (2), which provides that Member States may deem the necessary proof to have been furnished in the case of small quantities provided that a statement from the final user is submitted. With regard to that point (I shall return later to the extent of the duty to furnish proof), it has been rightly pointed out that an alleviation of the duty to furnish proof does not provide any conclusive indication as to the extent of the substantive legal obligations at issue.

Finally, it is clear that the plaintiffs' reference to remarks said to have been made by Commission officials (but disputed in the oral proceedings), to the effect that the further use of the ice-cream powder was immaterial is irrelevant. Similarly, it cannot be claimed that obliging the purchaser to provide a guarantee covering the manufacture of the end product constitutes a breach of the principle of proportionality (on the ground that the purchaser may thereby be required in certain circumstances to check the destination of the intermediate product personally over a long period and through a number of commercial transactions). The principle applies only to onerous administrative measures, whereas the obligations that arise in the context of Regulation No 1259/72 relate to contracts governed by private law. However, apart from that it does not seem unreasonable to include appropriate conditions in contracts for the resale of intermediate products and to take precautions to ensure that the aims of the legislation are achieved.

Thus it may be concluded with regard to the first group of questions that under Regulation No 1259/72, which contains ample guidance for our purposes, the obligation imposed on the tenderer under Article 6 (1) (c) in respect of the manufacture of ice-cream powder is only fulfilled if ice-cream (or, in accordance with Article 6 (a), one of the products referred to therein) is actually made from the powder preparation, and therefore the relevant undertaking is breached if the ice-cream powder is separated into its constituents and the sugar thus obtained is sold separately.

The second group of questions, to which I now turn, relates to the duty to furnish proof, which is governed by Article 18 (2) of Regulation No 1259/72 (as amended by Regulation No 1237/73) on the fulfilment of which the release of the processing security depends. The national court asks whether the purchaser's duty to furnish proof extends to the stages of processing subsequent to the manufacture of ice-cream powder, or in other words whether, if he does not process the ice-cream powder himself but sells it, he must prove that one of its subsequent purchasers has in fact manufactured ice-cream. That question may be taken together with Question (e), in which a ruling is sought on whether it is correct that an infringement of Article 6 (a) does not affect the release of the security because that provision is not referred to in Article 18 (2).

The plaintiffs and Suwelack have expressed the view that in the case of the third option under Article 6 (1) (c), all that is required is the manufacture of the powder preparation; in determining whether the security should be released no inquiry need be made as to further processing. Article 6 (a), or the failure to observe it, is not relevant in the context of Article 18 (2), in the first place because it is not referred to therein, and in the second place because the further processing of the powder preparation (for which no time-limit is set) generally takes place at a time which is far removed from the inquiry preceding the release of the security; furthermore, Article 18 (3) provides that the security is to be released immediately.

In its written observations, the Bundesanstalt first expressed the view that the duty to furnish proof extended to further processing of the intermediate product ‘ice-cream powder’, and that for that purpose there was no need for Article 18 (2) to refer to Article 6 (a), since the latter provision was introduced merely to facilitate the interpretation of Article 6 (1) (c). In the oral proceedings, however, that position seems to have been relaxed somewhat, since the argument at that stage was that the conditions for the release of the security and those for compliance with the contract of purchase were not equivalent, and that even if the intervention agency lost its claim to the security, that would not entail the extinction of the claim to payment of the full purchase price guaranteed by the security, which would exist if the butter was used in a manner contrary to the legislation. Again, the Commission has adopted a similar view. In its written observations, it states that proof of the manufacture of a powder preparation is insufficient, and it expresses the view that proof must also relate to the stages following the manufacture of the powder preparation. It also states in those observations that the omission of any reference to Article 6 (a) in Article 18 is not significant, since the duty to furnish proof, as may be seen from the subsequent consolidation in Regulation No 232/75, is taken for granted (the most that may be said is that no formal duty to furnish proof applies under Article 6 (a)). In the oral proceedings the argument was modified to the effect that proof of the manufacture of a powder preparation is generally sufficient (because it supports the presumption that it led to the manufacture of ice-cream), but that if there are grounds for believing that there have been irregularities as regards the ultimate use of the ice-cream powder, the competent national agency is entitled to inquire into the matter (here it may be that the burden of proof is reversed), and in any event the security must be declared forfeit if it is established that the product was not used as intended by the legislation or that Article 6 (a) has not been observed.

As regards the first part of this group of questions, it might be assumed, on the basis of the wording of Article 18 (2) (which relates to proof that the conditions referred to in Article 6 have been met), and on the basis of what has been said in connection with the first question as regards the extent of the obligations entered into by the purchaser of butter sold at a reduced price, that it is the manufacture of the end product (ice-cream, in the case of ice-cream powder) that is to be proved. However, it becomes apparent from a number of considerations, in which the relationship of the different rules in particular plays a part, that that interpretation cannot be correct.

Thus the plaintiffs have rightly placed reliance on the judgment of the Court in Joined Cases 99 and 100/76, which states that before the processing security can be released it is necessary only to establish ‘that the processed products comply with the conditions laid down in Article 6 (1) (c) of the regulation and that they have been produced within the period therein prescribed ([1977] ECR 861, at p. 872, paragraph 8). However, Article 6 (1) (c), so far as is relevant for the purposes of the main actions, refers not only to edible ices but also to powder for the preparation of edible ices. Therefore it must be sufficient for the manufacture of the latter product to be proved.

However, even if it is not absolutely necessary to suppose that national supervision of the processing of butter coincides with the purchasers’ duty to furnish proof, it is none the less significant that the former ends, so far as ice-cream powder is concerned, with the manufacture of that product, according to Article 15 of Regulation No 1259/72. It is therefore logical to conclude that the proof required of the processor for the release of the security should not have to cover activities outside the scope of what may reasonably be required of the administration in this field.

Above all it should be noted that in the case of ice-cream powder the time-limit for processing, as is shown clearly by Article 6 (1) (c), relates solely to the manufacture of that product. Thereafter it may be stored by the manufacturer, sold (perhaps a number of times), and at some future time (because no time-limit is laid down therefor) processed into ice-cream by a subsequent purchaser. Moreover, Article 18 (3) provides that the processing security is to be released immediately, in other words as soon as the depositor of the security has furnished the proof required of him. If that proof were to relate to the manufacture of ice-cream from the powder preparation initially produced, the release of the security might not in some cases take place for years. However, that would surely not be consonant with the aforementioned principle that the security must be released immediately, which ought to be viewed in the light of the time-limit referred to in Article 6.

It must therefore be concluded (and there is further support for this in the fact, to which I have already referred, that Article 18 (2) eases the requirement of proof in the case of small quantities) that the release of the security following the manufacture of ice-cream powder is conditional solely on proof that that intermediate product has been manufactured. Thus proof of the end use of the product, which might entail considerable difficulty in some cases, cannot be required. If a subsequent investigation (which a purchaser would no doubt be under a duty to do everything in his power to assist) reveals that despite the assumption by subsequent purchasers of the undertaking only to manufacture one of the products referred to in Article 6 (1) (c) (which the original purchaser is bound to ensure by virtue of Article 6, as I have said) that result was not attained, then the competent national agency may still claim the full purchase price. For that purpose it may rely on the fact that processing did not lead to the results guaranteed by the security and that therefore one of the conditions of the contract of sale of the butter was not fulfilled, precisely because the release of the ‘processing security’ providing the guarantee does not necessarily extinguish the right which is thereby secured. Here national law no doubt determines whether a separate judgment is necessary in order to obtain payment or whether it may, if the security has not yet been released, also be obtained by way of a setoff against the right to release of the security.

Those remarks are also sufficient to cover the second part of the group of questions which is under discussion here, concerning the observance of Article 6 (a).

The decisive fact is that no time-limit is set for the further processing permitted by Article 6 (a), so that it may take place even after the expiry of the time-limit laid down in Article 6 for the manufacture of the products referred to in paragraph (1) (c). Thus the security must in principle be released if it is proved that ice-cream powder has been manufactured in due time, and the purchaser cannot be required to prove that the provisions of Article 6 (a) have been observed in further processing by a subsequent purchaser. On the other hand, it is possible that if on examination of the request for the release of the security, the competent national agency finds evidence of an infringement of Article 6 (a), it may conduct an inquiry (in which the purchaser of the butter sold at a reduced price must cooperate to the best of his ability), and if the agency establishes that there has been an infringement of Article 6 (a) (which would also establish that there has been a failure properly to fulfil the obligation imposed by Article 6), it may decide not to release the security.

A further question, namely question (d), also relates to the interpretation of Article 6 (a) of Regulation No 1259/72. The purpose of the question is to establish whether the permitted further processing of the products referred to in Article 6 (1) (c) includes all the products referred to under tariff subheadings Nos 18.06 D and 21.07 F, or whether it is only powder preparations under tariff subheadings Nos ex 18.06 D or ex 21.07 F, as referred to in Article 6 (1) (c), that may be so manufactured.

I may answer that question briefly. If the facts set out in the order making the reference are correct (that the powder preparations manufactured by Suwelack were subject to a treatment enabling sugar to be extracted and sold separately), then, as I have already explained, there has clearly been an infringement of Article 6 (a) because a product belonging to another tariff heading has resulted from the processing; it is therefore unnecessary to determine whether the remaining powder mixtures still satisfy the requirements of Article 6 (a).

It may, however, be added that the only possible answer to the question is that suggested by the Bundesanstalt, namely that not every product falling within tariff headings Nos 18.06 D and 21.07 F may be manufactured. In that connection it is sufficient to recognize that Article 6 lays down very precise requirements for powder for the preparation of edible ices (regarding milk-fat content and suitability for consumption). Those conditions would obviously be purposeless on a broad interpretation of Article 6 (a). Furthermore, it should be remembered that Article 6 (a) was introduced in order to prevent circumvention of the legislation allowing sale of butter at a reduced price. However, circumvention of those provisions would clearly be facilitated if all the products falling within tariff subheadings Nos 18.06 D and 21.07 F could be manufactured and if, therefore, the products referred to in Article 6 (1) (c) could be processed into all manner of foodstuffs with widely varying milk-fat content.

Finally, I must deal with the group of questions relating to the addition of the binding agent sodium caseinate to the ice-cream powders. The first question that arises in that connection is whether such additives are compatible with Article 6 (1) (c) (third option) of Regulation No 1259/72, if powder preparations including them are permitted in the manufacture of ice-cream in only some EEC countries, and not in the Federal Republic of Germany. The second question is whether, if such additives are not harmful, the release of the security depends on whether the successful tenderer can prove that powder preparations of the kind described have been dispatched to a Member State where their use in the manufacture of ice-cream is permitted.

With regard to the first part of that group of questions, all the parties to the action agree that Article 6 (1) (c) (third option) does not require the powder preparation to be marketable in all the Member States; on the contrary, it is sufficient that its use should be permitted in one of the Member States. On that point the Bundesanstalt points out in its written observations that it is surely possible to satisfy the aim of the legislation even if the products of processing may not be marketed in all the Member States. In addition, the plaintiffs and Suwelack have observed that meeting the requirements of the Common Customs Tariff must be sufficient, because the Commission referred thereto in framing its legislation. It is significant, however, in their view, that according to the Explanatory Notes to the Customs Cooperation Council Nomenclature, which are also relevant to the Common Customs Tariff, sodium caseinate may be used in the manufacture of ice-cream.

I can only concur. If it were necessary, corroboration for that view could be found in the judgment in Case 64/81. There it was stressed that the powder produced from butter must meet all the conditions required for classification of the product under one of the two specified subheadings of the Common Customs Tariff, and the Court also pointed out that the meaning and scope of Regulation No 1259/72 could not be determined by reference to Member States' own legislation ([1982] ECR 13 at pp. 23 and 24, paragraphs 5 and 8).

As regards the second part of the last group of questions, the views of the parties are once again at variance.

The Commission considers that it is essential to furnish proof that the powder preparation has been sold in a Member State in which it may be used in the manufacture of ice-cream. In the same vein, the Bundesanstalt takes the view that such powder preparations must be governed by the requirement that they may only be put into circulation in a Member State where the additive is permitted, and that therefore it must be proved that the product has been imported into such a Member State and used there.

The plaintiffs contend that proofs and examinations which are incompatible with the principle that the security must be released immediately, and which must be regarded as being impracticable both from the point of view of the administration and from that of the undertakings concerned, cannot be required. Suwelack has likewise adopted the view that there is no duty to furnish proof that the powder preparation has been imported into a Member State where the manufacture of ice-cream from that product is permitted. In the first place, it says, the Community legislation does not contain any restriction as to geographical destination. In the second place, it points out that the geographical destination by no means determines whether the powder preparation will remain in the Member State in question or whether it will be re-exported to another country.

My impression is that the correct solution of the dispute lies in what I said as regards the provisions governing the duty to furnish proof and the conditions for the release of the security. If in the manufacture of ice-cream powder the only relevant condition is that the provision in Article 6 (1) (c) (third option) of Regulation No 1259/72 must be observed, and the subsequent destination of the powder is not immediately relevant (since subsequent sales may occur considerably after the expiry of the time-limit mentioned in Article 6), then the conditions for the release of the security certainly cannot include proof that a powder preparation containing the aforementioned additive has been dispatched to a Member State where ice-cream may be manufactured from the mixture without contravening national foodstuffs legislation. However, it has already been shown that a purchaser has a substantive obligation to ensure that the ice-cream powder is finally processed into ice-cream (or another product referred to in Article 6 (a)). It must, therefore, be clear that the answer just given does not affect the question whether a purchaser is under a duty, as a condition of his purchase of the butter at a reduced price and for the purposes of establishing that the aim of the legislation has been achieved, to do everything in his power to assist the necessary inquiry by supplying details of the subsequent destination of the ice-cream powder. However, the consequences of the violation of such a duty do not need to be examined here.

(e)

Breach of Article 6 (a) does not affect the release of the security under Article 18 (2) if the unauthorized further processing of a powder preparation manufactured in accordance with Article 6 (1) (c) takes place only after a decision on the release of the security was to be taken in accordance with Article 18 (3).

(f)

The addition of the binding agent sodium caseinate is not inconsistent with the objective of Article 6 (1) (c) (third option) of Regulation No 1259/72 if the powder thereby produced may be used for the preparation of ice-cream suitable for consumption in one of the Member States of the EEC in accordance with its foodstuffs legislation, even if that is not the case in the Federal Republic of Germany.

(g)

Where sodium caseinate has been used in the manufacture of a powder for the preparation of edible ices in the Federal Republic of Germany, it is irrelevant for the release of the security under Article 18 (2) of Regulation No 1259/72 as amended by Regulation No 1237/73 that the successful tenderer is unable to prove that the powder preparation has been dispatched to a Member State which allows the use of that binding agent.

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(1) Translated from the German.

(2) Judgment in Joined Cases 99 and 100/76 Roomboterfabriek ‘De Beste Boter’ NV and Firma Joseph Hoche, Butterschmelzwerk v Bundesanstalt ßir landwirtschaftliche Marktordnung [1977] ECR 861.

(3) Judgment in Case 217/8 Nicolas Corman & Fils SA v Hauptzollamt Aachen-Süd [1979] ECR 2287.

(4) Judgment in Case 64/81 Nicolas Corman & Fils SA v Hauptzollamt Gronau [1982] ECR 13.

(5) Judgment in Joined Cases 99 and 100/76 Roomboterfabriek ‘De Beste Boter’ NV and Firma Joseph Hoche, Butterschmelzwerk v Bundesanstalt Jur landwirtschafiliche Marktordnung [1977] ECR 861.

(6) Judgment in Case 64/81 Nicolas Corman & Fils SA v Hauptzollamt Gronau [1982] ECR 13.