B —The Commission
The Commission states that under the detailed rules of Regulation No 1403/69, the granting of the denaturing premium is subject to supervision by the intervention agency of the denaturing operations and that in Germany the premium is only granted in the case of cereals, which have been denatured in accordance with the law in ‘a recognized denaturing plant’. The Commission points out that the defendant makes particular reference to the fact that it is impossible for it to supervise the whole of each stage of denaturing by its own supervisors and it must have recourse to supervision on the spot by sampling as well as the inspection of the books of account. This is the reason why conditions of probity imposed on the undertaking must be reinforced as, in such circumstances, the premium is paid on the basis of the ‘denaturing certificate’ by means of which the undertaking itself testifies that the denaturing was carried out in accordance with the law.The Commission is or the opinion that, to be able to answer the question of the national court, one must know whether a Member State can, on grounds of ‘personal probity’ refuse to recognize an undertaking as one suitable for denaturing without infringing Community law. In other words, it is a question of whether or not the provisions of German law on this matter are compatible with the Community legislation governing denaturing premiums.The Commission states that there is no specific provision determining in what manner and by what method the national intervention agencies are to carry out their obligations. It adds that present legislative practice and the allocation of Community tasks shows that the Community legislature did not make any attempt to enact its own detailed provisions on procedural matters and instead left the Member States complete freedom to settle, in respect of organization and procedure, the detailed rules necessary for the essential measures of supervision in relation to their own legal systems and on their own responsibility, by allowing them to choose the solution most apt for their capabilities and their needs. The Commission refers to Case 39/70 from which it follows, in its opinion, that the national authorities are not forbidden in general terms to make a denaturing plant's participation in the system of premiums dependent on special approval. And in respect of such approval, the Member States are by no means unable if need be to lay down, in addition to Community criteria applying to a denaturing plant, other conditions peculiar to the State concerned.In the Commission's opinion, the condition of ‘personal probity’ necessary for recognition as a denaturing plant and the justification for it depends strictly on the technical detailed rules and the degree of certainty offered by the supervision methods chosen, and in this respect it must not be ignored that the considerable financial importance of this system of grants involves the risk of abuse. It is within this general framework of diligence and efficacy that one requires that the intervention agencies only give aid for reasons of certainty, to denaturing plants whose commercial capacity, diligence and probity do not give rise to any serious doubt.The Commission admits that the liberty given to the German intervention authority to draw up its own rules as to the disputed methods of supervision is to cease when the condition of ‘personal probity’ demanded of the applicant to enable him to obtain recognition as a denaturing plant affects the material scope of the provisions on premiums in Regulations Nos 172/67/EEC and 1403/69, and compromises the acquisition or the implementation of the plaintiff's rights or at least subjects them to unilateral national conditions which cannot be accepted in the interests of a uniform application of Community law. (The Commission refers to Cases 34/70 and 39/70).The Commission also admits that recognition as a denaturing plant and refusal to grant such recognition unquestionably exceed the defendant's powers as to internal organization and are thus in principle capable of affecting the plaintiff's legal position under the common system of premiums. But the Commission states that the defendant's directives draw a clear distinction between the denaturer who either denatures himself, or has denaturing carried out, on his own account, the premium coming to him, and the denaturing plant in which the cereals are denatured; and it observes that apart from the reasons on which it based its decision, the rejection of the application only applies to the quality of the plaintiff in its capacity as a denaturing plant and does not aim at excluding its rights or its ability to claim the premium is a denaturer. The Commission maintains that even if the wording of Regulations Nos 172/67/EEC and 1403/69 does not specifically state it, these provisions indicate that it is the ‘denaturer’ who has the right to the premium and not the denaturing plant as such.The Commission maintains that if one considers the scope of a refusal of recognition, one can see that it is in no way forbidden for the plaintiff to carry on its activity as a denaturing plant but it is merely forbidden to perform the denaturing for its own account or for the account of another for the purpose of obtaining the premiums and profiting thereby. Looked at in this way, one can nevertheless state, in the Commission's opinion, that the Community premium system gives no definite guarantee to the plaintiff to be financially assisted in his denaturing business by means of corresponding premiums. Such benefit is only an indirect request and not the aim or the justification of the system of premiums, and it is not therefore, the subject of a right established in Community law.Even if one begins to doubt the admissibility of the condition of ‘personal probity’ from the viewpoint of an infringement of general principles such as those of equal opportunity and equal treatment, the Commission claims that one always reverts, with regard to the infringement of Community law, to the question of whether Community law adequately ensures in the case at issue the legal position of the denaturing plant.The commission, referring to the regulations in force in other Member States, points out, that denaturing plants are recognized by different criteria in the various Member States and one cannot, therefore, find at Community level uniformity of the legal position and of interests from which alone an infringement of the principle of equal treatment can be dealt with under the procedure of Article 177 of the EEC Treaty.Finally, on the question whether refusal of recognition as a denaturing plant on the ground of ‘personal probity’ exceeds the limits of what is essential and reasonable, the Commission is of the opinion that one must not reply in a general manner, but only by comparing the effects of such refusal with the requirements and the nature of the methods of supervision applied in each case. It adds that it is highly doubtful whether any reference to Community law can be made if it leaves the choice of the method of supervision to Member States and if the refusal on grounds of personal probity does not affect the rights of the plaintiff guaranteed by Community law. Finally, subject to all the principles in provisions being both of a general and individual nature such as those concerning the ‘personal probity’ of the applicant, the Commission arrives at the conclusion that with regard to a denaturing plant under the system of denaturing premiums for cereals, the Community provisions with regard to procedure and supervision or the general principles of law are not opposed to the use of this construction and do not limit in an unwarranted manner the rights of the plaintiff guaranteed by Community legislation.
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