151/85 · GlobalLawDB

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Judgment of the Court (First Chamber)10 July 1986^noteIn Case 151/85REFERENCE to the Court under Article 177 of the EEC Treaty by the Verwaltungsgericht [Administrative Court] Frankfurt am Main for a preliminary ruling in the proceedings pending before that court betweenFirma E. Danhuber, Munich,andBundesanstalt für landwirtschaftliche Marktordnung [Federal Office for the Organization of Agricultural Markets], Frankfurt am Main,THE COURT (First Chamber)composed of: R. Joliét, President of the Chamber, G. Bosco and F. Schockweiler, Judges,Advocate General: J. MischoRegistrar: K. Riechenberg, acting as Administratorafter considering the observations submitted on behalf of(a) Firma E. Danhuber, the plaintiff in the main proceedings, by Andreas Reiners, of the Munich Bar, in the oral procedure,(b) the Bundesanstalt für Landwirtschaftliche Marktordnung, the defendant in the main proceedings, by Erdmann Schaller, Justitiar at the Bundesanstalt, in the written procedure,(c) the Commission of the European Communities, by Christine Berardis-Kayser, a member of its Legal Department,after hearing the Opinion of the Advocate General delivered at the sitting on 27 May 1986,gives the following

Judgment

(The account of the facts and issues which is contained in the complete text of the judgment is not reproduced)

Decision

1By an order of 25 April 1985, which was received at the Court on 20 May 1985, the Verwaltungsgericht Frankfurt am Main referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty three questions on the interpretation of Article 5 (2) of Regulation (EEC) No 805/68 of the Council of 27 June 1968 on the common organization of the market in beef and veal (Official Journal, English Special Edition 1968 (I), p. 187), Article 2 (2) and (3) of Regulation (EEC) No 1071/68 of the Commission of 25 July 1968 laying down detailed rules for granting private-storage aid for beef and veal (Official Journal English Special Edition 1968 (II), p. 354), and Article 5 of Regulation (EEC) No 2778/74 of the Commission of 31 October 1974 on the granting at a standard rate fixed in advance of private-storage aid for beef (Official Journal L 294, p. 73).

2The questions were raised in proceedings between Firma E. Danhuber, Munich, (hereinafter referred to as ‘Danhuber’) and the Bundesanstalt für landwirtschaftliche Marktordnung, Frankfurt am Main, (hereinafter referred to as ‘the Bundesanstalt’), concerning the latter's demand for repayment of certain private-storage aid for beef and veal paid to Danhuber pursuant to Article 5 (2) of Regulation No 805/68.

3The above provision provides that ‘fresh or chilled’ beef and veal may qualify for private-storage aid. Detailed rules for applying the aid were adopted by the Commission pursuant to Article 8 (2) of Regulation No 805/68, in accordance with the procedure laid down in Article 27 thereof. In particular, Article 2 (2) of Regulation No 1071/68, as amended by Article 5 of Regulation No 2778/74, provides that private-storage aid may be granted only for products obtained from animals slaughtered not more than 10 days previously.

4In 1975 Danhuber had arranged for the storage, in cold-storage plants in Munich and Moosburg, of forequarters of beef imported from Belgium and obtained from animals slaughtered less than 10 days prior to storage. At the time when the forequarters were loaded onto lorries for transportation to the Federal Republic of Germany they were not frozen. However, the quarters arrived frozen at the storage plants.

5Initially, private-storage aid was granted in respect of the meat in question, as the competent German agency was unaware that it was frozen at the time of storage. That fact was discovered in the course of an investigation of the accounts in 1977, whereupon the Federal Office demanded repayment of the aid from Danhuber.

6Danhuber refused to repay the aid and brought the matter before the Verwaltungsgericht Frankfurt am Main.

7The Verwaltungsgericht decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:(1) Is meat from an animal which has been slaughtered sufficiently recently to comply with Article 2 (2) of Regulation (EEC) No 1071/68 of the Commission of 25 July 1968 laying down detailed rules for granting private-storage aid for beef and veal (Official Journal, English Special Edition 1968 (II), p. 354) or Article 5 of Regulation (EEC) No 2778/74 of the Commission of 31 October 1974 on the granting at a standard rate fixed in advance of private-storage aid for beef (Official Journal 1974, L 294, p. 73) ‘fresh or chilled’ within the meaning of Article 5 (2) of Regulation (EEC) No 805/68 of the Council of 27 June 1968 on the common organization of the market in beef and veal (Official Journal, English Special Edition 1968 (I), p. 187) even if it is delivered frozen to the place of storage?If that question is answered in the negative:(2) Is it compatible with the rules governing private storage, in particular Article 3 of Regulation No 1071/68, for the steps preparatory to storage, in particular the freezing of the meat, to be carried out at a place other than the place of actual storage?If that question is answered in the affirmative:(3) Is the aid forfeited if the storer fails to comply with his obligation under Article 3 (2) (b) of Regulation No 1071/68?’

8The Bundesanstalt and the Commission of the European Communities submitted written observations on those questions, in accordance with Article 20 of the Protocol on the Statute of the Court of Justice. In addition, at the hearing on 23 April 1986, oral argument was presented by Danhuber and the Commission.

First question

9In its first question the national court seeks in substance to establish whether beef and veal may qualify for private-storage aid under Article 5 (2) of Regulation No 805/68 if they are already frozen on arrival at the storage plant.

10In its order requesting a preliminary ruling the national court points out, in the first place, that the meat stocked by Danhuber was obtained from animals slaughtered less than 10 days prior to storage and therefore fulfilled the conditions laid down by Article 2 (2) of Regulation No 1071/68 of the Commission, as amended by Article 5 of Regulation No 2778/74.

11Secondly, the national court observes that since meat delivered for storage must always be frozen, there is no justification for withholding the aid provided for by Article 5 (2) of Regulation No 805/68 solely on the ground that the meat is already frozen on arrival at the storage plant.

12The Bundesanstalt and the Commission take the view that the first question should be answered in the negative.

13According to the Bundesanstalt, the exclusion of frozen meat from the benefit of storage aid may be inferred from the wording of subheading 02.01 A II (a) 1 (bb) 11 of the Common Customs Tariff, referred to in the annex to Regulation No 2778/74, which mentions only ‘fresh or chilled’ beef and veal. In the opinion of the Bundesanstalt, that expression should be interpreted in the light of the Explanatory Notes of the Customs Cooperation Council, which divide meat into three categories (fresh meat, chilled meat, and frozen meat) according to temperature.

14The Bundesanstalt also emphasizes the difficulties which would arise if frozen meat were to qualify for storage aid, in view of the impossibility of checking in particular the date of slaughter and the origin of the product if it is already frozen on delivery for storage.

15The Commission shares the opinion of the Bundesanstalt as far as the exclusion of frozen meat from the benefit of storage aid is concerned. It refers, in particular, to Article 5 (1) of Regulation No 1071/68, mentioned above, which provides that: ‘The amount of aid shall be fixed per unit of weight ascertained on entry into store and before freezing.’ According to the Commission, that provision is not applicable if meat intended for storage is delivered frozen.

16In order to answer the first question raised by the national court it is necessary to consider the wording of the relevant provisions of Community law.

17Article 5 (1) of Regulation No 805/68 provides that, in order to prevent or mitigate a substantial fall in prices, certain measures, including aid for private storage, may be taken. Article 5 (2) provides that such measures may be taken ‘for adult bovine animals as well as for fresh or chilled meat of such animals, presented in the form of carcasses, half carcasses, compensated quarters, forequarters or hindquarters’.

18It is clear from those provisions that no storage aid was provided in the case of frozen meat, even though such meat is specifically dealt with in other provisions of the same regulation.

19That conclusion is borne out by an examination of Commission Regulations No 1071/68 and No 2778/74, mentioned above, which lay down detailed rules for granting the aid in question.

20Article 5 (1) of Regulation No 1071/68, according to which the amount of the aid is to be determined by the weight ascertained ‘on entry into store and before freezing’, presupposes that the freezing of meat intended for storage takes place ‘on entry into store’ and not before.

21Furthermore, Article 1 (1) of Regulation No 2778/74 defines the products eligible for storage aid by reference to subheading 02.01 A II (a) 1 (bb) 11 of the Common Customs Tariff. That subheading, as it appears both in the version of the Common Customs Tariff applicable on the date of the entry into force of Regulation No 2778/74 (see Regulation (EEC) No 1/74 of the Council of 17 December 1973, Official Journal 1974, L 1, p. 1) and in subsequent versions, refers exclusively to ‘fresh or chilled’ beef.

22As regards the definition of ‘fresh or chilled meat’as distinct from ‘frozen meat’, in the absence of an independent definition of those expressions either in Regulation No 805/68 or in the Common Customs Tariff, it should be noted that, according to current usage, the distinction between fresh, chilled and frozen meat depends on the temperature at which the meat is kept.

23Moreover, the same criterion is adopted in the Explanatory Notes to the Nomenclature of the Customs Cooperation Council. The Court has consistently held (see, in particular, the judgment of 11 July 1980 in Case 789/79 Hanptzollamt Köln-Rheinau v Chem-Tec [1980] ECR 2639) that those notes may be used in circumstances such as those of the present case for the purpose of interpreting the terms of the Common Customs Tariff.

24On the other hand, the date of slaughter is not a decisive criterion for establishing whether the meat in question is ‘fresh or chilled meat’ within the meaning of Article 5 (2) of Regulation No 805/68.

25Admittedly, Article 2 (2) of Regulation No 1071/68, as amended by Article 5 of Regulation No 2778/74, confines eligibility for storage aid to products Obtained from animals slaughtered not more than 10 days previously'. However, that provision cannot be regarded as seeking to define ‘fresh or chilled meat’ by reference to a criterion which is concerned not with the temperature of the meat but with the length of the interval between the date of slaughter and the date of delivery for storage.

26It is clear from the second recital in the preamble to Regulation No 1071/68 that the Commission, which, moreover, was empowered by Article 8 (2) of Regulation No 805/68 only to adopt the ‘detailed rules’ concerning the storage-aid scheme and not to lay down an independent definition of the products eligible for such aid, intended merely to limit the granting of such aid to ‘the storage of products obtained from recent slaughterings’, in accordance with the objectives pursued by the Council in introducing storage aid. In so doing, the Commission laid down in the case of products qualifying for storage aid under Article 5 (2) of Regulation No 805/68 a further condition, the terms of which were, moreover, made less restrictive by Article 5 of Regulation No 2778/74, which raised from six to 10 days the maximum period permitted between slaughtering and storage.

27The answer to the first question submitted by the national court must therefore be that where meat is delivered frozen to the place of storage, it does not constitute ‘fresh or chilled’ meat within the meaning of Article 5 (2) of Regulation No 805/68 of the Council of 27 June 1968, and hence cannot qualify for the private-storage aid provided for by that article.

Second question

28In its second question the national court asks, in essence, whether a consignment of beef or veal intended for storage in accordance with the relevant rules of Community law may be frozen at a place other than the plant in which it is to be stored.

29It has been held, in the answer to the first question submitted by the national court, that beef and veal delivered frozen to the place of storage cannot qualify for the storage aid in question. It follows that the meat must be frozen at the place of actual storage.

30The answer to the second question submitted by the national court must therefore be that it is not compatible with the rules of Community law governing private-storage aid for beef and veal for the steps preparatory to storage, in particular the freezing of the meat, to be carried out at a place other than the place of actual storage.

Third question

31Since the third question was submitted by the national court only in the event of the second question being answered in the affirmative, there is no need to answer it.

Costs

32The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings before the national court, the decision on costs is a matter for that court.

Operative part

On those grounds,THE COURT (First Chamber),in answer to the questions referred to it by the Verwaltungsgericht Frankfurt am Main by order of 25 April 1985, hereby rules as follows:

(1).Where meat is delivered frozen to the place of storage, it does not constitute ‘fresh or chilled’ meat within the meaning of Article 5 (2) of Regulation (EEC) No 805/68 of the Council of 27 June 1968, and hence cannot qualify for the private-storage aid provided for by that article.

(2).It is not compatible with the rules of Community law governing private-storage aid for beef and veal for the steps preparatory to storage, in particular the freezing of the meat, to be carried out at a place other than the place of actual storage.

Delivered in open court in Luxembourg on 10 July 1986.