1 BY ORDER OF 3 MAY 1972 WHICH WAS RECEIVED AT THE COURT REGISTRY ON 15 MAY 1972 THE VERWALTUNGSGERICHT FRANKFURT AM MAIN REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY FOR A PRELIMINARY RULING A QUESTION CONCERNING THE INTERPRETATION OF THE SECOND SENTENCE OF ARTICLE 4 ( 3 ) OF REGULATION NO 1403/69 OF THE COMMISSION OF 18 JULY 1969 ( OJ, SPECIAL EDITION, 1969 ( II ), P . 345 ).
THIS REGULATION, WHICH WAS ADOPTED PURSUANT TO REGULATION NO 172/67/EEC OF THE COUNCIL OF 27 JUNE 1967 ( OJ, SPECIAL EDITION, 1967, P . 139 ), LAYS DOWN DETAILED RULES FOR THE APPLICATION OF THE PROVISIONS CONCERNING DENATURING OF COMMON WHEAT AND RYE OF BREAD-MAKING QUALITY AND, IN PARTICULAR, DEFINES THE CONDITIONS TO WHICH THE GRANTING OF A DENATURING PREMIUM ARE SUBJECT .
ARTICLE 4 OF THE SAID REGULATION PROVIDES, INTER ALIA, THAT " THE DURATION OF THE DENATURING PROCESS SHALL NOT EXCEED ONE DAY PER 40 TONNES OF CEREALS PROCESSED ".
THE COURT IS ASKED WHETHER THIS PROVISION MUST BE INTERPRETED AS MEANING THAT THE OWNER OF AN UNDERTAKING IS ENTITLED TO THE PREMIUM IF HE DENATURES A QUANTITY OF LESS THAN 40 TONNES, WHETHER OR NOT THIS AMOUNT IS THE TOTAL AMOUNT OR THE BALANCE THEREOF, IF THE DURATION OF THIS DENATURING PROCESS DOES NOT EXCEED ONE DAY, OR WHETHER THE AUTHORS OF THE REGULATION INTENDED TO DETERMINE THE MINIMUM AMOUNT TO BE DENATURED EACH DAY AT THE SAME TIME AS THE DURATION OF THE DENATURING PROCESS .
2 THE FILE SENT TO THE COURT BY THE NATIONAL COURT SHOWS THAT, AFTER THE PLAINTIFF IN THE MAIN ACTION HAD APPLIED TO THE COMPETENT INTERVENTION AGENCY FOR AND OBTAINED FROM IT A PERMIT TO DENATURE 200 TONNES OF WHEAT, IT NOTIFIED THE SAID AGENCY IN ACCORDANCE WITH THE ADMINISTRATIVE INSTRUCTIONS IN FORCE IN THIS CONNEXION IN THE FEDERAL REPUBLIC OF GERMANY THAT IT WOULD CARRY OUT THE DENATURING ON 24, 25 AND 26 AUGUST 1971 .
THE TOTAL QUANTITY TO BE DENATURED WAS REDUCED DURING THE PROCESS TO 173.4 TONNES, 74.4 TONNES OF WHICH WERE PROCESSED ON 24 AUGUST, 71.5 TONNES ON 25 AUGUST AND 27.5 TONNES ON 26 AUGUST 1971 RESPECTIVELY .
THE ANSWER TO THIS QUESTION MUST ENABLE THE NATIONAL COURT TO DECIDE WHETHER THE AMOUNT OF 27.5 TONNES CAN BE TAKEN INTO ACCOUNT WHEN GRANTING THE DENATURING PREMIUM .
3 ARTICLE 7 OF REGULATION NO 120/67/EEC OF THE COUNCIL OF 13 JUNE 1967 ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS ( OJ, SPECIAL EDITION, 1967, P . 33 ) AUTHORIZES THE INTERVENTION AGENCIES, WITH A VIEW TO SUPPORTING THE MARKET FOR PRODUCTS WHICH CANNOT BE SOLD IN THE NORMAL WAY, TO GRANT A DENATURING PREMIUM FOR COMMON WHEAT AND PURSUANT TO THIS PROVISION REGULATION NO 172/67 LAYS DOWN THE GENERAL RULES FOR ATTAINING THIS OBJECTIVE .
THE SECOND RECITAL IN THE PREAMBLE TO THIS SECOND REGULATION STATES THAT IN VIEW OF THE AIM PURSUED DENATURING CAN ONLY BE JUSTIFIED IF IT IS APPLIED TO BREAD-MAKING CEREALS OF A CERTAIN MINIMUM QUALITY AND IF, HAVING REGARD TO THE COSTS ENTAILED BY THE SUPERVISION OF DENATURING, IT IS APPLIED TO MINIMUM QUANTITIES THEREOF .
CONSEQUENTLY ARTICLE 3 OF THIS REGULATION PROVIDES THAT " CEREALS FOR DENATURING MUST BE OF A MINIMUM QUALITY AND QUANTITY TO BE DETERMINED ".
FURTHER, ARTICLE 7 OF THIS REGULATION READS : " TO QUALIFY FOR THE PREMIUM, DENATURING SHOULD BE EFFECTED IN AGREEMENT WITH THE INTERVENTION AGENCY AND UNDER ITS SUPERVISION ".
4 THE REQUIRED CONDITIONS AS TO QUALITY AND QUANTITY WERE DETERMINED BY REGULATION NO 1403/69 FOR THE PERIOD COVERED BY THE DISPUTE .
ARTICLE 4 ( 3 ) OF THIS REGULATION PROVIDES THAT THE DURATION OF THE DENATURING PROCESS SHALL NOT EXCEED ONE DAY PER 40 TONNES OF CEREALS PROCESSED .
IT IS THE COMMISSION' S VIEW THAT THE PURPOSE OF THIS PROVISION IS TO MAKE IT OBLIGATORY TO DENATURE A MINIMUM QUANTITY OF 40 TONNES OF CEREALS EACH WORKING DAY IN ANY EVENT, BECAUSE PROCESSING A SMALLER AMOUNT CANNOT BE ALLOWED HAVING REGARD TO THE HEAVY COSTS OF SUPERVISING THIS PROCESS .
5 ALTHOUGH IT IS IN KEEPING WITH THE OBJECTIVE OF THE SYSTEM WHICH GOVERNS DENATURING TO PRECLUDE THE GRANTING OF A PREMIUM ON A TOTAL AMOUNT OF LESS THAN 40 TONNES, THE COMPETENT INTERVENTION AGENCY IS, HOWEVER, IN A POSITION TO DECIDE WHETHER TO GRANT A PREMIUM ON SUCH AN AMOUNT WHEN IT ISSUES THE DENATURING PERMIT .
THE QUESTION OF THE TOTAL AMOUNT FOR WHICH PERMISSION TO DENATURE IS GIVEN CANNOT THEREFORE BE CONFUSED WITH THE QUESTION OF THE DURATION OF THE DENATURING PROCESS .
6 SUPERVISION OF THIS PROCESS ENTAILS CONSIDERABLE EXPENSE AND THE REQUIREMENT THAT DENATURING IS CARRIED OUT AT THE RATE OF 40 TONNES PER DAY IS THEREFORE JUSTIFIED IN ORDER TO AVOID AN INCREASE IN THE AMOUNT OF SUCH SUPERVISION .
THIS MINIMUM QUANTITY STIPULATED BY ARTICLE 1403/69 MAY, AFTER TAKING ACCOUNT OF THE CAPACITY OF THE UNDERTAKING IN QUESTION, EVEN BY INCREASED, BY AGREEMENT BETWEEN THE OPERATOR AND THE INTERVENTION AGENCY AS PROVIDED FOR IN ARTICLE 7 OF REGULATION NO 172/67/EEC OF THE COUNCIL, WITH A VIEW TO USING THE UNDERTAKING' S CAPACITY IN THE MOST RATIONAL WAY .
7 IF ON THE OTHER HAND THE PROCESS OF DENATURING LASTS SEVERAL DAYS, THE OBJECTIVES SOUGHT ARE ATTAINED IF THE TOTAL DURATION OF THE PROCESS DOES NOT EXCEED A PERIOD WHICH IS EQUIVALENT TO A DAILY AVERAGE OF 40 DENATURED TONNES, PROVIDED THAT THE UNDERTAING' S CAPACITY HAS BEEN USED IN A RATIONAL WAY .
CONSEQUENTLY A BALANCE OF LESS THAN 40 TONNES DENATURED ON ANY ONE DAY MAY BE TAKEN INTO CONSIDERATION, IF IT AROSE AS A RESULT OF A RATIONAL USE OF THE UNDERTAKING' S CAPACITY FOR DENATURING AND PROVIDED THAT THE MAXIMUM DURATION OF THE WHOLE PROCESS IS EQUIVALENT TO AN AVERAGE OF AT LEAST 40 DENATURED TONNES PER DAY .
A NARROWER INTERPRETATION OF ARTICLE 4 ( 3 ) WOULD GO BEYOND THE OBJECTIVES SOUGHT AND MUST FOR THIS REASON BE REJECTED .
8 THE 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 ACTION ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE VERWALTUNGSGERICHT, FRANKFURT AM MAIN, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
THE COURT
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE VERWALTUNGSGERICHT FRANKFURT AM MAIN BY ORDER OF 3 MAY 1972, HEREBY RULES :
THE SECOND SENTENCE OF ARTICLE 4 ( 3 ) OF REGULATION ( EEC ) NO 1403/69 OF THE COMMISSION OF 18 JULY 1969 MUST BE INTERPRETED AS MEANING THAT A BALANCE OF LESS THAN 40 TONNES DENATURED ON ANY ONE DAY MAY BE TAKEN INTO CONSIDERATION IF IT AROSE AS A RESULT OF A RATIONAL USE OF THE UNDERTAKING' S DENATURING CAPACITY AND PROVIDED THAT THE MAXIMUM DURATION OF THE WHOLE PROCESS IS EQUIVALENT TO AN AVERAGE OF AT LEAST 40 TONNES PER DAY .
