1 BY 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 ).
2 THE QUESTIONS WERE RAISED IN PROCEEDINGS BETWEEN FIRMA E . DANHUBER , MUNICH , ( HEREINAFTER REFERRED TO AS ' DANHUBER ' ) AND THE BUNDESANSTALT FUR 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 .
3 THE 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 .
4 IN 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 .
5 INITIALLY , 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 .
6 DANHUBER REFUSED TO REPAY THE AID AND BROUGHT THE MATTER BEFORE THE VERWALTUNGSGERICHT FRANKFURT AM MAIN .
7 THE 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?
'
8 THE 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
9 IN 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 .
10 IN 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 .
11 SECONDLY , 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 .
12 THE BUNDESANSTALT AND THE COMMISSION TAKE THE VIEW THAT THE FIRST QUESTION SHOULD BE ANSWERED IN THE NEGATIVE .
13 ACCORDING 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 .
14 THE 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 .
15 THE 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 .
16 IN 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 .
17 ARTICLE 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 ' .
18 IT 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 .
19 THAT 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 .
20 ARTICLE 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 .
21 FURTHERMORE , 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 .
22 AS 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 .
23 MOREOVER , 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 HAUPTZOLLAMT KOLN-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 .
24 ON 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 .
25 ADMITTEDLY , 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 .
26 IT 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 .
27 THE 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
28 IN 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 .
29 IT 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 .
30 THE 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
31 SINCE 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
32 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 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 .
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 .
