1 BY ORDERS OF 11 MARCH AND 8 APRIL 1981 WHICH WERE RECEIVED AT THE COURT ON 31 MARCH AND 24 APRIL 1981 RESPECTIVELY THE BUNDESGERICHTSHOF ( FEDERAL COURT OF JUSTICE ) REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS ON THE INTERPRETATION OF ARTICLE 6 OF REGULATION NO 349/73 OF THE COMMISSION OF 31 JANUARY 1973 AND ON THE SALE AT REDUCED PRICES OF INTERVENTION BUTTER FOR DIRECT CONSUMPTION AS CONCENTRATED BUTTER ( OFFICIAL JOURNAL , L 40 , P . 1 ).
2 THOSE QUESTIONS WERE RAISED IN THE CONTEXT OF TWO ACTIONS , THE FIRST BETWEEN MR POMMEREHNKE AND THE BUNDESANSTALT FUR LANDWIRTSCHAFTLICHE MARKTORDNUNG ( FEDERAL OFFICE FOR THE ORGANZATION OF AGRICULTURAL MARKETS , HEREINAFTER REFERRED TO AS ' ' THE BUNDESANSTALT ' ' ) AND THE SECOND BETWEEN THE UNDERTAKING WILHELM FRANZEN AND MR HANS-HARLD WITT ON THE ONE HAND AND THE BUNDESANSTALT ON THE OTHER . THE CASES CONCERNING THOSE DISPUTES WERE JOINED BY ORDER OF THE COURT OF 13 MAY 1981 .
3 THE COMMISSION ADOPTED THE REGULATION IN QUESTION IN ORDER TO DISPOSE OF STOCKS OF BUTTER ARISING AS A RESULT OF INTERVENTION ON THE BUTTER MARKET UNDER ARTICLE 6 ( 1 ) AND ( 2 ) OF REGULATION NO 804/68 OF THE COUNCIL OF 27 JUNE 1968 ON THE COMMON ORGANIZATION OF THE MARKET IN MILK AND MILK PRODUCTS ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( I ), P . 176 ). TO THAT END THE COMMISSION PROVIDED AN OPPORTUNITY TO SELL BUTTER IN THE FORM OF CONCENTRATED BUTTER AT A REDUCED PRICE . THIS WAS TO BE DONE ' ' AT THE REQUEST OF A MEMBER STATE WHICH CONSIDERS ITSELF IN A POSITION TO LEAD IT TO A SUCCESSFUL CONCLUSION ' ' , THAT IS TO SAY BY ENSURING THAT THE CONCENTRATED BUTTER WAS NOT DIVERTED FROM ITS INTENDED USE AND DID NOT DISTURB THE BUTTER MARKET .
4 IN ORDER TO ENSURE THAT THOSE AIMS WERE OBSERVED THE COMMISSION ADOPTED THE FOLLOWING PROVISIONS IN ARTICLE 6 OF REGULATION NO 349/73 :
' ' ( 1 ) ANY PERSON WHO HOLDS THE BUTTER OR CONCENTRATED BUTTER MUST KEEP RECORDS SHOWING FOR EACH DELIVERY THE NAME AND ADDRESS OF BUYERS OF THE BUTTER OR THE CONCENTRATED BUTTER AND THE QUANTITIES PURCHASED .
( 2)WHERE THE BUTTER IS RESOLD , THE OBLIGATIONS CONCERNING PROCESSING , PUTTING UP AND THE FINAL INTENDED USE OF THE BUTTER SHALL BE MENTIONED IN THE CONTRACT OF SALE .
SUCH CONTRACT MUST BE MENTIONED IN WRITING AND SPECIFY THAT THE BUYER IS AWARE OF THE PENALTIES IMPOSED BY THE MEMBER STATE IN QUESTION FOR BREACHES OF THE AFORESAID OBLIGATIONS . ' '
5 BY DECISION OF 8 FEBRUARY 1973 THE COMMISSION AUTHORIZED THE FEDERAL REPUBLIC OF GERMANY TO SELL 4 000 TONNES OF CONCENTRATED BUTTER AT A REDUCED PRICE . THE EINFUHR- UND VORRATSSTELLE FUR FETTE , WHICH HAS BEEN SUCCEEDED BY THE BUNDESANSTALT , MADE ITSELF RESPONSIBLE FOR THE SALE OF THE CONCENTRATED BUTTER AS INTERVENTION AGENCY AND TO THAT END ADOPTED ON 13 FEBRUARY 1973 DIRECTIVES REQUIRING BUYERS NOT TO SELL THE CONCENTRATED BUTTER SAVE ON THE BASIS OF A WRITTEN CONTRACT OF SALE WHICH HAD TO CONTAIN AN UNDERTAKING IN RESPECT OF A PENALTY FOR NON-COMPLIANCE , TO BE IMPOSED IN TURN ON SUBSEQUENT BUYERS .
6 IT WAS IN THAT CONTEXT THAT THE APPELLANTS IN THE MAIN PROCEEDINGS ACQUIRED A CERTAIN QUANTITY OF CONCENTRATED BUTTER FROM VARIOUS COMPANIES . SOME OF THOSE PURCHASES WERE MADE WITHOUT THE DOCUMENTS HEADED ' ' CONTRACT OF SALE AND UNDERTAKING ' ' BEING SIGNED AND THE SUPPLIER ' S WRITTEN DECLARATION OF SALE WAS MISSING IN EVERY CASE . SOME OF THOSE DOCUMENTS STATED THE QUANTITY PURCHASED BUT NOT THE PRICE WHILST OTHERS STATED NEITHER , BUT EACH WRITTEN UNDERTAKING CONTAINED A CLAUSE BY WHICH THE BUYER UNDERTOOK TO OBSERVE THE PROVISIONS CONTAINED IN THE DIRECTIVES OF THE EINFUHR- UND VORRATSSTELLE AND TO PAY IT , AND AFTERWARDS THE BUNDESANSTALT , IN THE EVENT OF INFRINGEMENT THE DIFFERENCE BETWEEN THE INTERVENTION PRICE AND THE SALE PRICE FIXING BY THE COMMISSION .
7 SOME OF THE BUTTER SO ACQUIRED WAS RESOLD TO THIRD PARTIES WITHOUT THE TRANSACTIONS BEING RECORDED IN WRITING AND WAS USED BY THOSE THIRD PARTIES CONTRARY TO THE PRESCRIBED PURPOSE .
8 AFTER THEY HAD BEEN FINED IN PROCEEDINGS AT FIRST INSTANCE THE APPELLANTS ULTIMATELY APPEALED ON A POINT OF LAW TO THE BUNDESGERICHTSHOF AGAINST THEIR SENTENCE ON THE GROUND THAT THEY WERE NOT LIABLE TO PAY THE FINES DEMANDED BECAUSE THEY HAD NOT ENTERED INTO A WRITTEN CONTRACT OF SALE WITH THEIR SUPPLIERS .
9 THE BUNDESGERICHTSHOF CONSIDERS THAT THE OUTCOME OF THE TWO ACTIONS TURNS ON THE QUESTION WHETHER THE PROMISE TO PAY A CONTRACTUAL FINE WAS MADE IN THE REQUISITE WRITTEN FORM AND THAT AN INTERPRETATION OF ARTICLE 6 ( 2 ) OF REGULATION NO 349/73 IS NECESSARY . CONSEQUENTLY IT HAS SUBMITTED THE FOLLOWING QUESTIONS TO THE COURT IN CASE 66/81 :
' ' 1 . DOES ARTICLE 6 ( 2 ) OF REGULATION ( EEC ) NO 349/73 OF THE COMMISSION OF 31 JANUARY 1973 ( OFFICIAL JOURNAL , L 40 , 13 FEBRUARY 1973 , P . 1 ) APPLY ONLY TO THE RESALE OF BUTTER IN ITS NATURAL STATE , OR DOES IT ALSO APPLY TO THE RESALE OF CONCENTRATED BUTTER?
2.IF THAT PROVISION COVERS CONCENTRATED BUTTER :
( A ) WHAT ARE THE CONDITIONS TO BE IMPOSED AS TO THE OBSERVANCE OF THE REQUIREMENT OF WRITING UNDER COMMUNITY LAW? IN PARTICULAR , IF ONLY THE BUYER ' S DECLARATION , AND NOT THE SELLER ' S , IS PUT IN WRITING DOES THAT SUFFICE TO MEET THE REQUIREMENT OF WRITING , OR ARE SUCH CONDITIONS TO BE DETERMINED ACCORDING TO THE LAWS OF THE MEMBER STATES?
( B)IF COMMUNITY LAW REGARDS AN ORDER WHICH IS SIGNED ONLY BY THE BUYER AS SUFFICIENT TO MEET THE REQUIREMENT OF WRITING , IS IT ADEQUATE FOR ONLY THE FIRST ORDER TO BE SET OUT IN WRITING WHILST SUBSEQUENT CONTRACTS OF SALE ARE MADE ORALLY BY REFERENCE TO THE FIRST ORDER?
( C)IF THE REQUIREMENT OF WRITING HAS NOT BEEN MET UNDER COMMUNITY LAW , IS THE CONTRACT OF SALE , INCLUDING THE BUYER ' S UNDERTAKING THEREIN TO PAY A PENALTY FOR NON-COMPLIANCE , VOID UNDER COMMUNITY LAW OR ARE THE LEGAL CONSEQUENCES LEFT TO BE DETERMINED ACCORDING TO THE LAWS OF THE MEMBER STATES?
' '
THE BUNDESGERICHTSHOF HAS SUBMITTED THE SAME QUESTIONS IN CASE 99/81 EXCEPT THAT IN QUESTION 2 ( A ) IT DESCRIBES THE BUYER ' S DECLARATION AS ' ' CONTAINING NO DETAILS AS TO PRICE AND QUANTITY ' ' .
THE FIRST QUESTION
10 ACCORDING TO THE BUNDESGERICHTSHOF ARTICLE 6 ( 2 ) OF REGULATION NO 349/73 ALSO APPLIES TO CONCENTRATED BUTTER BECAUSE THE AIM OF THE REGULATION MUST BE TO PREVENT UNEQUAL TREATMENT AS REGARDS THE SALE OF BUTTER AND CONCENTRATED BUTTER AND THAT THE TERM ' ' BUTTER ' ' MUST BE CONSIDERED TO BE A GENERAL TERM COVERING ITS STATE BOTH BEFORE AND AFTER PROCESSING .
11 ALTHOUGH PARAGRAPH 1 OF ARTICLE 6 OF REGULATION NO 349/73 REFERS TO BUTTER OR CONCENTRATED BUTTER , PARAGRAPH 2 MENTIONS ONLY ' ' BUTTER ' ' . FURTHERMORE , THE OPERATIONS LISTED IN PARAGRAPH 2 SUCH AS ' ' PROCESSING ' ' AND ' ' PUTTING UP ' ' SEEM TO REFER ONLY TO BUTTER AND TO CONCENTRATED BUTTER AND NOT TO CONCENTRATED BUTTER SINCE LOGICALLY THE LATTER IS ALREADY PROCESSED AND PUT UP .
12 HOWEVER , THE TITLE OF THE REGULATION IN QUESTION AND THE RECITALS IN THE PREAMBLE TO IT SHOW THAT ITS AIM IS TO ABOLISH LARGE STOCKS OF INTERVENTION BUTTER BY PROMOTING EXTRA CONSUMPTION OF BUTTER SOLELY BY DIRECT CONSUMPTION AS CONCENTRATED BUTTER . THEREFORE IT WAS ABSOLUTELY ESSENTIAL TO SET UP AN EFFECTIVE CONTROL SYSTEM AND IF NECESSARY TO PROVIDE FOR PENALTIES FOR IRREGULARITIES , HENCE THE PROVISIONS CONTAINED IN ARTICLE 6 AND SET OUT IN FURTHER DETAIL IN THE SUBSEQUENT ARTICLES .
13 THAT SYSTEM WOULD BE DEPRIVED OF ALL ITS EFFECTIVENESS IF THE PENALTIES DID NOT APPLY TO CONCENTRATED BUTTER SINCE , IF THAT WERE THE CASE , IT COULD BE SOLD TO COMMERCIAL PROCESSORS AND THUS BE DIVERTED FROM ITS INTENDED USE , NAMELY DIRECT CONSUMPTION .
14 IT FOLLOWS THAT SINCE ALL CONCENTRATED BUTTER MUST BE DIRECTLY CONSUMED THE CONDITIONS LAID DOWN IN ARTICLE 6 ( 2 ) OF THE REGULATION IN QUESTION AS REGARDS THE RESALE OF BUTTER ALSO APPLY TO THE SALE OF CONCENTRATED BUTTER IN ORDER TO AVOID ANY POSSIBILITY OF THE DIVERSION OF THAT CONCENTRATED BUTTER FROM ITS INTENDED USE .
15 CONSEQUENTLY THE ANSWER TO THE FIRST QUESTION OF THE BUNDESGERICHTSHOF SHOULD BE THAT ARTICLE 6 ( 2 ) OF REGULATION NO 349/73 ALSO APPLIES TO THE RESALE OF CONCENTRATED BUTTER .
THE SECOND QUESTION
16 IT SHOULD BE POINTED OUT IN THE FIRST PLACE THAT THE THIRD RECITAL IN THE PREAMBLE TO THE REGULATION IN QUESTION STATES THAT PROVISION SHOULD BE MADE FOR ' ' THIS MEASURE TO BE TAKEN AT THE REQUEST OF A MEMBER STATE WHICH CONSIDERS ITSELF IN A POSITION TO LEAD IT TO A SUCCESSFUL CONCLUSION ' ' AND THAT ARTICLE 12 OF THE REGULATION PROVIDES THAT :
' ' THE MEMBER STATES SHALL ADOPT ALL NECESSARY PROVISIONS FOR THE AMOUNT OF THE PRICE REDUCTION OR THE AMOUNT OF AID TO BE REFLECTED AT THE RETAIL STAGE . . . ' ' .
17 HOWEVER , THE COMMISSION MADE A POINT OF IMPOSING ON EACH OF THE MEMBER STATES CONCERNED BY THAT OPERATION THE OBLIGATION , QUITE SEPARATE FROM THE MEASURES WHICH THOSE STATES MIGHT CONSIDER IT NECESSARY TO ADOPT , TO REQUIRE A CONTRACT OF SALE TO BE MADE IN WRITING AND TO STATE THAT THE BUYER IS AWARE OF THE PENALTIES FIXED BY THE MEMBER STATE IN QUESTION FOR WHICH HE IS LIABLE SHOULD HE FAIL TO OBSERVE THE RESTRICTIONS LAID DOWN WITH REGARD IN PARTICULAR TO THE FINAL INTENDED USE OF THE BUTTER .
18 THE BUNDESGERICHTSHOF CONSIDERS THAT SINCE SALES OF BUTTER AT A REDUCED PRICE ALWAYS TAKE PLACE ON THE TERRITORY OF A SINGLE MEMBER STATE THE PROVISION CONCERNING THE WRITTEN FORM MUST BE CONSIDERED AS EMBODYING RULES OF PRINCIPLE WHEREAS THE ELABORATION OF THOSE RULES AND THE CONSEQUENCES THEREOF ARE A MATTER FOR THE LAWS OF THE MEMBER STATES . IT TAKES THE VIEW , MOREOVER , THAT THE MEMBER STATES ARE ALSO EMPOWERED TO IMPOSE ADDITIONAL REQUIREMENTS MORE STRINGENT THAN THOSE OF COMMUNITY LAW IN ORDER TO MEET THE OBLIGATION WHICH THEY HAVE UNDERTAKEN TO LEAD THAT OPERATION ' ' TO A SUCCESSFUL CONCLUSION ' ' .
19 IT SHOULD BE RECALLED THAT THE OBJECTIVE OF THE REGULATION IN QUESTION IS TO DISPOSE OF STOCKS OF INTERVENTION BUTTER AT A REDUCED PRICE BY DIRECT CONSUMPTION .
20 THEREFORE IT CLEARLY FOLLOWS FROM THE PROVISIONS OF ARTICLE 6 ( 2 ), VIEWED IN THE LIGHT OF THE AIMS PURSUED BY THE TOTALITY OF THESE RULES OF PUBLIC LAW , THAT THE WORDS ' ' CONTRACT OF SALE ' ' HAVE A MEANING DIFFERENT FROM THAT WHICH IS USUAL IN PRIVATE LAW .
21 THE ESSENTIAL POINT AS REGARDS THE RULES IN QUESTION IS THAT THE BUYER SHOULD ACKNOWLEDGE IN WRITING THAT HE IS AWARE OF THE PENALTIES FOR WHICH HE IS LIABLE SHOULD HE FAIL TO COMPLY WITH THE OBLIGATIONS LAID DOWN , IN PARTICULAR AS REGARDS THE FINAL INTENDED USE OF THE BUTTER SOLD AT A REDUCED PRICE .
22 IN THE PRESENT CASE THE GUARANTEES CONCERNING THE USE OF BUTTER SOLD AT A REDUCED PRICE IN ACCORDANCE WITH THE REQUIREMENTS OF THE REGULATION AND ANY PENALTIES WHICH MAY BE APPLICABLE ARE GOVERNED IN DETAIL BY THE DIRECTIVES OF THE EINFUHR- UND VORRATSSTELLE OF 13 FEBRUARY 1973 AND THEY MUST THEREFORE BE INTERPRETED IN ACCORDANCE WITH NATIONAL LAW . HOWEVER , IN CASE OF DOUBT , SUCH INTERPRETATION MUST TAKE ACCOUNT OF THE COMMUNITY MEASURES ADOPTED AND BE IN CONCORDANCE WITH THE AIM OF THE COMMUNITY RULES IN QUESTION .
23 IN REGARD TO REGULATION NO 349/73 IT IS THEREFORE SUFFICIENT FOR THE PURPOSE OF SATISFYING THE NECESSITY FOR A WRITTEN CONTRACT FOR THE BUYER TO HAVE UNDERTAKEN IN WRITING TO COMPLY WITH THE OBLIGATIONS LAID DOWN BY THE NATIONAL DIRECTIVES AND FOR THAT WRITTEN DOCUMENT TO MENTION THE PENALTIES FOR WHICH THE BUYER IS LIABLE FOR BREACH OF THOSE OBLIGATIONS .
24 CONSEQUENTLY , IF A FIRST ORDER LEADS TO A WRITTEN CONTRACT SIGNED BY THE BUYER AND CONTAINING THE PARTICULARS DESCRIBED ABOVE , EVEN THOUGH LATER ORDERS ARE MADE ORALLY , ALL THE ORDERS SATISFY THE REQUIREMENT AS TO WRITING LAID DOWN IN ARTICLE 6 ( 2 ) IF THE PENALTIES APPLICABLE MAY ALSO BE IMPOSED IF THE OBLIGATIONS PROVIDED FOR ARE NOT COMPLIED WITH IN THE CASE OF THE SUBSEQUENT ORDERS .
25 CONSEQUENTLY , IT IS SUFFICIENT FOR THE BUYER UNILATERALLY TO UNDERTAKE IN WRITING TO COMPLY WITH THE OBLIGATIONS AS TO THE FINAL INTENDED USE IMPOSED BY THE COMMUNITY RULES IN QUESTION .
26 THE ANSWER TO THE SECOND QUESTION SHOULD THEREFORE BE AS FOLLOWS :
( A ) IN ORDER TO SATISFY THE REQUIREMENT AS TO WRITING LAID DOWN IN ARTICLE 6 ( 2 ) OF REGULATION NO 349/73 ONLY THE BUYER ' S UNDERTAKING MUST BE MADE IN WRITING - EVEN IF IT CONTAINS NO DETAILS AS TO PRICE OR QUANTITY - PROVIDED THAT THE WRITTEN UNDERTAKING MENTIONS THE PENALTIES FOR WHICH THE BUYER IS LIABLE IF THE OBLIGATIONS PROVIDED FOR ARE NOT COMPLIED WITH , PARTICULARLY AS REGARDS THE FINAL INTENDED USE ;
( B)IT IS SUFFICIENT FOR THE REQUIREMENTS OF COMMUNITY LAW FOR ONLY THE FIRST ORDER TO HAVE BEEN MADE IN WRITING PROVIDED THAT THE OTHER SUBSEQUENT CONTRACTS OF SALE MAY BE PRESUMED TO REFER TO THE FIRST ORDER , EVEN IF THEY WERE MADE ORALLY , AND THAT IT IS GUARANTEED THAT THE PENALTIES MAY ALSO BE IMPOSED IN THE CASE OF SUBSEQUENT ORDERS ;
( C)THE OTHER CONDITIONS OF THOSE CONTRACTS AND THEIR LEGAL EFFECTS ARE GOVERNED BY NATIONAL LAW .
COSTS
27 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 PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
ON THOSE GROUNDS ,
THE COURT ( THIRD CHAMBER )
IN ANSWER TO THE QUESTIONS SUBMITTED TO IT BY THE BUNDESGERICHTSHOF BY ORDERS DATED 11 MARCH AND 8 APRIL 1982 HEREBY RULES :
1 . ARTICLE 6 ( 2 ) OF REGULATION NO 349/73 OF THE COMMISSION OF 31 JANUARY 1973 ON THE SALE AT REDUCED PRICES OF INTERVENTION BUTTER FOR DIRECT CONSUMPTION AS CONCENTRATED BUTTER ( OFFICIAL JOURNAL , L 40 , P . 1 ) ALSO APPLIES TO THE RESALE OF CONCENTRATED BUTTER .
2.(A ) IN ORDER TO SATISFY THE REQUIREMENT AS TO WRITING LAID DOWN IN ARTICLE 6 ( 2 ) OF REGULATION NO 349/73 ONLY THE BUYER ' S UNDERTAKING MUST BE MADE IN WRITING - EVEN IF IT CONTAINS NO DETAILS AS TO PRICE OR QUANTITY - PROVIDED THAT THE WRITTEN UNDERTAKING MENTIONS THE PENALTIES FOR WHICH THE BUYER IS LIABLE IF THE OBLIGATIONS PROVIDED FOR ARE NOT COMPLIED WITH , PARTICULARLY AS REGARDS THE FINAL INTENDED USE ;
( B)IT IS SUFFICIENT FOR THE REQUIREMENTS OF COMMUNITY LAW FOR ONLY THE FIRST ORDER TO HAVE BEEN MADE IN WRITING PROVIDED THAT THE OTHER SUBSEQUENT CONTRACTS OF SALE MAY BE PRESUMED TO REFER TO THE FIRST ORDER , EVEN IF THEY WERE MADE ORALLY , AND , THAT IT IS GUARANTEED THAT THE PENALTIES MAY ALSO BE IMPOSED IN THE SAME OR SUBSEQUENT ORDERS ;
( C)THE OTHER CONDITIONS OF THOSE CONTRACTS AND THEIR LEGAL EFFECTS ARE GOVERNED BY NATIONAL LAW .
