1 BY JUDGMENT OF 10 DECEMBER 1974, RECEIVED AT THE REGISTRY ON 12 DECEMBER 1974, THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN HAS ASKED THE COURT, UNDER ARTICLE 177 OF THE TREATY, TO RULE WHETHER THE TERM 'FAT CONTENT' APPEARING IN ARTICLE 1 ( C ) OF REGULATION ( EEC ) NO 986/68 OF THE COUNCIL OF 15 JULY 1968 ( OJ SPECIAL EDITION 1968 ( I ), P . 260 ) REFERS NOT ONLY TO THE PURE MILK FAT CONTENT BUT ALSO TO THE CONTENT OF OTHER FAT-LIKE SUBSTANCES IN MILK POWDER, SUCH AS PHOSPHATIDES .
2 IT APPEARS FROM THE FILE THAT THE COMPANY VAN DEN BERGH WAS REFUSED COMMUNITY AID FOR A QUANTITY OF SKIMMED MILK POWDER FOR USE AS FEED, ON THE GROUND THAT THAT PRODUCT HAD A FAT CONTENT EXCEEDING THE LIMIT OF 1.5 PER CENT, ACCORDING TO THE MOST WIDESPREAD METHOD OF ANALYSIS, AT BOTH COMMUNITY AND INTERNATIONAL LEVEL, AND CONFORMING TO THE PROVISIONS OF THE FOOD AND AGRICULTURE ORGANIZATION OF THE UNITED NATIONS AND THE WORLD HEALTH ORGANIZATION .
3 THE COMPANY MAINTAINS THAT AS THE PHOSPHATIDES, WHICH ARE FAT-LIKE SUBSTANCES CHEMICALLY DIFFERENT FROM PURE FATS, CANNOT BE EXTRACTED UNDER THAT METHOD OR UNDER THE MAJORITY OF OTHER METHODS OF ANALYSIS, THE FAT CONTENT RESULTING FROM THAT METHOD SHOULD BE CORRECTED BY DEDUCTION OF THE ESTIMATED CONTENT OF PHOSPHATIDES .
4 THE CONCEPT OF FAT CONTENT IS USED IN COMMUNITY LEGISLATION NOT ONLY IN CONNEXION WITH AID FOR SKIMMED MILK BUT ALSO IN CONNEXION WITH THE TARGET PRICE OF WHOLE MILK, THE INTERVENTION PRICE OF BUTTER AND MOST OF THE PRODUCTS RELATING TO HEADING 04.04 OF THE COMMON CUSTOMS TARIFF .
5 THE MINIMUM OR MAXIMUM FAT CONTENT ALWAYS SERVES AS THE BASIC CRITERION FOR ENABLING THE NATIONAL AUTHORITIES TO ESTABLISH IN PRACTICE THE CLASSIFICATION OF PRODUCTS AND BY-PRODUCTS IN THE MILK SECTOR .
6 THE APPROXIMATE NATURE OF THE CRITERION IN QUESTION AND THE ABSENCE OF A COMMUNITY PROVISION PRESCRIBING A SINGLE METHOD OF ANALYSIS FOR EACH PRODUCT INDICATE THAT IT IS NOT THE DEFINITION OF MILK FATS FROM THE CHEMICAL POINT OF VIEW WHICH IS IMPORTANT BUT RATHER THE PRACTICABILITY OF AN INTERPRETATION FOR THE NATIONAL AUTHORITIES IN THEIR CHECKING DUTIES .
7 IN PRACTICE IN ALL THE MEMBER STATES THE EXPRESSION 'FAT CONTENT' OF SKIMMED MILK POWDER INDICATES THE CONTENT DETERMINED ACCORDING TO THE METHOD OF ANALYSIS USED, WITHOUT ANY ALTERATION .
8 AN INTERPRETATION OF THE EXPRESSION 'FAT CONTENT' WHICH WOULD HAVE THE EFFECT OF OBLIGING THE NATIONAL AUTHORITIES TO CORRECT IN ANY MANNER THE RESULT OF AN ANALYSIS WOULD INTRODUCE AN ELEMENT OF UNCERTAINTY AND CANNOT THEREFORE BE ACCEPTED .
9 IN THESE CIRCUMSTANCES, THE REPLY TO BE GIVEN TO THE NATIONAL COURT MUST BE THAT THE EXPRESSION 'FAT CONTENT' USED IN ARTICLE 1 ( C ) OF REGULATION NO 986/68 MUST BE INTERPRETED AS REFERRING TO THE FAT CONTENT OF SKIMMED MILK POWDER, INCLUDING FAT-LIKE SUBSTANCES SUCH AS PHOSPHATIDES, IN SO FAR AS THOSE SUBSTANCES ARE NOT EXTRACTED WHEN APPLYING THE METHODS OF ANALYSIS IN CURRENT USE .
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 NATIONAL COURT, COSTS ARE A MATTER FOR THAT COURT .
THE COURT
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN BY ORDER OF 10 DECEMBER 1974, HEREBY RULES :
THE EXPRESSION 'FAT CONTENT' USED IN ARTICLE 1 ( C ) OF REGULATION NO 986/68 MUST BE INTERPRETED AS REFERRING TO THE FAT CONTENT OF SKIMMED MILK POWDER, INCLUDING FAT-LIKE SUBSTANCES SUCH AS PHOSPHATIDES, IN SO FAR AS THOSE SUBSTANCES ARE NOT EXTRACTED WHEN APPLYING THE METHODS OF ANALYSIS IN CURRENT USE .
