Opinion of the Advocate-General
I - Introduction
1. In the present case, the Supreme Court of Ireland is asking the Court to interpret legislation concerning two special aid regimes which are respectively governed by Commission Regulation (EEC) No 1964/82 of 20 July 1982 laying down the conditions for granting special export refunds on certain cuts of boned meat of bovine animals and Commission Regulation (EEC) No 2675/88 of 29 August 1988 providing for the grant of private storage aid fixed at a standard rate in advance in respect of carcases, half-carcases, hindquarters and forequarters from adult male bovine animals.
2. The questions are essentially concerned with the interpretation of provisions relating to the content of packets of beef, and the way in which the beef is wrapped, if it is to qualify for special export refunds and storage aid, and with the methods of checking compliance with the Community legislation and calculating the amount of the security which is forfeited if those provisions are infringed.
II - Legal context
3. The provisions governing the two aid regimes which are set out are those which were in force at the time when the facts occurred (1988).
A - System of special export refunds
4. The system of special export refunds is governed by Commission Regulation No 1964/82, in the version in force at the material time.
5. Article 1 of Regulation No 1964/82 provides, so far as relevant to the present case, that individually wrapped boneless cuts from fresh or chilled hindquarters of adult male cattle shall, when the terms of [the] regulation are complied with, qualify for special export refunds.
6. In Article 2(1) it is specified that the operator shall submit to the competent authorities indicated by the Member States a declaration stating his intention to bone hindquarters as defined in Article 1 under the terms of [the] regulation and to export the entire quantity of boned pieces obtained, each piece being individually wrapped.
7. Article 6 provides:
Without prejudice to the application of the provisions of Regulation (EEC) No 2730/79, the grant of the special refund shall be conditional, except in circumstances of force majeure, on exportation of the total quantity of meat produced by boning covered by the abovementioned supervision.
The operator may, however, sell within the Community bones, large tendons, cartilages, pieces of fat and other scraps left over from boning.
8. It is laid down in Article 7 that, by way of derogation from Articles 2(3) and 4(1), Member States may provide for appropriate control measures in place of the supervision by the competent authorities of the boning of the hindquarters, and in particular that detailed rules for trimming and packaging be established, together with a description of the different cuts to be obtained.
9. Article 8 states:
The Member States shall determine the conditions for supervision and shall inform the Commission accordingly. They shall take all necessary measures to make substitution of the products in question impossible, in particular by identification of each piece of meat. No meat other than that covered by this regulation, with the exception of pigmeat, may be present in the boning room when the meat in question is being boned, trimmed or packaged.
The bags, cartons or other packaging material in which the boned cuts are placed shall be officially sealed by the competent authorities and bear particulars enabling the boned meat to be identified, in particular the net weight, the type and the number of cuts and a serial number.
10. The special export refund could be paid in advance. In that case, a security equal to the advance payment plus 20% had to be provided.
11. That security is governed by a series of regulations, in particular: (a) Council Regulation (EEC) No 565/80 of 4 March 1980 on the advance payment of export refunds in respect of agricultural products; (b) Commission Regulation (EEC) No 2220/85 of 22 July 1985 laying down common detailed rules for the application of the system of securities for agricultural products, as amended; and (c) Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products, as amended.
B - System of private storage aid
12. Commission Regulation No 2675/88 provides for the grant of private storage aid fixed at a standard rate in advance in respect of carcases, half-carcases, hindquarters and forequarters from adult male bovine animals. The second recital in its preamble states that the provisions of Commission Regulation (EEC) No 1091/80 of 2 May 1980 laying down detailed rules for granting private storage aid for beef and veal, as amended, should be followed.
13. Article 2(2) of Regulation No 2675/88 provides that private storage aid can be granted only for meat classified in accordance with the Community carcase classification scale, laid down in Council Regulation (EEC) No 1208/81 of 28 April 1981 determining the Community scale for the classification of carcases of adult bovine animals, as corrected.
14. Article 2(2) of Regulation No 1208/81 provides that for the purpose of establishing market prices carcases are to be presented without cod fat.
15. Article 4(4) of Regulation No 2675/88 states that the large tendons, cartilages, pieces of fat and other scraps left over from cutting [or] boning may not be stored.
16. Article 5(2) of Regulation No 2675/88 provides that after three months of storage under contract, a single advance payment of the aid may be made, at the storer's request, on condition that he lodges a security equal to the advance payment plus 20%.
17. That security is governed by Article 5(2) and by Regulations No 2220/85 and No 3665/87 referred to above.
18. Article 10 of Regulation No 2675/88 fixes the amount of the security referred to in Article 4(2) of Regulation No 1091/80, that is to say the security provided when an application is submitted for a private storage aid contract.
19. In that regard, Article 5 of Regulation No 1091/80 provides as follows:
1. The amount of the security shall not exceed 30% of the amount of aid applied for.
2. Except in cases of force majeure:
(a) the security shall be forfeit proportionately to the shortfall on the quantity agreed in the contract if less than 90% of that quantity is entered into storage within the time-limits laid down and remains stored for the stipulated period in accordance with Article 3(2)(a);
(b) if any of the obligations laid down in Article 3(2)(b), (c), (d) and (e) are not complied with, the competent authority of the Member State concerned shall declare the security wholly or partially forfeit, depending on the gravity of the breach of contract; the competent authorities of the Member States shall notify monthly the Commission of such cases, the circumstances and the action taken;
(c) where the other obligations are not complied with, the security shall be totally forfeit.
3. The security shall be released as soon as it is established that the conditions of the contract have been fulfilled, or in the event of an application for a contract or a tender being refused.
III - Facts
20. HMIL Limited (formerly known as Hibernia Meats International Limited) (HMIL) is a company with limited liability which at all material times was involved in the purchasing, deboning and trading of beef.
21. During 1988 it declared approximately 13 000 tonnes of beef with a view to obtaining special export refunds, pursuant to Regulation No 1964/82, and entered into the related contracts. It received IEP 16 270 139.96 in special export refunds. During that year it also entered into 138 private storage contracts under Regulation No 2675/88 in respect of the same beef and received IEP 5 376 259.13 in aid for private storage (APS).
22. HMIL provided the Minister for Agriculture, Food and Forestry (the Minister) with three separate securities in the form of bank guarantees, within the framework of the schemes for the grant of special export refunds and APS which then applied.
23. Between April and September 1989, the Minister and the Revenue Commissioners examined 2 400 cartons of deboned beef declared for the purpose of grant of special export refunds and placed in storage under the APS scheme for 1988. The checks revealed that, in seven production plants used by HMIL, certain of its cartons which were examined included cuts or pieces of meat which in the Minister's view were not individually wrapped and also fat (which was cod fat), scraps and trimmings wrapped inside the cuts known as plate and flank and mid rib. Finally, the Minister alleged that in four of the production plants in question the quantity of scraps and trimmings and non-individually wrapped pieces was extremely high.
24. In January 1990 the Minister notified the results of those checks to the Commission. Protracted discussions followed between the Minister and the Commission. On their conclusion the Minister sent a letter dated 17 May 1991 to HMIL and the other traders.
25. On 17 May 1991 the Minister, by the abovementioned letter to HMIL, sought inter alia repayment of the following amounts: (i) IEP 1 135 967.93 in respect of special export refunds (inclusive of the 20% advance payment premium); (ii) IEP 241 021.03 in respect of APS (inclusive of the 20% advance payment premium); and (iii) IEP 148 759.97 in respect of APS contract securities declared forfeit in respect of plate and flank and mid rib production at the Sallins, Athy, Tunney and Ballymahon production plants of HMIL.
26. In the letter, the Minister informed HMIL that the amounts demanded as set out above had been determined in accordance with the following criteria:
(a) all cartons found to contain trimmings or fat were excluded from APS and export refunds and the 20% advance payment premium was also deemed to be recoverable;
(b) all cartons found to contain non-individually wrapped pieces of meat were excluded from export refunds and the 20% advance payment premium was also deemed to be recoverable;
(c) the sampling results were extrapolated across the total plate and flank and mid rib production at each of the HMIL production units concerned with separate calculations for each production unit;
(d) the extrapolation method for APS was based on the exclusion from APS plus the regulatory premium of the percentage by weight of trimmings found relative to the weight of the cartons sampled;
(e) the extrapolation method for export refunds was based on the exclusion from export refunds plus the regulatory premium of the percentage by weight of trimmings and non-individually wrapped pieces found relative to the weight of the carton sampled;
(f) where the weight of trimmings in any carton was greater than or equal to 3 kg, the weight of the entire carton was included in the extrapolation calculation;
(g) where cod fat had been uncovered, the weight of the entire carton was included in the extrapolation exercise for APS and export refunds;
(h) an average weight per carton was established for each production unit and the exclusion of cartons and the extrapolation procedure were based on the average weights;
(i) the seriousness of the regulatory breaches in respect of the plate and flank and mid rib production of the Sallins, Athy, Tunney and Ballymahon plants of HMIL were, in the Minister's view, such as to warrant forfeiture of the APS contract securities in respect of the bone-in equivalent of such production at those production units.
27. On 13 June 1991 HMIL brought proceedings against the Minister before the High Court, seeking inter alia: (a) a declaration that the decision by the Minister to seek the sum of IEP 1 525 748.93 in respect of APS and export refunds paid to it was invalid; (b) a declaration that in performing its contracts with the Minister relating to the APS and export refund schemes for 1988 it had acted in compliance with the regulations governing those schemes; and (c) a declaration that the Minister was obliged to release the guarantees given to it in respect of HMIL's contracts with it under the APS and export refund schemes for 1988.
28. According to the Supreme Court, the problems raised may be divided under three headings: (i) the proper construction of Regulation No 1964/82 so far as concerns the requirement of individual wrapping and the eligibility of trimmings for special export refunds; (ii) the proper construction of Regulation No 2675/88 in so far as it relates to the eligibility of trimmings for APS; and (iii) if HMIL infringed the regulations, the legality of the financial corrections which the Minister seeks to impose, and the limitations contended for by HMIL on any financial corrections which might be imposed by the Minister.
29. In its judgment of 8 February 1996, the High Court found at first instance in favour of HMIL. It held in particular that Article 6 of Regulation No 1964/82 imposed an obligation on HMIL to export all the meat resulting from the deboning process, that as trimmings were edible meat there was an obligation to export them, and that Article 1 should be construed as permitting unwrapped trimmings to be rolled up inside cuts of plate and flank which are then wrapped without infringing the regulation. It also held that Article 4 of Regulation No 2675/88 required that all meat including trimmings be placed in store and that trimmings were accordingly eligible for APS. It then held that the sampling exercise carried out by the Department of Agriculture, Food and Forestry (the Department) did not reveal any measurable fault by HMIL which would require financial correction as to APS or special export refunds. Finally, it concluded that the system of financial corrections applied by the Minister was so fundamentally flawed that it could not be saved.
30. The Minister appealed against that judgment of the High Court to the Supreme Court.
IV - Questions referred for a preliminary ruling
31. The Supreme Court, against whose decisions there is no judicial remedy, decided to refer the following nine questions to the Court of Justice for a preliminary ruling:
1. Is Commission Regulation (EEC) No 1964/82 and in particular Article 1 thereof, to be construed as meaning that trimmings of less than 100 grams, when rolled up inside a cut of plate and flank from fresh or chilled hindquarters of adult male cattle, which rolled up cut is then wrapped, do or do not qualify for special export refunds pursuant to the said regulation?
2. Is Commission Regulation (EEC) No 1964/82 and in particular Article 1 thereof, to be construed as meaning that [trimmings/detached pieces of meat] of greater than 100 grams when rolled up inside a cut of plate or flank from fresh or chilled hindquarter of adult male cattle, which rolled up cut is then wrapped, do or do not qualify for special export refunds pursuant to the said regulation?
3. Is Commission Regulation (EEC) No 1964/82 and in particular Article 1 thereof, to be construed as meaning that each piece or cut of plate and flank must be individually wrapped or that in addition, trimmings may be rolled up inside a piece or cut of plate and flank and such rolled up piece or cut may then be wrapped?
4. Is Commission Regulation (EEC) No 2675/88 and in particular Article 4(4) thereof, to be construed as permitting or not permitting the storage of trimmings of less than 100 grams resulting from the cutting and deboning for the purpose of obtaining private storage aid under contracts entered into pursuant to the said regulation?
5(a) Where upon examination of one or more boxes of meat placed under customs control for the purpose of obtaining special export refunds pursuant to Regulation No 1964/82, it is discovered that the contents of such boxes include trimmings rolled within plate and flank or mid rib and if the inclusion of such trimmings is contrary to Regulation No 1964/82, do Regulations No 565/80 and No 3665/87 permit the competent authority to reject the contents of the entire box as not qualifying for special export refunds and to forfeit the security given for the advance payment made in respect of such box plus 20%?
5(b) Where upon examination of one or more boxes of meat placed under customs control for the purpose of obtaining special export refunds pursuant to Regulation No 1964/82, it is discovered that the contents of such boxes include separate pieces of fat rolled within plate or flank or mid rib contrary to Regulation No 1964/82, do Regulations No 565/80 and No 3665/87 permit the competent authority to reject the contents of the entire box as not qualifying for special export refunds and to forfeit the security given for the advance payment made in respect of such box plus 20%?
5(c) Where upon examination of one or more boxes of meat placed under customs control for the purpose of obtaining special export refunds pursuant to Regulation No 1964/82, it is discovered that the contents of such boxes include non-individually wrapped pieces of meat contrary to Regulation No 1964/82, do Regulations No 565/80 and No 3665/87 permit the competent authority to reject the contents of the entire box as not qualifying for special export refunds and to forfeit the security given for the advance payment made in respect of such box plus 20%?
6(a) Where upon an examination of one or more boxes of meat placed in store under Regulation No 2675/88 for the purpose of obtaining private storage aid, it is discovered that the contents of such boxes include trimmings rolled within plate and flank or mid rib and if the inclusion of such trimmings [is] contrary to Article 4(4) of Regulation No 2675/88, do Regulations No 2220/85 and No 2675/88 permit the competent authority to reject the contents of the entire box for the purposes of private storage aid and to forfeit the security for the [advance] payment made in respect of such box plus 20%?
6(b) Where upon an examination of one or more boxes of meat placed in store under Regulation No 2675/88 for the purpose of obtaining private storage aid, it is discovered that the contents of such boxes include separate pieces of fat rolled within plate and flank or mid rib contrary to Article 4(4) of Regulation No 2675/88, do Regulations No 2220/85 and No 2675/88 permit the competent authority to reject the contents of the entire box for the purposes of private storage aid and to forfeit the security for the advance payment made in respect of such box plus 20%?
7. Where upon such an examination of boxes placed under customs control for the purpose of obtaining special export refunds pursuant to Regulation No 1964/82, it is discovered that a certain number of boxes contain ineligible material rolled up inside a cut of meat and there is evidence of a deliberate persistent policy by the operator of rolling up such ineligible material inside particular cuts of meat in particular production plants, is the competent authority authorised pursuant to Regulations No 565/80, No 3665/87 and No 1964/82 to extrapolate the results of the sample across the production of such cuts in the particular production units and to reject as eligible for export refunds, a quantity of meat based on such extrapolation and to forfeit the security for the advance payment made in respect of such quantity plus 20% or is the competent authority confined to extrapolating the results of the examination of boxes in one export refund bond across the production of the relevant cuts within that export refund bond as the case may be?
8. Where boxes placed in storage under Regulation No 2675/88 for the purpose of obtaining private storage aid have been examined and a certain number of such boxes have been found to contain ineligible material contrary to Regulation No 2675/88 and there is evidence of a deliberate and persistent policy of including such ineligible material rolled up inside particular cuts in particular production plants, is the competent authority entitled pursuant to Regulations No 2220/85 and No 2675/88 to extrapolate the results of such examination across the production of such cuts in the particular production plants and to reject as eligible for private storage aid a quantity of meat based on such extrapolation and to forfeit the securities given in respect of the advance payments made on such quantities plus 20%, or is the competent authority confined to extrapolating the results of the examination of boxes in one APS contract across the production of the relevant cuts within that APS contract as the case may be?
9. Where there is evidence of a persistent and deliberate policy by an operator to include in boxes of particular cuts of boneless meat in particular production plants, material which may not be stored pursuant to Article 4(4) of Regulation No 2675/88 and the APS contract entered into by the operator with the competent authority and examination revealed significant quantities of such ineligible material has been stored, does Regulation No 1091/80, and in particular Article 5(2)(c) thereof, authorise the competent authority to forfeit the amount of the contract securities referable to the production of the relevant cuts of meat in such production plants?
V - Answers to the questions submitted
A - Admissibility
32. HMIL raises the issue of the admissibility of the last three questions. First of all, it contends (paragraphs 2.8.1, 6.9.5 and 7.13.1 of its observations) that Questions 7 and 8 are hypothetical in nature and unrelated to the matter in dispute because they have been asked in order to obtain guidance for use in future calculations which the Ministry might make and not in order to resolve the dispute pending before the national court.
33. HMIL also takes the view (paragraph 7.14 of its observations) that Question 9 has no bearing on the outcome of the dispute and is clearly hypothetical, because it has never been alleged that HMIL intended to defraud the competent authorities with regard to the payment of storage aid, nor does the evidence show that significant quantities of ineligible material were stored.
34. In the present case, the national court analyses the way in which the results of the sampling checks carried out were extrapolated and sets out the related submissions of both the Minister and HMIL. I therefore consider that it explains the reasons why an answer to those questions is needed in order for it to dispose of the case pending before it and the Court must accordingly examine them.
B - Substance
35. First I will consider together, as they are connected, Questions 1, 2 and 3, which concern issues of interpretation of Regulation No 1964/82 - more specifically, issues relating to the need for individual wrapping and to the 100 gram rule (1). I will then consider Question 4, which is concerned with the interpretation of Regulation No 2675/88, more specifically with the question of whether it is permitted to store trimmings weighing less than 100 grams (2). Next, I will consider Question 5 which is concerned with the interpretation of Regulations No 1964/82, No 565/80 and No 3665/87 and with the issue of the permissible unit of disallowance for material examined (3). Question 6 concerns the interpretation of Regulations No 2675/88 and No 2220/85 and, once more, relates to the issue of the permissible unit of disallowance (4). I will examine together Questions 7, 8 and 9, which are concerned with the interpretation of provisions of Regulations No 1964/82 and No 2675/88 as well as of Regulations No 565/80, No 2220/85, No 3665/87 and No 1091/80 and pertain to the issue of the permissible unit for extrapolating sampling results (5).
(1) Questions 1, 2 and 3: the need for individual wrapping and the 100 gram rule
36. By its first three questions, the national court is essentially asking whether it follows from Article 1 of Regulation No 1964/82 that, in order for special export refunds to be paid, certain pieces of beef or trimmings must be individually wrapped and whether it is possible to draw a distinction on the basis of the criterion of whether they weigh more or less than 100 grams.
37. As is explained both by the national court and in the observations submitted by the parties, the reason for the distinction which is drawn in Questions 1 and 2 between trimmings of less than 100 grams and trimmings or detached pieces of meat of more than 100 grams is that, in the course of the investigation carried out in 1989, the Minister determined that trimmings were scraps or pieces of meat weighing 100 grams or less.
38. HMIL maintains (paragraph 7.5 of its observations) that it follows from the Community legislation on the grant of export refunds (Regulation No 1964/82) that it could place small pieces of meat inside a cut of plate and flank and wrap the resulting piece of meat, without giving rise to a risk that they would be substituted. In its view, apart from the fact that that constitutes an established trade practice, the objectives pursued by Regulation No 1964/82 do not mean that the producer must wrap individually every small piece of meat, as the Minister maintains. It concludes that the weight of trimmings is not a relevant factor for determining whether meat qualifies for export refunds.
39. I will consider first the need for every piece of meat to be individually wrapped, then issues connected with linguistic divergences affecting certain terms and, last, the 100 gram rule which Ireland introduced in order to exclude certain trimmings from special export refunds.
(a) The need for individual wrapping
40. In my view, it is clear from Regulation No 1964/82 that every piece [morceau] of meat for export needs to be individually wrapped. First, in accordance with the wording of the first paragraph of Article 1, every cut [morceau] of meat intended for export must be individually wrapped in order to qualify for payment of a special export refund. In other words, whole packets which contain plate, flank or mid rib and trimmings or small pieces of meat or of fat do not amount to individually wrapped boneless cuts within the meaning of Article 1 and every piece of meat is required to be individually wrapped, as the Minister correctly maintains (paragraphs 4.3 and 4.4 of his observations). Second, it is specified in Article 2(1) that the trader is to submit to the competent authorities indicated by the Member States a declaration stating his intention to bone hindquarters as defined in Article 1 under the terms of the regulation and to export the entire quantity of boned pieces obtained, each piece being individually wrapped. It is also provided in the first subparagraph of Article 2(2) that the declaration is to describe and state the quantity of the products to be boned. Third, Article 4(1) provides that, after boning, the trader is to submit for endorsement to the competent authority one or more boned meat certificates, on which the number of the certificate referred to in Article 2(2), describing the products to be boned and specifying their quantity, is to be entered (in box 7). Fourth, it is of fundamental importance to ensure that there is no possibility of substitution of wrapped pieces of meat, in particular by identifying them, as is expressly stated in Article 8.
41. We may therefore observe from the body of rules which governed the system of special export refunds at the material time that no Community provision enabled the Member States to depart from this basic rule, even if very small pieces of meat were involved.
42. The above principles mean in practice that, should a cut of meat, such as plate or flank, be cut up for the purpose, for example, of improved wrapping and/or because of commercial requirements, each of the pieces must be individually wrapped, be identified and have its weight established, in order that the conditions laid down by Regulation No 1964/82 are fully met.
(b) Linguistic divergences
43. HMIL states that, because of the speed at which work is performed in deboning halls, small pieces of meat inevitably become detached from the large pieces during the deboning process. Those small pieces, of considerable commercial value, are called trimmings and must be distinguished from scraps, for example large tendons, cartilage, and pieces of fat or other bits which fall onto the floor during deboning, which are not marketable products. According to HMIL, plate and flank is a lower quality cut which in practice is rolled and then wrapped in polythene. It is normal trade practice for trimmings to be placed inside a cut of plate and flank; the whole is then rolled up and wrapped as a single cut. HMIL maintains that the possibility accorded to traders by the second paragraph of Article 6 of Regulation No 1964/82 of selling within the Community bones, large tendons, cartilages, pieces of fat and other scraps left over from boning relates only to scraps and not to trimmings which must be exported in any event.
44. In the present case, a problem arises in that the English text of Regulation No 1964/82, first, simultaneously uses the terms cuts and pieces and, second, uses the term scraps.
45. The first term (cuts) is used in Article 1 and the second paragraph of Article 8, while the second term (pieces) is used in Article 2 and the first paragraph of Article 8. However, those two words are interchangeable and have essentially the same meaning.
46. In my view, if it were accepted that the English term pieces had to be regarded as synonymous with the term cuts, that is to say that it meant only large pieces of meat, so that trimmings were not required to be individually wrapped but could be wrapped within a cut of plate and flank, the effect would be to distort the application of Regulation No 1964/82.
47. Thus, having regard to the objective pursued by Regulation No 1964/82, the better view is that the English term cut must be interpreted as referring to any piece of meat, however small. That interpretation alone is consistent with ensuring that there is no possibility of substitution of wrapped pieces of meat, in particular by identifying them, an aim which is emphasised in Article 8 of Regulation No 1964/82 and is also clear from the eighth recital in the preamble to that regulation, where it is stated that the refund at issue is special in nature, that no substitution should be permitted and that means of identification of the products in question should be provided for.
48. Furthermore, the above interpretation is borne out by examination of other language versions of the terms in question. For example, in French the term morceau is used, in Italian the term pezzo and in Greek the term o. The German version is clearer because, while the term Stück is used in Article 1 and Article 2(1), the word Teilstück, literally part of a piece, is used in the first and second paragraphs of Article 8.
49. I also reach that conclusion on interpreting the second paragraph of Article 6 of Regulation No 1964/82. Certainly, the first paragraph of Article 6 provides that the grant of the special export refund is to be conditional on exportation of the total quantity of meat produced by boning, that is to say the quantity constituted by the meat from the hindquarters of adult male cattle which are subject to control in accordance with Article 5. However, that provision must be interpreted, first, in the light also of the other provisions of Regulation No 1964/82, such as the first paragraph of Article 1, Article 2 and Article 8, under which each piece of meat must be identifiable, and second, having regard to the objective pursued, as set out above, by the Community legislature.
50. In my view, the provisions of the Community legislature relate to a whole, to be exact the hindquarters of adult male cattle. They also regulate what happens to that whole after deboning: while the total quantity of meat, that is to say all the pieces of meat, separately wrapped, qualifies for special refunds if exported, the remaining products arising from deboning may be sold within the Community. More specifically, according to the second paragraph of Article 6 the operator may, however, sell within the Community bones, large tendons, cartilages, pieces of fat and other scraps left over from boning. As is correctly pointed out by the Minister (paragraph 4.20 of his observations) and the Commission (paragraph 10 of its observations), the word however means that the second paragraph constitutes an exception to the first. It is designed, therefore, to allow operators to sell within the Community meat as well, because otherwise there would have been no reason to draft the second paragraph in the form of an exception.
51. The only element in the second paragraph of Article 6 which could also relate to meat is the phrase other scraps left over from boning. I draw the conclusion that that phrase is designed to include trimmings arising from the deboning process, which the operator concerned may sell within the Community.
52. The issues raised by the existence of a linguistic divergence in the rendering in English of the term chutes de parage as scraps, which is verbally different from the term parures - a term rendered in English as trimmings (trims) - must also be resolved having regard to the broad logic of the provision and the objective pursued by Regulation No 1964/82.
53. Since the Community legislature enacts, in the second paragraph of Article 6, an exception to the rule which it lays down in the first paragraph, it must, in my view, be found that the English term scraps does not refer to waste, that is to say to pieces not fit for human consumption, but may also refer to pieces of meat irrespective of their size, and the submission of HMIL to the contrary cannot be accepted.
54. In conclusion I consider that, so far as concerns the issue of the obligation to wrap individually each piece of meat which results from deboning, there is no intrinsic difference between scraps, a term used in Article 6, and trimmings/trims, as the Minister and the Commission rightly point out.
(c) The 100 gram rule
55. I now come to consideration of the question whether a Member State, to be specific Ireland, could, in accordance with Regulation No 1964/82, lay down a limit, in this instance 100 grams, enabling it to exclude pieces/trimmings below the limit from special export refunds.
56. The solution to that question is connected with the interpretation of Articles 7 and 8 of Regulation No 1964/82, as the Commission correctly points out (paragraph 10 of its observations).
57. It may be recalled that it is laid down in Article 7 inter alia that Member States may provide for appropriate control measures in place of the supervision by the competent authorities of the boning of the hindquarters, and in particular that detailed rules for trimming and packaging be established, together with a description of the different cuts to be obtained. In addition, Article 8 provides that the Member States are to determine the conditions for supervision and inform the Commission accordingly; they are also to take all necessary measures to make substitution of the products in question impossible, in particular by identification of each piece of meat.
58. It is apparent from Articles 7 and 8, interpreted together, that the Member States have the power to exclude from special export refunds trimmings below a defined weight, having regard to the practical difficulty of identifying every more or less small piece of meat.
59. I have already stated that, in order to qualify for a special export refund, every piece of meat should be individually wrapped, irrespective of its size and weight. However, it was open to a Member State, such as Ireland in this instance, to lay down a lower limit of 100 grams below which pieces of meat did not qualify for a special export refund, while pieces weighing more than 100 grams did qualify provided that they were individually wrapped.
(2) Question 4: storage of trimmings weighing less than 100 grams
60. The fourth question raises the issue of whether it is possible under Regulation No 2675/88 to store trimmings/trims weighing less than 100 grams.
61. According to HMIL, the issue as to whether or not trimmings qualify for private storage aid does not turn on their weight. It considers that Article 4(4) of Regulation No 2675/88 permits the storage of trimmings resulting from cutting and deboning. In its submission, Article 4(4) must be interpreted in a manner consistent with Article 6 of Regulation No 1964/82. Finally, it contests the validity of the 100 gram rule, under which trimmings of less than 100 grams did not qualify for aid, because, apart from being arbitrary, it would, if applied, infringe the principle of legal certainty and the prohibition on retroactivity: the rule was not made known to HMIL since it was not adopted by the Minister before the placing into storage but while the investigation was being conducted.
62. The Minister takes the view that, since the Community legislature does not define the phrase other scraps left over from cutting [or] boning which appears in Article 4(4) of Regulation No 2675/88, he himself, as competent national authority, could, in accordance with the Court's case-law, lay down rules for the application of Article 4(4) and specify that the lean trimmings excluded from storage under Article 4(4) were trimmings of less than 100 grams each.
63. First, I consider that some clarification is required. Article 4(4) of Regulation No 2675/88 specifies what cannot be stored. It thus prohibits the storage not only of large tendons, cartilages and pieces of fat but also of other scraps left over from cutting or boning. The change compared with Regulation No 952/85 which had applied earlier is clear since, under the latter, the storage of trimmings was not prohibited: on the contrary, an obligation was laid down (Article 4(1)) requiring all the meat resulting from cutting or boning to be stored.
64. The similarity of the wording of Article 4(4) of Regulation No 2675/88 and the second paragraph of Article 6 of Regulation No 1964/82 is clear. However, it must be remembered that the two schemes - special export refunds under Regulation No 1964/82 and private storage aid under Regulation No 2675/88 - constitute two separate legal systems with different objectives, even though it was legally possible at the time of the facts of the case for the special export refunds scheme and the APS scheme to be applied in respect of the same carcase.
65. The necessary bridge between those two legal systems may be sought in Regulation No 2675/88 itself but additionally in Regulation No 565/80. Article 4(4) of Regulation No 2675/88 must also be interpreted in the light of Article 6 thereof which (in Article 6(1)) allows products to be stored under a private storage contract and placed under the system laid down in Article 5(1) of Regulation No 565/80, that is to say a system of special export refunds. The logical inference is that the system under Regulation No 1964/82 is also included and that the product which may be stored pursuant to Regulation No 2675/88 and the product which may be exported in accordance with Regulation No 1964/82 must be the same.
66. Furthermore, under Article 3(2)(d) of Regulation No 1091/80, private storage contracts must impose an obligation on the storer to store the products in easily identifiable lots, on which the weight and date of entry into store are clearly marked. That reinforces the conclusion that the identity of the product stored is also an important element for the operation of the APS system.
67. That is to say, by Article 6(1) of Regulation No 2675/88, which was published in the Official Journal on 30 August 1988 and entered into force on the same day (Article 14), an exception was enacted to Article 2(4) of Regulation No 1091/80 which prohibited private storage aid and advance payments of export refunds from being received simultaneously in respect of the same products. Article 6(1) of Regulation No 2675/88 thus provided that beef stored under a private storage contract could also be brought under the customs warehousing or free zone procedure and qualify for advance payment of special export refunds, as provided for by Article 5 of Regulation No 565/80.
68. It accordingly follows that the term scraps used in Article 4(4) of Regulation No 2675/88 should logically be identical in meaning to the same term in the second paragraph of Article 6 of Regulation No 1964/82, as the Commission (paragraph 15 of its observations) and the Minister (paragraph 5.4 of his observations) correctly point out.
69. Furthermore, it is apparent on examining the other language versions of the term scraps in Article 4(4) of Regulation No 2675/88 that the term used is the same as that in the second paragraph of Article 6 of Regulation No 1964/82.
70. However, sight must not be lost of the fact that the two provisions govern different subjects. Article 4(4) of Regulation No 2675/88 was designed to exclude scraps from the private storage system while the second paragraph of Article 6 of Regulation No 1964/82 allowed traders to choose between selling scraps within the Community and exporting them in accordance with the conditions laid down therein. Therefore, trimmings left over from cutting or boning, however small they were and regardless of whether or not they were fit for human consumption, could not be stored and thus qualify for storage aid.
71. Besides, Regulation No 2675/88 did not contain provisions equivalent to Articles 7 and 8 of Regulation No 1964/82 enabling the Member States to adopt implementing measures. Thus Regulation No 2675/88, which lays down relevant rules binding the Member States, must be applied in all respects and it is not open to the Member States to lay down that trimmings, however small, and regardless of whether or not they are fit for human consumption, qualify for APS.
72. So far as concerns HMIL's complaints that the principle of legal certainty and the prohibition on retroactivity were infringed because the 100 gram rule was adopted within the process of checking its products pursuant to Regulations No 1964/82 and No 2675/88, I consider that since the Supreme Court has not raised the issue in its questions to the Court, there is no reason to examine those grievances. They are thus matters for the national court to investigate.
(3) Question 5: the permissible unit of disallowance for material examined in the case of payment of special export refunds
73. Question 5, which is in three parts, concerns the interpretation of Regulations No 1964/82, No 565/80 and No 3665/87 and, more specifically, the issue of the permissible unit of disallowance for material examined in the case of payment of special export refunds. The subdivision of the question relates to whether the answer differs according to the nature of the material found in each unit of packaging, in this instance cartons.
(a) Issues raised
74. According to HMIL (paragraph 7.8.1 of its observations), the Minister wrongly considered that the mere presence of the smallest quantity of infringing material in a carton entitled him to disallow the entire carton. In its submission, that approach would offend against the principle of proportionality. Moreover, the provisions of Regulation No 1964/82 do not give grounds for the disallowance of lawfully packaged pieces of meat because another piece of meat which does not meet the requirements of the Community legislation is found. According to HMIL, the objective of the Community legislature is that, where breaches are observed, sums unlawfully paid are to be recovered; disallowing the weight of entire cartons regardless of the weight of the infringing material is not necessary for the achievement of that objective.
75. The Minister considers that where ineligible material is found in a carton, Council Regulation No 565/80 and Commission Regulations No 2220/85 and No 3665/87 permit the competent authority to reject the contents of the entire carton as not meeting the conditions for the grant of special export refunds and to forfeit the security given for the advance payment in respect of the carton plus 20%.
(b) Infringement of the trader's obligations
76. The infringement, established in accordance with the above, by the trader of the rules laid down in Regulation No 1964/82 brings about the consequences set out in detail in Council Regulation No 565/80 and Commission Regulations No 2220/85 and No 3665/87, which permit the competent authority to reject the contents of the entire carton as not meeting the conditions for the grant of special export refunds and to forfeit the security given for the advance payment in respect of the carton plus 20%.
77. Also, as I mentioned earlier, the designation of the goods on the declaration submitted by the trader in advance, pursuant to Article 2 of Regulation No 1964/82, in order to obtain special export refunds had to correspond to the nomenclature for special export refunds which was used in 1988 for products exported in accordance with that regulation. If, by reason of the breach which has been recorded, the product does not correspond to the official nomenclature, there is a further reason why the breach cannot be regarded as being of secondary importance, as the Commission correctly points out (paragraph 16 of its observations). That is all the more so inasmuch as fat does not amount to meat which may, if the conditions of Regulation No 1964/82 are met, qualify for special export refunds.
(c) Forfeiture of the securities
78. In 1988 the legal basis for advance payments of special export refunds and for the conditions governing the lodging and forfeiture of securities was Council Regulation No 565/80 and Commission Regulations No 2220/85 and No 3667/87.
79. The basic principle applicable to the advance payment of special export refunds may be derived from Articles 5 and 6 of Regulation No 565/80. Article 5 allows their advance payment by means of the lodging of a security guaranteeing reimbursement of the amount paid, increased by an additional amount, in this instance 20% as laid down in Regulation No 3665/87. It was also provided (Article 6 of Regulation No 565/80) that the security could be forfeited in whole or in part if there proved to be no right to the export refund or if there was a right to a smaller refund.
80. Commission Regulation No 3665/87 laid down very detailed rules for special export refunds, specifying the particular evidence which the exporter had to submit in order to prove entitlement to them.
81. Since, first, an advance payment is made of the entire amount of the special export refund which may be granted definitively on the basis of the declaration submitted by the exporter in accordance with Article 2(1) of Regulation No 1964/82 and, second, provision is made for recovery of the amount paid in advance where the refund which may be granted definitively is lower than the advance payment, the competent national authority may make financial corrections. Where the trader/exporter concerned does not prove that he is entitled to the whole of special refunds paid in advance, because of a failure to fulfil in their entirety the obligations which he assumed, the competent intervention authority, in this instance the Minister, is obliged to forfeit the security in an amount equal to the difference between the amount paid in advance and the amount of the special refund in respect of which entitlement is proved, plus 20%, in accordance with Article 33(1) and Article 33(3)(d) of Regulation No 3665/87.
(d) Cartons as units of disallowance
82. In the present case, the issue is raised of whether each carton had to or could be regarded as the basic unit to which regard would be had when excluding ineligible material.
83. As to that issue, it is sufficient to note that, in accordance with the second paragraph of Article 8 of Regulation No 1964/82, the bags, cartons or other packaging material in which the boned cuts are placed shall be officially sealed by the competent authorities and bear particulars enabling the boned meat to be identified, in particular the net weight, the type and the number of cuts and a serial number.
84. In my view, bags, cartons and other packaging material in which the boned cuts are placed are given in the second paragraph of Article 8 as equally valid alternatives and the competent national authority is accorded a discretion in that regard. There was therefore no problem in regarding the carton as the basic unit of disallowance for the material examined.
(e) Application of the principle of proportionality
85. The issue is also raised as to whether it is possible to forfeit the whole of the security in respect of the entire carton, as the Minister asserts, or only in proportion to the amount of infringing material in the carton, as the Commission maintains (paragraph 17 of its observations).
86. I consider that the first of the above solutions is the correct one. It is not undermined by the grounds and the solution in the Court's judgment in Gausepohl. In that case the issue was raised of whether the requirement to export the total quantity of meat produced by boning, laid down in Regulation No 1964/82, was fulfilled, because of the absence of a fillet weighing 3.1 kg, which was, however, separately packaged, and whether, because the fillet was missing, special refunds should not have been granted for the total quantity of exported pieces. The Court held that the fact that a negligible part of the total quantity was missing did not, regard being had to the principle of proportionality and in the absence of bad faith on the part of the trader, constitute sufficient grounds for considering that the condition relating to exportation had not been met with regard to the remainder of the meat. That is to say, it accepted that the refund due should be reduced in proportion to the seriousness of the infringement, but did so because, first, only a negligible part of the total quantity was missing and, second, there was an absence of bad faith on the part of the trader, who did not act with intent to defraud; had the contrary applied, it would have found that the requirement of exportation was not met in respect of the remaining quantity of meat. In other words it held, having regard to factors in the case before it, that overriding reasons of equity led to that solution.
87. In the present case, I consider that if the elastic solution were accepted it would - instead of being a judge-made solution based on equity, and a very exceptional corrective - tend to disturb the waters by sanctioning irregularities which may have occurred, especially in so far as, as the national court states, there is evidence of a persistent and deliberate policy on the part of the trader to include in cartons of particular cuts of boneless meat, in particular production plants, material which is not individually wrapped but included within other pieces of meat, contrary to the applicable Community legislation and to the declarations submitted by the trader itself.
(4) Question 6: the unit of disallowance in the case of storage
88. Question 6, which is in two parts, is concerned with the unit of disallowance where beef is stored and Regulations No 2675/88 and No 2220/85 thus apply. That is to say, the issue is whether the unit of disallowance must be the carton. The subdivision of the question into two parts relates to whether the answer differs according to the nature of the material contained in each unit of packaging, which in the present case was cartons.
(a) Grant of private storage aid
89. As I have stated in previous points of my analysis, given the interdependence of the two schemes for the payment of special export refunds and of APS, identification of each piece of meat stored was also a fundamental element of the scheme for payment of APS, and such identification was possible only if each piece was individually wrapped.
90. In addition, under Article 2(2) of Regulation No 2675/88 private storage aid can be granted only for meat classified in accordance with the Community carcase classification scale, as laid down in Council Regulation No 1208/81. Article 2(2) of Regulation No 1208/81, as corrected, provides that for the purpose of establishing market prices carcases are to be presented without cod fat.
91. Besides, in accordance with Article 4(4) of Regulation No 2675/88 pieces of fat could not be stored. In other words, (cod) fat does not qualify for APS in any event.
92. Article 5(2) of Regulation No 2675/88 provides that after three months of storage under contract, a single advance payment of the aid may be made, at the storer's request, on condition that he lodges a security equal to the advance payment plus 20%.
93. That security is governed by Article 5(2) of Regulation No 2675/88 and Regulations No 2220/85 and No 3665/87, which I have referred to above. Article 10 of Regulation No 2675/88 fixes the amount of the security referred to in Article 4(2) of Regulation No 1091/80, a provision which states that applications for contracts or tenders are not to be accepted unless they include the particulars and obligations referred to in Article 3(1) and (2) of the same regulation and proof has been furnished that a security has been provided.
94. With regard to advance payments, a system is laid down in Articles 19(1) and 29 of Regulation No 2220/85 under which traders are required to establish final entitlement to the sum paid in advance; if they fail to do so, the competent authority is obliged to demand that sum and, if it is not paid within 30 days, to declare forfeit the security provided.
95. So far as concerns private storage contracts, Article 5(2) of Regulation No 1091/80 provides that, except in cases of force majeure: (a) the security is to be forfeit proportionately to the shortfall on the quantity agreed in the contract if less than 90% of that quantity is entered into storage within the time-limits laid down and remains stored for the stipulated period in accordance with Article 3(2)(a) of that regulation; (b) if any of the obligations laid down in Article 3(2)(b), (c), (d) and (e) are not complied with, the competent authority of the Member State concerned is to declare the security wholly or partially forfeit, depending on the gravity of the breach of contract; and (c) where the other obligations are not complied with, the security is to be totally forfeit.
96. Since, in accordance with considerations previously set out, the wrapping of trimmings or pieces of fat inside plate, flank and mid rib constitutes a serious breach of the storer's contractual obligations, it also amounts to a breach of Article 5(2)(c) of Regulation No 1091/80, which is the legal basis for forfeiture of the security given plus 20%.
(b) Unit of disallowance
97. As for the unit of disallowance for material not eligible for storage, Article 6(1) of Regulation No 2675/88 provides that, by way of derogation from Article 2(4) of Regulation No 1091/80, products to be stored under a private storage contract may be placed under the system of special export refunds, and Article 6(3) of Regulation No 2675/88 states that, for the purposes of Article 6(1), where a private storage contract is concluded for a quantity which consists of several lots which are placed in storage on different dates, each of those lots may be the subject of a separate payment declaration.
98. Also, under Article 6(3) a payment declaration is to be submitted for each lot on the day of its entry into storage. The final subparagraph of Article 6(3) specifies that lot is to be taken to mean a quantity which is placed in storage on a given day.
99. Thus, under Regulation No 2675/88 the unit of disallowance for ineligible material is the lot. However, since Article 6(3) must also be interpreted in the light of Article 6(1), the Minister could in my view consider the unit of disallowance for ineligible material to be not the lot but the carton of stored meat, an approach which is clearly more favourable to HMIL. It was accordingly open to the Minister to select the carton as the unit of disallowance since that solution is reasonable and consistent with the relevant regulations.
(5) Questions 7, 8 and 9: the permissible unit for extrapolating sampling results
100. The final three questions submitted by the national court are concerned with the interpretation of provisions both of Regulations No 1964/82 and No 2675/88 and of Regulations No 565/80, No 2220/85, No 3665/87 and No 1091/80, and relate to the issue of the permissible unit for extrapolating sampling results. The questions are put on the basis that there was evidence of a deliberate and persistent policy on the part of HMIL to include ineligible material inside particular cuts of beef in particular production plants.
101. It should first be recalled that, according to the national court, between April and September 1989 the Minister and the Revenue Commissioners examined 2 400 cartons of deboned beef declared for the purpose of grant of special export refunds and placed in storage under the APS scheme for 1988. The checks revealed that, in the seven production plants used by HMIL, certain of its cartons which were examined included cuts or pieces of meat which according to the Minister were not individually wrapped and also fat (which the Minister alleged to be cod fat), scraps and trimmings wrapped inside the cuts known as plate and flank and mid rib. Finally, the Minister alleged that in four of the production plants in question the quantity of scraps and trimmings and non-individually wrapped pieces was extremely high.
102. HMIL, relying on the judgment of the High Court, considers (paragraph 6.9.6 of its observations) that the unit for extrapolating the sampling results must be the contract, which is the legal unit under the applicable regulations, and that the provision of security relates to the contract, that is to say a specific contract each time. It submits that it would be wrong to forfeit securities guaranteeing contracts in respect of which there was no sampling at all. The independence of each contract must be acknowledged and respected.
103. The Minister's starting point is the finding of the national court that there was evidence of a deliberate and persistent policy on the part of HMIL to include such ineligible material inside particular cuts in particular production plants. He contends (paragraph 8.7 of his observations) that, if HMIL's interpretation of Regulations No 1964/82 and No 2675/88 is incorrect, it follows that in all probability there is ineligible material in all the production plants, in all the contracts and in all the export refund bonds. The Minister concludes (paragraph 8.8 of his observations) that he could therefore extrapolate the sampling results across the relevant production plant and was not confined to extrapolation within each export refund bond and each APS contract.
104. The Court has repeatedly accepted that sampling results may be extrapolated. It has thus held that the Commission may rely on the results of sampling checks carried out in a sufficiently reliable manner and on the conclusions of experts - that is to say scientists with specialist knowledge who would be in a position to evaluate fully the situation under consideration - and, on the basis of those findings, adopt a measure relating to a whole of which parts have been checked.
105. In addition, the Court has held that, in the absence of specific rules governing the way in which sampling checks are carried out, the Commission may apply the methods of checking which it considers the most appropriate, a power which is, however, counterbalanced by the general requirement that the methods chosen must be reliable.
106. In the present case, I would say that it is not possible to restrict extrapolation solely to the cartons which relate to a storage contract or to a particular bond, on the basis of course that the sample taken for the relevant check may be regarded as representative given that, according to the national court, there was evidence of a persistent and deliberate policy on the part of the operator.
107. Since the conditions which the Court has laid down in its case-law are thus met, I consider that it is not possible to rely on the independence of each contract of guarantee as a protective shield which would in practice prevent the rules of Community law from being fully applied, confining extrapolation to within a particular private storage contract or a particular export refund bond and not to within a production plant.
108. Thus, the competent national authority may draw conclusions from sampling results for the whole of the production of particular pieces of beef provided that the checks are systematic and the results reliable, and provided additionally that there is evidence of a deliberate and persistent policy on the part of the trader as stated in the order for reference.
VI - Conclusion
109. In view of the foregoing, I propose that the following answers should be given to the Supreme Court of Ireland:
(1) The first paragraph of Article 1 of Commission Regulation (EEC) No 1964/82 of 20 July 1982 laying down the conditions for granting special export refunds on certain cuts of boned meat of bovine animals is to be interpreted as meaning that, in order for boneless pieces or cuts of meat to qualify for a special export refund, they must, irrespective of their weight, be individually wrapped.
(2) Articles 7 and 8 of Regulation No 1964/82 are to be interpreted as allowing the Member States to exclude from the system of special export refunds pieces/trimmings weighing less than 100 grams, whether or not they are fit for human consumption. In any event the Member States must take all necessary measures to make substitution of the products in question impossible, in particular by their identification.
(3) Article 6 of Regulation No 1964/82 is to be interpreted as meaning that trimmings constitute scraps and may be sold within the Community.
(4) Article 4(4) of Commission Regulation (EEC) No 2675/88 of 29 August 1988 providing for the grant of private storage aid fixed at a standard rate in advance in respect of carcases, half-carcases, hindquarters and forequarters from adult male bovine animals is to be interpreted as meaning that scraps or trimmings/trims cannot qualify for private storage aid, irrespective of whether or not they are fit for human consumption.
(5) Article 2(1) of Regulation No 1964/82 is to be interpreted as meaning that where the obligations which an operator assumes by virtue of that provision in respect of a quantity of beef for which special export refunds have been paid in advance are infringed in that trimmings or pieces of fat included within plate, flank or mid rib, or non-individually wrapped pieces of meat, are contained in the cartons, the security which has been given for the advance payment made in respect of those cartons, pursuant to Council Regulation (EEC) No 565/80 of 4 March 1980 on the advance payment of export refunds in respect of agricultural products, Commission Regulation (EEC) No 2220/85 of 22 July 1985 laying down common detailed rules for the application of the system of securities for agricultural products, as amended by Commission Regulation No 1181/87, and Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products, as amended by a corrigendum and by Commission Regulations No 3494/88 and No 3993/88, shall be forfeited in its entirety plus 20% if there is evidence of a persistent and deliberate policy on the part of the operator.
(6) Article 4(4) of Commission Regulation No 2675/88 is to be interpreted as meaning that, in the event of infringement of the obligation not to store trimmings from meat in respect of which private storage aid has been paid in advance and of infringement of the obligation not to store pieces of fat, the security provided for each carton shall be forfeited in its entirety plus 20%, in accordance with Article 5(2)(c) of Commission Regulation (EEC) No 1091/80 of 2 May 1980 laying down detailed rules for granting private storage aid for beef and veal, as amended by Regulation (EEC) No 2826/82, if there is evidence of a persistent and deliberate policy on the part of the operator.
(7) Regulations No 1964/82 (the first paragraph of Article 1 and Article 2(1)), No 2675/88 (Article 4(4)), No 565/80, No 2220/85, No 3885/87 and No 1091/80 (Article 5(2)(c)) are to be interpreted as meaning that, when officials of a Member State carry out systematic checks on a representative sample of cartons of beef and find evidence of a persistent and deliberate policy on the part of the trader comprising the commission of irregularities such as those which are said by the national court to have occurred in the present case, the Member State in question is entitled to extrapolate the results of the check carried out across cartons other than those examined, including cartons covered by different private storage contracts or export refund bonds.
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