C-333/87
ECLI:EU:C:1989:392
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OPINION OF MR TESAURO — CASE C-333/87
OPINION OF MR ADVOCATE GENERAL TESAURO delivered on 19 October 1989 *
Mr President, funds arising from the storage of Members of the Court, skimmed-milk powder. Compared with that general system, the scheme at issue is char acterized by its having introduced higher aid ('special aid') applicable only to milk 1. By two decisions of 18 August 1987 ' the used for feeding animals other than young Commission refused to recognize as charge calves. The rationale is clear: since young able to the European Agricultural Guidance calves (that is to say, calves less than four and Guarantee Fund ('the EAGGF ) grants months old) are in any case fed essentially made by the Federal Republic of Germany on milk, it would therefore be pointless to in 1984 and 1985 to butter producers in the provide 'special' incentives for that Land of Baden-Württemberg by way of particular use. special aid for skimmed milk and skimmed-milk powder for use for feeding animals other than young calves.
3. No matter how consistent with the For the relevant provisions governing the fundamental objectives, that dual aid system grant of such aid — which are, however, was none the less exposed to obvious risks extremely complex and not easy to survey of abuse, since, as the Court has pointed owing to the fact there has been a out, continuous build-up of layers of amending instruments — reference is made to the Report for the Hearing, which provides a detailed description. 'in particular, on farms known as mixed farms, that is to say those on which calves as well as pigs or other animals for slaughter In this Opinion, apart from a number of are reared, there might be a tendency to particulars relating to the more directly obtain skimmed milk under the particularly relevant provisions, it appears appropriate to favourable conditions governing the special set out the following details. aid and to use that milk for rearing calves'. 2
2. The relevant regime constitutes a refinement of a more general system of aid designed to encourage the use of skimmed Precisely because it was impossible to tell in milk for animal feed in order to reduce, or that case whether the milk was actually used at least contain, the costs to Community for feeding animals other than young calves, a flat-rate system for calculating the aid was * Original language: Italian. introduced which, in the specific case of I — Decisions 87/468/EEC and 87/469/EEC on the clearance mixed farms producing butter and using of the accounts presented by the Member States in respect of the European Agricultural Guidance and Guarantee Fund, Guarantee Section, expenditure for 1984 and 1985 2 — Judgment of 28 June 1984 in Joined Cases 187 and 190/83 (OJ 1987, L 262, pp. 23 and 35). Nordbittterv Germany [1984] ECR 2553, paragraph 6.
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their own milk for feeding animals, is based '1 . With regard to the special aid for on the following elements: skimmed milk referred to in Article 2(l)(b) of Regulation (EEC) No 986/68,
(i) for each kilogram of butter sold, aid (a) the farmers concerned shall forward to corresponding to 23 kilograms of the competent agency in their Member skimmed milk is granted; State:
(i) an application including a statement of the size of their herd at the (ii) the aid is granted up to a maximum beginning of each month in annual quantity of 2 800 kilograms of question, skimmed milk for each cow registered on the farm; (ii) an undertaking immediately to notify any change in this infor mation which might involve a (iii) in addition, a flat-rate deduction is change in the rate of aid; made from the amount of aid calculated in that manner to take account of the quantity of milk which (b) the undertakings provided for in Article is presumed to be used for young calves 4(1)(a), (b) and (c) shall apply by (six kilograms per day or 180 kilograms analogy, without prejudice to the per month for each calf) and in respect provisions of Regulation (EEC) No of which therefore no special aid is 1105/68.' granted.
Article 4(1) of Regulation No 2793/77, to which Article 6(1 )(b) refers, provides inter 4. It is obvious that the proper functioning alia as follows: of the system depends on the reliability of the data provided by farms with regard to the calculation parameters. For that reason, '1 . The undertaking referred to in Article under the Community rules farmers have to 3(1)(a) shall be a document drawn up in at comply with a variety of requirements least three copies whereby the farmer relating to the documentation and notifi undertakes to the dairy and the competent cation to the national authorities of the authority: relevant data. For their part, the Member States are under a duty to adopt the necessary measures so as to ensure effective supervision. Finally, any infringements by farmers make them liable to criminal or administrative sanctions. That is the context (c) in the case of a mixed farm: of the provisions with which this dispute is concerned. Those provisions are, first and foremost, Article 6(1) of Regulation (EEC) (i) to forward to the dairy, together No 2793/77, 3which provides as follows: with the undertaking, a statement of the size of his herd at the time 3 — OJ L 321, 16.12.1977. p 30 of application for delivery,
OPINION OF MR TESAURO — CASE C-333/87
(ii) to declare to the dairy, before the A few words by way of preface seem appro beginning of each quarter, the priate. maximum number of calves less than four months old which will be kept on the farm during the quarter in question; this undertaking may be replaced by an undertaking to The provisions in question must be inter make such declaration before the preted in the light of their aims and context. beginning of each month for the In particular, in this case it must be borne in month in question, and mind that the duties with respect to the notification of data are essential in order to ensure that the aid is calculated correctly and the relevant checks are effective.
(iii) to take delivery, for each calf declared pursuant to the above indent, of a minimum quantity of skimmed milk not qualifying for None the less, it should not be overlooked special aid equal to six kilograms that infringements of those provisions entail per day or 180 kilograms per unfavourable — even very severe — conse month.' quences for the persons concerned: sanctions (and even criminal sanctions) and the possibility that the national authorities will claw back the aid granted. I therefore consider that the obligations in question 5. The Commission takes the view that, must ensue plainly and unequivocally from under those provisions, mixed farms the Community rules. producing butter must notify the statement of herd size and the declaration relating to the maximum number of young calves before the beginning of the period for which the aid is applied for. On that view, the Moreover, that requirement seems to me to practice, applied for several years in the be consistent with what the Court has stated Federal Republic of Germany, according to in the past, precisely with regard to the which farms forward those returns at the clearance of the accounts of the EAGGF: same time as the quarterly application for aid, that is to say, at the end of the reference period, is unlawful. As a result, the Commission, acting in accordance with the general rules on the financing of the 'Community legislation must be certain and common agricultural policy, refused, by its application foreseeable by those subject means of the contested decision, to charge to it. That requirement of legal certainty to the EAGGF the sums paid by the Federal must be observed all the more strictly in the Republic of Germany by way of special aid case of rules liable to entail financial conse in 1984 and 1985. quences, in order that those concerned may know precisely the extent of the obligations which they impose on them'. 4
4 — See the Court's judgments of 15 December 1987 in Cases 6. In brief the question is: is it or is it not a 326, 332, 336, 346, 348/85, 237/86 and 239/86, ECR requirement under the rules for the 5091, 5173, 5197, 5225, 5251 and 5271; see in particular the judgment of 15 December 1987 in Case 325/85 Ireland aforementioned data to be notified ex ante} v Commission [1987] ECR 5041, paragraph 18.
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A fortiori I would say that Community legis 'clearly and precisely drafted so that the lation must be clear and precise when Member States may be made fully aware of failure to comply therewith gives rise to the the importance of their complying application of sanctions, especially sanctions [therewith]'. of a criminal nature. In such cases the impo sition of the sanction depends upon the Community measure defining the offence; it is irrelevant that the sanction is laid down 7. Having made that clear I shall turn to by national legislation. This is the line the interpretation of the provisions at issue taken, it seems to me, by the judgment in in this case. 5 Kònecke, where the Court emphasized that: As regards the requirement, set out in the first indent of Article 6(1 )(a), to forward the statement of herd size, it is readily apparent 'a penalty, even of a non-criminal nature, that that provision does not include any cannot be imposed unless it rests on a clear express indication to the effect that that and unambiguous legal basis'. requirement must be complied with before the beginning of the period for which the aid is requested.
In that case, the Court went on to consider whether a particular provision, interpreted On the contrary, it appears to me that the in the light of the traditional criteria, that is argument of the Federal Republic of to say in the light of its wording, context Germany to the effect that a schematic as and purpose, constituted such a legal basis, well as literal interpretation of the provision and reached the conclusion that it did not. bears out the completely opposite view, It seems to me — as has just been pointed namely that the statement of herd size out — that the requirement of clarity applies should be forwarded at the end of the to the (substantive) provision laying down reference period, is well founded. and defining the illegal act or omission as much as it applies to the provision estab lishing a sanction. In the first place, it seems to me that the Federal Republic of Germany is right in maintaining that the application in which the statement of herd size is given is none 6 Lastly, it appears from another precedent other than the application for aid, which is that where failure to comply with a formal to be forwarded to the national agency at provision requiring a particular procedure to the end of each quarterly period covered by be followed (in the case in question, a the aid. provision laying down a time-limit) has the effect of depriving a Member State of a financial advantage, the principle of legal certainty requires that the provision should The Commission sought to challenge that be view by maintaining in particular that the 'application' referred to in Article 6(1) 5 — Judgment of 25 September 1984 in Case 117/83 Konccke v consists of an initial indication of interest on Bimdciattitalt fitr lamlwirtichafttiche Marktordnung [1984] the part of the person concerned in partici ECR 3291, paragraph 7 el icq. pating in the special aid system; in 6 — Judgment of 26 May 1982 in Case 44/81 Germany \ Comminati [1982] ECR 1855, paragraph 16 particular, that application could be the
OPINION OF MR TESAURO —CASE C-333/87
request for registration pursuant to Article granting the aid, the second indent puts the 8(2) of Regulation (EEC) No 1105/68. 7 farmer under a specific obligation continually to update the data, which is important, as the Federal Republic observes, above all for the purpose of the However, the argument is not convincing. performance of checks by the national auth The statement of herd size must be handed orities. However, for that very reason that in periodically; for that reason alone it obligation is to a certain degree independent cannot be included in a document — consti of the obligation set out in the first indent, tuting the initial indication of interest and its function is not affected by whether in participating in the scheme in the statement of herd size is forwarded at question — which, by definition, should be the beginning or at the end of the period to drawn up once only. But, above all, it seems which the aid relates. obvious that the statement of herd size should be designed to be contemporaneous with the application for the grant of the aid, since it is used to calculate the aid itself. 9. In sum, it seems to me that it appears Consequently, that statement should be from Article 6(1)(a) that the statement of notified at the time when the application is herd size should be forwarded at the same made and must, logically, contain data time as the application for the grant of aid, about the herd which relate to the period to that is to say, at the end of the period for which the aid refers. which the aid is requested.
8. The Commission further objects that that However, in any event should doubts interpretation of the first indent of Article remain in that regard it would have to be 6(1)(a) would make nugatory the second considered as a result that the relevant rules indent of that provision, under which do not lay down a sufficiently clear and farmers must forward to the competent precise obligation as regards the time at authority 'an undertaking immediately to which the statement should be forwarded. notify any change in this information which In those circumstances, it must be might involve a change in the rate of aid'. In considered that the relevant regulation gives the Commission's view, if the statement of the national authorities the power to lay herd size had to be forwarded ex post, it down rules on that specific aspect and that would already incorporate the changes they are free to decide whether to require which had taken place in the previous the statement of herd size to be forwarded quarter, and that would make it unnecessary ex ante or ex post. to notify changes immediately.
It follows that in this case the Federal In that connection, it seems to me that it Republic of Germany cannot be held to should be pointed out that the provisions have committed an infringement and that contained in the two indents of Article therefore, from that point of view, the 6(1)(a), albeit complementary, are different contested decision appears to be unfounded. in scope. In particular, whilst the first indent refers to a statement which is to be made periodically and constitutes the basis for 10. However, as has already been 7 — OJ, English Special Edition 1968 (II), p. 379. mentioned, the Commission maintained that
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the Federal Republic of Germany also failed turn, passes it on to the farmer in the form to observe another provision of Regulation of an equivalent reduction in the selling (EEC) No 2793/77. That provision is the price. It must be borne in mind that in that second indent of Article 4(1)(c) which, case the price discount, which represents the although relating to farmers who purchase special aid, relates to a quantity of milk skimmed milk from dairies, also applies, as which will not be consumed until in the a result of the reference made by Article future. It is therefore obvious that for the 6(1)(b), to farmers who produce their own purposes of the correct calculation of the skimmed milk for animal feed. amount the farmer must provide data in the nature of a forecast, that is to say relating to the utilization of milk on the farm in the course of the next quarter.
The second indent of Article 4(1 )(c) provides that farmers must 'declare to the dairy, before the beginning of each quarter, the maximum number of calves less than That requirement of advance notification, four months old which will be kept on the however, does not apply to farmers who are farm during the quarter in question'. producers of skimmed milk, since they qualify for aid on the basis of the quantities of skimmed milk which have already been consumed during the preceding quarter.
According to the Commission, that provision, which is covered by the reference in Article 6, applies on the same terms to farmers who are producers of skimmed It is argued that since in that case the aid milk, except, obviously, that the addressee and the relevant flat-rate deductions are of the statement will no longer be the dairy calculated after the skimmed milk has been but the competent national agency. used on the farm it would be entirely logical for the data relating to the maximum number of calves on the farm to be forwarded ex post and to refer to any changes recorded in the course of the In the view of the Federal Republic of preceding quarter. Germany, however, when that provision is applied to farmers who are producers of skimmed milk it should be read as providing for the declaration relating to the maximum number of calves to be made, not before, 11. Certainly, the applicant's argument is but after the quarter in question. It bases its not without logic. It is in fact based on the view on the differences in the mechanism finding that the data relating to the for paying the aid according to whether the maximum number of calves must in any farmer purchases the skimmed milk from event relate to the quarter for which the aid the dairy or produces it directly. is granted. Consequently it is the preceding quarter in the case of farmers who produce their own skimmed milk and the subsequent quarter in the case of farmers who purchase the milk from a dairy. Consequently, it will In the first case, the aid is paid, not directly be necessary in the first case to forward the to the farmer, but to the dairy, which, in data ex post and in the second case ex ante.
OPINION OF MR TESAURO —CASE C-333/87
However, it must be pointed out that the also in the case of farmers who produce advance declaration relating to the skimmed milk themselves. maximum number of calves, whose importance the Court emphasized in the judgment of 8 October 1986 in Case 9/85 Furthermore, it should be observed that that Nordbutter, 8is important not only for the obligation is couched in absolutely purposes of calculating the flat-rate unequivocal terms in Article 4, which deductions, but also for the purposes of provides that it must be made 'before the effective supervision by the national auth beginning of each quarter'. orities. The advance declaration is more binding on the farmer, who is always at risk of being subjected to checks carried out without warning, in which he must justify In view of the clear wording of the any discrepancy between the situation as provision and of the importance of the found and the forecast data previously advance declaration in any event as regards supplied. the aim of ensuring effective supervision, I consider that the interpretation of Article 4 Consequently, the requirement to notify on which the Commission based the data in advance is not without significance decision at issue is correct.
12. I therefore propose that the Court should dismiss the application and order the Federal Republic of Germany to pay the costs.
8 — Judgment of 8 October 1986 in Case 9/85 Nordbutter v Germany [1986] ECR 2831.