C-8/89

ZĀRDI

O P I N I O N O F M R A D V O C A T E GENERAL TESAURO delivered on 7 March 1990*

Mr President, whole levy is required (subject to possible Members of the Court, reimbursement) as soon as the cereals are marketed and not at the later stage upon determination that the maximum guaranteed quantity has been exceeded. T h a t method of collection is, it is claimed, illegal for two reasons: in the first place because a financial 1. In the present preliminary-ruling contribution is exacted before the obligation proceedings the national court has asked the to which it relates has arisen (the obligation, Court of Justice to give a ruling as to it is contended, crystallizes only when it is the validity of the arrangements for the found that the maximum guaranteed collection of the additional co-responsibility quantity has been exceeded); secondly, that levy in the cereals sector provided for by method of advance collection of the levy Article 4b of Regulation (EEC) N o 2727/75 infringes the principle of proportionality in of the Council, as amended by Council so far as other options could be envisaged Regulation (EEC) N o 1097/88 of 25 April (in particular a system of bank guarantees) 1988, ' and by Commission Regulation which, whilst still ensuring due payment of (EEC) N o 1432/88 of 26 May 1988. 2 the levy, would be less onerous for producers.

it should be required forthwith; the 1432/88 expressly describes placing on the opposing view, on the other hand, is that to market as the Operative event' for the levy. require payment when it is not known Furthermore, it seems to me that the whether — or to what extent — payment is applicable regulations draw a clear due is clearly unlawful, particularly in view distinction between the obligation to pay the of the principles on which rules governing levy, which arises immediately, when the compulsory financial contributions are ordi- cereals are placed on the market, and the narily based. subsequent, contingent right to reimbur- sement, the existence and extent of which depend on a finding that the maximum guaranteed quantity was not exceeded. Such a finding, therefore, is seen to be the pre-condition for a refund (total or partial) 3. However, it seems to me that the latter of the sums paid rather than for the estab- view is based — at least, the written obser- lishment of the obligation to pay the levy. vations give that impression — on a classifi- cation of the levy as a fiscal contribution, a classification which appears unjustified. O n more than one occasion the Court has rejected such a view: it has stated that co-responsibility levies, although financial in 5. In any event it seems to me that in the one respect in so far as they help to lighten final analysis those differences of view, the burden of the EAGGF budget, are none which concern matters purely of legal the less agricultural-policy measures, being formality, are not such as to affect the instruments whose essential purpose is to outcome of the present dispute. Even if the stabilize markets in which there is a thesis propounded by the plaintiff in the structural surplus. Precisely for that reason main proceedings were to be upheld, and if it seems to me to be inappropriate to assess therefore the obligation were to be regarded the legality of the levy or, as in the present as coming into being only when the ceiling case, of the procedure by which it is was found to have been exceeded, it would collected by reference to criteria — and, not automatically follow that the method of moreover, purely abstract criteria — taken collecting the levy was unlawful. Indeed, it from the field of tax law; on the contrary, I is not unusual, even under national tax laws, consider that the measure should be for advance collection to be prescribed in appraised having regard to the rules and certain circumstances even though the obli- principles which govern the exercise of the gation to which the sums payable relate has Community institutions' legislative powers not yet arisen. This occurs for example in all in implementing the agricultural policy. cases where an amount is withheld or is collected on an interim basis in respect of income which has not yet been generated or ascertained.

establish whether that approach is objec­ containing supply, it was appropriate to give tively justified and whether, in particular, its priority to the instrument of the co-responsi- result is to impose burdens on the payer bility levy rather than other options, such as which, being disproportionate to the aim reduction of intervention prices or the pursued, are unreasonable. imposition of production quotas. Once one of those instruments has been chosen, it must be inferred that the institutions are also free to choose how to apply it and, in the case of a levy, to decide whether it is It therefore seems to me, in fact, that the better to require it to be paid when the first ground relied on for the allegation of goods are placed on the market or later, or invalidity in these proceedings is essentially to take some other course. subsumed into the second, namely the contention that the procedure for collection of the levy breaches the principle of propor­ tionality. Therefore, it will only be possible for the Court to consider whether the procedure chosen for collection of the levy in this case 6. In that connection, it will be recalled that is wholly inappropriate to the objective the Court has several times stressed that the sought to be attained. Community legislature has a wide discretion in choosing the measures to be adopted for implementation of the agricultural policy. It has also emphasized that as a result of that 7. It has been contended that immediate discretion the Court's review can be carried payment of the levy is unnecessary to ensure out only within the limits of a strict its due collection: other means, such as a appraisal of legality. It follows that a system based on sureties or guarantees, measure may be held to be invalid only if it would be suitable and would involve lesser is manifestly not proportionate to the aim sacrifices for farmers. pursued. 3

It is obvious that that function can be more To put it another way, whilst the suggested effectively discharged if the signal given to system of guarantees would be sufficient to producers is sufficiently immediate and achieve the objective of ensuring due forceful. That is why it was decided to payment of the levy, it would not be require payment as soon as the cereals are conducive, to the same extent, to the placed on the market, in other words as objective — which is the specific objective of soon as the price is paid to the farmer., the measure at issue — of bringing direct Conversely, a system of sureties or pressure to bear on prices in order to guarantees, which does not have the same discourage production. direct effects on prices, would, precisely because it entails lesser burdens, have less 8. Consequently, it must be concluded that impact on the results and therefore would immediate collection of the levy is entirely be less appropriate to the objective to be consonant with the intended function of the achieved, namely containment of the supply measure and does not therefore infringe the of cereals. principle of proportionality.

9. In view of t h e f o r e g o i n g considerations, I consider t h a t the following answer s h o u l d be given t o t h e n a t i o n a l court:

' C o n s i d e r a t i o n of the q u e s t i o n raised has disclosed n o factor of such a k i n d as to affect the validity of Article 4b of Regulation ( E E C ) N o 2 7 2 7 / 7 5 of the Council (as a m e n d e d by C o u n c i l Regulation ( E E C ) N o 1097/88) o r of C o m m i s s i o n R e g u - lation ( E E C ) N o 1 4 3 2 / 8 8 . '