C-351/92
ECLI:EU:C:1993:946
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GRAFF v HAUPTZOLLAMT KÖLN-RHEINAU
OPINION OF ADVOCATE GENERAL VAN GERVEN delivered on 16 December 1993 *
Mr President, The dispute in the main proceedings Members of the Court,
1. The Finanzgericht (Finance Court) Düs- seldorf has submitted to the Court by way of a reference for a preliminary ruling the 2. Mr Graff is a farmer from Simmerath following question: (Germany) near the Belgian border. O n his holding there he produced milk which he delivered to Milchversorgung Rheinland eG (hereinafter referred to as 'Rheinland'), a milk cooperative. By lease of 1 Novem- ber 1981, he sub-leased from his mother, who held the head lease from her parents, his 'Is a failure to take account, when determin- grandparents' holding of 14 hectares in ing a reference quantity, of the milk produc- Raeren (Belgium). On the basis of that lease, tion from a holding which is taken over and Mr Graff worked the Belgian holding along- worked together with a holding situated in side his German holding. another Member State contrary to the princi- ple of equal treatment and the second sub- paragraph of Article 40(3) of the EC Treaty, if it is only the fact that the holding taken over and worked with the other holding is situated in another Member State which pre- cludes account being taken of it, as would otherwise be done under national law, result- ing in a higher reference quantity?' The lessee who worked the Belgian holding before Mr Graff and his mother had pro- duced in 1981 91 869 litres of milk which he delivered to the Walhorn Eupener Genossen- schaftsmolkerei (hereinafter referred to as 'the Belgian dairy') in Walhorn (Belgium). Before answering that question, I propose to According to a certificate issued by the Bel- give a brief outline of the dispute in the main gian dairy, deliveries from the holding proceedings and of the applicable legislation. in 1982 still amounted to 8 236 litres and in 1983 they ceased altogether, with the result that the Belgian dairy did not allocate * Original language: Dutch. a reference quantity.
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By letter of 25 June 1984 Rheinland Organization of the Market, hereinafter informed Mr Graff that it was allocating to referred to as 'the MOG') in conjunction him a reference quantity of 368 900 kg with Paragraph 48(1) and (2) of the Verwal- for 1984/1985, based on milk deliveries tungsverfahrensgesetz (Law on Administra- of 405 305 kg in 1981 and of 398 796 kg in tive Procedure). 1983.
Mr Graff objected to that decision, produc- Following prior audits of Rheinland, an ing the lease and a certificate from the Bel- investigation began at the end of 1988 which gian dairy and pointing out that Rheinland gave rise to the suspicion that the reference had allocated the correct reference quantity quantities for the producers delivering to to him for 1981, because the production of Rheinland had been miscalculated. In the the previous lessee on the holding in Raeren ensuing criminal proceedings, the Hauptzol- had to be added to his own production. lamt Köln-Rheinau examined all the refer- ence quantities calculated by Rheinland. In so doing it became apparent that in 1981 Mr Graff had delivered only 335 305 kg to Rheinland (instead of 405 305 kg). Further, a letter was found from Mr Graff to Rheinland in which he asserted that in 1984 it was agreed between Rheinland and the Belgian O n 19 June 1991 the Hauptzollamt rejected dairy that, so far as the 1981 milk deliveries Mr Graff's objection as unfounded. In its were concerned, account was to be taken of view, there was no legal basis for adding to the fact that he was also working the holding the 1981 deliveries 70 000 kg on account of in Raeren, and Mr Graff claimed to have deliveries which had taken place in Belgium been assured that that arrangement was law- on another farm. Furthermore, under the ful. Milch-Garantiemengen-Verordnung (Regu- lation on guaranteed quantities for milk, hereinafter referred to as 'the MGVO'), ' the quantity of milk delivered in Belgium could not in any way be taken into consideration because the MGVO could not be applied to holdings not subject to the M O G . Besides, 3. O n the basis of those findings, the Haupt- even though the right to work the holding in zollamt revoked by decision of 12 Septem- Belgium had been assigned to Mr Graff ber 1990 the reference quantity allocated to in 1981, at the time of the entry into force of Mr Graff, with retroactive effect, and reas- the additional levy scheme in 1984 milk sessed it at 349 000 kg as at 2 April 1984, pursuant to the first subparagraph of Para- graph 10(1) of the Gesetz zur Durchführung 1 — The MGVO was adopted on 25 May 1984 (BGBl 1984, I, der Gemeinsamen Marktorganisation (Law p. 720). The latest version of the MGVO, according to the Commission, dates back to 16 July 1992 (BGBl 1992, I, on the Implementation of the Common p. 1324).
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deliveries had ceased so that earlier deliveries The method applied by Regulation from that holding could no longer be taken N o 856/84 to restore the balance in the milk into account. and milk products sector consists in the introduction for a period of five years of an additional levy on quantities of milk deliv- ered beyond a guarantee threshold, initially fixed for the Community as a whole at 97.2 million tonnes. 3 To that end, Regulation N o 856/84 inserted Article 5c in Regulation N o 804/68, 4 which is the basic Community regulation for the milk and milk products Mr Graff brought an action against that deci- sector. According to Article 5c(l), during sion before the Finanzgericht, in which he five consecutive periods of 12 months, begin- sought the annulment of the decision ning on 1 April 1984, an additional levy is to of 12 September 1990, as upheld on 19 June be introduced payable by producers or pur- 1991. chasers of cow's milk who exceed a reference quantity to be determined. That levy is fixed in accordance with formula A or formula B. Under formula A, which alone is relevant in these proceedings (see paragraph 6 below), the additional levy applies only to milk pro- ducers: The applicable legislation
'Formula A
4. The Court is familiar with the relevant Community legislation, namely Council Regulations (EEC) No 856/84 and N o 857/84 of 31 March 1984 which were adopted at the time in order to curtail struc- tural surpluses on the Community market in milk and milk products. 2 Nevertheless it is — A levy shall be payable by every milk worth recalling briefly the relevant features producer on the quantities of milk and/or of the system established by those regula- milk equivalent which he has delivered to tions, as frequently amended. a purchaser and which for the twelve months concerned exceed a reference quantity to be determined.'
2 — Council Regulation (EEC) N o 856/84 of 31 March 1984 amending Regulation (EEC) N o 804/68 on the common organization of the market in milk and milk products (OJ 1984 L 90, p. 10). Council Regulation (EEC) N o 857/84 3 — See the fourth and fifth recitals in the preamble to Regula- of 31 March 1984 adopting general rules for the application tion N o 856/84. of the levy referred to in Article 5c of Regulation (EEC) 4 — Council Regulation (EEC) N o 804/68 of 27 June 1968 on the N o 804/68 in the milk and milk products sector (OJ 1984 common organization of the market in milk and milk prod- L 90, p. 13). ucts (OJ, English Special Edition (1968), I, p. 176).
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In accordance with Article 5c(3), the sum of 'weighted by a percentage established so as those reference quantities may not exceed a not to exceed the guaranteed quantity guaranteed total quantity equal to the sum of defined in Article 5c of Regulation (EEC) the quantities of milk delivered to undertak- N o 804/68. This percentage may be varied ings treating or processing milk or other on the basis of the level of deliveries of cer- milk products in the Member State con- tain categories of persons liable for the levy, cerned during the 1981 calendar year, of the trend in deliveries in certain regions plus 1%. Each Member State is allocated its between 1981 and 1983 or of the trend in own guaranteed total quantity: accordingly, deliveries of certain categories of persons lia- Belgium was initially allocated a guaranteed ble during this same period, under condi- total quantity of 3 106 000 tonnes, while tions to be determined according to proce- Germany was allocated 23 248 000 tonnes. dures provided for in Article 30 of Regulation (EEC) N o 804/68'.
In addition, the Member States may, on the basis of Article 2(3) of that regulation, adapt 5. The general rules for the application of the percentages referred to in paragraphs (1) that scheme are laid down in Regulation and (2) to ensure the application of Articles 3 N o 857/84. According to Article 2(1) of that and 4 of the regulation. These are adapta- regulation, the aforesaid reference quantity, tions made in order to take account of cer- where formula A is chosen, is tain special situations (Article 3) or to com- plete the restructuring of milk production (Article 4). However, Article 5 of the regula- tion expressly lays down that, for the pur- pose of applying Articles 3 and 4, additional reference quantities may be granted only within the limit of the guaranteed quantity referred to in Article 5c of Regulation N o 804/68, which is allocated to the Member 'equal to the quantity of milk or milk equiv- State in question. alent delivered by the producer during the 1981 calendar year (...), plus 1%'.
6. So far as concerns national Uw, the fol- lowing factors are to be noted. Both Belgium and Germany have opted for formula A. Accordingly, the two countries have availed Article 2(2), however, offers the Member themselves of the possibilities set out in Arti- States the possibility of using the 1983 calen- cle 2(2) and (3) of Regulation N o 857/84 dar year for fixing the reference quantity, at and, in particular, have chosen 1983 as the least on condition that it is reference year. In Germany, more particu-
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larly, the situation is as follows. Under The first concerns the question whether, in indent (1) of the second subparagraph of refusing to take into account the milk pro- Paragraph 4(2) of the MGVO, in calculating duction from Mr Graff's Belgian holding, the the reference quantity, a deduction must be German authorities relied on German law or made which increases in proportion to any directly on the Communities' additional levy increase in the producer's milk production scheme. The answer to that question is not from 1981 to 1983. Under indent (2) of Para- very important: as the Council has rightly graph 4(2) of the MGVO, however, if the pointed out, even if the refusal is based on producer has entirely taken over the right to the German provisions adopted in imple- work another holding after 1 January 1981, mentation of the Community rules, the the milk production of that holding is to be national authorities must take into account added to that producer's own production in the principle of equal treatment contained in 1981. As a result, the deduction on account the second subparagraph of Article 40(3) of of the increase in production under indent the EC Treaty and referred to in the question (1) of the second subparagraph of Para- submitted. As the Court considered in its graph 4(2) of the M G V O will normally be judgment in Klensch, that provision applies lower. not only to action by the Community legis- lature but also
The Finanzgericht points out that if the holding taken over by Mr Graff in 1981 had been situated not in Belgium but in Ger- 'covers all measures relating to the common many, the production from that holding organization of agricultural markets, irre- would also have had to be taken into account spective of the authority which lays them on the basis of the second subparagraph of down. Consequently, it is also binding on Paragraph 4(2) of the M G V O . If that had the Member States when they are imple- been done, the reference quantity originally menting the said common organization of allocated to Mr Graff would have been cor- the markets.' 5 rect.
Assessment of the question 8. The next question, to which the Council draws attention in its written observations, is somewhat more awkward. The Council maintains that Regulation N o 857/84 does indeed give the Member States the possibility
7. The answer to the question submitted for a preliminary ruling raises two preliminary 5 — Judgment in Joined Cases 201/85 and 202/85 [1986] issues. ECR 3477, at paragraph 8.
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of choosing between 1981, 1982 and 1983 as percentage to be varied on the basis, inter the reference year for fixing the individual alia, 'of the trend in deliveries in certain quota, but that it does not permit them to regions between 1981 and 1983 or of the take into account two reference years at the trend in deliveries of certain categories of same time. The increase in the reference persons liable during this same period'. The quantity which Mr Graff seeks in respect of procedure for deduction on account of the his 1983 deliveries, on the basis of 1981 increase, laid down in the second subpara- deliveries from his holding in Belgium, is, graph of Paragraph 4(2) of the MGVO, bears according to the Council, incompatible with in my view directly on that point: it applies the Community rule that only a single refer- on the one hand to a situation involving an ence year may be taken into consideration. increase in milk production from 1981 Regulation N o 857/84 provides for only one to 1983 (indent 1), and on the other to a sit- exception to that rule, namely in Article 3(3). uation where the working of another holding That provision permits producers whose has been taken over in its entirety during the milk production during the reference year same period (indent 2). selected has been affected by exceptional events (a serious natural disaster, destruction of the means of production, or an epizootic) to choose another calendar reference year within the 1981 to 1983 period.
10. The question which the Court in sub- stance has to contend with is whether Com- munity law, in particular the principle of 9. Although the Community rules impose a equal treatment and the second subparagraph single reference year, I cannot endorse the of Article 40(3) of the EC Treaty, preclude a Council's approach. The dispute in the main competent national authority from refusing proceedings concerns the application, in to take account of milk production for 1981 accordance with the second subparagraph of from a holding situated in another Member Paragraph 4(2) of the M G V O , of a deduction State, even though it would do so in the case in calculating the reference quantity to be of milk production from a holding situated fixed for 1983, in fulfilment of the condition in that national authority's own Member laid down in Article 2(2) of Regulation State. According to the aforesaid provision N o 857/84. According to that condition, a of Article 40, the common organization of Member State which has chosen 1983 as the agricultural markets must 'be limited to pur- reference year must establish a percentage so suit of the objectives set out in Article 39 as not to exceed the guaranteed quantity and ... exclude any discrimination between referred to in Article 5c (see paragraph 5 producers or consumers within the Commu- above). Article 2(2) expressly permits that nity'.
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I propose to answer that question exclusively O n the other hand, discrimination consists in relation to the second subparagraph of essentially in Article 40(3) of the EC Treaty. It is settled case-law that
'the application of different rules to compa- rable situations or in the application of the same rule to differing situations'. 8 'the prohibition of discrimination laid down in the aforesaid provision is merely a specific enunciation of the general principle of equal- ity which is one of the fundamental princi- ples of Community law'. 6
In my view there is indeed discrimination in this case. Taking over a holding on which milk is produced in another Member State strikes me as being wholly comparable to taking over a holding on which milk is pro- 11. Is there any discrimination in this case, duced in one's own Member State. The mere within the meaning of the aforesaid provi- fact that a holding within the Community is sion? According to the case-law of the Court situated on the other side of a national bor- der does not make the situation any different from the point of view of Community law.
'discrimination within the meaning of Arti- cle 40 of the Treaty cannot occur if inequal- 12. Next, the question arises whether there ity in the treatment of undertakings corre- is any possible justification for the discrimi- sponds to an inequality in the situations of nation found to exist. Once again it is neces- such undertakings'. 7 sary to take as a premiss the established case- law of the Court, according to which the second subparagraph of Article 40(3) of the 6 — Judgment in Joined Cases 117/76 and 16/77 Ruckdeschel EC Treaty [1977] ECR 1753, at paragraph 7. Recendy confirmed, inter alia, by the judgment in Joined Cases 279/84, 280/84, 285/84 and 286/84 Rau [1987] ECR 1069, at paragraph 28; in Case 84/87 Erpelding [1988] ECR 2647, at paragraph 29; in Joined Cases C-267/88 and C-285/88 Wuidart [1990] ECR 1-435, at paragraph 13; in Case C-177/90 Kühn [1992] 8 — Judgment in Case 283/83 Racke [1984] ECR 3791, at para- ECR 1-35, at paragraph 18; and in Case C-311/90 Hierl graph 7; judgment in Erpelding, cited above, at paragraph 29; [1992] ECR 1-2061, at paragraph 18. ludgment in Case C-85/90 Dowling [1992] ECR 1-5303, at paragraph 21. O n that point, in connection with Article 119 7 — Judgment in Case 230/78 Eridania [1979] ECR 2749, at para- of the EEC Treaty, see paragraph 12 of my Opinion in Case graph 18. C-132/92 Roberts [1993] ECR 1-5579, at 1-5588.
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'does not prevent comparable situations year, in order to ensure proper management from being treated differently if such a dif- and control of the system'. ference in treatment is objectively justified'. 9
It is apparent from that recital, as well as from Article 5c(3) of Regulation N o 804/68 I agree with the Council and the Commis- (see also paragraph 4), that the focus of the sion that, in this case, a justification exists. additional levy scheme is essentially the terri- Without wishing to express a view as to tory of the various Member States since it is whether all their arguments are correct, I based for each State on the quantities of milk consider (see below) that an objective justifi- or other milk products delivered on the ter- cation is inherent in the specific nature of the ritory of the Member State concerned in additional levy scheme established by the 1981. This means that, in fixing the guaran- Community legislature. teed total quantity for Belgium, account was taken of Mr Graff's deliveries from his hold- ing in Raeren whereas, in fixing the quantity for Germany, account was taken of deliveries from his holding in Simmerath. If the Ger- man authorities had been required to take into account his deliveries in Belgium, they would have had to grant him a reference 13. As I recalled earlier (paragraph 4), the quantity higher than is possible in propor- Community system of milk quotas takes as tionate terms within the total quantity for its premiss a guaranteed total quantity, calcu- Germany guaranteed by Article 5c(3). That lated specifically for each Member State. total quantity is allocated to each Member According to the fifth recital in the preamble State by reference to 1981 deliveries in that to Regulation N o 856/84, the reason for the State. Hence, the reckoning in a Member national apportionment of the overall Com- State, for the purpose of calculating that munity quantity is that quantity, of deliveries which have already been taken into account in another Member State runs directly counter to the structure of the additional levy scheme based on national quotas.
'this quantity should be distributed among the Member States on the basis of deliveries on their territory during the 1981 calendar
The fact that, as the Finanzgericht points out, account taken in Germany of the quan- 9 — Judgment in Rau, cited above, at paragraph 28; see, in addi- tion, the judgment in Erpelding, cited above, at paragraph 29; tities of milk produced by Mr Graff's Bel- the judgment in Wmdart, cited above, at paragraph 13. In gian holding has not had any noticeable paragraph 7 of its judgment in Rttckdescbel, the Court had already mentioned the possibility of justification on objec- influence on the fixing of reference quantities tive grounds. For the complete reference to those judgments, see footnote 6. allocated to others, cannot persuade me to
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take the oppositive view. It is not because the view of the administrative efforts and the method of calculation adopted has no effect costs which it entails. in a specific case that it may be considered permissible in general.
15. I conclude from the foregoing consider- ations that, under Community law in its 14. In the aforesaid recital in the preamble to present state, discrimination of the kind Regulation N o 856/84, the calculation based involved in the dispute in the main proceed- on national quotas is justified by the need to ings is justified by the structure, cast in the ensure proper management and control of national mould, of the additional levy the additional levy scheme. As the Council scheme — a structure which the Court has rightly points out, that scheme is based on never called in question in earlier judgments close cooperation between the competent — and by the need for the scheme to func- supervisory authorities of the Member States tion properly. The fact that the proper func- and the dairies which, where formula A is tioning of the scheme is a mandatory applied, are to collect the additional levy requirement which may justify on objective from the producers (Article 9(2) of Regula- grounds the differences of treatment which tion N o 857/84). It is evident, in my view, arise therefrom has already been acknowl- that if the dairies must also pay attention to edged by the Court on several occasions. n deliveries made in a Member State other than It would of course be commendable, from their own, the management of the scheme the point of view of market integration, if and the prevention of fraud are rendered sig- the Community legislature had worked out nificantly more difficult, especially in Mem- satisfactory arrangements for a situation of ber States which have a long border with the kind which has arisen in the main pro- other Member States. In that connection, I ceedings. The fact that it did not do so am not swayed by the Finanzgericht's obser- within the framework of Regulations vation that the German authorities can N o 856/84 and N o 857/84 is unfortunate but always call on the assistance of the Belgian it does not constitute a reason for opting in authorities under Regulation (EEC) favour of the interpretation suggested by N o 1468/81. , 0 Such assistance cannot afford Mr Graff.12 any guarantee of effective supervision, in
11 — Judgment in Erpelding, cited in footnote 6, at paragraph 30; 10 — Council Reguládon (EEC) N o 1468/81 of 19 May 1981 on judgment in Case 113/88 Leukbardt [1989] ECR 1991, at mutual assistance between the administrative authorities of paragraph 19; judgment in Kühn, also cited in footnote 6, at the Member States and cooperation between the latter and paragraph 18; judgment in Dowling, cited in footnote 8, at the Commission to ensure the correct application of the law paragraph 23. on customs or agricultural matters (OJ 1981 L 144, p. 1); 12 — See the judgment in Erpelding, cited above, at paragraph 28. amended by Council Regulation (EEC) N o 945/87 See also paragraph 11 of my Opinion of 19 May 1993 in of 30 March 1987 (OJ 1987 L 90, p. 3). Case C-120/92 Schulz [1993] ECR 1-6885, at 1-6894.
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Conclusion
16. I suggest that the Court answer the question submitted by the Finanzgericht as follows:
Having regard to the specific structure of the Community's additional levy scheme, as set out in Regulation (EEC) N o 856/84 and Regulation (EEC) N o 857/84, it is not contrary to the second subparagraph of Article 40(3) of the EC Treaty not to take account of the milk production from a holding situated in another Member State and worked by the same milk producer, in determining the reference quantity to be allocated to that producer in a Member State.
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