C-352/92

1. This case concerns a reference from the Finanzgericht Düsseldorf for a preliminary on the interpretation and validity of Arti- cle 12(2) of Commission Regulation (EEC) N o 1371/84 of 16 May 1984 » — in its orig- 'During five consecutive periods of inal version and as subsequently amended 12 months beginning on 1 April 1984, an and renumbered as Article 12(4) by Regula- additional levy payable by producers or pur- tion (EEC) N o 3005/85 of 29 October 1985 2 chasers 6 of cows' milk shall be introduced.' — and on the interpretation and validity of Article 15(4) of Commission Regulation (EEC) N o 1546/88 of 3 June 1988. 3 The questions submitted arose in a dispute between Milchwerke Köln/Wuppertal eG, the plaintiff, and the Hauptzollamt Köln- Rheinau, the defendant. 3. The facts of the case should be viewed against that background. The plaintiff is the universal successor of Milchversorgung * Original language: Dutch. Rhineland eG (hereinafter 'Rhineland'), 1 — Regulation laying down detailed rules for the application of the additional levy referred to in Article 5c of Regulation (EEC) N o 804/68 (OJ 1984 L 132, p. 11). 2 — Regulation amending for the tenth time Regulation (EEC) N o 1371/84 laying down detailed rules for the application of 4 — Regulation amending Regulation (EEC) N o 804/68 on the the additional levy referred to in Article 5c of Regulation common organization of the market in milk and milk prod- (EEC) N o 804/68 in the milk and milk products sector ucts (OJ 1984 L 90, p. 10). (OJ 1985 L 288, p. 10). 5 — OJ, English Special Edition (1968) I, p. 176. 3 — Regulation laying down detailed rules for the application of 6 — The terms 'producer' and 'purchaser' are defined in Arti- the additional levy referred to in Article 5c of Regulation cle 12(c) and (e) of Council Regulation (EEC) N o 857/84 (EEC) N o 804/68 (OJ 1988 L 139, p. 12) of 31 March 1984, cited in footnote 8 below.

4. The Hauptzollamt claimed from the plaintiff, by notices of assessment dated 12 and 14 June 1991, a total of DM 5 975 480.49 5. Article 5c of Regulation N o 804/68 intro- duces not only an additional levy on cows' 7 — A number of producers who did not succeed in obtaining a milk (paragraph 2 above) but also lays down retroactive increase in their reference quantities on account of special circumstances have brought an action before the that each of the Member States is to collect Finanzgericht against the Hauptzollamt's decision. However, it is not those cases — a number of which have, according to the levy within its territory in accordance the order for reference, already been dismissed by the Finan- with one of two formulas set out in that arti- zgericht — which led to the submission of the questions now before the Court. cle. Germany has opted for formula A,

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MILCHWERKE KÖLN/WUPPERTAL v HAUPTZOLLAMT KÖLN-RHEINAU

according to which the additional levy is Regulation N o 857/84 originally provided as payable only by milk producers: follows:

'Where formulas A and B are applied, the 'Formula A levy shall be collected:

— A levy shall be payable by every milk (a) by means of quarterly payments on producer on the quantities of milk and/or account calculated on the basis of quan- milk equivalent which he has delivered to tities of milk or milk equivalent which, a purchaser and which for the 12 months for each person liable, exceed, for the rel- concerned exceed a reference quantity to evant quarter, the cumulative reference be determined.' quantity calculated at the end of the cor- responding quarter of the reference cal- endar year chosen by the Member State;

7. In Article 11 of Regulation N o 857/84 the Council entrusted the Commission with the 'Where formulas A and B are applied, the task of adopting further implementing rules levy shall be collected by means of annual concerning the additional levy. The questions payments. To this end there shall be adopted, submitted concern three regulations adopted for each person liable, an account after the by the Commission on the basis of that end of the 12-month period concerned, on provision. As stated earlier, those measures the basis of actual excess during this same are Regulations Nos 1371/84, 3005/85 period beyond his annual reference quantity. and 1546/88. Provisional half-yearly statements shall be established according to a procedure to be determined.'

In its original version, Article 12(2) of Regu- lation N o 1371/84 provided, inter alia:

The first subparagraph of Article 9(2) of Regulation N o 857/84, which has not been amended, 1 0 reads as follows: 'Purchasers as referred to in paragraph 1 shall, within 45 days of the end of each quar- ter, pay the competent authority the amount of any levy due. (...)'

'Where formula A is applied, the levy shall be collected from each producer by the pur- chaser.' When there was a changeover from quarterly to annual levies as a result of the adoption of Regulation N o 1305/85 (paragraph 6 above), 10 — Admittedly, Article 1(7) of Regulation No 1305/85 added a Article 12(2) had to be adapted accordingly. second subparagraph to Article 9(2), which is not relevant That was done by Article 1(7) of Commis- for the purposes of the answer to the questions in these proceedings. sion Regulation (EEC) N o 3005/85 of

12 — BGBl. 1984, I, p. 720. 13 — According to the Commission, the most recent amendment 11 — Already cited in footnote 3. was made on 24 April 1991 (BGBl., 1991, I, p. 1034).

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OPINION OF MR VAN GERVEN — CASE C-352/92

Those questions read as follows: Is the purchaser also liable to pay the levy?

' 1 . Where formula A as provided for in Arti- cle 5c(l) of Regulation (EEC) N o 804/68 is 10. The parties' submissions in this case are applied, is the purchaser liable, under the summarized as below. According to the original version of Article 12(4) of Regula- plaintiff, the Commission and the Finanzger- tion (EEC) N o 1371/84, to pay the addi- icht, the sums in question can be claimed tional levy which has arisen as a result of ret- only from the milk producers and not from a roactive reductions in the delivery reference purchaser. Formula A requires a purchaser quantities, where his employees were such as the plaintiff only to pay over to the responsible for setting the delivery reference Hauptzollamt the additional levy actually quantities and were therefore responsible for received from the producers, and that is the additional levy's not having been paid in clearly what was done. However, there is no full? legal basis whatsoever for requiring the plaintiff to pay an additional levy of that kind, even if the plaintiff is responsible for the fact that the amount of the additional levy collected was too low.

So far as concerns the definition of persons liable for payment, the relevant provisions of Community law are just as clear. Article 9(2) of implementing Regulation N o 857/84 expressly provides that under formula A the levy is to be collected from each producer by the purchaser, while Article 12(2) — later Article 12(4) — of Regulation N o 1371/84 11. I do not share the Hauptzollamt's point and Article 15(4) of Regulation N o 1546/88 of view. In my view, no legal basis can be require the purchaser to pay the amounts found in the aforesaid provisions of the rel- collected to the competent agencies. It can be evant Commission regulations to support the inferred from the last-mentioned provisions conclusion that under formula A a milk pur- that under formula A, again in contrast to chaser may also be liable to pay the addi- the arrangements under formula B, 15 milk tional levy. purchasers are not themselves liable to pay the levy but exclusively liable for payment.

For those purposes, it is appropriate to dis- 12. Let us now turn to those provisions of tinguish under the system of additional levies the implementing regulations adopted by the established by the aforesaid Community reg- Commission from which the Hauptzollamt ulations between persons liable to pay the infers that, under formula A as well, milk levy and persons liable for payment. So far as purchasers may in certain circumstances be concerns the definition of persons liable to liable to pay the levy. In addition to Arti- pay the levy, Article 5c of Regulation N o 804/68, as set out above, is crystal clear. That article introduces an additional levy 'payable by producers or purchasers of cows' 15 — Compare with Article 10 of Regulation No 857/84, which concerns formula B and refers exclusively to 'a purchaser milk' (emphasis added). Where formula A is liable for the levy'.

'If the final account referred to in Arti- cle 9(1 )(b) of Regulation (EEC) N o 857/84 shows a difference between the sum of the quarterly payments on account and the levy 14. If the aforesaid articles, which constitute amount actually due, the competent author- implementing provisions adopted by the ity shall refund, or the liable person shall Commission, were interpreted in the manner pay, this difference before 1 July following suggested by the Hauptzollamt, they would the end of the 12-month period con- then be contrary to the express wording of cerned.' 16 Article 5c of the basic regulation, N o 804/68. According to that article (cited in paragraph 2), the additional levy is 'payable' under for- mula A by producers of cows' milk. It is set- tled case-law that, when an implementing regulation is capable of being interpreted, it must be interpreted in conformity with the basic regulation on which it is founded. 17 13. The Hauptzollamt has not put forward a See also the recent judgment of 24 June 1993 single argument to substantiate the view that in the Tretter case: those provisions make purchasers not only liable for payment but also in certain circum- stances — for instance as a result of a fraud- ulent transaction for which they can be held responsible — liable to pay the levy. N o r can I think of a single argument in support of that view. O n the contrary, the passages quoted merely provide confirmation of the 'According to the case-law of the Court, task imposed on purchasers by Article 9(2) where a measure of secondary Community of Council Regulation N o 857/84 (para- law has to be interpreted, it must be inter- graph 6 above) of collecting the levy and preted in so far as possible in accordance paying it over.

15. In reply to the first two questions, I therefore conclude that Article 12 of Commission Regulation N o 1371/84 of 'If only the amount which the plaintiff with- 16 May 1984 — both in paragraph (2) of the held from the milk money were owed and original version and in paragraph (4) of the had to be paid over, the plaintiff could, in the amended version — and Article 15(4) of final analysis, determine the levies to be paid Commission Regulation N o 1546/88 of over at its discretion, even where, as in this 3 June 1988 must be interpreted as meaning case, it had been involved in falsifying the that, where formula A provided for in Arti- figures. (...) The plaintiff itself is responsible cle 5c(l) of Regulation N o 804/68 is applied, for this situation and is not entitled to expect a milk purchaser may not be regarded as lia- that the consequences of its action should be ble to pay the levy, even where, as a result of borne entirely by the milk producers con- a retroactive reduction in the reference quan- cerned or by the community at large.' 1 9 tities on account of the misconduct of the purchaser, his officers or authorized repre- sentatives, a further amount is still payable by way of the additional levy on milk.

The obligation imposed on Member States by Community law to combat fraud In the case-law of the Court, the need to combat fraud effectively is thus considered fundamental, especially in the agricultural sector where enormous sums in Community funds are lost as a result of fraud. In its judg- 16. It may be inferred from that conclusion ment in Case 68/88 Commission v Greece, that under Community law as it now stands the Court accordingly considered in connec-

17. It may be apparent from that case-law that Community law imposes an unequivo- It should be observed that where Commu- cal obligation on Member States to provide nity legislation does not specifically provide appropriate machinery for imposing penal- any penalty for an infringement or refers for ties and taking legal action in respect of that purpose to national laws, regulations fraudulent dealings that result in the impov- and administrative provisions, Article 5 of erishment of the Community through the the Treaty requires the Member States to loss of revenue intended for it. Penalties take all measures necessary to guarantee the must be imposed on the same conditions as application and effectiveness of Community those which apply to comparable and law. equally serious infringements of national law, and legal action in respect of infringements of Community law must be pursued as ener- getically as it is in respect of corresponding infringements of national law. 21

18. Moreover, the aforesaid obligation to take all appropriate measures arises not only — prevent and deal with irregularities; from Article 5 of the EEC Treaty but also, and more specifically, from Article 8 of Council Regulation (EEC) N o 729/70 of 21 April 1970, 21 which is the basic regula- tion for the financing of the common agri- cultural policy. The additional levy on milk — recover sums lost as a result of irregular- for the purposes of Article 5c of Regulation ities or negligence. N o 804/68 constitutes 'intervention intended to stabilize the agricultural markets' within the meaning of Article 3(1) of Regulation N o 729/70. Article 8 of Regulation N o 729/70 imposes on the Member States the following obligations which are designed to combat fraud effectively: The Member States shall inform the Com- mission of the measures taken for those pur- poses and in particular of the state of the administrative and judicial procedures. ' 1 . The Member States in accordance with national provisions laid down by law, regula-

22 — Regulation on the financing of the common agricultural poGcy (OJ, English Special Edition 1970 (I), p. 218). The measures which constitute intervention within the meaning of Article 3(1) were initially summarized in the annex to Council Regulation (EEC) N o 1883/78 of 2 August 1978 laying down generai rules for the financing of interventions by the European Agricultural Guidance and Guarantee 2. In the absence of total recovery, the finan- Fund, Guarantee Section (OJ 1978 L 216, p. 1). Council cial consequences of irregularities or negli- Regulation (EEC) N o 1716/84 of 18 June 1984 amending Regulation (EEC) N o 1883/78 (OJ 1984 L 163, p. 1) gence shall be borne by the Community, replaced that annex. Since then, the additional levy has been referred to under point 1 in 'X. Milk and milk products. C. with the exception of the consequences ofir- Other measures'. regularities or negligence attributable to

'In the event that Questions 1 and 2 are answered in the affirmative, are Article 12(4) of Regulation (EEC) N o 1371/84 and Arti- cle 15(4) of Regulation (EEC) N o 1546/88 In that connection it must be pointed out valid in so far as where formula A is applied that it is for the competent national adminis- they provide inter alia that the purchaser is trative and judicial authorities, in fulfilment liable to pay the levy?' of their obligations under Community law (paragraph 17 and 18 above), to apply the legal remedies and rules available under national law in the broadest possible manner. Within that framework, they must make every possible effort to permit recovery from the plaintiff, its officers or authorized signa- tories of sums which, for any reason what- According to the national court itself, the ever, cannot be recovered from individual third question is relevant only in so far as the producers, for instance on the ground that first two questions are answered in the affir- those producers have become insolvent or mative. In my view, that is not possible, as can rely on the principle of the protection of may be apparent from the foregoing consid-

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MILCHWERKE KÖLN/WUPPERTAL v HAUPTZOLLAMT KÖLN-RHEINAU

erations. If the Court should take a different cerned are invalid in so far as, where formula view, I would refer it to my position as set A is applied, they make the purchaser liable out in paragraph 14. There, I have already to pay the levy as a penalty. stated that the provisions referred to in Question 3, if they were to be interpreted in the manner suggested by the Hauptzollamt, would come into conflict with Article 5c of I therefore propose, together with the plain- the basic Regulation, No 804/68. That would tiff, the Commission and the Finanzgericht, mean, on the basis of the case-law referred to that Question 3 should, if appropriate, be in that paragraph, 2i that the provisions con- answered in the negative.