C-352/92

JUDGMENT OF 14. 7. 1994 — CASE C-352/92

J U D G M E N T O F T H E C O U R T (Third Chamber) 14 July 1994 *

In Case C-352/92,

R E F E R E N C E to the Court under Article 177 of the E E C Treaty by the Finan- zgericht Düsseldorf (Germany) for a preliminary ruling in the proceedings pend- ing before that court between

Milchwerke Köln/Wuppertal eG

and

MILCHWERKE KÖLN/WUPPERTAL v HAUPTZOLLAMT KÖLN-RHEINAU

Advocate General: W. Van Gerven,

Registrar: H . A. Rühi, Principal Administrator,

after considering the written observations submitted on behalf of:

— Michwerke Köln/Wuppertal eG, by Lüder Meyer-Arndt, of the Cologne Bar, — the Commission of the European Communities, by Dierk Booß, Legal Adviser, acting as Agent, assisted by Hans-Jürgen Rabe, of Schön, Nolte, Finkeinburg and Clemm, Hamburg and Brussels,

having regard to the Report for the Hearing,

JUDGMENT OF 14. 7. 1994 — CASE C-352/92

Article 12(4) of the same regulation, as amended by Commission Regulation N o 3005/85 of 29 October 1985 (OJ 1985 L 288, p. 10), and Article 15(4) of Com- mission Regulation N o 1546/88 of 3 June 1988 laying down detailed rules for the application of the additional levy referred to in Article 5c of Regulation N o 804/68 (OJ 1988 L 139, p. 12).

2 Those questions were raised in proceedings between Milchwerke Köln/Wuppertal eG and the Hauptzollamt Köln-Rheinau concerning an additional levy which the former is allegedly liable to pay on account of a retroactive reduction of reference quantities resulting from a miscalculation of those quantities for which it was held responsible.

3 The plaintiff in the main proceedings is the universal successor of Milchversorgung Rheinland eG, which merged with it. The latter purchased milk from affiliated producers, who were also its members. Before the merger, some of its senior offic- ers intentionally caused the reference quantity allocated to several members to be miscalculated, with the result that the quantities allocated were too high. Milchver- sorgung Rheinland paid over to the competent body the additional levy arising as a result of deliveries in excess of those inaccurate reference quantities.

4 As a result of audits carried out in 1989, in 309 cases the Hauptzollamt retroac- tively revoked the reference quantity which had been miscalculated, replacing it with a lower reference quantity. By notices of assessment dated 12 and 14 June 1991, it claimed from the plaintiff in the main proceedings, in its capacity as the person liable, a sum totalling D M 5 975 480.49 by way of unpaid additional levies.

3. In the event that Questions 1 and 2 are answered in the affirmative, are Arti- cle 12(4) of Regulation (EEC) N o 1371/84 and Article 15(4) of Regulation (EEC) N o 1546/88 valid in so far as where formula A is applied they provide inter alia that the purchaser is liable to pay the levy?'

7 In its order for reference, the national court considers that the interpretation of the aforesaid provisions does not support the Hauptzollamt's argument to the effect that, even under formula A (the producer formula) the additional levy is payable

I - 3403

JUDGMENT OF 14. 7. 1994 — CASE C-352/92

by the plaintiff in the main proceedings, in its capacity as the purchaser. According to the national court, that solution has no legal basis.

s The first point to note is that in order to curb the increase in milk production on the Community market, while permitting the structural developments and adjust- ments required, Article 5c of Council Regulation (EEC) N o 804/68 of 27 June 1968 on the common organization of the market in milk and milk prod- ucts (OJ, English Special Edition (1968) I, p. 176), as supplemented by Council Regulation (EEC) N o 856/84 of 31 March 1984 (OJ 1984 L 90, p. 10), introduced for a period of five years an additional levy payable by producers or purchasers of cows' milk.

MILCHWERKE KÖLN/WUPPERTAL v HAUPTZOLLAMT KÖLN-RHEINAU

10 Under formula A, the levy is to be collected from each producer by the purchaser, pursuant to Article 9(2) of Council Regulation (EEC) N o 857/84 of 31 March 1984 adopting general rules for the application of the levy referred to in Article 5c of Regulation (EEC) N o 804/68 in the milk and milk products sector (OJ 1984 L 90, p. 13).

The first two questions

n By these two questions, which should be considered together, the national court asks whether Article 12(4) of the original version of Regulation N o 1371/84, Arti- cle 12(2), now Article 12(4), of the same regulation, as amended by Regulation N o 3005/85, and Article 15(4) of Regulation N o 1546/88 are to be interpreted as meaning that, under formula A, only the producers and not the purchaser are lia- ble for payment of the balance payable by way of the additional levy on milk, even where the balance is due as a result of the retroactive reduction in the producers' reference quantities and the initial miscalculation of those quantities was attribut- able to the misconduct of the purchaser or his agents.

1 2 It is apparent from the order for reference that, in the Hauptzollamt's view, under formula A only milk producers are in principle liable to pay the additional levy. However, it infers from Article 12 of Regulation N o 1371/84 and Article 15(4) of Regulation N o 1546/88 that, in circumstances such as those of the present case, in which the purchasers are responsible for the amount of the additional levy col- lected being too low, they are required to pay the balance due themselves.

i7 It is clear from the mechanism introduced that, although the purchaser is obliged to pay over the amounts collected, he is not liable to pay the additional levy him- self.

is The regulations adopted by the Commission for the application of the levy system have not made any changes as regards the trader liable to pay the additional levy. Under Article 12(4) of the original version of Regulation N o 1371/84, to which the Hauptzollamt refers, the producer remains liable for payment of the balance owed in the event of the amount paid by way of the additional levy being lower than that which was actually payable.

I - 3406

MILCHWERKE KÖLN/WUPPERTAL v HAUPTZOLLAMT KÖLN-RHEINAU

i9 According to the Hauptzollamt, it should be possible to derogate from that system in the event of irregularities on the part of a purchaser in calculating the reference quantities initially allocated.

20 That solution cannot be accepted.

24 In the light of the foregoing considerations, the answer to the first two questions must be that Article 12(4) of Regulation N o 1371/84 in its original version, Arti- cle 12(2), now Article 12(4), of the same regulation, as amended by Regulation N o 3005/85, and Article 15(4) of Regulation N o 1546/88 must be interpreted as meaning that, under formula A, only the producers and not the purchaser are lia- ble for payment of the balance payable by way of the additional levy on milk, even where the balance is due as a result of the retroactive reduction of the producers' reference quantities and the initial miscalculation of those quantities was attribut- able to the misconduct of the purchaser or his agents.

Third question

25 In view of the answer to the first two questions, the third question is devoid of purpose.

Costs

26 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

I - 3408

Delivered in open court in Luxembourg on 14 July 1994.

R. Grass J. C. Moitinho de Almeida

Registrar President of the Third Chamber

I - 3409