C-125/96
ECLI:EU:C:1997:385
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SIMON v HZA FRANKFURT AM MAIN
OPINION OF ADVOCATE GENERAL ELMER delivered on 17 July 1997 *
1. In the present case the Hessisches Finan above levy, calculated on the basis of the zgericht (Finance Court, Hesse) has asked rules on the common organisation of the the Court to interpret the term 'any levy market in milk referred to below. The amount due' in the Community rules on the authorities considered that the relevant additional milk levy ('the levy') and to deter period began to run on 1 July 1989 and mine when that levy amount becomes pay applied the interest rate in force in Germany, able. corresponding to 3 % over the current dis count rate of the German Federal Bank.
Facts Applicable Community rules
2. Hartmut Simon is a milk producer. Offi cial inquiries revealed that over the 4. The common organisation of the market 12-month period 1988/89 he delivered to his in milk and milk products is regulated by purchaser 14 619 kg more milk than was Regulation (EEC) No 804/68 of the Council 1 allowed free of levy. However, this excess of 27 June 1968 ('the basic regulation'). delivery was not indicated in the purchaser's Article 5c of that regulation provides as fol original declarations. By decision of 12 lows: November 1993 the competent customs authorities imposed a levy of DM 9 709.94, which Mr Simon paid on 20 December 1993.
'1 . During five consecutive periods of 12 months beginning on 1 April 1984, an addi tional levy payable by producers or purchas ers of cows' milk shall be introduced. ... 3. By decision of 21 June 1994 the compe tent administrative authorities sought inter est of DM 4 274.63 for late payment of the 1 — OJ, English Special Edition 1968 (I), p. 176, as amended by Council Regulation (EEC) No 856/84 of 31 March 1984 amending Regulation (EEC) No 805/68 on the common organisation of the market in milk and milk products (OJ * Original language: Danish. 1984 L 90, p. 10).
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The levy system shall be implemented in products introduced by Article 5c of the each region of the territory of the Member basic regulation. The following provisions of States in accordance with one of the follow that regulation are relevant in the present ing formulas: case:
Formula A
'Article 4a
— A levy shall be payable by every milk producer on the quantities of milk and/or milk equivalent which he has delivered to a purchaser and which for the 12 months concerned exceed a reference quantity to be determined.
Formula B 3 (a) The levy shall be charged on all quanti ties in excess of the individual reference quantities, after any corrections have been made. ...'
In the Federal Republic of Germany the levy scheme was implemented by way of Formula A.
Article 9 5. Council Regulation (EEC) No 857/84 of 2 31 March 1984 ('the application regulation') contains general provisions on the applica tion of the additional levy on milk and milk
(1) Where [Formula] A ... [is] applied, the 2 — Council Regulation (EEC) No 857/84 of 31 March 1984 levy shall be collected by means of annual adopting general rules for the application of the levy referred to in Article 5c of Regulation (EEC) No 804/68 in the milk payments. To this end there shall be adopted, and milk products sector (OJ 1984 L 90, p. 13), as amended for each person liable, an account after the by Council Regulations (EEC) No 590/85 of 26 February 1985 (OJ 1985 L 68, p. 1), (EEC) No 1305/85 of 23 May end of the 12-month period concerned, on 1985 (OJ 1985 L 137, p. 12) and (EEC) No 774/87 of 16 March 1987 amending Regulation (EEC) No 857/84 adopt- the basis of actual excess during this same ing general rules for the application of the levy referred to in period beyond his annual reference quantity Article 5c of Regulation (EEC) No 804/68 in the milk and milk products sector (OJ 1987 L 78, p. 3).
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(2) Where Formula A is applied, the levy of milk or milk equivalent delivered dur shall be collected from each producer by the ing the first half of the year; the state purchaser. ... ment shall also indicate the quantities delivered by each producer during the first half of the year, expressed as a per centage of the latter's annual reference Article 10 quantity,
(3) The levy shall be charged on all quanti ties in excess of the individual reference quantities, after any corrections have been 2. Purchasers shall, within 45 days following made.' the end of each 12-month period, transmit to the competent agency a statement indicating:
6. The detailed rules for the application of the additional levy referred to in Article 5c — in cases where Formula A is applied, and of the basic regulation are laid down in separately for each producer concerned: Commission Regulation (EEC) No 1546/88 3 of 3 June 1988 ('the implementing regu lation'). Article 15 of the implementing regu lation provides, inter alia, as follows:
— the total quantity of milk or milk equivalent delivered during the 12-month period concerned, '1 . Purchasers shall, within 45 days follow ing the end of the first half of the year, trans mit to the competent agency a statement indicating: — the quantities, if any, of milk or milk equivalent which exceed the buyer's annual reference quantity of the — in cases where Formula A is applied, for producer concerned, each producer concerned, the quantities
3 — Commission Regulation (EEC) No 1546/88 of 3 June 1988 laying down detailed rules for the application of the addi tional levy referred to in Article 5c of Regulation (EEC) No 804/68 (OJ 1988 L 139, p. 12).
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4. The purchasers referred to in paragraphs implementing regulation must be interpreted 1, 2 and 3 shall pay any levy amount due to as meaning that the actual levy amount due the competent agency within three months is payable on the date specified therein. following the end of each 12-month period.
...' 9. By order of 26 March 1996 the Hessisches Finanzgericht stayed the proceedings and referred the following questions to the Court of Justice for a preliminary ruling:
National proceedings and questions referred to the Court
'1 . In Article 15(4) of [the implementing regulation] is "levy amount due" to be inter 7. Mr Simon considers that the calculation preted as the amount of additional levy on of the interest is illegal. In the proceedings milk that would be payable if the figures which he brought before the Hessisches used to determine the levies payable on Finanzgericht he maintained that only the deliveries in excess of the delivery reference levy amount resulting from the purchaser's quantity had been compiled correctly and calculation is payable on 30 June of the year had formed the basis of the purchaser's cal following the end of the completed milk culation of the additional levy marketing year. The amount of the levy which emerged as a result of the inquiries became payable only on the date on which it was established by the authorities. In that regard he referred to the general principle of German law that a levy becomes payable when the authorities concerned have deter mined the levy and notified the person con or cerned.
8. The administrative authorities, on the does that phrase refer only to the amount other hand, take the view that the date derived from the figures, whether correct or on which the levy becomes payable falls to not, declared by the purchaser and forming be determined by an interpretation of the basis of the calculation of the additional Community law and that Article 15(4) of the levy?
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2. If the first interpretation is correct, is the 11. Mr Simon maintains that the expression entire amount of additional levy lawfully due 'any levy amount due' in Article 15(4) of the payable on the date specified in the Regu implementing regulation refers to the levy lation — at that time 30 June — so that, in amount established on the basis of the pur the event of part payment resulting from the chaser's declarations. The dispute, he argues, purchaser's figures being too low, the person therefore raises no question of Community liable to pay the additional levy (in Germany law which the Court of Justice would have the milk producer) must pay from 1 July of jurisdiction to interpret and the reference that year interest charged under national law should therefore be declared inadmissible. on the balance?'
12. The Commission, on the other hand, takes the view that the expression means that Analysis the levy amount is to be regarded as the amount which, following the end of the 12-month period in question, is objectively payable on the basis of the quantities actu ally delivered during that period. That amount objectively due is payable on the date specified in Article 15(4) of the imple menting regulation, which for the purposes of the main proceedings here is 30 June.
10. By its questions the national court seeks to ascertain whether Article 15(4) of the implementing regulation is to be construed as meaning that the expression 'any levy amount due', in the context of Formula A, 13. It seems to follow from the questions refers to the amount which the milk pro submitted that the national court assumes ducer objectively owes on the basis of the that the resolution of the issues calls for an quantity actually delivered or the amount interpretation of Community law. I agree. In established on the basis of the quantity order to ensure that milk producers in all declared by the purchaser. If the expression Member States are in the same position, the refers to the amount objectively due, the questions as to what amount is due and national court asks whether that amount when it is payable must be answered in becomes payable on the date specified in accordance with Community legislation and Article 15(4) of the implementing regulation, not in accordance with national law. There since the answer to that question determines can be no doubt, therefore, that the Court when interest can be charged under national has jurisdiction to answer the questions law. referred to it.
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14. Article 5c(1) of the basic regulation pro given reference quantity. Article 15(4) of the vides that under Formula A '[a] levy shall be implementing regulation provides that the payable by every milk producer on the purchaser, after collecting the levy from the quantities of milk and/or milk equivalent producer in accordance with Article 9(2) of which he has delivered to a purchaser and the application regulation, is to pay the which for the 12 months concerned exceed a amount due to the competent agency by a reference quantity to be determined'. The specified date. basis on which the levy is to be calculated is found in Article 4a(3a) and Article 10(3) of the application regulation, which provide as follows: 'The levy shall be charged on all quantities in excess of the individual refer- ence quantities, after any corrections have been made'. According to Article 9(1) of that regulation, 'Where [Formula] A ... [is] applied, the levy shall be collected by means 16. The regulation therefore appears to have of annual payments. To this end there shall been drafted on the assumption that there is be adopted, for each person liable, an no discrepancy between the quantities account after the end of the 12-month period declared by the purchaser and those actually concerned, on the basis of actual excess dur delivered. The regulation is 'cut out' for the ing this same period beyond his annual refer normal situation, in which the purchaser ence quantity'. Article 15(1) of the imple declares the amounts actually delivered, the menting regulation further specifies that for levy amount due is established on that basis each milk producer 'the quantities of milk or and the amount due then becomes payable. milk equivalent delivered' during the first In the normal situation there can thus be no half of the year are to be indicated, while doubt that the expression 'any levy amount Article 15(2) states that for each 12-month due' refers to the amount which is objec period 'the total quantity of milk or milk tively due on the basis of the amounts deliv 4 equivalent delivered' is to be indicated. ered.
17. In my opinion, the fact that it subse quently transpires that the amount actually delivered differed from the amount originally 15. In my opinion, it is clear from the word indicated by the purchaser cannot alter the ing of those provisions that the amount of interpretation of the expression 'any levy the levy must be calculated on the basis of amount due'. The amount actually delivered the quantities of milk actually delivered in itself still forms the basis on which the during a 12-month period in excess of the levy, and therefore the amount due, are to be calculated. There is nothing in the relevant provisions to indicate that the fact that the 4 — Emphasis added. purchaser provides incorrect declarations to
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the competent authorities can have any bear Where that amount is not paid in time inter ing on the amount due, which is payable on est can be charged. the specified date.
20. In any event, it is only if the amount objectively due is taken to be the amount payable at the time specified in Article 15(4) that all milk producers can be guaranteed 18. It might be argued that it is not the milk equal treatment. A milk producer whose producer's fault that the competent authori purchaser imposes too low a levy, or even no ties have been provided with incorrect decla levy at all, would otherwise be at an advan rations of quantities delivered, but that the tage in the period up to the time when the fault lies with the purchaser. However, the balance between the amount established ear milk producer not only was able, but also lier and the amount objectively due is subse had good reason, to check how much milk quently charged (more than four years in the he had delivered to the purchaser and case before the national court) compared thereby establish the extent to which the with other milk producers whose purchasers specified reference quantity was exceeded. indicated from the outset the correct quanti The milk producer naturally has reason not ties delivered and therefore the correct levy only to check that he is paid for the milk amounts to the competent authorities. delivered but also to make sure that he does not find himself in the opposite situation to that in the main proceedings, namely that in which the quantity of milk delivered which the purchaser declares is too high, so that the levy which the producer is required to pay is too high. 21. The Court has already given a ruling on a similar question. The case in point con cerned a levy which a milk producer was required to pay when his reference quantity was reduced with retrospective effect. Owing to a miscalculation, for which the purchasing association was to blame, the reference quan 5 tity was set too high. The Court held that:
19. Article 15(4) of the implementing regu lation provides that the amount due is to be paid to the competent agency within three months following the end of each 12-month ' period. At the material time in this case each ... the producer remains liable for payment 12-month period ended on 31 March, so that of the balance owed in the event of the the amount due was to be paid no later than 30 June. Article 15(4) therefore determines when the amount objectively due must be 5 — Case C-352/92 Milchwerke Köln/Wuppertal v HauptzoUamt paid, that is, when it becomes payable. Köln-Rheinau [1994] ECR I-3385, paragraphs 18, 19 and 20.
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amount paid by way of the additional levy 22. In my opinion, the answer to the ques being lower than that which was actually tions referred to the Court should, in the cir payable. cumstances, be that Article 15(4) of the implementing regulation must be construed as meaning that the expression 'any levy According to ... it should be possible to amount due' refers, within the context of derogate from that system in the event of Formula A, to the levy amount objectively irregularities on the part of a purchaser in payable by the milk producer at the end of calculating the reference quantities initially each 12-month period on the basis of the allocated. quantities actually delivered during that period which exceed his individual reference quantity, and that this levy amount is pay That solution cannot be accepted.' able on the date specified in that provision.
Conclusion
23 . I therefore propose that the Court should answer the questions referred to it as follows:
Article 15(4) of Commission Regulation ( EEC ) No 1546/88 of 3 June 1988 laying down detailed rules for the application of the additional levy referred to in Article 5c of Regulation ( EEC ) No 804/68 must be construed as meaning that the expression 'any levy amount due' refers, within the context of Formula A , to the levy amount objectively payable by the milk producer at the end of each 12-month period on the basis of the quantities actually delivered during that period which exceed his individual reference quantity . That levy amount is payable on the date specified in that provision .
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