C-288/97
ECLI:EU:C:1998:574
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CONSORZIO FRA I CASEIFICI DELL'ALTOPIANO DI ASIAGO
OPINION OF ADVOCATE GENERAL LA PERGOLA delivered on 26 November 1998
1. By order of 17 July 1997 the Pretura Cir- certain period; the milk produced above that condariale di Bassano del Grappa (District quantity is consequently subject to the pay- Magistrate's Court, Bassano del Grappa) ment of a sum of money, namely the 'addi- referred two questions to the Court for a pre- tional levy'. liminary ruling on the interpretation of Council Regulation (EEC) N o 3950/92 of 28 December 1992 establishing an additional levy in the milk and milk products sector (here- after 'Regulation N o 3950/92'). 1 The first question concerns the concept of 'purchaser' within the meaning of Articles 2 and 9 of That scheme was originally introduced for a the regulation; the second question seeks to duration of nine years and was extended for ascertain whether the purchaser is required, a further seven years by Regulation N o or merely authorised, to deduct the amount 3950/92. The procedure adopted under Regu- payable by way of additional levy pursuant lation 3950/92 to remedy the problem of to Article 2(2). excess milk production is the same as that already laid out in Regulation N o 856/84 'consisting of the application of a levy to quantities of milk collected or sold for direct consumption above a certain guarantee thresh- old'. 3 The relevant legislation
2. The 'additional levy' scheme was intro- 3. Article 1 of Regulation 3950/92 provides: duced by Council Regulation (EEC) N o 856/84 of 31 March 1984 amending Regula- tion (EEC) N o 804/68 on the common organi- sation of the market in milk and milk prod- ucts 2 in order to reduce the imbalance between supply and demand on the milk and milk products market. Under this scheme, pro- 'For seven new consecutive periods of twelve ducers are allocated 'reference quantities' cal- months commencing on 1 April 1993, an culated on the basis of the production over a additional levy shall be payable by producers of cow's milk on quantities of milk or milk equivalent delivered to a purchaser or sold
* Original language: Italian. 1 — OJ 1992 L 405, p. 1. 2 — OJ 1984 L 90, p. 10. 3 — See the third recital in the preamble to Regulation No 3950/92.
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directly for consumption during the twelve deduct from the price of milk paid to pro- month period in question in excess of a quan- ducers who owe the levy or, failing this, col- tity to be determined. lect by any appropriate means.
The levy shall be 115% of the target price for milk.'
Article 2 provides: Where quantities delivered by a producer exceed his reference quantity, the purchaser shall be authorised, by way of an advance on the levy payable, in accordance with detailed rules laid down by the Member State, to deduct an amount from the price of the milk ' 1 . The levy shall be payable on all quantities in respect of any delivery by that producer in of milk or milk equivalent marketed during excess of his reference quantity. the 12-month period in question in excess of the relevant quantity referred to in Article 3. It shall be shared between the producers who contributed to the overrun.
3. As regards direct sales, the producer shall pay the levy payable to the competent body of the Member State before a date and in accordance with rules to be laid down.'
2. As regards deliveries, before a date and in accordance with the detailed rules to be laid down, the purchaser liable for the levy shall 4. For the purposes of the application of the pay to the competent body of the Member regulation, Article 9 sets out the following State the amount payable, which he shall definitions:
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'For the purposes of this Regulation: (e) "purchaser" means an undertaking or grouping which purchases milk or other milk products from a producer:
— to treat or process them,
— to sell them to one or more undertak- ings treating or processing milk or other milk products. (c) "producer" means a natural or legal person or a group of natural or legal persons farming a holding within the geographical territory of the Community:
However, any group of purchasers in the same geographical area which carries out administrative and accounting operations nec- essary for the payment of the levy on behalf of its members shall be regarded as a pur- — selling milk or other milk products chaser ...; directly to the consumer,
(f) "undertaking treating or processing milk or other milk products" means an under- taking or grouping which is involved in — and/or supplying the purchaser; collection, packaging, storage, chilling and processing operations or whose dairying activities are restricted to one of those operations;
(d) "holding" means all production units operated by the single producer and (g) "delivery" means any delivery of milk or located within the geographical territory other milk products, whether the trans- of the Community; port is carried out by the producer, a
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purchaser, an undertaking processing or equivalent which leave any holding in the treating such products or a third party; territory of that Member State.
Quantities presented by producers for treat- (h) "milk or milk equivalent sold directly for ment or processing under contract shall be consumption" means milk or milk prod- deemed deliveries.' ucts converted into milk equivalent, sold or transferred free without going through an undertaking treating or processing milk or other milk products.'
Article 7 of Regulation N o 536/93 provides:
' 1 . Member States shall take all the verifica- 5. Commission Regulation (EEC) N o 536/93 tion measures necessary to ensure payment of of 9 March 1993 laying down detailed rules the levy on quantities of milk and milk equiva- on the application of the additional levy on lent marketed in excess of any of the quanti- milk and milk products 4 is also relevant to ties referred to in Article 3 of Regulation these proceedings. Article 1 of that regulation (EEC) N o 3950/92. To that end: provides:
(a) all purchasers operating in the territory of a Member State must be approved by t h a t M e m b e r State. T o r the purposes of calculating the additional levy introduced by Regulation (EEC) N o 3950/92:
1. within the meaning of Article 2(1) of that Regulation "quantities of milk or milk 6. Pursuant to the provision just cited, Article equivalent marketed" in a Member State 1(3) of Presidential Decree N o 569/1993 (here- means all quantities of milk or milk after 'Decree 569/93') provides that every ref- erence to purchasers of milk and other milk products is to be understood as including 4 — OJ 1993 L 57, p. 12. cooperatives that use or process cow's milk,
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regardless of the legal nature of the relation- The Consorzio contested that order before ship on the basis of which producers deliver the Pretura Circondariale di Bassano del milk and milk products to that cooperative. Grappa, claiming that Presidential Decree N o 569/93 should be disapplied in its regard since the Consorzio could not be regarded as a 'purchaser' within the meaning of Regulation N o 3950/92. In any event, it argued, Com- munity legislation does not require, but merely The facts and the questions referred for a authorises, the purchaser to set aside the preliminary ruling amount payable by way of additional levy.
8. The national court thereupon stayed pro- 7. The dispute before the national court arose ceedings and referred the following questions in the context of the abovementioned legisla- to the Court for a preliminary ruling: tion.
'(1) Must Articles 9 and 2 of Regulation The Consorzio Caseifìci Altopiano di Asiago (EEC) N o 3950/92 of 28 December 1992 (hereinafter 'the Consorzio') is a grouping of be interpreted as meaning that any person several milk-producing cooperatives. It delivering milk, regardless of the legal appears from the order for reference that the nature of the relationship which gave rise Consorzio itself had requested the status of to the delivery, may be treated as a "pur- "purchaser" within the meaning of Article chaser" liable to pay the additional levy 1(3) of Decree N o 569/93 and had obtained and, in particular, as meaning that a group recognition of that status. of cooperatives may be so regarded with respect to milk delivered, not sold, to it by members of the cooperative?
By order of 29 May 1996 the Regione Veneto ordered the Consorzio to pay the sum of ITL 45 000 000 by way of administrative penalty (2) Must Article 2(2) of Regulation (EEC) for irregularities in the register of suppliers N o 3950/92 of 28 December 1992 be and for failure to set aside the additional levy interpreted as meaning that purchasers in respect of those members who had exceeded are actually and personally required to their available milk quota. deduct from the amount paid to
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producers the amount payable by way lawfulness of that approval, specifically the of additional levy, or that it is merely a ground that, according to Regulation N o right conferred in the purchaser's inter- 3950/92, the existence of a contract of sale is ests, failure to exercise which cannot an essential prerequisite for a person to be entail penalties?' regarded as a purchaser of milk or milk prod- ucts. Accordingly, in the main proceedings the Consorzio argues that the section of Presi- dential Decree N o 569/93 providing that cooperative societies — or groupings of coop- eratives — are to be regarded as purchasers regardless of the legal nature of the relation- The first question for a preliminary ruling ship which gave rise to the delivery', is incom- patible with the aforesaid provisions of Regu- lation N o 3950/92. That is why the national court has found it necessary to refer to the Court the first question, designed essentially to ascertain whether a legal person such as the Consorzio can be held to be a 'purchaser' within the meaning of Regulation N o 3950/92, even though the milk is supplied to the Con- 9. Firstly, I would observe that the referring sorzio by its members on the basis of legal court could have presented the facts more relationships which differ from those under a clearly for the purposes of the answer to the contract for sale under national law. first question. In particular, nothing is said of the nature of the relationship which binds the Consorzio to its members, or of the role the Consorzio is called on to play in the mar- keting of the product. However, I believe that even the meagre indications provided in the order for reference provide us with the mate- rial to clarify the scope of the question and to provide the national court with a helpful answer.
10. In its written observations, the Consorzio suggests a reply in the negative, putting for- ward arguments based essentially on points of wording. According to that line of argu- ment, the regulation in question employs semantic expressions which necessarily imply In my opinion, the starting point must be the the existence of a contract for sale: the 'pur- fact that, as the file shows, the Consorzio chaser' is one of the two parties to that trans- obtained approval of its status as a purchaser; action. Moreover, Article 2(2) refers to the that is to say, the very approval which the 'price' of the product and the price is also a authorities of the Member States are required key element of a contract for sale. It follows to give under Article 7 of Regulation N o that a person can only qualify as a 'purchaser' 536/93, cited above. However, in the main within the meaning of the regulation if he proceedings the Consorzio challenges the receives the milk under the terms of a
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transaction qualifying as a contract for sale Accordingly, as the first form of marketing under the national law in question. does not apply, the case in point need now only be examined in the context of the second.
The Regione Veneto and the Italian Govern- ment take the opposite view. They argue that the term 'purchaser', as used in the regula- tion, is not to be understood in the sense That said, it remains to be seen whether in attributed to it in civil law, that is to say, a the regulation the purchaser is viewed as the party to a contract for sale within the meaning second party under a contract for sale under of Italian Civil Code. In the case in point national law or, in a more general sense, as an here, the scheme introduced by the regulation intermediary placed, in the marketing circuit, centres instead on the fact of delivery of the between the producer and the consumer. In product; the 'purchaser' is therefore the person my opinion, the second of these hypotheses to whom the producer delivers the milk, is the correct one. The submission to the con- regardless of the legal title on the basis of trary, put forward by the Consorzio, is based which that transfer is made. exclusively on the textual argument that the term 'purchaser' must perforce be connected with a contract for sale. That might well be true in theory, but there is nothing in the scheme of the regulation which provides con- clusive confirmation of it. The regulation seems to exclude the existence of contract for sale. Instead, in the case with which we are concerned here, Article 9(c) defines the pro- ducer as the legal person 'selling milk or other milk products directly to the consumer and/ or supplying the purchaser'. 5 Here the only 11. For my part, I share that second view. reference to a sale concerns the so-called First, so far as the scheme is concerned, it 'direct sales', whereas, with reference to the should be noted that the regulation in ques- situation involving a 'purchaser', the provi- tion provides for two possible forms of mar- sion merely speaks of that person receiving keting: the first — which is not relevant here 'supplies', without any further specification — is that of 'direct sales' where the producer regarding the legal title on the basis of which sells the product directly to the consumer. that supply is made. The second — which is in point in these pro- ceedings — is the one that involves the 'pur- chaser'. It is a form of marketing in which the product, instead of going directly to the con- 5 — Emphasis added. As regards the concept of 'producer', see Cases C-341/89 Bauman [1991] ECR I-25 and C-152/95 sumer, passes through an intermediary. Macon and Others [1997] ECR I-5429.
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The irrelevance of the legal characterisation satisfied, however, the legal title under which of the relations between producer and pur- the supply is made is of no account. chaser is confirmed by Regulation N o 536/93. Article 1 of that regulation states that: 'quan- tities of milk or milk equivalent marketed in a Member State' within the meaning of Article 2(1) of Regulation N o 3950/92 'means all quantities of milk or milk equivalent which leave any holding in the territory of that 12. As regards, specifically, the question Member State'. 6 Here again, therefore, the whether a grouping of cooperative societies Community legislature seems to be wholly can also be regarded as a purchaser, I would unconcerned with the definition under observe that that is a matter specifically for national law of the relationship between 'prod- the national court to resolve in the light of ucer' and 'purchaser'. Instead, the Commu- the factual and legal aspects of the case before nity legislation is inspired by a quite broad it. All the Court can do here is to provide a criterion of marketing, hinging on the event general interpretation, to the effect that the of supply by the producer, regardless of the status of 'purchaser' within the meaning of legal title on the basis of which the product, Regulation N o 3950/92 does not depend on once it leaves the producer, is then transferred there being a contract for sale under which to the producer. the producer supplies the goods to the pur- chaser against payment of a price. Under the scheme of the regulation, therefore, there is, in theory, nothing to preclude an association which receives goods by way of contribution from producers that are members of it, who in their turn receive a deferred consideration in accordance with the procedures established under the terms of association, from being regarded as a purchaser. It makes no differ- ence that such contribution does not qualify as a contract for sale under national law.
I take the view, therefore, that to be regarded as a 'purchaser', it is necessary and sufficient for the person in question to be supplied with milk or with other milk products by the prod- The second question referred for a prelimi- ucer. It is true that mere supply alone cannot nary ruling qualify the recipient as a 'purchaser' within the meaning of Regulation N o 3950/92. As Article 9(e) specifically provides, he must also receive the products in order 'to treat or pro- cess them' or 'to sell them to one or more undertakings treating or processing milk or other milk products'. If those conditions are 13. The second question referred for a pre- liminary ruling concerns Article 2(2) of Regu- lation N o 3950/92, and specifically the oblig- 6 — Emphasis added. ation to pay the additional levy. Under the
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regulation in question that obligation rests on allows for the possibility of no deduction the purchaser. The reasons for the Commu- being made and of the amount of the levy nity legislature's choice in this respect are set being recovered in other ways. Moreover out in the eighth recital in the preamble to Article 2(2), subparagraph 3, provides that: the regulation: 'in order to avoid, as in the 'where quantities delivered by a producer past, long delays between collection and pay- exceed his reference quantity, the purchaser ment of the levy, which are incompatible with shall be authorised, 7 by way of an advance the scheme's objective, provision should be on the levy payable, in accordance with made for the purchaser, who seems in the detailed rules laid down by the Member State, best position to carry out the necessary opera- to deduct an amount from the price of the tions, to be liable for the levy, and for him to milk in respect of any delivery by that prod- be given the means to collect the levy from ucer in excess of his reference quantity'. The the producers who owe it'. Article 2 has provision in question does not, therefore, therefore provided that it is the purchaser impose any obligation on the purchaser, but who is liable for payment of the levy and, for simply authorises him to deduct the amount that purpose, has specified that he is to deduct payable from the price due to the producer. the amount payable from the price of the milk What is concerned, therefore, is merely a paid to the producers who owe the levy. right, failure to exercise which cannot entail However — and this is the subject of the penalties; however, the purchaser is liable for second question at issue — the referring court payment of the additional levy and, if he harbours doubts as to whether the purchaser chooses not to use the right to effect such a is required to make that deduction or whether deduction, he must nevertheless collect the the regulation confers on the purchaser merely amount owed by the producers by any the right to do so. appropriate means.
To conclude, I am of the opinion that the The parties which have submitted observa- second question must be answered to the tions are at one in contending that the pur- effect that the purchaser is liable for payment chaser is not required to deduct the amount of the additional levy, but that it is not payable by way of additional levy, but merely mandatory for him to collect that levy has the right to do so. I share that view. Whilst from the producer by deducting the corre- providing for the possibility for the purchaser sponding amount from the price owing to the to deduct the amount of the levy from the producer. price payable to the producer, Article 2(2) adds that 'failing this', he may collect such amount 'by any appropriate means'. There- fore, the wording of the provision in question 7 — Emphasis added.
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Conclusion
14. In view of the foregoing, I propose that the Court answer the questions referred by the national court as follows:
(1) Articles 2 and 9 of Council Regulation (EEC) N o 3950/92 of 28 December 1992 must be interpreted as meaning that a person pursuing the activities listed under the first and second indents of Article 9(e) and to whom milk or other milk products have been supplied by a producer must be regarded as a pur- chaser, and hence liable for payment of the levy, irrespective of the status in law of the relationship which gave rise to the supply. It is, therefore, not neces- sary for the supply to be made under a contract classified as a contract for sale under national law.
(2) Article 2(2) of Regulation N o 3950/92 must be interpreted as meaning that the purchaser is required to collect from the producer the amount of the levy which is owed by the producer but for the payment of which the purchaser himself is liable. However, the purchaser does not necessarily have to collect that amount by deducting it from the price payable to the producer but may instead collect it by 'any appropriate means'.
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