C-288/97

Regione Veneto

on the interpretation of Articles 2 and 9 of Council Regulation (EEC) N o 3950/92 of 28 December 1992 establishing an additional levy in the milk and milk products sector (OJ 1992 L 405, p. 1),

* Language of the case: Italian.

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T H E C O U R T (Second Chamber),

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 26 November 1998,

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gives the following

Judgment

5 Regulation N o 3950/92 extended for seven years the additional levy scheme intro- duced by Council Regulation (EEC) N o 856/84 of 31 March 1984 amending Regu- lation (EEC) N o 804/68 on the common organisation of the market in milk and milk products (OJ 1984 L 90, p. 10), and 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).

6 The latter two regulations respectively introduced an additional levy charged on quantities of milk delivered in excess of an annual reference quantity fixed for every producer or purchaser and laid down detailed rules for implementing the said levy. Regulation N o 3950/92 amended the scheme, in particular as regards the collection of the levy.

7 The eighth recital in the preamble to Regulation N o 3950/92 thus states that ' ... in order to avoid, as in the past, long delays [in the] collection and payment of the levy, which are incompatible with the scheme's objective, provision should be made for the purchaser, who seems in the best position to carry out the necessary opera- tions, to be liable for the levy, and for him to be given the means to collect the levy from the producers who owe it'.

8 Article 1 of Regulation N o 3950/92 states: '... an additional levy shall be payable by producers of cow's milk on quantities of milk or milk equivalent delivered to a purchaser or sold directly for consumption ... in excess of a quantity to be determined.'

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10 Article 9 of Regulation N o 3950/92 provides:

T o r the purposes of this Regulation:

(c) "producer" means a natural or legal person or a group of natural or legal per- sons farming a holding within the geographical territory of the Community:

— selling milk or other milk products directly to the consumer,

However, any group of purchasers in the same geographical area which carries out [the] administrative and accounting operations necessary for the payment of the levy on behalf of its members shall be regarded as a purchaser. ...

(g) "delivery" means any delivery of milk or other milk products, whether the transport is carried out by the producer, a purchaser, an undertaking processing or treating such products or a third party;

(h) "milk or milk equivalent sold directly for consumption" means milk or milk products converted into milk equivalent, sold or transferred free without going through an undertaking treating or processing milk or other milk products.'

n The terms 'quantities of milk or milk equivalent marketed' for the purposes of Article 2(1) of Regulation N o 3950/92 must, in accordance with the definition given in Article 1 of Commission Regulation (EEC) N o 536/93 of 9 March 1993 laying down detailed rules on the application of the additional levy on milk and milk products (OJ 1993 L 57, p. 12), be understood as meaning 'all quantities of milk or milk equivalent which leave any holding in the territory of [a] Member State.' Fur- thermore, under that Article, 'quantities presented by producers for treatment or processing under contract shall be deemed deliveries'.

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— undertake to forward the declarations provided for in Article 3 (2) to the competent authority of the Member State concerned.'

13 Article 1(3) of Presidential Decree N o 569/93, which is based on the above provi- sions, provides that 'every reference to purchasers is to be understood as including cooperatives that use or process cow's milk, regardless of the legal nature of the

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relationship on the basis of which producers deliver milk and milk products to that cooperative.'

1 4 Although it contested the administrative penalty at issue in the main action on the ground that it is not a purchaser within the meaning of the Community regula- tions, the Consortium had previously requested and obtained recognition of its status as a purchaser under the relevant Italian law, that is to say Decree N o 569/93.

16 By its first question, the referring court is essentially asking what criteria the recipient of a delivery of milk must satisfy in order to be a purchaser within the meaning of Article 2(2) and Article 9(e) of Regulation N o 3950/92, in particular where the recipient is a consorzio established under Italian law, comprised of coop­ eratives of milk producers.

17 The Consortium argues, essentially on the basis of the wording of Articles 2 and 9 of Regulation N o 3950/92, that only a party who purchases cow's milk from a producer under a contract of sale as defined in civil law may be regarded as a pur­ chaser within the meaning of those provisions. The Regione Veneto and the Italian Government adopt the contrary position that a cooperative such as the plaintiff in the main action may be a purchaser irrespective of the legal form of the transfer of the milk, simply by virtue of the fact that milk is delivered to it. They argue that there is a delivery whenever there is no direct sale from the producer to the con­ sumer.

18 It is appropriate to say something at the outset about the general structure of the additional levy scheme, which — initially by virtue of Article 5c(l) and (2) of Council Regulation (EEC) N o 804/68 of 27 June 1968 on the common organisation of the market in milk and milk products (OJ, English Special Edition 1968 (I), p. 176), inserted by Regulation N o 856/84 and, since 1993, under Article 1 of Regu­ lation N o 3950/92 — distinguishes between reference quantities for milk sold directly for consumption and those for milk delivered to purchasers (Case C-196/94 Schiltz-Thilmann ν Ministre de l'Agriculture [1995] E C R I-3991, paragraph 6).

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22 In so far as the intermediary, that is to say the undertaking treating or processing the milk delivered to it by the producer, must, in accordance with Article 5c(l) of Regulation N o 804/68 as amended by Regulation N o 856/84, and Article 2(2) of Regulation N o 3950/92, be a purchaser within the meaning of Article 9(e) of Regu- lation N o 3950/92, that concept must be given a broad interpretation.

23 It is clear from the first recital in the preamble to the latter regulation that the purpose of the additional levy scheme, which is to reduce the imbalance between supply and demand in the milk and milk-products sector and the resulting struc- tural surpluses, merely requires that a levy be imposed on quantities in excess of the quantities of milk sold directly or collected. Whether an intermediary is a pur- chaser or not is immaterial, initially, to achieving that objective.

24 A broad interpretation of the concept of purchaser is further justified by Article 9(h) of Regulation N o 3950/92, which defines the concept of direct sales to con- sumers. That concept includes not only transfers for valuable consideration, which are recognised under civil law as sales, but also transfers made free of charge.

25 For the purposes of Articles 2(2) and 9(e) of Regulation N o 3950/92, the term purchaser applies to any undertaking which acquires milk from a producer under a contract, irrespective of the manner of payment of the producer, for the purpose either of treating or processing the milk itself or of transferring it to an undertaking which treats or processes it.

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Second question

29 In answer to the second question, which is intended to establish whether a pur- chaser is under an obligation to withhold sums due by way of additional levy, it should be noted that, whilst the wording of the first paragraph of Article 2(2) of Regulation N o 3950/92 suggests that deducting such sums is the usual method whereby a purchaser may collect a levy which it is liable to pay to the competent body, its meaning is not clear and unambiguous.

30 However, the fact that the provision allows the purchaser to use any appropriate means to collect sums due as an additional levy if he does not deduct such sums from the price of milk paid to a producer militates in favour of interpreting the provision as conferring an option, rather than an inescapable obligation, on the party liable to pay the levy.

31 The view that withholding the levy is an option is corroborated by the last para- graph of Article 2(2) of Regulation N o 3950/92, which authorises purchasers to deduct, by way of an advance on the levy owed by a producer, an amount from the price of the milk in respect of any delivery by the producer in excess of his reference quantity.

T H E C O U R T (Second Chamber),

in answer to the questions referred to it by the Pretura Circondariale, Bassano del Grappa, by order of 17 July 1997, hereby rules:

1. For the purposes of Articles 2(2) and 9(e) of Council Regulation (EEC) N o 3950/92 of 28 December 1992 establishing an additional levy in the milk and milk products sector, the term purchaser is to be interpreted as including any intermediary undertaking which acquires milk from a producer under a con- tract, irrespective of the manner in which the latter is paid, for the purpose either of treating or processing the milk itself or of transferring it to another undertaking for treatment or processing and which, in the event that the undertaking in question is a collection of cooperatives which are themselves purchasers, carries out on behalf of those cooperatives the administrative and accounting operations necessary for the payment of the levy, and in par- ticular the operations referred to in Article 7 of Commission Regulation (EEC) N o 536/93 of 9 March 1993 laying down detailed rules on the applica- tion of the additional levy on milk and milk products.

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2. Article 2(2) of Regulation N o 3950/92 is to be understood as meaning that, whilst purchasers are entitled to deduct from the price of milk paid to a pro- ducer the amount owed by that producer by way of additional levy, the pro- vision does not impose on them any obligation in that regard.