C-1/02

1 — Original language: Italian. 2 — Commission Regulation (EEC) No 536/93 of 9 March 1993 laving down detailed rules on the application of the 4 — Council Regulation (EEC) No 856/84 of 31 March 1984 additional levy on milk and milk products (OJ 1993 L 57, amending Regulation (EEC) No 804/68 on the common p. 12). organisation of the market in milk and milk products 3 — Commission Regulation (EC) No 1001/98 of 13 May 1998 (OJ 1984 L 90, p. 10). amending Regulation (EEC) No 536/93 laying down 5 — Council Regulation (EEC) No 3950/92 of 28 December detailed rules on the application of the additional levy on 1992 establishing an additional levy in the milk and milk milk and milk products (OJ 1998 L 142, p. 22). products sector (OJ 1992 L 405, p. 1).

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down, the purchaser liable for the levy shall 8. In order to permit that amount to be pay to the competent body of the Member calculated, the original version of Article 3 State the amount payable, which he shall (2) of the same regulation laid down that: deduct from the price of milk paid to producers who owe the levy or, failing this, collect by any appropriate means.'

'Before6 15 May each year, the purchasers shall forward to the competent authority of 5. Article 10 of the same regulation pro- the Member State a summary of the vides that: statements drawn up for each producer or, where appropriate, by decision of the Member State, the total quantity, the quantity corrected in accordance with Article 2(2) and average fat content of the milk and/or milk equivalent delivered to it 'The levy shall be considered as intervention by producers and the sum of the individual to stabilise agricultural markets and shall be reference quantities and the average repre- used to finance expenditure in the milk sentative fat content of such producers' sector'. production.

'Where that time-limit is not observed, the — if the communication referred to in the purchaser shall be liable to a penalty first subparagraph is not made before calculated as follows: 1 July, the penalty shall be that referred to in the third indent plus an amount equal to 3% of that penalty for each calendar day of delay from 1 July. Such penalty may not exceed ECU 100 000. — if the communication referred to in the first subparagraph is made before 1 June, the penalty shall be equal to the amount of the levy due for a 0.1% overrun on the quantities of milk and milk equivalent delivered to them by However, if the quantities of milk or milk producers. Such penalty may not be equivalent delivered to the purchaser per less than ECU 500 nor more than period of 12 months are less than 100 000 ECU 20 000, kilograms, the minimum penalties referred to in the first three indents shall be reduced to ECU 100, 200 and 300 respectively.'

— if the communication referred to in the first subparagraph is made after 31 May but before 16 June, the penalty 10. Regulation No 536/93 was repealed shall be equal to the amount of the levy with effect from 31 March 2002 by due for a 0.2% overrun on the Regulation (EC) No 1392/2001 7 (herein- quantities of milk and milk equivalent after 'Regulation No 1392/2001'). delivered to them by producers. Such penalty may not be less than ECU 1 0 0 0 n o r m o r e t h a n ECU 40 000,

11. Article 5 of the latter regulation pro- vides that:

— if the communication referred to in the first subparagraph is made after 15 June but before 1 July, the penalty shall be equal to the amount of the levy '... due for a 0.3% overrun on the quantities of milk and milk equivalent delivered to them by producers. Such penalty may not be less than 7 — Commission Regulation (EC) No 1392/2001 of 9 July 2001 ECU 1 5 0 0 n o r m o r e t h a n laying down detailed rules for applying Council Regulation (EEC) No 3950/92 establishing an additional levy on milk ECU 60 000, and milk products (OJ 2001 L 187, p. 19).

3. Except in cases of force majeure duly recognised by the competent authority, purchasers who fail to comply with the time-limit referred to in paragraph 2 shall 2. "Irregularity" shall mean any infringe- be required to pay an amount equal to the ment of a provision of Community law levy due for a 0 . 0 1 % overrun of the resulting from an act or omission by an quantities of milk and milk equivalent economic operator, which has, or would delivered to them by producers for each have, the effect of prejudicing the general calendar day of delay. Where these quan- budget of the Communities or budgets tities are not known because no declaration managed by them, either by reducing or has been made, they shall be estimated by losing revenue accruing from own resources the competent authority. That amount may collected directly on behalf of the Commu- not be less than EUR 100 nor more than nities, or by an unjustified item of expen- EUR 100 000. diture'.

8 — See the Corrigendum to Regulation No 1392/01 (OJ 2002 9 — Council Regulation (EC, Euratom) No 2988/95 of 18 L 133, p. 43), the previous Italian version of which had December 1995 on the protection of the European Com- erroneously stated 'by'. munities' financial interests (OJ 1995 L 312, p. 1).

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13. Finally, under Article 2(2) of that 16. In view of the delay, by a decision of regulation: 29 May 2000 the HZA imposed on the Borgmann dairy, pursuant to the second subparagraph of Article 3(2) of Regulation No 536/93, as amended by Regulation No 1001/98, a penalty of DEM 39 311.60 (ECU 20 000), 10 equivalent to the max- 'No administrative penalty may be imposed imum amount provided for in that article unless a Community act prior to the for a delay of this kind. irregularity has made provision for it. In the event of a subsequent amendment of the provisions which impose administrative penalties and are contained in Community rules, the less severe provisions shall apply retroactively.'

IV — Legal analysis

21. Although the original version of that article was subsequently amended by Reg- A — Considerations from the referring ulation No 1001/98, in the opinion of the court referring court the penalty regime resulting from that amendment also contravenes the principle of proportionality.

19. The referring court questions whether the penalty provided for by the second subparagraph of Article 3(2) of Regulation No 536/93, as amended by Regulation No 1001/98, complies with the principle of proportionality. 22. On the basis of that regime, notes the referring court, it is possible to impose the maximum penalty of EUR 20 000 for any delay — in relation to the deadline of 14 20. In that regard, it recalls first and May — between 15 and 31 May, and hence foremost that according to the case-law of also in cases such as the present one in the Court, and especially the Wiedergeltin- which the delay is minimal. However, since gen judgment, 1 1in order to establish the objective of the rules under Article 3(2) whether a penalty complies with the prin- of Regulation No 536/93 is to ensure that ciple of proportionality it is necessary to delays in notification do not affect the examine whether it 'exceeds what is appro- administrative procedure for payment of priate and necessary to attain the objective the additional levy before 1 September, the pursued by the rules which have been penalty that can be imposed should be commensurate with the length of the delay.

11 — Judgment in Case C-356/97 Molkereigenossenschaft Wie- dergeltingen [2000] ECR I-5461. 12 — Paragraphs 35 and 36 of the Wiedergeltingen judgment.

24. Secondly, the rules in question do not, in the opinion of the referring court, permit an assessment to be made whether late notification actually affects the administra- tive procedure aimed at ensuring that the B — Summary of the arguments of the additional levy is paid before 1 September parties each year. In the present case, for example, the referring court points out that the applicant's entire d o c u m e n t a t i o n was already available on 16 May 2000. Hence no harm appears to have been caused to the 2 8 . The Borgmann dairy shares and said procedure. endorses the considerations of the Finanz- gericht D ü s s e l d o r f t h a t 1 have just described. In particular, it asserts that in the present case it could not be held responsible for the delay in communicating the information required by Article 3 of 25. Finally, according to the referring Regulation No 536/93 because the notifica- court, the contested rules contravene the tion was delivered to the post office within principle of proportionality to the extent the time-limit and normally should have that the penalty which they threaten can be arrived at its destination before 15 May. It imposed without there having been culp- was only because of exceptional circum- able behaviour on the part of the purchaser stances that the notification arrived late; in and even in cases of force majeure. any event, the dairy asserts that the delay

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was insignificant and hence, in the absence 32. The Commission also prefaces its of fault, not such as to justify a penalty remarks with the assertion that for reasons comparable to the one imposed on it. which I shall set out in greater detail below it is not the contested provision that is applicable to the case in point but Article 5 (3) of Regulation No 1392/2001, even though the latter came into force after the events in the case.

34. The Commission then turns to the question whether, in order to justify impo- sition of the penalty if the deadline is missed, it is necessary to consider the impact that such delay had on the admin- 31. The Commission, for its part, states istrative procedure for determining the first its preference for interpreting the additional levy. In this regard, it points contested rules as meaning that the date of out first and foremost that as a matter of 15 May is a deadline for the receipt and not principle any delay on the part of purcha- the despatch of the notification for which it sers reduces the time available to the provides. It concedes, however, that the national authorities to calculate the amount interpretation suggested by the French of the additional levy and therefore con- Government would not be incompatible stitutes a risk for the smooth operation of with the objectives of Regulation No the regime. Secondly, it points out that, if 536/93. for the purposes of imposing the penalty it

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were necessary on each occasion to prove purchaser to ensure that the information that the failure to meet the deadline affected reaches the competent authority before the administrative procedure, the dissuasive expiry of the time-limit, in the opinion of effect and practical effectiveness of the the Commission it must therefore be penalty rule would be jeopardised, espe- excluded, in accordance with the case-law cially in legal systems such as the German in of the Court, 14 that a slight delay attribu- which a number of authorities are involved table to the postal services constitutes force during the course of the procedure. majeure.

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order for reference, the question I have just (1) The expiry of the time-limit pursuant to summarised is based on two assumptions. the first subparagraph of Article 3(2) of Regulation No 536/93

39. First, it appears to assume that the time-limit of 15 May laid down in Regula- tion No 536/93 refers to the receipt and not the dispatch of the notification for which it provides. 43. I wish to state at the outset that neither the literal wording of the contested provi- sion nor a comparison of the different language versions of Regulation No 536/93 makes it possible, in my view, to establish whether the date of 15 May is to be understood as a deadline before which 40. Secondly, it appears to take it for the required information must be sent by granted that the system of penalties intro- the purchasers or must reach the national duced by Regulation No 1392/01, which authority. came into force after the events at issue, is not applicable to the present case.

46. In my view, this interpretation of the contested rule is also more consistent with the principle of non-discrimination, in that, 48. Concluding on this point, I therefore as the French Government rightly asserts, it consider that the first subparagraph of makes it possible to ensure that purchasers Article 3(2) of Regulation No 536/93 situated in certain areas, particularly those should be interpreted as meaning that the furthest away from the office of the purchaser of milk meets the 15 May dead- competent authority, are not placed at a line if it can demonstrate with certainty that disadvantage in relation to other purchasers it sent the data requested of it to the in meeting the notification requirement competent authority before that date. imposed on them by that rule.

5 1 . In this regard the Commission relies first on Article 2(2) of Regulation N o 2988/95, which provides that in the event of subsequent amendment of legislation the provisions imposing the less severe penalty for the infringement of a provision of 54. Nor, according to the Commission, can Community law which 'has, or would have, it be objected that in the present case the the effect of prejudicing the general budget penalty laid down in Regulation N o 536/93 of the Communities or budgets managed by has already been imposed on the dairy. them' should be applied retroactively. Recalling in this regard the Opinion of Advocate General Léger in the National Farmers' Union case, 19 the Commission in fact maintains that the retroactive applica- tion of a more favourable rule is precluded only in the case of legal situations that have already been settled. In the present case, however, the penalty imposed does not 52. Failure to comply with the time-limit constitute a settled legal situation, in that laid down in Article 3(2) of Regulation N o the decision regarding it is the subject of the 536/93 constitutes, in the view of the challenge in the main proceedings. Commission, an infringement of this kind, in that it could, at least potentially, harm the EAGGF (European Agricultural Guidance 19 — Opinion in Case C-354/95 National Farmers' Union and and Guarantee Fund), for which the addi- Others [1997] ECR I-4559, point 87.

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55. The Borgmann dairy and the French 59. In the context of that division of Government do not contest the Commis- functions it is therefore for the German sion's arguments that I have just described. court to calculate, on the basis of the quantities of milk delivered to the Borg- mann dairy, the amount of the penalty that would result from the application of Reg- ulation No 1392/01 and to compare it with that imposed on the basis of Regulation No 536/93 in order to identify in concrete terms which penalty regime is more favour- 56. For my part, I agree with the Commis- able to the dairy. sion that in the present case the less severe of the penalties laid down in Regulation No 536/93 and Regulation No 1392/01 should be applied, in accordance with Article 2(2) of Regulation No 2988/95. (3) The proportionality of the penalty

based on the quantities of milk delivered to believe that this question is relevant to purchasers is in fact proportionate to the resolving the dispute in the main proceed- objective pursued by the contested provi- ings. sion, in that it not only induces all purchasers — including those who may not be liable for the additional levy — to forward the information necessary for calculating the levy to the competent authority within the prescribed time-limit but also makes it possible to adjust the amount of the penalty according to the 65. Even if one were to work on the turnover of the purchasers. assumption that the information had to reach the competent authority before 15 May — an assumption which, as I have said, I do not share — the fact remains that the failure to comply with that deadline is, in my opinion, attributable solely to the Borgmann dairy, as it did not show the ordinary diligence incumbent on persons required to meet a final deadline and who, moreover, have only a few days in which to 63. If, on the other hand, the penalty were do so. calculated on the basis of the amount of the additional levy payable — as the referring court appears to suggest — dairies which, although late in forwarding their informa- tion, are not liable for the levy according to the statements would no longer be subject to penalty. This could lead some dairies not to submit the information in their posses- 66. In order to be certain to achieve that sion in good time, seriously jeopardising the outcome the Borgmann dairy should not operation of the system of milk quotas. 21 have relied on the ordinary postal service, which — however efficient it may be — does not preclude the risk of delays, but should instead have used alternative means of communication that are more reliable in this respect, such as express courier or fax transmission.

to take the necessary steps before the expiry 70. In that connection I recall that in the of the period'. 22 In particular, the Court Wiedergeltingen judgment the Court struck stated that it was not possible to 'plead an down the penalty rules contained in the exceptional malfunctioning of [the postal] original version of the second subparagraph services' in order to avoid the consequences of Article 3(2) of Regulation No 536/93 in of failing to comply with a time-limit. 23 so far as it '[did] not allow the amount of the penalty to be adjusted according to the length of time by which the deadline for communication [was] exceeded and accord- ing to the resulting impact on the purcha- ser's obligation to pay, before 1 September each year, the sums payable by way of the additional levy on milk'. 25 As we have 68. In the same way, the Court of First seen, the same criticism is now also directed Instance, holding that 'the party in question at the new version of that article. must pay close attention to the course of the procedure and, in particular, demonstrate diligence in order to comply with the prescribed time-limits', denied that 'the existence of an undertaking by [a postal operator] to the sender to deliver a letter within a certain period [may], by itself, render any delay in its delivery unforesee- able'. 24

72. The Commission also maintains that 75. In fact, although it is true that the the dissuasive effect of the penalty depends penalty rules in the new version of the largely on the size and earning capacity of contested provision lay down that a pur- the operator. Hence, a penalty equal to the chaser who forwards the information to the amount of the levy due for a 0 . 1 % overrun competent a u t h o r i t y between 15 and on the quantities of milk delivered by the 31 May will pay a much lower penalty producers would not, according to the than if notification is made between 1 and Commission, go beyond that which was 15 June, it remains the case that even these necessary and appropriate to achieve the rules do not make it possible to adjust, objective of inducing purchasers to forward within each of these periods, the amount of the information in good time. the penalty according to the actual length of the delay.

73. I note nevertheless that these argu- ments do not go to the heart of the question, and above all fail to get around 76. This is particularly apparent in the the objections set out in the cited judgment. present case, in which a minor delay in relation to the 15 M a y deadline was p u n i s h e d by t h e s a m e penalty (EUR 20 000) as would have been imposed if the delay had been a full 15 days.

V — Conclusion

79. In the light of the considerations set out above, I propose that the Court reply as follows to the Finanzgericht Düsseldorf:

(1) The first subparagraph of Article 3(2) of Commission Regulation (EEC) No 536/93 of 9 March 1993 laying down detailed rules on the application of the additional levy on milk and milk products is to he interpreted as meaning that a purchaser of milk complies with the 15 May deadline if it can demonstrate with certainty that it sent the information required of it to the competent authority before that date.

(2) The second subparagraph of Article 3(2) of Commission Regulation (EEC) No 536/93 of 9 March 1993 laying down detailed rules on the application of the additional levy on milk and milk products, as amended by Commission Regulation (EC) N o 1001/98 of 13 May 1998, contravenes the principle of proportionality in the part in which, in the event of non-compliance with the time-limit mentioned in the first subparagraph of Article 3(2), it imposes on a purchaser who forwarded the communication between 15 and 31 May a pecuniary penalty equal to the amount of the additional levy on milk due for a 0.1 % overrun on the quantities of milk and milk equivalent delivered to them by producers, without there being scope within the period of time considered to take account of the length of time by which the time-limit was exceeded.

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