61987CJ0064_EN
Parties
Grounds
Decision on costs
Operative part
Parties
IN CASE 64/87
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE VREDEGERECHT ( CANTONAL COURT ) OF THE SECOND CANTON OF THE CITY OF ANTWERP FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
VERSELE-LAGA NV, DEINZE,
INTERVENERS :
FEDERATION EUROPEENNE DES FABRICANTS D' ALIMENTS COMPOSES ( FEFAC ), BRUSSELS,
BEROEPSVERENIGING VAN DE MENGVOEDERFABRIKANTEN ( BEMEFA ), BRUSSELS,
FACHVERBAND DER FUTTERMITTELINDUSTRIE EV, BONN,
DANSKE KORN - OG FODERSTOF IM - OG EKSPORTOERERS FAELLESORGANISATION ( DAKOFO ), COPENHAGEN,
SYNDICAT NATIONAL DES INDUSTRIELS DE L' ALIMENTATION ANIMALE ( SNIA ), PARIS,
IRISH CORN AND FEED ASSOCIATION, DUBLIN,
ASSOCIAZIONE NAZIONALE TRA I PRODUTTORI DI ALIMENTI ZOOTECNICHI ( ASSALZOO ), ROME,
KONINKLIJKE VERENIGING HET COMITE VAN GRAANHANDELAREN, ROTTERDAM,
VERENIGING VAN NEDERLANDSE MENGVOEDERFABRIKANTEN, THE HAGUE,
CONFEDERACION ESPANOLA DE FABRICANTES DE PIENSOS COMPUESTOS, MADRID,
FEDERATION OF AGRICULTURAL COOPERATIVES, LONDON,
UNITED KINGDOM AGRICULTURAL SUPPLY TRADES ASSOCIATION ( UKASTA ), LONDON
AND
ROBEGRA NV, ANTWERP,
INTERVENERS :
IMEXGRA, SYNDICALE KAMER VOOR DE IMPORT EN EXPORTHANDEL IN GRANEN, ZADEN EN VEEVOEDERS VZW, ANTWERP,
SYNAGRA, NATIONAAL SYNDICAAT VAN DE HANDEL IN GRANEN EN LANDBOUWPRODUKTEN VZW, BRUSSELS,
ON THE VALIDITY AND INTERPRETATION OF COMMISSION REGULATION NO 2040/86 OF 30 JUNE 1986 LAYING DOWN DETAILED RULES FOR THE APPLICATION OF THE CO-RESPONSIBILITY LEVY IN THE CEREALS SECTOR ( OFFICIAL JOURNAL 1986 L 173, P . 65 ),
THE COURT ( FIFTH CHAMBER )
COMPOSED OF : G . BOSCO, PRESIDENT OF CHAMBER, U . EVERLING, Y . GALMOT, R . JOLIET AND F . SCHOCKWEILER, JUDGES,
ADVOCATE GENERAL : M . DARMON
REGISTRAR : D . LOUTERMAN, ADMINISTRATOR
AFTER CONSIDERING THE OBSERVATIONS SUBMITTED ON BEHALF OF
VERSELE-LAGA NV AND THE PARTIES INTERVENING IN SUPPORT OF ITS CASE, BY IVO VAN BAEL AND JEAN-FRANCOIS BELLIS, OF THE BRUSSELS BAR,
THE GOVERNMENT OF THE ITALIAN REPUBLIC, BY IVO BRAGUGLIA, AVVOCATO DELLO STATO,
THE COMMISSION OF THE EUROPEAN COMMUNITIES, BY ROBERT CASPAR FISCHER,
LEGAL ADVISER,
HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 17 NOVEMBER 1987,
AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 9 FEBRUARY 1988,
GIVES THE FOLLOWING
JUDGMENT
Grounds
1 BY JUDGMENT OF 22 JANUARY 1987, WHICH WAS RECEIVED AT THE COURT ON 3 MARCH 1987, THE VREDEGERECHT ( CANTONAL COURT ) OF THE SECOND CANTON OF THE CITY OF ANTWERP REFERRED TO THE COURT FOR A PRELIMINARY RULING, UNDER ARTICLE 177 OF THE EEC TREATY, THREE QUESTIONS ON THE INTERPRETATION AND VALIDITY OF COMMUNITY REGULATIONS RELATING TO THE CO-RESPONSIBILITY LEVY IN THE CEREALS SECTOR .
2 THE QUESTIONS WERE RAISED IN PROCEEDINGS BETWEEN VERSELE-LAGA NV, A CEREAL-PROCESSING UNDERTAKING WHOSE REGISTERED OFFICE IS AT DEINZE ( BELGIUM ), AND ROBEGRA NV, ANTWERP . VERSELE-LAGA PURCHASED 540 TONNES OF ENGLISH WHEAT FROM ROBEGRA FOR A TOTAL PRICE OF BFR 4 526 765 . IT DEDUCTED BFR 115 412 FROM THE PURCHASE PRICE BY WAY OF CO-RESPONSIBILITY LEVY; THAT AMOUNT CORRESPONDS TO THE LEVY CALCULATED AT THE "GREEN" RATE FOR THE POUND STERLING AND CONVERTED INTO BELGIAN FRANCS AT THE OFFICIAL RATE ON THE DATE OF THE INVOICE .
3 AFTER PROCESSING THE CEREALS PURCHASED, VERSELE-LAGA WAS CHARGED A LEVY OF BFR 136 172, WHICH WAS CALCULATED BY APPLYING THE GREEN RATE FOR THE BELGIAN FRANC IN ORDER TO CONVERT THE LEVY INTO THE NATIONAL CURRENCY . SINCE ROBEGRA REFUSED TO PAY THE DIFFERENCE BETWEEN THAT AMOUNT AND THE AMOUNT OF BFR 20 760 PREVIOUSLY WITHHELD FROM THE PURCHASE PRICE, ( NAMELY BFR 20 760 ), VERSELE-LAGA BROUGHT AN ACTION BEFORE THE VREDEGERECHT FOR AN ORDER THAT ROBEGRA SHOULD PAY THE SUM OF BFR 20 760, PLUS INTEREST .
4 SINCE, IN ITS VIEW, THE RESOLUTION OF THE DISPUTE DEPENDED ON THE INTERPRETATION AND THE VALIDITY OF THE RELEVANT COMMUNITY LEGISLATION, THE VREDEGERECHT STAYED THE PROCEEDINGS AND REFERRED THE FOLLOWING QUESTIONS TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING :
"1 . WHICH AGRICULTURAL CONVERSION RATE MUST BE USED IN ORDER TO CALCULATE THE CO-RESPONSIBILITY LEVY WHICH IS PAYABLE PURSUANT TO ARTICLE 2 OF REGULATION ( EEC ) NO 2040/86 BY PERSONS CARRYING OUT THE PROCESSING OPERATIONS REFERRED TO IN ARTICLE 1 ( 2 ) OF THAT REGULATION?
2 . ON THE ASSUMPTION THAT THE AGRICULTURAL CONVERSION RATE FOR THE CURRENCY OF THE COUNTRY IN WHICH PERSONS WHO CARRY OUT THE PROCESSING OPERATIONS REFERRED TO IN ARTICLE 1 ( 2 ) OF REGULATION ( EEC ) NO 2040/86 ARE ESTABLISHED MUST BE USED AND NOT THE AGRICULTURAL CONVERSION RATE FOR THE COUNTRY IN WHICH THE CEREAL PRODUCERS ARE ESTABLISHED, MUST ARTICLE 5 OF REGULATION NO 2040/86 BE INTERPRETED AS MEANING THAT THE WHOLE CO-RESPONSIBILITY LEVY MAY BE PASSED ON BY THOSE PROCESSORS TO THEIR SUPPLIERS?
3 . IS THE CO-RESPONSIBILITY LEVY SYSTEM FOR WHICH THE DETAILED RULES OF APPLICATION ARE LAID DOWN IN REGULATION ( EEC ) NO 2040/86 VALID IF THE ANSWER TO THE SECOND QUESTION IS NEGATIVE?"
5 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE FACTS OF THE THE MAIN PROCEEDINGS, THE RELEVANT COMMUNITY PROVISIONS, THE COURSE OF THE PROCEDURE AND THE OBSERVATIONS SUBMITTED TO THE COURT, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .
THE FIRST QUESTION
6 ESSENTIALLY, THE FIRST QUESTION SEEKS TO ASCERTAIN WHETHER ARTICLE 2 ( 1 ) OF COMMISSION REGULATION NO 2040/86 OF 30 JUNE 1986 LAYING DOWN DETAILED RULES FOR THE APPLICATION OF THE CO-RESPONSIBILITY LEVY IN THE CEREALS SECTOR ( OFFICIAL JOURNAL 1986 L 173, P . 65 ) IS TO BE INTERPRETED AS MEANING THAT THE CO-RESPONSIBILITY LEVY IN THE CEREALS SECTOR MUST BE CALCULATED BY MEANS OF THE AGRICULTURAL CONVERSION RATE APPLICABLE IN THE MEMBER STATE IN WHOSE TERRITORY THE CEREALS ARE FIRST PROCESSED OR BY MEANS OF THE AGRICULTURAL CONVERSION RATE APPLICABLE IN THE MEMBER STATE IN WHICH THE CEREALS ORIGINATE .
7 ACCORDING TO VERSELE-LAGA AND THE PARTIES INTERVENING IN SUPPORT OF ITS CASE IN THE MAIN PROCEEDINGS, THE CONVERSION RATE APPLICABLE IS THE GREEN RATE FOR THE CURRENCY OF THE MEMBER STATE WHERE THE PRODUCER OF THE CEREALS IS ESTABLISHED, THAT IS TO SAY THE MEMBER STATE FROM WHICH THE CEREALS ORIGINATE . THEY MAINTAIN THAT IN PRACTICE THE AMOUNT DEDUCTED FROM THE SUMS DUE TO THE PRODUCER INVARIABLY CORRESPONDS TO THE AMOUNT OF THE LEVY CONVERTED AT THE GREEN RATE FOR THE CURRENCY OF THAT MEMBER STATE . CONSEQUENTLY, IT IS ONLY BY USING THAT RATE WHEN CALCULATING THE LEVY THAT THE AMOUNT TO BE PAID BY THE PROCESSOR CAN BE ADJUSTED IN LINE WITH THE AMOUNT DEDUCTED FROM THE SUMS DUE TO THE PRODUCER .
8 FOR THEIR PART, THE ITALIAN GOVERNMENT AND THE COMMISSION MAINTAIN THAT THE LIABILITY TO PAY THE CO-RESPONSIBILITY LEVY ARISES IN THE MEMBER STATE WHERE THE CEREAL PROCESSOR IS ESTABLISHED AND THAT, CONSEQUENTLY, THE AMOUNT OF THE LEVY MUST BE CALCULATED USING THE AGRICULTURAL CONVERSION RATE APPLICABLE IN THAT STATE .
9 THAT VIEW MUST BE FOLLOWED . ARTICLE 2 ( 1 ) OF REGULATION NO 2040/86 PROVIDES AS FOLLOWS : "THE LEVY SHALL BE PAID BY OPERATORS WHO UNDERTAKE PROCESSING ... THE LEVY SHALL BE PAID TO THE COMPETENT BODY APPOINTED FOR THE PURPOSE BY EACH MEMBER STATE ". AS THE CO-RESPONSIBILITY LEVY IS THEREFORE PAYABLE BY THE PROCESSOR OF THE CEREALS TO THE COMPETENT BODY OF THE MEMBER STATE IN WHICH THE PROCESSING OPERATION TAKES PLACE, IRRESPECTIVE OF THE ORIGIN OF THE CEREALS, IT FOLLOWS THAT THE AMOUNT TO BE PAID MUST BE CONVERTED INTO THE CURRENCY OF THAT MEMBER STATE USING THE GREEN RATE FOR THAT CURRENCY .
10 CONSEQUENTLY, THE REPLY TO THE FIRST QUESTION MUST BE THAT ARTICLE 2 ( 1 ) OF COMMISSION REGULATION NO 2040/86 OF 30 JUNE 1986 MUST BE INTERPRETED AS MEANING THAT THE CO-RESPONSIBILITY LEVY IN THE CEREALS SECTOR MUST BE CALCULATED USING THE AGRICULTURAL CONVERSION RATE APPLICABLE IN THE MEMBER STATE IN WHOSE TERRITORY THE CEREALS WERE FIRST PROCESSED .
THE SECOND QUESTION
11 ESSENTIALLY, THE SECOND QUESTION SEEKS TO ASCERTAIN WHETHER THE COMBINED PROVISIONS OF ARTICLE 4 ( 6 ) OF REGULATION NO 2727/75 OF THE COUNCIL OF 29 OCTOBER 1975 ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS, AS AMENDED BY COUNCIL REGULATION NO 1579/86 OF 23 MAY 1986 ( OFFICIAL JOURNAL 1986 L 139, P . 29 ) AND OF ARTICLE 5 ( 1 ) OF COMMISSION REGULATION NO 2040/86 OF 30 JUNE 1986 ( CITED ABOVE ) ARE TO BE INTERPRETED AS MEANING THAT THE OPERATORS WHO FIRST PROCESS THE CEREALS MUST PASS ON THE WHOLE CO-RESPONSIBILITY LEVY TO THEIR SUPPLIERS .
12 ALL THE PARTIES TO THE CASE WHO SUBMITTED OBSERVATIONS AGREE THAT THE VERY PRINCIPLE OF CO-RESPONSIBILITY, WHEREBY PRODUCERS ARE MADE TO CONTRIBUTE TOWARDS THE COSTS BROUGHT ABOUT BY THEIR OVERPRODUCTION, REQUIRES PROCESSORS FROM WHOM THE LEVY IS DUE TO PASS ON TO PRODUCERS THE WHOLE OF THE AMOUNT PAID BY WAY OF LEVY, BY APPLYING THE SAME CONVERSION RATE AS IS APPLICABLE FOR THE PURPOSES OF THE COLLECTION OF THE LEVY .
13 IN THAT REGARD IT MUST BE POINTED OUT THAT ARTICLE 4 ( 6 ) OF REGULATION NO 2727/75, AS AMENDED, PROVIDES AS FOLLOWS : "THE LEVY SHALL BE PASSED ON TO THE PRODUCER ". FURTHERMORE, ARTICLE 5 ( 1 ) OF REGULATION NO 2040/86 PROVIDES AS FOLLOWS : "OPERATORS WHO CARRY OUT THE OPERATIONS ... SHALL PASS ON THE CO-RESPONSIBILITY LEVY TO THEIR SUPPLIERS . THE LEVY SHALL ALSO BE PASSED ON AT EACH TRANSACTION PRIOR THERETO, AS FAR AS SUPPLY BY THE PRODUCER ".
14 THE NECESSARY INTERPRETATION IN VIEW OF BOTH THE WORDING OF THE THOSE PROVISIONS AND THEIR AIM, WHICH IS TO ENSURE THAT THE LEVY IS NEUTRAL IN ITS EFFECT AS REGARDS CEREAL PROCESSORS, IS THAT THE WHOLE OF THE LEVY MUST BE PASSED ON . THE AMOUNT TO BE PASSED ON TO THE SUPPLIER IS EQUAL TO THE AMOUNT DUE FROM THE CEREAL PROCESSOR, CALCULATED ON THE BASIS OF THE CRITERIA IDENTIFIED IN ANSWERING THE FIRST QUESTION .
15 THE REPLY TO THE SECOND QUESTION MUST THEREFORE BE THAT THE COMBINED PROVISIONS OF ARTICLE 4 ( 6 ) OF REGULATION NO 2727/75 OF THE COUNCIL OF 29 OCTOBER 1975, AS AMENDED BY COUNCIL REGULATION NO 1579/86 OF 23 MAY 1986, AND OF ARTICLE 5 ( 1 ) OF COMMISSION REGULATION NO 2040/86 OF 30 JUNE 1986 ARE TO BE INTERPRETED AS MEANING THAT THE OPERATORS WHO FIRST PROCESS THE CEREALS MUST PASS ON THE WHOLE CO-RESPONSIBILITY LEVY TO THEIR SUPPLIERS .
THE THIRD QUESTION
16 IN VIEW OF THE REPLY GIVEN TO THE SECOND QUESTION THE THIRD QUESTION DOES NOT NEED TO BE ANSWERED .
Decision on costs
COSTS
17 THE COSTS INCURRED BY THE ITALIAN GOVERNMENT AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . AS THE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED, IN THE NATURE OF A STEP IN THE PROCEEDINGS BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS,
THE COURT ( FIFTH CHAMBER )
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE VREDEGERECHT OF THE SECOND CANTON OF THE CITY OF ANTWERP, BY JUDGMENT OF 22 JANUARY 1987, HEREBY RULES :
( 1 ) ARTICLE 2 ( 1 ) OF COMMISSION REGULATION NO 2040/86 OF 30 JUNE 1986 MUST BE INTERPRETED AS MEANING THAT THE CO-RESPONSIBILITY LEVY IN THE CEREALS SECTOR MUST BE CALCULATED USING THE AGRICULTURAL CONVERSION RATE APPLICABLE IN THE MEMBER STATE IN WHOSE TERRITORY THE CEREALS WERE FIRST PROCESSED .
( 2 ) THE COMBINED PROVISIONS OF ARTICLE 4 ( 6 ) OF REGULATION NO 2727/75 OF THE COUNCIL OF 29 OCTOBER 1975, AS AMENDED BY COUNCIL REGULATION NO 1579/86 OF 23 MAY 1986, AND OF ARTICLE 5 ( 1 ) OF COMMISSION REGULATION NO 2040/86 OF 30 JUNE 1986 ARE TO BE INTERPRETED AS MEANING THAT THE OPERATORS WHO FIRST PROCESS THE CEREALS MUST PASS ON THE WHOLE CO-RESPONSIBILITY LEVY TO THEIR SUPPLIERS .