Judgment of the Court (Second Chamber) of 15 January 1998. - Hartmut Simon v Hauptzollamt Frankfurt am Main. - Reference for a preliminary ruling: Hessisches Finanzgericht, Kassel - Germany. - Additional milk levy - Date on which it becomes payable - Article 15(4) of Regulation (EEC) No 1546/88 - Meaning of 'any levy amount due'. - Case C-125/96.



European Court reports 1998 Page I-00145



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

Agriculture - Common organisation of the markets - Milk and milk products - Additional milk levy - Choice of Formula A - Levy amount due - Meaning - Amount objectively payable by a producer by reason of the fact that he has actually exceeded his reference quantity - Date on which it becomes payable

(Commission Regulation No 1546/88, Art. 15(4))

Summary

Article 15(4) of Regulation No 1546/88 laying down detailed rules for the application of the additional milk levy, under which purchasers of milk are required to pay to the competent agency any levy amount due, must be construed as meaning that this amount refers, within the context of Formula A providing for the levy to be collected from each milk producer by the purchaser, to the amount objectively payable by a producer by reason of the fact that he has actually exceeded his reference quantity, even where the exact amount can be established only after verification of the quantities delivered, and becomes payable on the date laid down in that provision, that is to say, not more than three months following the end of each 12-month period, namely on the following 30 June.

Parties

In Case C-125/96,

REFERENCE to the Court under Article 177 of the EC Treaty by the Hessisches Finanzgericht, Kassel (Germany), for a preliminary ruling in the proceedings pending before that court between

Hartmut Simon

and

Hauptzollamt Frankfurt am Main

on the interpretation of 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 (OJ 1988 L 139, p. 12),

THE COURT

(Second Chamber),

composed of: R. Schintgen, President of the Chamber, H. Ragnemalm and G.F. Mancini (Rapporteur), Judges,

Advocate General: M.B. Elmer,

Registrar: H. von Holstein, Deputy Registrar,

after considering the written observations submitted on behalf of:

- Mr Simon, by Frank Schulze, Rechtsanwalt, Münster,

- the Commission of the European Communities, by Klaus-Dieter Borchardt, of its Legal Service, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of Mr Simon and the Commission at the hearing on 1 July 1997,

after hearing the Opinion of the Advocate General at the sitting on 17 July 1997,

gives the following

Judgment

Grounds

1 By order of 26 March 1996, received at the Court on 18 April 1996, the Hessisches Finanzgericht (Finance Court, Hesse), Kassel, referred for a preliminary ruling under Article 177 of the EC Treaty two questions on the interpretation of 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 (OJ 1988 L 139, p. 12).

2 Those questions have arisen in a dispute between Mr Simon, a milk producer, and the Hauptzollamt (Principal Customs Office) Frankfurt am Main (`the Hauptzollamt') concerning payment of interest on an amount due in respect of an additional levy and, more particularly, the date on which that amount becomes payable.

3 Article 5c of Regulation (EEC) No 804/68 of the Council of 27 June 1968 on the common organization of the market in milk and milk products (OJ, English Special Edition 1968 (I), p. 176), inserted by Council Regulation (EEC) No 856/84 of 31 March 1984 (OJ 1984 L 90, p. 10), provides that an additional levy is payable, pursuant to Formula A which is applicable in Germany, 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.

4 Article 5c(1) of Regulation No 804/68 is worded in this regard as follows:

`1. ... an additional levy payable by producers ... of cows' milk shall be introduced'.

5 With regard to the collection of amounts due in respect of the additional levy, Article 4a(3a) and the third paragraph of Article 10 of Council Regulation (EEC) No 857/84 of 31 March 1984 adopting general rules for the application of the levy referred to in Article 5c of Regulation No 804/68 (OJ 1984 L 90, p. 13), as amended by Council Regulation (EEC) No 774/87 of 16 March 1987 (OJ 1987 L 78, p. 3), provide that `The levy shall be charged on all quantities in excess of the individual reference quantities, after any corrections have been made'.

6 Article 9 of Regulation No 857/84, as amended by Council Regulation (EEC) No 1305/85 of 23 May 1985 (OJ 1985 L 137, p. 12), provides as follows:

`1. Where formulas A and B are applied, the levy shall be collected by means of annual payments. To this end there shall be adopted, for each person liable, an account after the end of the 12-month period concerned, on the basis of actual excess during this same period beyond his annual reference quantity ...

2. Where Formula A is applied, the levy shall be collected from each producer by the purchaser.'

7 Article 15(2) and (4) of Regulation No 1546/88 provides as follows:

`1. ...

2. Purchasers shall, within 45 days following the end of each 12-month period, transmit to the competent agency a statement indicating:

- in cases where formula A is applied, and separately for each producer concerned:

- the total quantity of milk or milk equivalent delivered during the 12-month period concerned,

- the quantities, if any, of milk or milk equivalent which exceed the buyer's annual reference quantity of the producer concerned,

...

4. The purchasers referred to in paragraphs 1, 2 and 3 shall pay any levy amount due to the competent agency within three months following the end of each 12-month period.

...'

8 Administrative inquiries revealed that Mr Simon had delivered 14 619 kg of milk in excess of his reference quantity over the 12-month period 1988/1989. This fact was not indicated in the purchaser's statements.

9 By decision of 12 November 1993, the Hauptzollamt accordingly fixed the amount due in respect of the additional levy at DM 9 709.94, which Mr Simon paid on 20 December 1993.

10 By decision of 21 June 1994, the Hauptzollamt requested payment of DM 4 274.63 in respect of interest calculated pursuant to Paragraph 14 of the Marktordnungsgesetz (Law on the Common Organization of the Market). For the purpose of that calculation, the Hauptzollamt fixed the period for which interest was due as running from 1 July 1989 to 20 December 1993, the date on which Mr Simon paid the additional levy.

11 Before the Hessisches Finanzgericht, Mr Simon argued that the request that he pay interest was unlawful in the light of the judgment of the Bundesfinanzhof (Federal Finance Court) of 17 August 1993, according to which on 30 June of each year following the end of the preceding milk-marketing year only the amount of additional levy on milk indicated in the purchaser's statement can be regarded as payable, but not that which is the subject of subsequent recovery.

12 Since it formed the view that the resolution of the dispute depended on the interpretation of Article 15(4) of Regulation No 1546/88, the Hessisches Finanzgericht stayed the proceedings and referred the following questions to the Court for a preliminary ruling:

`1. In Article 15(4) of Commission Regulation (EEC) No 1546/88 of 3 June 1988 is "levy amount due" to be interpreted as the amount of additional levy on milk that would be payable if the figures used to determine the levies payable on deliveries in excess of the delivery reference quantity had been compiled correctly and had formed the basis of the purchaser's calculation of the additional levy

or

does that phrase refer only to the amount derived from the figures, whether correct or not, declared by the purchaser and forming the basis of the calculation of the additional levy?

2. If the first interpretation is correct, is the entire amount of additional levy lawfully due payable on the date specified in the Regulation - at that time 30 June -, so that, in the event of part payment resulting from the purchaser's figures being too low, the person liable to pay the additional levy (in Germany the milk producer) must pay from 1 July of that year interest charged under national law on the balance?'

13 According to the order for reference, the Hessisches Finanzgericht interpreted the judgment of the Court of Justice in Case C-352/92 Milchwerke Köln/Wuppertal v Hauptzollamt Köln-Rheinau [1994] ECR I-3385 as meaning that the `amount due' under Article 15(4) of Regulation No 1546/88 must be interpreted as meaning the amount objectively payable by the producer no more than three months after the end of each 12-month period, namely by the following 30 June; the Hessisches Finanzgericht therefore takes the view that this date is also that on which amounts of the levy subsequently claimed fall due.

Admissibility

14 As a preliminary point, Mr Simon takes the view that the request for a preliminary ruling is inadmissible since the national court has failed to demonstrate that an interpretation of Article 15(4) of Regulation No 1546/88 is necessary in order to decide when a milk producer becomes liable to pay the additional levy. He argues that, according to its wording, Article 15(4) refers only to the obligation to pay imposed on the purchaser.

15 Suffice it to note in this regard that it is settled case-law that, where the questions submitted by the national court concern the interpretation of a provision of Community law, the Court of Justice is in principle bound to give a ruling (Case C-134/94 Esso Española v Comunidad Autónoma de Canarias [1995] ECR I-4223 and Case C-125/94 Aprile v Amministrazione delle Finanze dello Stato [1995] ECR I-2919, paragraph 17). A request for a preliminary ruling from a national court may be rejected only if it is quite obvious that the interpretation of Community law sought by that court bears no relation to the actual nature of the case or the subject-matter of the main action (Case C-129/94 Ruiz Bernáldez [1996] ECR I-1829, paragraph 7).

16 It is indisputable that Article 15(4) of Regulation No 1546/88 forms part of the Community rules on the additional levy and that it lays down the detailed rules for determining the amount payable in that regard by the person who is liable.

17 The questions referred should for that reason be answered.

Substance

18 By its two questions, which should be examined together, the Hessisches Finanzgericht is essentially asking whether Article 15(4) of Regulation No 1546/88 must be construed as meaning that the levy amount due relates, within the context of Formula A, to the amount objectively payable by a milk producer by reason of the fact that he has actually exceeded his reference quantity, even though the exact amount is established only after verification of the quantities delivered, and becomes payable on the date specified by that provision, that is to say, at the latest on 30 June of each year following a given 12-month period.

19 It should first be noted that, within the context of Formula A of the additional levy scheme, Article 5c(1) of Regulation No 804/68 lays down the principle that the milk producer alone is responsible if the reference quantity is exceeded and is for that reason solely liable for payment of the additional levy.

20 In contrast, as the Court stated in paragraphs 15 and 16 of its judgment in Milchwerke Köln/Wuppertal, cited above, a milk purchaser is not liable to pay the additional levy and cannot be held liable for payment of that levy under, in particular, Article 15(4) of Regulation No 1546/88, which requires purchasers to pay over to the competent agency the amount of levy collected from each producer. In this regard, it follows from Article 9 of Regulation No 857/84 that the purchaser is required to draw up an account prior to collection.

21 With regard to the exact amount payable by the producer, Article 9(1) of Regulation No 857/84, along with Article 4a(3a) thereof concerning only the quantities which have been unused and, for that reason, reallocated, sets out the principle that the quantity of milk actually delivered by the producer during the last 12-month period forms the basis for calculating the amount by which the reference quantity has been exceeded; this first quantity of milk is then compared with the individual reference quantity and taken into account in so far as it actually exceeds the latter.

22 This principle is not undermined by the fact that the detailed rules for collection do not include rules governing the case in which the quantity of milk actually delivered does not correspond to that considered by the purchaser for the purposes of the account under Article 9(1) of Regulation No 857/84.

23 The Commission was able to base itself on the premiss that the quantities considered by the purchaser for the purposes of the account under Article 9(1) of Regulation No 857/84 and notified to the competent authority under Article 15(2) of Regulation No 1546/88 would be equivalent to the quantities actually delivered by the producer.

24 However, where there is a discrepancy between the two quantities, nothing can justify a derogation from the principle that only the quantities actually delivered may be taken into consideration.

25 This interpretation is corroborated by Article 15(2) of Regulation No 1546/88, which requires the purchaser to notify the competent authority of the total quantities delivered and of those which exceed the reference quantities. This obligation would be meaningless if the calculation of the amount had to take into account only those quantities indicated by the purchaser. Were such the case, it would be the purchaser, not the competent agency, who would be ultimately responsible for correct payment of the amount due in respect of the additional levy.

26 Under Article 15(4) of Regulation No 1546/88, therefore, the amount due is that which corresponds to the quantities actually delivered by the producer in so far as they do in fact exceed his reference quantity.

27 With regard, finally, to the date on which the amount becomes payable, the rules contain no express information in that regard.

28 Under Article 15(4) of Regulation No 1546/88, however, the purchaser is required to pay to the competent agency the amount of the levy objectively due within three months following the end of the preceding milk-marketing year. The purchaser can comply with his duty under Article 15(4) of Regulation No 1546/88 only after he has himself received that amount from the producer. The latter is therefore required to pay that amount no later than 30 June following the end of the preceding milk-marketing year.

29 In accordance with the views expressed by the national court and the Commission, only an interpretation to the effect that the period within which the producer must pay expires at the latest on 30 June following the end of the preceding milk-marketing year can guarantee that producers will be treated equally in regard to the financial burden in cases where reference quantities have been exceeded. Thus, producers from whom part of the amount objectively due has in fact, because of a miscalculation, been collected through subsequent recovery are unable to benefit from the delay in payment in so far as, after the date on which the period set in Article 15(4) of Regulation No 1546/88 has expired, they are subject to default interest.

30 In the light of the foregoing, the answer to the questions submitted must be that Article 15(4) of Regulation No 1546/88 must be construed as meaning that the amount of levy due refers, within the context of Formula A, to the amount objectively payable by a milk producer by reason of the fact that he has actually exceeded his reference quantity even where the exact amount can be established only after verification of the quantities delivered, and becomes payable on the date laid down in that provision, that is to say, not more than three months following the end of each 12-month period, namely on the following 30 June.

Decision on costs

Costs

31 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

Operative part

On those grounds,

THE COURT

(Second Chamber),

in answer to the questions referred to it by the Hessisches Finanzgericht, Kassel, by order of 26 March 1996, hereby rules:

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 amount of levy due refers, within the context of Formula A, to the amount objectively payable by a milk producer by reason of the fact that he has actually exceeded his reference quantity even where the exact amount can be established only after verification of the quantities delivered, and becomes payable on the date laid down in that provision, that is to say, not more than three months following the end of each 12-month period, namely on the following 30 June.