Opinion of Mr Advocate General Darmon delivered on 8 March 1988. - André Thevenot and others v Centrale laitière de Franche-Comté. - Reference for a preliminary ruling: Tribunal de grande instance de Belfort - France. - Additional levy on milk. - Case 61/87.



European Court reports 1988 Page 02375



Opinion of the Advocate-General

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Mr President,

Members of the Court,

The rules for the control of production laid down in Council Regulation No 856/84, ( 1 ) which were intended to re-establish the equilibrium of the milk market, on which there were significant structural surpluses, establish, for a period of five years, an additional levy, in addition to the co-responsibility levy introduced in 1977, on quantities of milk collected in excess of a guaranteed threshold .

In the implementation of that system, commonly referred to as "milk quotas", the determination of the reference quantity is essential inasmuch as the exceeding of that quantity gives rise to the charging of a levy equal to 100% of the target price for the milk collected .

The Member States may choose between two alternatives, formula A and formula B . In the first case, the levy is to be paid by the producer once his deliveries exceed a reference quantity equal to the quantity delivered by him during the reference year chosen by the Member States within the 1981 to 1983 period . Under formula B, applied in France, the reference quantity is granted to creameries and represents the total quantities of milk purchased during a year to be determined within the reference period, France having chosen 1983 . In case of excess, the levy is charged to the purchaser who then passes on the burden thereof to producers who have exceeded the individual quantity which was used to determine the purchaser' s reference quantity .

The proceedings before the national court concern Article 3 ( 3 ) of Council Regulation No 857/84 ( 2 ) which permits, in the context of formulas A

and B, producers whose milk production during the reference year chosen was significantly affected by exceptional events to obtain, on request, reference to another year within the 1981 to 1983 period .

In 1983 France suffered a drought the seriousness of which led the national authorities to adopt inter-ministerial decrees recognizing the existence of natural disasters in the majority of départements on the basis of which a procedure for granting "disaster supplements" was set up .

According to the French Government, the method applied was intended to permit only producers who had suffered damage to obtain another reference year and without giving purchasers supplementary references to be used for unjustified purposes .

For the 1985/86 marketing year, the Centrale laitière de Franche-Comté was charged a levy which it passed on to the plaintiffs in the main proceedings . They contest the method adopted by the French authorities in making the calculation and claim that a correct application of Community rules would not have led to that result .

It is in fact rather difficult to define clearly the dispute before the national court inasmuch as certain of the facts have been the subject of contradictory statements made at the hearing by the French Government and the plaintiffs in the main proceedings, particularly with regard to whether the producers concerned had the full benefit of the option provided for under the Community rules . However, in the context of this reference for a preliminary ruling, it is not for me to make a more detailed analysis of the facts; nor is it for me to consider whether the national method at issue is correct .

Notwithstanding that relative uncertainty concerning the nature of the dispute which the order for reference does not dispel, it appears that the plaintiffs are criticizing two aspects of the method employed . On the one hand, the producers concerned did not obtain the entire benefit of the "substituted" reference year, contrary to the provisions of Article 3 ( 3 ) of the regulation at issue . On the other hand, the rule that under formula B only the purchaser' s reference quantity determines the threshold beyond which the levy is charged has not been complied with .

Like the Commission, I would suggest that the Court reverse the order of the questions . More particularly, I would suggest that the Court consider first the scope of the option provided for in Article 3 ( 3 ), namely whether it implies that the producer' s individual quantity corresponds to the entirety of his production during the "substituted" year . If that question is answered in the affirmative, there is obviously no need to consider whether the fact that producers delivering to the same creamery are allocated separate "disaster percentages" is discriminatory, since the very principle of such a reduction is excluded . It should then be considered whether producers' individual quantities may be transferred within the overall reference quantity of the creamery, the exceeding of the latter being the only event which could give rise to the charging of the levy .

Article 3 ( 3 ) provides that producers whose milk production during the reference year chosen has been affected by exceptional events are to obtain, on request, reference to another calendar reference year within the 1981 to 1983 period .

A provision drafted in those terms necessarily confers a right on the persons concerned . With regard to the precise scope thereof, I would observe, as does the Commission, that the general rules governing the determination of reference quantities, such as the uniform reduction and the variations provided for in Article 2 ( 2 ) of Regulation No 857/84, must be applied to the new reference year .

However, subject to those correcting factors, which must be applied without distinction to all producers, regardless of whether their reference year is the normal one or a substituted one, the individual quantity determined by the application of Article 3 ( 3 ) cannot be subjected to any other reduction . That would be contrary to the terms of that provision .

In the light of the foregoing, it should be pointed out that, in the view of the French Government, which states in its written observations that it considers that that is how the first question should be understood, it should be determined whether the fact that the collection zone of a creamery is situated in an area designated a disaster area by reason of agricultural disasters, entails ipso facto a right to "supplementary references" for all producers affiliated to that creamery regardless of the degree to which they were individually affected by those disasters .

It must be made clear here that only an assessment of the individual position of the producer concerned makes it possible to give him the benefit of the option provided for in Article 3 ( 3 ). Thus, the individual production of the person concerned must have been significantly affected by exceptional events such as those set out in the text of the provision . An administrative procedure certainly cannot exempt individual situations from examination . However, once a producer fulfils the conditions laid down, it would in any event be contrary to the mandatory and precise nature of the provision cited above to allocate to him only a fraction of the year chosen by way of substitution . Moreover, that rule is not contested by the French Government, although the plaintiffs claim that it has not actually been complied with .

It remains to be ascertained whether individual production may be transferred in the context of Fformula B, since the only criterion to be taken into consideration is the exceeding of the purchaser' s reference quantity . Let me state first that that quantity must, if necessary, be increased as a consequence of special situations such as those resulting from the implementation of the measure under consideration . The first paragraph of Article 3 expressly provides that such situations are to be taken into account in determining reference quantities in the context of formulas A and B .

Let me point out immediately that in the context of formula B, in principle, only the exceeding of the purchaser' s reference quantity thus determined causes the levy to be charged . The exceeding of individual quantities is in itself of no consequence . That is the way in which that option has been formulated, as can be seen from the express terms of Article 1 of Regulation No 856/84 :

"Formula B

A levy shall be payable by every purchaser of milk or other milk products on the quantities of milk or milk equivalent which have been delivered to him by a producer and which, during the 12 months concerned, exceed a reference quantity to be determined ."

I would remind the Court that the latter quantity is necessarily equal to the quantity of milk purchased during the reference year, adapted in cases in which Article 3 applies . That being said, in the context of formula B, the producer' s individual quantity makes it possible essentially to calculate the amount of the levy to be passed on to each individual where the creamery' s reference quantity has been exceeded . It is only by way of exception that Regulation No 773/87, ( 3 ) which was adopted after the occurrence of the events in this case, provides that, in the context of formula B, Member States may charge a levy where producers have exceeded their individual quantities by 20 000 litres or 10 %. The fact that such a possibility was made available obviously presupposes that the exceeding of an individual quantity in the context of formula B remains as such normally of no consequence so far as giving rise to payment of the levy is concerned .

Furthermore, it cannot be denied that under formula B producers delivering to the same creamery may take advantage, now subject to Regulation No 773/87, of the fact that other producers delivering to the same creamery have not used their individual quantities, provided that the purchaser' s reference quantity has not been exceeded . However, as the Commission points out, such a possibility cannot give any right of carry-over to the producers concerned . It is an annual, purely arithmetical and wholly uncertain consequence of formula B which has no effect on the determination of individual quantities .

Consequently, I propose that the Court should rule as follows :

A producer who fulfils the conditions laid down in Article 3 ( 3 ) of Regulation No 857/84 is entitled to obtain, on request, an individual quantity equal to the actual quantity he produced during the year which he has chosen as reference year, subject to the application only of those reductions and variations which are applicable without distinction to all producers;

In the context of formula B, only the exceeding of the purchaser' s reference quantity is in principle of such a nature as to entail the charging of the levy .

(*) Translated from the French .

( 1 ) Regulation No 856/84 of 31 March 1984, amending Regulation ( EEC ) No 804/68 on the common organization of the market in milk and milk products ( Official Journal L 90 of 1 April 1984, p . 10 ).

( 2 ) Regulation No 857/84 of 31 March 1984 adopting general rules for the application of the levy referred to in Article 5c of Regulation ( EEC ) No 804/68 in the milk and milk products sector ( Official Journal L 90 of 1 April 1984, p . 13 ).

( 3 ) Regulation No 773/87 of 16 March 1987 ( Official Journal L 78 of 20 March 1987, p . 1 ).