CELEX: 62003CO0069
Language: en
Date: 2004-01-08 00:00:00
Title: Order of the Court (Second Chamber) of 8 January 2004. # Caseificio Cooperativo di Cornedo Soc.coop.arl v Ministero delle Finanze. # Reference for a preliminary ruling: Corte d'appello di Venezia - Italy. # Article 104(3) of the Rules of Procedure - Regulations (EEC) Nos 1079/77 and 1822/77 - Co-responsibility levy on cows' milk - Concept of delivery to a purchaser. # Case C-69/03.

Case C-69/03 Caseificio Cooperativo di Cornedo Soc. coop. arlvMinistero delle Finanze(Reference for a preliminary ruling from the Corte d'appello di Venezia)
         
            «(Article 104(3) of the Rules of Procedure – Regulations (EEC) Nos 1079/77 and 1822/77 – Co-responsibility levy on cows' milk – Delivery to a purchaser)»
            
               
                  Order of the Court (Second Chamber), 8 January 2004  
                     
                
               
            
                   
               
               
            
            Summary of the Order
         
         
                  
                  Agriculture – Common organisation of the markets – Milk and milk products – Co-responsibility levy – Scope – All deliveries by a producer to another person, regardless of the legal nature of the relationship on the basis of which the
                     deliveries are made
                  (Council Regulation No 1079/77, Art. 1(1); Commission Regulation No 1822/77, Art. 1(2)) Regulations Nos 1079/77 on a co-responsibility levy and on measures for expanding the markets in milk and milk products and
         1822/77 laying down detailed rules for the collection of the co-responsibility levy introduced in respect of milk and milk
         products apply to all deliveries of cows' milk made by a producer to another person, regardless of the legal nature of the
         relationship on the basis of which the deliveries are made.see para. 23, operative part
      

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            ORDER OF THE COURT (Second Chamber)8 January 2004  (1)
            
            
         
         
            
         
            ((Article 104(3) of the Rules of Procedure – Regulations (EEC) Nos 1079/77 and 1822/77 – Co-responsibility levy on cows' milk – Concept of delivery to a purchaser))
            
          In Case C-69/03, 
          REFERENCE to the Court under Article 234 EC by the Corte d'Appello di Venezia (Italy) for a preliminary ruling in the proceedings
         pending before that court between
         
         
         
         Caseificio Cooperativo di Cornedo Soc. coop. arl
         
         and
         
         Ministero delle Finanze,
         
          on the interpretation of Council Regulation (EEC) No 1079/77 of 17 May 1977 on a co-responsibility levy and on measures for
         expanding the markets in milk and milk products (OJ 1977 L 131, p. 6) and Commission Regulation (EEC) No 1822/77 of 5 August
         1977 laying down detailed rules for the collection of the co-responsibility levy introduced in respect of milk and milk products
         (OJ 1977 L 203, p. 1),
         
         
         
         
         THE COURT (Second Chamber),
         
          composed of: V. Skouris, acting for the President of the Second Chamber, R. Schintgen and N. Colneric (Rapporteur), Judges, 
         
          Advocate General: D. Ruiz-Jarabo Colomer, Registrar: R. Grass, 
         
         having informed the national court that the Court proposes to give its decision by way of a reasoned order in accordance with
            Article 104(3) of its Rules of Procedure, having invited the persons referred to in Article 23 of the Statute of the Court
            of Justice to submit any observations which they might wish to make in this regard, after hearing the Advocate General, makes
            the following 
         
         
         
         Order
         1
            
          By order of 6 November 2002, received at the Court on 17 February 2003, the Corte d'Appello di Venezia (Court of Appeal, Venice)
         referred to the Court for a preliminary ruling under Article 234 EC a question on the interpretation of Council Regulation
         (EEC) No 1079/77 of 17 May 1977 on a co-responsibility levy and on measures for expanding the markets in milk and milk products
         (OJ 1977 L 131, p. 6) and Commission Regulation (EEC) No 1822/77 of 5 August 1977 laying down detailed rules for the collection
         of the co-responsibility levy introduced in respect of milk and milk products (OJ 1977 L 203, p. 1). 
         
         
         2
            
          That question was raised in appeal proceedings seeking the setting aside of a judgment of the Tribunale di Venezia (Venice
         District Court) (Italy) of 30 January 1987 concerning an order for payment served on the company Caseificio Cooperativo di
         Cornedo Soc. coop. arl (
         Caseificio Cooperativo) by the Ministero delle Finanze (Finance Ministry) relating to payment of a co-responsibility levy on cows' milk and also
         to payment of an additional levy for non-payment of the co-responsibility levy. 
         
            
               The relevant provisions of Community law
            
         
         3
            
          Regulation No 1079/77 introduced a co-responsibility levy uniformly imposed on all quantities of milk delivered to dairies
         and on some farm sales of milk products (
         the co-responsibility levy).  In Regulation No 1822/77 the Commission laid down the detailed implementing rules for the collection of that levy. 
         
         
         4
            
          In its original version Article 1(1) of Regulation No 1079/77 provided that  
         during the period from 16 September 1977 to the end of the 1979/80 milk year a co-responsibility levy shall be due from all
         milk producers on milk supplied to an undertaking treating or processing milk and, in the cases defined in Article 3(2), on
         milk sold by the producer in the form of other milk products. 
         
         
         5
            
          Article 1(1) and (2) of Regulation No 1822/77 provides: 
         
         1.
          The co-responsibility levy shall be due from all milk producers whose farms are not situated in one of the regions referred
         to in Article 1(2) of Regulation (EEC) No 1079/77 in respect of all cows' milk bought from them in the natural state by an
         undertaking treating or processing milk and delivered on or after 16 September 1977.
         
         
         2.
          For the purposes of this Regulation:
         
         
         (a)
          an undertaking treating or processing milk means both:  
         
         
         
               ─
                   a purchasing body which is an association treating or processing milk, 
                a purchasing body which is an association treating or processing milk, 
         
         
         
         
               ─
                   an undertaking or association which purchases milk, but which restricts its activities to collection, storage and cooling
                  operations or to one of these operations; 
                an undertaking or association which purchases milk, but which restricts its activities to collection, storage and cooling
         operations or to one of these operations; 
         
         
         
         (b)
          delivery means any delivery, whether transport is carried out by the producer himself, by the undertaking purchasing the milk
         or through a third party
         . 
         
         
         6
            
          That co-responsibility levy scheme was superseded by the additional milk levy scheme introduced by Council Regulation (EEC)
         No 856/84 of 31 March 1984 amending Regulation (EEC) No 804/68 on the common organisation of the market in milk and milk products
         (OJ 1984 L 90, p. 10), and 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 (EEC) No 804/68 in the milk and milk products sector (OJ 1984 L 90, p. 13).
          That latter scheme was itself amended and extended by Council Regulation (EEC) No 3950/92, of 28 December 1992, establishing
         an additional levy in the milk and milk products sector (OJ 1992 L 405, p. 1). 
         
         
         7
            
          The first paragraph of Article 1 of Regulation No 3950/92 provides that  
         [f]or seven new consecutive periods of twelve months commencing on 1 April 1993, an additional levy shall be payable by producers
         of cows' milk on quantities of milk or milk equivalent delivered to a purchaser or sold directly for consumption during the
         12-month period in question in excess of a quantity to be determined.
         
         
         8
            
          Under Article 2(2) of that Regulation,  
         [a]s regards deliveries, before a date and in accordance with detailed rules to be laid down, the purchaser liable for the
         levy shall pay to the competent body of the Member State the amount payable, which he shall deduct from the price of milk
         paid to producers who owe the levy or, failing this, collect by any appropriate means.
         
         
         9
            
          In accordance with Article 9 of Regulation No 3950/92: For the purposes of this Regulation:...
         
         (c)
          producer means a natural or legal person or a group of natural or legal persons farming a holding within the geographical territory
         of the Community: 
         
         
         
         ─
             selling milk or other milk products directly to the consumer, 
          selling milk or other milk products directly to the consumer, 
         
         
         
         ─
             and/or supplying the purchaser; 
          and/or supplying the purchaser; 
         ...
         
         (e)
          purchaser means an undertaking or grouping which purchases milk or other milk products from a producer: 
         
         
         
               ─
                   to treat or process them, 
                to treat or process them, 
         
         
         
         
               ─
                   to sell them to one or more undertakings treating or processing milk or other milk products. 
                to sell them to one or more undertakings treating or processing milk or other milk products. 
         
         ...
         The dispute in the main proceedings and the question referred for a preliminary ruling
         
         10
            
          The documents before the Court show that, by the judgment against which an appeal has been brought before the court making
         the reference, the Tribunale di Venezia upheld Caseificio Cooperativo's appeal against the order served on it by the tax authorities
         enjoining it to pay a sum supposedly due in respect of the co-responsibility levy and of an additional levy for non-payment
         of that levy and ordered the tax authorities to repay the sums received on execution of that order. 
         
         
         11
            
          The Tribunale di Venezia so ruled on the grounds that the provisions of national law, that is to say, of Decree-Law No 282
         of 16 June 1978, converted into Law No 426 of 1 August 1978, implementing the provisions of Community law establishing the
         co-responsibility levy, ought not to have been applied.  The Tribunale ruled against the application of that law inasmuch
         as it included among the cases where producers were subject to the co-responsibility levy deliveries made by producers of
         milk to a cooperative the members of which were those same producers.  The Tribunale considered that amounted to a substantial
         enlargement of the ambit of that levy in relation to the provisions of Community law. 
         
         
         12
            
          The Corte d'Appello di Venezia states in the grounds of its order for reference that a different chamber of that court has
         set aside the judgment given at first instance on the ground that the wording of the Community regulations applicable did
         not justify so restrictive an interpretation since, in making provision for various instances of transfers of milk and milk
         products, those regulations made specific mention only of  
         sales in relation to the first case, whilst on the other hand to identify the basis of assessment they used the more general terms
         of  
         supply and  
         delivery.  In that way the regulations support the conclusion ─ borne out by the greater consistency of such an interpretation with
         the Community legislature's declared intention, by establishing the co-responsibility levy, of limiting the production of
         milk ─ that the Community regulations applied different rules to the various instances considered, including in the basis
         of assessment any transaction transferring milk, regardless of the legal form under which that transaction was carried out.
         
         
         
         13
            
          The Corte Regolatrice (Italy) set aside that last-mentioned decision on the ground that the court of first instance had correctly
         interpreted and applied the provisions of Community law.  It held that those provisions are clear and that the questions raised
         in this case concern the application and not the interpretation of those rules, so that it was not necessary to refer the
         matter to the Court of Justice. 
         
         
         14
            
          The Chamber of the Corte d'Appello di Venezia to which the case has been referred back considers that the crucial issue in
         this dispute is not the actual identifying of the economic operators subject to the co-responsibility levy or the legal classifying
         of the acts subject in the circumstances of the present case to that levy, in order to establish whether or not they are among
         those subject in theory to the levy, in which hypothesis the only question would be one regarding the application of the Community
         rules.  The issue, in that court's view, is rather to identify the activities which are subject to the co-responsibility levy
         and, in consequence, the dispute concerns the legislative substance of the Community rules. 
         
         
         15
            
          The Corte d'Appello di Venezia has therefore decided to stay proceedings and to refer the following question to the Court
         for a preliminary ruling: Do Regulations (EEC) No 1079/77 and No 1822/77, which establish a co-responsibility levy on cows' milk, apply to all deliveries
         of cows' milk by the producer to another person, regardless of the legal nature of the relationship on the basis of which
         the deliveries are made or only to deliveries which result in the acquisition of title in the product by the economic trader
         to whom the product is delivered?
         Concerning the question referred
         
         16
            
          Taking the view that the answer to that question may clearly be inferred from its judgment in Case C-288/97  
         Consorzio Caseifici dell'Altopiano di Asiago [1999] ECR I-2575, the Court, in accordance with Article 104(3) of its Rules of Procedure, informed the national court that
         it proposed to give its decision by way of a reasoned order and invited the persons referred to in Article 23 of the Statute
         of the Court of Justice to submit any observations which they might wish to make in that regard. 
         
         
         17
            
          The Italian Government and the Commission, which alone responded to the Court's invitation to submit observations, have not
         raised any objection to the Court's intending to give its decision by reasoned order referring to its case-law and, in particular,
         to its judgment in  
         Consorzio Caseifici dell'Altopiano di Asiago. 
         
         
         18
            
          In that judgment the Court answered the question whether, on a proper interpretation of Articles 2 and 9 of Regulation No
         3950/92, any recipient of a delivery of milk may be regarded as a  
         purchaser liable to pay the additional levy, regardless of the legal nature of the relationship on the basis of which the delivery
         is made and, in particular, a group of cooperative societies may be regarded as a purchaser of the milk delivered, but not
         sold, to it by the members of that cooperative. 
         
         
         19
            
          That question was raised in respect of the Consorzio fra i Caseifici dell'Altopiano di Asiago (
         the Consortium), a body comprising various cooperative societies which are producers of milk.  In contesting an administrative penalty imposed
         on account of irregularities in the keeping of the register of suppliers and of failure to set aside the additional levy in
         relation to those members of the Consortium who had exceeded their milk quota, the Consortium argued that it could not be
         regarded as a purchaser within the meaning of the Community rules. 
         
         
         20
            
          In paragraph 25 of its judgment in  
         Consorzio Caseifici dell'Altopiano di Asiago, the Court held that in accordance with Articles 2(2) and 9(e) of Regulation No 3950/92, the term  
         purchaser applies to any undertaking which acquires milk from a producer under a contract, irrespective of the manner in which the
         producer is paid, for the purpose either of treating or processing the milk itself or of transferring it to an undertaking
         for treatment or processing. 
         
         
         21
            
          It follows that deliveries made to a purchaser within the meaning of that Regulation need not necessarily involve the acquisition
         of title in order to give rise to additional levies. 
         
         
         22
            
          The case-law on the additional milk levy scheme as laid down in Regulation No 3950/92 holds good also for the co-responsibility
         levy established by Regulations No 1079/77 and No 1822/77.  Irrespective of all the differences between the two schemes, the
         levy is in both cases based on the quantities of milk delivered by a producer to a purchaser. 
         
         
         23
            
          In light of the foregoing considerations, the answer to be given to the question referred must be that Regulations No 1079/77
         and 1822/77 apply to all deliveries of cows' milk made by a producer to another person, regardless of the legal nature of
         the relationship on the basis of which the deliveries are made. 
         
         Costs
         24
            
          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.  Since these proceedings are, for the parties to the main proceedings, a step in the proceedings
         pending before the national court, the decision on costs is a matter for that court. 
         
         On those grounds, 
         
         
         
            
            THE COURT (Second Chamber),
         
         
          in answer to the question referred to it by the Corte d'Appello di Venezia by order of 6 November 2002, hereby rules:
         Council Regulation (EEC) No 1079/77 of 17 May 1977 on a co-responsibility levy and on measures for expanding the markets in
            milk and milk products and Commission Regulation (EEC) No 1822/77 of 5 August 1977 laying down detailed rules for the collection
            of the co-responsibility levy introduced in respect of milk and milk products apply to all deliveries of cows' milk made by
            a producer to another person, regardless of the legal nature of the relationship on the basis of which the deliveries are
            made. Luxembourg, 8 January 2004. 
         
         
         
                  R. Grass 
               
               
                  V. Skouris  
               
            
         
         
         
                  Registrar
               
               
                  President
               
            
      
      
          1 –
            
             Language of the case: Italian.