Denkavit Futtermittel GmbH v Finanzamt Warendorf.
Date: 1979-11-15
4 IT IS RIGHT TO RECALL THAT THE MAIN ACTION HAS ALREADY GIVEN RISE TO A REFERENCE FOR A PRELIMINARY RULING MADE BY THE SAME FINANZGERICHT , WHICH WAS THE SUBJECT OF CASE 139/77 IN WHICH THE COURT GAVE JUDGMENT ON 13 JUNE 1978 (( 1978 ) ECR 1317 ). IN THAT JUDGMENT THE COURT , AFTER EXAMINING ( PAGES 1329 TO 1331 ) THE ORIGIN AND SUBSTANCE OF THE COMMUNITY RULES AND THE NATIONAL LAW IN QUESTION ANSWERED THE FOLLOWING QUESTIONS REFERRED TO IT FOR A PRELIMINARY RULING :
' ' 1 . UNDER COMMUNITY LAW DOES THE EXPRESSION ' AGRICULTURAL PRODUCERS '  IN ARTICLE 1 ( 1 ) AND ( 3 ) OF REGULATION ( EEC ) NO 2464/69 INCLUDE INDUSTRIAL LIVESTOCK BREEDERS AND KEEPERS WITHIN THE MEANING OF GERMAN TAX LAW?

2 . IF THE FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE :
ARE ARTICLE 39 AND THE SECOND SUBPARAGRAPH OF ARTICLE 40 ( 3 ) OF THE EEC TREATY AND ARTICLE 1 OF REGULATION ( EEC ) NO 2464/69 OF THE COUNCIL OR ANY OTHER PROVISIONS OF COMMUNITY LAW TO BE INTERPRETED AS MEANING THAT THEY FORBID THE FEDERAL REPUBLIC OF GERMANY , AS A MEMBER STATE OF THE EEC TO WHICH REGULATION ( EEC ) NO 2464/69 WAS ADDRESSED , IN THE EVENT OF THE GRANT OF DIRECT AID BY WAY OF COMPENSATION FOR THE REVALUATION OF THE GERMAN MARK IN RESPECT OF AGRICULTURAL PRODUCTS SUBJECT TO AN ORGANIZATION OF THE MARKET , TO EXCLUDE SPECIFIC CLASSES OF AGRICULTURAL PRODUCERS - IN THIS CASE , INDUSTRIAL LIVESTOCK BREEDERS AND KEEPERS WITHIN THE MEANING OF GERMAN TAX LAW - FROM THE GRANT OF AID?
' '
6 REGARDING THE SECOND QUESTION THE COURT STATED THAT IT MUST BE CONSIDERED WHETHER THE DIFFERENTIATION , FOR THE PURPOSES OF GERMAN TAX LAW , MADE BY THE AUFWERTUNGSAUSGLEICHGESETZ BETWEEN AGRICULTURAL BREEDERS AND KEEPERS ON THE ONE HAND AND INDUSTRIAL BREEDERS AND KEEPERS ON THE OTHER , IS DISCRIMINATORY WITHIN THE MEANING OF ARTICLE 40 ( 3 ) OF THE TREATY . THE COURT GAVE THE FOLLOWING GROUNDS FOR ANSWERING THIS QUESTION IN THE NEGATIVE ( PARA-  GRAPH 17 ):
' ' IT APPEARS FROM THE CASE FILE INTER ALIA THAT , BECAUSE THEY USE FODDER WHICH IS MOSTLY THEIR OWN FARM PRODUCE , AGRICULTURAL LIVESTOCK BREEDERS AND KEEPERS WITHIN THE MEANING OF GERMAN TAX LAW ARE SUBJECT IN PARTICULAR TO THE RISKS INHERENT IN WORKING THE SOIL .

ON THE OTHER HAND , INDUSTRIAL LIVESTOCK BREEDERS AND KEEPERS WITHIN THE MEANING OF GERMAN TAX LAW ARE NOT EXPOSED TO THE SAME RISKS , AS THEY BUY THE FEEDING-STUFFS NEEDED FOR THEIR ANIMALS MOSTLY ON EITHER THE NATIONAL OR THE INTERNATIONAL MARKET , AND IF THEIR NATIONAL CURRENCY IS REVALUED THEY ARE ABLE TO OBTAIN THEM ABROAD AT ADVANTAGEOUS PRICES .

ACCORDINGLY , THE DISTINCTION BETWEEN AGRICULTURAL LIVESTOCK BREEDERS AND KEEPERS AND INDUSTRIAL LIVESTOCK BREEDERS AND KEEPERS , WHICH GERMAN TAX LAW     MAKES BY LAYING DOWN A RATIO BETWEEN THE HEAD OF LIVESTOCK AND THE UTILIZED AGRICULTURAL AREA AND WHICH THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY ADOPTED AS AN OBJECTIVE , ALBEIT UNMODULATED , CRITERION AS REGARDS THE GRANTING OF THE AID WHICH IT IS EMPOWERED TO GRANT BY THE PROVISIONS OF REGULATION NO 2464/69 , CANNOT BE CLASSIFIED AS DISCRIMINATORY . ' '
12 THE COURT CANNOT , WITHIN THE FRAMEWORK OF PROCEEDINGS BROUGHT UNDER ARTICLE 177 OF THE TREATY , SETTLE A DIFFERENCE OF THIS KIND WHICH , LIKE ANY OTHER ASSESSMENT OF THE FACTS INVOLVED , IS WITHIN THE PROVINCE OF THE NATIONAL COURT .
14 AS WAS RECALLED IN THE JUDGMENT GIVEN IN CASE 139/77 , IN THE WORDS OF THE FIRST RECITAL IN THE PREAMBLE TO REGULATION NO 2464/69 , ' ' THE REVALUATION OF THE GERMAN MARK AND THE PRESENT UNALTERED VALUE OF THE UNIT OF ACCOUNT ENTAIL A REDUCTION IN AGRICULTURAL PRICES EXPRESSED IN GERMAN MARKS . . . FROM 1 JANUARY 1970 ; . . . GERMAN AGRICULTURE WILL THEREBY SUFFER A LOSS OF INCOME ' ' . THE LOSSES CONTEMPLATED , WHICH THE REGULATION AIMED TO COMPENSATE , WERE IN THE AGRICULTURAL SECTORS SUCH AS MILK AND CEREALS WHERE AN INTERVENTION SYSTEM APPLIED . THE REVALUATION ALMOST AUTOMATICALLY LED TO A REDUCTION IN AGRICULTURAL PRICES EXPRESSED IN GERMAN MARKS BUT FIXED IN UNITS OF ACCOUNT UNDER THE COMMON AGRICULTURAL POLICY . IT IS PRECISELY IN THESE SECTORS THAT PRODUCTION DEPENDS ON WORKING AN ADEQUATE AMOUNT OF AGRICULTURAL LAND .