1BY DENKAVIT V FINANZAMT WARENDORF AN ORDER OF 26 SEPTEMBER 1977 WHICH WAS RECEIVED AT THE COURT ON 16 NOVEMBER 1977 THE FINANZGERICHT MUNSTER SUBMITTED , PURSUANT TO ARTICLE 177 OF THE EEC TREATY , A SERIES OF QUESTIONS ON THE INTERPRETATION OF THE CONCEPT OF AN ' ' AGRICULTURAL PRODUCER ' ' AS WELL AS OF ARTICLE 39 AND THE SECOND SUBPARAGRAPH OF ARTICLE 40 ( 3 ) OF THE TREAY AND OF CERTAIN PROVISIONS OF REGULATION NO 2464/69 OF THE COUNCIL OF 9 DECEMBER 1969 ON MEASURES TO BE TAKEN IN AGRICULTURE AS A RESULT OF THE REVALUATION OF THE GERMAN MARK ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1969 ( II ), P . 527 ).
2IT EMERGES FROM THE CASE FILE THAT THE MAIN ACTION ORIGINATES IN THE REFUSAL BY THE FINANZAMT WARENDORF , THE DEFENDANT IN THE MAIN ACTION , TO ALLOW THE APPLICATION FOR AID UNDER THE GERMAN LAW ADOPTED PURSUANT TO THE SAID REGULATION WHICH WAS SUBMITTED BY THE COMPANY , THE PLAINTIFF IN THE MAIN ACTION , WHICH ENGAGES IN PRODUCING FEEDING-STUFFS AND IN FATTENING CALVES ON SUBSTITUTE MILK-BASED FODDER WHICH IT PRODUCES ITSELF . THE DEFENDANT IN THE MAIN ACTION BASED ITS REFUSAL TO GRANT THE AID APPLIED FOR BY THE PLAINTIFF COMPANY ON THE FACT THAT , SINCE THE COMPANY DID NOT HAVE ANY AGRICULTURAL LAND FOR THE PURPOSE OF FATTENING ITS CALVES , IT CONSTITUTED NOT AN AGRICULTURAL UNDERTAKING WITHIN THE MEANING OF GERMAN TAX LAW , TO WHICH THE PREVIOUSLY MENTIONED LAW REFERS , BUT RATHER AN INDUSTRIAL UNDERTAKING .
3IN ORDER TO ANSWER THE QUESTIONS ASKED , IT IS NECESSARY FIRST TO CONSIDER THE ORIGIN AND CONTENT OF THE COMMUNITY RULES AND , TO THE EXTENT TO WHICH IT APPEARS FROM THE CASE FILE , OF THE NATIONAL LEGISLATION AT ISSUE .
4BY JUDGMENT OF 13 . 6 . 1978 - CASE 139/77 A DECISION OF 24 OCTOBER 1969 THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY REVALUED THE GERMAN MARK AS FROM 27 OCTOBER 1969 BY 8.5 % IN RELATION TO ITS OFFICIAL PARITY . THE GERMAN GOVERNMENT AND THE COMMUNITY THEN FACED THE PROBLEM OF COMPENSATION FOR THE LOSSES OF INCOME RESULTING FOR GERMAN AGRICULTURE - IN PARTICULAR FOR GERMAN PRODUCERS OF AGRICULTURAL PRODUCTS FOR WHICH THERE WAS AN INTERVENTION SYSTEM , SUCH AS CEREALS AND MILK PRODUCTS - FROM THE FACT THAT EUROPEAN AGRICULTURAL PRICES WERE EXPRESSED IN A COMMON UNIT OF ACCOUNT WHICH , FOLLOWING THE REVALUATION , WAS DEVALUED IN TERMS OF THE NATIONAL CURRENCY . FOLLOWING A MEETING OF THE COUNCIL ON 9 DECEMBER 1969 , THE COUNCIL ADOPTED REGULATION NO 2464/69 OF THAT DATE .
5IN THE WORDS OF THE FIRST RECITAL IN THE PREAMBLE TO THE SAID REGULATION , ' ' 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 ' ' . IN THE SECOND AND THIRD RECITALS IN THE PREAMBLE TO THE REGULATION IT IS STATED THAT , ' ' ON THE BASIS OF CURRENT DATA ON THE VALUE OF THE UNIT OF ACCOUNT AND ON THE PRICES AND QUANTITIES OF THE AGRICULTURAL PRODUCTS IN QUESTION , SUCH LOSS OF INCOME CAN BE ESTIMATED AT DM 1 700 MILLION A YEAR ' ' , AND THAT ' ' PROVISION SHOULD BE MADE FOR THE FEDERAL REPUBLIC OF GERMANY TO GRANT AID BY WAY OF COMPENSATION FOR SUCH LOSSES IN THE FORM OF DIRECT AID TO AGRICULTURAL PRODUCERS ' ' . ON THE BASIS OF THESE RECITALS , ARTICLE 1 OF THE REGULATION PROVIDES AS FOLLOWS : ' ' 1 . AID GRANTED TO GERMAN AGRICULTURAL PRODUCERS UNDER THE CONDITIONS SET OUT BELOW SHALL BE CONSIDERED TO BE COMPATIBLE WITH THE COMMON MARKET . 2 . SUCH AID MAY BE GRANTED UP TO THE AMOUNT OF DM 1 700 MILLION FOR EACH BUDGETARY YEAR FROM 1970 TO 1973 INCLUSIVE . THE COMMUNITY SHALL CONTRIBUTE TO THE FINANCING OF SUCH AID ON A DECREASING SCALE AS PROVIDED BY ARTICLE 2 . 3 . AID MAY BE GRANTED IN THE FORM OF DIRECT AIDS TO AGRICULTURAL PRODUCERS IN SO FAR AS THEY ARE NOT CALCULATED ON THE BASIS OF THE PRICE OR THE QUANTITY OF THE PRODUCT . AID MAY BE GRANTED PARTLY IN THE FORM OF AN ADVANCE TO THE AGRICULTURAL PRODUCER WHEN HE SELLS HIS PRODUCTS , SUBJECT TO A MAXIMUM OF 3 % OF THE SELLING PRICE , TO BE PAID EITHER BY THE BUYER OR BY AN AGENCY TO BE APPOINTED BY THE COMPETENT NATIONAL AUTHORITIES . 4 . THE FEDERAL REPUBLIC OF GERMANY SHALL TAKE APPROPRIATE STRUCTURAL OR SOCIAL MEASURES TO OFFSET THE DECREASING FINANCIAL SUPPORT FROM THE COMMUNITY . 5 . THE PROCEDURAL PROVISIONS OF ARTICLE 93 OF THE TREATY SHALL APPLY TO THE AID REFERRED TO IN THIS ARTICLE . ' ' BY A DECISION OF 21 JANUARY 1974 - WHICH WAS NOTIFIED TO THE FEDERAL REPUBLIC OF GERMANY ON 24 JANUARY 1974 , BUT NOT PUBLISHED - THE COUNCIL PROLONGED AND AMENDED ARTICLE 1 ( 3 ) OF THE REGULATION INASMUCH AS THE FEDERAL REPUBLIC WAS ' ' PROVISIONALLY AUTHORIZED TO GRANT AID TO AGRICULTURAL PRODUCERS IN THE FORM OF COMPENSATION , PAID TO THE PRODUCER WHEN HE SELLS HIS PRODUCTS , SUBJECT TO MAXIMUM OF 3 % OF THE SELLING PRICE ' ' . IT EMERGES FROM THE SAID DECISION THAT THE AID AS THUS AMENDED MAY BE PAID BY ONE OF THE TWO METHODS PROVIDED IN ARTICLE 1 ( 3 ) OF THE REGULATION .
6ON 23 DECEMBER 1969 THE GERMAN LEGISLATURE , BASING ITSELF ON REGULATION NO 2464/69 , ENACTED THE AUFWERTUNGSAUSGLEICHGESETZ ( A LAW ON COMPENSATION FOR THE EFFECTS OF REVALUATION , ARTICLE 4 OF WHICH AUTHORIZED AGRICULTURAL AND FORESTRY UNDERTAKINGS , WITHIN THE MEANING OF ARTICLE 24 ( 2 ) OF THE UMSATZSTEUERGESETZ ( LAW ON TURNOVER TAX ), TO REDUCE THE AMOUNT ASSESSABLE TO TURNOVER TAX BY 3 % . UNDER ARTICLE 24 ( 2 ) OF THE UMSATZSTEUERGESETZ , ESTABLISHMENTS BREEDING AND KEEPING LIVESTOCK ARE DEEMED TO BE AGRICULTURAL AND FORESTRY UNDERTAKINGS IN SO FAR AS THEIR LIVESTOCK SATISFIES THE CRITERIA OF AGRICULTURAL USE UNDER ARTICLE 51 OF THE BEWERTUNGSGESETZ ( LAW ON VALUATION ). IT EMERGES FROM THE PROVISIONS OF ARTICLE 51 OF THE BEWERTUNGSGESETZ THAT LIVESTOCK SATISFIES THE CRITERIA OF AGRICULTURAL USE IF IN ANY FINANCIAL YEAR THE HEAD OF LIVESTOCK REARED OR KEPT PER HECTARE OF LAND REGULARLY PUT TO AGRICULTURAL USE DOES NOT EXCEED CERTAIN LIMITS .
7THE FIRST QUESTION ASKS WHETHER THE EXPRESSION ' ' AGRICULTURAL PRODUCERS ' ' APPEARING IN ARTICLE 1 ( 1 ) AND ( 3 ) OF REGULATION NO 2464/69 INCLUDES INDUSTRIAL LIVESTOCK BREEDERS AND KEEPERS WITHIN THE MEANING OF GERMAN TAX LAW .
8THE SECOND QUESTION ASKS WHETHER ARTICLE 39 AND THE SECOND SUBPARAGRAPH OF ARTICLE 40 ( 3 ) OF THE TREATY , ARTICLE 1 OF REGULATION NO 2464/69 OR ANY OTHER PROVISIONS OF COMMUNITY LAW FORBID THE FEDERAL REPUBLIC OF GERMANY , AS A STATE TO WHICH THE SAID REGULATION WAS ADDRESSED , 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 THE AID IN QUESTION .
9FOR THE PURPOSE OF GIVING AN ANSWER TO THE NATIONAL COURT , THE TWO QUESTIONS SHOULD BE DEALT WITH TOGETHER .
10THE PLAINTIFF IN THE MAIN ACTION HAS SUBMITTED THAT THE EXPRESSION ' ' AGRICULTURAL PRODUCERS ' ' DESIGNATES A CONCEPT THE CONTENT OF WHICH MUST BE DEFINED BY COMMUNITY LAW . IT HAS BEEN SUBMITTED THAT THIS CONCEPT INCLUDES ALL PRODUCERS OF AGRICULTURAL PRODUCTS WITHIN THE MEANING OF ARTICLE 38 OF THE TREATY AND OF ANNEX II THERETO , WHICH DO NOT MAKE ANY DISTINCTION BETWEEN BREEDERS RUNNING AN AGRICULTURAL UNDERTAKING AND INDUSTRIAL BREEDERS .
11ALTHOUGH IN CERTAIN RESPECTS ARTICLE 38 AND THE RELATED PROVISIONS ALLOW THE SCOPE OF THE AGRICULTURAL PROVISIONS OF THE TREATY TO BE DEFINED , IN OTHER RESPECTS , PARTICULARLY AS REGARDS THE TYPE OF UNDERTAKINGS SUBJECT TO THE PROVISIONS IN QUESTION , THE CONCEPT OF AGRICULTURE IS NOT PRECISELY DEFINED IN THE TREATY . CONSEQUENTLY , FOR THE PURPOSES OF THE AGRICULTURAL RULES DERIVED FROM THE TREATY , IT IS FOR THE COMPETENT AUTHORITIES WHERE NECESSARY TO DEFINE THE SCOPE OF SUCH RULES IN RELATION TO PERSONS AND IN RELATION TO SUBJECT-MATTER . THEREFORE THE SCOPE OF REGULATION NO 2464/69 IS TO BE DEDUCED FROM ITS TERMS AND ITS OBJECTIVES .
12THE PURPOSE OF THE REGULATION AT ISSUE IS TO PROVIDE COMPENSATION FOR LOSSES CAUSED BY THE REDUCTION IN PRICES FOR AGRICULTURAL PRODUCTS , AND IT MAKES NO DISTINCTION BETWEEN METHODS OF PRODUCTION , EVEN IF THE LOSSES WEIGH MORE HEAVILY ON CERTAIN CLASSES OF PRODUCERS . SINCE NEITHER THE CONTEXT NOR THE OBJECTIVES OF THE REGULATION DEMAND A RESTRICTIVE INTERPRETATION , IT IS NOT OUT OF THE QUESTION THAT THE RELATIVELY BROAD EXPRESSION ' ' AGRICULTURAL PRODUCERS ' ' , WHICH IS USED IN THE WORDING OF THE REGULATION , MAY INCLUDE PRODUCTION OF AGRICULTURAL PRODUCTS BY ANY METHOD WHATEVER .
13IT SHOULD BE POINTED OUT THAT THE THIRD RECITAL IN THE PREAMBLE TO REGULATION NO 2464/69 MAKES PROVISION ' ' FOR THE FEDERAL REPUBLIC OF GERMANY TO GRANT AID BY WAY OF COMPENSATION FOR ' ' THE LOSSES IN QUESTION ' ' IN THE FORM OF DIRECT AID TO AGRICULTURAL PRODUCERS ' ' . UNDER ARTICLE 1 ( 1 ) OF THE REGULATION , AID GRANTED TO GERMAN AGRICULTURAL PRODUCERS UNDER THE CONDITIONS SET OUT IN THE FOLLOWING PARAGRAPHS OF THAT ARTICLE ' ' SHALL BE CONSIDERED TO BE COMPATIBLE WITH THE COMMON MARKET ' ' . IT FOLLOWS THAT THE REGULATION AT ISSUE DOES NOT PLACE A DUTY ON THE FEDERAL REPUBLIC OF GERMANY TO GRANT THE AID , BUT MERELY EMPOWERS IT TO DO SO , ALWAYS HOWEVER WITHIN THE LIMITS IMPOSED BY COMMUNITY LAW AND IN PARTICULAR BY THE REGULATION ITSELF .
14ACCORDINGLY , IT SHOULD BE CONSIDERED WHETHER THE FEDERAL REPUBLIC OF GERMANY EXCEEDED THOSE LIMITS BY EXCLUDING INDUSTRIAL LIVESTOCK BREEDERS AND KEEPERS WITHIN THE MEANING OF GERMAN TAX LAW FROM RECEIVING THE AID REFERRED TO IN THE REGULATION .
15IN PROVIDING IN PARAGRAPH 1 THAT THE OBJECTIVES OF THE COMMON AGRICULTURAL POLICY SHALL BE INTER ALIA TO ENSURE A FAIR STANDARD OF LIVING FOR THE AGRICULTURAL COMMUNITY , IN PARTICULAR BY INCREASING THE INDIVIDUAL EARNINGS OF PERSONS ENGAGED IN AGRICULTURE , ARTICLE 39 DOES NOT EXCLUDE THE POSSIBILITY OF DIFFERENCES OF TREATMENT BETWEEN THE VARIOUS SECTORS OF AGRICULTURAL ACTIVITY , ALWAYS PROVIDED THAT SUCH DIFFERENCES OF TREATMENT ARE NOT ARBITRARY AND ARE BASED ON OBJECTIVE CRITERIA . THE NEED FOR DIFFERENT TREATMENT OF VARIOUS CLASSES OF THE AGRICULTURAL COMMUNITY , IN APPROPRIATE CASES , IS ACKNOWLEDGED IN ARTICLE 39 ( 2 ), WHICH PROVIDES THAT ' ' IN WORKING OUT THE COMMON AGRICULTURAL POLICY . . . ACCOUNT SHALL BE TAKEN OF : ( A ) THE PARTICULAR NATURE OF AGRICULTURAL ACTIVITY , WHICH RESULTS FROM THE SOCIAL STRUCTURE OF AGRICULTURE AND FROM STRUCTURAL AND NATURAL DISPARITIES BETWEEN THE VARIOUS AGRICULTURAL REGIONS ' ' . ALTHOUGH ARTICLE 40 ( 3 ) OF THE TREATY PROHIBITS ANY DISCRIMINATION BETWEEN PRODUCERS WITHIN THE COMMUNITY , AND EVEN WITHIN A SINGLE COUNTRY OF THE COMMUNITY , DIFFERENT TREATMENT COULD BE REGARDED AS CONSTITUTING PROHIBITED DISCRIMINATION ONLY IF IT APPEARS TO BE ARBITRARY .
16ACCORDINGLY , 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 .
17IT 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 .
18IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT THE ANSWER TO THE NATIONAL COURTS SHOULD BE THAT NEITHER THE PROVISIONS OF THE TREATY NOR ARTICLE 1 OF REGULATION NO 2464/69 NOR THE PROVISIONS OF THE COUNCIL DECISION OF 21 JANUARY 1974 FORBADE THE FEDERAL REPUBLIC OF GERMANY TO EXCLUDE INDUSTRIAL LIVESTOCK BREEDERS OR KEEPERS FROM THE AID REFERRED TO IN THE SAID REGULATION .
19CONSEQUENTLY , THE THIRD QUESTION HAS BECOME PURPOSELESS .