Court of Justice of the European Communities (including Court of First Instance Decisions)

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Agriculture ° Common organization of the markets ° Milk and milk products ° Additional levy on milk ° Producer having exceeded one of his reference quantities ° Obligation to pay the levy objected to on the ground that there was no overproduction at national level, a view arrived at by comparing the quantities placed on the market and the sum of the two reference quantities, one in respect of deliveries and the other in respect of direct sales, allocated to the Member State in question ° Objection not permissible
(Regulation No 804/68 of the Council, Art. 5c(7), as amended by Regulation No 856/84 and subsequently by Regulation No 1298/85, and Council Regulation No 857/84, Art. 6a, as amended by Regulation No 590/85)

Within the system of additional milk levies, the total reference quantities allocated to a Member State in respect of direct sales and deliveries are independent of each other. A producer who has exceeded one of his individual reference quantities cannot therefore, in order to avoid the obligation to pay the levy by reason of having exceeded that quantity, rely on the fact that there was no overproduction at national level in so far as the total quantity produced remained below the sum of the two overall reference quantities available to the Member State in question.
This distinction between the two types of reference quantities is not affected by Article 5c(7) of Regulation No 804/68, as amended by Regulation No 856/84 and subsequently by Regulation No 1298/85, which, under certain circumstances, allows the overall reference quantity for deliveries available to a Member State to be adjusted in order to take account of structural changes affecting direct sales and deliveries, without, however, resulting in an increase in the sum total of that Member State' s reference quantities, or by Article 6a of Regulation No 857/84, as amended by Regulation No 590/85, which allows individual producers with two reference quantities to obtain an increase in one of those quantities, subject to a corresponding reduction in the other quantity, in order to adapt to changes in their marketing requirements.

In Case C-196/94,
REFERENCE to the Court under Article 177 of the EC Treaty by the Judicial Committee of the Conseil d' État, Luxembourg, for a preliminary ruling in the proceedings pending before that court between
Catherine Schiltz-Thilmann
and
The Minister of Agriculture
on the interpretation of 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), as amended by Council Regulation (EEC) No 856/84 of 31 March 1984 (OJ 1984 L 90, p. 10) and Council Regulation (EEC) No 1298/85 of 23 May 1985 (OJ 1985 L 137, p. 5), and of Article 6a 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 (EEC) No 804/68 in the milk and milk products sector (OJ 1984 L 90, p. 13), as amended by Council Regulation (EEC) No 590/85 of 26 February 1985 (OJ 1985 L 68, p. 1),
THE COURT (Second Chamber),
composed of: G. Hirsch, President of the Chamber, G.F. Mancini (Rapporteur) and F.A. Schockweiler, Judges,
Advocate General: G. Cosmas,
Registrar: R. Grass,
after considering the written observations submitted on behalf of:
° Mrs Schiltz-Thilmann, by Fernand Entringer, of the Luxembourg Bar,
° the Grand Duchy of Luxembourg, by Ferdinand Hoffstetter, Conseiller de direction 1ère classe, acting as Agent,
° the Commission of the European Communities, by Gérard Rozet, Legal Adviser, and Gérard Berscheid, of the Legal Service, acting as Agents,
having regard to the report of the Judge-Rapporteur,
after hearing the Opinion of the Advocate General at the sitting on 28 September 1995,
gives the following
Judgment

1 By judgment of 6 July 1994, received at the Court on 7 July 1994, the Judicial Committee of the Luxembourg Conseil d' État referred to the Court for a preliminary ruling under Article 177 of the EC Treaty a question concerning the interpretation of 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), as amended by Council Regulation (EEC) No 856/84 of 31 March 1984 (OJ 1984 L 90, p. 10) and Council Regulation (EEC) No 1298/85 of 23 May 1985 (OJ 1985 L 137, p. 5), and of Article 6a 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 (EEC) No 804/68 in the milk and milk products sector (OJ 1984 L 90, p. 13), as amended by Council Regulation (EEC) No 590/85 of 26 February 1985 (OJ 1985 L 68, p. 1).
2 That question arose in a dispute between Mrs Schiltz-Thilmann, the owner of a farm producing cow' s milk, and the Luxembourg Minister of Agriculture (hereinafter "the Minister") concerning a decision requiring Mrs Schiltz-Thilmann to pay an additional levy for exceeding her reference quantity in respect of direct sales of cow' s milk for the 1991/92 marketing year.
3 With a view to limiting the production of milk and milk products within the Community, Article 5c of Regulation No 804/68 (as amended inter alia by Regulation No 856/84) introduced an additional levy payable by producers or purchasers of milk on quantities sold or purchased in excess of a specified reference quantity. For the purposes of the additional levy a distinction is made between deliveries to dairies or other undertakings and direct sales to consumers.
4 With regard to deliveries to dairies or other undertakings, Article 5c(1) provides Member States with a choice between two formulas for the application of the levy. Under formula "A", the levy is payable by the producer, while under formula "B", adopted by the Grand Duchy of Luxembourg, the additional levy for exceeding the reference quantity is payable by the purchaser.
5 So far as direct sales to consumers are concerned, Article 5c(2) provides that the levy is payable by every producer on the quantities sold for direct consumption in excess of the reference quantity.
6 A distinction between direct sales to consumers and deliveries to dairies and other undertakings is also drawn at the level of the overall reference quantities allocated to the Member States (hereinafter the "national quotas").
7 The sum of the individual reference quantities allocated to milk producers for direct sales or for deliveries must not exceed the national quotas fixed, in respect of deliveries, by Article 5c(3) of Regulation No 804/68, as amended, and, in respect of direct sales, by the annex to Regulation No 857/84, to which Article 6(2) refers.
8 Pursuant to the second and third subparagraphs of Article 5c(7) of Regulation No 804/68, as amended in this regard by Regulation No 1298/85, the national quota fixed for deliveries may be adjusted, in accordance with the Management Committee procedure, on the basis of objective and duly justified statistical data to take account of structural changes.
9 Finally, Article 6a of Regulation No 857/84, as amended, provides that producers having two individual reference quantities, one for deliveries and the other for direct sales, may, on request, obtain an increase in one of the reference quantities to enable them to adapt to changes in their marketing requirements. Any such increase, however, is subject to a reduction of the same amount in the other reference quantity.
10 According to the judgment making the reference, Mrs Schiltz-Thilmann delivers part of the milk produced on her farm to a purchaser, while the rest is sold directly to consumers by way of cheese production. For the application of the additional levy on cow' s milk, Mrs Schiltz-Thilmann thus has two reference quantities, one for deliveries and the other for direct sales. For the 1991/92 marketing year, at issue in the main proceedings, the reference quantities allocated to her were 152 654 kg in respect of direct sales and 175 805 kg for deliveries, whereas the quantities actually sold or delivered during that marketing year amounted to 198 044 kg and 160 594 kg respectively.
11 In accordance with Article 6a of Regulation No 857/84, the unused portion of the reference quantity allocated to Mrs Schiltz-Thilmann for deliveries (15 211 kg) was added to the reference quantity for direct sales, which thus came to 167 865 kg. After increasing this by a flat-rate amount of 5 000 kg, the Minister definitively fixed the excess amount at 25 179 kg for the 1991/92 marketing year and requested Mrs Schiltz-Thilmann to pay LFR 245 865 as an additional levy on direct sales exceeding the reference quantity.
12 Before the Conseil d' État, to which she appealed against that decision, Mrs Schiltz-Thilmann argued that an additional levy for exceeding an individual reference quantity could be imposed on her only if the sum of the national quotas in respect of deliveries and direct sales fixed for the Grand Duchy of Luxembourg had also been exceeded during the marketing year in question.
13 The Minister contended that the additional levy was payable in respect of quantities delivered or directly sold in excess of the corresponding reference quantity, irrespective of whether the national quotas, considered individually or together, had been exceeded.
14 After finding that, for the 1991/92 marketing year, the national quota for deliveries had not been exhausted whereas that in respect of direct sales to consumers had, although the sum of the two national quotas had not been exceeded, the Conseil d' État formed the view that a resolution of the dispute depended on the interpretation of the Community rules. It accordingly referred the following question to the Court for a preliminary ruling:
"Do the provisions of Community law, in particular Article 6a of Regulation (EEC) No 857/84 and Article 5c(7) of Regulation (EEC) No 804/68, allow aggregation of 'purchaser' and 'direct sales' quotas in order to determine whether there has been overproduction at national level, or are those quotas independent of each other and for that reason not capable of being aggregated, subject to the possibility of transfer from one quota to the other within the limits of Article 6a of Regulation (EEC) No 857/84?"
15 In order to reply to this question, it is necessary to bear in mind that the purpose of the additional levy is to re-establish, by limiting Community milk production, the balance between supply and demand on the milk market, which is characterized by structural surpluses (see, in particular, the judgment in Case 84/87 Erpelding v Secrétaire d' État à l' Agriculture et à la Viticulture [1988] ECR 2647, paragraph 26).
16 The structural surpluses are to be eliminated by means of two separate additional levy schemes, one in respect of direct sales, the other in respect of deliveries. Those schemes, which apply in different circumstances, are established by separate provisions and each has its own distinct characteristics.
17 It must first be noted that the two types of reference quantity are established separately by specific provisions. Thus, the individual reference quantity for deliveries was introduced by Article 5c(1) of Regulation No 804/68, as amended, while the corresponding national quota was provided for in Article 5c(3). The individual reference quantity for direct sales, for its part, was introduced by Article 5c(2), while the corresponding national quota is governed by Article 6 of Regulation No 857/84 and the annex thereto.
18 Second, it must be pointed out that the person by whom the additional levy is payable depends on the nature of the reference quantity exceeded. While the producer must always pay the levy for exceeding the reference quantity in respect of direct sales, payment of the additional levy in respect of deliveries devolves either on the purchaser or on the producer, depending on whether the Member State in question has opted for formula "A" or formula "B", both of which are provided for in Article 5c(1) of Regulation No 804/68, as amended.
19 Third, the rates of the additional levy vary depending on whether it is the reference quantity relating to deliveries or that relating to direct sales which has been exceeded. In the case of the 1991/92 marketing year, the respective rates were 115% and 75%.
20 Finally, the detailed arrangements for the annual accounts to be drawn up in order to determine whether a levy must be charged are different for the two categories of reference quantities. Pursuant to Articles 15 and 16 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), applicable at the material time, the annual declarations relating to actual quantities delivered or sold were to be made by purchasers in the case of deliveries to dairies or other undertakings, and by producers in the case of direct sales to consumers.
21 The distinct and independent nature of the two types of reference quantities for direct sales and for deliveries is not affected by Article 6a of Regulation No 857/84, as amended, or by Article 5c(7) of Regulation No 804/68, as amended.
22 The exceptional procedure introduced by Article 5c(7) in order to take account of structural changes affecting direct sales and deliveries relates to the national quota for deliveries; it thus relates to the Member States and not to individual producers. Moreover, an adjustment of this quota cannot, pursuant to the third subparagraph of Article 5c(7), result in an increase in the sum total of the national quotas. Finally, such an adjustment is not automatic, occurring as it does at the conclusion of the Management Committee procedure set out in Article 30 of Regulation No 804/68 and on the basis of objective and duly justified statistical data. Such an adjustment is not limited to one single marketing year but remains in force until the statistical data change.
23 Article 5c(7) has therefore no bearing on the circumstances giving rise to the additional levy payable by individual producers in cases where the reference quantity allocated to them has been exceeded.
24 The same holds true with regard to Article 6a of Regulation No 857/84, as amended. Under that provision, individual producers may add the unused portion of one reference quantity to the other reference quantity. Such a transfer does not therefore involve an increase in the sum of the two individual quantities. It follows that, if the total production of a farm exceeds the sum of the two individual reference quantities, the additional levy will be payable in respect of the portion actually produced which exceeds the one, or the other, or both reference quantities, in respect of direct sales or deliveries.
25 The fact of exceeding the relevant quantity thus remains the fact which gives rise to the additional levy, even though there has been a transfer of an amount from one reference quantity to another pursuant to Article 6a of Regulation No 857/84, as amended.
26 In view of the foregoing, the answer to the question submitted must be that Article 6a of Regulation No 857/84, as amended, and Article 5c(7) of Regulation No 804/68, as amended, are to be interpreted as meaning that they do not allow aggregation of the reference quantities for direct sales and for deliveries, which are independent of each other, in order to determine whether there has been overproduction at national level.

Costs
27 The costs incurred by the Luxembourg Government and 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 action 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 Judicial Committee of the Luxembourg Conseil d' État, by judgment of 6 July 1994, hereby rules:
Article 6a 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 (EEC) No 804/68 in the milk and milk products sector, as amended by Council Regulation (EEC) No 590/85 of 26 February 1985, and Article 5c(7) 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, as amended by Council Regulation (EEC) No 856/84 of 31 March 1984 and subsequently by Council Regulation (EEC) No 1298/85 of 23 May 1985, are to be interpreted as meaning that they do not allow aggregation of the reference quantities for direct sales and for deliveries, which are independent of each other, in order to determine whether there has been overproduction at national level.