Opinion of Mr Advocate General Tesauro
1. By two decisions of 18 August 1987 the Commission refused to recognize as chargeable to the European Agricultural Guidance and Guarantee Fund (the EAGGF) grants made by the Federal Republic of Germany in 1984 and 1985 to butter producers in the Land of Baden-Württemberg by way of special aid for skimmed milk and skimmed-milk powder for use for feeding animals other than young calves.
2. The relevant regime constitutes a refinement of a more general system of aid designed to encourage the use of skimmed milk for animal feed in order to reduce, or at least contain, the costs to Community funds arising from the storage of skimmed-milk powder. Compared with that general system, the scheme at issue is characterized by its having introduced higher aid (special aid) applicable only to milk used for feeding animals other than young calves. The rationale is clear: since young calves (that is to say, calves less than four months old) are in any case fed essentially on milk, it would therefore be pointless to provide special incentives for that particular use.
3. No matter how consistent with the fundamental objectives, that dual aid system was none the less exposed to obvious risks of abuse, since, as the Court has pointed out,
4. It is obvious that the proper functioning of the system depends on the reliability of the data provided by farms with regard to the calculation parameters. For that reason, under the Community rules farmers have to comply with a variety of requirements relating to the documentation and notification to the national authorities of the relevant data. For their part, the Member States are under a duty to adopt the necessary measures so as to ensure effective supervision. Finally, any infringements by farmers make them liable to criminal or administrative sanctions. That is the context of the provisions with which this dispute is concerned. Those provisions are, first and foremost, Article 6(1) of Regulation (EEC) No 2793/77, which provides as follows:
5. The Commission takes the view that, under those provisions, mixed farms producing butter must notify the statement of herd size and the declaration relating to the maximum number of young calves before the beginning of the period for which the aid is applied for. On that view, the practice, applied for several years in the Federal Republic of Germany, according to which farms forward those returns at the same time as the quarterly application for aid, that is to say, at the end of the reference period, is unlawful. As a result, the Commission, acting in accordance with the general rules on the financing of the common agricultural policy, refused, by means of the contested decision, to charge to the EAGGF the sums paid by the Federal Republic of Germany by way of special aid in 1984 and 1985.
6. In brief the question is: is it or is it not a requirement under the rules for the aforementioned data to be notified ex ante}
7. Having made that clear I shall turn to the interpretation of the provisions at issue in this case.
8. The Commission further objects that that interpretation of the first indent of Article 6(1)(a) would make nugatory the second indent of that provision, under which farmers must forward to the competent authority an undertaking immediately to notify any change in this information which might involve a change in the rate of aid. In the Commission's view, if the statement of herd size had to be forwarded ex post, it would already incorporate the changes which had taken place in the previous quarter, and that would make it unnecessary to notify changes immediately.
9. In sum, it seems to me that it appears from Article 6(1)(a) that the statement of herd size should be forwarded at the same time as the application for the grant of aid, that is to say, at the end of the period for which the aid is requested.
10. However, as has already been mentioned, the Commission maintained that the Federal Republic of Germany also failed to observe another provision of Regulation (EEC) No 2793/77. That provision is the second indent of Article 4(1)(c) which, although relating to farmers who purchase skimmed milk from dairies, also applies, as a result of the reference made by Article 6(1)(b), to farmers who produce their own skimmed milk for animal feed.
11. Certainly, the applicant's argument is not without logic. It is in fact based on the finding that the data relating to the maximum number of calves must in any event relate to the quarter for which the aid is granted. Consequently it is the preceding quarter in the case of farmers who produce their own skimmed milk and the subsequent quarter in the case of farmers who purchase the milk from a dairy. Consequently, it will be necessary in the first case to forward the data ex post and in the second case ex ante.
12. I therefore propose that the Court should dismiss the application and order the Federal Republic of Germany to pay the costs.
1 Original language: Italian.
2 Decisions 87/468/EEC and 87/469/EEC on the clearance of the accounts presented by the Member States in respect of the European Agricultural Guidance and Guarantee Fund, Guarantee Section, expenditure for 1984 and 1985 (OJ 1987, L 262, pp. 23 and 35).
3 Judgment of 28 June 1984 in Joined Cases 187 and 190/83 Nordbittterv Germany [1984] ECR 2553, paragraph 6.
4 OJ L 321, 16.12.1977. p 30
5 See the Court's judgments of 15 December 1987 in Cases 326, 332, 336, 346, 348/85, 237/86 and 239/86, ECR 5091, 5173, 5197, 5225, 5251 and 5271; see in particular the judgment of 15 December 1987 in Case 325/85 Ireland v Commission [1987] ECR 5041, paragraph 18.
6 Judgment of 25 September 1984 in Case 117/83 Konccke v Bundesanatalt fur landwirtschafthche Marktordnung [1984] ECR 3291, paragraph 7 el icq.
7 Judgment of 26 May 1982 in Case 44/81 Germany \ Comminati [1982] ECR 1855, paragraph 16
8 OJ, English Special Edition 1968 (II), p. 379.
9 Judgment of 8 October 1986 in Case 9/85 Nordbutter v Germany [1986] ECR 2831.