Opinion of Mr Advocate General Lenz

Mr President,

Members of the Court,

1. In the present preliminary-ruling proceedings the national court has asked the Court of Justice to give a ruling as to the validity of the arrangements for the collection of the additional co-responsibility levy in the cereals sector provided for by Article 4b of Regulation (EEC) No 2727/75 of the Council, as amended by Council Regulation (EEC) No 1097/88 of 25 April 1988, and by Commission Regulation (EEC) No 1432/88 of 26 May 1988.

2. With regard to the first point, it should be noted that the parties have advanced differing views as to the precise operative event that triggers the obligation to pay the levy. For their part, the Council and the Commission contend that that event is the placing of the cereals on the market; conversely, the plaintiff in the main proceedings and the Italian Government claim that the obligation to pay the levy arises and crystallizes only when it is ascertained that the maximum guaranteed quantity has been exceeded. From these premisses the parties arrive at differing conclusions as to the lawfulness of the collection method at issue. The institutions, contending that the obligation arises when the cereals are placed on the market, consider it wholly justified that fulfilment of it should be required forthwith; the opposing view, on the other hand, is that to require payment when it is not known whether — or to what extent — payment is due is clearly unlawful, particularly in view of the principles on which rules governing compulsory financial contributions are ordinarily based.

3. However, it seems to me that the latter view is based — at least, the written observations give that impression — on a classification of the levy as a fiscal contribution, a classification which appears unjustified. On more than one occasion the Court has rejected such a view: it has stated that co-responsibility levies, although financial in one respect in so far as they help to lighten the burden of the EAGGF budget, are none the less agricultural-policy measures, being instruments whose essential purpose is to stabilize markets in which there is a structural surplus. Precisely for that reason it seems to me to be inappropriate to assess the legality of the levy or, as in the present case, of the procedure by which it is collected by reference to criteria — and, moreover, purely abstract criteria — taken from the field of tax law; on the contrary, I consider that the measure should be appraised having regard to the rules and principles which govern the exercise of the Community institutions' legislative powers in implementing the agricultural policy.

4. That having been said, I must observe that in any case the institutions' view that the event giving rise to the obligation to pay the levy is the placing of the products on the market seems to me to be better founded, having regard to the wording and the logic of the relevant provisions as a whole. In the first place, Article 2(1) of Regulation No 1432/88 expressly describes placing on the market as the Operative event' for the levy. Furthermore, it seems to me that the applicable regulations draw a clear distinction between the obligation to pay the levy, which arises immediately, when the cereals are placed on the market, and the subsequent, contingent right to reimbursement, the existence and extent of which depend on a finding that the maximum guaranteed quantity was not exceeded. Such a finding, therefore, is seen to be the precondition for a refund (total or partial) of the sums paid rather than for the establishment of the obligation to pay the levy.

5. In any event it seems to me that in the final analysis those differences of view, which concern matters purely of legal formality, are not such as to affect the outcome of the present dispute. Even if the thesis propounded by the plaintiff in the main proceedings were to be upheld, and if therefore the obligation were to be regarded as coming into being only when the ceiling was found to have been exceeded, it would not automatically follow that the method of collecting the levy was unlawful. Indeed, it is not unusual, even under national tax laws, for advance collection to be prescribed in certain circumstances even though the obligation to which the sums payable relate has not yet arisen. This occurs for example in all cases where an amount is withheld or is collected on an interim basis in respect of income which has not yet been generated or ascertained.

6. In that connection, it will be recalled that the Cou n has several times stressed that the Community legislature has a wide discretion in choosing the measures to be adopted for implementation of the agricultural policy. It has also emphasized that as a result of that discretion the Court's review can be carried out only within the limits of a strict appraisal of legality. It follows that a measure may be held to be invalid only if it is manifestly not proportionate to the aim pursued.

7. It has been contended that immediate payment of the levy is unnecessary to ensure its due collection: other means, such as a system based on sureties or guarantees, would be suitable and would involve lesser sacrifices for farmers.

8. Consequently, it must be concluded that immediate collection of the levy is entirely consonant with the intended function of the measure and does not therefore infringe the principle of proportionality.

9. In view of the foregoing considerations, I consider that the following answer should be given to the national court:

1 Original language: Iulian.

2 OJ 1988, L 110, p. 7,

3 OJ 1988, L 131, p. 37.

4 See judgment of 11 July 1989 in Case 265/87 Schröder [1989] ECR 2237, parigraph 21 et seq. and the decisions referred to in my Opinion in that case.