Report for the Hearing in Case C-290/91

I — Facts and procedure

1. Legal context

(a) The relevant Community law

1. Council Reguktion (EEC) No 856/84 of 31 March 1984 amending Regulation (EEC) No 804/68 on the common organization of the market in milk and milk products (OJ 1984 L 90, p. 10) introduced an additional levy payable on quantities of milk delivered which exceed a reference quantity to be determined. For that purpose Article 1 of that regulation added Article 5c to Council Regulation (EEC) No 804/68 of 27 June 1968 on the common organization of the market in the milk and milk products (OJ, English Special Edition 1968 (I), p. 176), worded as follows:

2. The general rules for the application of the additional levy are contained in 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). Article 1 of this Regulation provides that:

(b) National rules

Paragraph 227 of the Abgabenordnung (German Tax Code) contains a provision allowing the remission of tax which has already been assessed and is legally valid if collection of the tax would be inequitable in the particular case

In this connection a distinction is made between objective inequity and personal inequity. Grounds of objective equity mean those resulting from the taxation as such, irrespective of the taxpayer's financial situation. Grounds of personal equity are those resulting from the personal, particularly the financial, situation of the taxpayer. Personal equitable grounds have been defined in the case-law of the Bundesfinanzhof cited by the Finanzgericht München, according to which there is personal inequity where the recovery of tax would entirely or seriously put at risk the financial or personal existence of the taxpayer. These conditions are fulfilled where, without the provision permitting relief on grounds of equity, a taxpayer is unable temporarily or permanently to provide for his needs. In principle the taxpayer must take all available measures to discharge his debt, even by using his capital. However, this does not apply where the use of the capital would lead to the taxpayer's ruin.

2. The main action

3. Procedure before the Court

The order for reference was lodged at the Court Registry on 20 November 1991.

In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written submissions were submitted by the defendant, represented by Mr Els, director of the Hauptzollamt Regensburg, by the Greek Government, represented by Mr Dimitrios Raptis, a member of the State Legal Department, acting as Agent, and by the Commission of the European Communities, represented by its Legal Adviser, Dierk Booß, acting as Agent.

Upon hearing the report of the Judge-Rapporteur and the opinion of the Advocate-General, the Court decided to open the oral procedure without any preparatory enquiry.

II — Written observations

1. The defendant observes that the plaintiff presented himself at the Hauptzollamt Regensburg on 2 December 1991 to point out that he had already delivered the delivery reference quantity allocated to him and that he wished to continue to deliver milk. He enquired whether, in view of the order for reference, payment of the levy due on the guaranteed quantities could be deferred or, in the event of a favourable outcome to the proceedings, remitted. The defendant states that it informed the plaintiff that he could not rely on deferred payment as the law then stood, but that he could still continue to deliver milk and take a risk with regard to obtaining remission or repayment on equitable grounds of the levy due on the guaranteed quantities. However, the defendant stresses that if this were made possible by the Court the consequence would be that a higher reference quantity would be granted on equitable grounds, which is not permissible under national law, as the Bundesfinanzhof (Federal Finance Court) held in the judgment of 6 February 1990 in Case VII B 148/80.

2. The Greek Government considers that, although the Court has not hitherto accepted that the national authorities may apply their domestic provisions to requests for the remission on equitable grounds of levies payable under Community law, it is clear from its case-law, particularly the judgment in the Balkan-Import-Export case cited above, that the national authorities are prevented from doing so only to the extent that the application of national law would alter the effect of the Community rules relating to (a) the basis of assessment, (b) the manner of imposition or (c) the amount of the charge in question. In view of the limits and the conditions of such prohibition, the Greek Government contends that there is nothing to prevent the application of a national provision pursuant to which a sum due under Article 5c of Regulation (EEC) No 804/68 from small milk producers, such as the plaintiff and numerous producers in Greece, who have only one or two cows from which they derive their livelihood, may be remitted or repaid in specific cases on equitable grounds where those persons are in difficulty. In the latter case, the effect of the Community rules concerning either the basis of assessment and the manner of imposition or, a fortiori, the amount of the charge in question is not altered, precisely because of the specific nature of the remission of the debt which has been requested.

3. After observing that the question referred concerns only remission on grounds of personal equity in relation to the imposition of the levy, the Commission considers whether the case-law of the Court or the principles of Community law reveal any factors which would allow considerations of personal equity to be taken into account in the imposition of charges.

1 Language of the case: German.

2 Repealed by Commission Regulation (EEC) No 1084/84 of 18 April 1984 (OJ 1984 L 106, p. 26) on the ground that the system in question was too open to the risk of abuse.