Opinion of Mr Advocate General Van Gerven
Mr President,
Members of the Court,
1. This case concerns a reference from the Finanzgericht Düsseldorf for a preliminary on the interpretation and validity of Article 12(2) of Commission Regulation (EEC) No 1371/84 of 16 May 1984 — in its original version and as subsequently amended and renumbered as Article 12(4) by Regulation (EEC) No 3005/85 of 29 October 1985 — and on the interpretation and validity of Article 15(4) of Commission Regulation (EEC) No 1546/88 of 3 June 1988. The questions submitted arose in a dispute between Milchwerke Köln/Wuppertal eG, the plaintiff, and the Hauptzollamt Köln-Rheinau, the defendant.
Background
2. In order to contain the increase in milk production, Council Regulation (EEC) No 856/84 of 31 March 1984 inserted Article 5c in Council Regulation (EEC) No 804/68 of 27 June 1968 on the common organization of the market in milk and milk products. Article 5c provides inter alia that:
3. The facts of the case should be viewed against that background. The plaintiff is the universal successor of Milchversorgung Rhineland eG (hereinafter Rhineland), which merged with it and which purchased milk from approximately 6000 affiliated dairy producers who were also its members. Before the merger, an authorized signatory of Rhineland (known as D) intentionally caused the reference quantities of many of those producers to be miscalculated, with the result that those producers had to pay lower additional levies and Rhineland was able to process a larger quantity of milk.
4. The Hauptzollamt claimed from the plaintiff, by notices of assessment dated 12 and 14 June 1991, a total of DM 5975480.49 by way of unpaid additional levies. By decision of 19 December 1991 on the objection lodged by the plaintiff, the Hauptzollamt reduced that amount to DM 5849307.47 but dismissed the remainder of the objection as unfounded.
Legislation
Council reguUtions
5. Article 5c of Regulation No 804/68 introduces not only an additional levy on cows' milk (paragraph 2 above) but also lays down that each of the Member States is to collect the levy within its territory in accordance with one of two formulas set out in that article. Germany has opted for formula A, according to which the additional levy is payable only by milk producers:
6. On the same date as Regulation No 856/84, that is to say on 31 March 1984, the Council issued Regulation (EEC) No 857/84 adopting general rules for the application of the levy referred to in Article 5c of Regulation No 804/68 in the milk and milk products sector. Article 9(1) of Regulation No 857/84 originally provided as follows:
Commission reguUtions
7. In Article 11 of Regulation No 857/84 the Council entrusted the Commission with the task of adopting further implementing rules concerning the additional levy. The questions submitted concern three regulations adopted by the Commission on the basis of that provision. As stated earlier, those measures are Regulations Nos 1371/84, 3005/85 and 1546/88.
German law
8. Although the questions submitted for a preliminary ruling are not strictly speaking concerned with German law, I shall also refer to the Milch-Garantiemengen-Verordnung (MGVO) of 25 May 1985 which is in force in Germany. Paragraph 3 of the MGVO, which has in the meantime been frequently amended, embodies the German option in favour of formula A. Paragraph 4(1) of the MGVO provides that milk purchasers are to calculate reference quantities for producers who supply them with milk and lays down detailed rules for that purpose. Paragraphs 11(1) and (2) prescribe the manner in which purchasers are to deduct the additional levy from the purchase price payable by the producers and pay the amounts so deducted to the competent agencies.
The first and second questions
9. I shall deal with the Finanzgericht's first and second questions at the same time.
Is the purchaser also liable to pay the levy?
10. The parties' submissions in this case are summarized as below. According to the plaintiff, the Commission and the Finanzgericht, the sums in question can be claimed only from the milk producers and not from a purchaser. Formula A requires a purchaser such as the plaintiff only to pay over to the Hauptzollamt the additional levy actually received from the producers, and that is clearly what was done. However, there is no legal basis whatsoever for requiring the plaintiff to pay an additional levy of that kind, even if the plaintiff is responsible for the fact that the amount of the additional levy collected was too low.
11. I do not share the Hauptzollamt's point of view. In my view, no legal basis can be found in the aforesaid provisions of the relevant Commission regulations to support the conclusion that under formula A a milk purchaser may also be liable to pay the additional levy.
12. Let us now turn to those provisions of the implementing regulations adopted by the Commission from which the Hauptzollamt infers that, under formula A as well, milk purchasers may in certain circumstances be liable to pay the levy. In addition to Article 12(2) in the original version, Article 12(4) in the amended version, of Regulation No 1371/84, and Article 15(4) of Regulation No 1546/88, the Hauptzollamt also refers to Article 12(4) of the original version of Regulation No 1371/84, which is worded as follows:
13. The Hauptzollamt has not put forward a single argument to substantiate the view that those provisions make purchasers not only liable for payment but also in certain circumstances — for instance as a result of a fraudulent transaction for which they can be held responsible — liable to pay the levy. Nor can I think of a single argument in support of that view. On the contrary, the passages quoted merely provide confirmation of the task imposed on purchasers by Article 9(2) of Council Regulation No 857/84 (paragraph 6 above) of collecting the levy and paying it over.
14. If the aforesaid articles, which constitute implementing provisions adopted by the Commission, were interpreted in the manner suggested by the Hauptzollamt, they would then be contrary to the express wording of Article 5c of the basic regulation, No 804/68. According to that article (cited in paragraph 2), the additional levy is payable under formula A by producers of cows' milk. It is settled case-law that, when an implementing regulation is capable of being interpreted, it must be interpreted in conformity with the basic regulation on which it is founded. See also the recent judgment of 24 June 1993 in the Tretter case:
15. In reply to the first two questions, I therefore conclude that Article 12 of Commission Regulation No 1371/84 of 16 May 1984 — both in paragraph (2) of the original version and in paragraph (4) of the amended version — and Article 15(4) of Commission Regulation No 1546/88 of 3 June 1988 must be interpreted as meaning that, where formula A provided for in Article 5c(l) of Regulation No 804/68 is applied, a milk purchaser may not be regarded as liable to pay the levy, even where, as a result of a retroactive reduction in the reference quantities on account of the misconduct of the purchaser, his officers or authorized representatives, a further amount is still payable by way of the additional levy on milk.
The obligation imposed on Member States by Community law to combat fraud
16. It may be inferred from that conclusion that under Community law as it now stands no penalties are available against Khineland s manipulation of the figures. That cannot serve the cause of countering agricultural fraud effectively. The Hauptzollamt also refers to the matter:
17. It may be apparent from that case-law that Community law imposes an unequivocal obligation on Member States to provide appropriate machinery for imposing penalties and taking legal action in respect of fraudulent dealings that result in the impoverishment of the Community through the loss of revenue intended for it. Penalties must be imposed on the same conditions as those which apply to comparable and equally serious infringements of national law, and legal action in respect of infringements of Community law must be pursued as energetically as it is in respect of corresponding infringements of national law.
18. Moreover, the aforesaid obligation to take all appropriate measures arises not only from Article 5 of the EEC Treaty but also, and more specifically, from Article 8 of Council Regulation (EEC) No 729/70 of 21 April 1970, which is the basic regulation for the financing of the common agricultural policy. The additional levy on milk for the purposes of Article 5c of Regulation No 804/68 constitutes intervention intended to stabilize the agricultural markets within the meaning of Article 3(1) of Regulation No 729/70. Article 8 of Regulation No 729/70 imposes on the Member States the following obligations which are designed to combat fraud effectively:
19. It may be apparent that measures have already been adopted under German law in respect of D's fraudulent transactions from the fact that a number of persons have been prosecuted. In addition, it is conceivable in my view that the plaintiff, and not only D, may be accountable under German civil law if it should appear that the former can be held responsible for the latter's manipulations or that individual producers from whom the Hauptzollamt could claim the amount of additional levy in arrears can bring an action for recovery against the plaintiff.
Question 3
20. The Finanzgericht's third question reads as follows:
Conclusion
21. In conclusion I propose that the Court answer the questions submitted by the Finanzgericht as follows:
1 Original language: Dutch.
2 Regulation laying down detailed rules for the application of the additional levy referred to in Article 5c of Regulation (EEC) No 804/68 (OJ 1984 L 132, p. 11).
3 Regulation amending for the tenth time Regulation (EEC) No 1371/84 laying down detailed rules for the application of the additional levy referred to in Article 5c of Regulation (EEC) No 804/68 in the milk and milk products sector (OJ 1985 L 288, p. 10).
4 Regulation 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).
5 Regulation amending Regulation (EEC) No 804/68 on the common organization of the market in milk and milk products (OJ 1984 L 90, p. 10).
6 OJ, English Special Edition (1968) I, p. 176.
7 The terms producer and purchaser are defined in Article 12(c) and (e) of Council Regulation (EEC) No 857/84 of 31 March 1984, cited in footnote 8 below.
8 A number of producers who did not succeed in obtaining a retroactive increase in their reference quantities on account of special circumstances have brought an action before the Finanzgericht against the Hauptzollamt's decision. However, it is not those cases — a number of which have, according to the order for reference, already been dismissed by the Finanzgericht — which led to the submission of the questions now before the Court.
9 OJ 1984 L 90, p. 13.
10 Regulation amending Regulation (EEC) No 857/84 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 1985 L 137, p. 12).
11 Admittedly, Article 1(7) of Regulation No 1305/85 added a second subparagraph to Article 9(2), which is not relevant for the purposes of the answer to the questions in these proceedings.
12 Already cited in footnote 3.
13 BGBl. 1984, I, p. 720.
14 According to the Commission, the most recent amendment was made on 24 April 1991 (BGBl., 1991, I, p. 1034).
15 The Hauptzollamt has not submitted either written or oral observations to the Court.
16 Compare with Article 10 of Regulation No 857/84, which concerns formula B and refers exclusively to a purchaser liable for the levy.
17 The version of Article 12 of Regulation No 1371/84 amended by Regulation No 3005/85 contains no other corresponding provisions. That makes sense, since the changeover from quarterly to annual levies rendered the final account in question superfluous.
18 Judgments in Case 38/70 Deutsche Tmdtix [1971] ECR 145, at paragraph 10; Case 92/78 Simmenthal [1979] ECR 777, at paragraph 70 et seq.; Case 46/86 Romkes [1987] ECR 2671, at paragraph 16. For a recent example of an implementing regulation being examined in the light of a basic regulation, see the judgment in Case C-217/91 Spain v Commission [1993] ECR 1-3923, at paragraphs 19 to 27.
19 Case C-90/92 [1993] ECR 1-3569, at paragraph 11.
20 Order for reference, p. 6.
21 [1989] ECR 2965, at paragraphs 22 to 25. Followed in the judgment ¡n Case C-326/88 Hansen [1990] ECR 1-2911, at paragraph 17, and in the order in Case C-2/S8 Zwartveld [1990] ECR 1-3365, at paragraph 17.
22 The Treaty on European Union has expressly incorporated that principle in the new Article 209A of the EEC Treaty. See also Article Kl(5) of the Treaty on European Union, in which the Member States undertake to regard combatting fraud on an international scale as a matter of common interest with a view to closer cooperation in the fields of justice and home affairs.
23 Regulation on the financing of the common agricultural poGcy (OJ, English Special Edition 1970 (I), p. 218). The measures which constitute intervention within the meaning of Article 3(1) were initially summarized in the annex to Council Regulation (EEC) No 1883/78 of 2 August 1978 laying down generai rules for the financing of interventions by the European Agricultural Guidance and Guarantee Fund, Guarantee Section (OJ 1978 L 216, p. 1). Council Regulation (EEC) No 1716/84 of 18 June 1984 amending Regulation (EEC) No 1883/78 (OJ 1984 L 163, p. 1) replaced that annex. Since then, the additional levy has been referred to under point 1 in X. Milk and milk products. C. Other measures.
24 Footnote 17 above.