BY A JUDGMENT OF 3 FEBRUARY 1987, WHICH WAS RECEIVED AT THE COURT ON 27 FEBRUARY 1987, THE TRIBUNAL DE GRANDE INSTANCE DE BELFORT REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS ON THE INTERPRETATION OF CERTAIN PROVISIONS OF COMMUNITY LAW CONCERNING THE ADDITIONAL LEVY ON MILK .
THOSE QUESTIONS AROSE IN THE CONTEXT OF PROCEEDINGS BROUGHT BY MR THEVENOT AND SEVEN OTHER MILK PRODUCERS AGAINST THE CENTRALE LAITIERE DE FRANCHE-COMTE ( HEREINAFTER REFERRED TO AS "THE CREAMERY "). THE LATTER, TO WHICH THE PLAINTIFFS IN THE MAIN PROCEEDINGS REGULARLY DELIVER THEIR MILK PRODUCTION, DEDUCTED FROM THEIR "MILK PAYMENT" THE ADDITIONAL LEVY WHICH IT ITSELF HAD TO PAY IN RESPECT OF THE 1984/85 MARKETING YEAR .
IT SHOULD BE RECALLED THAT THE ADDITIONAL LEVY IS CHARGED ON DELIVERIES OF MILK IN QUANTITIES EXCEEDING A REFERENCE QUANTITY TO BE DETERMINED . IT IS PAYABLE EITHER BY MILK PRODUCERS ( FORMULA A ) OR BY PURCHASERS OF MILK OR OTHER MILK PRODUCTS WHO RECOVER THE AMOUNT PAID FROM THE PRODUCERS WHO DELIVER TO HIM ( FORMULA B ). THE FRENCH REPUBLIC CHOSE THE LATTER FORMULA .
IN THEIR ACTION, THE PRODUCERS CONCERNED ARE ESSENTIALLY OPPOSING THE SET-OFF MADE BY THE CREAMERY BETWEEN THE MILK ALLOWANCE DUE TO THEM AND THE DEBT OWED BY THEM TO THE CREAMERY AS A RESULT OF THE CHARGING OF THE ADDITIONAL LEVY . THEY CLAIM THAT THE FRENCH ADMINISTRATION HAS INCORRECTLY APPLIED THE COMMUNITY RULES AT ISSUE IN DETERMINING BOTH THEIR INDIVIDUAL QUANTITIES AND THE CREAMERY' S REFERENCE QUANTITY .
IN ORDER TO BE ABLE TO ASSESS THOSE ARGUMENTS, THE TRIBUNAL DE GRANDE INSTANCE DE BELFORT STAYED THE PROCEEDINGS AND REFERRED THE FOLLOWING QUESTIONS TO THE COURT FOR A PRELIMINARY RULING :
"1 . IN THE CONTEXT OF THE APPLICATION OF FORMULA B, FOR WHICH FRANCE HAS OPTED, MAY PRODUCERS SUPPLYING THE SAME CREAMERY RELY ON THE FUNGIBLE NATURE OF THEIR INDIVIDUAL PRODUCTION, THE ONLY CRITERION FOR THE IMPOSITION OF THE ADDITIONAL LEVY BEING THE EXCEEDING OF THE REFERENCE QUANTITY OF THE CREAMERY CALCULATED ACCORDING TO THE CRITERIA LAID DOWN IN REGULATION ( EEC ) NO 857/84?
2 . HAVING REGARD TO THE RULES LAID DOWN IN ARTICLE 40 ( 3 ) OF THE EEC TREATY, DOES THE FACT OF TREATING DIFFERENTLY PRODUCERS SUPPLYING THE SAME CREAMERY BY APPLYING DIFFERENT PERCENTAGES TO THEIR INDIVIDUAL PRODUCTION IN ORDER TO DETERMINE THEIR PRODUCTION RIGHTS IN THE "DISASTER" SITUATION REFERRED TO IN ARTICLE 3 ( 3 ) CONSTITUTE A DISCRIMINATORY MEASURE?"
REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE FACTS OF THE MAIN PROCEEDINGS, THE COMMUNITY PROVISIONS AT ISSUE, THE FRENCH RULES FOR THE IMPLEMENTATION THEREOF, THE COURSE OF THE PROCEDURE AND THE OBSERVATIONS MADE TO THE COURT, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .
FIRST QUESTION
HAVING REGARD TO THE DOCUMENTS BEFORE THE COURT, THE FIRST QUESTION MUST BE UNDERSTOOD AS SEEKING ESSENTIALLY TO KNOW WHETHER ARTICLE 5C ( 1 ) OF REGULATION 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 NO 856/84 OF 31 MARCH 1984 ( OFFICIAL JOURNAL 1984 L 90, P . 10 ), MUST BE INTERPRETED AS MEANING THAT IN THE CONTEXT OF FORMULA B, THE ADDITIONAL LEVY IS PAYABLE ONLY IN SO FAR AS THE CONSUMER' S REFERENCE QUANTITY HAS BEEN EXCEEDED .
ALL THE PARTICIPANTS IN THE PROCEEDINGS BEFORE THE COURT AGREE THAT IN THE CONTEXT OF FORMULA B ( THE "PURCHASER" FORMULA ), THE REFERENCE QUANTITY EXEMPT FROM THE ADDITIONAL LEVY IS DETERMINED IN RELATION TO THE PURCHASERS, THAT IS TO SAY, THE CREAMERIES, AND NOT IN RELATION TO THE PRODUCERS . CONSEQUENTLY, FOR EACH PERIOD, THERE IS AUTOMATIC INTERNAL SET-OFF BETWEEN PRODUCERS AFFILIATED TO THE SAME CREAMERY WITH THE EFFECT THAT THE CHARGING OF THE LEVY OCCURS ONLY WHERE THE CREAMERY' S REFERENCE QUANTITY HAS BEEN EXCEEDED . HOWEVER, THE COMMISSION POINTS OUT THAT THE ANNUAL RE-ALLOCATIONS CARRIED OUT ON THE BASIS OF SUCH INTERNAL SET-OFF DO NOT INCREASE THE PRODUCERS' INDIVIDUAL QUANTITY AND THEREFORE DO NOT GIVE THEM A RIGHT TO THE SAME QUANTITY FROM ONE PERIOD TO THE NEXT .
IT SHOULD BE POINTED OUT THAT UNDER ARTICLE 5C ( 1 ) (" FORMULA B ") OF REGULATION NO 804/68, AS AMENDED BY REGULATION NO 857/84, "A LEVY SHALL BE PAYABLE BY EVERY PURCHASER OF MILK OR OTHER MILK PRODUCTS ON QUANTITIES OF MILK OR MILK EQUIVALENT WHICH HAVE BEEN DELIVERED TO HIM BY A PRODUCER AND WHICH, DURING THE 12 MONTHS CONCERNED, EXCEED A REFERENCE QUANTITY TO BE DETERMINED . THE PURCHASER LIABLE TO THE LEVY SHALL PASS ON THE BURDEN IN THE PRICE PAID TO THOSE PRODUCERS WHO HAVE INCREASED THEIR DELIVERIES, IN PROPORTION TO THEIR CONTRIBUTION TO THE PURCHASER' S REFERENCE QUANTITY BEING EXCEEDED ".
THE VERY WORDING OF THAT PROVISION SHOWS THAT IN THE CONTEXT OF FORMULA B, THE ADDITIONAL LEVY IS DUE ONLY IN SO FAR AS THE TOTAL QUANTITIES OF MILK OR MILK EQUIVALENT PURCHASED BY A CREAMERY EXCEED ITS REFERENCE QUANTITY AND THAT QUANTITY MUST BE ADAPTED, IF NECESSARY, TO TAKE ACCOUNT OF ADDITIONAL QUANTITIES GRANTED TO THE PRODUCERS IN ACCORDANCE WITH ARTICLES 3, 4 OR 4A OF REGULATION NO 857/84 .
CONSEQUENTLY, IN THE CONTEXT OF FORMULA B, THE LEVY IS NOT DUE WHEN THE INCREASE IN THE DELIVERIES MADE BY AN AFFILIATED PRODUCER TO A CREAMERY IS COMPENSATED FOR BY A CORRESPONDING DECREASE IN THE DELIVERIES OF OTHER PRODUCERS AFFILIATED TO THE SAME CREAMERY, SO THAT THE TOTAL QUANTITY PURCHASED BY THE CREAMERY REMAINS WITHIN THE LIMITS OF ITS REFERENCE QUANTITY . IN THE CONTEXT OF THAT FORMULA, THE CHARGING OF THE LEVY IS THEREFORE LINKED TO THE CREAMERY' S REFERENCE QUANTITY, THE EXCEEDING OF WHICH IS THE EVENT GIVING RISE TO LIABILITY TO THAT CHARGE, WHEREAS THE INDIVIDUAL QUANTITIES OF PRODUCERS ARE TAKEN INTO ACCOUNT SOLELY FOR THE PURPOSES OF PASSING ON TO THOSE PRODUCERS THE BURDEN OF THE LEVY PAID .
THAT INTERPRETATION IS CORROBORATED BY THE SIMILARITY OF THE ABOVEMENTIONED PROVISIONS WITH THE RULES CONCERNING THE APPLICATION OF FORMULA A, WHICH ARE ALSO CONTAINED IN ARTICLE 5C ( 1 ) OF REGULATION NO 804/68 AS AMENDED . THOSE RULES PROVIDE IN ESSENCE THAT, IN THE CONTEXT OF FORMULA A, THE LEVY IS PAYABLE BY THE MILK PRODUCER ON THE QUANTITIES OF MILK OR MILK EQUIVALENT WHICH HE HAS DELIVERED TO A PURCHASER AND WHICH FOR THE 12 MONTHS CONCERNED EXCEED A REFERENCE QUANTITY ATTRIBUTED TO HIM . ON THE OTHER HAND, IN THE CONTEXT OF FORMULA B, PRODUCERS MAY TAKE ADVANTAGE WITHIN THE 12 MONTHS CONCERNED OF INDIVIDUAL REFERENCE QUANTITIES NOT USED BY OTHER PRODUCERS AFFILIATED TO THE SAME CREAMERY SUBJECT TO THE THOSE QUANTITIES BEING TRANSFERRED TO THE NATIONAL RESERVE OF THE MEMBER STATE CONCERNED IN THE CASES PROVIDED FOR UNDER THE RULES .
FOR THOSE REASONS, THE REPLY TO THE FIRST QUESTION SHOULD BE THAT ARTICLE 5C ( 1 ) OF REGULATION NO 804/68 OF THE COUNCIL OF 27 JUNE 1968, AS AMENDED BY COUNCIL REGULATION NO 856/84 OF 31 MARCH 1984, MUST BE INTERPRETED AS MEANING THAT, IN THE CONTEXT OF FORMULA B, THE ADDITIONAL LEVY IS PAYABLE ONLY IN SO FAR AS THE PURCHASER' S REFERENCE QUANTITY HAS BEEN EXCEEDED .
SECOND QUESTION
THE SECOND QUESTION SEEKS ESSENTIALLY TO DETERMINE THE SCOPE OF THE OPTION MADE AVAILABLE TO PRODUCERS BY ARTICLE 3 ( 3 ) OF COUNCIL REGULATION 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 ( OFFICIAL JOURNAL 1984 L 90, P . 13 ) IN REGARD TO A SITUATION OF FACT IN WHICH PRODUCERS AFFILIATED TO THE SAME CREAMERY ARE ALLOCATED ADDITIONAL INDIVIDUAL QUANTITIES BY REASON OF NATURAL DISASTERS, CALCULATED AT DIFFERENT RATES .
THE FIRST SUBPARAGRAPH OF THAT PROVISION, WHICH IS APPLICABLE IN THE CONTEXT BOTH OF FORMULA A AND OF FORMULA B, PROVIDES THAT "PRODUCERS WHOSE MILK PRODUCTION DURING THE REFERENCE YEAR REFERRED TO UNDER ARTICLE 2 HAS BEEN AFFECTED BY EXCEPTIONAL EVENTS OCCURRING BEFORE OR DURING THAT YEAR SHALL OBTAIN, ON REQUEST, REFERENCE TO ANOTHER CALENDAR REFERENCE YEAR WITHIN THE 1981 TO 1983 PERIOD ". THE SECOND SUBPARAGRAPH OF THE SAME PARAGRAPH CONTAINS A LIST OF THE SITUATIONS WHICH MIGHT JUSTIFY REFERENCE TO ANOTHER REFERENCE YEAR . THAT LIST WAS EXTENDED BY ARTICLE 3 OF COMMISSION REGULATION NO 1371/84 OF 16 MAY 1984 LAYING DOWN DETAILED RULES FOR THE APPLICATION OF THE ADDITIONAL LEVY REFERRED TO IN ARTICLE 5C OF REGULATION ( EEC ) NO 804/68 ( OFFICIAL JOURNAL 1984 L 132, P . 11 ).
ALL THE PARTICIPANTS IN THE PROCEEDINGS BEFORE THE COURT AGREE THAT ONLY PRODUCERS WHOSE HOLDINGS HAD BEEN AFFECTED BY ONE OF THE NATURAL DISASTERS SPECIFIED IN THE ABOVEMENTIONED PROVISIONS MAY HAVE ANOTHER REFERENCE YEAR TAKEN INTO ACCOUNT . THE FRENCH GOVERNMENT ADDS ON THAT POINT THAT THE FACT THAT THE COLLECTION ZONE OF A CREAMERY IS SITUATED IN AN AREA CLASSIFIED AS A DISASTER AREA DOES NOT IPSO FACTO MEAN THAT ALL THE PRODUCERS AFFILIATED TO THAT CREAMERY HAVE A RIGHT TO CHOOSE ANOTHER REFERENCE YEAR . THE COMMISSION, FOR ITS PART, OBSERVES IN ADDITION THAT ALTHOUGH ARTICLE 3 ( 3 ) MAKES IT POSSIBLE TO SUBSTITUTE ANOTHER REFERENCE YEAR FOR THE ONE DECIDED ON BY THE MEMBER STATE CONCERNED, THAT PROVISION DOES NOT IMPLY THAT THE PRODUCER CONCERNED IS ENTITLED TO AN INDIVIDUAL QUANTITY IDENTICAL TO THAT ACTUALLY DELIVERED DURING THE SUBSTITUTE REFERENCE YEAR WITHOUT BEING SUBJECT TO THE GENERAL REDUCTION APPLIED AND TO ANY POSSIBLE VARIATIONS WHICH MIGHT EXIST BETWEEN REGIONS AND CATEGORIES OF PERSONS LIABLE TO THE LEVY .
IN THE LIGHT OF THE ABOVE OBSERVATIONS, IT SHOULD BE EMPHASIZED FIRST THAT ARTICLE 3 ( 3 ) OF REGULATION NO 857/84 REFERS TO THE INDIVIDUAL POSITION OF EACH PRODUCER, REGARDLESS OF THE CREAMERY TO WHICH HE IS AFFILIATED . CONSEQUENTLY, ONLY PRODUCERS FULFILLING INDIVIDUALLY THE CONDITIONS OF THAT PROVISION COME WITHIN ITS SCOPE AND MAY THEREFORE EXERCISE THE RIGHT TO HAVE ANOTHER REFERENCE YEAR TAKEN INTO ACCOUNT . ON THE OTHER HAND, SUCH A RIGHT IS NOT GRANTED TO PRODUCERS WHOSE HOLDINGS HAVE NOT BEEN AFFECTED BY ONE OF THE EXCEPTIONAL EVENTS SPECIFIED IN THE RULES AT ISSUE .
WITH REGARD TO THE REQUIREMENT TO "TAKE ACCOUNT" OF ANOTHER REFERENCE YEAR, THE STRUCTURE OF ARTICLE 3 ( 3 ) AND ITS PLACE IN THE CONTEXT OF REGULATION NO 857/84 REQUIRE IT TO BE INTERPRETED AS PROVIDING FOR THE COMPLETE SUBSTITUTION OF THE REFERENCE YEAR CHOSEN BY THE PRODUCER WITHIN THE 1981 TO 1983 PERIOD FOR THE REFERENCE YEAR DESIGNATED BY THE MEMBER STATE CONCERNED . HOWEVER, THAT PROVISION DOES NOT AFFECT THE APPLICATION OF THE OTHER RULES CONCERNING THE DETERMINATION OF REFERENCE QUANTITIES AND INDIVIDUAL QUANTITIES AND, MORE PARTICULARLY, THE RULES CONTAINED IN ARTICLE 2 OF REGULATION NO 857/84 .
IT FOLLOWS THAT THE INDIVIDUAL QUANTITY OF A PRODUCER WHO FULFILS THE CONDITIONS LAID DOWN IN ARTICLE 3 ( 3 ) IS EQUAL TO THE QUANTITY OF MILK OR MILK EQUIVALENT DELIVERED BY THAT PRODUCER DURING THE REFERENCE YEAR CHOSEN UNDER THAT PROVISION, WEIGHTED HOWEVER BY THE PERCENTAGES REFERRED TO IN ARTICLE 2, VARIED IF NECESSARY ON THE BASIS OF THE CATEGORY OF PERSONS OR REGIONS IN ACCORDANCE WITH ARTICLE 2 ( 2 ).
THE REPLY TO THE SECOND QUESTION SHOULD THEREFORE BE THAT ARTICLE 3 ( 3 ) OF COUNCIL REGULATION NO 857/84 OF 31 MARCH 1984 MUST BE INTERPRETED AS MEANING THAT ONLY PRODUCERS WHO INDIVIDUALLY FULFIL THE CONDITIONS LAID DOWN IN THAT PROVISION MAY CLAIM THE BENEFIT OF IT . THE INDIVIDUAL REFERENCE QUANTITY RESULTING FROM THE APPLICATION OF THAT PROVISION IS EQUAL TO THE QUANTITY OF MILK OR MILK EQUIVALENT DELIVERED BY THE PRODUCER DURING THE REFERENCE YEAR CHOSEN UNDER THAT PROVISION, WEIGHTED BY THE PERCENTAGES REFERRED TO IN ARTICLE 2 OF REGULATION NO 857/84, VARIED IF NECESSARY ON THE BASIS OF THE CATEGORY OF PERSONS OR REGIONS IN ACCORDANCE WITH ARTICLE 2 ( 2 ).
COSTS
THE COSTS INCURRED BY THE FRENCH GOVERNMENT AND THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED, A STEP IN THE PROCEEDINGS PENDING BEFORE THE NATIONAL COURT, THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .
ON THOSE GROUNDS,
THE COURT ( FIFTH CHAMBER )
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE TRIBUNAL DE GRANDE INSTANCE DE BELFORT, BY JUDGMENT OF 3 FEBRUARY 1987, HEREBY RULES :
( 1 ) ARTICLE 5C ( 1 ) OF REGULATION NO 804/68 OF THE COUNCIL OF 27 JUNE 1968, AS AMENDED BY COUNCIL REGULATION NO 856/84 OF 31 MARCH 1984, MUST BE INTERPRETED AS MEANING THAT, IN THE CONTEXT OF FORMULA B, THE ADDITIONAL LEVY IS PAYABLE ONLY IN SO FAR AS THE PURCHASER' S REFERENCE QUANTITY HAS BEEN EXCEEDED .
( 2 ) ARTICLE 3 ( 3 ) OF COUNCIL REGULATION NO 857/84 OF 31 MARCH 1984 MUST BE INTERPRETED AS MEANING THAT ONLY PRODUCERS WHO INDIVIDUALLY FULFIL THE CONDITIONS LAID DOWN IN THAT PROVISION MAY CLAIM THE BENEFIT OF IT . THE INDIVIDUAL REFERENCE QUANTITY RESULTING FROM THE APPLICATION OF THAT PROVISION IS EQUAL TO THE QUANTITY OF MILK OR MILK EQUIVALENT DELIVERED BY THE PRODUCER DURING THE REFERENCE YEAR CHOSEN UNDER THAT PROVISION, WEIGHTED BY THE PERCENTAGES REFERRED TO IN ARTICLE 2 OF REGULATION NO 857/84, VARIED IF NECESSARY ON THE BASIS OF THE CATEGORY OF PERSONS OR REGIONS IN ACCORDANCE WITH ARTICLE 2 ( 2 ).
