CJEC, March 10, 1981, No 36-80

THE COURT

1 By an order of 25 october 1979 which was received at the court on 28 january 1980 the high court of Ireland referred to the court for a preliminary ruling under article 177 of the eec treaty two questions, one of which concerns the interpretation of the said article 177 whilst the other seeks elucidation on the features of interpretation of community law which it requires in order to decide whether a temporary excise duty of 2% imposed by the Government of Ireland in 1979 on the value of certain agricultural products was in conformity with that law. By an order of 29 november 1979 which was received at the court on 6 march 1980 the same national court raised almost identical questions in another case before it.

2 According to the case-files the duty in question was imposed from 1 may to 31 december 1979 on fresh milk and live bovine animals, and from 1 august to 31 december 1979 on certain cereals, namely wheat, oats and barley, as well as on sugar beet. Subject to certain exceptions, mainly of a social nature, the duty was applicable to such products at the time of delivery for processing, storage or export. It did not apply to imported products except for imported bovine animals which had been in Ireland for more than 14 days, which were regarded as irish cattle. The duty, paid to the revenue commissioners, was payable either by the exporter or by the processing or storage undertaking. As it was intended to be borne by producers, the government orders which introduced the duty provided that exporters and undertakings were entitled to recover the amount of the duty from the producers.

3 Two associations of irish agricultural producers, together with a number of processing undertakings and a cattle exporter, brought actions against the Government of Ireland before the high court for a declaration that the duty was incompatible with community law. Considering that the principal issue in the actions concerned the interpretation of community provisions, the national court decided to refer a question to the court of justice for a preliminary ruling without first examining the parties ' differences on matters of fact, in particular as regards the way in which the duty operated and its effects. As the Government of Ireland argued that a reference to the court was premature at that stage in the procedure, the high court included in its orders of reference to the court an initial question concerning the interpretation of article 177 of the treaty.

First question

4 The first question raised by the high court of Ireland is worded as follows:

' ' Was the decision by the high court, at this stage of the hearing, to refer to the european court under article 177 of the treaty, the question set out in paragraph 2 below a correct exercise on the part of the high court of its discretion pursuant to the said article?

' '

5 Before an answer is given to that question it should be recalled that article 177 of the treaty establishes a framework for close cooperation between the national courts and the court of justice based on the assignment to each of different functions. The second paragraph of that article makes it clear that it is for the national court to decide at what stage in the proceedings it is appropriate for that court to refer a question to the court of justice for a preliminary ruling.

6 The need to provide an interpretation of community law which will be of use to the national court makes it essential, as the court has already stated in its judgment of 12 july 1979 (case 244-78 union laitiere normande (1979) ecr 2663) to define the legal context in which the interpretation requested should be placed. From that aspect it might be convenient, in certain circumstances, for the facts in the case to be established and for questions of purely national law to be settled at the time the reference is made to the court of justice so as to enable the latter to take cognizance of all the features of fact and of law which may be relevant to the interpretation of community law which it is called upon to give.

7 However, those considerations do not in any way restrict the discretion of the national court, which alone has a direct knowledge of the facts of the case and of the arguments of the parties, which will have to take responsibility for giving judgment in the case and which is therefore in the best position to appreciate at what stage in the proceedings it requires a preliminary ruling from the court of justice.

8 Hence it is clear that the national court ' s decision when to make a reference under article 177 must be dictated by considerations of procedural organization and efficiency to be weighed by that court.

9 The reply to the first question which has been raised should therefore be that under article 177 the decision at what stage in proceedings before it a national court should refer a question to the court of justice for a preliminary ruling is a matter for the discretion of the national court.

Second question

10 The second question reads as follows:

' ' Is a national tax, such as that in issue in the present case, contrary to the treaty establishing the european economic community and, in particular, to articles 9, 11, 12, 16 and 17 or 38 to 46 of the said treaty, or to any of them, or to council regulations n° 804-68, 805-68, 3330-74 and 2727-75, or to any of them?

' '

11 The purpose of this question from the high court is to elicit the features of interpretation of community law necessary in order to decide whether the duty is compatible with community law, and in particular with the provisions of the treaty prohibiting charges having an effect equivalent to customs duties, with those relating to the common agricultural policy and with the regulations of the common organization of the markets in the sectors covering the products subject to the duty. Since all the products chargeable are subject to community rules on the common organization of markets it is appropriate to consider the duty first in relation to those rules.

12 In the observations which they submitted to the court the associations of agricultural producers, the plaintiffs in the main action in case 36-80, maintained, first, that the duty constitutes an unlawful interference with the common organization of the markets in question in so far as the latter attempt to guarantee a certain price for producers. If the amount of the duty is to be borne, as intended by the Government of Ireland, by agricultural producers, the latter will receive a net price lower than the price envisaged by the community authorities when they fixed the target or guide price, the intervention price or the minimum price for the product in question. Such a result would be contrary to one of the objectives of the common agricultural policy which, according to article 39 (1) (b) of the treaty, aims to ensure a fair standard of living for the agricultural community, in particular by increasing the individual earnings of persons engaged in agriculture.

13 Whilst the parties to the main action express differing views on the precise reasons which led the Government of Ireland to introduce the duty, they agree that it forms part of an incomes policy which is designed to divide up the tax burden between the various sectors of the working population. As the Government of Ireland and the commission correctly argue, nothing in the common organization of markets is opposed, in principle, to such a national policy. According to article 39 (2) (c) of the treaty, in working out the common agricultural policy account shall be taken of ' ' the fact that in the member states agriculture constitutes a sector closely linked with the economy as a whole ' '. The common agricultural policy is not intended, therefore, to shield those engaged in agriculture from the effects of a national incomes policy. Moreover, the fixing of common prices within the framework of the common organization of markets does not serve to guarantee to agricultural producers a net price independently of any taxation imposed by the national authorities, and the very wording of article 39 (1) (b) shows that the increase in individual earnings of persons engaged in agriculture is envisaged as being primarily the result of the structural measures described in subparagraph (a).

14 It follows that a national tax such as that at issue in the present case is not, in itself, contrary to the community rules on the common organization of markets. That conclusion is not altered by the mere fact that for administrative reasons the tax was levied through the intermediary of exporters and processing or storage undertakings.

15 Nevertheless, the methods used to implement a national incomes policy which includes, among other persons, agricultural producers would be incompatible with the treaty and with the rules on the common organization of markets if these methods interfered with the functioning of the machinery employed by those organizations in order to achieve their ends. The real problem posed by the duty in question in relation to those rules is therefore whether, apart from the taxation of the incomes of agricultural producers envisaged by the Government of Ireland and precisely because of the basis of its assessment and the way in which it is collected, it has produced other effects capable of obstructing the functioning of the machinery established by the organizations in question.

16 On that point the plaintiffs in the main action in case 36-80 contend that according to the consistent case-law of the court even the potential effects of a national measure may render it incompatible with the treaty. As far as the duty in question is concerned they place special emphasis on its potential effects on the formation of market prices and on market supply. They also support the arguments put forward by the cattle exporter who is the plaintiff in case 71-80, that such effects have in fact appeared on the market in cattle. Owing to what the plaintiff describes as the special situation of the market in cattle in Ireland, exporters have not been able to pass the duty on to producers. Moreover, a very considerable number of cattle were sold and slaughtered just prior to the introduction of the duty, whereas market supplies decreased subsequently, and the result was an increase in imports from northern Ireland of cattle which were exempt from the duty if sold to a processing undertaking within 14 days of their importation. The abolition of the duty produced the opposite effects. According to the plaintiffs in the two main actions the duty thus affected the machinery for the formation of market prices, market supply and intra-community trade, at least in the cattle sector.

17 The duty in question came into force on 1 may 1979 for milk and bovine animals and on 1 august 1979 for the other products subject to it. It was abolished for all products on 31 december of that year. Consideration must therefore be given to the trends which became apparent on the markets in question during the period for which the duty was in force and, if necessary, to the question whether such trends are to be imputed, at least in part, to the effects of the duty disregarding, however, the temporary effects produced immediately before and after the introduction and abolition of the duty in so far as those effects may be considered as the consequence of transactions effected in order to evade the duty.

18 Despite the low rate of the duty and the limited period for which it was in force, such an examination is necessary because the tax scheme at issue before the national court concerns products which, without exception, are subject to a common organization of the market and because it applies, moreover, to stages in the marketing process which coincide largely with those envisaged by such organizations.

19 It is for the national court to decide whether the charge which it is called upon to consider has in fact had effects which obstruct the working of the machinery established by the common organizations of the market. With a view to the decision which has to be made in that respect by the national court it is, however, possible to identify certain features of community law.

20 The essential aim of the machinery of the common organizations in question is to achieve price levels at the production and wholesale stages which take into account both the interests of community production as a whole in the relevant sector and those of consumers, and which guarantee market supplies without encouraging over-production. Those aims might be jeopardized by national measures adopted unilaterally, which have an appreciable influence, even if unintentionally, on price levels on the national market at the same stages, or on supplies on that market. In the case of a duty such as the one in this case, the risk of such influence depends not only on its rate and the period for which it is in force, but equally on the situation on the market in question and, as regards supplies, above all on how general its effect is, that is to say, the number of agricultural products to which it applies. A short-term duty on a large number of products may be neutral in the sense that it does not alter the structure of agricultural production. On the other hand, if the duty encourages producers to replace some of the production of the goods subject to the duty by production of other goods not subject thereto, the duty is liable to create distortion on a number of markets.

21 The question which has been referred to the court also concerns the provisions prohibiting charges having an effect equivalent to customs duties. The doubts which have been expressed by the national court in that part of the question are due to the fact that the duty, although not applied to products by reason of their importation, was charged on the occasion of their delivery, not merely for processing or storage, but also for exportation. According to the files on the cases that problem arises in practice solely in the case of animals. It is therefore from that aspect that the court is replying to that part of the second question.

22 On that point the cattle exporter who is the plaintiff in case 71-80 states that in the case of the exportation of live bovine animals for purposes other than their immediate slaughter, the duty was charged on the animals solely by reason of their export, whereas animals which were not exported were exempt from it up to the time of their delivery for slaughter.

23 It is appropriate to point out in this respect that in so far as it may be established that application of an internal duty falls more heavily on sales for export than on domestic sales the duty has an effect equivalent to a customs duty on exports. This would not be so, however, in the case of a duty which is applied systematically and in accordance with the same criteria to animals, in the words of the Government of Ireland, ' ' at the point of withdrawal from the national herd, whether for export or for slaughter ' '.

24 On all those grounds, the reply to the second question should be as follows:

- a temporary national duty intended to be borne by agricultural producers as part of an incomes policy dividing tax burdens among the various sectors of the working population, but applied in the form of an indirect tax on the value of certain agricultural products subject to common organizations of the markets at the time of their delivery for processing, storage or export and payable either by the exporter or by the processing or storage undertaking, who were entitled to recover the amount of the duty from the producers, was not, in principle, incompatible with the provisions of the eec treaty on agricultural policy, or with community rules on the common organization of the markets.

- such incompatibility would, however, exist if and in so far as the duty had the effect of impeding the proper funtioning of the machinery established as part of the relevant common organizations for the formation of common prices and to regulate market supplies.

- it is for the national court to decide whether, and if so to what extent, the duty which it is called upon to consider has in fact had such effects.

- a duty such as that described above, even if it is applied to bovine animals exported on the hoof when they are delivered for export, does not fall within the prohibition of charges having an effect equivalent to customs duties on exports if it is also applied, systematically and in accordance with the same criteria, to bovine animals which are not being exported, at the time of their delivery for slaughter.

25 The costs incurred by the commission of the european communities, which has submitted observations to the court, are not recoverable; as these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

The court,

In answer to the questions referred to it by the high court of Ireland by orders of 25 october 1979 and 29 november 1979 hereby rules:

1. Under article 177 of the eec treaty the decision at what stage in proceedings before it a national court should refer a question to the court of justice for a preliminary ruling is a matter for the discretion of the national court.

2. A temporary national duty intended to be borne by agricultural producers as part of an incomes policy dividing tax burdens among the various sectors of the working population, but applied in the form of an indirect tax on the value of certain agricultural products subject to common organizations of the markets at the time of their delivery for processing, storage or export and payable either by the exporter or by the processing or storage undertaking, who were entitled to recover the amount of the duty from the producers, was not, in principle, incompatible with the provisions of the eec treaty on agricultural policy, or with community rules on the common organization of the markets.

3. Such incompatibility would, however, exist if and in so far as the duty had the effect of impeding the proper functioning of the machinery established as part of the relevant common organizations for the formation of common prices and to regulate market supplies.

4. It is for the national court to decide whether, and if so to what extent, the duty which it is called upon to consider has in fact had such effects.

5. A duty such as that described above, even if it is applied to bovine animals exported on the hoof when they are delivered for export, does not fall within the prohibition of charges having an effect equivalent to customs duties on exports if it is also applied, systematically and in accordance with the same criteria, to bovine animals which are not being exported, at the time of their delivery for slaughter.