(Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven)

(Milk and milk products – Direct sales – Reference quantities – Overruns – Additional levy on milk – Obligation on producers to keep stock accounts – Article 7(1) and (3) of Regulation (EEC) No 536/93 – Supplementary national measures – Competence of the Member States)

Summary of the Judgment

(Commission Regulation No 536/93, Art. 7)

(Commission Regulation No 536/93, Art. 7)

1.The first sentence of Article 7(1) of Regulation No 536/93 laying down detailed rules on the application of the additional levy on milk and milk products must be interpreted as conferring discretion on a Member State to lay down rules, in so far as is necessary, imposing on producers of milk established in its territory supplementary obligations to keep records which are more extensive than the obligations under Article 7(1)(f). In exercising that discretion, the Member State must comply with the general principles of Community law.

(see para. 42, operative part 1)

2.Under the additional levy scheme for milk established by Regulations Nos 3950/92 and 536/93, Community law does not preclude legislation which requires milk producers to keep records of the quantity of butter produced and the use that it has been put to, even where the butter has been destroyed or used as feeding stuff, where, in the Member State concerned, it is found to be difficult to monitor effectively, on the basis of the Community requirements alone, the accuracy of statements of direct sales drawn up by producers.

(see para. 49, operative part 2)

14 September 2006 (*)

(Milk and milk products – Direct sales – Reference quantities – Overruns – Additional levy on milk – Obligation on producers to keep stock accounts – Article 7(1) and (3) of Regulation (EEC) No 536/93 – Supplementary national measures – Competence of the Member States)

In Case C-496/04,

REFERENCE for a preliminary ruling under Article 234 EC from the College van Beroep voor het bedrijfsleven (Netherlands), made by decision of 26 November 2004, received at the Court on 1 December 2004, in the proceedings

Productschap Zuivel,

THE COURT (First Chamber),

composed of P. Jann, President of the Chamber, N. Colneric (Rapporteur), J.N. Cunha Rodrigues, M. Ilešič and E. Levits, Judges,

Advocate General: E. Sharpston,

Registrar: L. Hewlett, Principal Administrator,

having regard to the written procedure and further to the hearing on 12 January 2006,

after considering the observations submitted on behalf of:

– Mr Slob, by G. van der Wal and H.S.J. Albers, advocaten,

– the Netherlands Government, by H.G. Sevenster and C.A.H.M. ten Dam, acting as Agents,

– the Commission of the European Communities, by T. van Rijn, acting as Agent,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

1.This reference for a preliminary ruling concerns the interpretation of the first sentence of Article 7(1) and Article 7(3) of Commission Regulation (EEC) No 536/93 of 9 March 1993 laying down detailed rules on the application of the additional levy on milk and milk products (OJ 1993 L 57, p. 12).

2.The reference was made in proceedings between Mr Slob, a milk producer, and the Productschap Zuivel (the Dairy Products Board) (‘the Productschap’) concerning Mr Slob’s liability for the additional levy.

Legal context

Community legislation

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

ECLI:EU:C:2025:140

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

1.‘1. The ... producer who either is or may be liable to pay a levy pursuant to Articles ... 4 shall be obliged to keep records in accordance with the provisions of Article 7 of Regulation (EEC) No 536/93 and in accordance with the rules adopted by the Productschap.

2.The Productschap may, acting on its own initiative, determine the quantity delivered if the obligations laid down in the first paragraph and in Article 27(2) and Article 29(1) are either not or, in the opinion of the Productschap, incompletely performed.

18Article 11(1) of the Zuivelverordening 1994, Uitvoering regeling superheffing (Order of 1994 implementing the regulation on additional levies; ‘the Zuivelverordening’) (PBO-blad 1994, p. 26) reads as follows:

‘The producer shall be obliged to keep records of everything regarding his business or holding in such a manner as to enable the production, stock and the quantities received or delivered of processed or manufactured milk, together with the financial data relating thereto, to be ascertained at all times, and to keep such records and data for a period of at least three years.’

The main proceedings and the questions referred for a preliminary ruling

19Article 19 Mr Slob is a milk producer. On an inspection of his holding in December 1997, for the 1996/97 levy period there was found to be a difference of approximately 250 000 kilograms of milk between production capacity, calculated on the basis of the size of the dairy herd kept by Mr Slob, on the one hand, and direct sales, as declared by Mr Slob to the Productschap, on the other.

20Mr Slob asserted that he had processed the 250 000 kilograms of milk in question into butter in order to obtain buttermilk used to manufacture cheese and had destroyed the butter produced in this way immediately after production. He did not keep any stock accounts in relation to that production and destruction, such accounts being kept only in relation to the cheese obtained at the end of the process.

21After determining on its own initiative, pursuant to Article 31(2) of the Regeling superheffing, the quantities of milk and other milk products which Mr Slob delivered directly for consumption during the 1996/97 levy period, the Productschap declared that he was liable for a sum of NLG 180 976.77 by way of additional levy in accordance with Article 4(2) of Regulation No 536/93.

22Following an objection by Mr Slob, by decision of 4 April 2000 the Productschap reduced the amount of his liability in respect of the additional levy. However, it stated that Mr Slob’s grounds of challenge were unfounded in so far as the abovementioned difference was concerned. In that decision it determined that no accounts had been kept for approximately 250 000 kilograms of milk. The Productschap concluded that Mr Slob had not kept a correct and complete record in the 1996/97 levy period of the production, stock and delivery of milk and milk products.

23Mr Slob lodged an appeal against the decision of 4 April 2000 with the referring court.

24When the matter was referred to it for a preliminary ruling by that national court, the Court of Justice held in Case C‑236/02 Slob [2004] ECR I-1861 that the first sentence of Article 7(1) and Article 7(1)(f) of Regulation No 536/93 should be interpreted as meaning that the stock accounts which producers are required to keep need state only the quantities, per month and per product, of milk and/or milk products sold.

25The Court did not give a ruling on whether the Member States are competent to enact legislation imposing reporting obligations on milk producers established within their territory that go beyond those in the provision to be interpreted since that issue was not the subject-matter of the question referred (Slob, paragraph 30).

26The College van Beroep voor het bedrijfsleven (Administrative court for trade and industry) has referred the matter to the Court once again. It notes that in its judgment in Slob the Court did not answer the question as to whether, on the basis of the first sentence of Article 7(1) and Article 7(3) of Regulation No 536/93, a Member State is entitled to impose on a producer, in addition to the obligation to maintain stock accounts in accordance with the first sentence of Article 7(1) and Article 7(1)(f) of that regulation, an obligation such as that laid down in Article 11(1) of the Zuivelverordening because that question, which arose in the course of proceedings, had not been referred by the national court.

The College van Beroep voor het bedrijfsleven has therefore decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

(1)‘(1) Is Article 7(1) [first sentence] and (3) of Regulation No 536/93 to be interpreted as conferring on a Member State discretion as to whether to lay down a rule imposing on producers of milk products established in its territory an obligation to keep records which is more extensive than the obligation under Article 7(1)(f)?

(2)If the answer to that question is in the affirmative, must it then be held that a rule requiring the producer to account to the administration for the quantity of butter produced and for its use, even where the butter has been destroyed or used as feeding stuff, is within the Member State’s discretion?’

The requests made by Mr Slob after the closure of the oral procedure

By application dated 14 July 2006, received by the Court Registry on 20 July 2006, Mr Slob sought leave from the Court to submit written observations following the Opinion of the Advocate General delivered at the sitting on 22 June 2006 and, in the alternative, requested the Court to order the reopening of the oral procedure pursuant to Article 61 of the Rules of Procedure or, in the further alternative, to respond in such a manner as to enable him to respond to the Opinion of the Advocate General in order to guarantee his fundamental right to an adversarial procedure.

Mr Slob submitted that that Opinion contains arguments that are erroneous both as to the facts and the law, which he did not, however, set out at that stage of the procedure in the interest of the efficacious conduct of the proceedings. He maintained that, whilst the Rules of Procedure do not provide the parties with the possibility of making written submissions following the delivery of the Opinion, they do not expressly rule out that possibility.

For the reasons set out at paragraphs 3 to 16 of the order in Case C-17/98 Emesa Sugar [2000] ECR I-665, the fact that the Statute of the Court of Justice and the Court’s Rules of Procedure do not provide the parties with the possibility of submitting observations in response to the Opinion delivered by the Advocate General cannot prejudice an individual’s right to an adversarial procedure, as embodied in Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950, and as interpreted by the European Court of Human Rights.

The request seeking leave for Mr Slob to submit written observations in response to the Opinion of the Advocate General must therefore be rejected.

Bearing in mind the very purpose of an adversarial procedure, which is to prevent the Court from being influenced in its decision by an argument which the parties have been unable to discuss, the Court may of its own motion, on a proposal from the Advocate General, or at the request of the parties, order that the oral procedure be reopened, in accordance with Article 61 of its Rules of Procedure, if it considers that it lacks sufficient information or that the case must be decided on the basis of an argument which has not been debated between the parties (see the order of 28 April 2004 in Case C-127/02 Waddenvereniging and Vogelbeschermingsvereniging, not published in the ECR, paragraph 8; Case C‑470/00 P Parliament v Ripa di Meana and Others [2004] ECR I-4167, paragraph 33; and Case C-432/04 Commission v Cresson [2006] ECR I-0000, paragraph 50).

In the present case, those conditions are not met.

It should further be noted that Article 234 EC establishes direct cooperation between the Court and the courts and tribunals of the Member States by way of a non-contentious procedure excluding any initiative of the parties, who are merely invited to be heard in the course of that procedure (see, to that effect, Case C‑364/92 SAT Fluggesellschaft [1994] ECR I-43, paragraph 9).

Accordingly, the Advocate General having been heard, the request that the oral procedure be reopened must be rejected.

If follows from the above that the request made in the further alternative must also be rejected.

The questions

Question 1

37The purpose of Regulation No 536/93 is to lay down detailed rules on the application of the additional levy on milk and milk products in order to ensure that the levy is applied effectively and to prevent fraud.

38According to the eighth recital in the preamble to Regulation No 536/93, the Member States must have suitable means of conducting ex-post checks to verify whether, and if so to what extent, the levy has been collected in accordance with the provisions in force. Such checks are provided for by Article 7 of that regulation in order to ensure the accuracy of the statements of collection and declarations of direct sales drawn up by purchasers and producers (Joined Cases C-231/00, C‑303/00 and C-451/00 Cooperativa Lattepiù and Others [2004] ECR I‑2869, paragraph 70).

39There is nothing to prevent a Member State from adopting measures beyond those set out in the second sentence of Article 7(1) and Article 7(3) of Regulation No 536/93 where it may deem them necessary. It is, in fact, clear from the wording of the first sentence of Article 7(1) of that regulation that Member States are indeed required to take all the verification measures necessary to ensure payment of the levy. Whilst Article 7(1) and (3) go on to specify certain obligatory measures, they in no way prevent such measures from being supplemented by other measures which prove necessary in that Member State. As is apparent from the eighth recital in the preamble to Regulation No 536/93, the measures set out in the regulation are merely minimum requirements.

40Contrary to what Mr Slob asserts, such latitude does not require any measures the Member States may adopt to be specified in the regulation itself.

41Nevertheless, when adopting measures to implement Community legislation, national authorities must exercise their discretion in compliance with the general principles of Community law, which include the principles of proportionality, legal certainty and the protection of legitimate expectations (Cooperativa Lattepiù and Others, paragraph 57).

42The answer to the first question must therefore be that the first sentence of Article 7(1) of Regulation No 536/93 must be interpreted as conferring discretion on a Member State to lay down rules, in so far as is necessary, imposing on producers of milk established in its territory supplementary obligations to keep records which are more extensive than the obligations under Article 7(1)(f). In exercising that discretion, the Member State must comply with the general principles of Community law.

Second question

43By its second question, the national court asks, in essence, whether Community law precludes national legislation which requires milk producers to keep records of the quantity of butter produced and the use that it has been put to, even where the butter has been destroyed or used as feeding stuff.

44It is to be noted that where a measure is adopted pursuant to the first sentence of Article 7(1) of Regulation No 536/93, it must be on the basis that such a measure is necessary.

45The Netherlands Government has, in a convincing manner, justified the need for the measure at issue in the main proceedings on the basis of the structure of its milk sector and, in particular, the fact that there are a number of large dairy farms engaging in the direct sale of their produce, which are difficult to monitor on the basis of the Community requirements alone.

46The principle of proportionality cannot preclude the monitoring in the Netherlands of quantities produced but not marketed. Nor does that measure go beyond what is necessary, in view of the structure of the Netherlands milk sector, to ensure effective supervision designed to prevent quantities produced but marketed outside the additional levy scheme for milk from entering the economy.

47Nor can the principles of legal certainty and protection of legitimate expectations preclude supervisory measures such as those at issue in the main proceedings. The first sentence of Article 7(1) of Regulation No 536/93 read in conjunction with the eighth recital in the preamble to that regulation shows in a clear and precise manner that the list of measures set out in Article 7 is not exhaustive and that the Member States are indeed required, where necessary, to take additional measures (see, with regard to the criteria governing the principle of legal certainty, Case C‑94/05 Emsland-Stärke [1994] ECR I-43, paragraph 9).

Accordingly, the Advocate General having been heard, the request that the oral procedure be reopened must be rejected.

If follows from the above that the request made in the further alternative must also be rejected.

[2006] ECR I-0000, paragraph 43). Moreover, the Court has held that the principle of the protection of legitimate expectations cannot be relied upon against an unambiguous provision of Community law or the conduct of a national authority which is consistent with such a provision (see in this regard Emsland-Stärke, paragraph 31). A trader cannot therefore legitimately expect not to be subject to supplementary supervisory measures.

48Contrary to Mr Slob’s submission, a regulation such as that laid down by Article 11 of the Zuivelverordening does not change the basis of the additional levy. It is merely an additional means of ensuring supervision and must be applied in the light of the objective set out in Article 7(1) of Regulation No 536/93, which is to ensure that the additional levy is collected in compliance with the Community provisions in force.

49In the light of the foregoing, the answer to the second question must be that Community law does not preclude legislation which requires milk producers to keep records of the quantity of butter produced and the use that it has been put to, even where the butter has been destroyed or used as feeding stuff, where, in the Member State concerned, it is found to be difficult to monitor effectively, on the basis of the Community requirements alone, the accuracy of statements of direct sales drawn up by producers.

Costs

50Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (First Chamber) hereby rules:

The first sentence of Article 7(1) of Commission Regulation (EEC) No 536/93 of 9 March 1993 laying down detailed rules on the application of the additional levy on milk and milk products must be interpreted as conferring discretion on a Member State to lay down rules, in so far as is necessary, imposing on producers of milk established in its territory supplementary obligations to keep records which are more extensive than the obligations under Article 7(1)(f). In exercising that discretion, the Member State must comply with the general principles of Community law.

Community law does not preclude legislation which requires milk producers to keep records of the quantity of butter produced and the use that it has been put to, even where the butter has been destroyed or used as feeding stuff, where, in the Member State concerned, it is found to be difficult to monitor effectively, on the basis of the Community requirements alone, the accuracy of statements of direct sales drawn up by producers.

[Signatures]

*

Language of the case: Dutch.