1 BY AN ORDER OF 19 NOVEMBER 1982 WHICH WAS RECEIVED AT THE COURT ON 24 NOVEMBER 1982 , THE OESTRE LANDSRET ( EASTERN DIVISION OF THE HIGH COURT ) REFERRED TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF COMMUNITY LAW NEEDED IN ORDER TO ENABLE IT TO ASSESS THE COMPATIBILITY WITH THAT LAW OF A DANISH TAX MEASURE TEMPORARILY INCREASING FOR THE BENEFIT OF THE STATE THE LAND TAX ALREADY EXISTING FOR THE BENEFIT OF LOCAL AUTHORITIES .
2 THE TAX MEASURE IN QUESTION WAS ADOPTED IN THE FOLLOWING CIRCUMSTANCES : AT THE END OF 1979 , THE DANISH GOVERNMENT ADOPTED AN ECONOMIC PROGRAMME WHICH , IN ORDER TO REDUCE THE ADVERSE BALANCE OF PAYMENTS AND TO IMPROVE THE EMPLOYMENT SITUATION , PROVIDED IN PARTICULAR FOR THE GROWTH IN INCOME FOR ALL SECTORS OF SOCIETY TO BE CHECKED AND FOR THE BURDENS THEREBY IMPOSED UPON THE POPULATION TO BE FAIRLY SHARED . SINCE THE DEVALUATION OF THE DANISH KRONE FORMED AN ESSENTIAL PART OF THAT PLAN , DEVALUATION WAS EFFECTED ON 30 NOVEMBER 1979 TO THE EXTENT OF 4.76% AGAINST THE OTHER CURRENCIES IN THE EUROPEAN MONETARY SYSTEMS . HOWEVER , THE DANISH GOVERNMENT WISHED THE CENTRAL RATE FOR THE DANISH KRONE TO CORRESPOND TO THE AGRICULTURAL CONVERSION RATE IN RELATION TO THE EUROPEAN CURRENCY UNIT ( ECU ), IN ORDER TO AVOID THE INTRODUCTION OF MONETARY COMPENSATORY AMOUNTS . THEREFORE ON 3 DECEMBER 1979 THE COUNCIL , AT THE REQUEST OF THE DANISH GOVERNMENT , DEVALUED THE REPRESENTATIVE RATE OF THE DANISH KRONE BY 4.63% AGAINST THE ECU IN THE AGRICULTURAL SECTOR ( COUNCIL REGULATION NO 2717/79 , OFFICIAL JOURNAL , L 309 , P . 1 ).
3 THAT DEVALUATION RESULTED IN AN INCREASE IN AGRICULTURAL PRICES EXPRESSED IN DANISH KRONER , WHICH OUGHT UNDER NORMAL CIRCUMSTANCES TO HAVE BROUGHT ABOUT A SIGNIFICANT INCREASE IN INCOME FOR DANISH AGRICULTURE . IN ORDER TO OFFSET THAT INCREASE IN INCOME , WHICH WAS REGARDED AS INCONSISTENT WITH THE PROVISIONS OF THE ABOVE-MENTIONED PROGRAMME , THE DANISH GOVERNMENT SUBMITTED ON 4 DECEMBER 1979 A DRAFT LAW CONCERNING LAND TAX ON AGRICULTURAL PROPERTY . THE LAW WAS ADOPTED BY THE FOLKETING ( DANISH PAR- LIAMENT ) ON 21 DECEMBER 1979 , CONFIRMED ON 28 DECEMBER 1979 AND PROMULGATED AS LAW NO 541 .
4 THAT TAX , WHICH OPERATED ONLY DURING 1980 , WAS ASSESSED BY REFERENCE TO THE VALUE OF PROPERTY DETERMINED ON THE BASIS OF A GENERAL ASSESSMENT OF THE COMMERCIAL VALUE OF THE LAND , WITHOUT TAKING INTO ACCOUNT THE AMOUNT OR NATURE OF THE AGRICULTURAL PRODUCTION ACTUALLY OBTAINED FROM IT .
5 THE SAMVIRKENDE DANSKE LANDBOFORENINGER ( FEDERATION OF DANISH FARMERS ' ASSOCIATIONS ), ACTING ON BEHALF OF THREE FARMERS WHO OWNED THEIR LAND AND WHO CHALLENGED THE VALIDITY OF THE TAX , BROUGHT AN ACTION BEFORE THE OESTRE LANDSRET , CLAIMING THAT THE LAND-TAX LAW IN RESPECT OF AGRICULTURAL PROPERTY WAS TO BE REGARDED AS INCOMPATIBLE WITH THE SPIRIT AND CONDITIONS FOR IMPLEMENTATION OF THE EEC TREATY AND OF THE COMMON AGRICULTURAL POLICY , IN SO FAR AS ITS OBJECT AND EFFECT WERE , ON THE ONE HAND , TO NEUTRALIZE THE EFFECTS OF A MEASURE ENACTED BY THE EUROPEAN COMMUNITIES AND , ON THE OTHER , TO THWART THE PURPOSE OF THE DEVALUATION , WHICH WAS TO INCREASE THE INCOME OF DANISH AGRICULTURE .
6 THE OESTRE LANDSRET STAYED THE PROCEEDINGS AND DECIDED TO SUBMIT THE FOLLOWING QUESTION TO THE COURT FOR A PRELIMINARY RULING :
' ' MUST THE EEC TREATY , IN PARTICULAR PART TWO , TITLE II , ' AGRICULTURE ' , ESPECIALLY ARTICLES 39 AND 40 AND THE MEASURES ADOPTED IN PURSUANCE OF THE TREATY , BE INTERPRETED AS PREVENTING A MEMBER STATE FROM AFFECTING A TEMPORARY INCREASE IN TAXATION BASED ON THE VALUE OF AGRICULTURAL PROPERTY WHEN THAT INCREASE IS DIRECTLY LINKED TO A DEVALUATION OF THE MEMBER STATE ' S ' GREEN CURRENCY ' EFFECTED BY THE COUNCIL AND WHEN THE PURPOSE OF THE INCREASE IN TAXATION IS TO APPROPRIATE FOR THE BENEFIT OF THE TREASURY A CONSIDERABLE PORTION OF THE INCREASE IN INCOME WHICH THE DEVALUATION BRINGS TO AGRICULTURAL PRODUCERS AS PART OF A GENERAL PLAN FOR THE ECONOMY WHICH AFFECTS MOST SECTORS OF THE POPULATION?
' '
7 IT IS CLEAR FROM THE ORDER FOR REFERENCE THAT THE PROCEEDS OF THE TAX WERE PAID INTO THE TREASURY WITHOUT BEING ASSIGNED TO ANY SPECIFIC PURPOSE , AND IT IS COMMON GROUND BETWEEN THE PARTIES THAT THE TAX DID NOT AFFECT PRICE FORMATION , THE FREE MOVEMENT OF GOODS OR INDEED THE QUANTITY OF PRODUCTS AVAILABLE ON THE MARKET AND THAT IT DID NOT HAVE THE EFFECT OF A CUSTOMS DUTY OR A CHARGE HAVING EQUIVALENT EFFECT . IT FOLLOWS THAT THE COMPATIBILITY WITH COMMUNITY LAW OF THE TAX MEASURE IN QUESTION MUST BE ASSESSED SOLELY BY REFERENCE TO ARTICLES 39 TO 43 OF THE TREATY AND TO THE COMMON GENERAL PRINCIPLES WHICH GOVERN THE ORGANIZATION OF THE MARKETS .
8 ALTHOUGH THE PARTIES TO THE MAIN ACTION EXPRESS DIFFERENT OPINIONS AS TO THE PRECISE REASONS FOR WHICH THE DANISH GOVERNMENT INTRODUCED THE TAX MEASURE IN QUESTION AND AS TO THE EXACT EFFECTS OF THAT MEASURE , THEY ARE AGREED THAT IT IS PART OF AN INCOME POLICY INTENDED TO APPORTION THE TAX BURDEN AMONG THE VARIOUS SECTORS OF THE WORKING POPULATION . AS THE DANISH , FRENCH AND ITALIAN GOVERNMENTS AND THE COMMISSION CORRECTLY ARGUE , AND AS IN ADDITION THE COURT RULED IN ITS JUDGMENT OF 10 MARCH 1981 IN JOINED CASES 36 AND 71/80 , IRISH CREAMERY MILK SUPPLIERS ASSOCIATION AND OTHERS , ( 1981 ) ECR 735 , 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 IS TO 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 WAS 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 ).
9 ACCORDING TO THE PLAINTIFF IN THE MAIN ACTION , HOWEVER , THE PARTICULAR CIRCUMSTANCES IN WHICH THE NATIONAL MEASURE IN QUESTION WAS ADOPTED RENDER IT INCOMPATIBLE WITH COMMUNITY LAW . IN FACT , THE ACKNOWLEDGED AIM OF THE TAX INTRODUCED BY LAW NO 541 IN REDUCING THE INCOME OF DANISH FARMERS WAS TO NEUTRALIZE THE SOLE EFFECT SOUGHT BY A COMMUNITY MEASURE , IN THIS INSTANCE THE COUNCIL REGULATION OF 3 DECEMBER 1979 WHICH DEVALUED THE DANISH KRONE AGAINST THE EUROPEAN CURRENCY UNIT ( ECU ) IN ORDER TO INCREASE THE INCOME OF THOSE SAME FARMERS . THUS THE DANISH PARLIAMENT ENCROACHED UPON A POWER TRANSFERRED TO THE COMMUNITY AUTHORITIES .
10 THAT ARGUMENT CANNOT BE ACCEPTED . INDEED IT IS CLEAR FROM THE PREAMBLE TO THE COUNCIL REGULATION OF 3 DECEMBER 1979 THAT IT WAS ADOPTED NOT IN ORDER TO ENSURE HIGHER NET INCOME FOR DANISH FARMERS , BUT SOLELY IN ORDER TO AVOID THE INTRODUCTION IN DENMARK OF MONETARY COMPENSATORY AMOUNTS . THAT AIM WAS IN NO WAY AFFECTED BY THE INTRODUCTION OF THE CONTESTED LAND TAX . MOREOVER , AS THE COMMISSION CORRECTLY OBSERVES , THERE COULD BE NO REAL NEUTRALIZATION OF THE EFFECT OF THE COUNCIL REGULATION UNLESS THE INCREASE IN AGRICULTURAL PRICES EXPRESSED IN DANISH KRONER AND RESULTING FROM THAT REGULATION COULD NOT BE ACHIEVED . THE LAND TAX INTRODUCED BY LAW NO 541 CLEARLY DID NOT HAVE THAT RESULT : ITS EFFECT WAS SOLELY TO ABSORB PART OF THE REVENUE OBTAINED BY AGRICULTURAL PRODUCERS FROM THE SALE OF THEIR PRODUCTS , AFTER THE LAW OF SUPPLY AND DEMAND AND THE COMMON PRICE SYSTEM HAD TAKEN NORMAL EFFECT .
11 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 THOSE METHODS INTERFERED WITH THE FUNCTIONING OF THE MACHINERY EMPLOYED BY THOSE ORGANIZATIONS IN ORDER TO ACHIEVE THEIR ENDS . THE REAL PROBLEM POSED BY THE LAND TAX IN QUESTION IN RELATION TO THOSE RULES IS THEREFORE WHETHER THAT LAND TAX PRODUCED SUCH EFFECT .
12 AS THE COURT RULED IN ITS JUDGMENT OF 10 MARCH 1981 , CITED ABOVE , IT IS FOR THE NATIONAL COURT TO DECIDE WHETHER THE TAX OF WHICH IT IS REQUIRED TO TAKE COGNIZANCE HAS IN FACT HAD EFFECTS WHICH OBSTRUCT THE WORKING OF THE MACHINERY ESTABLISHED BY THE COMMON ORGANIZATIONS OF MARKETS . 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 AND TO DEDUCE CERTAIN CRITERIA FOR ASSESSMENT .
13 THE ESSENTIAL AIM OF THE MACHINERY OF THE COMMON ORGANIZATIONS OF THE MARKET 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 .
14 THOSE AIMS MIGHT BE JEOPARDIZED , IN THE FIRST PLACE , BY NATIONAL TAX MEASURES EXERTING AN APPRECIABLE INFLUENCE , EVEN IF UNINTENTIONALLY , ON PRICE LEVELS ON THE MARKET . HOWEVER , THERE IS LESS RISK OF SUCH AN EFFECT ON PRICE FORMATION WHERE IT IS A QUESTION NOT OF A CHARGE ON AGRICULTURAL PRODUCTION BUT OF A LAND TAX APPLIED TO AGRICULTURAL LAND AS A WHOLE AND ASSESSED WITHOUT TAKING INTO ACCOUNT THE AMOUNT OR NATURE OF THE AGRICULTURAL PRODUCTION ACTUALLY OBTAINED .
15 SECONDLY , IT SHOULD BE NOTED THAT , AS THE PLAINTIFF IN THE MAIN ACTION ARGUED BEFORE THE COURT AND AS THE COMMISSION ACKNOWLEDGED , TAX MEASURES EXERTING DIRECTLY OR INDIRECTLY AN APPRECIABLE EFFECT ON THE STRUCTURE OF AGRICULTURAL HOLDINGS AND CONSEQUENTLY ON THE NATURE AND VOLUME OF SUPPLIES ON THE AGRICULTURAL MARKETS , MIGHT ALSO JEOPARDIZE THE AIMS PURSUED BY THE COMMON ORGANIZATIONS OF THE MARKET .
16 IN THAT REGARD IT IS CLEAR THAT THE RISK OF SUCH AN EFFECT ON THE STRUCTURE OF AGRICULTURAL PRODUCTION DEPENDS IN PARTICULAR ON THE FOLLOWING FEATURES : THE RATE OF THE TAX , WHETHER IT IS TEMPORARY OR PERMANENT , WHETHER OR NOT IT AFFECTS ALL AGRICULTURAL PROPERTY , WHETHER OR NOT THERE IS A DIRECT LINK BETWEEN THE AMOUNT OF THE TAX AND THE INCOME OF EACH PRODUCER AND WHETHER OR NOT THE PROCEEDS OF THE TAX WERE ASSIGNED TO A SPECIFIC PURPOSE AND IF SO , WHAT THAT PURPOSE WAS .
17 ON THOSE GROUNDS , THE QUESTION SHOULD BE ANSWERED AS FOLLOWS :
A TEMPORARY INCREASE IN THE LAND TAX IN RESPECT OF AGRICULTURAL PROPERTY , WHICH IS INTENDED TO APPROPRIATE TO THE NATIONAL TREASURY , IN THE FRAMEWORK OF A GENERAL PROGRAMME FOR THE ECONOMY AFFECTING MOST SECTORS OF THE POPULATION , A CONSIDERABLE PORTION OF THE INCREASE IN AGRICULTURAL INCOME RESULTING FROM A CHANGE IN THE RATE OF EXCHANGE USED FOR THE IMPLEMENTATION OF THE COMMON AGRICULTURAL POLICY , IS NOT IN ITSELF INCOMPATIBLE EITHER WITH THE PROVISIONS OF THE EEC TREATY ON AGRICULTURAL POLICY OR WITH THE PROVISIONS ON THE COMMON ORGANIZATION OF THE MARKETS , EVEN IF THE INTRODUCTION OF THE TAX IS CLOSELY LINKED TO THAT CHANGE IN THE RATE OF EXCHANGE .
SUCH INCOMPATIBILITY WOULD , HOWEVER , EXIST TO THE EXTENT TO WHICH THE INCREASE IN THE LAND TAX HAD THE EFFECT IN PARTICULAR , EITHER AS A RESULT OF ITS INFLUENCE ON PRICE FORMATION OR THROUGH THE CHANGE IN THE STRUCTURE OF AGRICULTURAL HOLDINGS WHICH MIGHT RESULT THEREFROM , IN PARTICULAR OF IMPEDING THE FUNCTIONING OF THE MACHINERY PROVIDED FOR UNDER THE COMMON ORGANIZATION OF THE MARKET .
IT IS FOR THE NATIONAL COURT TO DECIDE WHETHER , AND IF SO TO WHAT EXTENT , THE TAX OF WHICH IT IS REQUIRED TO TAKE COGNIZANCE DID IN FACT HAVE SUCH EFFECTS .
COSTS
THE COSTS INCURRED BY THE FRENCH AND ITALIAN GOVERNMENTS AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE 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 ( FIFTH CHAMBER )
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE OESTRE LANDSRET BY ORDER OF 19 NOVEMBER 1982 HEREBY RULES :
1 . A TEMPORARY INCREASE IN THE LAND TAX IN RESPECT OF AGRICULTURAL PROPERTY WHICH IS INTENDED TO APPROPRIATE TO THE NATIONAL TREASURY , IN THE FRAMEWORK OF A GENERAL PROGRAMME FOR THE ECONOMY AFFECTING MOST SECTORS OF THE POPULATION , A CONSIDERABLE PORTION OF THE INCREASE IN AGRICULTURAL INCOME RESULTING FROM A CHANGE IN THE RATE OF EXCHANGE USED FOR THE IMPLEMENTATION OF THE COMMON AGRICULTURAL POLICY IS NOT IN ITSELF INCOMPATIBLE EITHER WITH THE PROVISIONS OF THE EEC TREATY ON THE COMMON AGRICULTURAL POLICY OR WITH THE PROVISIONS ON THE COMMON ORGANIZATION OF THE MARKETS , EVEN IF THE INTRODUCTION OF THE TAX IS CLOSELY LINKED TO THAT CHANGE IN THE RATE OF EXCHANGE ;
2 . SUCH INCOMPATIBILITY WOULD , HOWEVER , EXIST TO THE EXTENT TO WHICH THE INCREASE IN THE LAND TAX HAD THE EFFECT IN PARTICULAR , AS A RESULT OF ITS INFLUENCE ON PRICE FORMATION OR THROUGH THE CHANGE IN THE STRUCTURE OF AGRICULTURAL HOLDINGS WHICH MIGHT RESULT THEREFROM , OF IMPEDING THE FUNCTIONING OF THE MACHINERY PROVIDED FOR UNDER THE COMMON ORGANIZATION OF THE MARKETS ;
3 . IT IS FOR THE NATIONAL COURT TO DECIDE WHETHER , AND IF SO TO WHAT EXTENT , THE TAX OF WHICH IT IS REQUIRED TO TAKE COGNIZANCE DID IN FACT HAVE SUCH EFFECTS .
