C-120/86
ECLI:EU:C:1988:1
- Súd
- Súdny dvor Európskej únie
- IČS
- 61986CC0120
- Zdroj
- eur-lex.europa.eu ↗
OPINION OF SIR GORDON SLYNN —CASE 120/86
OPINION OF ADVOCATE GENERAL SIR G O R D O N SLYNN delivered on 13 January 1988
My Lords, measures. These were Council Regulation (EEC) No 856/84 of 31 March 1984 (Official Journal 1984, L 90, p. 10), which imposed a 'super-levy', additional to the co-responsibility levy, on quantities of milk delivered beyond a guarantee threshold in The market in milk and milk products in the five consecutive years beginning on 1 April Community has been characterized for 1984; and Council Regulation (EEC) No many years by problems of over-supply. In 857/84, also of 31 March 1984 (Official 1978, the Council introduced two regu- Journal 1984, L 90, p. 13), which laid down lations aimed at bringing the situation under general rules for the determination of control. The first, which provides the reference quantities and the amount of the starting point for the present preliminary levies. Detailed rules for the application of reference, was Council Regulation (EEC) the additional levy were laid down in No 1078/77, of 17 May 1977 (Official Commission Regulation (EEC) No 1371/84 Journal 1977, L 131, p. 1). That Regulation of 16 May 1984 (Official Journal 1984, L introduced two types of premium — a 132, p. 11), as amended. The period during non-marketing premium and a conversion which the super-levy is payable has since premium — aimed at '[encouraging] the been extended until 1991. trend noted among certain groups of holding in the Community to cease milk production or the marketing of milk and milk products' (recital 1). The non- marketing premium was conditional upon the giving by the producer of a written undertaking not to market milk or milk products for a five-year period. The conversion premium was to be paid where dairy herds were converted to meat production and no milk or milk products were disposed of. The second measure, introduced by Council Regulation (EEC) No 1079/77, also of 17 May 1977 (Official Under Article 2 of Regulation No 857/84, Journal 1977, L 131, p. 6), imposed a low the reference quantity was fixed equal to the 'co-responsibility levy' on virtually all quantity of milk delivered by the producer supplies of milk for treating or processing. (Formula A) or purchased by the purchaser (Formula B) during the 1981 calendar year save that Member States could, as an alter- native, fix the reference quantities equal to the quantity of milk delivered or purchased during the 1982 calendar year or the 1983 In 1984, it became apparent that more calendar year, weighted by an appropriate stringent measures were required and the percentage so as not to exceed the overall Council accordingly adopted two further guaranteed quantity for that Member State.
MULDER v MINISTER VAN LANDBOUW EN VISSERIJ
Article 3 provided that, 'certain special situ- necessary, in other regions. Any reference ations shall be taken into account' for the quantities freed are to be added to the determination of reference quantities and in national reserve constituted by Article 5, accordance with the application of Formulas from which source alone additional A and B. These included, firstly, cases reference quantities for the application of where milk production development plans Articles 3 and 4 are to be drawn. under Directive 72/159/EEC (Official Journal English Special Edition 1972, p. 324) had been lodged before 1 March 1984 when reference quantities, it is said, may be obtained 'according to the Member State's decision'. Moreover, 'Investments carried out without a formal development plan can Article 7 authorizes the transfer of reference also be taken into account if the Member quantities upon sale, lease or inheritance of State has sufficient information'. an undertaking to which a reference quantity has earlier been assigned.
Regulation No 1078/77 was implemented in Secondly, specific reference quantities might the Netherlands by Administrative Order be granted to young farmers and, thirdly, No 184 of the Stichting Ontwikkelings- en reference might be made to another Saneringsfonds voor de Landbouw (the calendar reference year within the 1981 to Agricultural Development and Restructuring 1983 period where milk production was Fund) (Staatscourant 126; modified by a affected by exceptional events such as further order dated 29 June 1978). That natural disaster or the accidental destruction order empowers the Agricultural Fund to of fodder or buildings. Article 3 of enter into non-marketing and conversion Commission Regulation No 1371/84 added agreements with producers. three further situations of force majeure in which a different reference year might be taken. There are further provisions in Article 4 concerned with the restructuring of milk production by granting compen- sation payments to farmers undertaking to discontinue milk production definitively, or By Order N o J 1731 of 18 April 1984 (the by granting an 'additional' reference 'Beschikking superheffing' or Super-levy quantity to producers realizing a milk Decree, Staatscourant 79, as amended), production development plan under provision was made for the implementation Directive 72/159/EEC and to producers in the Netherlands of Regulation No undertaking farming as their main occu- 857/84 and accompanying provisions. pation. Under Article 4a (inserted by Formula A was chosen (Article 2) and Council Regulation (EEC) N o 590/85 of 26 reference quantities established by reference February 1985, Official Journal 1985, L 68, to deliveries in 1983 (Article 5(1)). Articles p. 1, and subsequently extended) Member 11, 12 and 13 of the Order implement the States were permitted to allocate Community rules relating to the grant of a non-utilized reference quantities of special quantity free of levy in specific cases producers or purchasers to producers or and the application, in certain exceptional purchasers in the same region and, if circumstances, of a reference year other
OPINION OF SIR GORDON SLYNN — CASE 120/86
than 1983. Finally, Article 19 of the decree ' 1 . Having regard to the third recital in its gives the Minister residual powers to grant preamble, must Council Regulation reference quantities. That Article states: (EEC) No 857/84, as supplemented by Commission Regulation (EEC) No 1371/84, be interpreted as meaning that in establishing the reference quantities referred to in Article 2 Member States may not take into account situations which are not provided for in the Community regulations, in particular the 'For quantities in respect of which claims situation of persons who in accordance are no longer accepted, the Minister shall with Council Regulation (EEC) No admit such claims as shall be determined. 1078/77 have delivered no milk in a H e may admit claims in circumstances other reference year, and may not adopt than those referred to in this decree'. measures permitting the grant to such persons of a specific quantity?
2. If the answer to the first question is in the affirmative, is Regulation No 857/84 invalid on the grounds that it is contrary Until October 1979, the applicant kept dairy to Community law as it now stands, in cows and supplied about 500 000 kg of milk particular: per year to the dairy. In October 1979, he entered into an agreement with the Agri- cultural Fund (in pursuance of Council Regulation N o 1078/77) in which he a. the principle of legal certainty undertook inter alia to supply no milk or milk products during the period from 1 October 1979 to 30 September 1984. In the b. the principle of proportionality reference year 1983 (as in 1981 and 1982) the applicant therefore delivered no milk. O n 28 May 1984 he submitted an application under Article 19 of the decree, c. the right to enjoy property requesting a quota free of levy of 726 000 kg of milk. d. the prohibition of discrimination laid down in Article 40 (3) of the EEC Treaty
e. the prohibition of the misuse of T h e defendant rejected the application by powers, decision issued on 24 September 1984. The applicant brought proceedings against that decision on 17 October 1984 before the College van Beroep voor het Bedrijfsleven, since the Regulation does not take into which stayed proceedings and referred three account persons who in accordance with preliminary questions to the Court of Regulation (EEC) No 1078/77 have Justice : delivered no milk in a reference year?
MULDER v MINISTER VAN LANDBOUW EN VISSERIJ
3. If the answer to the first question is in normal scheme is that a reference quantity is the negative, does a Member State equal to the quantity of milk delivered by infringe Community law as it now stands the producer, or the quantity of milk when it fails to make provision as purchased by a purchaser, as adjusted, referred to in the first question for during the reference year. Ex hypothesi persons who in accordance with Regu- someone who made an agreement for five lation (EEC) No 1078/77 have delivered years which includes the reference year has no milk in a reference year?' produced or purchased no milk in that year and it seems likely that a substantial number of agreements made would include the reference year in the five-year period. Prima facie, therefore, such a person is not entitled The third recital in the preamble to Council to a reference quantity and cannot avoid Regulation No 857/84 reads as follows: paying the additional levy in respect of milk produced or purchased as the case may be.
"Whereas the Member States should be enabled to adapt the reference quantities to There are exceptions, as for young farmers take into account the special situations of or those producers who have lodged devel- certain producers and to establish for this opment plans before 1 March 1984, and purpose, as necessary, a reserve within the those who can persuade Member States that abovementioned guaranteed quantity'. they have made investment without a devel- opment plan before, as the Council argues, 1 March 1984. Assuming, contrary to the express language of Article 12 of Regulation No 857/84, that a person who before 1 The first question, as I read it, postulates April 1984 was not that there are no provisions in Regulation N o 857/84 or in Regulation No 1371/84 dealing with the specific situation of persons who, as a result of an agreement made under Article 2 of Regulation N o 1078/77, '— selling milk or milk products directly to delivered no milk in the appropriate the consumer, and/or reference year. It accordingly asks whether, on that basis, Member States can under the regulation take such a situation into account and grant a reference quantity to a person in such a situation. The third question is linked and asks whether, if the Regulation is — supplying the purchaser' not to be read as giving such power, Community law generally requires a Member State to grant a reference quantity to a person in such a situation. is to be regarded as a producer for the purposes of Article 3 (1) of that regulation, then some persons who entered into non-marketing agreements may be able to It seems to me that the premise upon which benefit from this provision if they had the the first question is based is correct. The good fortune to lodge a plan before 1
OPINION OF SIR GORDON SLYNN — CASE 120/86
March 1984 (i. e. a month before Regu- non-marketing agreement pursuant to lation N o 857/84 appeared in the Official Regulation No 1078/77 being given a Journal). The same may be true if they reference quantity for the purposes of made investments before that date without a Regulation No 857/84, there is no general development plan, though the provision of provision that such persons may be the second paragraph of Article 3 (1) is to considered for such a reference quantity. say the least, imprecise and hardly Nor can I find that the regulation has any conducive to uniform application throug- provisions which by necessary implication hout the Community. empower Member States to have regard to such persons, or to grant them reference quantities in respect of a relevant year during which they produced no milk. Even on the basis adopted by the Court in Joined Cases 201 & 202/85 Marthe Kipgen (née Klensch) et al· v Secretaire d'Etat à l'agri- Article 3(3) of Regulation N o 857/84 culture et à la viticulture (judgment 25 dealing with force majeure situations is not November 1986, paragraph 21) that when it capable of applying to persons who are not is necessary to interpret a provision of producing during the relevant year and, in secondary Community law preference any event, permits reference only to another should be given to the interpretation which year in the 1981-83 period, during the renders the provision consistent with the whole of which many of such persons were Treaty, I do not find it possible to read in not producing milk pursuant to the such a power. T o do so would in my view agreement which they had made. be to read in what is not there.
The provisions in Article 4 or 4a dealing with the allocation or transfer of certain quantities do not help such a person as a general rule, since they provide for such an In my opinion, the first question falls to be allocation or transfer only to a producer answered in the affirmative and the third who has an existing reference quantity. The question does not accordingly arise. suggestion made that such a person can buy or lease or inherit a business having a reference quantity, under Article 7 of the regulation, seems to be capable of being relevant only to a limited number of persons and does not affect the general position.
The second question proceeds on the basis that persons who have produced no milk in a reference year, so that they must pay the Accordingly, it seems to me that the answer additional levy on all milk which they to the first question is that, although there produce during the period whilst the are limited exceptions which may lead to super-levy is to be imposed (it seems effec- a person who had entered into a tively for 10 years), are in effect barred
MULDER v MINISTER VAN LANDBOUW EN VISSERIJ
from returning to milk production. It is cash payment. There was nothing in the asked whether Regulation No 857/84 is to arrangement to insist, even to signal, that if that extent void under general principles of the non-marketing premium was accepted, Community law or as being contrary to the they would at the end of the period be out prohibition of discrimination found in of business. This does not mean that they Article 40 (3) of the EEC Treaty. could assume that at the end of the period they could resume business as before. In the absence of an obligation entered into by the authorities they must accept restrictions as to the way their business is to be conducted which are subsequently adopted (Case 84/78 Tomadini v Amministrazione delle It is plain that when 'quantities of milk Finanze dello Stato [1979] ECR 1801 at delivered are increasing at a rate such that 1815 (paragraph 21)). It seems to me, disposal of surpluses is imposing financial however, that they could reasonably expect burdens and market difficulties which are at the end of the non-marketing period that jeopardizing the very future of the common the arrangements made for the control of agricultural policy" (third recital to Regu- the market would take into account the fact lation N o 856/84) stringent measures may that they had given up production in the have to be adopted and that some producers common interest and would not ignore may be precluded from increasing or may them, nor, in business terms, exclude them be obliged to cut back production. Others totally from resuming production, which may be precluded from entering the market. they had temporarily stopped, for a much It is no less plain that the appreciation of longer period. the necessary measures is for the Council and the Commission but subject always to compliance with overriding rules of Community law such as those referred to in the second question.
To substitute a quota system (from which they were excluded because they had entered into a non-marketing arrangement limited to a five-year period) for such a non-marketing arrangement seems to me to The starting point as I see it is whether be contrary to the legitimate business expec- those who have agreed not to market milk tation of the farmers who took part in the (in return for a premium) could be said to non-marketing arrangements. It crosses the have accepted that they were leaving the line between what is merely 'hard business market completely. Whatever the position of luck' and what is unreasonable treatment. those who took the conversion premium, it does not seem to me that those who accepted the five-year non-marketing premium have done more than accept that they would not dispose of milk for a period of five years at a time when the Community wished to control milk production. They Such persons were, in my view, in a were suspending rather than terminating different position from those who had never production. There was a mutual produced milk or who had given up benefit — for the Community reduction in production for reasons wholly unconnected milk production, for the farmer an annual with schemes adopted under the common
OPINION OF SIR GORDON SLYNN —CASE 120/86
organization of the market like the non-marketing premium, these would have non-marketing premium scheme. It was in come out of the national reserve referred to my view discriminatory to treat them all as in Article 5 of Regulation No 857/84. if they were in the same position. Assuming that there was something in such a reserve for such applicants, it seems probable that balancing out conflicting claims against variable available quantities could lead to very divergent grants in different Member States.
Moreover, the system adopted does not seem to me to treat with an even hand those in a similar position. Thus a producer who signed a non-marketing undertaking in 1977, whose Member State adopted 1983 as the reference year, could have resumed It seems to me, accordingly, that the production in 1983 so as to have a reference provisions of Regulation N o 857/84 are quantity. A producer who had signed the void in so far as they do not make any same undertaking in 1977 would fail if the provision for the resumption of milk Member State had taken 1981 as the production by those who had contracted to reference year. If a producer had signed the give up production for a period of five years same undertaking in 1979 or even late in in return for a non-marketing premium and 1978 he would not have been able to have a effectively exclude them from business, reference quantity whichever reference year either on the ground that their legitimate was taken by the Member State. Moreover, expectations were not respected or that the the fixing of 1 March 1984 (by a regulation scheme adopted was discriminatory. published in the Official Journal on 1 April 1984) as the cut-off date for the lodging of a development plan or the making of investment without a plan (if there is such a temporal limitation as the institutions contend) is capable of discriminating between persons in a like position. To give prior warning 'unless you invest by 'x' you In these circumstances it is unnecessary to are excluded' is quite different from saying consider the other grounds referred to in that those who did not invest by 'x' (when the second question. I do not, however, the starting dates of the five-year period can consider that what has been done is to be be widely scattered) are post hoc excluded. categorized as misuse of powers or that there was a violation of the right to enjoy property in the sense explained by the Court in Case 44/79 Hauer [1979] ECR 3727, in the absence of any discrimination or breach of legitimate expectations. Although the general scheme has not been shown to be more than was needed to achieve the objective sought to be achieved, it might be In any event it seems to me that, even if said that to leave out persons of the kind there were power to give some reference now being considered was itself dispropor- quantities to persons who had accepted the tionate.
MULDER v MINISTER VAN LANDBOUW EN VISSERIJ
That, however, seems to me to be another such persons could reasonably have way, and perhaps a more artificial way, of expected to receive on a non-discriminatory saying that what was done took away what basis.
Accordingly in my opinion the questions referred fall to be answered along the following lines.
(1) Council Regulation (EEC) N o 857/84, as supplemented by Commission Regu- lation (EEC) N o 1371/84, must be interpreted as meaning that, in establishing the reference quantities referred to in Article 2 Member States may not take into account situations which are not provided for in the Community regu- lations, in particular the situation of persons who in accordance with Council Regulation (EEC) N o 1078/77 have delivered no milk in a reference year.
(2) Council Regulation (EEC) N o 857/84 is void insofar as it contains no explicit provision taking into account the position of former milk producers who had no milk production in the reference years specified in Article 2 (1) and (2) of the regulation because those producers had given undertakings not to market milk during that period pursuant to Article 2 (2) of Council Regulation (EEC) N o 1078/77.
(3) Given that the answer to the first question is in the affirmative, the third question referred by the national court no longer requires an answer.
The costs on the reference of the parties to the main proceedings fall to be dealt with by the national court. The costs of the Netherlands Government and of the Council and the Commission are not recoverable.