C-170/86
ECLI:EU:C:1988:3
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VON DEETZEN v HAUPTZOLLAMT HAMBURG-JONAS
O P I N I O N OF ADVOCATE GENERAL SIR G O R D O N SLYNN delivered on 13 January 1988
My Lords, under Directive 72/159/EEC (Official Journal, English Special Edition 1972, L 92, p. 1); where public funds were granted to the milk producer between 1 July 1978 and 29 February 1984 for investment without a This reference for a preliminary ruling from formal development plan; where a the Finanzgericht Hamburg concerns essen- construction project was authorized tially similar issues to those arising in Case between 1 July 1978 and 29 February 1984; 120/86 Mulder w Minister van Landbouw en and where such a construction project was Visserij [1988] ECR 2321 and I shall make completed between 1 July 1978 and 29 reference where necessary to my Opinion in February 1984. that case to avoid repetition.
In the Federal Republic of Germany, The agreed relevant facts stated in the Council Regulation (EEC) N o 1078/77 of Order for Reference may be summarized as 17 May 1977 (Official Journal 1977, L 131, follows. p. 1) was implemented by an Order of the Minister for Food, Agriculture and Forestry of 22 June 1977 (BGBl. I p. 1006). The super-levy introduced by Council Regu- lations (EEC) Nos 856/84 and 857/84 (Official Journal 1984, L 90, pp. 10 and 13 Mr von Deetzen is a farmer aged 63 whose respectively) was implemented by the total holding of 41.7 hectares in the Weser •Verordnung über die Abgaben im Rahmen marshes consists of pasture land which he von Garantiemengen im Bereich der claims is not suitable for arable farming. His Marktorganisation für Milch und youngest son is being trained as a dairyman; Milcherzeugnisse' (Milch-Garantiemengen- and it is intended that the second youngest Verordnung) ('the Milk Guaranteed Quan- son, presently aged 22, should inherit the tities Regulation') of 25 May 1984 (BGBl. I, farm. At present Mr von Deetzen owns p. 720) as most recently amended by the some 40 milk cows and 80 young cattle. regulation of 18 June 1986 (BGBl. I, p. 911). The Milk Guaranteed Quantities Regulation creates a producer-based (formula A) levy (paragraph 1) and sets the reference quantities on the basis of production in 1983 (paragraph 4). In 1980 Mr von Deetzen applied for a Paragraph 6 sets out certain special situ- non-marketing premium (not, as I ations in which a reference quantity other understand Annex 1 to the application to than that envisaged in paragraph 4 may be the Finanzgericht, a conversion premium) allocated. These are where the milk pursuant to Regulation N o 1078/77. The producer is in receipt of development aid premium, granted on the basis of a milk
OPINION OF SIR GORDON SLYNN — CASE 170/86
quantity of 190 665 kg, was approved by a Unlike Mulder, no questions are referred notice dated 12 July 1980. Mr von Deetzen dealing specifically with the powers and was accordingly required not to market milk obligations of Member States in for a period of five years. This period implementing the super-levy. included the y e a r — 1 9 8 3 — chosen by the Federal Republic of Germany as the reference year for the super-levy. Mr von Deetzen's five-year non-marketing period expired on 7 September 1985. The written arguments presented by the applicant were framed in terms of funda- mental rights under German national law rather than in Community law terms. At the hearing, the emphasis was placed on the O n 22 May 1985 Mr von Deetzen applied principle of legitimate expectations, on the to the Hauptzollamt Oldenburg for the alleged discrimination as between producers allocation of a reference quantity of 190 665 whose undertakings not to market milk had kg of milk under the Milk Guaranteed expired in time for them to be producing Quantities Regulation. H e was allocated a milk again in the reference year and those reference quantity of 0 kg by decision dated who, like the applicant, were still bound by 2 October 1985. Following the rejection of those undertakings and on the limitation to his administrative appeal, he brought Mr von Deetzen's right to exercise his proceedings for a declaration before the profession. Finanzgericht Hamburg, which decided on 26 June 1986 to refer the following question to the Court arising out of those proceedings :
In my Opinion in Mulder I reached the conclusion that the legitimate expectations of persons who had accepted a marketing premium against an undertaking not to 'Are Council Regulations (EEC) Nos produce milk for a five-year period which 856/84 and 857/84 of 31 March 1984 (the inluded the relevant reference year had not latter as most recently amended by Regu- been respected and that there had been lation (EEC) N o 3571/85) and Commission discrimination against them so that, Regulation (EEC) N o 3571/84 of 16 May accordingly, Regulation N o 857/84 was 1984, as most recently amended by Regu- void in so far as it failed to make specific lation (EEC) N o 3005/85, valid even provision for those in the position of the though farmers who did not produce milk applicant. The issue in the present case is during the relevant reference period because substantially identical. I am of the same they received a non-marketing or a conclusion on those two grounds. conversion premium and who have accordingly not been allocated a reference quantity for the purposes of the milk quota rules are required to pay a levy of 75% of the milk target price on recommencing milk production after the expiry of the five-year The present applicant raises a further period laid down on the grant of the argument, in the context of the exercise of premium?' his property rights, that his liberty to
VON DEETZEN v HAUPTZOLLAMT HAMBURG-JONAS
exercise his profession has been affected. concluded that there had been a breach of For the reasons given in Case 44/79 Hauer the other two principles referred to. In the v Land Rheinland-Pfalz [1979] ECR 3727, I circumstances, however, it is unnecessary to would not accept that there had been a consider this claim further since it adds violation of such rights if I had not nothing.
Accordingly in my opinion the question referred falls to be answered along the following lines:
'Council Regulations (EEC) Nos 856/84 and 857/84 of 31 March 1984 (the latter as most recently amended by Regulation (EEC) N o 3571/85) and Commission Regulation (EEC) N o 1371/84 of 16 May 1984 as most recently amended by Regulation (EEC) N o 3005/85 are void in so far as those Regulations contain 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 Council Regulation (EEC) N o 857/84 because they had given undertakings not to market milk during that period under Article 2 (2) of Council Regulation (EEC) N o 1078/77.'
The costs of the parties to the main proceedings fall to be dealt with by the national court. The costs of the Council and the Commission are not recoverable.