C-61/87

OPINION OF MR D ARMON — CASE 61/87

O P I N I O N OF MR ADVOCATE GENERAL D A R M O N delivered o n 8 M a r c h 1988 *

period, France having chosen 1983. In case Mr President, of excess, the levy is charged to the Members of the Court, purchaser who then passes on the burden thereof to producers who have exceeded the individual quantity which was used to determine the purchaser's reference 1. T h e rules for the control of production quantity. laid down in Council Regulation N o 856/84, ' which were intended to re-establish the equilibrium of the milk 4. The proceedings before the national market, on which there were significant court concern Article 3 (3) of Council structural surpluses, establish, for a period Regulation N o 857/84 2 which permits, in of five years, an additional levy, in addition the context of formulas A and B, producers to the co-responsibility levy introduced in whose milk production during the reference 1977, on quantities of milk collected in year chosen was significantly affected by excess of a guaranteed threshold. exceptional events to obtain, on request, reference to another year within the 1981 to 1983 period. 2. In the implementation of that system, commonly referred to as 'milk quotas', the determination of the reference quantity is 5. In 1983 France suffered a drought the essential inasmuch as the exceeding of that seriousness of which led the national auth- quantity gives rise to the charging of a levy orities to adopt inter-ministerial decrees equal to 100% of the target price for the recognizing the existence of natural milk collected. disasters in the majority of départements on the basis of which a procedure for granting 'disaster supplements' was set up.

plaintiffs in the main proceedings. They answered in the affirmative, there is contest the method adopted by the French obviously no need to consider whether the authorities in making the calculation and fact that producers delivering to the same claim that a correct application of creamery are allocated separate 'disaster Community rules would not have led to that percentages' is discriminatory, since the very result. principle of such a reduction is excluded. It should then be considered whether producers' individual quantities may be transferred within the overall reference

With regard to the precise scope thereof, I would observe, as does the 9. Notwithstanding that relative uncertainty Commission, that the general rules concerning the nature of the dispute which governing the determination of reference the order for reference does not dispel, it quantities, such as the uniform reduction appears that the plaintiffs are criticizing two and the variations provided for in Article 2 aspects of the method employed. On the (2) of Regulation No 857/84, must be one hand, the producers concerned did not applied to the new reference year. obtain the entire benefit of the 'substituted' reference year, contrary to the provisions of Article 3 (3) of the regulation at issue.

questions. More particularly, I would suggest that the Court consider first the scope of the option provided for in Article 3 (3), namely whether it implies that the 14. In the light of the foregoing, it should producer's individual quantity corresponds be pointed out that, in the view of the to the entirety of his production during the French Government, which states in its 'substituted' year. If that question is written observations that it considers that

'FormuL· B 15. It must be made clear here that only an assessment of the individual position of the producer concerned makes it possible to give him the benefit of the option provided A levy shall be payable by every purchaser for in Article 3 (3). Thus, the individual of milk or other milk products on the quan- production of the person concerned must tities of milk or milk equivalent which have have been significantly affected by excep- been delivered to him by a producer and tional events such as those set out in the which, during the 12 months concerned, text of the provision. An administrative exceed a reference quantity to be procedure certainly cannot exempt indi- determined.' vidual situations from examination. However, once a producer fulfils the conditions laid down, it would in any event I would remind the Court that the latter be contrary to the mandatory and precise quantity is necessarily equal to the quantity nature of the provision cited above to of milk purchased during the reference year, allocate to him only a fraction of the year adapted in cases in which Article 3 applies. chosen by way of substitution. Moreover, That being said, in the context of formula that rule is not contested by the French B, the producer's individual quantity makes Government, although the plaintiffs claim it possible essentially to calculate the that it has not actually been complied with. amount of the levy to be passed on to each individual where the creamery's reference quantity has been exceeded. It is only by way of exception that Regulation N o 773/87, 3 which was adopted after the 16. It remains to be ascertained whether occurrence of the events in this case, individual production may be transferred in provides that, in the context of formula B, the context of formula B, since the only Member States may charge a levy where criterion to be taken into consideration is producers have exceeded their individual the exceeding of the purchaser's reference quantities by 20 000 litres or 10%. The fact quantity. Let me state first that that quantity that such a possibility was made available must, if necessary, be increased as a conse- obviously presupposes that the exceeding of quence of special situations such as those an individual quantity in the context of resulting from the implementation of the formula B remains as such normally of no measure under consideration. The first consequence so far as giving rise to payment paragraph of Article 3 expressly provides of the levy is concerned.' that such situations are to be taken into account in determining reference quantities in the context of formulas A and B. 3 — Regulation No 773/87 of 16 March 1987 (Official Journal L 78 of 20 March 1987, p. 1).