C-84/87
ECLI:EU:C:1988:134
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OPINION OF MR DARMON — CASE 84/87
O P I N I O N O F M R A D V O C A T E GENERAL D A R M O N delivered on 8 March 1988 *
Mr President, 3. It should first be noted that there is no Members of the Court, ambiguity in the aforementioned Article 3 (3) which provides that 'Producers . . . shall obtain, on request, reference to another calendar reference year within the 1981 to 1983 period'. It excludes the choice by analogy of a reference year prior to the specified period or a calculation by extrapo- 1. As in Case 61/87, Article 3 (3) of lation on the basis of the trend of the Council Regulation (EEC) No 8 5 7 / 8 4 ' of producer's production. Furthermore, since it 31 March 1984 is the provision 2 which the contains a derogation from the normal rules Court is called upon to examine. That for determining the reference quantities, the provision authorizes, in certain exceptional provision must be interpreted restrictively. situations, producers to choose from within Nor do I think that the concept of force the 1981 to 1983 period a different majeure can here make possible something reference year from that chosen at national that is categorically ruled out by the clear level; the question here is to what extent and precise wording. any other option, such as a notional year calculated by extrapolation or a year earlier than that period is thereby precluded.
4. In the first place, the solution advocated by the applicant is technically distinct from the traditional effects of force majeure, which are to free a party from the conse- 2. In support of his argument the applicant quences of failure to perform or in the main proceedings (hereinafter non-compliance with an obligation. Mr referred to as 'the applicant') claims that the Advocate General Capotorti drew attention concept of force majeure applies in his case. to this point in his Opinion in IFG v The Commission disagrees, observing that Commission where the Court was to adopt the list of possibilities in the abovemen- his analysis. 4 tioned provision is exhaustive. The Council shares the Commission's view but stresses that other provisions of the Community rules may allow additional quantities to be allocated to a producer in a situation like that of the applicant. 'Under national legal systems force majeure is, of course, generally recognized as a * Translated from the French. factor which may exonerate an individual 1 — Adopting general rules for the application of the levy from the effect of non-observance of a referred to in Article 5c of Regulation (EEC) N o 804/68 in positive obligation or of a prohibition by the milk and milk products sector (Official Journal 1984, L 90, p. 13). which he is bound.' 2 — The question also refers to Article 3 of Regulation (EEC) N o 1371/84; however, this provision merely supplements the list of situations in which another reference year may 3 — Judgment of 14 February 1978 in Case 68/77 [1978] ECR be taken into account. As such it does not appear to require 353. interpretation. 4 — At paragraph 11.
ERPELDING v SECRÉTAIRE D'ÉTAT À L'AGRICULTURE ET A LA VITICULTURE
However, this case is not concerned with not the role of the Court to investigate to excusing the failure to perform an obli- what extent the party concerned fulfils the gation but obtaining a different reference conditions for benefiting from those year from that resulting from the system provisions. However, such an examination, provided for by the rules. which is a matter for the national court, must take account of the judgment in Klensch v Secrétaire d'État, 7 in which the Court stated that when Member States may
5. It should be noted that the applicant is choose various methods of implementing the requesting not the application by analogy of rules concerned, they must comply with the the provision in question but a solution principle of non-discrimination. It is true which is the only way of taking into that Klensch concerned a measure of a account, in his view, the specific features of general nature, namely the choice of the his situation. Thus, in a manner of speaking reference year. However, a different he is seeking from the Court an 'invented' solution cannot be adopted where individual provision which is quite independent of the measures are concerned. In this respect the expressed will of the legislature. Court has stated in its judgment in Eridania v Minister for Agriculture and Forestry that 'the general principles of Community law
6. Irrespective of the method of interpre- [. . . ] are binding on all authorities tation employed, the course thus proposed entrusted with the implementation of cannot be followed. Although the rule of Community provisions'. 8 Therefore, I law is flexible it is not so plastic as to permit would agree with the Council's observation such an interpretation which could be that the fact that Member States may explained but not legitimized on the choose between several methods for the grounds of fairness. adjustment of individual quotas does not release them from their obligation to observe the principle of non-discrimination. In my opinion the national court should
7. During the written procedure and at the apply that principle if the circumstances so hearing reference was made to various warrant. provisions of Articles 3 and 4 of Regulation No 857/84 which might permit the grant of additional or specific quantities, as well as the interregional compensation provided for in Article 4a. 9. However, in view of the reply required by the actual wording of the first question it is necessary to examine the validity of the provision with regard to Article 39 (a) and
8. There is no gainsaying the practical (b) of the Treaty. The judgments in Balkan- interest of such possibilities with regard to a Import-Export v Hauptzollamt Berlin- situation like that of the applicant, Packboß and Roquette v France 10 set out the particularly since they bear witness to the principles to be taken into account in this Council's concern to 'take into account the respect. special situation of certain producers' 5and even that 'the Community mechanisms 7 — Judgment of 25 November 1986 in Joined Cases 201 and should be made less rigorous'. 6It is clearly 202/85 [1986] ECR 3477. 8 _ Judgment of 27 September 1979 in Case 230/78 [1979] ECR 2749, at paragraph 31. 5 — Third recital in the preamble to Regulation N o 857/84. 9 — Judgment of 24 October 1973 in Case 5/73 [1973] ECR 6 — Second recital in the preamble to Council Regulation (EEC) N o 590/85 of 26 February 1985 amending Regu- 1091, at paragraph 24. lation (EEC) N o 857/84 (Official Journal 1985, L 68, 10 — Judgment of 20 October 1977 in Case 29/77 [1977] ECR p 1)· 1835, at paragraphs 29 and 30.
OPINION OF MR DARMON — CASE 84/87
'Article 39 of the Treaty sets out various court's questions, I suggest that the objectives of the common agricultural provision be analysed in the light of Article policy. 40 (3) of the Treaty which prohibits discrimination between producers within the Community and provides for the adoption In pursuing these objectives, the Community of measures required to attain the objectives institutions must secure the permanent of the common agricultural policy. It is harmonization made necessary by any accepted that that wording is the conflicts between these aims taken indi- embodiment of the principle of propor- vidually and, where necessary, allow any tionality in the sector in question. one of them temporary priority in order to satisfy the demands of the economic factors or conditions in view of which their decisions are made.' 13. In that respect it must first be pointed out that by adopting the provision in question the Council intended precisely to avoid the unjustified rigidity inherent in a
10. Certainly, the additional levy system, system which would not have allowed which is intended to re-establish a balance another reference year to be taken into between supply and demand in the milk account under any circumstances. It will be sector, is based on limiting production, agreed that this is clearly an embodiment of which entails a stabilization of the income the principle of proportionality. Admittedly, of the farmers concerned. But it is clear that other solutions would have been the objectives of rational development of conceivable. One example is the proposal dairy production and even the maintenance put forward at one stage by the of a fair standard of living for the agri- Commission, that the period from which the cultural community are also being pursued producer's reference year was to be chosen within this system. The provision in question should be extended to include 1980. must be assessed in the light of this general However, it must be borne in mind that any context and it would appear paradoxical to widening of the choice of the persons regard it as invalid even though, for the affected involves major disadvantages. First,
producer's benefit, it introduces great flexi- there is a risk that producers would choose bility in the determination of the reference a reference year which was not merely years. unrepresentative but which would ultimately reveal a truly remarkable yield. Given the number of Community producers such a consequence could not be regarded as 11. Although the national court did not negligible. specifically refer to them, the applicant claimed that the principles of propor- tionality and non-discrimination had been breached. For its part, the Commission suggests that the provisions should be 14. The Community legislature must strike examined in the light of Article 40 (3) of the a balance between the interests at stake.
The Treaty on which basis, moreover, it argues specific situation of one producer cannot of that the regulation is valid. itself affect the validity of the disputed provision, whereas it is intended precisely to meet the requirements of the principle of proportionality. The Court held in the 12. In order that the Court's answer in this judgment in Balkan-Import 11 that: respect should be of practical use, bearing in mind the underlying logic of the national 11 — Case 5/73, supra.
ERPELDING v SECRÉTAIRE D'ETAT A L'AGRICULTURE ET A LA VITICULTURE
'In exercising their powers, the institutions itself to cases of manifest error, a misuse of must ensure that the amounts which power or where the authority in question commercial operators are charged are no had clearly exceeded the bounds of its greater than is required to achieve the aim discretion. which the authorities are to accomplish; however, it does not necessarily follow that that obligation must be measured in relation to the individual situation of any one particular group of operators'. 12 16. In the light of the foregoing it is impossible to require the Community legis- lature to have covered every fortuity and individual case. That, moreover, is implicit in the judgment in Maizena v Council·* in which the applicant pleaded that quotas had 15. As regards any breach of the principle been fixed in a discriminatory manner which of non-discrimination, that would pres- failed to take into account investment limits uppose unequal treatment based on voluntarily agreed to by certain isoglucose arbitrary criteria. In allowing the producers producers. The Court stated: a choice within the 1981 to 1983 period the Council was entitled to consider that such an option was statistically likely to guarantee producers a representative quantity. In any event, it appears that such 'The Council is not to blame for failing to an option in no way exceeds the guidelines take into account the commercial choices set out in the judgment in Roquette frères v and internal policy of each particular under- Council 13 where the Court stated: taking when it adopts measures of general interest to prevent the uncontrolled isoglucose production from jeopardizing the sugar policy of the Community'.
'When the implementation by the Council of the agricultural policy of the Community involves the need to evaluate a complex I propose that an analogous solution should economic situation, the discretion which it be applied here and would endorse the has does not apply exclusively to the nature Opinion of Mr Advocate General Roemer and the scope of the measures to be taken in the Oehlmann v HauptzolUmt Munster but also to some extent to the finding of the case: 15 basic facts inasmuch as, in particular, it is open to the Council to rely if necessary on general findings.' 'it must be observed that there is no principle of law that requires that rules issued in the exercise of sovereign powers should always place those concerned in the The Court then stated that in reviewing the position in which they would have been if exercise of such a power it would confine the case of force majeure had not arisen'.
12 — At paragraph 22 t emphasis added. 14 — Judgment of 29 October 1980 in Case 139/79 [1980] ECR 13 — Judgment of 29 October 1980 in Case 138/78 [1980] ECR 3393, at paragraph 30. 3333, at paragraph 25. 15 — Judgment of 24 June 1970 in Case 73/69 [1970] ECR 467.
OPINION OF MR DARMON — CASE 84/87
17. I therefore propose that the Court should rule as follows:
"Where a producer's production has been affected throughout the 1981-83 period because of an exceptional situation, Article 3 (3) of Regulation N o 857/84 does not allow reference to be made to the production of a year prior to that period or a notional production calculated by extrapolation; this solution in no way precludes the specific examination of the producer's situation with regard to provisions of Community rules for which he does meet the conditions.
Consideration of the abovementioned provision has disclosed no factor of such a kind as to affect its validity'.