C-16/89

OPINION OF MR VAN GERVEN —CASE C-16/89

O P I N I O N OF MR ADVOCATE GENERAL VAN GERVEN delivered on 2 May 1990 *

Mr President, (ii) if the plan has been implemented Members of the Court, after 1 January 1981, a special reference quantity taking into account the milk and milk product quantities which they delivered in 1. The College van Beroep voor het the year during which the plan was Bedrijfsleven (administrative court of last completed. instance in matters of trade and industry), The Hague, has requested the Court for a preliminary ruling on the interpretation of Article 3(1) of Council Regulation (EEC) No 857/84. 1 This provision reads as follows : Investments carried out without a devel- opment plan can also be taken into account if the Member State has sufficient infor- mation.' 'For the determination of the reference quantities referred to in Article 2 and in connection with the application of formulas A and B, certain special situations shall be taken into account as follows: 2. In its observations the Netherlands Government has stressed the importance of the case. Out of a total of 33 000 requests for an additional reference quantity, 6 600 (1) producers who have adopted milk (20%) concerned Article 11 of Beschikking production development plans under Superheffing (Super-Levy Decree), 3 by Directive 72/159/EEC 2 lodged before which the aforesaid provision was im- 1 March 1984 may obtain, according to plemented in the Netherlands. the Member State's decision :

4. As regards the facts of the main In my opinion this interpretation also proceedings, the legislation applicable and applies to the second indent of the first the observations submitted to the Court, I subparagraph of Article 3(1) (that is to say would refer to the Report for the Hearing. in the case at issue in the main proceedings, in which the development plan has been implemented after 1 January 1981).

Power or obligation? Limits of the power

5. By the first question the national court asks primarily whether Article 3(1) of Regu- 7. By the first and second questions the lation No 857/84 merely creates a power national court further seeks to establish the for the Member States to grant a special limits within which Member States must reference quantity to producers who lodged remain if they decide, in accordance with a milk production development plan under the aforesaid discretionary power, to grant a Directive 72/159 before 1 March 1994. special reference quantity to producers with a development plan.

6. The Court has already answered this 8. In answering this question it should be question in its judgment in Contée. In remembered that the principal aim of the paragraph 13 of its judgment, it actually additional levy introduced in the milk sector stated with regard to the first indent of the is to curb the increase in milk production. 6 first subparagraph of Article 3(1) of Regu- In accordance with that aim, Article 5 of

5 — Thus it is stated in the order for reference that the 6 — See Anicie 5c(l) of Regulation (EEC) N o 804/68 of the cowshed was put into use in November 1983. Council of 27 June 1968 on the common organization of Furthermore, it is clear from the order that the reference the market in milk and milk products (OJ, English Special quantity allocated to Mr Spronk was calculated pursuant Edition 1968 (I), p. 176), as amended by Council Regu- to Arude 11(4)(a) of the Super-Levy Decree, which lation (EEC) No 856/84 of 31 March 1984 (OJ 1984 applies where stalls are actually put into use in 1983. L 90, p. 10).

In accordance with this aim, the first subparagraph of Article 3(1) of Regulation No 857/84 provides that Member States who grant a special reference quantity to producers with a development plan must 9. Amongst the priority producers, determine this quantity 'taking account' producers with a development plan are an either (first indent) of the production important category. In its judgment in provided for in the development plan, if the Cornée the Court stated, however, that the plan is still being implemented, or (second implementation of a development plan does indent) of the production in the year in not confer on the producer concerned the which the plan is completed. right to produce the quantity of milk corre- sponding to the plan's objective (paragraph 26) and that they cannot rely on any alleged legitimate expectation based on the implementation of the plan in order to oppose any reduction in their reference 11. As regards the first indent, the Court quantities, provided that the reductions are states in Cornée that the words 'taking permitted under the relevant Community account' must be interpreted as meaning that the quantity granted must bear a 7 — In the Netherlands this percentage reduction was 8.65% in relation to the production objective of the the first year. development plan (paragraph 14). From

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SPRONK

that the Court inferred that the allocation of permit producers to make a return on their a single fixed quantity to all producers investment. Thus the milk production is incompatible with the regulation achieved by Mr Spronk in 1983 is not (paragraph 15). The Court goes on to state, representative of the increased production however, that the Member States are not capacity at his disposal after the new required to observe a strict proportionality cowshed was put into service in November between the objective of the plan and the 1983. A reference quantity which takes quantity to be granted. In other words, account solely of actual production although the objective of the plan is the throughout the whole of 1983 would hardly main criterion, other objective criteria may be in keeping with the aforesaid objective. be applied as well (paragraph 16).

I-3201

OPINION OF MR VAN GERVEN —CASE C-16/89

The discretionary power in this case 16. A further feature of the Netherlands rules is that the special quantity to be allocated is calculated on the basis of milk production in a period of approximately one calendar year before the investment obli- gations were incurred.8 To this quantity is 14. By the third question the national court added a special quantity calculated in seeks to establish whether Article 3(1) of accordance with the following formula: a Regulation No 857/84 permits the Member fixed quantity of milk (5 500 kg) is States to adopt rules such as those allocated for each extra stall constructed;9 contained in Article 11 of the Super-Levy three proportionate reductions are, Decree as regards producers who have however, applied to this additional quantity: incurred investment obligations. first, a reduction of 20% applicable to all producer-investors, with the exception of new dairy farmers for whom a reduction of 10% applies; secondly, a reduction of one-third for producers such as Mr Spronk who have actually put the new stalls into service in 1983 (for producers who put the 15. The first feature of Article 11 of the stalls into use after 1983 but before 1 April Super-Levy Decree which should be noted 1985 the reduction is two-thirds); thirdly, a is that the rules which it lays down are reduction of 8.65% which corresponds to applicable both to producers who have the percentage reduction applicable to all made investments as part of an approved producers. The quantity to be granted may development plan (such as Mr Spronk) and never, however, be lower than the quantity producers who have invested without such a resulting from the application of the general plan. rules applicable to producers.

be granted takes account of production This percentage reduction is therefore the capacity obtained after investment and result of balancing the interests of the which is therefore consistent with the producers, which must be undertaken by second indent of Article 3(1) of Regulation every Member State when it divides the No 857/84 as I have interpreted it above (in total guaranteed quantity. In my opinion the point 12). It is true that under the application of this reduction is also within Netherlands rules a fixed quantity of the limits of the discretionary power 5 500 kg of milk is allocated for each conferred on the Member States by the additional stall. This fixed quantity — which Council. according to the Netherlands Government corresponds to average national production in 1983 and which is also the same as that taken into account in Mr Spronk's devel- opment plan — plays the part here of a unit of account, which enables reference quan- tities to be calculated without it being 19. Another restriction under the necessary to await the figures for actual Netherlands rules concerns the reduction by production per stall. It does not mean that one-third or two-thirds of the quantity each producer is granted the same fixed calculated on the basis of the number of reference quantity. By applying this criterion additional stalls constructed, according to the Netherlands therefore has not exceeded the time at which the new stalls were its discretionary power. actually put into service.

is (substantially) lower than the production 21. The order for reference lists further objective stated in the plan. conditions to which Article 11 of the Super-Levy Decree subjects the granting of National rules which have such conse- special quantities: investment obligations quences are not, for that reason alone, incurred before 1 September 1981 are disre- incompatible with the relevant Community garded; investments in stalls for dairy cows provisions. As I have already stated (in and cows in calf must attain certain point 9), the Court held in its judgment in minimum amounts; a minimum percentage Cornée that producers with a development is fixed for the increase in the number of plan could not rely on Directive 72/159 or stalls for dairy cows and cows in calf. From on any alleged legitimate expectation in the order for reference it is clear, however, order to oppose Community rules restricting that Mr Spronk satisfies these conditions. production which did not relate to them They should therefore not be examined specifically. here.

Conclusion

22. In view of the foregoing considerations I propose that the questions should be answered as follows:

'(1) The first subparagraph of Article 3(1) of Council Regulation (EEC) N o 857/84 leaves it to the Member States to decide whether a special reference quantity should be granted to producers who lodged a milk production devel- opment plan under Directive 72/159/EEC before 1 March 1984.

(2) In order to comply with the abovementioned provision the special reference quantity which a Member State decides to allocate to producers with a devel- opment plan must bear an appropriate relationship to the production objective provided for in the plan, if it is still being implemented in the reference year, or to the production capacity obtained after investment, if the plan was completed during the reference year.