C-67/89

1. This reference for a preliminary ruling is once again concerned with the interpret- ation of Community rules concerning the allocation of milk quotas to fanners whose 3. General rules for the application of the level of milk production has been affected levy system and in particular the determi- by exceptional events. nation of reference quantities are laid down in Council Regulation (EEC) No 857/84 (Official Journal 1984, L 90, p. 13). Where formula A is applied, the reference quantity allocated to a producer (i. e. the quantity exempt from the additional levy) is in principle to be equal to the quantity of milk 2. It will be recalled that, with a view to or milk equivalent delivered by the producer curbing milk production, Council Regu- during the 1981 calendar year (Article 2(1)). lation (EEC) No 856/84, which amended However, Member States may instead Regulation (EEC) No 804/68 on the provide that the reference quantity shall be common organization of the market in milk equal to the quantity of milk or milk equiv- and milk products, introduced a levy, alent delivered during the 1982 or the 1983 additional to the co-responsibility levy, on calendar year, weighted by a percentage quantities of milk or milk equivalent established so as not to exceed the delivered beyond a reference quantity to be guaranteed total quantity for that Member determined (Official Journal 1984, L 90, State (Article 2(2), first sentence). The p. 10). In implementing the levy system, percentage referred to may, under Member States were given a choice between conditions to be determined by the two formulae. Under formula A, the levy is Commission according to the management payable by the individual milk producer on committee procedure, be varied on the basis the quantities of milk delivered by him to a of the level of deliveries of certain purchaser which in the relevant 12-month categories of persons liable for the levy, of period exceed the reference quantity the trend in deliveries in certain regions attributed to him. Under formula B, it is between 1981 and 1983, or of the trend in the purchaser who pays the levy on the deliveries of certain categories of persons quantities delivered by producers which, in liable during that period (Article 2(2), the relevant 12-month period, exceed a second sentence). Member Sutes may reference quantity to be determined. The moreover adapt the percentages referred to sum of the reference quantities allocated in in Article 2(1) and (2) in order to ensure the a Member State must not exceed a application of Articles 3 and 4 (Article 2(3)).

4. Article 3 is concerned with the allocation was reduced by up to a further 5 % in of reference quantities to producers in accordance with a calculation referred to special situations. Article 3(3) deals with as the 'Steigerungsabzug' or abatement hardship cases, and provides that 'producers based on the increase in production whose milk production during the reference (paragraph 4(2), second sentence, as year referred to in Article 2 has been amended by a further national regulation of affected by exceptional events occurring 27 September 1984). before or during that year shall obtain, on request, reference to another calendar reference year within the 1981 to 1983 period'. The list of situations in Article 3(3) justifying the choice of an alternative reference year includes an epizootic 7. Mr Berkenheide, the plaintiff in the (outbreak of disease) affecting all or part of national proceedings, is a dairy farmer. the producer's milk herd. According to the order for reference, in 1980, 1981, 1982 and 1983 he delivered to the purchasing dairy 114 306 kg, 105 970 kg, 102 472 kg and 121 721 kg of milk respectively. The milk quota allocated to him was calculated on the basis of his 5. Commission Regulation (EEC) No 1983 deliveries less 4 % , i. e. approximately 1371/84 (Official Journal 1984, L 132, 116 900 kg and, because his deliveries in p. 11) lays down detailed rules for the 1983 were higher than in 1981, that application of the additional levy. Article quantity was reduced by a further 4.9%. 2(1) sets out the factors which Member That resulted in a quota of 110 900 kg of States must take into account if, in milk. accordance with Article 2(2) of Regulation N o 857/84, they vary the percentage for determining reference quantities. Article 3 makes certain additions to the list of special situations justifying the use of a different reference year under Article 3(3) of Regu- 8. Mr Berkenheide appealed against that lation N o 857/84. allocation, arguing that the further reduction of 4.9% was not justified in his case and that he was therefore entitled to a quota of 116 900 kg. H e pointed out that there had been an outbreak of mastitis on 6. In implementing the additional levy his farm in 1981 and 1982 and that a system, the Federal Republic of Germany certificate of 20 May 1986 issued by the chose to apply formula A and adopted 1983 Landwirtschaftskammer Westfalen-Lippe as the reference year for the determination recognized that his milk production in those of individual quotas. The national years had been affected by an exceptional implementing legislation, the Milch-Garan- event within the meaning of Article 3(3) of tiemengen-Verordnung (Milk (Guaranteed Regulation No 857/84. Mr Berkenheide Quantities) Regulation) of 25 May 1984, argued that, for the purpose of the provided that the individual producer quota application of the further reduction should correspond to the quantity of milk provided for in the national legislation, delivered to a purchaser in 1983, less 4% Article 3(3) entitled him to refer not to his (paragraph 4(2), first sentence). Where the actual production in 1981, but to the quantity delivered in 1983 was higher than quantity he would have produced if there that delivered in 1981, the individual quota had been no outbreak of mastitis. If

reference were made to that notional figure, However, the national court's question can then it was clear that there was no increase readily be understood as asking the Court in production between 1981 and 1983 and to rule on whether, where a Member State no place for a further reduction in his chooses 1983 instead of 1981 as the quota. reference year for the determination of indi- vidual reference quantities, and provides in its national implementing legislation for an additional reduction in the reference quan- 9. Since it took the view that the tities of producers whose level of milk proceedings raised an issue of Community production in 1983 was higher than in 1981, law, the Finanzgericht (Financial Court) Article 3(3) of Regulation N o 857/84 must Düsseldorf referred the following question be interpreted as meaning that a producer to the Court: may require that Member State, when determining whether his quota must be so reduced, to take account of the fact that in 1981 his milk production was affected by an 'Is it contrary with Article 3(3) of Council exceptional event. In other words, can Regulation (EEC) No 857/84 of 31 March Article 3(3) be relied on by a producer in 1984 (Official Journal 1984, L 90, p. 13) in order to resist the application to him of the conjunction with Article 3 of Commission additional reduction? Regulation (EEC) No 1371/84 of 16 May 1984 (Official Journal 1984, L 132, p. 11) to interpret the second sentence of Paragraph 4(2) of the Milch-Garan- tiemengen-Verordnung (Milk (Guaranteed Quantities) Regulation) of 25 May 1984 11. That question must in my view clearly {Bundesgesetzblatt 1984 I, p. 720), as be answered in the negative. Article 3(3) amended for the first time by the regulation permits the producer to choose another of 27 September 1984 (Bundesgesetzblatt reference year within the period 1981-83 1984 I, p. 1255), so as to mean that if milk where his milk production in the course of production in the 1981 calendar year was the reference year adopted by the Member affected by an exceptional event (an State in question is affected by an excep- epizootic) within the meaning of the tional event. However, in the present case, abovementioned provisions of EEC law the Mr Berkenheide does not seek to adopt an quantity of milk which it is estimated that alternative reference year, and his milk the milk-producer would have produced in production was in any event affected by an 1981 had the event not occurred, rather exceptional event (i. e. the outbreak of than the quantity actually produced in 1981, mastitis) not in 1983, the reference year is taken as the basis for calculating the adopted by the Federal Republic, but in 'Steigerungsabzug' (abatement based on the 1981 and 1982. increase in production)?'

14. If it is re-phrased in terms of Article 2(2), the national court's question can be understood as asking whether Article 2(2) of Regulation No 857/84 (as supplemented 'It should be noted that the structure and by Article 2(1) of Commission Regulation purpose of the rules concerned indicate that No 1371/84) must be interpreted as they contain an exhaustive list of the situ- meaning that where a Member State ations in which reference quantities or indi- chooses 1983 as its reference year and vidual quantities may be granted and set out makes use of the option referred to in the precise rules concerning the determination second sentence of Article 2(2) of Regu- of those quantities' (paragraph 18). lation No 857/84 to vary the percentage applied to determine the reference quantities for producers in such a way that it provides in its national implementing legislation for an additional reduction in the reference quantities of producers whose level of production was higher in 1983 than in 1981, 13. It thus appears that Article 3(3) of a producer may require that Member State, Regulation N o 857/84 cannot assist when determining whether his reference M r Berkenheide. The Court, however, in a quantity must be so reduced, to take written question addressed to the German account of the fact that in 1981 his milk Government and the Commission, has asked production was affected by an exceptional whether the question raised by the national event. court should not be dealt with by reference to Article 2(2) of Regulation N o 857/84, rather than Article 3(3), and both have answered in the affirmative. It will be recalled that under Article 2(2) a Member State may provide that the quota is to be equal to the quantity of milk delivered in 15. In my view, that alternative question 1982 or 1983, weighted by a percentage to must also be answered in the negative. The ensure that the sum of the individual quotas second sentence of Article 2(2) gives a does not exceed the total guaranteed Member State the option of varying the quantity, and may vary that percentage on percentage which it has previously adopted the basis of a number of factors including in order to ensure that the total guaranteed the trend in deliveries of certain categories quantity is not exceeded. However, if a of persons during the 1981-83 period. It was Member State exercises that option, it must in application of Article 2(2) that the do so by reference to one or more of the Federal Republic in its implementing legis- general, objective factors set out in Article lation provided for an initial 4 % reduction 2(2) of Regulation N o 857/84 and Article

18. Accordingly, the question referred by the national c o u r t should in m y opinion be answered as follows:

' B o t h Article 3(3) of Council R e g u l a t i o n ( E E C ) N o 8 5 7 / 8 4 , in conjunction with Article 3 of Commission Regulation ( E E C ) N o 1 3 7 1 / 8 4 , and Article 2(2) of Council Regulation N o 8 5 7 / 8 4 , in conjunction with Article 2(1) of C o m m i s s i o n Regulation N o 1 3 7 1 / 8 4 , must be interpreted as meaning that, w h e r e a M e m b e r State has chosen 1983 instead of 1981 as the reference y e a r for the d e t e r m i n a t i o n of individual reference quantities, a n d provides in its national implementing legis- lation for an additional reduction in the reference quantities of p r o d u c e r s w h o s e level of milk production in 1983 was higher than in 1981, a p r o d u c e r m a y n o t require that M e m b e r State, w h e n applying to him that additional r e d u c t i o n , to t a k e account of the fact that his milk p r o d u c t i o n in 1981 was affected by an excep- tional event.'

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