C-285/89

1. The Community legislation governing milk quotas has been the source of 4. By Royal Decree of 1963, a concession numerous references to the Court, many of contract was granted for the laying and which have concerned the determination of maintenance of that pipeline, which was the reference year and the possible dero­ declared to be in the public interest by a gations available to producers. The question Royal Decree of 1964, in accordance with raised in the present case concerns just such the Belemmeringenwet Privaatrecht (Law on a difficulty. Obstruction (Private Law)). According to the documents in the case, that law imposes on landowners an obligation to tolerate the construction of certain facilities on land and entitles them to compensation. Article 2 2. Of the years 1981-83, the Netherlands provides for the possibility of entering into authorities have taken 1983 as the reference an agreement concerning the land in year, while the plaintiffs seek to have 1982 question in order to avoid the obligation to used for that purpose, on the basis of Article tolerate the works being imposed. The 3 of Regulation (EEC) No 1371/84,' now agreement entered into between the Regulation No 1546/88, which the Court is concession-holder and the plaintiffs appears asked to interpret here. That article allows a to fall within that category. producer to choose another reference year within the 1981 to 1983 period when 'compulsory appropriation of a considerable part of the utilizable agricultural area of the producer's holding [results] in a temporary 5. According to the Netherlands authorities, reduction of the fodder area of the holding'. the plaintiffs' situation does not entitle them to rely on Article 3 of Regulation No 1371/84, because the use of a field to lay a pipeline cannot be regarded as compulsory appropriation of a considerable part of the utilizable agricultural area of the producer's 3. The plaintiffs, who operate a holding holding within the meaning of that article. with an area of approximately 19 hectares, granted NV Nederlandse Gasunie the right to lay, use and maintain a gas pipeline on and in their land, in respect of which they 6. The national court seeks essentially to * Original language: French. ascertain whether a situation in which the 1 — Regulation repealed and replaced, by Commtssion Regu- owner of an agricultural holding has lation (EEC) No 1546/88 ot 3 June 1988 living down detailed rules for the application of the additional levy entered into an agreement of the kind referred to in Article 5c of Regulation (EEC) No 804/68 (OJ 1988 L 139, p. 12). referred to in Article 2 of the Belemmer-

7. I agree with the Commission's view that that question raises two successive diffi­ 12. Finally, the Netherlands Government's culties. argument that, since the entitlement to compensation enables producers to maintain their level of production, there is no reason to allow those concerned to choose another reference year, is irrelevant. It is sufficient 8. The first is whether the concept of to note, in that regard, that national systems compulsory appropriation should be inter­ always provide for compensation in cases of preted as covering the imposition of an obli­ compulsory appropriation. The compen­ gation to tolerate use as provided for in the sation for the obligation to tolerate use Netherlands legislation. cannot therefore constitute a ground for withdrawing the benefit of the legislation in issue from the producer concerned, since compulsory appropriation in the strict sense, 9. First of all, I would point out that the to which the article incontrovertibly refers, reason for the existence of the provision lies involves just such a compensation. in the desire to protect producers against the exceptional event which an encroachment of the public authorities into their rights of ownership represents. If an owner is prevented from using his fodder 13. The second difficulty will require the area as a result of public action, then he Court to determine whether the article should be allowed to choose a reference under consideration can cover a situation in year other than that during which the which the arrangements for the use of the compulsory appropriation took effect. land were defined in an agreement entered into between the concession-holder and the landowner in order to avoid their being imposed by the public authorities.

landowner. The extent of the landowner's ordinary contract under private law, thereby rights is therefore affected in the public ignoring a context in which the authorities interest. It can in no way be considered that might still impose a unilateral measure his wishes play any part in originating the laying down the arrangements governing limitation of his right of ownership, which the transfer. may even be imposed on him if no agreement is entered into. Whether he then chooses to enter into an agreement with the 15. To refuse to recognize the transaction concession-holder in order to determine the in question as a compulsory appropriation arrangements governing the transfer or within the meaning of the legislation whether those arrangements are imposed by under consideration would, moreover, un- the public authorities, there can be no doubt justifiably penalize a person wishing to that the principle of the burden on the land defend his rights vis-à-vis an imposed concerned was created by unilateral action 'co-contracting party" by negotiating with of the public authorities. It is therefore that party rather than passively allowing the not possible to treat the contraa between authorities to impose the arrangements landowner and concession-holder as an governing the transfer.

16. I therefore propose that the Court should rule as follows:

'The situation of a landowner who has entered into an agreement with a public works undertaking in order to avoid the unilateral imposition of an obligation to tolerate public works on the land concerned must be understood as corresponding to a compulsory appropriation within the meaning of Article 3 of Commission Regulation (EEC) No 1371/84 of 16 May 1984 (repealed and replaced by Commission Regulation (EEC) No 1546/88 of 3 June 1988) if the agreement in question affects a considerable part of the utilizable agricultural area of the producer's holding and results in a temporary reduction of the fodder area of the holding.'