C-84/90

OPINION OF MR JACOBS — CASE C-84/90

OPINION OF MR ADVOCATE GENERAL JACOBS delivered on 29 November 1991 *

My Lords, engaged in milk production during the relevant year, were not eligible for a quota on a normal basis.

* Original language: English.

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DENT

Anicie 4(1 )(c), Member States may, in award leaving a total additional amount of connection with the application of Article 2: only 92 093 litres. That deduction was made pursuant to the second subparagraph of Article 3a(2), which provides that:

'grant producers undertaking farming as their main occupation an additional reference quantity •"Where the producer has obtained a reference quantity pursuant to Article 3, points 1 and 2, and/or Article 4(1 )(b) and (c), the special reference quantity ... shall be reduced by such quantity.'

The applicants were accordingly allocated a reference quantity of 873 600 litres, which I shall call the 'hardship quota'; the quota was presumably awarded after the expiry of the conversion undertaking given by Mr and I shall refer to that provision as the 'anti- Mrs Dent. It is common ground that the cumulation rule'. In the course of the main hardship quota was awarded to the part­ proceedings the Ministry accepted that the nership of three persons consisting of Mr special quota should have been awarded to and Mrs Dent and their son. Mr and Mrs Dent jointly, rather than to Mr Dent individually. The Ministry continued however to maintain that it was entitled to deduct the full amount of the hardship quota, pursuant to the anti-cumulation rule.

6. The Queen's Bench Division of the High Court has accordingly referred two The first question questions to the Court for a preliminary ruling:

(1) On the proper interpretation of the 7. From the applicants' written observations second subparagraph of Article 3a(2) of submitted to the Court, it appears that they Council Regulation (EEC) No 857/84 have abandoned the argument that the of 31 March 1984 (as inserted by hardship quota was awarded pursuant to Council Regulation (EEC) No 764/89 paragraph 17 of Schedule 2 to the Dairy of 20 March 1989), does the special Produce Quotas Regulations 1984 rather reference quantity referred to in the first than pursuant to Article 4(1)(c) of Council subparagraph of that paragraph fall to Regulation No 857/84. It is clear in fact be reduced by the amount of a from the wording of paragraph 17 that the reference quantity obtained by the latter provision is intended to implement producer pursuant to provisions of Article 4(1)(c) of Regulation No 857/84; national regulations (in casu, paragraph thus, if the quota was awarded pursuant to 17 of Schedule 2 to the Dairy Produce paragraph 17, it is plain that it was awarded Quotas Regulations 1984) which pursuant, equally, to Article 4(1)(c). implemented only Article 4(1)(c), and not Article 4(1)(b), of Regulation 857/84?

Strictly speaking, therefore, it is not possible The second question for a single quota to be obtained pursuant to both provisions, even if a single producer could obtain quotas pursuant to both. Furthermore, as the United Kingdom Government points out in its written obser­ vations submitted to the Court, implemen­ 10. As we have seen, the anti-cumulation tation of points (b) and (c) of Article 4(1) is rule can apply, even where the hardship in each case optional for the Member States. quota was awarded pursuant to national It is however clear that the anti-cumulation legislation implementing Article 4(1)(c) only rule is still intended to apply, even where a of Regulation No 857/84. The next Member State has chosen to implement only question which must be considered is one of those options (and similarly for the whether the rule still applies where the auth­ options in points 1 and 2 of Article 3). In orities responsible for awarding the special my view, therefore, the reference, in the quota purported to make the award to a anti-cumulation rule, to producers who have group of two persons, rather than to the obtained a quota pursuant to 'Article 4(1)(b) group of three persons who received the and (c)' is merely an elliptical way of previous quota. It will be recalled that in the referring both to producers who have present case, the hardship quota was obtained a quota pursuant to Article 4(1)(b) awarded to the partnership of three (the and to those who have obtained a quota applicants together with their son), whereas pursuant to Article 4(1 )(c). Moreover, as the the Ministry purported to award the special United Kingdom Government points out in quota to Mr and Mrs Dent only. its written observations, the term 'and' is similarly used elsewhere in Council Regu­ lation No 847/84 in order to link two para­ graphs or subparagraphs within the same article, whereas 'and/or' is used when linking two or more articles. 11. The applicants submit that, since the special quota was awarded to the part­ nership of two, whereas the hardship quota was awarded to the partnership of three, the two amounts of quota were awarded to different 'producers' within the meaning of Article 12(c) of Regulation No 857/84. It follows, in their submission, that no amount of the hardship quota falls to be deducted from the special quota. Alternatively, they argue that only two-thirds of the hardship quota falls to be deducted, on the ground that only that portion is attributable to the 9. It follows, therefore, that the first recipients of the special quota. question referred by the High Court is to be answered in the affirmative. I would add that that conclusion is plainly in accordance with the purposes of the legislation. There could be no justification, in my view, for allowing a producer in circumstances such 12. In its written observations, the United as those of the present case to benefit both Kingdom Government suggests that, from a hardship quota and from a special although the special quota was awarded in quota. name to Mr and Mrs Dent only, it was in

13. A quota cannot in my view be treated as awarded to one group of persons for the The wording of that provision might appear purposes of applying the anti-cumulation to suggest that a special quota can only be rule, but for other purposes as belonging to awarded to those producers who have in a different group of persons. If Michael fact given an undertaking under Regulation Dent were indeed treated under national No 1078/77. Thus, in the present case, it law as having no proprietary interest in the was Mr and Mrs Dent who gave the special quota, it is difficult to see why his relevant undertaking, since their son joined interest in the hardship quota should be the partnership only after the undertaking taken into account in applying the rule. had been given. It might therefore be However, it seems to me that in the present supposed that the special quota should be case both the hardship quota and the special awarded to them, as opposed to the part­ quota must be regarded as having been nership of three which was farming the awarded to the three persons farming the holding at the time of the award, and it holding at the time each quota was appears that the respondent Ministry took awarded. such a view in the course of the main proceedings.

14. Article 12(c) of Regulation No 857/84 15. It should however be noted that, after defines a producer as 'a natural or legal Michael Dent joined the partnership, it person or group of natural or legal persons would still have been a breach of the under­ farming a holding located within the taking given by Mr and Mrs Dent if the geographical territory of the partnership had begun to produce milk Community ... ' . It is natural therefore to before the end of the conversion period. suppose that a quota must be awarded to Thus, Article 3(2) of Regulation the group of persons currently farming the No 1078/77 provides as follows:

The purpose of the award of a special quota under Article 3a(l) of Regulation No 857/84 is to enable a quota to be allocated to producers who were ineligible 17. I conclude, therefore, that even in the for a quota pursuant to Article 2 of the case of a special quota, there is no reason regulation because they were bound by a for departing from the rule that the quota is non-marketing or conversion undertaking. awarded to the person or group of persons In my view, therefore, the benefit of Article farming the holding at the time of the 3a(l) must be taken to extend to producers award. It follows that, when a special quota who were similarly constrained, as a result was allocated in response to Mr Dent's of such undertakings, whether or not they application, the quota should have been were parties to the undertakings at the time awarded to the partnership of three, and not the undertakings were given, and whether merely to the two persons who were orig­ or not they would be personally liable under inally parties to the conversion undertaking.

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OPINION OF MR JACOBS — CASE C-84/90

18. Both the hardship quota and the special nership of three falls to be reduced, quota must accordingly be treated as pursuant to the anti-cumulation rule, by the belonging in law to the same group of amount of the quota previously awarded to persons, namely the partnership of three the same producer. Again, that result is in consisting of Mr and Mrs Dent and their my view fully consistent with the purposes son, and hence to the same 'producer' of the legislation, and any contrary view within the meaning of Article 12(c) of would result in a wholly artificial benefit to Regulation No 857/84. It follows therefore the producers. that the special quota awarded to the part­