C-189/92
ECLI:EU:C:1993:218
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LE NAN v COOPÉRATIVE LAITIERE DE PLOUDANIEL
OPINION OF MR ADVOCATE GENERAL TESAURO delivered on 26 May 1993 *
Mr President, In order to implement the levy scheme, the Members of the Court, Member States may choose between two for mulas: Formula A, under which the levy is payable by the producer direct, and Formula B, under which it is payable by the purchaser (cooperative or dairy), which then passes on the burden to the individual producers in 1. In the present proceedings, the Court is proportion to the contribution to the pur called on to interpret the Community legis chaser's reference quantity being exceeded. It lation on the allocation of quantities of milk should also be remembered that the refer which are to be exempt from the additional ence quantities are as a rule fixed on the basis levy (reference quantities) in relation to pro of the quantities of milk delivered in ceedings between Mr Bernard Le Nan and a 1981 (Article 2(1]; however, the Member milk-buying cooperative, Coopérative States are entitled to choose 1982 or 1983 as Laitière de Ploudaniel. the reference year (Article 2(2]. France opted for Formula B and chose 1983 as the refer ence year.
2. I refer to the Report for the Hearing for a detailed account of the relevant Community legislation but will deal here with the aspects of it most relevant to our purposes. The general rules for the application of the additional levy are contained in Council Regulation (EEC) No 857/84 of 31 March 2 1984, whilst the detailed rules are laid down in Commission Regulation (EEC) No 3 1371/84 of 16 May 1984. Council Regulation (EEC) No 856/84 of 31 March 1984 amending Regulation (EEC) No 804/68 on the common organization of the market in milk and milk products ' introduced, in order to reduce structural sur pluses of milk, an additional levy to be 3. Under Formula B, the reference quantities charged on the quantities of milk or milk are established by reference not to individual equivalent exceeding a reference quantity to producers but to the purchasers — precisely be determined. because it is to them that the additional levy
* Original language: Italian. 2 — OJ 1984 L 90, p. 13. 1 — OJ 1984 L 90, p. 10. 3 — OJ 1984 L 132, p. 11.
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is charged. The allocation of additional (indi provisions (subparagraphs 1 and 2) are to vidual) reference quantities is, however, pro apply by analogy to other cases of transfer vided for in Regulation No 857/84 for cer which have comparable legal effects as far as tain special situations, such as, for example, producers are concerned, under the various that of young farmers (Article 3(2) or that of national rules (subparagraph 3). The second producers whose milk production during the sentence of subparagraph 3 provides that reference year was significantly reduced as a 'Member States may apply subparagraphs result of exceptional events (Article 3(3)). 1 and 2 in respect of transfers taking place during and after the reference period'.
Of more direct relevance here is Article 7(1) of the same regulation, as amended by Council Regulation (EEC) No 590/85 of 26 February 1985, 4which is concerned with the transfer of reference quantities following Finally, under Article 6(2) of that regulation, a change of ownership or possession of the the Member States are empowered to assign holding and provides in particular that a reference quantity to persons who com 'where a holding is sold, leased or transferred menced operations after the start of the ref by inheritance, all or part of the correspond erence period (after 1 April 1984), namely ing reference quantity shall be transferred to those who cannot claim reference production the purchaser, tenant or heir according to under other provisions of the regulations in procedures to be determined'. question.
The detailed rules applicable to transfers are laid down in Article 5 of Regulation No 1371/84 which, having laid down the prin 4. Let us now consider the facts. In October ciple that 'where an entire holding is sold, 1983 Bernard Le Nan bought a holding leased or transferred by inheritance, the cor which had been used for milk production responding reference quantity shall be trans until the first half of that year, that is to say ferred in full to the producer who takes over until the date on which the lessee (a milk the holding' (subparagraph 1), provides that producer) of the holding had terminated the in the case of a partial transfer of the holding lease and ceased production. Mr Le Nan the producer in question is to be entitled to a resumed milk production as from 1 April proportional transfer of the reference quan 1984 and on the same date, with his father tity (subparagraph 2) and adds that those (who is also a milk producer), set up a Groupement Agricole d'Exploitation en Commun (GAEC), to which they each con 4 — OJ 1985 L 68, p. 1. tributed their land.
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However, Coopérative Laitière de Ploudaniel happened in the present case; (b) even if Mr refused to assign to the GAEC, in addition Le Nan was not a milk producer on 1 April to the reference quantity due to Mr Le Nan 1984, as contended by the defendant, and, senior, a quantity for the holding acquired in more generally, if he had not been entitled to 1983 by Mr Le Nan junior. The latter transfer of the reference quantity, he could brought proceedings — unsuccessfully — obtain an individual quantity under Article first before the Tribunal Administratif, 6(2) of Regulation No 1371/84, provided Rennes, and then before the Tribunal de that the national legislation so allows. Grande Instance, Brest, which dismissed the action on the ground that milk deliveries had been temporarily suspended following changes in the ownership and possession of the holding in question.
Mr Le Nan appealed against that decision to But let us consider the questions as formu the Cour d'Appel, Rennes, which then made lated by the national court and, first of all, a reference to this Court, asking essentially the question of Mr Le Nan's entitlement or whether or not Mr Le Nan is entitled to otherwise to transfer of the reference quan transfer of the reference quantity which tity on the basis of the deliveries made by would have been attributable to the previous the lessee of the holding bought by him. Let producer, having regard to the fact that milk me say straight away that it is undeniable, as deliveries were interrupted for several is apparent from Article 7(1) of Regulation months. The national court also wishes to No 857/84, that here is a link between the know, in the event of the plaintiff being land and milk production. Moreover, in its entitled to transfer of the quantity in ques judgment in Wacbanf, 6the Court expressly tion, whether the fact that the producer who inferred from the terms of Article 7 that 'the had previously leased the land delivered milk Community legislature intended that at the only in the first half of 1983, the year chosen end of the lease the reference quantity by France as the reference year, may mean should in principle return to the lessor who that the reference quantity due to Mr Le retakes possession of the holding'. But, as Nan must be determined on the basis of the the Court held in Kühn, 7Article 7 relates deliveries made in 1982 rather than those only to the case where a reference quantity made in 1983. has always been assigned to a person, that is to say the case where a transfer of the hold ing has occurred after the entry into force of the additional levy scheme.
5. The circumstances just described provide 5 — The French Government in fact stated that the GAEC a basis, having regard to the legislation would receive an additional reference quantity of 11 500 litres of milk because of Bernard Le Nan s status as a referred to earlier, for a number of prelimi young farmer. nary considerations: (a) as a young farmer, 6 — Case 5/88 Wnchauf v Bundesamt fur Ernährung und Forstwrtschaft [1989] ECR 2609, paragraph 13. Mr Le Nan could receive a (specific) addi 7 — Case C-177/90 Kuhn v Landwirtichaftskammer Weser-Ems tional reference quantity, as appears to have [1992] ECR 35, paragraph 22.
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6. However, that is certainly not the case The fact that, by contrast with the Kühn where Mr Le Nan is concerned. He acquired case, there were two transfers in this case the holding in question before the entry into (from the lessee milk producer to the owner force of the additional levy scheme and, and from the latter to Mr Le Nan) is not according to him, he commenced milk pro such as to alter the terms of the problem. duction on the very day on which that Article 7(1) of Regulation No 857/84 and scheme came into operation. It follows that subparagraph 2 of Article 5 of Regulation in the present case it is inappropriate to rely No 1371/84 give the Member States the on Article 7 of Regulation No 857/84 or power — but certainly not the obligation — Article 5 of Regulation No 1371/84. On the to assign to a new producer, be he a lessee or other hand, the second paragraph of Article an owner, who has resumed milk production 5 is relevant, in that under it the Member on a holding already used for that activity States may apply the provisions on transfers and following a transfer taking place before of reference quantities also where there are the entry into force of the additional levy changes in the management of a holding scheme, a reference quantity which takes occurring during and after the reference account of the deliveries made during the period, that is to say before the entry into reference year by the person who managed force of the scheme in question. the holding before the entry into force of the scheme.
The allocation or otherwise of a reference quantity in the event of a change of manage ment occurring before the entry into force of the additional levy scheme is thus dependent Furthermore, in its judgment in Kühn, which on whether or not national legislation has I mentioned earlier, the Court stated, in rela been adopted under Article 5 of Regulation tion to a case similar to the present one, that, No 1371/84. It is therefore wholly irrelevant from a reading of Article 7 of Regulation No that production was temporarily suspended 857/84 and Article 5 of Regulation No because of a change, or even several succes 1371/84, it is apparent that 'transfers of hold sive changes, of ownership or possession of ings before the entry into force of the addi the holding in question. Indeed, such a cir tional levy scheme give rise to the transfer of cumstance only affects the magnitude of the the corresponding reference quantities only quantity to be assigned to the producer con where the Member State concerned has pro cerned. vided for this in exercise of the power given to it in the second sentence of subparagraph 3 of Article 5 of Regulation No 1371/84. It is only to that extent that deliveries of milk made during the reference year used by the Member State concerned by the lessee who previously managed the undertaking must be 7. That brings us to the second part of the taken into consideration when determining preliminary question, by which the national the reference quantity assigned to the new court seeks to establish whether the Com lessee' (paragraph 24 of the decision). munity legislation in question allows a pro-
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ducer to choose a reference year different reduction in production and therefore of from that chosen by the Member State in milk deliveries, could not enable account to question — merely because deliveries during be taken of a reference year other than that the reference period decreased as a result of a chosen by the Member State concerned. change of management.
8. In the light of the foregoing consider ations, I therefore propose that the Court give the following answers to the questions submitted by the Cour d'Appel, Rennes: The only relevant provision here is Article 3(3) of Regulation No 857/84, which pro vides for such a possibility for those produc ers whose production underwent a consider able reduction in the reference year as a result of exceptional events. The second sub 'l ) Council Regulation (EEC) No 857/84 of paragraph of Article 3(3) enumerates the 31 March 1984, in particular Article 7(1) situations which may justify the use of a ref thereof, and Commission Regulation erence year other than the one chosen. How (EEC) No 1371/84 of 16 May 1984, in ever, that list does not include a situation of particular Article 5 thereof, must be inter the kind with which we are concerned in this preted as meaning that the Member States case. are entitled, but are not under an obliga tion, to provide for the allocation to the new owner and milk producer, who acquired a holding used for such produc tion before the entry into force of the additional levy scheme, of a reference quantity which takes account of the deliveries made during the reference As the Court stated in its judgment in period by the previous producer. Leitkhardt, 8'the structure and purpose of the regulations concerned indicate that they contain an exhaustive list of the situations in which reference quantities or individual quantities may be granted and set out precise rules concerning the determination of those 2) Council Regulation (EEC) No 857/84 of quantities'. Since the situation under review 31 March 1984 must be interpreted as not is not included in the list, there is no possi allowing a producer to have taken into bility of taking account of a reference year consideration a reference year other than other than the one chosen. Moreover, in its that chosen by the Member State con 9 cerned merely because, during that refer judgment in Kühn, the Court stated that a change of management, with a consequent ence year, there was a change or changes of management of the holding and there fore a reduction in milk deliveries; that situation is not included in the exhaustive 8 — Case 113/88 Leukhardt v Haupizollamt Reutlingen [1989] ECR 1991, paragraph 13. list contained in the first subparagraph of 9 — Cited above, paragraphs 10 and II . Article 3(3) of that regulation.'
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