C-152/95

3. The Macon family and Jacqueline Sau- vrezy formed a GAEC (groupement agricole 5. Faced with that situation, the Tribunal d'exploitation en commun — collective Administratif, Amiens, has held that 'the dis-

* Original language: Spanish. 2 — Council Regulation (EEC) N o 1637/91 of 13 June 1991 fix- 1 — Council Regulation (EEC) N o 857/84 of 31 March 1984 ing compensation with regard to the reduction of the refer- adopting general rules for the application of the levy referred ence quantities referred to in Article 5c of Regulation (EEC) to in Article 5c of Regulation (EEC) N o 804/68 in the milk N o 804/68 and compensation for the definitive discontinua- and milk products sector (OJ 1984 L 90, p. 13). tion of milk production (OJ 1991 L 150, p. 30).

I-5431

OPINION OF MR RUIZ-JARABO COLOMER — CASE C-152/95

pute cannot be settled until it is ascertained market in the sector by introducing an addi- whether Article 2 of Council Regulation tional levy system applicable from 2 April (EEC) N o 1637/91 of 13 June 1991 fixing 1984. The machinery for the control of milk compensation with regard to the reduction production was organized as follows: of the reference quantities referred to in Article 5c of Regulation (EEC) N o 804/68 and compensation for the definitive discon- tinuation of milk production must be inter- preted as precluding the grant of compensa- tion for definitive discontinuation of milk — A total quantity was laid down for the production to a farmer who, while not pro- Community as a whole, corresponding to ducing milk, none the less at the time the application is made possesses milk reference the guarantee threshold for milk produc- quantities, by virtue of direct sales in par- tion. ticular'.

payable by the producer (formula A) or 10. Under Article 4(1) of Regulation N o by the purchaser of the milk with a right 857/84, it was possible for the Member States to pass the burden to the producer (for- to use the payment of compensation for dis- mula B), depending on the choice made continuation of production as a measure to by each Member State. France opted for restructure milk production. That procedure formula B. was later used by the Community institu- tions as a further means of reducing milk production. Regulation (EEC) N o 1336/86 4 established a Community system for financ- ing discontinuation of milk production by granting any producer, at his request and provided that he fulfils certain eligibility requirements, compensation in return for his undertaking to discontinue definitively all his milk production. 8. The general rules for the application of this additional levy system were laid down by the Council in Regulation N o 857/84, which allowed the Member States to choose 1981, 1982 or 1983 as the reference period for the calculation of producers' individual quotas and to establish in addition national reserves of reference quantities to take into 11. The previous rules were replaced for the account the special situations of certain of marketing year 1991/92 and subsequent their producers. years by Regulation N o 1637/91, imple- mented by Commission Regulation (EEC) N o 2349/91. 5 The objectives pursued by Regulation N o 1637/91 with its system of subsidies for discontinuing production con- tinue to be to reduce the supply of milk and milk products, and also to restructure milk production. The reference quantities freed by means of incentives for definitive discontinu- ation of production are added to the national reserve and, under Article 2(4), the Member 9. That additional levy system was originally States are to re-allocate them to the produc- established for a period of five years starting ers whose reference quantities have been from 1 April 1984 and has been extended reduced, to SLOM producers (producers until the year 2000. The measures originally affected by suspension of deliveries of milk adopted were not sufficient to balance supply and demand for milk and milk products. That is why the Community institutions 4 — Council Regulation (EEC) N o 1336/86 of 6 May 1986 firing adopted new measures to tighten up the sys- compensation for the definitive discontinuation of milk pro- tem, including in particular reductions in and duction (OJ 1986 L 119, p. 21). 5 — Commission Regulation (EEC) N o 2349/91 of 31 July 1991 temporary suspensions of the total guaran- laying down detailed rules for the application of Regulation teed quantities of milk, as well as the pay- ( E E Q N o 1637/91 fixing compensation with regard to the reduction of the reference quantities referred to in Article 5c ment of compensation for discontinuing pro- of Regulation (EEC) N o 804/68 and compensation for the definitive discontinuation of milk production (OJ 1991 duction, which is at issue in this case. L 214, p. 44).

13. Regulation N o 1637/91 leaves the Mem- ber States considerable operational freedom in setting conditions for granting compensa- tion for discontinuing production. Article 2(1) permits Member States not to imple- 15. By its question, the Tribunal Adminis- ment the compensation scheme in one, sev- tratif, Amiens, seeks to ascertain whether eral or all regions for various reasons, such as Article 2 of Regulation N o 1637/91 includes overriding administrative needs, the need to among the recipients of compensation for encourage structural trends and changes, the discontinuation of milk production produc- risk of freeing significant reference quantities ers who are farmers holding reference quan- and the avoidance of desertification of cer- tities but who ceased to produce milk before tain areas. Furthermore, they are allowed to the claim for compensation was made. exclude producers with fewer than six cows or a real available reference quantity of less than 25 000 kilograms from receiving com- pensation. Lastly, the Member States may reduce the amount of compensation or increase it by making additional contribu- tions. Similarly, they may vary the amount of compensation according to the local condi- 16. Article 2 of Regulation N o 1637/91 tions in their milk-producing areas. imposes two cumulative conditions on

I - 5434

M A C O N A N D OTHERS v PRÉFET DE L'AISNE

recipients of compensation for total and located within the geographical territory of definitive discontinuation of milk produc- the Community: tion: they must be producers and they must have reference quantities at the time the claim is made.

According to Article 12(d) of Regulation N o 857/84, 'holding' means 'all the production units operated by the producer and located within the geographical territory of the 18. It is perfectly clear from that provision Community'. that the concept of 'producer' referred to in Regulation N o 1637/91 is not an autono- mous concept but is that used throughout the additional levy system. Its definition is 6 — Council Regulation (EEC) N o 1305/85 of 23 May 1985 amending Regulation (EEC) N o 857/84 adopting general laid down in Article 12(c) of Regulation N o rules for the application of the levy referred to in Article 5c of Regulation (EEC) N o 804/68 in the milk and milk prod- 857/84, according to which, 'producer' ucts sector (OJ 1985 L 137, p. 12). means 'a natural or legal person or group of 7 — Council Regulation (EEC) N o 1360/78 of 19 June 1978 on producer groups and associations thereof (OJ 1978 L 166, natural or legal persons farming a holding p. 1).

I - 5435

OPINION OF MR RUIZ-JARABO COLOMER — CASE C-152/95

19. As the French Government has noted in 22. The second condition imposed on the its observations, it follows from the wording recipients of compensation for discontinua- of Article 12(c) of Regulation N o 857/84 tion of milk production is, as I mentioned that only persons farming a holding and earlier, that they should possess reference actually selling milk or other milk products quantities at the time the claim is made. to consumers or purchasers are classed as According to Article 2(2)(a) of Regulation producers. By contrast, persons farming a N o 1637/91, '[ejligible producers are those holding who have already ceased to carry on who have obtained a reference quantity by those activities cannot be considered to be virtue of Article 5c of Regulation (EEC) N o producers. 804/68, in the context of either formulas A or B and/or in the context of direct sales

I - 5436

M A C O N A N D OTHERS v PRÉFET D E L'AISNE

1992, , 0 which was adopted after the date of primacy of Community law, not to apply the material events, expressly provides for national provisions and measures, whatso- that allocation to the national reserve, but it ever their rank, which allow compensation is a solution applied by the Court since the for discontinuation of milk production to Klensch judgment of 25 November 1986. n be granted to farmers who hold quotas but In the absence of an express provision in who do not carry on any milk production Regulation N o 857/84 as to the reallocation activity. of reference quantities allocated to a pro- ducer who voluntarily ceases production, the Court held in Klensch that Regulation N o 857/84 precluded a Member State from deciding to assign those quantities to the purchaser of milk from the producer who had ceased activity instead of adding it to the national reserve.

I - 5437

OPINION OF MR RUIZ-JARABO COLOMER — CASE C-152/95

27. First, granting compensation for discon­ he carries on his activity. When the farmer tinuation of production to persons who have ceases to produce milk, it is logical that he already voluntarily ceased to produce milk is should lose his quota to the national reserve, not, as the French Government notes, com­ since he no longer needs it in order to con­ patible with the fundamental objective of tinue production. Regulation N o 1637/91, namely the reduc­ tion of marketable quantities of milk, to achieve which the regulation provides for compensation for reduction of guaranteed global quantities and for discontinuation of production.

29. Last, for farmers who have ceased activ­ ity to be able to obtain compensation for discontinuing milk production would be contrary to the setded case-law of the Court of Justice, according to which: '[ť]he right to property safeguarded by the Community 28. Second, the additional levy system intro­ legal order does not include the right to dis­ duced a means of limiting milk production pose, for profit, of an advantage, such as the by which the farmer's ability to produce reference quantities allocated in the context depends on a reference quantity being allo­ of the common organization of a market, cated to his holding. The quota increases the which does not derive from the assets or value of the farm to which it is attached and occupational activity of the person con­ forms part of the farmer's assets so long as cerned'. 1 2

30. I n t h e light of t h e foregoing, I suggest t h a t t h e C o u r t of Justice reply as follows t o t h e question referred t o it for a p r e l i m i n a r y ruling: