C-186/96

DEMAND v HAUPTZOIXAMT TRIER

OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 7 July 1998 *

1. In the present case the Bundesfinanzhof introduced with a view to reducing individual has referred to the Court a question for a reference quantities. Any producer prepared preliminary ruling on the validity of Regula­ to discontinue milk production on a perma­ 1 tion (EEC) No 3950/92 and, in particular, nent basis was offered compensation of the provision whereby the series of tempo­ DM 1.60 per kilograms of his guaranteed rary withdrawals of a part of the individual quantity. Since this scheme resulted in a higher reference quantities, free of levies, hitherto quantity than had been envisaged, the German allocated to milk producers ('milk quotas') authorities offered the surplus to producers became definitive without compensation. interested in increasing their quotas in return for payment of the compensation which the State had paid at the relevant time (DM 1.60 per kilogram).

Facts and main proceedings

4. In December 1993 the Hauptzollamt Trier, the national body competent for the imple­ mentation of the additional levy scheme, informed Mr Demand that his individual ref­ 2. Stefan Demand, the plaintiff in the main erence quantity at the dairy Erbeskopf eG, proceedings, is a dairy farmer in Ravers- Thalfang, for the current marketing year had beuren, Rheinland-Pfalz. been reduced by 4.74% with effect from April of that year. That figure consisted of the rate of reduction provided for in Regulation No 3950/92 (4.5%) plus a further reduction· (0.24%) governed by internal provisions (see point 22 below), which is not in issue. Mr Demand's quota thus fell from 165 503 3. In 1990/91 Mr Demand increased his ini­ kilograms to 157 658 kilograms per annum. tial quota to 67 784 kilograms of milk per annum. That increase came about in the con­ text of a national scheme (see point 25 below)

9. Any producer exceeding the reference quantity was required to pay an additional 7. Before examining that question it is first levy of at least 75% of the reference price necessary to describe the rules on the addi­ intended to finance the expenditure incurred tional levy scheme introduced in the common in marketing the surplus production. organisation of the market in milk and milk products in order to control excess produc­ tion.

Applicable rules

10. The general rules for the application of the additional levy scheme were established by the Council in Regulation (EEC) No Community legisUtion 3 857/84. That regulation allowed the Member

2 — Council Regulation of 31 March 1984 amending Regulation (EEC) No 804/68 on the common organisation of the market in milk and milk products (OJ 1984 L 90, p . 10). 8. In order to reduce the imbalance between 3 — Regulation of 31 March 1984 adopting general rules for the supply and demand for milk and milk prod­ application of the levy referred to in Article 5c of Regulation No 804/68 in the milk and milk products sector (OJ 1984 ucts and the resulting structural surpluses, L 90, p. 64).

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11. The additional levy scheme was estab­ lished for a period of five years. None the less, the measures initially laid down were not 13. In 1988 it was agreed to extend the addi­ sufficient to balance supply and demand for 7 tional levy scheme until 31 March 1992. At milk and milk products. The Community the same time, Article 1 of Regulation (EEC) institutions therefore adopted further mea­ 8 No 1111/88 maintained the temporary with­ sures to reinforce the scheme, including com­ drawal of 5.5% of the total quantities pro­ pensation for any producer definitively dis­ 4 vided for in Regulation No 775/87, and continuing production and the reduction or extended it over the subsequent three temporary withdrawal of the total guaranteed 12-month periods (1989/90, 1990/91 and quantities of milk. This last-mentioned mea­ 1991/92). Moreover, Article 1(2) of Regula­ sure, which is the subject of the present case, tion No 1111/88 continued to provide for automatically entails a corresponding reduc­ compensation for withdrawal, albeit in the tion or temporary withdrawal of producers' form of the direct payment of digressive com­ individual reference quantities. pensation at the rate of ECU 8 per 100 kilo­ grams for 1989/90, ECU 7 per 100 kilograms for 1990/91 and ECU 6 per 100 kilograms for 1991/92.

with the aim of increasing the Community extending the additional levy scheme for a reserve. At the same time, Regulation (EEC) further year (from 1 April 1992 to 31 March No 3882/89 reduced the proportion of the 1993), in anticipation of the adoption of mea­ guaranteed total quantities temporarily with­ sures reforming the Common Agricultural drawn from 5.5% to 4.5%, in order to keep Policy ('CAP'). In order to continue to con­ the non-withdrawn reference quantities unal­ trol production during that period, Regula­ tered. Regulation No 3882/89 also increased tion No 816/92 provided that the Commis­ the compensation provided for in Regulation sion might propose a reduction of the No 1111/88 to ECU 10 per 100 kilograms for guaranteed total quantity, in return for com­ 1989/90, ECU 8.5 per 100 kilograms for pensation, so that the rationalisation efforts 1990/91 and ECU 7 per 100 kilograms for already begun could be continued. Further­ 1991/92, in order to continue to pay pro­ more, that regulation fixed the guaranteed ducers the amount resulting from the rate of total quantities without taking account of the withdrawal of 5.5%. 4.5% of the reference quantities temporarily withdrawn by Regulation No 775/87, whose future was to be definitively decided by the Council in the course of the reform of the CAP.

15. In 1991 the Community institutions adopted Regulation (EEC) No 1630/91, 11 which reduced the guaranteed total quantities by a further 2 %. In this case compensation was provided for in Regulation (EEC) No 1637/91. 12

20. Article 8(1) of Regulation No 3950/92 provided that Member States might authorise, from 1 April 1993, 'the transfer of reference quantities between certain producer catego­ ries without transfer of the corresponding land'. These transfers were to be authorised on the basis of objective criteria and were to 18. The total quantities for each Member take place in defined regions. State applicable in 1993/94 were adjusted by 15 Regulation (EEC) No 1560/93. Article 1 of that regulation alters the wording of Article 3 of Regulation No 3950/92, fixing the total quantities for each Member State, which in the case of Germany were 27 764 778 tonnes. National legislation The second recital in the preamble to Regula­ tion No 1560/93 states that the temporary suspension in 1987 of 4.5% of the individual reference quantities is to be consolidated into a definitive reduction, for which no compen­ sation is provided.

21. The Community rules described above were implemented in Germany by means of a series of amendments of the regulation on guaranteed milk quantities (Milch- Guarantiemengen-Verordnung, hereinafter 'the MGV'). Article 4(1) of the MGV (as 1 amended on 24 March 1993) 7provided that 19. Under Article 6 of Regulation No 3950/92 from 1 April 1993 individual reference quan­ Member States were to authorise, for tities were to correspond to the quantities 12-month periods, temporary transfers of allocated to producers on 31 March 1993, less individual reference quantities which pro­ the quantities withdrawn up to that date.

14 — Council Regulation of 17 March 1993 amending Regulation No 3590/92 (OJ 1993 L 77, p. 16). 16 — Council Regulation of 5 October 1987 amending Regula­ 15 — Council Regulation of 14 June 1993 amending Regulation tion No 804/68 (OJ 1987 L 285, p. 1). No 3950/92 (OJ 1993 L 154, p. 30). 17 — BGBl. 1993 I, p. 374.

26. In the proceedings between Mr Demand and the Hauptzollamt Trier (see point 6 above) the Seventh Chamber of the Bundesfinanzhof 24. The MGV (as amended on 24 September decided on 19 March 1996 to stay proceed­ 20 1993) authorised the transfer of quotas ings and to refer the following question to without transfer of the holding, in accordance the Court of Justice for a preliminary ruling: with the Community rules (see point 20 above).

'Are the combined provisions of Article 4(1) and the first paragraph of Article 3 of Regula­

25. The scheme introduced by the German authorities to reduce individual reference quantities (see point 3 above) was initiated by 21 — Gesetz über die Gewährung einer Vergütung für die Auf­ gabe der Milcherzeugung fur den Markt, BGBl. 1984 I, p. 942. 22 — BGBl. 1990 I, p . 1470. 23 — Gewährung einer Vergütung für die endgültige Aufgabe der Milcherzeugung für den Markt und Zuweisung von zusät­ 18 — BGBl. 1992 I, p. 845. zlichen Anheferungs-Referenzmengen, Verwaltungsvorsh- 19 — BGBl. 1990 I, p. 1334. chrift des Ministeriums für Lanwirtschaft, Weinbau und 20 — BGBl. 1993 I, p. 1659. Forsten, MinBl. Rheinland-Pfalz 1991, p. 163.

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27. What falls to be determined, therefore, is whether certain provisions of Regulation 24 No 3950/92 to the effect that the 4.5% of the individual reference quantities hitherto 30. The Seventh Chamber of the Bundesfi­ temporarily withdrawn are not included in nanzhof none the less preferred to maintain Member States' overall quantities are compat­ its question for a preliminary ruling. In its ible with the fundamental principles protected letter of 30 July 1997 it stated, inter alia: by Community law. That regulation meant in practice that producers' quotas were defini­ tively reduced without any compensation being payable. 'In its reference for a preliminary ruling the Chamber also asked whether the transforma­ tion, without compensation, of the suspen­ sion of part of the reference quantities into a permanent reduction should not have exempted from that reduction at least refer­ 28. The grounds on which it is argued both ence quantities which producers had acquired in the order for reference and in the observa­ in return for payment (on the basis of alloca­ tions submitted to the Court that the regula­ tions by the Land). The Court of Justice did tion is invalid are a breach of the right to not address that problem in its judgment of property and of the principles of equal treat­ 15 April 1997 in Case C-22/94. ... Having ment and protection of legitimate expecta­ regard, in particular, to the principles of the tions. protection of property and of legitimate expec-

24 — As amended by Regulation No 1560/93. 25 — Case C-22/94 [1997] ECR I-1809.

32. The question referred to the Court might therefore be worded as follows: Does the fact that a proportion of the reference quantities 34. Second, as I explained earlier (see point 3 definitively reduced was acquired in return above), Mr Demand cannot be considered to for payment have any effect on the principle have purchased the 67 000 kilograms or so of established in the Irish Farmers judgment? To additional quota from the State. He merely my mind it must be answered in the negative. took advantage of the opportunity which the Land gave him to secure the transfer of a cer­ tain reference quantity originating in the quotas surrendered by other producers who preferred to discontinue production in return for payment of compensation, in exchange for which he was required to refund the State 33. First, the fact that in Mr Demand's case the specific amount which it had been required a proportion of the quota in question was to pay to producers ceasing production, acquired subsequent to the initial allocation namely DM 1.60 per kilogram. In those cir­ does not in itself constitute a new material cumstances it is clear that, as regards that fact. It is apparent upon examining the judg­ additional reference quantity, Mr Demand ment of reference of the High Court of Ire­ enjoyed the same prerogatives and was sub­ land in the Irish Farmers case that for the ject to the same restrictions as those producers purpose of calculating the reference quanti­ who ceased production. Accordingly, there is ties of each of the producers and plaintiffs in no reason for which a different set of rules

37. To my mind that is the situation as regards the so-called milk quotas. The Community The nature of milk quotas legislature must have believed that it could simply regulate these instruments according to their purpose, namely to control milk pro­ duction within the Community, and leave it to each Member State to resolve the complex private-law issues which the introduction of the new scheme would inevitably raise. 36. We have come a long way since classical Mindful of the significance of the new arrange­ Roman times, when property signified a power ment, however, it laid down two important over a thing that was so direct and complete conditions: the quota scheme was introduced as to be indistinguishable from the thing itself. on a temporary basis and the quotas were Nowadays a large proportion of transactions linked with dairy holdings. Both of these relate to things which, strictly speaking, are conditions have been gradually weakened, the not things at all. They have been created in first because the quota scheme has been con­ order to satisfy a specific socio-economic sistently extended between 1984 and the function and, more than any other good, present time and the second because the depend on the legislative framework within Member States have been given increasingly which they arc created and sustained. Take, wider opportunities to authorise the transfer for example, industrial patents. In order to of reference quantities independently of the protect industrial products and thus encourage holding. Since 1 April 1993 Member States invention, the legislature creates a new legal have even been able to authorise, subject to instrument and defines its content primarily certain conditions, 'the transfer of reference

ished since the introduction of the scheme, the French rules do not even permit the tem­ porary transfers provided for in Article 6 of 26 Regulation No 3950/92. In the absence of a coherent and stable legislative approach, it comes as no surprise that the characterisation of milk quotas by national courts has ranged 27 from 'valuable intangible asset', or even 39. While the relative stability of the quota 'intangible asset susceptible of being leased or scheme over a given period helps to create a transferred, ownership of which constitutes a degree of legal certainty, the relaxation of the 2 subjective right', 8to the more modest conditions governing the transfer of quotas 29 'administrative restriction of production' or reinforces the concept which traders legiti­ 30 'fiscal advantage akin to a subsidy'. Legal mately have of the quota as an autonomous writers have already expressed doubts as to valuable asset. In those circumstances, and in spite of the great differences in regard to this matter between the individual national legal orders, I believe that milk quotas must cur­ 26 — See, in that regard, H . Gehrke, 'Wie gemeinsam ist die Gemeinsame Agrarpolitik? — Zur Ausführung der rently be regarded as authentic intangible EG-Regeln für die Übertragung von Milchquoten in England und Wales, Franckreich und Deutschland', European Review assets. However, since they were introduced of Private Law, 1995, pp. 21-52. 27 — 'Valuable intangible asset', per Justice Murphy in Lawlor v The Minister for Agriculture and Others, ILRM, 1988, p . 400. 28 — 'Bene immateriale, succettibile di affitto o cessione, la cui 31 — See, in that regard, A. Bernard: 'Les quotas laitiers, meubles titolarità costituisce posizione de diritto soggettivo', Tribu­ ou immeubles?', Revue de Droit Rural, No 150, February nale di Parma, judgment of 16 December 1993, reported in 1987, p. 49 et seq. Dir. e giur. agr. e dell'amb., 1994, p. 112. 32 — See, for example, J. M. De la Cuesta: 'Aspectos jurídico- 29 — 'Contingentement administratif de la production'; H . Savoie: privados de la llamada cuota lechera', Revista de Derecho 'Quotas laitiers, procédures administratives et droit de pro­ Privado, 1988, p . 1067 et seq. priété: trois décisions récentes du Conseil d'État', Revue de 33 — The result of this has been certain structural deficiencies in Droit Rural, No 231, March 1995, p. 113 et seq. the case-law of the Court of Justice as compared with that 30 — 'Subventionsähnliche abgabenrechtliche Bevorzugung'; of the national courts (for the German case, see T. Schilling: Bundesgerichtshof, order of 19 July 1991, reported in Agrar- 'Eigentum und Marktordnung nach Gemeinschafts- und recht, 1991, p. 344. nach deutschem Recht', EuGRZ, 1998, p. 189).

for the purpose of regulating the market in from levy, one must take into account the milk, their content should be defined inherently regulatory nature of milk quotas according to that purpose, which continues before classifying those measures as expro­ to be their raison d'être. priations. In economic terms, one might per­ haps say that for a trader who holds a quota the intervention measures which affect that quota represent one more operating risk, closely linked with the situation on the market. That is a risk which the operator will have to bear, although only in consideration of the protection which the system affords him by 40. For those reasons I consider that exami­ guaranteeing a minimum price. nation of the validity of the measures adopted within the framework of the regulation of the market in milk must be centred on their necessity and proportionality in the light of the aim which they were intended to pursue. The conclusions drawn from that examina­ tion will have to be applied to every holder 42. Milk quotas thus constitute instruments of a reference quantity, irrespective of the of market intervention which, through the means whereby those quantities were allo­ process of the law, have become an item of cated (or, if one prefers, acquired). property. The content of that item of property/ instrument will clearly vary according to the various national legal systems. Some will require a closer link between the quota and a holding or will subject the transfer of the quota to various conditions. The quota is not thereby deprived of its character as an item or property, just as firearms or enriched ura­ 41. Put another way, although the fact that nium are not deprived of their character as milk quotas are in the nature of property may items of property by the restrictions on trans­ enhance their role in transactions to the point ferring them. Those conditions will only pro­ of protecting the subjective rights of those vide a means of preventing, to some extent, holding them, that aspect must not prevail the creation of 'quota markets'. over the paramount objective of regulating the market. Traders who deal in quotas (by means of the various transactions permitted under national law) must never lose sight of the fact that in the final analysis quotas are, in their essence and by virtue of their pur­ pose, instruments for regulating the market on a temporary basis and that this entails risks 43. The solution which I propose is, to my and uncertainty. That clearly does not mean mind, not only the one which best reflects that the legislature is completely free to dis­ economic reality; it is the one which permits pose of those reference quantities as it pleases. a more satisfactory protection of subjective It does mean, however, that when analysing rights. It is now less true than ever that 'the the validity of any regulatory measure, such right to property thus safeguarded within the as the 4.5% reduction of the quantities free Community legal order does not comprehend

the right to dispose, for profit, of an advan­ Preliminary question: validity of the national tage, such as the reference quantities allocated rules on the reallocation of quotas in the framework of the common organisa­ tion of a market, which does not derive from the assets or occupational activity of the person 34 concerned'. That is what the Court appears to have meant by omitting that passage from the more recent Irish Farmers judgment. Unlike the approach it took in earlier cases, in that judgment the Court did not reject the allegation of violation of the right to property 45. At the hearing the Commission for the on the ground that quotas did not constitute first time expressed its doubts as to the com­ assets. On the other hand, the Court stated patibility with Community law of the German that 'conversion into a definitive reduction provisions, in so far as they permitted the without compensation does not affect the acquisition of specific quotas previously actual substance of that right [to property] released over and above the objectives fixed inasmuch as the Irish producers were able to (see point 25 above). In the Commission's continue to pursue their trade as milk pro­ opinion, although the promotion of the defini­ 35 ducers'. That statement shows that the tive discontinuance of milk production in Court decided to approach the legal impact return for payment of compensation was of intervention measures — which is what based on Article 4(1)(a) of Regulation No milk quotas are — on their own particular 857/84, the reallocation of quotas in return ground, that of the right to property. It only for payment of the same amount — estab­ remains, therefore, to say so clearly. lished by ministerial regulation — never had any basis in law. That provision was formally based on Article 4(1)(c) of Regulation No 857/84, which provided that Member States could allocate quotas to producers with a view to restructuring the milk sector. The Com­ mission considers that requiring payment by the beneficiaries of restructuring objectives is no way to pursue those objectives. In those circumstances, Mr Demand cannot rely as against the Community institutions on argu­ ments based on the operation of acquiring quotas in return for payment, since this clearly 44. Before concluding these preliminary falls outside the scope of Community law. observations, I should point out that the milk quota system not only serves as a useful instrument for the stabilisation of the market but also plays an important part in the restruc­ turing of the market.

Court should make a declaration to that effect if only because it must be considered in rela­ in these proceedings without giving the par­ tion to its-function in society. Consequently, ties concerned, in particular the Federal restrictions may be imposed on it, in par­ Republic of Germany, the opportunity to be ticular under a common organisation of a heard on this matter. I consider, rather, that market, provided that those restrictions cor­ an absolute ban on the allocation, in return respond to objectives of general interest pur­ for payment, of milk quotas previously trans­ sued by the Community and do not consti­ ferred to the national' reserve pursuant to tute, with regard to the objective pursued, a Article 4(1)(a) of Regulation No 857/84, that disproportionate and intolerable interference is to say, within the framework of an opera­ affecting the very substance of the rights thus 36 tion intended to enable producers wishing to guaranteed. do so to discontinue milk production defini­ tively, is not to be inferred from Article 4(1)(c) of that regulation. In any event, since the solution which I recommend (see point 40 above) consists specifically in applying the same legal regime to quotas which have been acquired as to those initially allocated, for the purposes of the following examination, I shall, 49. There can be no doubt that the definitive in the following analysis, proceed on the reduction of 4.5%, without compensation, of plausible assumption that the national provi­ the reference quantities, irrespective of their sions under which the quotas were acquired origin, effected under Regulation No 3950/92 are compatible with the Community rules corresponds to objectives of general interest then in force. pursued by the Community institutions in the context of the common organisation of the market in milk and milk products, in par­ ticular the stabilisation of the market and the reduction of structural surplus. That is reiter­ ated in the 17th recital in the preamble to Regulation No 3950/92. Moreover, no one 47. I shall now examine the principles which, has denied before this Court that the purpose in the view of the national court and the pursued by the contested measure is in fact plaintiff in the main proceedings, may have one of general interest. been infringed as a result of the definitive reduction in the present case.

tionate and intolerable interference affecting the common organisation of the markets. That the very substance of the right to property, conclusion is reinforced by the fact that the having regard to the objectives already referred various measures adopted by the Community to, namely the stabilisation of the market and institutions since 1987 have not adversely the reduction of structural surpluses. affected the level of milk producers' income. Mr Demand claims that the price of milk has been falling in Germany since 1990 and pro­ duces private statistics to support his claim. The official data provided by the Commis­ 37 sion show, however, that between 1987 and 1996 the structural surpluses of milk and milk products were maintained, both in the Com­ munity as a whole and in the Federal Republic of Germany, despite the reduction at issue. As a result of that reduction the proportion 51. The same conclusion is valid for those of consumption to production in the Com­ producers who made use of the opportunity munity rose from 84% to 90% and the sub­ afforded by the relevant provisions to increase sidised quantities of butter and skimmed milk their reference quantities in return for the powder (products suitable for storage) fell by corresponding payment. Those producers 10% and 16% respectively. In spite of the derive greater benefit from the advantages of endeavours to limit production, in 1993 60% the common organisation of the market, in of the butter and 92% of the skimmed milk particular the guaranteed prices, while at the powder produced in the Community only same time increasing their proportional con­ found a market because of Community assis­ tribution to the structural surplus in that tance. Similarly, from the marketing year sector. It is therefore right that they should 1992/93, when the definitive reduction in the be obliged to participate in reductions of the present case was introduced, to 1995, the last guaranteed total quantities in the same pro­ 39 38 year for which figures are available, the net portions as other producers. total income of farms in Germany (as in the Community as a whole), far from falling, has consistently risen. In those circumstances, I consider that by adopting a reduction affecting a small percentage of producers' quotas (4.5%), which does not threaten the viability of farms, the Council acted within the wide discretion which it enjoys when regulating

54. In this case I consider that the withdrawal of the reference quantities, without compen­ — equivalent reference quantities had been sation, for 1992/93 and the permanent reduc­ withdrawn during the previous five years; tion effected by Regulation No 1560/93 (see point 18 above) were foreseeable by a pru­ dent and diligent trader. At the end of the five-year period established for the tempo­ rary withdrawal by Regulation No 775/87 the Council, following the proposal of the •— producers had benefited from digressive Commission, adopted Regulation No 816/92, compensation amounting to ECU 45.5 per 100 kilograms;

40 — Case C-350/88 Delacre and Others v Commission [1990] ECR I-395, paragraph 33. 41 — Case 203/86 Spain v Council [1988] ECR 4563, paragraph 42 — The same conclusion is found in the O'Dwyer judgment, 19. cited above, paragraph 54.

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OPINION OF MR RUIZ-JARABO — CASE C-186/96

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DEMAND v HAUPTZOLLAMT TRIER

58. The principle of non-discrimination continue production and accept the compen­ between producers or consumers of the Com­ sation offered by the German authorities, or munity laid down in the second paragraph of to keep, or even to increase, the reference Article 40(3) of the Treaty requires that dif­ quantities, with the attendant advantages and ferent situations are not to be treated in the obligations, was eminently a matter for indi­ same way unless that treatment is objectively vidual judgment. It was for each producer to 44 justified. In that sense, the situation which weigh up the economic advantage associated Mr Demand assumed on acquiring the addi­ with discontinuing production with the com­ tional quota must be compared with the situ­ mercial prospects offered within the frame­ ation of which the said new quota takes work of the common organisation of the account, that is to say, with the situation of market in milk, which should have included the holders who discontinued production the matters to which I referred above in con­ immediately before they did so. That situa­ nection with the protection of legitimate tion was distinguished, first, by the fact that expectations: in other words, producers should those quota-holders were able, on a tempo­ have contemplated the possibility that the rary basis, to produce a specific quantity of guaranteed quantities would be reduced in milk exempt from the additional levy and the near future. indirectly enjoy a guaranteed price and, second, by the need to adjust the market intervention system in order to avoid, in par­ ticular, situations of surplus supply. I shall merely point out that there is nothing to dis­ tinguish those opportunities and obligations from those which the plaintiff now raises in connection with his new quota, which, more­ 60. To sum up, I consider that the allegation over, are the same as those which the refer­ of breach of the principle of non­ ence quantities initially allocated entail. In discrimination cannot be upheld. applying the reduction in the present case to every reference quantity, irrespective of how it was acquired, the Community legislature therefore scrupulously observed the principle of equal treatment. Other principles invoked

These proceedings have not disclosed any factor capable of affecting the validity of Article 4(1) in conjunction with Article 3 of Council Regulation ( EEC ) No 3950/92 of 28 December 1992, even though that provision does not include in the reference quantities the 4 . 5 % temporarily withdrawn pursuant to Council Regulation ( EEC ) No 775 / 87 as amended , and even though it makes no provision for compensating producers and draws no distinction between the various possible ways of obtaining those reference quantities.

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