Súdny dvor Európskej únie·17.9.1998

C-374/96

ECLI:EU:C:1998:413

Súd: Súdny dvor Európskej únie
IČS: 61996CC0374
Zdroj: eur-lex.europa.eu ↗

VORDERBRÜGGEN v HAUPTZOLLAMT BIELEFELD

OPINION OF ADVOCATE GENERAL LÉGER delivered on 17 September 1998 *

1. The reference for a preliminary ruling made tural surpluses, the Community regulations to the Court by the Finanzgericht (Finance have reflected the concern of the legislator to Court) Düsseldorf concerns the validity of restrict any increase in production. Commission Regulation (EEC) No 1546/88 laying down detailed rules for the application of the additional levy payable by producers or purchasers of milk. 1

Non-marketing and conversion premiums

2. The question arose during litigation con cerning implementation of the regulations on milk quotas, a subject which the Court has 4. It is for this reason that Regulation (EEC) had to deal with on a number of occasions. 3 No 1078/77 laid down a number of mea sures to reduce supply. In particular, a system of premiums was introduced for holdings who ceased to market milk and milk products from their holdings for a period of five years I — Community regulations or who converted their dairy herds to meat production for a period of four years.

3. The common organisation of the market The additional levy in milk and milk products was established in 2 1968 by Regulation (EEC) No 804/68. Since the situation on that market has, from the outset, suffered from an imbalance between supply and demand, which has led to struc

5. In 1984 it was found that despite the mea sures which had been introduced the increase * Original language: French. 1 — Regulation of 3 June 1988 laving down detailed rules for the in milk production was continuing unchecked. application for the additional levy referred to in Article 5e of Regulation (EEC) No 804/68 (OJ 1988 L 139, p. 12), also referred to as 'the contested Regulation' or 'the Commission Regulation'. 2 — Council Regulation of 27 Tune 1968 on the common organisa 3 — Council Regulation of 17 May 1977 introducing a system of tion of the market in milk and milk products (OJ, English premiums for the non-marketing of milk and milk products Special Edition 1968 (I), p. 176). and for the conversion of dairy herds (OJ 1977 L 131, p. 1).

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Stricter measures had become necessary, so (EEC) No 857/84. In the Federal Republic the common organisation of the market in of Germany the reference quantity was estab milk and milk products was radically altered lished on the basis of the year 1983. Article by the introduction of the system of addi 2(2) of Regulation (EEC) No' 857/84 states tional levies, which is also known as 'the that Member States may provide that on their system of milk quotas'. territory the reference quantity shall be equal to the quantity of milk or milk equivalent delivered or purchased during the 1982 cal endar year or the 1983 calendar year, weighted by a percentage established so as not to exceed the guaranteed quantity defined in Article 5c of Regulation (EEC) No 804/68, as amended. 6. Article 5c of Regulation No 804/68, which was added by Article 1 of Regulation (EEC) 4 No 856/84, introduced a system of addi tional levies payable by every producer (For mula A), or by every purchaser (Formula B) of cow's milk on quantities which exceeded an annual individual reference quantity, 9. That system did not make provision for referred to as the 'milk quota'. The Federal granting a quota to producers who, since they Republic of Germany adopted Formula A. were taking part in the temporary non- marketing scheme provided for in Regulation No 1078/77, had not delivered or sold any milk during the reference year adopted for allocation of the quotas (these producers are 6 generally referred to as 'SLOM producers' ).

7. Under paragraph 3 of that article the sum of the reference quantities allocated to per sons subject to the levy in a Member State may not exceed a guaranteed total quantity, which differs between Member States, and is equal to the sum of the quantities of milk 10. In its judgments in Mulder 7and Von 8 delivered to undertakings treating or pro Deetzen the Court of Justice held that such cessing milk or milk products in each Member rules, in so far as they did not provide for the State during the 1981 calendar year, plus 1%. allocation of reference quantities to SLOM producers, frustrated those producers' legiti-

5 — Council Regulation of 31 March 1984 adopting general rules for the application of the levy referred to in Article 5c of Regulation (EEC) No 804/68 in the milk and milk products sector (OJ 1984 L 90, p. 13), referred to also as 'the Council Regulation'. 8. The general rules for the application of the 6 — The term 'SLOM' comes from the Dutch slachtoffers additional levy were laid down in Regulation omschakeling, meaning 'victims of conversion'. The acronym SLOM already existed in Dutch practice: it comes from Stopzetting Leveranties en Omschakeling Melkproduktie, meaning 'ceasing supplies and converting from milk produc tion'.

4 — Council Regulation of 31 March 1984 amending Regulation 7 — Case 120/86 [1988] ECR 2321. No 804/68 (OJ 1984 L 90, p . 10). 8 — Case 170/86 [1988] ECR 2355.

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mate expectations that the effects of the system 13. Article 3a(3) of Regulation No 857/84, as to which they had rendered themselves sub amended, lays down the conditions for the ject would be limited, and should therefore definitive allocation of the special reference be declared void. quantity to SLOM producers. In its original version it states that:

11. In order to comply with those judgments the Council adopted Regulation (EEC) No 'If, within two years from 29 March 1989, 9 764/89, Article 1 of which added a new producers can prove to the satisfaction of the Article 3a to Regulation No 857/84. That competent authority that they have actually article provides for the provisional allocation resumed direct sales and/or deliveries, and of a special reference quantity to certain cat that such direct sales and/or deliveries have egories of producers who had participated in attained during the previous 12 months a level non-marketing schemes and who complied equal to or greater than 80% of the provi with certain conditions. sional reference quantity, the special reference quantity shall be definitively allocated to the producers. Should this not prove to be the case, the provisional reference quantity shall be returned in its entirety to the Community reserve. The level of direct sales and/or actual deliveries shall be determined by taking into 12. Paragraphs 1 and 2 of Article 3a were account production rate trends on the pro annulled by the judgments in Spagl 10 and ducer's holding, seasonal conditions and any 1 Pastätter. 1The Court declared those provi exceptional circumstances'. sions invalid for breach of the principle of the legitimate expectations of producers who had taken part in the non-marketing scheme. Under Article 3a(1), producers whose non- marketing period expired before 31 December 1983 were excluded from receiving a SLOM 14. Article 3a(3) was amended by Article quota for no valid reason. At the same time, 12 1(II)(c) of Regulation (EEC) No 1639/91 the rule contained in Article 3a(2) restricted so as to extend the conditions which it lays the provisional special reference quantity to down for the allocation of a definitive refer 60% of the quantity of milk delivered or sold ence quantity to the new category of pro by the producer during the twelve months ducers, who may, as a result of this later preceding the application for a non-marketing Regulation, be granted a special reference premium, which amounted to a reduction of quantity. Thereafter, producers whose period 40%, considered excessive in comparison with of non-marketing or conversion in pursuance the percentages applying to other producers. of their undertaking under Regulation No 1078/77 expired in 1983, or who had already

9 — Regulation of 20 March 1989 amending Regulation No 857/84 (OJ 1989 L 84, p. 2). 10 — Case C-189/89 [1990] ECR I-4539. 12 — Council Regulation of 13 June 1991 amending Regulation 11 — Case C-217/89 [1990] ECR I-4585. No 857/84 (OJ 1991 L 150, p. 35).

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received a reference quantity under certain 16. The procedure laid down in Article 30 is provisions of the additional levy scheme, were the one which takes place before the Manage brought within the scope of Article 3a. The ment Committee for Milk and Milk Prod period of two years in which such producers ucts, a consultative body consisting of repre could provide satisfactory evidence for the sentatives of the Member States and presided allocation of a definitive reference quantity over by a representative of the Commis 14 was to run from 1 July 1991 instead of 29 sion. The task of the Management Com March 1989. 13 mittee is to give opinions on drafts which are submitted by the Commission representative. The Commission subsequently implements the proposed measures forthwith. However, where those measures do not meet with the Enabling provisions agreement of the Committee the Commission is required to refer them to the Council, and if necessary postpone their application. The Council may take a different decision under the procedure laid down in Article 43(2) of 15. Article 5c(7) of Regulation No 804/68, as the Treaty. amended, provides that:

'Detailed rules for the application of this Detailed rules for the application of the addi- Article shall be adopted in accordance with tional levy scheme the procedure laid down in Article 30.'

13 — According to the first recital in the preamble to Regulation No 1639/91 the new provisions are justified by the need to amend Article 3a in order to take account of the conse quences of the judgments of 11 December 1990 cited above, in particular as regards the date on which the non-marketing 17. These rules are laid down in the con period expires. Moreover, as stated in the third recital, the changes are intended to enable the category of producers tested Regulation, which was adopted to concerned to be granted the reference quantity referred to 15 in Article 3a even if they have already been allocated a refer replace Regulation (EEC) No 1371/84. ence quantity. However, in such cases the two quantities cannot be combined and the first quantity allocated will be deducted from the quantity provided for in Article 3a. The new Article 3a(3) of Regulation No 857/84, which entered into force on 28 March 1991, also amends the system applying to the provisional reference quantity where the conditions laid down are not complied with: in that case, the provisional reference quantity returns to the Community reserve and a definitive reference quantity equal to the quan tity actually delivered or sold is then allocated. It should be noted that the conditions for the allocation of a definitive 18. In the same way that the Council Regula reference quantity, namely that a producer must prove both that he has actually resumed direct sales and/or deliveries tion was amended following the Mulder and and that the direct sales and/or deliveries reached a level greater than or equal to 80% of the provisional reference Von Deetzen judgments, cited above, in order quantity during the previous 12 months, have not been amended. Consequently, the amendments to Regulation No 857/84 made by Regulation No 1639/91 do not alter the facts of the issue referred to the Court, which concerns the validity, in respect of Council Regulation No 857/84, of the 14 — Article 29(1) of Regulation No 804/68, as amended. Commission Regulation which makes the definitive alloca tion of a special reference quantity conditional upon the 15 — Commission Regulation of 16 May 1984 laying down detailed resumption of direct sales and/or deliveries of milk having rules for the application of the additional levy referred to in resumed for at least 12 months. Article 5c of Regulation (EEC) No 804/68 (OJ 1984 L 132, p. H ).

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to enable SLOM producers to be granted a II — Facts and national proceedings special reference quality, so the Commission Regulation was amended by Regulation (EEC) 16 No 1033/89 in order to adjust it to comply with those amendments.

20. Mr Vorderbrüggen, the applicant in the main proceedings, is a milk producer. He was granted a premium, which was paid in return for a non-marketing or conversion under taking under Regulation No 1078/77, for a 19. An Article 3 a was added at that time. period ending on 25 September 1985. Paragraph 3 of that article, the first subpara graph of which forms the subject-matter of the question referred to the Court, reads as follows:

21. On 28 June 1989 Mr Vorderbrüggen sub mitted an application to the competent authority requesting calculation of a provi sional special reference quantity. A certificate dated 1 August 1989 confirmed that he ful 'In accordance with rules to be laid down by filled the conditions for allocation of such a the Member State, the producer shall supply reference quantity. evidence to the competent authority, before 29 March 1991, that he has resumed direct sales and/or deliveries of milk for at least 12 months.

22. Mr Vorderbrüggen resumed milk produc tion on 23 August 1990. By letter of 29 August 1990 the competent milk cooperative informed him of his provisional special refer ence quantity.

The level of direct sales of milk or milk prod ucts and/or the level of milk deliveries during the twelve months preceding the supply of evidence shall be determined by the compe tent authority, taking into consideration the trend in the rate of production on the pro 23. On 12 July 1991 the Hauptzollamt (Prin ducer's holding, seasonal conditions and any cipal Customs Office) Bielefeld, the compe . tent authority in this matter and the respon exceptional circumstances ...'. 17 dent in the main proceedings (otherwise referred to as 'the HZA'), informed him that the definitive special reference quantity would 16 — Commission Regulation of 20 April 1989 amending Regula be allocated only if he had resumed milk pro tion No 1546/88 (OJ 1989 L 110, p. 27). 17 — Emphasis added. duction by 28 March 1990.

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24. By decision of 25 September 1991 the should be definitively allocated the provi HZA rejected the application for allocation sional reference quantity which he has actu of a definitive special reference quantity which ally milked. Mr Vorderbriiggen had made on 27 August 1991 on the ground that he had not resumed milk production in due time.

27. The HZA for its part considers that Article 3a(3) of Regulation No 1546/88, as amended, is valid because under Article 189 of the EC Treaty the Commission is authorised to adopt the regulations it requires to carry out its task. In this connection, the Commission is 25. When Mr Vorderbriiggen's complaint required, under Article 155 of the Treaty, to against that decision was rejected he brought ensure that the measures taken by the Com proceedings on 5 March 1992 in the Finanz- munity institutions pursuant to that Treaty gericht Düsseldorf. are applied. The defendant in the main pro ceedings adds that the Commission has received power delegated to it by the Council. It claims also that even if Article 3a(3) of Regulation No 1546/88, as amended, were to be declared invalid it would follow from Article 3a(3) of Regulation No 857/84, as amended, that the minimum period of 12 months is required in order to prevent abuse. Lastly, the HZA claims that the rules intro duced by Regulation No 1639/91 are not rel 26. In his action he claims in essence that evant in this particular case. Article 3a(3) of Regulation No 857/84, as amended, does not lay down a time-limit for starting deliveries. He adds that Article 3a(3) of Regulation No 1546/88, as amended, has 18 — See, regarding the content of that reform, footnote 22 of this no legal basis since Article 3a(3) of Regula Opinion. Since 1 July 1991 was set as the starting point for the period of two years which the producers concerned by tion No 857/84, as amended, does not include the 1991 reform were allowed for providing the evidence required for the allocation of a definitive reference quantity, any further condition for the granting of a Article 3a of Regulation No 1546/88 was amended accord definitive special reference quantity. He con ingly in order to put back to 1 July 1993 the date by which a producer must prove that he has actually resumed direct siders also that Article 155 of the EC Treaty sales and/or deliveries of milk for at least 12 months. Mr Vorderbrüggen's contention is apparently to defend the does not confer any power on the Commis claim that by resuming production on 23 August 1990 he sion to adopt Article 3a(3) of Regulation No met the time-limit of 1 July 1992, after which he could no longer be granted a definitive reference quantity. It will be a 1546/88, as amended. Mr Vorderbriiggen con matter for the national court to rule on that issue, which is one which can only be resolved once the documents in the siders finally that his right to be granted a case have been examined in order to establish whether the definitive reference quantity follows from applicant in the main proceedings comes into the category of producers who are covered by the reform in question. At Article 1(II)(c) of Regulation No 1639/91. In all events, the submission made in his application in the main proceedings is not likely to alter the terms of the his view, that provision, which entered into inquiry by the national court as to the validity of a minimum period for resuming sales and/or deliveries laid down in the force on 28 March 1991, is applicable to him. Commission Regulation, because the contested period will He contends that it provides that a producer still apply.

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28. It is apparent from the grounds of the IV — The answer to the question order for reference that the Finanzgericht Düsseldorf is uncertain as to the validity of Article 3a(3) of the Commission Regulation because it considers that that provision adds to the conditions laid down by Article 3a(3) of the Council Regulation a further condition of a minimum period for the resumption of milk production. The national court considers 30. By this question the national court seeks that since the only legal basis for the con to ascertain whether the first subparagraph of tested Regulation is Article 5c(7) of Regula Article 3a(3) of the Commission Regulation tion No 804/68, as amended, which refers to is valid in that it makes definitive allocation the laying down of detailed rules of applica of a special reference quantity to a producer tion according to the procedure contained in of milk or milk products coming within the Article 30 of that Regulation, the imposition category referred to in Article 3a(1) of the of a condition in respect of a period of time Council Regulation dependent on the condi involves a broad interpretation of the concept tion that the producer has actually resumed of measures of application. direct sales and/or deliveries of milk for at 19 least 12 months.

III — The question

31. It is thus necessary to determine whether the Commission, which drew up the con 29. In those circumstances, the Finanzgericht tested Regulation, had the power to lay down Düsseldorf has stayed the main proceedings a minimum period for the resumption of sales. and referred the following question to the Court of Justice:

'Is the first subparagraph of Article 3a(3) of 32. From the outset I must refute the Com Regulation (EEC) No 1546/88, as amended mission's theory that the first subparagraph by Regulation (EEC) No 1033/89, valid in so of Article 3a(3) of the contested Regulation far as it requires, over and above the require only provides, in different terms, for the same ments laid down in the first sentence of Article period as that laid down in the first sentence 20 3a(3) of Regulation (EEC) No 857/84, as of Article 3a(3) of the Council Regulation. amended by Regulation (EEC) No 764/89 and by Regulation (EEC) No 1639/91, that the producer must actually have resumed 19 — I shall henceforth use the term 'sales' by way of simplifica direct sales and/or deliveries of milk for at tion, given that this term is generally understood to cover 'sales and/or deliveries'. least 12 months?' 20 — Paragraph 27 of the written observations.

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33. The Commission maintains that, by pro of the provisional reference quantity. These viding that the producer must prove that he two pre-conditions for the definitive alloca has actually resumed sales and that they have tion of a reference quantity reflect certain over the preceding 12 months reached a level specific objectives of the Regulation con equal to or exceeding 80% of the provisional cerned. reference quantity in order to obtain defini tive allocation of that quantity, the Council Regulation already requires that sales should have been resumed for at least 12 months, as 21 laid down in the contested Regulation.

37. According to the second recital in the preamble to the Regulation, producers may claim reference quantities 'only if they comply 22 with certain eligibility criteria thus making 34. Like the national court, I think on the clear that they intend and are really able to contrary that the Commission Regulation resume milk production ...'. The requirement adds a further condition to those already laid of evidence that they have actually resumed down in the Council Regulation. sales, and the condition that they must prove they have achieved the objective of 80% of the provisional reference quantity, are among the eligibility criteria because they guarantee both that production has actually been resumed and that the producer is probably capable of nearing the level of the reference 35. This seems apparent to me from reading quantity which has been laid down provi Article 3a(3) of the Council Regulation. sionally.

36. The first sentence lays down the condi tion that it must be proved that sales have been resumed and also that a minimum level 38. Laying down a period of 12 months of sales has been achieved, in this case 80% merely provides a temporal framework within which both the intention to produce and the holding's actual capacity to produce, assessed by reference to 80%, can be measured spe 21 — Ibid., paragraphs 31 and 32. cifically. Failure to achieve this objective 22 — The Finanzgericht Düsseldorf states that: 'In that regard, recommencement of production within two years of 29 within 12 months would indicate either inca March 1989 and a particular volume of milk production during the previous 12 months docs not suffice. Instead, the pacity or lack of a genuine desire on the part first subparagraph of Article 3a(3) of Regulation No 1546/88 of the producer to resume milk production ... requires milk production to be actually resumed in the 12 months preceding submission of the evidence' (fifth para on an enduring basis and at the level fixed in graph of Section II of the order for reference). The wording of the order for reference reflects the opinion of the German advance. However, achieving this within a court that the requirement of a minimum period for the shorter period would in my view by no means resumption of sales does not follow from the Council Regu lation Dut results exclusively from the contested Regulation. indicate that there was no stated intention or

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capacity to resume production of the speci subparagraph of Article 3a(4) of the Council fied quantities. Therefore, evidence that this Regulation. objective has been attained, even within shorter periods, must be regarded as guaranteeing the objectives sought by the Council Regulation.

41. None the less, the existence of that objec tive is not sufficient to prove that the Council Regulation imposes a minimum period for 39. The period of 12 months is however the resumption of sales when such a period is not only period which provides an opportunity apparent from the wording of Article 3a(3) of to compare the level of sales attained against that Regulation. The requirement that a cer the provisional special reference quantity, since tain level of sales must have been achieved that quantity is also calculated on that basis. 'during the previous 12 months' expresses the Only if the level of sales were exceeded would idea of a limited period of time but does not the comparison be distorted. On the other state that the first unit of goods must have hand, attainment of the predicted level of sales been sold during the first month of that within a shorter period would not mean that period. If a minimum period of production the comparison had no relevance; it would resulting from the fixing of a deadline for simply provide more information on the pro resumption of that production was provided ductive capacity of the holding and confirm for it would be expressed by the requirement the producer's intention to resume produc to achieve the specified volume of sales 'for tion on an enduring basis. at least 12 months', which is precisely the wording used in the contested Regulation.

40. The existence of the objective of com bating speculation, cited by the Commission 42. Lastly, if in Article 3a(3) of the contested in order to justify laying down a time-limit Regulation the Commission had repeated for resuming sales, cannot of course be dis simply the rule set out in Article 3a(3) of the puted. Laying down eligibility criteria in order Council Regulation one might wonder why to establish the actual intention and capacity the preamble to the Commission Regulation 23 did not make specific reference to that article of producers to resume milk production appears to be dictated by the Council's con cern to prevent producers from regarding special reference quantities as negotiable finan 24 — Judgment in Case C-44/89 Von Deelzen [1991] ECR I-5119, cial assets, acquired solely in order to be sold paragraph 24. The second subparagraph of Article 3a(4) imits the possibility of transferring the special reference once they have increased in value. The Court quantity by providing that in the event of the holding being of Justice has moreover recognised the exist sold or leased within a certain period the special reference quantity will return to the Community reserve. The Court ence of this objective in relation to the second ruled that that provision was '... justified by the need to pre vent [producers] from seeking the allocation of a special ref erence quantity in order, not to resume the marketing of milk on an enduring basis, but to derive from that alloca tion a purely financial advantage by realising the marketable value which the reference quantities have acquired in the 23 — Second recital in the preamble to Regulation No 857/84. meantime.'

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of the Council Regulation, when other articles 47. Under Article 5c(7) of Regulation No of that Regulation are expressly referred to, 804/68, as amended, the Commission, as we including the second subparagraph of Article have seen, was charged with adopting detailed 3a(4). rules for the application of the additional levy introduced by Article 5c, under the proce dure laid down in Article 30.

43. It does not seem to me therefore that Article 3a(3) of Regulation No 857/84, as 48. Article 5c(7) is moreover referred to in amended, can be interpreted as requiring a the contested Regulation, which mentions also producer to resume sales by a certain date, that the Management Committee for Milk after which he will not be granted a defini and Milk Products provided for in Article 30 tive special reference quantity. has not delivered an opinion within the time- 25 limit set by its chairman.

44. Similarly, I do not consider that article to be adequate to justify the adoption by the 49. The Council has thus delegated power to Commission of the first subparagraph of the Commission, and the exact content of Article 3a(3) of the contested Regulation, the this power should be ascertained by clari content of which seems to me to be wholly fying the term 'detailed rules of application'. unambiguous in that it requires that sales The question which arises therefore is whether must have been resumed for a minimum that term includes the power to lay down a period in order for a definitive quota to be period such as the period in issue. allocated.

50. Let us look at the legal system established by the Treaty. The third subparagraph of 45. The legal basis for the period concerned Article 43(2) generally gives the Council the must be sought elsewhere. power to adopt, on a proposal from the Com mission and after consulting the European Parliament, rules relating to a common organi sation of the market. Articles 145 and 155 allow the Council to confer on the Commis sion, in the acts which it adopts, implementing powers in respect of the rules which it lays 46. In my view the Commission should not down. Article 145 provides however that the have laid down further conditions for the definitive allocation of a special reference quantity without being empowered to do so by the Council. 25 — [Fourteenth] recital.

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Council may also reserve the right, in specific 53. However, it is clear that this was the way cases, to exercise those powers itself. the Treaty laid down the rules on the division of powers and that the demarcation line between the powers of the Council and those of the Commission depends primarily on the extent of the powers conferred on the Com mission.

51. The difficulty raised by the Commission Regulation seems to me to be one that is inherent in that institutional mechanism. By allowing the Council to delegate to the Com mission any implementing powers it chooses, whilst retaining some of those powers in respect of the same basic regulation, the system 54. The Court of Justice traditionally gives a which has been established in fact authorises broad interpretation of provisions laying down both institutions to lay down provisions of measures of implementation or application. the same type in order to implement a mea sure, a situation which may sometimes give the impression that the Commission is encroaching on the powers of the Council.

55. In the Germany v Commission judgment cited above the Court stated that the Treaty draws a distinction 'between rules which, 52. In the present case, for example, one is since they are essential to the subject-matter entitled to wonder why the conditions for envisaged, must be reserved to the Council's allocating the definitive reference quantity, power, and those which, being merely of an requiring evidence of resumption of sales and implementing nature, may be delegated to the 27 the minimum level attained by such sales, are Commission'. to be found in the Council Regulation whilst the condition requiring evidence that sales have been resumed for a minimum period appears in the Commission Regulation. We shall see that these conditions are in fact pur suing the same objective. Moreover, it is clear that they arc not different. It may thus seem legitimate to pause when reading the relevant 56. The Court added that only 'provisions regulations and consider the inference that which are intended to give concrete shape to the Commission has wrongly imposed restric the fundamental guidelines of Community tions on the rules which were drawn up by policy' could be classified as essential to the 28 the Council. common organisation of the market.

26 — Case C-240/90 Germany v Commission [1992] ECR I-5383, 27 — Ibid., paragraph 36. paragraph 35. 28 — Ibid., paragraph 37.

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57. In that case the Commission had been 60. The Court ruled that delegation by the empowered to adopt, according to the man Council to the Commission of the general agement committees' procedure provided for power to adopt rules of application was suf in a basic regulation, the detailed rules for the ficient and did not require that the essential application of that regulation in the sheep- components of the implementing powers del meat and goatmeat sector, in particular those egated to the Commission should be speci concerning the submission of premium appli fied since the essential rules governing the 29 cations and payment of the premium. matter in question had been laid down in the 32 basic regulation.

58. The Court concluded that measures 61. In the Hopermann judgment, 3the fac 3

involving the imposition of penalties such as tual circumstances and the question are even surcharges on payments improperly charged closer to those presently referred to the Court, by a trader which should be refunded, and the issue being whether the detailed rules of exclusion from benefiting under a scheme of application which were conferred on the Com aid where a trader gives false information to mission entailed the power for the Commis the administrative authorities, 'amount to no sion to lay down time-limits and punish failure more than implementation of the principles to comply with those time-limits by loss of established in the basic regulations and, since entitlement to aid. the Council did not reserve that power to itself, it was properly delegated to the Com 30 mission'.

62. As in the present case, the Commission Regulation laid down a time-limit, a period within which an application for aid must be lodged, but, unlike the present case, the pen 59. Those penalties were regarded as being alty in the event of failure to comply with it intended to underpin the options of Commu was not specified by the regulation concerned. nity policy by ensuring the proper financial management of the Community funds desig 31 nated for their attainment. Their nature as rules of application was thus recognised 32 — Ibid., paragraphs 41 and 42. It is important to note that in that case the German Government cited the second sentence despite the fact that their implementation led of the first paragraph of Article 1 of Council Decision to the offending traders being deprived of 87/373/EEC of 13 July 1987 laying down the procedures for the exercise of implementing powers conferred on the Com their rights. mission (OT 1987 L 197, p. 33), under which the Council is to specify the essential elements of the implementing powers conferred on the Commission. In paragraph 42 of the judg ment the Court clearly stated that: 'As a measure of sec ondary law ... [that decision] cannot add to the rules of the Treaty, which do not require the Council to specify the 29 — Ibid., paragraphs 3 to 5. essential components of the implementing powers delegated 30 — Ibid., paragraph 39. to the Commission'. 31 — Ibid., paragraph 37. 33 — Case C-358/88 [1990] ECR 1-1687.

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63. The Court first pointed out that the Com by the Council, the Commission could impose mission was 'authorised, in the exercise of the requirements on the traders concerned in the powers conferred on it by the Council with form of specific time-limits and attach to a view to implementing a common organisa those requirements penalties which could go tion of the markets in the agricultural sector, so far as the total loss of entitlement to aid in to adopt all the detailed rides of application order to ensure the proper functioning of the necessary for the proper functioning of the system of aid concerned. system of aid provided for, so long as they are not contrary to the basic regulation or the 34 implementing rules of the Council'.

67. I think that the same reasoning should apply in the present case.

64. The Court went on to rule that: 'The duty of management and supervision with which the Commission is thus entrusted entails the power to fix periods and to provide for appro priate penalties for their non-observance 68. Article 5c(6) of Council Regulation No which may go as far as the total loss of the 804/68, as amended, authorises the Council right to aid if observance of those periods is to lay down, in accordance with the proce necessary for the proper functioning of the dure laid down in Article 43(2) of the Treaty, 35 scheme in question'. the general rules for the application of that article, and in particular those relating to the determination of the reference quantities and the amount of the additional levies. Council Regulation No 857/84, as amended, was thus adopted in accordance with that provision. 65. Lastly the Court added that despite the absence of provisions with respect to the pos sibility of a penalty or the kind of penalty which might be imposed for failure to observe the period concerned, it was clear from the objective pursued by that obligation that the 69. The contested Regulation, in turn, is based consequence of a failure to observe the period 36 on Article 5c(7), which authorises the Com could only be loss of entitlement to the aid. mission to adopt the detailed rules for the application of that article.

66. In other words, it was acknowledged that, on the basis of a general delegation of powers 70. Following the Mulder and Von Deetzen 37 judgments cited above, Regulation No

34 — Ibid., paragraph 8, emphasis added. 35 — Ibid. 36 — Ibid., paragraph 11. 37 — See point 10 of this Opinion.

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764/89 amended the Council Regulation in procedure, including the fixing of time-limits, order to extend the additional levy scheme to should be laid down so that Article 3a of SLOM producers by inserting Article 3a. The Regulation (EEC) No 857/84 can be imple contested Regulation was itself amended for mented in circumstances that guarantee com the same purpose by Regulation No 1033/89. pliance with the rights and obligations of all the parties concerned'.

71. It should be noted first of all that the contested time-limit provided for in the Com 74. It therefore appears that the period of 12 mission Regulation does not appear to con months laid down in the first subparagraph flict with the Council Regulation. The time- of Article 3a(3) is justified by the concern to limit of 29 March 1991, after which evidence reconcile the legitimate extension of the addi can no longer be brought that sales have tional levy scheme to SLOM producers whilst resumed, as provided for in the first subpara not jeopardising 'the fragile stability that cur 38 graph of Article 3a(3) of the Commission rently obtains in the milk products sector'. Regulation, is compatible with the period of two years from 29 March 1989 during which such resumption may be proved, as laid down in Article 3a(3) of the Council Regulation. Moreover there is no suggestion in the Council Regulation that the conditions for definitive allocation of the reference quantity which it 75. This restriction on entitlement under the lays down are exhaustive, so that the Com scheme concerned is linked to the objective 39 mission is not a priori entitled to supplement of combating speculation, mentioned above, them. which justifies taking into account the length of the period during which sales have been resumed.

72. Secondly, it must be established that the additional requirement of a minimum period 76. Indeed, as the Commission points out, for the resumption of sales, without which no the requirement of a minimum date for the special reference quantity will be definitively resumption of sales is intended to avoid specu allocated, is required for the proper func lative manoeuvres involving resumption of tioning of the scheme. production in order to obtain a reference quantity solely in order to carry out a finan cial transaction by disposing of it for consid eration.

73. The fourth recital in the preamble to 38 — Fifth recital in the preamble to Regulation No 764/89. [Regulation No 1033/89] states that 'rules of 39 — Point 40 of this Opinion.

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77. In the absence of an explanation, too by 29 March 1991 that they had actually recent a resumption of sales, which is thus resumed sales for at least 12 months the too long after the day on which a producer Regulation, which entered into force on 21 lodged his application for a special reference April 1989, left the producers concerned a 40 quantity, makes it likely that the producer period which was clearly inadequate for them has a deliberate strategy to obtain a definitive to resume sales. special reference quantity without the actual intention and capacity to resume production being guaranteed.

78. However, a short period of resumption 81. The Commission's fixing of a time-limit demonstrates that the producer concerned has for the resumption of sales is therefore not been slow in resuming milk production likely to prejudice the interests of the pro although he had demonstrated a willingness ducers concerned by depriving them of spe to carry out such resumption very early on. cial reference quantities for no valid reason.

79. The result is that the Commission's power to lay down time-limits is clearly conducive to the proper functioning of the scheme.

82. In view of these factors, I consider that the Commission has the power to lay down the minimum period for the resumption of 80. I would add that it does not appear that sales provided for in the first subparagraph of by requiring the producers concerned to prove Article 3a(3) of Regulation No 1546/88.

Conclusion

83. In the light of the foregoing I propose that the Court give the following answer to the question submitted by the Finanzgericht Düsseldorf:

40 — Under Article 3a(1) of the Council Regulation the applica tion should be lodged within three months of 29 March 1989.

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Consideration of the question referred for a preliminary ruling has revealed nothing capable of affecting the validity of the first subparagraph of Article 3a(3) of Com mission Regulation (EEC) No 1546/88 of 3 June 1988 laying down detailed rules for the application of the additional levy referred to in Article 5c of Council Regu lation (EEC) No 804/68 of 27 June 1968 on the common organisation of the market in milk and milk products, as amended by Commission Regulation (EEC) No 1033/89 of 20 April 1989.

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