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* Original language: Greek. 1 — OJ 1984 L 90, p. 13. 4 — Council Regulation (V.V.C) Nn 1078/77 ni 17 May 1977 2 — O J 1991 L 150, p. 35. introducing a system nf premiums for the non-marketing of milk anti milk products anil for the conversion of dairy 3 — O J 1992 L 405, p. 1. herds (OJ 1977 1. 131, p. 11.

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3. In view of the constant increase in milk Regulation No 764/89 inserted a new Arti production, the Council introduced, in cle 3a into Regulation No 857/84, accord addition, by means of Regulation (EEC) ing to which, under certain conditions No 856/84 of 31 March 1984 5an addi (which are primarily intended to ensure tional levy which, pursuant to Article 1 of that producers genuinely intend to resume that regulation, is imposed on quantities of milk production and are in a position to do milk delivered in excess of a reference so) a special reference quantity can be quantity to be determined; the levy is to allocated to producers who had underta be paid either by the milk producers ken, pursuant to Regulation No 1078/77, (Formula A) or by the purchasers of milk not to market any milk or to convert their and other milk products, who pass on the herds and, as a consequence, were excluded levy to those producers who have increased from the allocation of an original reference deliveries, this being done in proportion to quantity (hereinafter 'the SLOM I the producer's contribution to the amount regime'). 9 exceeding the purchaser's reference quan

However, the Member States are free to provide that the reference quantity 6 — Case 120/86 Mulder v Minister van Landbouw en Visserij for their territory is to correspond to the [1988] ECR 2321. 7 — Case 170/86 Von Deetzen v Hauptzolīamt Hamburg-Jonas quantities of milk or milk equivalent deliv [1988] ECR 2355. ered in the 1982 or 1983 calendar years, 8 — Council Regulation (EEC) No 764/89 of 20 March 1989 amending Regulation (EEC) No 857/84 adopting general there being applied to that quantity a rules for the application of the levy referred to in Article 5c percentage rate so established as to ensure of Regulation (EEC) No 804/68 in the milk and milk products sector (OJ 1989 L 84, p. 2). that the guaranteed quantity for the Mem 9 — The term 'SLOM' comes from the Dutch 'schlachtoffers ber State in question is not exceeded. omschakeling' which means 'conversion victims'.

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amended by Regulation No 764/89 invalid September is at least twice that of the to the extent that it excluded producers, months October to the March of the whose non-marketing or conversion period following year; under Regulation No 1078/77 had expired before 31 December 1983, or, as the case might be, 30 September 1983, from the allocation of a special reference quantity pursuant to that provision and to the extent that it limits the special reference quantity — who, being premium transferees, have to 60% of the quantity of milk or milk not received a reference quantity pur- equivalent sold by the producer during the suant to Article 2 and/or Article 6 of 12 calendar months preceding the month in the Regulation; which the application for the non-market- ing or conversion premium had been made. Complying with those judgments, the Council adopted Regulation No 1639/91 amending Regulation No 857/84 with the shall receive provisionally, if they so request result that the allocation of a special within three months from 29 March 1989, reference quantity became possible in the a special reference quantity and provided abovementioned cases, where it had pre- that such producers ... viously been excluded.

Producers, 6. More specifically, Article 3a of Regula- tion No 857/84 as amended by Regulation No 1639/91 (hereinafter 'the SLOM II regime') provides:

— who have received the holding through an inheritance or similar means follow- 4. That part of the special reference quan- ing expiry of the undertaking entered tity which is not intended for use during a into under Regulation N o 1078/77 by 12-month period may not be the subject of the originator of the inheritance, albeit a temporary transfer as referred to in before 29 June 1989, Article 5c(1a) of Regulation N o 804/68.'

shall receive on a provisional basis, on 7. Regulation N o 857/84 was repealed, application submitted within a time limit of with effect from 1 April 1993, by Council three months from 1 July 1991, a special R e g u l a t i o n ( E E C ) N o 3 9 5 0 / 9 2 of reference quantity on the terms laid down in ... 28 December 1992 establishing an addi- tional levy in the milk and milk products sector, 12 which provided that the existing quota system was to apply, subject to certain changes, for a further seven years. In Article 4(3) of that regulation Arti- cle 3a(3) of Regulation N o 857/84 was enacted in modified form:

8. By its judgment of 3 December 1992 in Wehrs, 13 the Court declared Article 3a (1), second indent, of Regulation No 857/84, as amended by Regulation N o 764/89, which introduced the 'anti-accumulation' rule, invalid, in so far as it excluded from the award of a special reference quantity those producers, who had taken over a premium g r a n t e d p u r s u a n t to R e g u l a t i o n N o 1078/77, and who had been granted a — has taken over part of a holding subject reference quantity under Article 2 of Reg- to the same provisions but for which no ulation No 857/84. As a result of that reference quantity has been allocated judgment, the Council enacted Regulation pursuant to Article 3a of Regulation (EEC) N o 2055/93 of 19 July 1993, 14 (EEC) No 857/84, enabling those producers who were pre- vented by the 'anti-accumulation rule' from being awarded a special reference quantity under Article 3a of Regulation No 857/84 as amended by Regulation No 1639/91 to obtain, under certain conditions, such a reference quantity (hereinafter: 'the SLOM III regime').

shall receive a special reference quantity on 9. More specifically, Article 1(1) of Regu- request, provided that: lation No 2055/93 provides:

'[A] producer, within the meaning of Arti- cle 9(c) of Regulation (EEC) No 3950/92, who:

— is the transferee of a non-marketing or conversion premium pursuant to Reg- — he establishes in support of his appli- cation, on the basis of criteria to be 13 — Case C-264/90 Heinruch Webrs v Hanplizollamt Luneburg determined, that he is able to increase [19921 HCR I-6285. production on his holding by the 14 — C o u n c i l Regulation (EHC) No 2055/93 of 19 July 1991 amount of the special reference quan- allocating a special reference quantity to certain producers of milk and milk products (OJ 19931. 187, p. 8). tity applied for.'

I I I— Facts tity to which the applicant is unquestion- ably entitled under Article 2 of Regulation N o 857/84 — is a result of the provisional determination of a special reference quan- 10. The applicant in the main proceedings tity pursuant to Article 3 a of Regulation is a milk producer. As stated in the order N o 857/84, in so far as that provisional for reference, on 1 April 1991 he had determination can be converted into a final available to him an original reference one. The national court maintains that the quantity of 50 704 kg. 15 In October 1991 reason for the determination of a special he was allocated an additional special reference quantity in accordance with the delivery reference quantity consisting of said provision was that the applicant had 20 380 kg under the SLOM II regime, taken over the lease of an additional despite the fact that the 'anti-accumulation holding for which a non-marketing under- rule' contained in Article 3 a ( l ) , second taking had been entered into under Reg- indent, of Regulation N o 857/84 as amen- ulation N o 1078/77. The legal basis for the ded by Regulation N o 1639/91 was still in allocation of a special reference quantity to force. 16 Between April 1992 and February such a producer was provided for the first 1993 the applicant had delivered 14 272 kg time by Regulation N o 764/89, which, of milk. 17 He leased out his original however, did not operate to the applicant's reference quantity for that period. Subse- benefit because his non-marketing under- quently he discontinued milk deliveries taking had expired before 31 December entirely. 1983, namely on 1 May 1983, and he was therefore excluded from being awarded a special reference quality pursuant to Arti-

in 1983. It was in consequence of this that 15 — In his written observations, and in his reply to the Court's the applicant was provisionally awarded a written question as to whether or not his constitutes a single holding, the applicant states that he has been special reference quantity pursuant to Arti- operating his father's holding, comprising an area of 12.5 ha, in the capacity of tenant farmer since as early as cle 3 a ( l ) of Regulation N o 857/84, as November 1977, and that, moreover, since October 1980 he has been letting the entirety of the farmland which his amended by Regulation N o 1639/91, not- uncle had used for milk production, and for which his withstanding the prohibition on accumula- uncle had received a non-marketing premium. The appli- cant then entered into the non-marketing undertaking tion then in force under Article 3 a ( l ) , himself, which expired on 30 April 1983.

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12. As stated in the order for reference, the ceedings and refer the following question to competent German authority, the Haupt- the Court for a preliminary ruling: zollamt (Principal Customs Office, herein- after: 'the HZA'), refused 18 the definitive allocation of a special delivery reference quantity as applied for by the applicant on the ground that he had failed to deliver any milk from the reference quantity provision- ally allocated to him, and fixed the defi- nitive special delivery reference quantity at 0 kg. The HZA was of the opinion that the 'Is the first sentence of Article 3a(3) of effectiveness of the prohibition on leasing Regulation (EEC) No 857/84, as amended out the provisional reference quantity, as by Regulation (EEC) No 1639/91, to be laid down in Article 3a(4) of Regulation interpreted as meaning that a milk produ- No 857/84, would be undermined and the cer is to be allocated a definitive special required actual production of the allocated reference quantity even where, in the milk quantities by the person entitled to period laid down in that provision, he did them would not be achieved if he were able not use the special reference quantity to lease out an original reference quantity provisionally allocated to him for a corre- attaching to his holding during the period sponding increase in his milk production, specified in Article 3a of Regulation but temporarily transferred to another No 857/84, as amended by Regulation business that part of his milk quota corre- No 1639/91. sponding to the original reference quantity held by his business in addition to the provisionally allocated special reference quantity?'

A — Choice of the provision to be inter- repealed by Regulation N o 857/84, 19 but preted 'without prejudice to the obligations and undertakings entered into under the said regulation'. 20 However, because Regula- tion N o 3950/92 entered into force on 3 January 1993, with effect from 1 April 15. The Commission states that the H Z A's 1993, 21 that is to say, before 1 July 1993, decision, which is the subject of the case in and after the decisive period laid down in the main proceedings, was adopted on the Article 3a(3), first sentence, of Regulation b a s i s of A r t i c l e 4(3) of R e g u l a t i o n N o 857/84 as amended by Regulation N o 3950/92 and not on the provision N o 1639/91 had expired, the Community mentioned in the national court's order legislature, when it adopted transitional for reference, namely Article 3a(3), first rules essentially intended to provide clar- sentence, of Regulation N o 857/84, as ification, considered it useful to repeat the amended by Regulation N o 1639/91. Reg- previously applicable provisions in Arti- ulation N o 857/84 had been repealed by cle 4(3) of the new regulation. the time the decision was adopted, whereas Regulation N o 3950/92 was already applicable. The two provisions are, how- ever, identical, so that the point whether the Court's reply to the question would be of any use does not arise. The Commission merely proposes to reformulate the ques- tion so as to identify the correct provision. 18. The fact that the old and new provi- sions are identical in content, a fact also pointed out by the Commission itself, leads to the conclusion that from the point of view of transitional law no substantive question arises as to the choice between 16. It should be pointed out that the order the two provisions. The only question of for reference specifies neither the date nor this nature which might possibly arise the legal basis of the decision which was concerns the probable need for a systematic adopted by the H Z A and is at issue in the interpretation of the conditions for con- main proceedings. Since it is in principle for verting the provisional special reference the national court to choose the provision quantity into a definitive reference quan- of Community law whose interpretation it tity. In the light of the abovementioned considers to be of assistance in deciding the recitals relating to the contested provision case before it, the Court of Justice is bound of Regulation N o 3950/92, it appears that by this choice in so far as it does not find the Community legislature had allowed that the national court has committed a itself to be guided by the letter and spirit manifest error. of Regulation N o 857/84, which, as I will show presently, is also in conformity with the principle of legal certainty. As against

this, it might possibly be argued, in con- in addition to the provisionally allocated nection with the procedural provisions and special reference quantity. the consequences of such a conversion, that the provisions contained in Regulation No 3950/92 are to be applied. However, this does not in any way affect the Court's answer to the present preliminary question, since none of the issues which arose in the main proceedings concerns either proce- dural provisions or the consequences of B — Substance converting a provisional special reference quantity into a definitive reference quan- tity. 20. The question which the Bundesfinanz- hof has referred for a preliminary ruling in the present case forms part of the more general issue concerning the rules govern- ing the allocation of a special reference quantity under the provision contained in Article 3a(3), first sentence, of Regulation 19. On the basis of the foregoing consid- No 857/84, as amended by Regulation erations, I am of the opinion that the choice No 1639/91 and incorporated in Arti- which the national court has made with cle 4(3), first sentence, of Regulation regard to the provision of Community law No 3950/92, to a milk producer who has to be interpreted can be respected without already obtained an original reference at the same time denying that the Commis- quantity under Article 2 of Regulation sion's argument may be correct, and that No 857/84. this can be done simply by reformulating the question in clear terms so as to include mention of both regulations. Specifically, I propose to proceed on the basis that the national court is essentially asking whether the provision contained in Article 3a(3), 21. The accumulation of both these refer- first sentence, of Regulation No 857/84 as ence quantities, which, as stated above, was amended by Regulation No 1639/91, a prohibited by virtue of Article 3a(l), sec- provision which was incorporated in Arti- ond indent, of Regulation No 857/84 as cle 4(3), first sentence, of Regulation amended by Regulations Nos 764/89 and N o 3950/92, is to be interpreted as mean- 1639/91 ('anti-accumulation rule'), was ing that a milk producer can be allocated a then allowed and regulated by Regulation definitive special reference quantity also No 2055/93. The particularity of this case where during the period laid down in the lies, however, in the fact that the special said provision he has not used the reference reference quantity was provisionally allo- quantity provisionally allocated to him to cated to the applicant in October 1991, achieve a corresponding increase in milk that is to say, prior to the entry into force of production, but has temporarily transferred Regulation No 2055/93 and at a time when to another holding that part of his milk the 'anti-accumulation' rule was still in quota which corresponds to the original force. The first question which must be reference quantity allocated to his holding examined is, therefore, whether Regulation

(a) The possibility of applying Regulation 25. That interpretation of Regulation No 2055/93 to the facts in the main No 2055/93 would appear to be correct. proceedings First, it should be pointed out that that regulation, which aims to bring Commu- nity law into full conformity with the judgment in 'Wehrs, 22 for the first time acknowledged and simultaneously regu- lated the possibility of accumulating a 23. The Commission provides an interpre- special reference quantity originally provi- tation of Regulation No 2055/93 which, it ded for Article 3a of Regulation No 857/84 proposes, the Court should apply to the with an original reference quantity allo- facts in the main proceedings. Even though cated pursuant to Articles 2 and/or 6 of this interpretation appears to be fundamen- that Regulation. It should next be noted tally correct, I nevertheless take the view that Regulation No 2055/93 refers in its that the application of that regulation to the situation of the applicant and those producers who may find themselves in the 22 — See footnote 13.

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amended by Regulation N o 1639/91, pro- the Regulation, was aware of the invalidity ducers such as the applicant, who had of the 'anti-accumulation rule' and if those already been awarded an original reference conditions are applied, as so construed, quantity, would not be entitled to a provi- also to cases such as that in point in the sional special reference quantity. This main proceedings. Conversely, should the means that the question as to the conditions prescribed conditions not be applied merely under which the special reference quantity because they do not at all 'tally' with the could have been definitively allocated never situation of those producers, the risk would arose for the Community legislature. It was arise of unjustified discrimination to the for this reason that those conditions were detriment of those producers, who had not not mentioned in Article 3 a of Regulation been allocated an original reference quan- N o 857/84 and that Article 3(1) of that tity and who were barred from producing regulation, which later became Arti- milk. cle 4(3), first sentence, of Regulation N o 3 9 5 0 / 9 2 , requires the producer to demonstrate that he has 'resumed' deliver- ies of milk.

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final indent, of Regulation No 2055/93 not governed by Community law and would fall for consideration because, at therefore did not give rise to any specific the time of the contested decision of the obligations on the part of the competent HZA (6 July 1994), that regulation was national authorities or to any correspond- already in force and the HZA could have ing rights for the producer in question. As had recourse to it. the Court held, significantly, in its judg- ment of 6 June 1996 in Ecroyd, 27 the fact that the 'anti-accumulation rule' was declared invalid in Wehrs does not result in any obligation or power on the part of the competent national authorities to allo- cate a special reference quantity. By reason of the complexity of the milk-quota system, 32. I do not agree with the Commission's the relevant legal framework, as it stood reasoning here. The application of the following the declaration of invalidity of conditions laid down in Regulation the 'anti-accumulation rule', did not of No 2055/93 for the award of a special itself, that is to say without adjustment of reference quantity in the applicant's case is the system, permit a producer in the same not permissible because, contrary to the situation as the applicant to be awarded a arguments advanced by both the Commis- special reference quantity. In other words, sion and the applicant himself, the appli- the competent national authority was nei- cant was not entitled to the allocation, by ther obliged nor empowered, prior to the his national authorities, of a special refer- adoption of other provisions of Commu- ence quantity in addition to the original nity law curing the established invalidity, to reference quantity and, although he succee- award a special reference quantity to those ded in obtaining that special reference producers who found themselves in the quantity for himself, this did not establish abovementioned situation. 28 any specific rights and obligations for him.

rule' was still applicable and prior to the certainty, that the rights and duties of the entry into force of Regulation N o 2055/93, owner of a special reference quantity, who would not appear to be the subject of any hopes that this quantity will become defi- specific right or obligation in connection nitive, are fixed in accordance with the with the rules governing the accumulation legal framework in force at the time when of the two reference quantities, inasmuch the special reference quantity in question as, at the time when the abovementioned was provisionally allocated to him. One national administrative measure was could not reasonably maintain that the adopted, there was no specific body of producer concerned must comply with rules of Community law which prescribed conditions and obligations of which he and regulated such accumulation. From the had no knowledge at the start of the period legal point of view, it was therefore impos- for which conditions and prerequisites were sible for a subjective situation deserving of laid down in respect of the definitive award protection to arise, that is to say, an of the special reference quantity. In any established right to the award of a special case it could certainly not be maintained reference quantity, to which the application that that producer must comply with of the conditions laid out in Regulation conditions and obligations that were laid N o 2055/93 might be envisaged. The appli- down after the abovementioned period had cation of this regulation to producers expired. In other words, it would not be finding themselves in the same situation as permissible to apply the requirement for an the applicant would be tantamount to increase in the production of the entire creating retroactively the missing legal holding, and the prohibition on leasing out framework for the accumulation of both the primary quota that Regulation quantities. Such a retroactive application of N o 2055/93, which entered into force on Regulation N o 2055/93 is, however, not 1 August 1993, would appear to lay down, prescribed in the transitional provisions of to the decision regarding the definitive that regulation and would constitute a allocation of the special reference quantity, manifest breach of the rule against the which was granted to the applicant in retroactive effect of Community regula- October 1991, that is to say, at a time tions. 2 9 when it was provided that the producer had to provide evidence as to his specific activity within two years following 1 July 1 9 9 1 . In such a case, the applicant's argument, to the effect that his situation was governed exclusively by SLOM I and 35. It should be pointed out in this context SLOM II and had given him a legitimate that the application of the conditions laid expectation in that regard, would be well down in Regulation N o 2055/93 to the founded. applicant's case would not be permissible even if one were to take the view that the applicant had acquired the right to accu- mulate an original and a special reference quantity. In such a case, it would have to be accepted, in light of the principle of legal

actively applied to the applicant's case, framework existed which provided for and either in order to give concrete form to the regulated the accumulation at issue and right to accumulation which he held in which would give rise to a question of abstracto or in order to impose on him interpretation. Furthermore, it is generally obligations which did not apply to him acknowledged that the use of a provision of during the relevant period laid down in Community law in order to interpret Article 3a(3), first sentence, of Regulation another provision adopted earlier, with No 857/84 as amended by Regulation regard to facts which arose when the earlier No 1639/91, which was in force at the provision was in force, constitutes a case of time when the special reference quantity retroactive application. 31 Second, the same was provisionally allocated to him. 30 is also true, in my view, as regards the so- called application by analogy, which the Commission proposes with the argument that the Regulation was in force at the time when the HZA adopted its decision (6 July 1994) and that the German national authority was therefore free to take it into

First, the so- evidence of a specific activity, and not by called aid to interpretation which in the the legal rules that were in force at the time Commission's submission could be derived when the HZA's decision refusing the from Regulation No 2055/93 would — as definitive allocation of the special reference indicated above — be tantamount in sub- quantity was adopted. Consequently, the stance to an unlawful retroactive applica- facts which it is sought to subject to rules tion of that regulation, inasmuch as, during analogous to those applying to the facts the relevant period, in relation to which the which, rattorte temporis, fall within the producer's activity is assessed, no legal scope of Regulation No 2055/93, actually fall, rattorte temporis, within the scope of a different, earlier set of rules.

Third, both the retroactive application of a regulation is not permitted 'unless a sufficiently clear indication can be found, either in the so-called aid to interpretation and the the terms of the regulation or in its stated objectives, which allows the conclusion to be drawn that the regulation was supposed application by analogy are based not merely providing for the future'. Regulation on the premiss that the Court itself will No 2055/93 contains no such indication, nor could such an indication exist. It would be hard to imagine that this

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32 — See also my Opinion in Case C-360/97 Herman Nijhuis v Bestuur van het Landelijk Instituut Sociale Verzekeringen, 34 — On the subject of the technical difficulties involved with in which the judgment of the Court was delivered on the rules on milk quotas, see the Opinion of Advocate 20 April 1999, [1999] ECR I-1919, point 49. General Léger in Ecroyd (cited above at note 27), 33 — See footnote 27. points 76 to 87.

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themselves in the same situation as the provision whose interpretation is sought in applicant have to prove that, following the the present proceedings is the intention to allocation of a special reference quantity, regulate the consequences of the Wehrs they increased production correspondingly judgment in cases such as that of the and did not simply use the allocation of a applicant by interpreting the pre-existing special reference quantity as an opportunity provisions of Community law, an interpre- to exploit their new production possibilities tation essentially inspired by the rules in other ways, or to leave them completely subsequently introduced by Regulation unexploited by ceasing to deliver the origi- N o 2055/93. Leaving aside the questions nal reference quantities or transferring of unlawful retroactivity or ineffective them to another holding for temporary application of that regulation, which result use. 37 from that interpretation and which have been examined above, I am of the opinion that the adoption of such a solution by the Court would be in conflict with the con- clusions reached in Ecroyd. More specifi- cally, as I have already pointed out, since in Wehrs the Court declared the 'anti-accu- mulation rule' invalid, it is solely the 42. It is evident, that, underlying the deter- mination, as mentioned above, of the

specified in the Regulation. The wording of the Regulation According to the Commission, this is confirmed by the is clearly directed solely to those producers w h o had not sixth recital in the preamble to Regulation N o 764/89 and been allocated a reference quantity before the SLOM by the eighth recital in the preamble to Regulation regime entered into force and whose fundamental rights N o 1639/91. Article 3a(4)(1) of Regulation N o 857/84,

This interpretation abovementioned Wehrs judgment, with the adoption of points to the conclusion that the situation of producers Regulation N o 2055/93 (SLOM III). Consequently, this w h o are in a situation analogous to that of the applicant in category of producers could not, in principle, benefit from the main proceedings is treated differently from that of the allocation of a special reference quantity under SLOM producers w h o only have an original reference quantity. I and SLOM II, even at the time Regulation N o 3950/92, However, that unequal treatment is objectively justified cited above, was enacted. However, if they were not and does not infringe the principle of non-discrimination required to increase their milk production as a condition set out in Article 40(3) of the EC Treaty (now, after for the definitive allocation of the quota in question, in amendment, Article 34(3) EC). view of the seriousness of their intention to use the previously excluded possibility of resuming (increased)

39 — The applicant states that neither SLOM I nor SLOM -11 contains a provision requiring those producers who have been allocated a provisional special reference quantity to continue production and to deliver the orminál reference quantity themselves. On die other hand, because of the 'anti-accumulation rule' those producers were denied such quotas. Consequently, the preliminary' question refers to a SLOM III producer and cannot apply to the situation of the applicant. The applicant also argues that the Linan/gcricht and the HZA misdirected themselves as to the legal nature of the annual leasing agreements authorised hy Paragraph 7(a) of the Milchgarantiemengen-Verordnung (MGVO, regulation guaranteeing quantities of milk), m the version in force on

43. The same is true as regards the appli agreements implies option rights m favour of the tenant, as long as such agreements have been authorised by the cant's submissions. After excluding the Member State m question. The constitutional principle of applicability of SLOM III to his situation, non-discrimination precludes depriving of the special reference quantity those SLOM III producers who con- he goes on to propose an interpretation of cluded leasing agreements in regard to their original reference quantities after a quota had been allocated to SLOM I and SLOM II, according to which them in their capacity as producers having entered into the leasing out of the original reference non-marketing undertakings, whereas the producers in this category who had already availed themselves of this quantity is permissible where this co-exists possibility, would be able to preserve their additional reference quantities. with a special reference quantity and the obligation to deliver milk is limited to the Lastly, the applicant contends that, in subordinating the allocation of special reference quantities to the condition that the producer has resumed milk production and the delivery of the special reference quantity, the legislature's sole intention was to prevent milk producers from using the quota as an asset which could be exploited m the 38 — In regard to the duty of the competent Community context of a leasing agreement. On the other hand, it did

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reference quantities which he received cor- meaning to be assigned to the term 'hold- responded, in reality, to two parts of his i n g ' . 4 0 However, such a debate would be holding, which can be considered as sepa- founded on the same erroneous premiss as rate from both a factual and a legal point of the i n t e r p r e t a t i o n s p r o p o s e d by the view: on the one hand, that part of the national court and the Commission. More- original holding for which the original over, the fact that the provisions finally reference quantity under Article 2 of Reg- enacted in Regulation N o 2055/93 appear ulation N o 857/84 had been allocated, and, to contradict the reasoning of the applicant on the other hand, that part of the holding cannot justify the conclusion that this corresponding to the areas he had leased reasoning is any less correct than that of from his uncle and in respect of which he the Commission, which is in conformity had entered into a non-marketing under- with the provisions of the abovementioned taking, justifying the allocation of a special regulation. Since only the Community reference quantity. By dividing the produc- legislature is competent originally to enact tion capacities of his holding and therefore, the relevant legislation and since, in exer- in a way, the holding itself, into two parts, cising its powers, it cannot be replaced, any the applicant is attempting to attribute the alternative interpretation which is not quantities of milk produced to the special founded on this law-making action by the delivery reference quantity, and to transfer Community legislature, is, as such, arbi- to another holding the original reference trary and must be rejected, irrespective quantity, to be considered as lawfully not whether or not it is in conformity with the delivered by himself. subsequent expression of the will of the Community legislature.

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provision to which the present reference for 47. I admit that, at first sight, this proposi- a preliminary ruling relates to assume the tion does not appear to be wholly satisfac- role of the Community legislature or to tory. The impression is given that the legal anticipate its action that he cannot avoid situation of those producers finding them- the literal and systematic interpretation of selves in a position similar to that of the that provision, an interpretation which, on applicant is not regulated by Community account of its clarity, must prevail in the law, whereas the national administrative present case over a teleological approach. measure which provisionally allocated a In other words, the semantic content of special reference quantity to them, even Article 3a(3), first sentence, of Regulation where that allocation became definitive, No 857/84, as amended by Regulation loses the practical significance which those No 1639/91, which was incorporated in producers expected. Article 4(3), first sentence, of Regulation No 3950/92, can be understood only in the context of the 'anti-accumulation rule'. In respect of the material time in the case in the main proceedings, any other approach would appear to constitute a proposal de lege ferenda, which, although it might be logical, is nevertheless arbitrary in law.

48. Nevertheless, this is merely an impres- sion which should not lead to calling in question the correctness and the appropri- ateness of the proposition set out above. Various reasons, which I will now set out, militate in favour of this conclusion.

5 1 . As regards the last-mentioned princi- ple, it should, moreover, be pointed out that it is scarcely arguable that a situation was created in which the applicant could entertain a legitimate expectation with regard, on the one hand, to the special reference quantity which had been allo- 50. Second, from the point of view of cated to him provisionally and, on the Community law, it must be considered that other, to the regulation of the definitive the Wehrs judgment does not result in the allocation of that quantity under the con- national administrative measure provision- ditions cited by him, since his application ally allocating the special reference quan- to obtain that quantity and its subsequent tity, a measure unlawful ab initio for lack provisional allocation (October 1991) were of competence to adopt it, becoming law- events that manifestly occurred before the ful. As I have already pointed out, in entry into force of Regulation N o 2055/93 Ecroyd the Court refused to recognise the (1 August 1993), and at a time when the power of national authorities (circum- 'anti-accumulation rule' was applicable, scribed or discretionary power) to allocate and before the delivery of the judgment in such a quantity prior to the enactment of Wehrs declaring that rule to be invalid. other Community provisions curing the established invalidity of the 'anti-accumu- lation rule'. Consequently, the applicant, even though he was, in principle, entitled to accumulation of the reference quantities, had no specific right to it under Commu- nity law vis-a-vis the national authorities. Since there was no legal framework at Community level governing that accumula- tion, it must be considered that the admin- istrative measure provisionally allocating 52. Third, were the applicant to invoke the the special reference quantity did not create initial illegality of the abovementioned for the applicant a situation calling for national administrative measure, on the protection under Community law, either on ground of lack of competence to adopt it, the basis of the specific provisions of the and/or the definitive character of that

measure, this might establish rights, vis-à- imposed by Community law' and 'must not vis the national authorities, enabling him to have the effect of making it virtually oblige those authorities to act, abstain from impossible or excessively difficult to imple- acting or pay him compensation, rights ment Community rules'. 42 which might be provided by national law 41 and which would not be amenable to review by the Court. On the other hand, in the context of Community law, it would be of no avail to the applicant for him to invoke the definitive character of the administrative act in question and the resulting legitimate expectation on his part vis-à-vis the national authorities.

become definitive. As the Court has, more- No 2055/93 can no longer apply. 4 3 In over, held in the context of national rules particular, this situation could engender governing the revocation of acts of the rights to damages for the producers if and national administrative authorities, where in so far as it is held that they can invoke such rules play a functional role in the the liability incurred by the Community. 44 administration of the Community and,

rule'. See, for example, judgment of the Court in Joined Cases C-104/89 and C-37/90 J. M. Mulder and others and 41 — Broadly speaking, when the applicant contends that the Otto Heinemann v Council of the European Communities administrative act in question has already become defini- and Commission of the European Communities [1992] tive, he plainly implies that under German law it is not ECR I-3061; Communication 92/C 198/04 of the Council amenable to review by the courts and cannot be revoked. and the Commission of 5 August 1992 (OJ 1992 C 198, Ultimately, it is only a national court which is competent to p. 4) and Council Regulation of 22 July 1993, (EEC) rule on this matter, examining also, if necessary, the No 2187/93, providing for an offer of compensation to question whether the producer concerned and the compe- certain producers of milk and milk products temporarily tent administrative authority were in good faith at the time prevented from carrying on their trade (OJ 1993 L 196, the act at issue was adopted. p. 6).