C-313/99

OPINION OF MR GEELHOED — CASE C-313/99

OPINION OF ADVOCATE GENERAL GEELHOED delivered on 12 July 2001 1

I — Introduction lation (EEC) No 804/68 4 of 27 June 1968 on the common organisation of the market in milk and milk products. 5According to Article 5c of Regulation No 856/84, as amended, the objective of the levy is 'to 1. In this case the High Court of Ireland curb the increase in milk production while has referred to the Court three questions on at the same time permitting the structural the interpretation of Article 7(1) of Council developments and adjustments required, Regulation (EEC) No 3950/92 of 28 De- having regard to the diversity of the cember 1992 establishing an additional situations among individual Member levy in the milk and milk products sector. 2 States, regions and collection areas in the These questions relate to the admissibility Community'. Under the regulation, each of a national rule, under which, in the case producer of milk products — who fulfilled of the transfer of a holding, part of the milk certain conditions — received a milk quota attached to that holding does not quota. 6 also pass to the transferee of the holding but is added to the national reserve. In the present case such a measure is referred to as 'clawback'. 3 3. Council Regulation (EEC) No 857/84 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 7 laid down further rules. Article 7 of that regu- lation provides as follows: I I — Legal background

6. Regulation No 3950/92 also maintained the national reserve scheme. For a good 'For seven new consecutive periods of 12 summary of that scheme I refer to the 13th months commencing on 1 April 1993, an recital in the preamble to the regulation, additional levy shall be payable by pro- which states as follows: 'Experience has ducers of cow's milk on quantities of milk shown that implementation of this scheme or milk equivalent delivered to a purchaser presupposes the existence of a national or sold directly for consumption during the reserve to accommodate all those quantities 12-month period in question in excess of a which, for whatever reasons, are not, or are no longer, allocated individually; whereas a Member State may need to have reference 8 — In Council Regulation (EEC) No 1256/1999 of 17 May quantities available to cater for special 1999 amending Regulation (EEC) No 3950/92 establishing an additional levy in the milk and milk products sector situations, determined by objective criteria; (OJ 1999 L 160, p. 73) the duration of that system is again extended, until 1 April 2008. whereas it should be authorised, to this

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end, to top up its national reserve, applicable, of any agreement between the especially following a linear reduction in parties. Any part of the reference quantity all reference quantities.' More specifically, which is not transferred with the holding the first paragraph of Article 5 of Regu- shall be added to the national reserve. lation No 3950/92, as amended by Regu- lation (EEC) No 1560/93, 9states as fol- lows:

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sale or lease of a milk holding, 20% of the was attached to a holding of approximately milk quota would not be transferred with 115 acres in Clonin Rhode in the County of the holding but would be added to the Offaly. national reserve. This notice, and all other previous notices concerning clawback, were replaced by Notice No 266/20, which was published in the press on 4 April 1998. The replacement notice was issued inter alia because of questions which had arisen 12. Mr O'Sullivan, the second applicant, is as to the precise application of the claw- the owner of neighbouring land situated in back to transactions which had been con- Clonin Rhode in the County of Offaly. He cluded around 19 March 1998. In short, bought the land and the reference quantity the Minister applied a clawback of 20% of of milk from the first applicant in April the milk quota to each sale or lease of land 1998. As a result of the purchase, the after 19 March 1998. Minister applied a clawback of 20% to the reference quantity of milk. As a con- sequence of the 20% clawback a (lower) price of IEP 438 000 was paid. The land in question was registered in the name of P. O'Sullivan, the son of the second applicant.

I I I— Facts and procedure

Mount Alexander Gorey in the County of case of sale or lease be transferred with Wexford. He purchased the land towards the holding to producers taking it over the end of the 1980s at the market price. but shall instead be added to the The milk quota attached to the holding also national reserve by means of a "claw- determined the market price. At the begin- back" or "siphoning off" or some ning of 1998 he decided to cease milk similar deduction mechanism? production and to lease his land and milk quota. As a consequence of the introduc- tion of the 20% clawback he ran the risk of incurring two 20% clawbacks of milk quota if he were to lease the land and quota for some time and then sell it. He therefore felt that he had no choice but to sell his land and milk quota rather than to lease it. After the sale, he learnt that the 20% clawback had led to significantly 2. If the answer to 1 above is in the lower proceeds of sale. affirmative is the procedure chosen by the Member State to make such provi- sion subject only to principles of national law or is the said procedure subject to the fundamental principles of Community law including a principle of legal certainty? 15. The four applicants in the main pro- ceedings dispute the validity of Notice No 266/20 and have brought an action seeking restoration of the original situation, including damages and interest.

17. The additional levy scheme was intro- duced on 1 April 1984 for the purpose of controlling milk production in the Euro- pean Community. The introduction of 19. All these subtle distinctions do not, individual milk quotas was intended to however, alter the fact that the chief feature restrict milk production to existing dairy of the scheme is stability. Stability arises farms and to discourage the advent of new from the very design of the scheme, but has holdings. Individual milk quotas determine become even stronger now that the addi- the amount of milk which a dairy farmer tional levy scheme, which originally had a may produce without having an addi- duration of five years, has remained in tional — prohibitive — levy imposed on force until the present day without any him. The amount of that individual milk major amendments. quota is in principle determined by refer- ence to past milk production on a holding.

24. Gradually milk quotas are acquiring yet another social function. 1 1Although not originally intended by the additional scheme — and although not based on any amendments to that scheme — those milk quotas have turned into assets with a Changes in the scheme monetary value. They contribute to the value of the land and the value of holdings, also, for example, in the eyes of banks when they grant loans secured by mortgage or other types of loans. The milk quotas 22. That stable scheme has, however, themselves are also the subject-matter of nevertheless changed over the years. The business transactions. They may, for legal but also the economic significance of example, be leased or temporarily trans- the milk quotas originally did not go ferred. beyond the purpose for which they were introduced, the restriction of the scale of milk production on a holding and the basis for the levy.

25. Over the years, moreover, the rules on 23. Closely connected with that purpose, the transferability of milk quotas have been rules have been laid down for the trans- made more flexible, but without any ferability of those milk quotas; they may in amendment to the main rule, namely that principle only be transferred with the land to which they are attached. In other words, the milk quotas belong to the holding. If a 11 — See, in this regard, also the interesting Opinion of Advocate General Ruiz-Jarabo Colomer in Case C-186/96 holding is transferred, the milk quota is Demand [1998] ECR I-8529.

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Action by public authorities

26. The stability of the scheme — and also 28. The requirement that there be a lawful of the individual milk quotas — places power to reduce an individual milk quota is certain conditions on action by the public also a consequence of the right to property. authorities. They cannot suddenly and As I have already stated, in the course of its unexpectedly interfere with a stable existence a milk quota has become a kind scheme. The milk producers are entitled of independent asset which can be sold on to expect that the right granted to them will the market. At first sight, they have thereby also retain its value in the longer term. In also become assets to which the person entitled can claim a right to property. That person thereby acquires inter alia the pro­ 12 — I n Article 7(4) of Commission Regulation (EEC) No 1546/88 of 3 June 1988 laying down detailed rules tection of Article 1 of the Protocol No 1 to for the application of the additional levy referred to in the European Convention on Human Article 5c of Regulation (EEC) No 804/68 (OĮ 1988 L 139, p. 12). Rights. I also note that Article 17 of the

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31. The public authority can, moreover, ensure that the substantive consequences of 30. With regard to that legitimate expec- its intervention are limited. First, the extent tation, it is significant that the milk quota is of the intervention is itself relevant. The a right given by the public authority which authority may reduce the milk quota by a can, in principle, also be revoked. On the relatively small percentage. As a result, the one hand, the additional levy scheme is measure is more likely to satisfy the marked out by its stability; on the other, it requirements of proportionality. Fur- is repeatedly emphasised in the various thermore, an in itself unacceptable inter- Community regulations that the scheme is ference may nevertheless satisfy the temporary. A milk producer cannot assume requirements of proportionality. In the first that his right to a levy-free quantity is place, I have in mind the offer of (financial) perpetual. There is always a risk that the compensation. If a dairy farmer is faced with an (unexpected) reduction in his milk quota which will have major consequences 13 — OJ 2000 C 364, p. 1. for his business, financial compensation

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35. As is apparent inter alia from the V — Relevant case-law recitals in the preamble to Regulation No 3950/92, the aim of the additional levy scheme is to achieve a balance between

33. In section IV of this Opinion I have 14 — Consistent case-law of the Court of Justice, see inter alia sketched out the background to this case. Case C-22/94 Irish Farmers Association and Others v Minister for Agriculture, Food and Forestry [1997] ECR Many of the matters to which I have I-1809.

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39. Under the Irish rules in question the clawback of part of a milk quota is linked 37. With a view to making adjustments to to the transfer of a dairy holding. In the changed market circumstances the milk quotas have been amended on many occa- 17 — Cited in footnote 14 above. 18 — Cited in footnote 11 above. 19 — See, for example, Demand, cited in footnote 11, paragraph 15 — Sec inter alia the judgment in Case 203/86 Spain v Council 41. [1988] ECR 4563, paragraph 10. 20 — See footnote 14 above, and paragraph 27 of that judgment. 16 — Joined Cases C-133/93, C-300/93 and C-362/93 [1994] See for example also Case C-292/97 Karlsson and Others ECR I-4863, paragraphs 57 and 58. [2000] ECR I-2737, paragraph 45.

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judgment in EARL de Kerlast 21 the Court No 857/84 and Article 7 of Regulation deals with the consequences for a milk No 1546/88. In other words, the sys- quota of a transfer of a holding: tem of reference quantities precludes the bare transfer of reference quantities alone, except where Community law provides otherwise.'

'17 The Court has consistently held that the entire system of reference quantities is based on the general principle laid down by Article 7 of Regulation No 857/84 and Article 7 of Regulation No 1546/88 that a reference quantity is allocated in relation to land and must Legal principles therefore be transferred with that land ...

43. In the judgment in Wachauf 26 appli- '[The] regulations in question form part of cation of those criteria led to a different a body of a legislation intended to remedy result: 'Having regard to those criteria, it the surpluses on the milk and milk products must be observed that Community rules market and ... they therefore correspond to which, upon the expiry of the lease had the aims pursued by the Community in the effect of depriving the lessee, without general interest. [C]onversion into a defini- compensation, of the fruits of his labour tive reduction without compensation does and of his investments in the tenanted not affect the actual substance of that right holding would be incompatible with the inasmuch as the Irish producers were able requirements of the protection of funda- to continue to pursue their trade or pro- mental rights in the Community legal fession as milk producers. Moreover, the order. Since those requirements are also reduction in milk production led to an binding on the Member States when they increase in the price of milk, thus com- implement Community rules, the Member pensating, at least in part, the loss suffered.' States must, as far as possible, apply those rules in accordance with those require- ments.' That could be achieved 'either by giving the lessee the opportunity of keeping all or part of the reference quantity if he intends to continue milk production, or by compensating him if he undertakes to abandon such production definitively'. 27 42. In Von Deetzen II 24 the Court came to the following conclusion: 'In the light of the foregoing, it must be stated that [a] rule according to which the special reference quantities in question are to be returned to the Community reserve if the holding is sold or leased before 1 April 1992 reflects the concern to obviate the allocation of such quantities to farmers who do not 44. I would add that the European Union, intend to resume the marketing of milk on in accordance with Article 6 of the Treaty an enduring basis but merely seek to obtain on European Union, is to respect funda- a financial advantage from the allocation of a reference quantity under the legislation governing the marketing of milk. It is 25 — See paragraph 29 of the judgment. 26 — Case 5/88 [1989] ECR 2609, paragraph 19. 27 — Paragraph 22 of the judgment. One or other does not however imply that the Member States are obliged to introduce a scheme for payment of compensation by the 23 — Paragraphs 28 and 29 of the judgment. lessor to the outgoing lessee, see judgment in Case C-2/92 24 — Case C-44/89 [1991] ECR I-5119. Bostock [1994] ECR I-955.

45. There is considerable case-law on the role which legal principles play in the implementation of Community law. I refer in that connection to the judgment in Belgocodex 29 — also cited by the Com- mission in its observations — in which the Court states: 'It must be recalled in this regard that the principle of protection of 47. Second, the principle relates to the legitimate expectations and the principle of protection of legitimate expectations. I legal certainty form part of the Community refer to the judgment in Irish Farmers legal order and must be observed by the Association and Others: 31 'The Court has Member States when they exercise the consistently held that any trader in regard powers conferred on them by Community to whom an institution has given rise to directives.' However, as I also pointed out justified hopes may rely on the principle of in my Opinion in Silos, 30 these principles the protection of legitimate expectations. play a limited role in the implementation of On the other hand, if a prudent and the Community agricultural policy, partly discriminating trader could have foreseen because of the rapidly changing relation- the adoption of a Community measure ship between supply and demand in the likely to affect his interests, he cannot relevant markets for agricultural products. plead that principle if the measure is adopted ... In view of the foregoing con- siderations, the plaintiffs in the main pro- 28 — Chassagnou v. France, no. 25088/94, ECHR 1999-III, ceedings had sufficient information to with regard to hunting law. 29 — Case C-381/97 [1998] ECR I-8153, paragraph 26. 30 — Opinion of 3 April 2001 in Case C-228/99, point 42 et seq. 31 — See footnote 14 above, paragraph 25 of the judgment.

49. The first question relates to milk pro- 22 Accordingly ... the Court held that the ducers who adopt a development plan in implementation of a milk production the c o n t e x t of Council Directive development plan which had been 72/159/EEC of 17 April 1972 on the mod- approved by the competent national ernisation of farms. 32 Thus, the Court held authorities did not confer on the pro- in the judgment in Duff and Others 33 that ducer concerned the right to produce the Community legislation on the addi- the quantity of milk corresponding to tional levy 'is to be interpreted as meaning the plan's objective without being sub- that it does not impose on Member States ject to any restrictions stemming from an obligation to grant a special reference Community rules adopted after the quantity to producers who have adopted plan was approved. Consequently, pro- milk production development plans under ducers with a development plan, even Council Directive 72/159'. After con- one approved prior to the entry into sidering the principle of legitimate expec- force of the levy scheme, could not rely tations, the Court came to the following on any alleged legitimate expectation conclusion: based on the implementation of their plan in order to oppose any reductions in such reference quantities ...

'21 Neither the Community rules on deve- lopment plans, nor the terms or pur- pose of those plans, nor the context in which the plaintiffs in the main pro- 23 Moreover, at the time when the plain- tiffs in the main proceedings adopted 32 — OJ, English Special Edition 1972 (II), p. 324. 33 — Case C-63/93 [1996] ECR I-569, in particular paragraph their development plans, which, 17 et seq. according to the replies to a question

put by the Court at the hearing, they to which they had rendered themselves did not start to implement before 1981, subject would be limited.' they could not have been unaware that the Community legislature had already, before that time, taken steps to over- come the structural surpluses on the market for milk by a variety of meas- ures ...' 51. In the abovementioned judgment in Duff and Others the Court compares the two categories of milk producer. The Court states that '[they] are not in the same situation. Unlike in the case of producers who entered into a non-marketing under- taking, the Community legislature did not impose on producers who had adopted a development plan any particular restriction 50. The second question concerns milk as regards the implementation of their producers who had taken part in the plans. Where, as in the present case, a scheme for the non-marketing of milk, the Member State does not exercise its dis- so-called 'SLOM-producers'. 34 The Court cretion under the first indent of Article 3(1) held in the judgment in Mulder 35 that 'a of Regulation No 857/84, a producer producer ... [who] has been encouraged by implementing a development plan is subject a Community measure to suspend market- to the same restrictions as other producers. ing for a limited period in the general Consequently, unlike in the case of pro- interest and against payment of a pre- ducers wholly excluded from any reference mium ... may legitimately expect not to be quantity and so precluded from producing subject, upon the expiry of his undertaking, any milk because of their undertaking given to restrictions which specifically affect him under Regulation No 1078/77, the main- precisely because he availed himself of the tenance of milk production at the level of possibilities offered by the Community production in the reference year is guaran- provisions. ... Contrary to the Commis- teed — as it is for all producers — for sion's contention, total and continuous those producers who have adopted a deve- exclusion of that kind for the entire period lopment plan.' 36 of application of the regulations on the additional levy, preventing the producers concerned from resuming the marketing of milk at the end of the five-year period, was not an occurrence which those producers could have foreseen when they entered into an undertaking, for a limited period, not to deliver milk. ... Such an effect therefore Summary frustrates those producers' legitimate expectation that the effects of the system 52. I deduce from the case-law of the Court 34 —Pursuant to Council Regulation (EEC) No 1078/77 of of Justice that individual milk quotas do 17 May 1977 introducing a system of premiums for the non-marketing of milk and milk products and for the conversion of dairy herds (OJ 1977 L 131, p. 1). 35 — Case 120/86 [1988] ECR 2321, paragraphs 24, 25 and 26. 36 — Paragraph 24 of the judgment.

54. More generally, the case-law of the Court recognises that the legitimate expec- The first question tations of the milk producer may be infringed. There is an infringement of those expectations, as I interpret the judgment in Duff and Others, only if the substance of the milk quota is affected. Submissions

57. The applicants in the main proceedings submit that Article 7(1) of Regulation VI — Assessment No 3950/92 does not permit a clawback or comparable reduction in the milk quota upon the transfer of a holding. Such a measure conflicts with the fundamental 55. Observations have been received on principle that a milk quota is attached to behalf of the applicants in the main pro- a holding. The milk quota cannot be trans-

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ferred without the holding nor the holding sentence of Article 7(1). That sentence without the milk quota. The regulation clearly envisages that there will be circum- does not recognise any exception. stances in which part of a reference quan- Article 7(1) provides, moreover, that the tity will not be transferred with the holding milk quota is transferred 'in accordance upon a transfer of that holding. If a claw- with detailed rules to be determined by the back were not permitted, that sentence Member States'. Those additional words would have no meaning. Moreover, the merely refer to the way in which the milk first sentence of Article 7(1) provides that quota is transferred with the holding but do the milk quota is to be transferred in not provide for the possibility that the milk accordance with 'detailed rules to be deter- quota is not transferred with the holding. mined by the Member States'.

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inter alia, in the judgment in EARL de constitute inviolable rights but are regarded Kerlast. 37 However, Article 7(1) also pro- as advantages granted in the context of the vides that the detailed rules concerning the common organisation of the markets. That transfer are to be determined by the is also apparent from the fact that the size Member State 'taking account of the areas of a milk quota may vary from year to year. used for dairy production or other objective I refer, inter alia, to Article 5 of Regulation criteria'. According to the Commission, it No 3950/92, which empowers Member necessarily follows from Article 7(1), States to make an across-the-board reduc- which provides that the part of the milk tion. Moreover, in its judgments in Irish quota which is not transferred with the Farmers Association and Others and holding is to be added to the national Demand 38 the Court expressly recognised reserve, that the Member States may intro- the power of the Member States to reduce duce a clawback system. The Commission milk quotas. agrees on that point with the respondents in the main proceedings. It is for the national court to determine whether the criteria applied by the Minister were objective. However, in the Commission's view, the criteria appear to have been completely objective. 65. Furthermore, it is significant that the reduction in the milk quota takes place upon transfer of a holding and is thus an exception to the main rule that the milk quota follows the land.

63. At the hearing the Commission sub- mitted in addition that — contrary to the applicants' assertion — Article 7(1) of Regulation No 3950/92 is, as regards its m e a n i n g , in essence the same as 66. This being the case, it must be asked Article 7(3) of Regulation No 857/84, whether Article 7(1) of Regulation although the wording of Regulation No 3950/92 gives a power to institute a No 857/84 was somewhat clearer. clawback, as the Irish authorities have done. It is therefore a question of inter- pretation of Article 7(1). That interpre- tation is also essentially the issue between the parties in the main proceedings. Opinion

68. The detailed rules for the transfer of the milk quota are to be determined by the Member States, in accordance with the 70. The relevant question in this case is, second part of the first sentence of however, more specific: may the Member Article 7(1). This is concerned primarily State also provide, in the event of a transfer with the conditions under which a quota of an entire holding, that part of the milk transfer is possible. Transfer may, for quota is not also transferred? In such a case example, be subject to an administrative is there a departure from the principle that permit and rules may be laid down also for the milk quota follows the land, for which, the procedure applicable upon the transfer according to the case-law of the Court, an of the milk quota. express Community legal basis is necessary. Article 7(1), first sentence, of Regulation No 3950/92 is not clear on that point. The power of the Member State must then be inferred from the second sentence of Article 7(1), read in conjunction with the first sentence. 69. The Member States are to take account 'of the areas used for dairy production or other objective criteria'. These words refer, first of all, it seems to me, to the situation in which not the whole holding but only part is transferred. The Member States must then lay down which part of the milk quota is transferred with it. Generally speaking that is to take place in proportion 71. The second sentence of Article 7(1) to the area transferred, but the Member provides for the possibility that, in the case State may also choose to apply other of a transfer as referred to in the first (objective) criteria. That may, for example, sentence, part of the milk quota is not be appropriate where not all land is equally transferred. That part of the milk quota is suitable for dairy production or, in the case then added to the national reserve. The of mixed holdings, if the same land is not Member States lay down, on the basis of the criteria in the first sentence, the cases in which a part is not transferred. By virtue of 39 — See point 39 of this opinion. the first sentence they have a wide dis-

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76. The respondents accept that national general principles of law that are recog- measures for the implementation of a nised in Community law. I refer in that Community regulation are subject to the regard to the judgments cited by the Com- fundamental principles of Community law. mission in its submissions. The procedure for the establishment of the national measures is, however, determined by the national law of the Member State. They refer in that context to the judgment in Eridania. 42 79. In my opinion, however, the Court cannot merely give such a restricted answer. That also follows from my dis- cussion of the national court's first ques- tion. The Court must in addition indicate 77. The Commission refers to various judg- the circumstances in which the general ments of the court. It cites the judgments in principles of law are satisfied. It is then Belgocodex, 43 Wachauf 44 and Klensch. 45 for the national court to determine whether It deduces from them that Member States, the clawback measures in question, Notices when adopting measures to implement No 266/19 and No 266/20, satisfy the Community law, are bound by the legal requirements laid down by Community principles recognised by Community law, law. inter alia the principle of legal certainty.

80. The Irish measures may have signifi- cant consequences for the milk producers Assessment concerned. After all, they provide for a reduction of 20% of the milk quota. That reduction can — in the event of several transactions relating to the land, even over a short period — be applied each time. I refer, by way of example, to the case of the 78. The national court asks whether the fourth applicant, Mr Duncan. He intended, clawback is subject to the fundamental so he submits, first to lease the land and principles of Community law, including the then to sell it, as a result of which the principle of legal certainty. Having regard clawback would have been applied twice. to the case-law of the court, the answer is That consequence caused him to refrain plain. A measure of a Member State which from doing so. is intended to implement an obligation under Community law must satisfy the

85. All in all, that means that such a measure is not necessarily unacceptable on the ground that it infringes legitimate 83. The case-law of the Court gives some expectations of milk producers. Given that pointers for an assessment of proportional- through individual milk quotas an artificial ity. First of all, the Court has accepted and temporally limited right to produce (general) reductions of 4.5 and 4.74%. 46 In milk has been created, the extent of which my view such reductions are inherent in the can also vary from year to year, a reduction additional levy scheme, in which the size of of 20% may in certain circumstances individual milk quotas varies from year to satisfy the requirement for legal certainty. year. Such reductions cannot result in an The question whether the measure in issue infringement of the legitimate expectations satisfies that requirement depends on the of the milk producer and are therefore restrictions and conditions attached to the acceptable. Second, a reduction must not measure. affect the substance of the milk quota. The continuity of the operation of the holding must — with normal operation — be ensured and the person concerned must,

86. A measure pursuant to which a reduc- 46 — See point 37 of my Opinion. tion is applied which is more extensive than I - 5744

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is inherent in the additional levy scheme tations. The additional levy scheme has may in certain circumstances satisfy the acquired such a stable nature that a principle of legal certainty. In order to milk producer should not be unex- assess its acceptability, I consider the pectedly confronted with fluctuations following restrictions and conditions to be of such a size that he could not have relevant: reasonably taken them into account in the operation of his holding or in reaching his decision regarding the transfer of his holding.

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reserve and using that reserve for the The third question benefit of particular (categories of) milk producers, that criterion will in practice not play a major role in the assessment.

Submissions

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law. Finally, the respondents refer to the Opinion necessity for a mechanism by which rapid and flexible measures are possible.

92. The parties to the main proceedings and the Commission agree that a measure must be binding and must satisfy the 90. The Commission states that according requirements of clarity and legal certainty. to the case-law of the Court directives must It is also clear to me that those require- be implemented by means of binding legal ments must be satisfied. The Court must instruments, whose terms must be suffi- answer the question whether, within those ciently clear and unambiguous. Adminis- limits, a notice from the administration in trative circulars are not appropriate for that the national press can suffice. The question purpose. The same holds for measures can be divided into two parts. First of all, it implementing Article 7(1) of Regulation is necessary to consider whether the 'notice' No 3950/92. The Commission submits, as an instrument satisfies the above criteria. furthermore, that the measures implement- Then it must be considered whether the ing Article 7(1) are not intended to govern chosen method of publication in a national the relationship between private individuals newspaper adequately serves legal certainty but solely between an individual and the for the parties concerned. Member State. A simple notice may there- fore suffice, provided it is binding and satisfies the requirements of clarity and certainty.

94. In my opinion a case such as the present case does not involve a mere 96. The second part of the national court's administrative practice. On the contrary, I question refers to the method of pub- consider the notice relating to the clawback lication of the measure. As the Commission to be a form of delegated legislation correctly submits, the decisive point is permitted by Community law. In the case whether the measure is given publicity in of national legislation, here the European such a way that the persons concerned can Communities (Milk Quota) Regulations plainly be aware of their rights and obli- 1995, the Minister for Agriculture has gations. delegated authority to draw up more detailed rules concerning the part of the milk quota which is not transferred upon transfer of a holding. The Minister has therefore made use of his power to deter- mine by way of 'notice' or, as the national court terms it, by administrative notice. In spite of the terminology used, I consider the exercise of the power not to be a mere 97. Community law does not require that a administrative practice, such as a circular measure be published in an official journal. or other type of soft-law. On the contrary, Sometimes other methods of publication on the basis of the power given to him, the would be just as or even more effective. I Minister has adopted a binding decision am thinking, for example, of publication on which has the significance of a ministerial a government website. The publication of a regulation or a ministerial decree. measure intended to implement a Commu- nity regulation should, in my view, satisfy two requirements. First, as the Commission has indicated, the publication should be made in a medium which is widely circu- lated amongst the group of persons con- cerned. Second, I consider that it is import- ant that the measure should have been 95. I therefore reach the following con- brought to the attention of the persons clusion on this point. If a national measure concerned in an effective way. In the case of laying down the part of the milk quota not a newspaper that is adequately ensured if transferred with the land is in the form of the notice appears in a prominent place in an authorised binding decision of a the newspaper or if the persons concerned national authority, the principle of legal could reasonably expect the notice, for certainty is satisfied. It is of no consequence example because such notices are published in that regard that the decision is referred with a certain regularity.

As regards the third question: A measure of a Member State such as that referred to in the answer to the first question must be in the form of an authorised binding decision of a national authority. It is of no consequence how the measure is referred to in the national context. The measure does not need to be published in an official journal provided that the announcement takes place in a medium which is widely circulated within the group of persons concerned and the measure is brought to the attention of the persons concerned in an effective way. I - 5749