C-231/00

COOPERATIVA LATTEPIÙ AND OTHERS.

OPINION OF ADVOCATE GENERAL LÉGER delivered on 8 May 2003 1

1. In 1984, in order to reduce the produc- amministrativo del Lazio (Regional Admin- tion of cows' milk in the European Com- istrative Court for Lazio) (Italy). 3As a munity, the Community legislature intro- result of those actions, the national court duced arrangements known as 'the addi- made 25 references to the Court for tional levy on milk'. 2 Under those arrange- preliminary rulings. Eleven of these have ments, each producer whose production been stayed pending the judgment of the exceeds the individual reference quantity, Court in the present proceedings. commonly called the 'milk quota', allotted to him must pay a levy on such excess.

4. For the purposes of the oral procedure and the judgment, Case C-231/00 has been joined with Cases C-303/00 and C-451/00. 4Cases C-480/00 to C482/00, C-484/00, C-489/00 to C-491/00 and 2. In 1999, the Italian authorities carried C-497/00 to C-499/00 have been joined out a correction of the individual reference for the purposes of the oral and written quantities allotted to Italian producers for procedure and also the judgment. 5A joint the marketing years 1995/96 and 1996/97. hearing was held, on 12 December 2002, As a result, after re-allocating unused for the first and second groups of cases and reference quantities, they re-calculated the also Case C-495/00. The present opinion additional levies owed by those producers relates to the two groups of cases above and for those years. to Case C-495/00.

5. In all the cases at issue, the court making the reference is raising two questions of a similar nature. The court asks whether the 3. These operations led to a very large corrections made by the Italian authorities number of actions before the Tribunale

are compatible with the Community rules (CMO) for milk since 1964. This CMO is a applicable and, if they are not, whether part of the common agricultural policy these rules are valid in the light of Article 39 (CAP) and, pursuant to Article 39 of the of the EC Treaty (now Article 33 EC). Treaty, its objectives include ensuring a fair standard of living for the agricultural community concerned. 6The CMO there- fore involves the Council of the European Union setting a target price for milk which 6. In the second group of cases, the court producers must receive throughout the making the reference raises five further Community. questions. Three of these relate to the question whether individual reference quantities must be notified to producers and to the form of such notification. The two other questions relate to the discretion that is left to Member States to determine which categories of producers may be allotted unused reference quantities. 9. In order to attain the target price, the CMO introduced a number of intervention measures. These are intended to ensure market equilibrium through action to affect supply and consumption and include direct 7. Lastly, in Case C-495/00, the court purchases of certain milk products by making the reference asks also whether public agencies; they also include export Member States are permitted to bear the refunds offsetting the difference in price, for cost of settlement of sums due in accord- the exporters, between the Community ance with Community law. market and the world market as well as fixed customs duties on import.

11. Regulation No 856/84 laid down that a guaranteed total quantity was to be set for the Community as a whole. That quantity was distributed among the Member States on the basis of deliveries on their territories during the 1981 calendar year; it covered 12. The arrangements for the additional sales to purchasers (the dairies) and direct levy on milk, initially introduced for a sales to the consumer. Member States could period of five years, were extended until distribute the quantity for sales to dairies 31 March 1992, 11 then until 31 March among either purchasers or producers and 1993. Subsequently they were renewed could also allocate a part of their guaran- for a period of seven years, in Regulation teed quantity to a national reserve intended (EEC) No 3950/92. 1 3This measure and to enable them to adapt individual reference Regulation (EEC) No 536/93, 1 4 which quantities in accordance with the particular defines the detailed rules of application, circumstances of certain producers. The are the legislation applicable in the present reference quantity allotted to producers or cases. Lastly, the arrangements were purchasers was equal to the quantity of e x t e n d e d by R e g u l a t i o n (EC) milk which they had produced or pur- No 1256/1999 15 until 2008. chased during a particular reference year

13. Regulation No 3950/92 repeals and replaces the existing provisions in order to simply and clarify the arrangements of the additional levy on milk with a view to ensuring the legal certainty of producers '1. The individual reference quantity avail- and other parties concerned. 16 able on the holding shall be equal to the quantity available on 31 March 1993 and shall be adjusted, where appropriate, for each of the periods concerned, so that the sum of the individual reference quantities of the same type does not exceed the corres- ponding global quantities... 14. In Article 1 it introduces, for seven new consecutive periods of 12 months commen- cing on 1 April 1993, an additional levy payable by producers of milk on quantities delivered to a purchaser or sold directly for consumption in excess of a quantity to be determined. This levy is set at 115% of the 2. Individual reference quantities shall be target price for milk. increased or established at the duly justified request of producers to take account of changes affecting their deliveries and/or direct sales. The increase or establishment of such a reference quantity shall be subject to a corresponding reduction or cancella- tion of the other reference quantity the producer owns. Such adjustments may not 15. Article 2 of Regulation No 3950/92 lead to an increase in the sum of the provides that the levy shall be shared deliveries and direct sales... for the Member between the producers who contributed to State concerned.' the overrun. In accordance with a decision of the Member State, each producer's contribution shall be determined after unused reference quantities have been reallocated or not. Where the levy is payable and the amount collected is greater than that levy, the Member State may redistribute it to producers who fall within 17. The Member State may effect an priority categories. 'across-the-board' reduction in all the indi- vidual reference quantities in order to replenish the national reserve so as to be able to allot additional or specific quantities 16 — Second recital in the preamble. to producers determined in accordance with

17 — Article 5. 18 —Article 10. 19 — Fifth recital.

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Article 2(2) and average fat content of the 24. Article 4 of Regulation No 536/93 sets milk and/or milk equivalent delivered to it the same deadlines for producers making by producers and the sum of the individual direct sales and provides: reference quantities and the average repre- sentative fat content of such producers' production.

Where that time-limit is not observed, the purchaser shall be liable to a penalty...

2. Before 15 May each year, the producer shall forward declarations to the competent authority of the Member State. 3. Member States may provide that the competent authority shall notify the pur- chaser of the levies payable by him after reallocating, or not, by decision of the Member State, all or part of the unused reference quantities either directly to the Where that time-limit is not observed, the producers concerned or to purchasers with producer shall be liable to the levy on all the a view to their subsequent allocation among quantities of milk and milk equivalent sold the producers concerned. directly in excess of his reference quantity or, where there is no overrun, to a penalty equal to the amount of levy due for a 0.1 % overrun of his reference quantity....

3. Member States shall physically verify the 25. Article 5 of Regulation No 536/93 accuracy of the accounting with regard to relates to determination by the Member the quantities of milk and milk equivalent State of the priority categories of producers marketed and, to that end, shall check milk to whom the additional levy may be transport during collection at farms and refunded where there is an excess charge. shall, in particular, check: In particular it provides that these cat- egories may be determined on the basis of the geographical location of the holding and that mountain areas have priority. (a) at the premises of the purchasers, the statements referred to in Article 3(1), the credibility of stock accounts and supplies as referred to in paragraph 1

26. Lastly, the Commission intended the Member States to have suitable means of 20 — Eighth recital.

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B — National legislation 30. Furthermore, the arrangements intro- duced by the Italian authorities for deter- mining actual milk production did not make it possible to collect reliable data, in 28. According to the court making the particular for the production years 1995/96 reference, the first legislative provisions and 1996/97. Those authorities therefore adopted in Italy to implement the arrange- set up a government commission of inquiry ments for the additional levy on milk date to determine whether there were any from only 1992. 21 irregularities in the management of quotas, the production of milk and the checks relating to these. 22 21 — See the order for reference in Case C-231/00 (page 8). This statement by the national court was confirmed at the hearing by the Italian Government, which stated that Italian milk producers were only required to pay the additional levy from the 1995/96 production year. The Italian authorities' failure, until 1992, to apply the additional levy arrangements, in particular the failure to allocate individual reference quantities or to check on overrunning of those quantities, was recorded in a number of reports (see, in particular, Special Report 4/93 on implementation of quota arrangements to restrict milk 31. Decree-Law No 411 of 1 December production, together with the response from the Commis- sion, OJ 1994 C 12, p. 1). This non-application is referred 1997, converted into law with amendments to also in a number of judgments of the Court (see judgments in Case 394/85 Commission v Italy [1987] ECR 2741, in Case C-55/91 Italy v Commission [1993] ECR I-4813 and in Case C-69/95 Italy v Commission [1996] ECR I-6233). 22 — See the order for reference in Case C-231/00 (p. 11).

32. Under Law No 5 of 27 January 1998, cited above, the Azienda di Stato per gli interventi nel mercato agricolo (State Agency for interventions in the agricultural A — First-group Cases C-231/00 and market) is responsible for determining, C-451/00, the cases in the second group on the basis of the report from the and Case C-495/00 government commission of inquiry and checks carried out by the regions, the actual quantities of milk produced and marketed during the years 1995/96 and 1996/97. AIMA notifies producers of the individual reference quantities allocated to them and 34. In the first-group Cases C-231/00 and the quantities of milk marketed. Producers C-451/00, in the cases in the second group may ask for these data to be re-examined. and in Case C-495/00, the Tribunale amministrativo regionale del Lazio gives a similar presentation of the facts in the main proceedings. It states that the applicants dispute the legality of the measures whereby AIMA implemented Article 1 of Decree- Law No 43 and effected 'offset' or 'adjust- ment' (meaning the reallocation of unused individual reference quantities) for the milk 33. Pursuant to Decree-Law No 43, and on production years 1995/96 and 1996/97. 26 the basis of those data, AIMA re-allocates The parties maintain in particular that these reference quantities unused at national level measures are illegal because they were for the years 1995/96 and 1996/97 and adopted on the basis of a retrospective calculates the additional levy payable by determination of individual reference quan- tities. 27 tīties.

— in Case C-231/00, in the cases in the second group and Case C-495/00:

37. In this context, the court considers that the Member States must be able to pursue the objectives of Article 39 of the Treaty, even if belatedly. Those objectives are compromised if rigid interpretation of the '(1) May the provisions contained in Art- relevant provisions of Community law icles 1 and 4 of... Regulation makes it impossible to reconcile them with No 3950/92... and Articles 3 and 4 the principle of the protection of legitimate of... Regulation No 536/93... be inter- expectations. The essential point in setting preted as meaning that it is possible, in quotas is to ascertain the actual production cases of administrative or judicial of a holding at a given date. The producer challenge to the relevant measures, to therefore cannot have a legitimate expec- derogate from the time-limits pre- tation of a reference quantity which does scribed for the allocation of quotas not correspond to the quantity of product and the operation of adjustments and which he marketed in actual fact. Lastly, levies?

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If not: If not:

(2) Are the above Community provisions valid, pursuant to Article 33 (ex Article (2) Are the provisions contained in Art- 39) of the Treaty, in so far as they do icles 1 and 4 of... Regulation not provide for extension of the time- No 3950/92... and Articles 3 and 4 limits for allocation and for adjustment of... Regulation No 536/93... valid, in where an action is brought in the the light of Article 33 (ex Article 39) of Community court?' the Treaty, in so far as they do not provide that derogations may be made from the periods prescribed by those provisions for the allocation of individ- ual reference quantities, for adjust- ments and levies in cases of administrative or judicial challenge to 39. In the cases in the second group and those provisions?' Case C-495/00, the Tribunale amministra- tivo regionale del Lazio felt it necessary to raise the following further questions:

— in Case C-484/00:

'[(7)] May Regulations Nos 3950/92 and 536/93 be interpreted as meaning that they allow Member States to '[(5)] May... Regulations Nos 3950/92 determine privileged categories of and 536/93 be interpreted as mean- producers who must have priority ing that individual reference quan- over other producers in receiving tities do not necessarily have to be adjustments, in particular putting notified individually to each pro- mountain zones higher in the order ducer but may be notified in other of priority than "less-favoured" forms such as by publishing bul- zones?' 30 letins?' 28

— in Case C-495/00: — in Cases C-480/00, C-490/00 and C-491/00:

'[(8)] If retrospective adjustment is pre- '[(6)] May Article 2(1) of Regulation cluded, do the applicable Commu- No 3950/92 and Article 3(3) of nity rules authorise the Member Regulation No 536/93 be inter- preted to mean that they leave 29 — This is the fifth question in the orders for reference in these three cases. For convenience of presentation, I am taking this as the sixth question referred to the Court in this file. 28 — This is the third question in the order for reference. For 30 — This is the third question in the order for reference. For convenience of presentation, I am taking this as the fifth convenience of presentation, I am taking this as the seventh question referred to the Court in this file. question referred to the Court in this file.

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OPINION OF MR LÉGER — JOINED CASES C-231/00, C-303/00 AND C-451/00, JOINED CASES C-4S0/00 TO C-482/00, C-484/00, C-489/00 TO C-491/00 AND C-497/00 TO C-499/00 AND CASE C-495/00

III— Assessment ual reference quantities and to the add- itional levies due from milk producers after re-allocating unused reference quantities, in respect of the years 1995/96 and 1996/97, infringes Articles 1 and 4 of Regulation No 3950/92 and Articles 3 and 4 of 43. The questions referred for a prelimin- Regulation No 536/93. In Case C-303/00, ary ruling in the various cases at issue relate the court asks further whether such correc- to four separate points. The first and second tions infringe Articles 6 and 7 of Regulation of these questions ask whether ex-post No 3950/92. corrections to individual reference quan- tities and to additional levies due are compatible with Community legislation. The third, fourth and fifth questions relate to notification to producers of individual reference quantities. The sixth and seventh questions refer to the Member States' discretion in determining categories of producers who may be given priority when allocating unused reference quantities. The 45. This first question from the national eighth question is on the Member States' court also makes reference to the circum- power to settle sums due. I shall consider stances in which the disputed corrections each of these four points in turn. occurred. In Case C-231/00, in the cases in the second group and in Case C-495/00, the national court refers to a situation where there is an administrative or judicial chal- lenge to the national measures adopted to implement the arrangements for the add- itional levy on milk. In Case C-451/00, the national court's purpose was to show the Court that the disputed correction occurred A — Ex-post correction of individual refer- after the Commission, on 20 May 1996, ence quantities and additional levies due had given a reasoned opinion on the relevant Italian legislation. Lastly, in Case C-303/00, the question notes that the milk quota was corrected after it had been verified that the quota had been duly transferred between producers. 1. The purpose of the first question referred for a preliminary ruling

49. However, unlike the applicants in the main proceedings, I consider, as do the Commission and the Italian and Greek Governments, that the corrections made 47. I therefore propose that the Court by the Italian authorities do not infringe consider all these first questions together Regulations Nos 3950/92 and 536/93. and regard them as asking whether Art- icles 1, 4, 6 and 7 of Regulation No 3950/92 and Articles 3 and 4 of Regulation No 536/93 must be interpreted as precluding a Member State, after checks have been made, from correcting the individual reference quantities allocated to 50. The basis for my view is, firstly, the each producer and, consequently, after content of the articles referred to by the reallocation of the unused reference quan- national court and, secondly, the objectives tities, recalculating the additional levies and the scheme of the legislation of which due, after the final date for payment of they are part. such levies for the production period concerned.

(a) The wording of the articles referred to by the national court 2. Analysis

51. From an examination of the wording 48. It is common ground that no article of of each of these articles, it is apparent that Regulation No 3950/92 or Regulation they make no provision which precludes the No 536/93 makes provision for correction making of corrections like those made in of the individual reference quantities allo- the main proceedings. cated to milk producers or consequent correction of the additional levies which they owe. In particular, Article 7 of Regulation No 536/93, which requires 32 — Nor were there 7any such provisions in Regulations Nos 856/84 or 85 /84, in which the Community legisla- Member States to take all control measures ture established the arrangements for the additional levy on milk, nor in the many amendments adopted prior to necessary to verify that the additional levy Regulation No 3950/92.

55. Secondly, as regards Articles 6 and 7 of Regulation No 3950/92, on transfers of individual reference quantities, the court making the reference does not state how these might prevent the controls and the corrections disputed. 34

53. These quotas are however not set once and for all for the duration of the extended additional-levy arrangements: Article 4 of 56. It should be noted that Article 6 of Regulation No 3950/92 expressly provides Regulation No 3950/92 provides that that they may be adapted for each of the Member States are to authorise temporary production periods concerned, so that the transfers of milk quotas for a period of 12 sum of the individual reference quantities months, before a date that they are to for sales to dairies and for direct sales does not exceed the corresponding guaranteed 34 — It should be noted here that the arguments used by the applicant in the main proceedings in Case C-303/00 relate essentially to an infringement of the Italian legislation prescribing the dates by which the national authorities 33 — See the judgment in Case C-292/97 Karlsson and Others must carry out the check that the quota transfer is valid [2000] ECR I-2737, paragraph 32. (see the party's written observations, p. 20).

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59. However, these factors do not show that Articles 3 and 4 preclude ex-post correction of erroneous individual reference quantities and additional levies due for a given production period. Firstly, these time- limits relate to the conduct of the normal administrative procedure and not to the carrying out of checks and corrections of errors or irregularities by the competent national authorities. Moreover, the manda- tory nature of the time-limits laid down for the administrative procedure intended to ensure proper execution of the Community legislation is not incompatible with carrying out checks and corrections ex-post when 57. Thirdly, it should be noted that Art- these are also intended to ensure proper icle 3(2) and Article 4(2) of Regulation application of that legislation. No 536/93 provide that, before 15 May, purchasers, and producers selling their output direct, must forward to the compe- tent national authority a statement of collections or of production for the past year. Article 3(3) and Article 4(3) state that Member States may provide that the 60. It should be pointed out here that competent authority is to notify the pur- Article 7 of Regulation No 536/93 chaser, or producer, of the amount of levy expressly provides for ex-post checks on payable by him after reallocating, or not, all or part of the reference quantities unused. Lastly, Article 3(4) and Article 4(4) provide that purchasers and producers must pay the 35 — Case C-356/97 [2000] ECR I-5461 (paragraphs 38 to 41). That judgment referred to the final date of 15 May for sums due by 1 September. forwarding statements of collections and direct sales.

63. In order to attain those objectives, the Community legislature provided for the additional levy arrangements to be based 61. I believe that this analysis is confirmed essentially on two operations. First, the by the objectives and the scheme of the arrangements involve setting the global relevant legislation. reference quantity for the Community, which is the limit within which the Com- munity is capable of supporting prices and, as a consequence, of guaranteeing produ- cers a fair income. Second, this global guaranteed quantity has to be allocated among the milk producers of the various (b) The objectives and scheme of the Member States, requiring those who exceed relevant legislation their share to bear for themselves the cost of disposing of that excess. The quota thus imposed on each producer and the obliga- tion to pay an additional levy if that quota is exceeded are the consideration for the benefits secured from setting a target price. The arrangements for an additional levy on 62. The arrangements for the additional levy on milk, introduced in 1984, are a 37 — Since quotas were introduced, CAP spending within the milk sector has fallen from EUR 5 224 million in 1984 (28.5% of the total cost of the CAP, at EUR 18 330 36 — According to the eighth recital in the preamble to million) to EUR 2 800 million in recent years (6.5% of the Regulation No 536/93, the Community legislature total cost of the CAP, at EUR 40 447 million). See intended the Member States to have suitable means of Commission report of 10 July 2002 on milk quotas (SEC conducting checks ex post facto. (2002) 789 final, point 3.2).

67. I draw two inferences from this analy- 65. In the light of these factors, attainment sis. The first inference is that Member States of the objectives pursued by the Commu- must be able to correct erroneous individual nity legislature necessarily requires that the reference quantities subsequent to the pro- quantity of milk which each producer is duction period concerned and to modify the authorised to produce free of the additional additional levies due for that period. The levy be determined precisely and also that second inference is that the provisions the additional levies owed by producers on intended to ensure timely payment of the production in excess of that quantity levy must not be interpreted in such a way actually be recovered on behalf of the as to preclude such corrections. I shall Community. consider each of these inferences in turn.

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68. Firstly, I believe that the obligation on 70. From that case-law, I infer that, since the Member States to correct erroneous the applicable Community legislation does individual reference quantities subsequent not contain rules on correction, subsequent to the production period concerned and to to a production period, of erroneous milk modify the additional levies due is based quotas and additional levies due for that upon Article 5 of the EC Treaty (now period, it is for the Member State concerned Article 10 EC). to take the measures necessary for that purpose, in accordance with the rules of its national law.

38 — See judgments in Joined Cases 205/82 to 215/82 Deutsche 39 — See order for reference in Case 231/00, p. 11. Milchkontor and Others [1983] ECR 2633, paragraph 17; 40 — Ibid., p. 19. in Case C-290/91 Peter [1993] ECR I-2981, paragraph 8; 41 — See to this effect Case C-352/92 Milchwerke Köln/ and in Karlsson, paragraph 27. Wuppertal [1994] ECR I-3385, paragraph 23.

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performance of the arrangements for the correctly determined only if the individual additional levy on milk during the 1995/96 reference quantities from which the produc- and 1996/97 production periods. 42 tion overrun has been calculated are accur- ate.

74. As the Commission rightly claimed in 42 — This analysis is also consistent with the case-law of the the hearing, it would be paradoxical and Court as regards operations financed by the European Agricultural Guidance and Guarantee Fund (EAGGF): the contrary to the aim of these provisions to Court has held consistently· that the Member States arc under an obligation to take the measures necessary to interpret them as precluding corrections satisfy themselves that the transactions financed by the which are also intended to ensure recovery EAGGF arc actually carried out and are executed correctly and to prevent and take action against irregularities, even if of additional levies actually due under the the specific Community act does not expressly provide for the adoption of particular supervisory measures (see relevant Community legislation. To see it judgments in Case C-54/95 Germany v Commission otherwise would be tantamount to encou- [1999] ECR I-35, paragraph 66; and in Case C-277/98 France v Commission [2001] ECR I-8453, paragraph 401. raging non-application of the legislation, It should be noted that measures intended to stabilise markets in the milk sector are financed by the guarantee for a Member State would need only to fail section of the EAGGF (Article 1(2) of Regulation (EEC) to apply it correctly, and refrain from No 729/70 of the Council of 21 April 1970 on the financing of the common agricultural policv (OJ, English making any correction to milk quotas Special Edition, 1970 (I), p. 218)). before or during the production period 43 — On this, see the judgment in Karlsson and Others (paragraph 35). concerned, to become unable to correct 44 — Eighth recital in preamble to Regulation No 536/93. irregularities committed during that period.

76. Contrary to this analysis, the appli- cants in the main proceedings contend that the disputed corrections infringe the princi- ple of proportionality and that of the protection of legitimate expectations. On the principle of proportionality, they main- tain that the penalty of additional levy is 78. As regards, firstly, the principle of admissible only if it does not exceed what is proportionality, I am aware that this appropriate and necessary in attaining the requires the disputed act not to go beyond end sought by the legislation infringed. A the limits of what is appropriate and request to pay an additional levy after the necessary to achieve the end sought. 46 final date for payment of that sum for the Contrary to what is suggested by the production period concerned is irrational if one considers that the reference quantity from which that levy was calculated is not based on actual production during the year 45 — See judgments in Joined Cases 201/85 and 202/85 Klensch laid down in the Community legislation. and Others [1986] ECR 3477, paragraph 10; and in Case C-313/99 Mulligan and Others [2002] ECR I-5719, The principle of protection of legitimate paragraph 35. expectations has been infringed because 46 — See, among others, the judgment in Case 137/85 Maizena and Others [1987] ECR 4587, paragraph 15.

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82. Next, producers can have no legitimate expectation that, at the expiry of a produc- 79. Regarding the question whether the tion year, a given unused individual refer- individual reference quantity from which the additional levy due has been calculated was determined in accordance with the 4 7 — See order for reference in Case C-231/00 (p. 21). relevant Community legislation, I do not 48 — See, to this effect, the judgments in Case 67/84 Sideradria v think this relevant when considering a Commission [1985] ECR 3983, 3994, and in Case C-96/89 Commission v Netherlands Į1991] LCR I-2461, para­ breach of the principle of proportionality. graph 30.

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Regulation No 3950/92 and Articles 3 and 89. I consider that it would be contrary to 4 of Regulation No 536/93, in so far as they the spirit of cooperation between courts, preclude the disputed verifications and which governs the procedure of references corrections, are consistent with Article 39 for preliminary rulings, to declare these of the Treaty. three disputed questions inadmissible. The basis for my opinion is as follows.

87. Since this question was asked only on the assumption that the above articles are to be interpreted as meaning that they do preclude the verifications and corrections at issue, I propose that the Court should declare that there is no need to answer it. 90. The facts presented by the national court are indeed very brief and unclear. Thus, it is evident merely from the orders for reference in the second group of cases, which faithfully copy the grounds of the order for reference in Case C-231/00, that the Italian legislation adopted in 1992 provided that bulletins compiled province B — Notification of individual reference by province would give the list of producers quantities and milk quotas. It is also stated that these individual quotas are divided into two parts and are allocated on the basis of production during the years 1988/89 or 1991/92.

1. Admissibility of the third, fourth and fifth questions referred for a preliminary ruling

88. The Commission questions the admis- sibility of the third, fourth and fifth ques- 91. It is really a pity that the national court tions; it states that the court making the did not take the trouble to show more reference only affirmed the need to take the precisely why it thought it necessary to ask Court's opinion on these questions, not additional questions in the second group of making clear their place within the legal cases. Nor did it offer any explanation of and factual context of the main proceed- the reasons for asking the third and fourth ings, nor why that court considers that the questions in 8 of the 10 cases in the second answer to these questions is relevant to the group and the fifth question only in Case outcome of those cases. C-484/00.

95. The third, fourth and fifth questions referred for a preliminary ruling should be considered together; essentially, the 93. In this instance, I believe that the national court asks whether Regulations details set out above do make it possible Nos 3950/92 and 536/93 must be inter- to give a useful answer to the three preted as meaning that they require individ- questions concerned. These details show ual reference quantities to be notified to that the milk quotas allocated for the first producers and, if so, whether such notifica- time to producers in Italy after 1992 were tion must be given to each producer published in bulletins. Moreover, the hear- individually or whether it may be given in ing confirmed that the main proceedings other forms such as by publishing bulletins. also concerned the point whether such notification was in accordance with the requirements of the applicable Community law, the applicants maintaining that such bulletins were not accessible and that they had not been able to find out the milk (a) Whether there is an obligation to notify quotas allocated to them. The Commission

50 — See, among others, the judgments in Case C-83/91 Meilicke [1992] ECR I-4871, paragraph 26; and in Joined Cases C-320/90 to C-322/90 Telemarsicabruzzo and Others 96. The applicants in the main proceed- [1993] ECR I-393, paragraph 6. 51 — See, in particular, the order in Case C-422/98 Colonia ings, the Italian Government and the Versicherung and Others [1999] ECR I-1279, paragraph 5; Commission all agree that individual refer- and the judgment in Case C-67/96 Albany [1999] ECR I-5751, paragraph 40. ence quantities must be notified to produ-

98. Secondly, it is established that produ- cers cannot themselves, from the global guaranteed quantity allocated to their Member State for direct sales and sales to dairies, determine their own shares of each 99. Lastly, it should be noted that, in the of those quantities. It should be noted here additional levy arrangements, Member that Regulation No 3950/92 provides that States and purchasers are but intermediaries the milk quotas available on the holding on between the Community and producers, 31 March 1993 may be adjusted by the since the latter are the principal debtors to Member State prior to each production the Community for the additional levy. 56 period on the basis of the global guaranteed quantity allocated to that State, so that the sum of the individual reference quantities 53 — Ibid., Amele 5. does not exceed that quantity. 52 Similarly, 54 — Ibid., Article 4(2). Under tins regulation, each producer each Member State may make an across- may have two individual reference quantities, one for sales to a purchaser and the other for direct sales. the-board reduction in the individual refer- 55 — Ibid., Article 6. 56 — As regards the Member States, see the judgment in France v Commission, cited above, and, as regards purchasers, sec the Opinion of Advocate General Geelhoed m Case C-230/01 Penyeoed Farming Partnership, pending before 52 — Article 4(1 ) of Regulation No 3950/92. the Court.

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102. The Italian Government contends that Regulations Nos 3950/92 and 536/93 con- tain no specific requirement on this point and that dissemination as effected in this instance, by means of bulletins, is compa- 105. In accordance with Article 5 of the tible with Community law. At the hearing Treaty and the case-law cited in point 69 of the Italian Government stated that the this Opinion, where the relevant Commu- bulletins had been sent to the competent nity legislation has no specific rules on provincial offices, where each producer notification of individual reference quan- could consult them, and that they had also tities, such notification must be effected been published in the Gazzetta ufficiale according to the rules of national law. The della Repubblica Italiana. case-law of the Court also shows that those

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106. It is established that the arrangements for the additional levy on milk are intended to dissuade producers from exceeding the 107. From these considerations I infer that individual reference quantities allocated to the method used by Member States for them. 59 Attainment of the aims of these notifying individual reference quantities arrangements therefore requires all produ- must satisfy two requirements. First, it must cers of all Member States to have accurate be such as to ensure that each producer is in knowledge of the amount of their milk fact informed of the quota allocated to him. quotas. In other words, the aims of the Second, it must also enable the competent additional levy arrangements would be national authorities to be sure that each compromised if, in one Member State, the producer has indeed received that informa- milk producers or some of them did not tion. know the exact amount of their individual reference quantities and exceeded these

However, such individual notification can publicity. 61 The Court stated that, to be take various forms: for example, it may be a appropriate, publicity must be such as to registered letter with advice of receipt; it inform the natural or legal persons con- may also consist of verbal notification by cerned by the measure of their rights and purchasers to producers, together with a obligations under it. 62 The Court has also signature on a register showing that each consistently held that the requirement of producer acknowledges having been duly legal certainty must be observed all the informed. What I see as important is that more strictly in the case of rules liable to the method of notification used by the entail financial consequences, in order that competent national authorities should be those concerned may know precisely the such as to inform each producer individu- extent of the obligations which they impose ally of his rights and obligations and to on them. 63 enable those authorities to have evidence of that information.

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which produce legal effects in that they questions that Regulations Nos 3950/92 determine the quantity of milk which a and 536/93 must be interpreted as meaning producer is authorised to produce free of that individual reference quantities must be the additional levy. In the light of these notified to producers when allocated or considerations and of the case-law set out modified. Such notification must be given above, I take the view that the principle of to each producer individually, in a form legal certainty also places an obligation on which enables the competent national the Member States to notify each producer authorities to be sure that each producer individually of the reference quantity allo- has indeed received notification of the cated to him. individual reference quantity allocated to him.

66 — The Court has already examined the validity of milk quotas in the light or the fundamental rights of property and free exercise of a professional activity. See, among others, the judgnients in Case C-177/90 Kuhn [1992] ECR I-35, paragraph 17; in Clase C-63/93 Duff anil Others [1996] ECR I-569, paragraph 30; and in Case C-22/94 115. As I have indicated, the Court has Irish Farmers Animation and Others [1997] ECR I-1809, consistently held that the need to provide an paragraph 29. And the European Court of Human Rights has acknowledged that the additional levy imposed on milk interpretation of Community law which producers might he regarded as deprivation of property within the meaning of Article 1 of Protocol No 1 to the will be of use to the national court makes it European Convention for the Protection of Human Rights and Fundamental Freedoms (see Procola v. Luxembourg, necessary for the referring court to define judgment of 28 Septemher 1995, Series A No 236). the factual and legislative context of the

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questions it is asking or, at the very least, to nity rules authorise the Member State to explain the factual circumstances on which settle sums due in accordance with Com- those questions are based. 67 munity law, assuming that 'retrospective adjustment is precluded'.

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IV — Conclusion

122. In the light of the considerations above, I propose that the Court should answer as follows the questions put by the Tribunale amministrativo regionale del Lazio:

(1) Articles 1, 4, 6 and 7 of Council Regulation (EEC) No 3950/92 of 28 December 1992 establishing an additional levy in the milk and milk products sector, and Articles 3 and 4 of Commission Regulation (EEC) No 536/93 of 9 March 1993 laying down detailed rules on the application of the additional levy on milk and milk products must be interpreted as meaning that they do not preclude a Member State, after checks have been made, from correcting the individual reference quantities allocated to each producer and, consequently, after reallocation of the reference quantities unused, recalculat- ing the additional levies due, after the final date for payment of such levies for the production period concerned.

(2) Regulations Nos 3950/92 and 536/93 must be interpreted as meaning that individual reference quantities must be notified to producers when allocated or modified. Such notification must be given to each producer individually, in a form which enables the competent national authorities to be sure that each producer has indeed received notification of the individual reference quantity allocated to him.