C-384/00

BREDEMEIER

OPINION OF ADVOCATE GENERAL JACOBS delivered on 28 February 2002 1

1. Where a farmer leases on favourable 3. The present common organisation was terms his father-in-law's holding, which it established in 1968, 2based essentially on is intended that his wife will inherit in due pricing mechanisms. Reliance on pricing, course, can that lease be regarded as 'an however, led to overproduction and struc­ inheritance or similar means' for the pur­ tural measures proved necessary to control pose of allocating a special reference quan­ the situation. Under one of those meas­ tity in the context of the common organi­ ures, 3producers could receive a non-mar­ sation of the market in milk and milk keting premium if they undertook, essen­ products? That is, in essence, the question tially, to refrain from all dairy production which the Niedersächsische Oberverwal­ for a period of five years. Overproduction tungsgericht (Higher Administrative Court nevertheless continued, and in 1984 4a for Lower Saxony), Germany, is called system was introduced under which dairy upon to decide and on which it seeks producers were allocated a production assistance from the Court. quota known as a 'reference quantity', based on their production in one of the three previous years, and were subjected to an 'additional levy' on any quantities sold in excess of that quota.

The milk quota system

4. Problems arose, however, from the inter­ action between those two schemes. Many

shall receive on a provisional basis, on 5. The provision relevant to the present application submitted within a time limit of case is Article 3a of Regulation No 857/84 three months from 1 July 1991 a special as amended, in particular, by Regulation reference quantity...' No 1639/91. 7The last subparagraph of Article 3a(1) provides, in so far as is relevant:

5 — In particular Case 120/86 Mulder [1988] ECR 2321, Case 170/86 Von Deetzen I [1988) ECR 2355, Case C-189/89 Spagl [19901 ECR I-4539, Case C-217/89 Pastätter [19901 ECR I-4585, and Case C-314/89 Rauh [1991) ECR I-1647. The case in the main proceedings 6 — In particular Commission Regulation (EEC) No 1546/88 of 3 June 1988 laying down detailed rules for the application of the additional levy referred to in Article 5c of Regulation (EEC) No 804/68, OJ 1988 L 139, p. 12, Council Regu­ lation (EEC) No 764/89 of 20 March 1989 amending Regulation (EEC) No 857/84 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 6. According to the order for reference, Mr sector, OJ 1989 L 84, p. 2, Commission Regulation (EEC) Bredemeier farms with his wife in Lower No 1033/89 of 20 April 1989 amending Regulation (EEC) No 1546/88 laying down detailed rules for the application Saxony. In addition to their own holding, of the additional levy referred to in Article 5c of Council Regulation (EEC) No 804/68, OJ 1989 L 110, p. 27, and he has worked his father-in-law's holding Council Regulation (EEC) No 1639/91 of 13 June 1991 amending Regulation (EEC) No 857/84 adopting general since June 1980. He did so on his father- rules for the application of the levy referred to in Article 5c in-law's behalf until 1 October 1986, since of Regulation (EEC) No 804/68 in the milk and milk products sector, OJ 1991 L 150, p. 35. when he has taken it on under an indefinite 7 — Cited above in note 6. lease. The lease is on favourable terms, said

10. The referring court finds itself unable to decide the point. It notes the Court's ruling in von Deetzen II 9that the term 'similar transaction' in a related provi­ 10 sion 'must be interpreted as referring to any transaction, whatever its legal basis, which produces effects comparable to those of inheritance. It thus embraces, in par­ ticular, transactions concluded in respect of 8. In 1989, having learned of the Court's 8 the holding concerned between a producer judgments in Mulder and von Deetzen I, and the potential beneficiary of his estate, Mr Bredemeier applied for a quota in provided that the terms of the transaction respect of that holding. His application in question are such that, according to its was dismissed on the ground that the lease purpose and subject-matter, the main inten­ had commenced after the expiry of the tion is that the holding should continue to non-marketing period. In 1990, he applied again, arguing that the lease was a trans­ 9 — Case C-44/89 Von Deetzen II [1991] ECR I-5119, para­ graph 38 of the judgment. 8 — Both cited above in note 5. 10 — See paragraphs 13 et seq. below.

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OPINION OF MR JACOBS — CASE C-384/00

be exploited by the potential beneficiary Analysis and not that the marketable value of the holding should be realised by the person from whom he stands to inherit'.

12. The observations submitted in this case are refreshingly concise. Mr Bredemeier has submitted one page, although the Commis­ sion has stretched to eight, and no hearing has been requested. Both propose, essen­ tially, that the Court should follow the line However, it also notes that it is not Mr taken in Von Deetzen II, and I agree. Bredemeier but his wife who is the desig­ nated heir to the holding in question.

15. That provision thus relates not to the allocation of a special reference quantity in respect of a holding which had been trans­ ferred by inheritance or a similar trans­ action — the point in issue in the present case — but to the transfer of a holding to which such a quota had already been allocated.

17. However, in Rauh — a judgment delivered before Article 3a of Regulation No 857/84 was amended — the Court had 16. The provision with which the present borrowed from the terminology of case is concerned was introduced into Article 7a of Regulation No 1546/88 to 1 Article 3a of Regulation No 857/84 4by find that Article 3a of Regulation Article 1 ( II )( a )( 5 ) of Regulation No 857/84 should be interpreted as mean­ 1 No 1639/91. 5The first recital in the ing that, 'subject to the conditions laid preamble to the latter states that amend­ down therein, a special reference quantity ment was necessary because the Court had may be granted to a producer who had found Article 3a to be invalid in Spagl and taken over a holding by way of succession 1 Pastätter 6 and because, 'following the or a similar transaction after the expiry of a interpretation of the aforementioned non-marketing undertaking...'

12 — Cited above in note 6. 17 — Cited above in note 5. 13 — Cited above in note 4. 18 — Of the eight language versions which I have consulted, the 14 — Article 3a was itself added by Regulation No 764/89. difference in wording appears to be very minor, except perhaps in the Portuguese version, where 'similar trans­ 15 — Cited above in note 6. action' in Article 7a is rendered as 'negócio gratuito' 16 — Both cited above in note 5. whereas 'similar means' in Article 3a is 'via analoga'.

19. The remaining difficulty which the national court experiences lies in the fact 21 . However, as the Commission has that the interpretation in Von Deetzen II further pointed out, it is essential that the refers to 'the potential beneficiary of the presumed heir be the real beneficiary and estate' and it is not Mr Bredemeier but his that there be no disguised transfer to wife who is the potential beneficiary of his another party. In the event of a divorce, father-in-law's estate. say, the presumed heir must be in a position to assert her (or his) rights to the holding and the quota. Moreover, the proviso in paragraph 38 of Von Deetzen II, concern­ ing the main intention of the transaction, must be met. The national court must be satisfied, before deciding in favour of Mr Bredemeier, that those conditions are met 20. The Commission submits, and I agree, in the light of all the legal and factual that the essential point in the ruling in Von circumstances of the case. Deetzen II is that 'the holding should continue to be exploited by the potential 19 — Paragraph 38 of the judgment. beneficiary and not that the marketable 20 — Paragraph 41 of the judgment, paragraph 3 of the value of the holding should be realised by operative part.

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BREDEMEIER

Conclusion

22. I am therefore of the opinion that the Court should give the following answer to the Niedersächsische Oberverwaltungsgericht:

The lease of a holding to the spouse of the presumed heir to the holding constitutes transfer 'through an inheritance or similar means' for the purposes of Article 3a of Council Regulation (EEC) No 857/84 provided that: