C-162/01

OPINION OF MRS STIX-HACKL — JOINED CASES C-162/01 P AND C-163/01 P

OPINION OF ADVOCATE GENERAL STIX-HACKL delivered on 18 September 2003 1

I — Introduction Regulation (EEC) No 1078/77, 5 not to market milk or milk products (hereinafter: 'non-marketing undertaking') or to convert their dairy herds to meat production (here­ inafter: 'conversion undertaking') for a period of five years.

1. The two present appeals, which have been joined for the purposes of the judg­ ment, are brought against the judgments of the Court of First Instance in Cases T-533/93 2 (hereinafter: 'Boumď) and T-73/94 3 (hereinafter: 'Beusmans') dismiss­ ing the actions for damages brought against the Council and the Commission by the 3. This problem stems from the fact that no Netherlands milk producers Edouard account was taken of the situation of Bouma and Bernhard Beusmans. SLOM producers when the milk quota scheme — which provided for the establish­ ment of certain reference quantities to restrict milk production and levies in the event that those quantities were exceeded — was introduced as from 1 April 1984. 6 Under the original version of Council Regulation (EEC) No 857/84 of 31 March 1984 governing the calculation of reference 2. These actions form part of a whole series quantities in each individual case, the of disputes which, in general, concern the reference quantities were to be established position within the milk quota scheme of on the basis of milk deliveries during a so-called 'SLOM producers', 4that is to say reference year which, it transpired, coin­ milk producers who undertook, pursuant to cided in whole or in part with the periods

6. In 1977, in view of surplus milk production in the Community, the Council adopted Regulation No 1078/77 of 17 May 1977 introducing a system of premiums for 4. The resulting, unfavourable situation of the non-marketing of milk and milk pro- SLOM producers, which was prolonged in ducts and for the conversion of dairy part by subsequent 'corrective measures' by herds.7 That regulation gave producers the Community legislature and 'enriched' the opportunity of undertaking not to by further legal aspects, has occupied the market milk, or undertaking to convert Community courts in various forms for their herds, for a period of five years, in over a decade and also been reflected in a return for a premium. number of acts of secondary law. These judgments and measures of secondary law, which — and this difference should be borne in mind precisely in the present cases — relate in part to the (validity of the) rules 7. Since overproduction continued into relating to the allocation of reference 1983, even though many producers had quantities per se and in part to compensa- entered into such non-marketing under- tion for the damage suffered by SLOM takings, on 31 March 1984, the Council producers as a result of those provisions, adopted Regulation (EEC) No 856/84 form the legal background to the present amending Regulation (EEC) No 804/68 cases which is set out in detail below. on the common organisation of the market in milk and milk products 8 and 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 sector. 9 Those regulations introduced, from 1 April 1984, a system of additional levies on milk 5. The present appeals raise in particular (hereinafter: 'rules on levies') requiring each the question whether the Court of First milk producer, on penalty of an additional Instance was right in the judgments under levy, only to market the quantities of milk appeal to conclude, in the light of the corresponding to the milk quota allocated relevant case-law, that Community liability is subject to the condition that the produ- cers clearly manifested their intention to 7 — Cited in footnote 5 above. resume milk production upon expiry of 8 — OJ 1984 L 90, p. 10. their non-marketing undertaking. 9 — Cited in footnote 6 above.

11. However, under subparagraph (1) of inserted Article 3a, these provisions concern only producers 'whose period of non- marketing or conversion, pursuant to the 9. By its judgments in Mulder10 (herein- undertaking given under Regulation (EEC) after: 'Mulder l') and Von Deetzen, 11 the No 1078/77, expires after 31 December Court declared Regulation No 857/84, as 1983, or after 30 September 1983 in supplemented by Regulation Member States where the milk collection No 1371/84, 12 to be invalid for breach of in the months April to September is at least the principle of protection of legitimate twice that of the months October to the expectations 'in so far as it does not provide March of the following year'. for the allocation of a reference quantity to producers who, pursuant to an undertaking entered into under Regulation No 1078/77, did not deliver milk during the reference year adopted by the Member State con- cerned'. 12. Such producers are to receive provi- sionally, if they so request, a special reference quantity if they inter alia 'estab- 10 — Case 120/86 Mulder v Minister van Landbouw en Visserij lish in support of their request, to the [1988] ECR 2321. 11 — Case 170/86 Von Deetzen v Hauptzollamt Hamburg-Jonas satisfaction of the competent authority, that [1988] ECR 2355. 12 — Commission Regulation (EEC) No 1371/84 of 16 May 1984 laying down detailed rules for the application of the additional levy referred to in Article 5c of Regulation (EEC) No 804/68 (OJ 1984 L 132, p. 11). 13 — OJ 1989 L 84, p. 2.

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16. Finally, by its judgment in Wehrs 18 the Court declared invalid the rule commonly 14. By the judgment in Spagl, 15 Article 3a known as the anti-accumulation rule laid (1) of Regulation No 857/84, as amended down in the second indent of Article 3a(1) by Regulation No 764/89, was declared of Regulation No 857/84, as amended by invalid for breach of the principle of Regulation No 764/89. This rule, which protection of legitimate expectations in so also appeared in the second indent of the far as 'it excludes from the grant of a special first subparagraph of Article 3a(1) of reference quantity under that provision Regulation No 857/84, as amended by producers whose period of non-marketing Regulation No 1639/91, barred SLOM producers who had already obtained a reference quantity (for another holding) 14 — Commission Regulation (EEC) No 1546/88 of 3 June 1988 pursuant to Article 2 of Regulation laying down detailed rules for the application of the No 857/84 from being allocated a special additional levy referred to in Article 5c of Regulation (EEC) No 804/68 (OJ 1988 L 139, p. 12), as amended by reference quantity. Commission Regulation (EEC) No 1033/89 of 20 April 1989 (OJ 1989 L 110, p. 27), required in Article 3a( 1 ) that requests for the grant of a special reference quantity be made by the producers concerned 'to the competent authority designated by the Member State ... provided that the producers can prove that they still operate, in 16 — Case C-217/89 Postalter v Hatiptzollamt Bad Reichenhall whole or in part, the same holdings as those they operated [1990] ECR I-4585. at the time ... or their premium applications.' 17 — OJ 1991 L 150, p. 35. 15 — Case C-189/89 Spagl v Haitptzollamt Rosenheim [1990] 18 — Case C-264/90 Wehrs v Hatipizollamt Lüneburg [1992] ECR I-4539. ECR I-6285.

20. In order to comply with Mulder II the Council subsequently adopted Council Regulation (EEC) No 2187/93 of 22 July 18. By interlocutory judgment in Mulder 1993 providing for an offer of compensa- and Others v Council and Commission20 tion to certain producers of milk and milk (hereinafter: 'Mulder II'), the Court held the products temporarily prevented from carry- Community liable for the loss suffered by ing on their trade. 22 This regulation offered certain milk producers in so far as this producers to whom a special reference regulation did not provide for the allocation quantity was definitively allocated 23 flat- of a reference quantity to producers 'who, rate compensation for all the damage that pursuant to an undertaking given under they suffered from the provisions referred Council Regulation (EEC) No 1078/77 ... , to in Mulder II. did not deliver any milk during the refer- ence year adopted by the Member State concerned'. As regards the amounts of 21 — OJ 1992 C 198, p. 4. 22 — OJ 1993 L 196, p. 6. 23 — Moreover, as is laid down in Article 2 of this regulation, 19 — OJ 1993 L 187, p. 8. under the conditions set out in Article 3a(3) of Regulation No 857/84, either on 29 March 1991 pursuant to 20 — Joined Cases C-104/89 and C-37/90 Mulder and Others v Regulation No 764/89 or on 1 July 1993 pursuant to Council and Commission [1992] ECR I-3061. Regulation No 1639/91.

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21. Finally, by its judgment in Mulder and 25. Following the adoption of Regulation Others v Council and Commission, 24 (here- No 1639/91, the applicants applied for a inafter: 'Mulder III') theCourt of Justice provisional reference quantity, which was determined definitively the amount of allocated to Mr Bouma on 28 October compensation to be paid to the applicants 1991 and to Mr Beusmans on 25 in these cases who had not taken up the November 1991. abovementioned offer of compensation. 25

27. By applications lodged at the Registry 24. The applicants did not resume milk of the Court on 30 September 1993 and 14 production when their undertakings February 1994 respectively Messrs Bouma expired. However, Mr Beusmans contin- and Beusmans (hereinafter: 'the applicants') ued to rear and fatten cattle, which he had each brought an action for compensation begun to do while the undertaking was in against the Council and the Commission — force. under Article 178 and the second para- graph of Article 215 of the EC Treaty (now Article 235 EC and the second paragraph of Article 288 EC) — for damage suffered by 24 — Joined Cases C-104/89 and C-37/90 Mulder and Others v Council and Commission [2000] ECR I-203. them as a result of them having been 25 — Loc. cit., paragraph 7. prevented from marketing milk by virtue 26 — See paragraphs 14 to 17 of the judgment in Bouma (cited of Regulation No 857/84, as supplemented in footnote 2 above) and paragraphs 14 to 16 of the judgment in Beusmans (cited in footnote 3 above). by Regulation No 1371/84.

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28. The applicants sought compensation in 30. By orders of 31 August 1994, the respect of the period after 1 April 1984, the Court of First Instance stayed the proceed- date of the entry into force of the rules on ings in Cases T-533/93 and T-73/94 pend- levies which prevented them from being ing delivery of judgment in Mulder III. allocated a reference quantity and conse- quently from producing milk until milk production resumed or, more precisely, until a provisional reference quantity had been granted pursuant to Regulation No 1639/91. 27 31. By orders of 11 March 1999, the Court of First Instance ordered that proceedings be resumed.

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lacked capital to buy a new dairy herd. 'Furthermore, it follows from Mulder Instead, he bought dairy calves and II, and more specifically from para- raised them himself, resuming produc- graph 23, that Community liability is tion with 12 cows in May or June subject to the condition that the 1984 ... . Furthermore, it is clear from producers clearly manifested their the Report for the Hearing that while intention to resume milk production milk production was suspended he upon expiry of their non-marketing carried out maintenance work on the undertaking. In order for the illegality buildings and machinery used for milk which led the Court of Justice to production ...'. declare the regulations giving rise to the situation of the SLOM producers invalid to entitle those producers to damages, the producers must have been prevented from resuming milk production. That means that the pro- ducers whose undertaking expired before the entry into force of Regula- tion No 857/84 resumed production or at least took steps to do so, such as 36. The Court of First Instance infers from making investments or repairs, or Spagl 'that producers whose undertaking maintaining the equipment necessary expired in 1983 can validly base their for such production (see on that actions for compensation on infringement subject the Opinion of Advocate Gen- of the principle of protection of legitimate eral Van Gerven in Mulder II at [1992] expectations only where they show that ECR I-3094, point 30).' their reasons for not resuming milk produc- tion during the reference year are connected with the fact that they stopped production for a certain time and that they were unable, for reasons to do with the organisa- tion of that production, to resume produc- tion immediately.' 33 38. After confirming the need for a clear manifestation of intent as regards the resumption of milk production, the Court of First Instance applies this condition to the applicants' situation as follows: 35

'49. The fact is, first of all, that although his 40. The Court of First Instance further non-marketing undertaking expired rules that, contrary to the submissions more than 11 months before the date made by the applicants, no entitlement to of the entry into force of the milk compensation from the Community arises quota scheme, the applicant had not from the fact a provisional reference quan- resumed milk production on that date. tity had been obtained under Regulation Furthermore, the applicant has No 1639/91. This fact does not in itself adduced no evidence to show that he prove that upon expiry of their non- contacted the national authorities with marketing undertakings the applicants had a view to obtaining a reference quan- the intention to resume milk production. 36 tity in 1984 when the milk quota system entered into force. Last, he has failed to show that he took any other steps that might evince an intention to 36 — Paragraphs 50 [o 55 of the judgment in Bouma, cited in footnote 2 above, and paragraphs 49 to 52 of the judgment resume milk production upon expiry of in Beusmans, cited in footnote 3 above.

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41. On these grounds the Court of First 43. In both cases the Council contents that Instance finally concludes that the Commu- the Court should: nity cannot be held liable to the applicants as a result of the application of Regulation No 857/84 and that no further examination is necessary. 37

— declare the appeal inadmissible in part and in any event unfounded in whole;

45. By order of the President of 20 June 37 — Paragraph 54 of the judgment in Bouma, cited in footnote 2003 the two cases were joined for the 2 above, and paragraphs 53 of the judgment in Beusmans, cited in footnote 3 above. purposes of the judgment.

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VI — Legal analysis rities dealing with the SLOM problem and therefore it is necessary at this juncture to refer to some of these categorisations in order to appreciate the following comments and the submissions of the parties. 38

A — Preliminary remarks

49. Those SLOM producers who did not become eligible for the allocation of a specific reference quantity until after the 47. It is in fact possible to draw a distinc- renewed amendment of Regulation tion between various categories of SLOM No 857/84 by Regulation No 1639/91 are producers affected to different degrees on distinguished from the SLOM I producers. the basis of the interrelationship of the A sub-group of this category generally various rules and 'reparative rules' relating referred to as 'SLOM II producers' is to the allocation of a reference quality and formed by the 83 SLOM producers, that in accordance with the possibilities for compensation created by case-law and the Community legislature. Some of these dis- 38 — See, m that respect, the distinction which the Court draws tinctions obviously already form part of the between the SLOM I, SLOM I I and SLOM I I I schemes in Case C -273/98 Sclebuch v Hauptzollamt Trier [2000] fixed terminology of the parties and autho- ECR I-3889, paragraphs 5 to 11.

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is to say the SLOM producers whose non- being ruled on therein. These general marketing undertakings had expired during comments will have to be considered in the reference year 1983 and who were connection with the grounds of appeal in therefore not eligible for an allocation by which these comments are given concrete virtue of Regulation No 764/89. expression. However, in order better to appreciate the parties' lines of argument their preliminary remarks are outlined in brief.

54. As they state, the appellants have 2. Subject-matter of the present proceedings brought the present appeals essentially to challenge the fact that in the judgments under appeal the Court of First Instance took into consideration, in respect of the rights to compensation, not the withdrawal of the specific reference quantity but 52. The parties to the present proceedings whether the producers had clearly mani- commented, as a preliminary point, on the fested their intention to resume milk pro- subject-matter of these proceedings and on duction upon expiry of their non-marketing which categories of SLOM producer are undertakings. They complain that this could also undermine the rights to compen- sation of those 83 SLOM producers who had definitively obtained a specific refer- 39 — See, to that effect, my comments above at paragraph 17 et seq. ence quantity and whose rights to compen- 40 — See paragraph 21 and footnote 29 above. Thus, both sation had already been acknowledged by SLOM I and SLOM II producers were in principle eligible for such compensation, but SLOM III producers were not. the Commission.

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55. By contrast, the Commission and the ject-matter or scope of the present cases Council stress that the present proceedings cannot be 'recast' to establish the rights to relate to 83 SLOM producers who had compensation of a particular group of obtained no definitive reference quantity SLOM producers. In that respect it should and consider that the position taken by the be borne in mind at this juncture that the Court of First Instance in the judgments Court of Justice does not have to consider under appeal, namely that these producers' the whole case and rule again on the action right to compensation is subject to the brought before the Court of First Instance resumption of milk production or a mani- but that its jurisdiction in appeals is festation of intent to do so, is correct. confined to examining the judgment of the Court of First Instance for errors in law relating to the grounds of appeal raised. 41

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43 — The applicants substantiate this contention also by referring to Case C-85/90 Bowling [1992] ECR I-5305, 44 —Opinion of Advocate General Jacobs in Case C-189/89, paragraph 25. cited in footnote 15 above, paragraphs 25 and 31.

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62. Furthermore, by requiring the 83 No liability on the part of the Community SLOM producers to demonstrate specific can be inferred directly from Spagl alone. In steps to resume milk production upon any event, there are no inconsistencies expiry of their non-marketing undertakings between the judgment in Spagl and the the Court of First Instance imposed a judgments under appeal. Nor are they further condition which is not consistent inconsistent with the judgment in Mulder with the principles laid down in Mulder II. II. The Court of First Instance applied the In respect of the 84 SLOM producers, to Court of Justice's criterion that the appel- which that judgment related, the Court of lant must have clearly manifested his Justice attached no such condition to the intention to resume production to the cases right to compensation. at issue without making any additions. Contrary to the view of the appellants, the 83 SLOM producers were not treated less favourably than the 84 SLOM producers to which Mulder II related. At issue here is not different treatment of 83 and 84 SLOM 63. Finally, the appellants contend that in producers but different treatment of those the judgments under appeal the Court of producers who had the intention to resume First Instance also contradicts its own production upon expiry of their non- judgment in the Joined Cases of Quiller marketing undertakings and those who and Heusmann, 4 5which are of direct did not. interest because Mr Quiller was not only a SLOM III producer but also a 83 SLOM producer. Unlike in the judgments under appeal, in that judgment the Court of First Instance rejected the institutions' conten- tion that the appellant could have obtained a reference quantity if he had resumed milk production in 1983.

66. In addition, the Commission considers that Spagl, which relates to the validity of Regulation No 857/84 — that is to say in particular to the allocation of a reference quantity — is not relevant to the question of compensation to which these cases relate. Nor is the judgment in Quiller relevant to 68. Naturally, the same applies again as the present cases. Furthermore, the Com- regards the Community's liability for mission rejects the criticism that the Court damage that the SLOM producers have of First Instance applied a stricter standard suffered, as the case may be, as a result of as regards liability to 83 SLOM producers Regulation No 857/84 in its various ver- in the contested decisions than it did as sions. regards liability to the 84 SLOM producers in Mulder II. Like the Council, the Com- mission takes the view that the situation of the 83 SLOM producers differs from that of the 84 SLOM producers in that they could actually have resumed milk production upon expiry of their non-marketing under- takings, a fortiori since the rules on levies 69. It therefore follows, contrary to the had not yet entered into force. premiss on which the appellants obviously proceed, that no rights to compensation in respect of the 83 SLOM producers or other SLOM producers can be automatically inferred from the judgment in Spagl, by which the Court of Justice merely ruled in preliminary ruling proceedings on the validity of Article 3a of Regulation (b) Appraisal No 857/84, as amended by Regulation No 764/89. Nor does the invalidity estab- lished in Mulder I, Von Deetzen or Pastätter directly give rise to liability on the part of the Community.

73. The comments made by the Court of First Instance in respect of Spagl which were complained of must be viewed in this 71. Thus, in Mulder II the Court of Justice context. They concern the scope of the concluded on the basis of its findings in principle of protection of legitimate inter- Mulder I and Von Deelzen that Regulation ests in respect of the 83 SLOM producers No 857/84, as supplemented by Regulation and thus the requirement that the Commu- No 1371/84, was adopted in breach of the nity act be unlawful. principle of protection of legitimate expec- tations and that the Community must compensate for damage which the produ- cers have suffered as a result of the application of these regulations. In that respect the Court of Justice pointed out (i) The principle of protection of legitimate inter alia that the principle of protection of expectations and the importance of the legitimate expectations is a superior rule of resumption of milk production law for the protection of individuals and that — as required by settled case-law in respect of Community liability for legal provisions whose adoption involves choices of economic policy — there is a sufficiently 74. As regards the principle of protection serious breach of this rule of law. 47 of legitimate interests, it should first be pointed out that the Court of Justice has already commented on several occasions on the scope thereof in judgments concerning SLOM producers. Furthermore, the Court of First Instance also referred to this case- law at paragraphs 41 and 42 of the judgment in Bouma and paragraphs 40 72. Consequently, as the Court of First and 41 of the judgment in Beusmans. Instance correctly held at paragraph 40 of the judgment in Bouma and paragraph 39 of the judgment in Beusmans, the Commu- nity's liability to SLOM producers who 75. Accordingly, it is generally the case that the principle of the protection of legitimate 47 — See Mulder 11, cited in footnote 20 above, paragraphs 12 to expectations may be invoked as against 17 and 22. Community rules, only to the extent that

77. On the other hand, the principle of the protection of legitimate expectations does not preclude the imposition of restrictions 80. That is the case in particular where a on a producer under a system like the SLOM producer has voluntarily not additional levy system by reason of the fact resumed milk production upon expiry of a that he did not market milk during a given non-marketing undertaking. On this point, period prior to the entry into force of that the Court of Justice stated in Kühn that 'the system for reasons unconnected with his principle of the protection of legitimate non-marketing or conversion undertak- expectations does not preclude, in the case ing. 50 of a scheme such as that concerning the additional levy, the imposition of restric- tions on a producer by reason of the fact 48 — See, inter alia, Case C-14/01 Molkerei Wagenfeld v that he has not marketed milk or has Bezirksregierimg Hannover [2003] ECR I-2279, para- marketed only a reduced quantity of milk graph 56, Case C-63/93 Duff and Others v Minister for Agriculture and Food and Attorney General [1996] ECR I- during a period prior to the entry into force 569, paragraph 20, and Case C-177/90 Kühn v Land- of that scheme, in consequence of a decision wirtschaftskammer Weser-Ems [1992] ECR I-35, para- graph 14. which he freely took without being encour- 49 — See, inter alia, Mulder I, cited in footnote 10 above, paragraph 24, Von Deelzen, cited in footnote 11 above, aged to do so by a Community measure.' 51 paragraph 13, and Wehrs, cited in footnote 18 above, paragraph 8. 50 — See, inter alia, Mulder I, cited in footnote 10 above, paragraph 23, and Von Deetzen, cited in footnote 11 above, paragraph 12. 51 — Case C-177/90, cited in footnote 48 above, paragraph 15.

87. Furthermore, as the Court of First Instance correctly stated at paragraph 44 of the judgment in Bouma and paragraph 43 of the judgment in Beusmans, Spagl 84. The comments made by the Court of must be read only in the light of the facts of First Instance on the basis of Spagl must the case before the national court and to the now be viewed in the light of this case-law. effect that the rules at issue in this case infringe the principle of protection of legitimate expectations only in that respect or only in respect of those 83 SLOM 52 — Sec, to that effect, Dowling, cited in footnote 43, paragraph producers whose failure to deliver milk for 20. 53 — Sec, inter alia, Case C-104/97 P Atlanta and Others v Commission and Council [1999] ECR I-6983, paragraph 52, Mulder I, cited in footnote 10 above, paragraph 23, and Von Deelzen, cited in footnote 11 above, paragraph 12. 54 — See, to that effect, paragraphs 15 and 17 of the judgment.

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the whole or part of the reference year expectations only where they show that derives from the fulfilment of an under- their reasons for not resuming milk produc- taking given under Regulation No 1078/77, tion during the reference year are connected and not from other reasons. By its com- with the fact that they stopped production ments on the specific situation of Mr Spagl for a certain time and that they were the Court of First Instance indicates that unable, for reasons to do with the organisa- Mr Spagl is precisely an 83 SLOM produ- tion of that production, to resume produc- cer who produced no milk during the tion immediately. reference year for reasons connected with his undertaking.

89. Consequently, no error in law can be detected in paragraph 44 of the judgment in 92. Therefore, by virtue of the principle of Bouma and paragraph 43 of the judgment protection of legitimate interests it is right in Beusmans. to require that the 83 SLOM producers who did not resume milk production upon expiry of their non-marketing undertakings show that the failure to resume milk production is connected with their under- taking or, in other words, that although 90. Finally, at paragraph 45 of the judg- they did not actually resume milk produc- ment in Bouma and at paragraph 44 of the tion they at least had the intention to do so. judgment in Beusmans the Court of First Instance comes to the central finding regarding the applicability of the principle of the protection of legitimate interests to the situation of the 83 SLOM producers against which the first ground of appeal is 93. Furthermore, contrary to the appel- principally directed. In the view of the lants' view, this is not, as the Council and Court of First Instance, the 83 SLOM the Commission have correctly stated, producers can validly base their actions inconsistent with the judgment in Mulder for compensation on infringement of the II and the standard which the Court of First principle of the protection of legitimate Instance applied therein to the 84 SLOM

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96. By the third ground of appeal, the appellants essentially submit that at para- 99. By contrast, the Council submits that in the judgments under appeal the Court of 55 — Sec Mulderll, cired in footnote 20 above, paragraph 23. First Instance laid down no relevant legal

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presumption in this respect but merely (b) Appraisal applied the general rule of civil law whereby it is for the person raising a claim for damages to show that the grounds for such a claim exist. As the Court of First Instance correctly found at paragraph 46 of the judgment in Bouma and at paragraph 45 of the judgment in Beusmans, according 102. As I stated in connection with the first to Mulder II the Community's non-con- ground of appeal, as regards the condition tractual liability is subject to the condition relating to illegality imposed in respect of that the producers have manifested their liability it is important, in so far as it intention to resume production. constitutes a breach of the principle of the protection of legitimate interests, as to why there was no production during the refer- ence period and why no reference quantity was therefore allocated. However, a similar question arises also as regards the require- ment relating to a causal link.

100. The Council further points out that the appellants' situation is not comparable with that of the applicants in Mulder II in so far as the former were not prevented by law from resuming milk production upon expiry of their non-marketing undertak- 103. Accordingly, there must be a — ings. Overall, the Court of First Instance sufficiently direct — causal link between correctly referred to the judgment in the failure to allocate a reference quantity Mulder II and the associated Opinion. under Regulation No 857/84 and the alleged damage in the form of loss of income from milk deliveries. 56

producers in Regulation No 857/84 and to 108. Therefore, where the producer does provide for the allocation of a reference not at least take steps to resume milk quantity to them. production upon the expiry of his non- marketing undertaking — the list of rele- vant steps provided by the Court of First Instance being, according to the wording thereof, merely exemplary — even though resumption was possible at least tempora- 105. Accordingly, the Court of Justice, to rily, it may be assumed that that producer which the Court of First Instance correctly produced no milk voluntarily and not referred, found at paragraph 23 of the because he was prevented from doing so judgment in Mulder II that the applicants by Community rules. concerned in that case 'manifested, in an appropriate manner, their intention to resume milk production, with the result that the loss of income from milk deliveries cannot be regarded as being the conse- quence of the applicants' freely deciding to give up milk production'. 109. In that respect the Court of First Instance merely applied the requirement laid down by the Court of Justice in Mulder II in respect of the 84 SLOM producers, according to which the producer's intention to resume production upon the expiry of 106. Therefore, in Mulder II the Court of the non-marketing undertaking must be Justice found that there was the requisite manifest, to the situation of 83 SLOM causal link between the illegality in question producers who, unlike the 84 SLOM and the loss of income from milk deliveries producers, had an opportunity to produce since the 84 SLOM producers manifested milk directly upon expiry of their under- their intention to resume milk production in takings, without being prevented from an appropriate manner. doing so by the rules on levies.

111. By the second and fourth grounds of appeal, the appellants complain of the comments made by the Court of First Instance at paragraph 48 of the judgment in Bouma and at paragraph 47 of the judgment in Beusmans. 114. In the view of the Council, the second ground of appeal cannot be upheld because in that respect the judgments under appeal 112. In connection with the second ground do not concern whether the applicants of appeal they complain that the Court of could have obtained a reference quantity First Instance held against them the fact under the optional provisions of Regulation they did not fully resume milk production No 857/84 had they resumed production, after the expiry of the reference year, that is but whether they actually had the intention to say during the period from 31 December to resume milk production. 1983 to 1 April 1984. They contend that it follows from Mulder I, Spagl and Mulder II that 83 SLOM producers must be able to claim compensation under the same condi- tions as 84 SLOM producers.

116. The appellants argue that such a must be regarded as a reversal of the burden reversal of the burden of proof cannot be of proof. Instead, it constitutes an applica- linked to the mere fact that they did not tion of general rules on evidence. A fortiori resume milk production on 1 April 1984. since the appellants did not actually resume As they repeatedly emphasise, this fact in no milk production, the Court of First Instance way alters the rights of the 83 SLOM rightly concluded that they had to prove an producers to obtain a reference quantity or intention to do so. This requirement is in compensation in respect of the period up to keeping with the decision in Mulder II. the allocation of a reference quantity. The obligation to provide evidence in question subjects the appellants retroactively to the consequences of the entry into force of Regulation No 857/84 and also creates problems in view of the long period of time 119. The Commission further submits that that has elapsed since the relevant events. at paragraph 48 of the judgment in Bouma Before Regulation No 857/84 entered into and paragraph 47 of the judgment in force the SLOM producers concerned could Beusmans the Court of First Instance not foresee that they would definitively lose essentially defined — albeit in somewhat the right to a specific reference quantity or broader terms — the obligation to provide to compensation if they had not resumed evidence in a manner substantively consis- milk production by that time. tent with its findings at paragraph 46 of the judgment in Bouma and paragraph 45 of the judgment in Beusmans.

121. If an 83 SLOM producer had actually resumed milk production upon expiry of this non-marketing undertaking — which Regulation No 857/84 made it impossible 125. Furthermore, also as regards the for him to do only as from 1 April 1984 — allocation of the burden of proof I am it would therefore be evident that he did not unable to detect any error in law that the have any reference production or any Court of First Instance has committed by sufficient reference production as a conse- demanding from Messrs Bouma and Beus- quence of his voluntary decision to give up mans proof of their intention to resume milk production. milk production. In my view, this obliga- tion to provide evidence is consistent with established case-law, according to which it is for the applicant to prove that the various conditions relating to the Community's non-contractual liability are satisfied. 64

127. That being so, the Court of First 130. On the one hand, they essentially Instance has not committed any error in object that the Court of First Instance did law as regards the finding that Messrs not take due account of their respective Bouma and Beusmans had to prove their declarations on oath and the other informa- intention to resume milk production in tion provided by their lawyer during the support of their claims for compensation. hearing or made incorrect findings of fact Therefore, the second and fourth grounds on the basis thereof. The declaration on of appeal are unfounded. oath made by Mr Bouma proves — in conjunction with the information provided by his lawyer — that he re-sowed grass in autumn 1983 in order to resume milk production. The declaration made by Mr Beusmans shows that upon expiry of his non-marketing undertaking he con- verted to rearing dairy and beef cows — 4. Fifth ground of appeal that is to say cows which were also suitable for milk production —, that he had a sufficient number of such cows, and that he was still milking his cows in spring 1983.

(a) Main submissions of the parties

view, the evidence that the applicants 135. Therefore, in actual fact they contest claimed to have provided — namely that the finding and the assessment of the facts they had not definitively given up produc- which the Court of First Instance made at tion and were able to resume milk produc- paragraphs 49 et seq. of the judgment in tion — is in any case incapable of support- Bouma and paragraphs 48 et seq. of the ing a claim for compensation in the light of judgment in Beusmans in answer to the the conditions laid down in Mulder II. It question whether the appellants had goes on to state that the Court of First the intention of resuming production upon Instance took due account of the applicants' the expiry of their non-marketing under- submissions and documents, in particular takings and found it impossible to do so the declarations on oath, and made correct owing to the entry into force of Regulation findings of fact. No 857/84. 65 Furthermore, they contest the findings of fact made by the Court of First Instance at paragraph 14 of the judgment in Bouma and in Beusmans.

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BOUMA AND BEUSMANS v COUNCIL AND COMMISSION

137. Moreover, in their complaints the VII— Costs appellants do not allege that the Court of First Instance distorted the evidence before it, nor is this evident. 139. Under Article 69(2) of the Rules of Procedure, which, pursuant to Article 118, applies to the procedure on appeal, the unsuccessful party is to be ordered to pay the costs. If the appeal is dismissed in its entirety, as I propose, on the ground that all the parts thereof are unfounded or inad- 138. Therefore, the fifth ground of appeal missible, the appellant must be ordered to must be dismissed as inadmissible. pay the costs.

VIII — Conclusion

140. For the reasons set out above, I propose that the Court should

(1) dismiss the appeal and