A. A. Herbrink contra Minister van Landbouw, Natuurbeheer en Visserij.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Zuleeg
• ECLI: ECLI:EU:C:1992:502
• Date: 09 December 1992
• Docket Number: C-98/91
• Procedure Type: Reference for a preliminary ruling

61991C0098

Opinion of Mr Advocate General Lenz delivered on 9 December 1992. - A. A. Herbrink v Minister van Landbouw, Natuurbeheer en Visserij. - Reference for a preliminary ruling: College van Beroep voor het Bedrijfsleven - Netherlands. - Additional levy on milk - Non-marketing undertaking - Expiry of agricultural lease - Transfer of a lease to an association or group of persons. - Case C-98/91.

European Court reports 1994 Page I-00223

Opinion of the Advocate-General

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Mr President,

Members of the Court,

A - Introduction

1. The questions referred by the College van Beroep voor het Bedrijfsleven ("the College") on which I am giving my opinion today concern certain detailed aspects of the Community rules regarding milk quotas. The principal features of those well-known rules, and the characteristics of them which govern this case, are set forth in the Report for the Hearing; consequently, I will confine myself to a summary of the facts. I will revert to the individual applicable provisions when dealing with the specific questions referred to the Court for a preliminary ruling.

2. The plaintiff in the main proceedings ("the plaintiff") is a farmer established in the Netherlands. He originally operated a holding leased by him in Laag Zuthem. Between 17 May 1979 and 17 May 1984 he fulfilled, in relation to that holding, a non-marketing undertaking within the meaning of Regulation (EEC) No 1078/77. (1) Upon the expiry of that period he was unable to obtain a reference quantity pursuant to Article 2 of Regulation (EEC) No 857/84, (2) precisely because in 1983, the year chosen by the Netherlands as its reference year pursuant to that provision, he had, by reason of the aforementioned undertaking, delivered no milk.

3. Shortly after that the question arose whether the lease of the said holding, which was contractually due to expire on 22 February 1987, was to be extended beyond that date. An application by the plaintiff for such extension was dismissed by the Tenancy Chamber of the Kantongerecht (Cantonal Court) Zwolle by a decision of 16 September 1985. That decision was upheld by the Tenancy Chamber of the Gerechtshof (Regional Court of Appeal) Arnhem on 7 February 1986.

4. In that year the plaintiff resumed milk production and continued that production until the lease came to an end on 22 February 1987.

5. Since 1988 the plaintiff has been carrying on dairy farming activities in the form of an association with his son-in-law on another holding situated at Gietheim. The association produced milk there during the year 1988/89.

6. Upon the introduction by Regulation (EEC) No 764/89 (3) of rules for the grant of "special" reference quantities to so-called SLOM (4) farmers, who, in accordance with undertakings given pursuant to Regulation No 1078/77, had delivered no milk during the relevant reference year, the plaintiff likewise applied for the allocation of such a reference quantity.

7. Following the rejection of that application by the defendant in the main proceedings, and an unsuccessful objection, the plaintiff brought the matter before the College. By order of 7 March 1991 that court initially referred to the Court of Justice for a preliminary ruling three questions concerning the validity of a provision (contained in an implementing regulation of the Commission) regarding the identity of the holding operated by the applicant, the definition of the term "producer" within the meaning of Regulation No 857/84 in the case of associations the members of which include a SLOM farmer, and, additionally, the question whether, in such a case, the person entitled to the special reference quantity is the SLOM farmer or the association.

8. By order of 26 June 1991 the court referred a further question, concerning the validity of Article 3a(5) of Regulation No 857/84 (in the version contained in Regulation No 764/89), which lays down rules regarding the remission or repayment of the additional levy in respect of quantities produced prior to the sixth period of application of the scheme (that is to say, prior to 1 April 1989).

B - Opinion

Question 1

9. The first question referred by the national court concerns a provision inserted by the Commission, (5) following the adoption of Regulation No 764/89, as Article 3a of Regulation No 1564/88 "laying down detailed rules for the application of the additional levy referred to in Article 5c of Council Regulation (EEC) No 804/68", (6) and familiar to the Court from the cases of Maier (7) and O' Brien. (8) I would like to take this opportunity to cite once again the wording of the relevant provision, namely the first subparagraph of Article 3a(1), emphasizing the passage at issue:

"The requests referred to in Article 3a(1) of Regulation (EEC) No 857/84 shall be made by the producers concerned to the competent authority designated by the Member State, in accordance with the procedure laid down by it and provided that the producers can prove that they still operate, in whole or in part, the same holdings as those they operated at the time of the approval, referred to in Article 5(2) of Commission Regulation (EEC) No 1391/78 ((9)), of their premium applications."

10. In that regard, the national court asks:

"Is Article 3a of Regulation (EEC) No 1546/88 of the Commission of the European Communities, as inserted therein by Commission Regulation (EEC) No 1033/89 of 20 April 1989, regard being had to the recitals in the preamble thereto, incompatible with higher-ranking Community law, and in particular with Article 3a of Regulation (EEC) No 857/84 of the Council of the European Communities, as inserted therein by Council Regulation (EEC) No 764/89?"

11. I. In order to answer this question, it is first necessary to examine the way in which the provision is to be interpreted in the light of circumstances such as those obtaining in the present case, more particularly, the question whether it precludes the allocation of a special reference quantity in such circumstances. This examination is necessary, since the reservations regarding the validity of the said provision which are set out in the order making the reference - that is to say, the doubts expressed by the court and the plaintiff as to its compatibility with Regulation No 857/84, and those of the plaintiff regarding the principle of the protection of legitimate expectations (10) - would appear in a different light, and would possibly be nugatory, if that provision did not constitute an obstacle to the allocation of a special reference quantity.

12. Like the Commission, and contrary to the arguments advanced by the Netherlands Government in the oral procedure, I take the view in this regard that the contested provision precludes the allocation of a special reference quantity to the plaintiff (or to the partnership formed by him with his son-in-law).

13. Reference should be made in that regard primarily to the judgment in O' Brien. (11) In that case, the Court construed the unequivocal wording of the contested provision, read in conjunction with Article 3a(1) of Regulation No 857/84, as meaning that the provisional allocation of a special reference quantity is subject to the condition that the producer in question still operates, in whole or in part, the same holding as that which he operated at the time of his premium application. (12) The Court stated that such a producer can claim entitlement to the provisional grant of a special reference quantity only if he continues to operate, at least in part, the holding covered by his undertaking under Regulation No 1078/77. He loses that entitlement, on the other hand, where he has abandoned the operation of the whole of that holding. (13) The Court also referred in that regard to the third recital in the preamble to Regulation No 1033/89, (14) which states:

"applications (for the allocation of a special reference quantity) may be submitted solely by producers in a position to operate at least in part the same production units as those they operated when applying for the premium for the non-marketing of milk or for the conversion of dairy herds".

14. The Court' s statements in that judgment were of an entirely general nature. In my view, therefore, the position can be no different in the present case, in which the farmer in question lost the holding on the expiry of his lease. At all events, the contested provision appears to constitute a specific expression of the principle of a "link with the land", (15) whereby reference quantities are allocated to producers, that is to say, having regard to the definitions given in Article 12(c) and (d) of Regulation No 857/84, to the person or group of persons farming a holding at a particular time. (16) As the Court has inferred from Article 7(1) and (4) of Regulation No 857/84, in the version contained in Regulation (EEC) No 590/85, (17) and the first sentence of Article 5(3) of Regulation (EEC) No 1371/84, (18) that principle applies even where a holding is returned to the lessor on the expiry of a lease: in those circumstances, the lessee loses the reference quantity to the lessor. (19)

15. As regards those circumstances in which Member States may provide, pursuant to Article 7(4) of the amended version of Regulation No 857/84, that all or part of the reference quantity is to be put at the disposal of the outgoing lessee, I shall revert to this point in my examination of the validity of the contested provision. For the purposes of its interpretation at this stage, I need only state that the intention of the Community legislature was to secure the application, not of that exception, but merely of the aforementioned rule.

16. Thus Article 3a of Regulation No 1546/88 can clearly be regarded in the present context as confirming the principle of a link with the land in the event of the expiry of a lease, a special feature of which is, of course, the fact that that rule is...