Edouard Bouma and Bernard M. J. B. Beusmans v Council of the European Union and Commission of the European Communities.

• Jurisdiction: European Union
• Celex Number: 62001CJ0162
• ECLI: ECLI:EU:C:2004:247
• Court: Court of Justice (European Union)
• Date: 29 April 2004
• Procedure Type: Recurso de casación - inadmisible
• Docket Number: C-163/01,C-162/01

Joined Cases C-162/01 P and C-163/01 P

Edouard Bouma and Bernard M.J.B. Beusmans

v

Council of the European Union and Commission of the European Communities

(Action for damages – Non-contractual liability – Milk – Additional levy – Reference quantity – Producers having entered into a non-marketing undertaking – SLOM 1983 producers – Failure to resume production on expiry of the undertaking)

Summary of the Judgment

1. Agriculture – Common organisation of the markets – Milk and milk products – Additional levy on milk – Allocation of reference quantities exempt from the levy – Producers who suspended their deliveries under the system of premiums for non-marketing or conversion – Allocation of a specific reference quantity – Limiting the number of beneficiaries by setting a cut-off date retrospectively by reference to the expiry of the period of non-marketing or conversion – Permissible – Choice of a date excluding producers whose undertaking expired during the reference year but before that date – Principle of protection of legitimate expectations – Breach

(Council Regulations Nos 1078/77 and 857/84, Arts 2 and 3a(1))

2. Agriculture – Common organisation of the markets – Milk and milk products – Additional levy on milk – Allocation of reference quantities exempt from the levy – Producers who suspended their deliveries under the system of premiums for non-marketing or conversion – Compensation – Conditions

(Council Regulations Nos 1078/77, 857/84 and 2187/93)

3. Non-contractual liability – Conditions – Unlawful conduct by the institutions – Milk producers deprived of reference quantities under the system of additional levies following suspension of their deliveries under the system of non-marketing premiums – Need to establish the intention to resume milk production upon expiry of the non-marketing undertaking

(Art. 288, second para., EC; Council Regulations Nos 1078/77 and 857/84)

1. With regard to the allocation of reference quantities exempt from the additional levy on milk, the Community legislature was able validly to set a cut-off date by reference to the expiry of the period of non-marketing with a view to excluding from the benefit of Article 3a of Regulation No 857/84, as amended by Regulation No 764/89, those producers who had not delivered milk during the whole or part of the reference year for reasons unconnected with the non-marketing undertaking.

It is only in respect of producers who could assert their legitimate expectation of resuming their production that a cut-off date of this type could not be set in such a way that it has the effect of excluding from the benefit of Article 3a of Regulation No 857/84 producers whose failure to deliver milk for the whole or part of the reference year derived from the fulfilment of an undertaking given under Regulation No 1078/77.

(see paras 50-51)

2. Since Regulation No 1639/91, amending Regulation No 857/84, does not stipulate the necessary conditions under which a producer who has made a non-marketing or conversion undertaking can claim compensation, and compensation under Regulation No 2187/93 remains a separate issue since the system set up by that regulation constitutes an alternative to the settlement of disputes by the courts and offers an additional means of making damage good, the conditions that must be met in order for producers to be able to claim compensation in their capacity as producers who have made a non-marketing or conversion undertaking can only stem from the interpretation which the Court has given to the rules on that subject.

(see para. 72)

3. Community liability for damage caused to certain milk producers as a consequence of the application of Regulation No 857/84, as amended by Regulation No 764/89, is subject to the condition that the producers must have clearly manifested their intention to resume milk production upon expiry of their non-marketing undertaking.

As a result, the producers concerned must manifest upon expiry of their undertaking under Regulation No 1078/77, their intention to resume milk production either by producing milk again or, at the very least, by taking steps to do so, such as making investments or repairs, or maintaining the equipment necessary for such production.

(see paras 89-90)

JUDGMENT OF THE COURT (Sixth Chamber)
29 April 2004(1)

(Action for damages – Non-contractual liability – Milk – Additional levy – Reference quantity – Producers having entered into a non-marketing undertaking – SLOM 1983 producers – Failure to resume production on expiry of the undertaking)

In Joined Cases C-162/01 P and C-163/01 P, Edouard Bouma, residing at Rutten (Netherlands), Bernard M. J. B. Beusmans, residing at Noorbeek (Netherlands), represented by E.H. Pijnacker Hordijk, advocaat,

applicants,

APPEALS against the judgments of the Court of First Instance of the European Communities (Fourth Chamber) of 31 January 2001 in Case T-533/93 Bouma v CouncilandCommission [2001] ECR II-203, and Case T-73/94 Beusmans v Counciland Commission [2001] ECR II-223, seeking to have those judgments set aside, the other parties to the proceedings being: Council of the European Union, represented by A.-M. Colaert, acting as Agent, andCommission of the European Communities, represented by T. Van Rijn, acting as Agent, with an address for service in Luxembourg,

defendants at first instance,

THE COURT (Sixth Chamber),,

composed of V. Skouris, acting for the President of the Sixth Chamber, J.N. Cunha Rodrigues, J.-P. Puissochet, R. Schintgen and N. Colneric (Rapporteur), Judges, Advocate General: C. Stix-Hackl,
Registrar: M.-F. Contet, Principal Administrator,

after hearing the Opinion of the Advocate General at the sitting on 18 September 2003,

gives the following

Judgment

1

By two separate applications lodged at the Court Registry on 13 April 2001, Mr Bouma and Mr Beusmans brought appeals under Article 49 of the EC Statute of the Court of Justice against the judgments of the Court of First Instance in Case T-533/93 Bouma v Council and Commission [2001] ECR II-203 (‘Bouma’), and Case T-73/94 Beusmans v Council and Commission [2001] ECR II-223 (‘Beusmans’), respectively, (jointly ‘the judgments under appeal’) by which the Court of First Instance dismissed their actions for non-contractual liability against the Community under Article 178 and the second paragraph of Article 215 of the EC Treaty (now Article 235 EC and the second paragraph of Article 288 EC).

Legal framework

2

Council Regulation (EEC) No 1078/77 of 17 May 1977 introducing a system of premiums for the non-marketing of milk and milk products and for the conversion of dairy herds (OJ 1977 L 131, p. 1) provided for the payment of a non-marketing premium or a conversion premium to producers who undertook to cease marketing milk or milk products for a non-marketing period of five years or to cease marketing milk or milk products and to convert their dairy herds to meat production for a conversion period of four years.

3

Council Regulation (EEC) No 856/84 of 31 March 1984 amending Regulation (EEC) No 804/68 on the common organisation of the market in milk and milk products (OJ 1984 L 90, p. 10) and Council Regulation (EEC) No 857/84 of 31 March 1984 adopting general rules for the application of the levy referred to in Article 5c of Regulation (EEC) No 804/68 in the milk and milk products sector (OJ 1984 L 90, p. 13) introduced from 1 April 1984 an additional levy on quantities of milk delivered beyond a reference quantity to be determined per purchaser within a guaranteed total quantity for each Member State. The reference quantity to be exempt from the additional levy was equal to the quantity of milk or milk equivalent, either delivered by a producer or purchased by a dairy, as decided by the Member State, during the reference year, which in the case of the Netherlands was 1983.

4

The detailed rules for applying the additional levy were laid down by 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).

5

Producers who did not deliver any milk during the reference year adopted by the Member State concerned, pursuant to an undertaking entered into under Regulation No 1078/77, were excluded from the allocation of a reference quantity.

6

In the judgments in Case 120/86 Mulder [1988] ECR 2321 (‘Mulder I’) and Case 170/86 von Deetzen [1988] ECR 2355 (‘von Deetzen’) the Court ruled that Regulation No 857/84, as supplemented by Regulation No 1371/84, was invalid in so far as it did not provide for the allocation of a reference quantity to producers who, pursuant to an undertaking entered into under Regulation No 1078/77, did not deliver any milk during the reference year adopted by the Member State concerned.

7

Following the judgments in Mulder I and von Deetzen, on 20 March 1989 the Council adopted Regulation (EEC) No 764/89 amending Regulation No 857/84 (OJ 1989 L 84, p. 2), which entered into force on 29 March 1989, in order to enable the category of producers referred to in those judgments to be granted a special reference quantity representing 60% of their production during the twelve months preceding their undertaking to cease marketing or to convert given under Regulation No 1078/77. The producers concerned by that regulation are commonly known as ‘SLOM producers’.

8

Article 3a(1)(b) of Regulation No 857/84, as amended by Regulation No 764/89, provided in particular that a reference quantity could be granted only where the producers ‘establish in support of their request … that they are able to produce on their holding up to the reference quantity requested’.

9

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