R. W. Werners v Council of the European Union and Commission of the European Communities.

• Jurisdiction: European Union
• Celex Number: 61994TJ0373
• ECLI: ECLI:EU:T:2006:383
• Court: General Court (European Union)
• Docket Number: T-373/94
• Date: 12 December 2006
• Procedure Type: Recurso por responsabilidad - infundado

Case T-373/94

R. W. Werners

v

Council of the European Union and

Commission of the European Communities

(Action for damages – Non-contractual liability – Milk – Additional levy – Reference quantity – Producers who entered into a non-marketing undertaking – SLOM 1984 producers – Failure to resume production on expiry of the undertaking)

Judgment of the Court of First Instance (Fifth Chamber), 12 December 2006

Summary of the Judgment

Non-contractual liability – Conditions – Unlawful conduct of the institutions

(EC Treaty, Art. 215, second para. (now Art. 288, second para., EC); Council Regulations Nos 1078/77, 857/84 and 764/89)

The Community’s non-contractual liability in connection with the introduction in 1984 by Regulation No 857/84 of the additional levy scheme in the milk and milk products sector is incurred only in respect of those milk producers who had temporarily ceased milk production pursuant to a non-marketing undertaking under Regulation No 1078/77 and resumption of which was prevented precisely because of the entry into force of the additional levy scheme. That liability is therefore not incurred in relation to producers who had not resumed marketing of milk upon the expiry of the non-marketing undertaking for reasons other than those connected with the entry into force of that scheme.

It is for producers who ceased marketing milk under Regulation No 1078/77 and applied for a special reference quantity following adoption of Regulation No 764/89, which was allocated to them and then withdrawn, to prove that they intended to resume milk production on expiry of their non-marketing undertaking. Proof of such an intention is deemed to be established where those producers demonstrate that they fulfil the conditions laid down by the applicable legislation permitting them to resume milk production by applying for and retaining a special reference quantity for the purposes of resumption of the activity of milk producer.

The Community may therefore presume, with regard to milk producers whose non-marketing undertakings expired after the entry into force of the additional levy scheme and who applied for a special reference quantity under Regulation No 764/89 but who did not obtain one since they did not satisfy the conditions set out in that regulation, that, failing proof to the contrary by them, they would not have been able to obtain a reference quantity if Regulation No 857/84 had provided for it, and thus they are in the same position as producers who gave an undertaking under Regulation No 1078/77 who never applied for a reference quantity.

Such a presumption must also apply to producers who obtained a special reference quantity under Regulation No 764/89 which was withdrawn from them on the ground that they did not meet the conditions set out therein. Therefore, the non-marketing of milk on expiry of the undertaking which such a producer gave cannot, in the absence of any proof of his intention to resume milk production, be attributed to the entry into force of the additional levy scheme.

(see paras 84-88, 91)

JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

12 December 2006 (*)

(Action for damages – Non-contractual liability – Milk – Additional levy – Reference quantity – Producers who entered into a non-marketing undertaking – SLOM 1984 producers – Failure to resume production on expiry of the undertaking)

In Case T‑373/94,

R.W. Werners, residing in Meppel (Netherlands), represented initially by H. Bronkhorst and E. Pijnacker Hordijk, lawyers, and subsequently by E. Pijnacker Hordijk,

applicant,

v

Council of the European Union, represented initially by A. Brautigam and A.-M. Colaert, acting as Agents, and subsequently by A.-M. Colaert,

and

Commission of the European Communities, represented initially by T. van Rijn, acting as Agent, assisted by H.‑J. Rabe, lawyer, and subsequently by T. van Rijn,

defendants,

ACTION for compensation pursuant to Article 178 of the EC Treaty (now Article 235 EC) and the second paragraph of Article 215 of the EC Treaty (now the second paragraph of Article 288 EC) for the damage allegedly suffered by the applicant by reason of the fact that he was prevented from marketing milk in accordance with 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), as supplemented 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),

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fifth Chamber),

composed of M. Vilaras, President, E. Martins Ribeiro and K. Jürimäe, Judges,

Registrar: J. Plingers, Administrator,

having regard to the written procedure and further to the hearing on 6 April 2006,

gives the following

Judgment

Legal context

1 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.

2 Milk producers who entered into an undertaking under Regulation No 1078/77 are commonly known as ‘SLOM producers’, the acronym originating from the Dutch expression ‘slachten en omschakelen’ (slaughter and conversion) describing their obligations under the non‑marketing or conversion scheme.

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 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 the application of the additional levy referred to in Article 5c of Regulation (EEC) No 804/68 of the Council of 27 June 1968 on the common organisation of the market in milk and milk products (English Special Edition: Series I Chapter 1968(I) p. 176) were laid down by Commission Regulation (EEC) No 1371/84 of 16 May 1984 (OJ 1984 L 132, p. 11).

5 Producers who, pursuant to an undertaking entered into under Regulation No 1078/77, delivered no milk during the reference year adopted by the Member State concerned, were excluded from the allocation of a reference quantity.

6 In its judgments in Case 120/86 Mulder [1988] ECR 2321 (‘the Mulder I judgment’) and Case 170/86 von Deetzen [1988] ECR 2355 (‘the von Deetzen judgment’) 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, delivered no milk during the reference year adopted by the Member State concerned.

7 Following the Mulder I and von Deetzen judgments, 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 that the category of producers covered by those judgments might be allocated a special reference quantity representing 60% of their production during the 12 months preceding their undertaking, given under Regulation No 1078/77, to cease marketing or to convert.

8 Article 3a(1)(b) of Regulation No 857/84, as amended by Regulation No 764/89, made the provisional award of a special reference quantity subject, in particular, to the condition that producers ‘establish in support of their request … that they [were] able to produce on their holding up to the reference quantity requested’.

9 The first indent of Article 3a(1) of that regulation referred to producers ‘whose period of non-marketing or conversion, pursuant to the undertaking given under Regulation … No 1078/77, expire[d] after 31 December 1983, or after 30 September 1983 in Member States where the milk collection in the months April to September is at least twice that of the months October to the March of the following year’.

10 Article 3a(3) of Regulation No 857/84, as amended by Regulation No 764/89, provides:

‘If, within two years from 29 March 1989, producers can prove to the satisfaction of the competent authority that they have actually resumed direct sales and/or deliveries, and that such direct sales and/or deliveries have attained during the previous 12 months a level equal to or greater than 80% of the provisional reference quantity, the special reference quantity shall be definitively allocated to the producers. Should this not prove to be the case, the provisional reference quantity shall be returned in its entirety to the Community reserve ...’

11 In pursuance of Regulation No 764/89, Commission Regulation (EEC) No 1033/89 of 20 April 1989 amending Regulation (EEC) No 1546/88 laying down detailed rules for the application of the additional levy referred to in Article 5c of Council Regulation (EEC) No 804/68 (OJ 1989 L 110...