Conclusions
OPINION OF ADVOCATE GENERAL
STIX-HACKL
delivered on 20 November 2003(1)
Case C-164/01 P
G. van den Berg
v
Council of the European Union
and
Commission of the European Communities
(Appeal – Action for damages – Non-contractual liability – Conditions – Milk quotas – Regulation (EEC) No 857/84 – Reference quantity – Producers who entered into a non-marketing undertaking – Causal link – Change of holding – Transfer of reference quantity – Limitation – Interruption – Suspension)
Table of Contents
| A – Provisions relating to the allocation of a reference quantity that are specifically relevant to a change of holding |
|
| B – Legal acts of the Council and Commission in connection with compensation for SLOM producers |
|
| IV – Proceedings before the Court of First Instance and judgment under appeal |
|
| A – Community liability in respect of the period following the sale of the initial SLOM holding (first ground of appeal) |
|
| B – Limitation on claims to compensation (second and third grounds of appeal) |
|
I – Introduction
1.
The present appeal is brought against the judgment of the Court of First Instance in Case T-143/97
(2)
(hereinafter ‘the judgment under appeal’) dismissing as inadmissible the action for damages brought against the Council and
the Commission by the Netherlands milk producer Gerhardus van den Berg.
2.
This case forms part of a whole series of disputes which, in general, concern the position within the milk quota scheme of
so-called ‘SLOM producers’,
(3)
that is to say milk producers who undertook, pursuant to
Regulation (EEC) No 1078/77,
(4)
not to market milk or milk products (hereinafter ‘non-marketing undertaking’) or to convert their dairy herds to meat production
(hereinafter ‘conversion undertaking’) for a period of five years.
3.
This problem stems from the fact that no account was taken of the situation of SLOM producers when the milk quota scheme –
which provided for the establishment 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. Under the original version
(5)
of Council
Regulation (EEC) No 857/84 of 31 March 1984 governing the calculation of reference quantities in each individual
case, the reference quantities were to be established on the basis of milk deliveries during a reference year which, it transpired,
coincided in whole or in part with the periods covered by the non-marketing undertakings entered into by the SLOM producers.
Consequently, such milk producers could not be allocated a reference quantity – as they had produced no milk during the reference
year – and were therefore unable to produce any milk exempt from levies.
4.
The resulting, unfavourable situation of SLOM producers, which was prolonged in part by subsequent ‘corrective measures’ by
the Community legislature and ‘enriched’ by further legal aspects, has occupied the Community courts in various forms for
over a decade and also been reflected in a number of acts of secondary law. These judgments and measures of secondary law,
which relate in part to the (validity of the) rules relating to the allocation of reference quantities per se and in part
to compensation for the damage suffered by SLOM producers as a result of those provisions, form the legal background to the
present case which is set out in detail below.
5.
I have already commented on the problem of liability to SLOM producers in my opinion in Joined Cases C-162/01 P and C-163/01
P.
(6)
Those cases related primarily to whether Community liability is subject to the condition that milk production resume upon
expiry of the non-marketing undertaking or that the SLOM producer concerned manifest an intention to do so.
6.
Against a similar legal and factual background, the present appeal raises two questions in particular, that is to say, on
the one hand, whether the Court of First Instance was right to conclude in the judgment under appeal that Community liability
for damage suffered as a result of refusal to grant a reference quantity ends when the SLOM producer concerned changes holding
and, on the other, whether the Court of First Instance was right to find that the rights to compensation at issue were already
time-barred in the absence of any interruption or suspension of the limitation period.
II – Legal background
7.
Below I will merely reproduce the Community acts directly relevant to the grounds of appeal. As regards the broader legal
context also of the present case, I refer to the legal background set out in my opinion in the joined cases of
Bouma and Beusmans.
(7)
A –
Provisions relating to the allocation of a reference quantity that are specifically relevant to a change of holding
8.
Under subparagraph (1) of Article 3a inserted into this regulation by Regulation (EEC) No 764/89 of 20 March 1989 amending
Regulation (EEC) No 857/84,
(8)
producers are to receive provisionally, if they so request, a special reference quantity inter alia on condition that they:
- ‘(a)
- did not ... transfer the whole of their dairy enterprise before the end of the non-marketing or conversion period;
- (b)
- establish in support of their request ... that they are able to produce on their holding up to the reference quantity requested
...’
9.
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 5(c) of
Regulation (EEC) No 804/68,
(9)
as amended by Commission
Regulation (EEC) No 1033/89 of 20 April 1989,
(10)
required in Article 3(a)(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 whole or in part, the same holdings as those they operated at the time ... of their premium applications’.
10.
Reference should then be made to
Article 7 of
Regulation No 857/84, as amended by Council
Regulation (EEC) No 590/85 of 26
February 1985,
(11)
which provides as follows, in so far as is relevant:
‘1. Where a holding is sold, leased or transferred by inheritance, all or part of the corresponding reference quantity shall
be transferred to the purchaser, tenant or heir according to procedures to be determined.
Where land is transferred to the public authorities and/or for public use, without prejudice to the second subparagraph of
paragraph 3, Member States may provide that all or part of the reference quantity corresponding to the holding or to the part
of the holding transferred shall be put at the disposal of the departing producer if he intends to continue milk production.
...
4. In the case of rural leases due to expire, where the lessee is not entitled to an extension of the lease on similar terms,
Member States may provide that all or part of the reference quantity corresponding to the holding which forms the subject
of the lease shall be put at the disposal of the departing lessee if he intends to continue milk production.’
11.
In this respect Article 7 of Regulation No 1546/88 contains the following implementing provisions:
‘For the purposes of applying
Article 7 of
Regulation (EEC) No 857/84 and without prejudice to paragraph 3 thereof, the following
rules shall apply to the transfer of reference quantities granted to producers and purchasers in application of formulas A
and B and of reference quantities granted to producers selling for direct consumption:
1. Where an entire holding is sold, leased or transferred by inheritance, the corresponding reference quantity shall be transferred
in full to the producer who takes over the holding.
2. Where one or several parts of a holding is sold, leased or transferred by inheritance, the corresponding reference quantity
shall be distributed among the producers operating the holding in proportion to the areas used for milk production or according
to other objective criteria laid down by Member States. Member States may disregard transferred parts the area of which used
for milk production is less than a minimum size which they shall determine. The part of the reference quantity corresponding
to that area may be added entirely to the reserve.
3. The provisions of points 1 and 2 and of the fourth subparagraph shall be applicable under the various national rules, in
other cases of transfer which have comparable legal effects as far as producers are concerned.
4. In the event of the application of the second subparagraph of
Article 7(1) of
Regulation (EEC) No 857/84, concerning the
transfer of land to the public authorities and/or for public use, and Article 7(4) of the said regulation, concerning rural
leases which are due to expire and which cannot be extended on similar terms, all or part of the reference quantity corresponding
to the holding or to the part of the holding which is the subject of the transfer or of the said lease shall be put at the
disposal of the producer concerned if he intends to continue milk production, provided that the sum of the reference quantity
thus made available to him and the quantity corresponding to the holding which he takes over or on which he continues milk
production does not exceed the reference quantity which was available to him before the land was...
