# C_2011194EN.01000301.xml

| 2.7.2011 | EN | Official Journal of the European Union | C 194/3 |
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2.7.2011

EN

Official Journal of the European Union

C 194/3

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Judgment of the Court (First Chamber) of 5 May 2011 (references for a preliminary ruling from the Bundesfinanzhof (Germany) — Hauptzollamt Koblenz v Kurt Etling, Thomas Etling (C-230/09), Hauptzollamt Oldenburg (C-231/09) v Theodor Aissen, Hermann Rohaan

(Joined Cases C-230/09 and C-231/09) (1)

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(Agriculture - Milk and dairy sector - Regulation (EC) No 1788/2003 - Levy in the milk and dairy sector - Regulation (EC) No 1782/2003 - Direct support schemes under the common agricultural policy - Transfer of individual reference quantities - Repercussions on the calculation of the levy - Repercussions on the calculation of the dairy premium)

2011/C 194/03

Language of the case: German

Referring court

Referring court

Bundesfinanzhof

Parties to the main proceedings

Parties to the main proceedings

Applicants: Hauptzollamt Koblenz (C-230/09), Hauptzollamt Oldenburg (C-231/09)

Applicants:

Defendants: Kurt Etling, Thomas Etling (C-230/09), Theodor Aissen, Hermann Rohaan (C-231/09)

Defendants:

Intervening party: Bundesministerium der Finanzen

Intervening party:

Re:

Re:

Reference for a preliminary ruling — Bundesfinanzhof — Interpretation of Article 5(k) of Council Regulation (EC) No 1788/2003 of 29 September 2003 establishing a levy in the milk and milk products sector (OJ 2003 L 270, p. 123) — Reversion of the milk reference quantity in the course of the reference period following termination of an agricultural lease — Whether the quantity already delivered by the previous lessee during the reference period may be taken into account for the purpose of determining the reference quantity available to the lessor

Operative part of the judgment

Operative part of the judgment

| 1. | Article 10(3) of Council Regulation (EC) No 1788/2003 of 29 September 2003 establishing a levy in the milk and milk products sector, as amended by Council Regulation (EC) No 2217/2004 of 22 December 2004, must be interpreted as meaning that the reallocation of the unused part of the national reference quantity allocated to deliveries must be carried out in proportion to the individual reference quantity of each producer having overdelivered, namely that determined at 1 April of the relevant twelve-month period, or according to objective criteria to be set by the Member States. The concept of individual reference quantity used in that provision does not allow transfers of reference quantities during that period to be taken into account. |
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1.

Article 10(3) of Council Regulation (EC) No 1788/2003 of 29 September 2003 establishing a levy in the milk and milk products sector, as amended by Council Regulation (EC) No 2217/2004 of 22 December 2004, must be interpreted as meaning that the reallocation of the unused part of the national reference quantity allocated to deliveries must be carried out in proportion to the individual reference quantity of each producer having overdelivered, namely that determined at 1 April of the relevant twelve-month period, or according to objective criteria to be set by the Member States. The concept of individual reference quantity used in that provision does not allow transfers of reference quantities during that period to be taken into account.

| 2. | National legislation implementing the option, provided for in Article 10(3) of Regulation No 1788/2003, as amended by Regulation No 2217/2004, of setting objective criteria according to which the reallocation of the unused part of the national reference quantity allocated to deliveries is to be carried out must comply, in particular with general principles of EU law and the objectives pursued by the common agricultural policy, especially those concerning the common organisation of the markets in the milk sector. |
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2.

National legislation implementing the option, provided for in Article 10(3) of Regulation No 1788/2003, as amended by Regulation No 2217/2004, of setting objective criteria according to which the reallocation of the unused part of the national reference quantity allocated to deliveries is to be carried out must comply, in particular with general principles of EU law and the objectives pursued by the common agricultural policy, especially those concerning the common organisation of the markets in the milk sector.

| 3. | Those objectives do not preclude national legislation, adopted in the context of the implementation of that option, which allows overdelivering producers, who have, in accordance with the provisions of Regulation No 1788/2003, as amended by Regulation No 2217/2004, received a transfer, during the relevant twelve-month period, of an individual reference quantity under which milk has already been delivered for that same period by the producer who previously held it, to participate in that reallocation by including some or all of that reference quantity. Member States must however ensure that such legislation does not give rise to transfers which, while formally complying with the conditions laid down by that regulation, are intended solely to allow certain overdelivering producers to obtain a more favourable position on that reallocation. |
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3.

Those objectives do not preclude national legislation, adopted in the context of the implementation of that option, which allows overdelivering producers, who have, in accordance with the provisions of Regulation No 1788/2003, as amended by Regulation No 2217/2004, received a transfer, during the relevant twelve-month period, of an individual reference quantity under which milk has already been delivered for that same period by the producer who previously held it, to participate in that reallocation by including some or all of that reference quantity. Member States must however ensure that such legislation does not give rise to transfers which, while formally complying with the conditions laid down by that regulation, are intended solely to allow certain overdelivering producers to obtain a more favourable position on that reallocation.

| 4. | The expression ‘individual reference quantity eligible for premium and available on the holding’ contained in Article 95(1) of Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001, as amended by Commission Regulation (EC) No 118/2005 of 26 January 2005, which corresponds to the expression ‘available reference quantity’ contained in Article 5(k) of Regulation No 1788/2003, as amended by Regulation No 2217/2004, must be interpreted as meaning that, where a producer has received a transfer, during the relevant twelve-month period, of a reference quantity under which milk has already been delivered by the transferor during the same period, that expression does not cover, as regards the transferee, the part of the transferred reference quantity under which milk has already been delivered exempt from the levy by the transferor. |
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4.

The expression ‘individual reference quantity eligible for premium and available on the holding’ contained in Article 95(1) of Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001, as amended by Commission Regulation (EC) No 118/2005 of 26 January 2005, which corresponds to the expression ‘available reference quantity’ contained in Article 5(k) of Regulation No 1788/2003, as amended by Regulation No 2217/2004, must be interpreted as meaning that, where a producer has received a transfer, during the relevant twelve-month period, of a reference quantity under which milk has already been delivered by the transferor during the same period, that expression does not cover, as regards the transferee, the part of the transferred reference quantity under which milk has already been delivered exempt from the levy by the transferor.

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(1)  OJ C 220, 12.9.2009.

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