Opinion of the Advocate General — ECLI:EU:C:2002:666
Date: 2002-11-14
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Milk products
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 
1. Agriculture — Common organisation of the markets — Milk and milk products — 
Additional levy on milk — Producer — Definition — Obligation to produce the 
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SUMMARY — CASE C-268/01 
reference quantity in the units operated at the time of allocation thereof — None — 
Producers established in the territory of the former German Democratic Republic — 
Freedom to produce the reference quantity in the place of production of their choice — 
Conditions 
(Council Regulation No 3950/92, Arts 3(2), 9(c) and (d)) 
2. Agriculture — Common organisation of the markets — Milk and milk products — 
Additional levy on milk — Award of reference quantities exempt from the levy — 
Holding situated, at the time of the award, in an area forming part of the territory of 
the former German Democratic Republic — Incorporation of a part of that territory 
within a pre-existing land of the Federal Republic of Germany — Possibility afforded 
to the producer to transfer his production to that part of territory — Conditions 
(Council Regulation No 3950/92, Arts 3(2), 4(4), 5, 9(c) and (d)) 
1. It is apparent from the definitions of 
producer and holding mentioned, 
respectively, in Article 9(c) and (d) of 
Regulation No 3950/92 establishing an 
additional levy in the milk and milk 
products sector, as amended by Regu­
lation No 751/1999, read together 
that, first of all, the status of producer 
is accorded to any person who manages 
a set of production units located within 
the geographical territory of a Member 
State and sells or delivers milk or milk 
products, and that it is not necessary 
for the farmer to own the production 
facilities used by him. Next, the status 
of producer is not subject to the 
condition that the holder of a reference 
quantity should produce it, in whole or 
in part, in the production units which 
he was operating when that quantity 
was allocated to him. Finally, assess­
ment of the status of producer must be 
conducted in regard to the whole of the 
geographical territory of a Member 
State. It follows from the foregoing 
considerations that Article 9(c) and (d) 
of Regulation No 3950/92 preclude a 
milk producer who has obtained a 
reference quantity from being required, 
at the risk of losing his status as a 
producer, to produce that quantity in 
its totality, or even merely in part, in 
the production units which he was 
operating at the time when that quan­
tity was allocated. On the contrary, a 
producer is free to produce the refer­
ence quantity allocated to him by a 
Member State in the place of produc­
tion of his choice where that is situated 
within the territory of that state, 
whether he is the owner or lessee of 
the production facilities. 
In regard to the specific case of the 
Federal Republic of Germany, it should 
be noted that Article 9(c) and (d) of 
Regulation No 3950/92, read with the 
table in Article 3(2) thereof, must be 
interpreted as meaning that a milk 
producer established within the terri­
tory of the former German Democratic 
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AGRARGENOSSENSCHAFT ALKERSLEBEN 
Republic is free to produce the refer­
ence quantity allocated to him in the 
place of production of his choice, 
provided that it is situated within that 
territory. 
(see paras 30-33, 38, operative part 1) 
2. The specific regime provisionally pro­
vided for in the case of the former 
German Democratic Republic in regard 
to the additional milk levy is applicable 
to the whole of its territory, as delin­
eated on the date of reunification of 
Germany. Accordingly, the subsequent 
incorporation of a part of that territory 
within a pre-existing land of the Fed­
eral Republic of Germany cannot 
prejudice the possibility afforded to a 
producer established in the former 
German Democratic Republic to 
transfer his milk production to that 
area provided that the quantities of 
milk thus produced are included in the 
total guaranteed quantity for the 
former German Democratic Republic. 
(see paras 54-55, operative part 2) 
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