Opinion of the Advocate General — ECLI:EU:C:2009:120
Date: 2009-03-03
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Milk products
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary 73. In summary, Regulation No 1788/2003 is not contrary to the objectives of the CAP, the principle of non-discrimination or the principle of proportionality. VII – Conclusion 74. In the light of the foregoing, the questions referred by the Tribunale ordinario di Padova should, in my opinion, be answered as follows: Council Regulation (EC) No 1788/2003 of 29 September 2003 establishing a levy in the milk and milk products sector is compatible with the objectives of the common agricultural policy under Article 33 EC, the principle of equal treatment under the second subparagraph of Article 34(2) EC and the principle of proportionality, even if the national reference quantities are not adjusted in the light of the relationship between milk production and demand for milk in a Member State. 1 – Original language: German. 2 – An overview can be found by Priebe, R., in Grabitz, E. and Hilf, M., Das Recht der Europäischen Union, Vol. I, Article 34, 21st Supplement, paragraph 61. 3 – OJ 2003 L 270, p. 123. 4 – With regard to this trend on the milk market, see Trotman, C., The Development of Milk Quotas in the UK, Sweet & Maxwell, 1996, Chapter 1, ‘The Creation of Surplus Europe’, pp. 1 to 17. 5 – See, for example, Council Regulation (EEC) No 1079/77 of 17 May 1977 on a co-responsibility levy and on measures for expanding the markets in milk and milk products (OJ 1997 L 131, p. 6). Further measures are described in Trotman, C., cited in footnote 4, p. 11 et seq. 6 – OJ 1984 L 90, p. 10. 7 – The Member States could also use part of their guaranteed quantity as a national reserve, through which they were to be able to adjust the reference quantities on the basis of the specific situation of certain producers. 8 – Plus 1%. 9 – OJ 1992 L 405, p. 1. 10 – Article 27 of Regulation No 1788/2003. 11 – OJ 2007 L 299, p. 1. 12 – See Article 66 et seq. of Regulation No 1234/2007. 13 – The proportion of national milk production to national demand for milk is 125% in France, 125% in Germany, around 360% in Ireland and 230% in Denmark. 14 – The questions submitted by the referring court relate solely to Regulation No 1788/2003. I will therefore restrict my comments to that regulation. However, the relevant provisions of Regulation No 3950/92 and Regulation No 1234/2007 appear to be essentially comparable to those of Regulation No 1788/2003. 15 – See recital 3 in the preamble to Regulation No 1788/2003. With regard to the predecessor Regulation No 857/84, see also Case 84/87 Erpelding [1988] ECR 2647, paragraph 26. 16 – See point 8 of this Opinion. 17 – See Case C-311/90 Hierl [1992] ECR I-2061, paragraph 10. 18 – Erpelding, cited in footnote 15, paragraph 26. 19 – Erpelding, cited in footnote 15, paragraph 26, and Joined Cases T-466/93, T-469/93, T-473/93, T-474/93 and T-477/93 O’Dwyer and Others v Council [1995] ECR II-2071, paragraph 82. 20 – Priebe, cited in footnote 2, Article 33, paragraph 2, points out that provision is not made for ambitious goals like those contained in Article 33 EC with regard to other Community policies. 21 – Hierl, cited in footnote 17, paragraph 13; Joined Cases 279/84, 280/84, 285/84 and 286/84 Rau Lebensmittelwerke and Others v Commission [1987] ECR 1069, paragraph 21; and O’Dwyer and Others v Council, cited in footnote 19, paragraph 80. 22 – Rau Lebensmittelwerke and Others v Commission, cited in footnote 21, paragraph 21, and Case 203/86 Spain v Council [1988] ECR 4563, paragraph 10. 23 – See Article 1(1) of Regulation No 1788/2003. Priebe, cited in footnote 2, Article 33, paragraph 3, rightly points out that longer-term priorities may also be set if and in so far as the economic situation so requires. 24 – See also Case 179/84 Bozzetti [1985] ECR 2301, paragraph 32, and Spain v Council, cited in footnote 22, paragraph 29. 25 – See points 41 to 43 of this Opinion. 26 – See also Spain v Council, cited in footnote 22, paragraph 25, and O’Dwyer and Others v Council, cited in footnote 19, paragraph 113. 27 – Case 138/79 Roquette Frères v Council [1980] ECR 3333, paragraph 25. 28 – In so far as the mention made by the referring court of the principle of equality in the second question should be construed as a reference to the general principle of equality, it should be pointed out that the prohibition of discrimination laid down in the second subparagraph of Article 34(2) EC is merely a specific enunciation of the general principle of equality (see Joined Cases 201/85 and 202/85 Klensch and Others [1986] ECR 3477, paragraph 9). 29 – Hierl, cited in footnote 17, paragraph 18, and Spain v Council, cited in footnote 22, paragraph 25. 30 – See point 37 of this Opinion. 31 – See in particular Joined Cases C-267/88 to C-285/88 Wuidart and Others [1990] ECR I-435, paragraph 14. 32 – Hernu, R., Principe d’égalité et principe de non-discrimination dans la jurisprudence de la Cour de justice des Communautés européennes, LGDJ, 2003, p. 357, takes the view that the situations are not similar or distinctive in themselves, but that the situation is assessed solely on the basis of the object and aim of the provision. 33 – See points 44 to 46 of this Opinion. 34 – The fact that the additional levy has serious effects for certain milk producers does not constitute discrimination within the meaning of the second subparagraph of Article 34(2) EC. This may be relevant, however, in connection with proportionality. With regard to proportionality, see points 58 to 72 of this Opinion. 35 – Case C-404/92 P X v Commission [1994] ECR I-4737, paragraph 18. 36 – Priebe, R., cited in footnote 2, Article 37, paragraph 26b. 37 – Case 265/87 Schräder HS Kraftfutter [1989] ECR 2237, paragraph 21, and O’Dwyer and Others v Council, cited in footnote 19, paragraph 107. The third paragraph of Article 5 EC is also construed in this sense, even though the requirement of reasonableness cannot be inferred directly from the wording of the provision itself (see Schima, B., in Mayer, H. (ed.), Kommentar zum EU- und EG-Vertrag, Article 5, 50th Supplement, paragraph 44). 38 – However, in a few other cases the Court has applied a stricter test criterion, for example in Case C‑118/89 Lingenfelser [1990] ECR I-2637, paragraphs 12 to 14, Case C-319/90 Pressler [1992] ECR I-203, paragraphs 12 to 17, and Case C-356/97 Molkereigenossenschaft Wiedergeltingen [2000] ECR I‑5461, paragraphs 35 and 36. 39 – See, for example, Schräder HS Kraftfutter, cited in footnote 37, paragraph 22; Case C-331/88 Fedesaand Others [1990] ECR I-4023, paragraph 13 et seq.; and O’Dwyer and Others v Council, cited in footnote 19, paragraph 107. 40 – Case C-5/06 [2008] ECR I-0000, point 65: ‘… That does not however give the Community legislature carte blanche in the agricultural sector. The Court has not excluded judicial review of the institutions’ exercise of their wide discretionary powers. If such review is to be of any value, it must be possible for the Court to intervene when, as in the present cases, the method of calculation of a production levy intended to be a means by which producers bear the cost to the Community of disposing of surplus production manifestly leads to overcharging, thereby placing a disproportionate burden on the producers.’ 41 – With regard to these misgivings, in particular from the point of view of the common law, see Jacobs, F., ‘Recent Developments in the Principle of Proportionality in European Community Law’, in: Ellis, E. (ed.), The Principle of Proportionality in the Laws of Europe, Hart, 1999, p. 1 et seq., p. 20, who does, however, point out that certain reasons for a limited judicial review of the legislature at national level relate to the organisation and historical development of the national legal orders and cannot therefore necessarily be applied at Community level. See also Schima, cited in footnote 37, paragraph 48, who observes that the Community legislature has primary responsibility for safeguarding the principle of proportionality and that the Court cannot directly substitute its own view for the view of the legislature. 42 – See also Rivers, J., ‘Proportionality and discretion in international and European law’, in Tsagourias, N. (ed.), Transnational Constitutionalism, Cambridge University Press, 2007, p. 114 et seq., and p. 120 et seq., who distinguishes in particular between ‘policy-choice discretion’ and ‘evidential discretion’. 43 – See also von Danwitz, T., ‘Der Grundsatz der Verhältnismäßigkeit im Gemeinschaftsrecht’, Europäisches Wirtschafts- und Steuerrecht, 2003, p. 396, who observes that such an approach reduces the principle of proportionality to a review of discretion. 44 – See points 35 to 38 of this Opinion. 45 – See points 39 to 47 of this Opinion. 46 – Schräder HS Kraftfutter, cited in footnote 37, paragraph 21, and O’Dwyer and Others v Council, cited in footnote 19, paragraph 107. 47 – See points 39 to 46 of this Opinion. 48 – O’Dwyer and Others v Council, cited in footnote 19, paragraph 89. 49 – See also Joined Cases C-231/00, C-303/00 and C-451/00 Cooperativa Lattepiù and Others [2004] ECR I-2869, paragraph 73, on Regulation No 3950/92.