Judgment — ECLI:EU:T:1999:2
Date: 1999-01-13
Language of the case: German
Court formation: First Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Milk products;Non-contractual liability
Concepts: Basis of liability
Procedure: Action for damages - unfounded
Origin: Germany

summary 
account of the pleas raised. 
30 In the present case, proof of the assignment to the partnership of the first appli­
cant's rights to compensation is provided by the agreement entered into between 
the two parties on 27 June 1996 and annexed to the file by the applicants at the 
stage of the reply. It is clear from that document that the first applicant assigned to 
the partnership the rights to compensation which he held prior to its creation. 
31 In regard to the time-bar, the Court considers that this is a plea which is likely to 
affect the scope of the right to compensation relied on by the applicants. It is 
therefore appropriate to examine first of all whether the conditions under which 
the Community may be held liable under Article 215 of the Treaty are satisfied. 
32 It follows from the foregoing that the application is admissible. 
Liability of the Community 
Arguments of the parties 
33 The applicants claim to have suffered loss owing to the fact that Regulation N o 
857/84, declared invalid by the Court, did not grant them a reference quantity. On 
the basis of the judgment in Mulder II, they maintain, the Community institutions 
are liable in damages for that loss. 
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JUDGMENT OF 13. 1. 1999 — CASE T-1/96 
34 The period during which the applicants were prevented from producing extended, 
it is claimed, until the time when a provisional reference quantity was granted to 
them in 1995 following the abovementioned judgment in Herbrink. However, with 
effect from adoption of Regulation N o 1639/91 which granted a reference quantity 
to producers in their position, responsibility for withholding that quantity rests 
with the national authorities. Accordingly, the period in respect of which compen­
sation is payable in the present case extends only until 13 June 1991, the date on 
which Regulation N o 1639/91 entered into force. 
35 In reply to the defendants' arguments to the effect that there is no causal link 
between the loss and the Community act, the applicants assert that, in the Spagl 
and Pastätter judgments cited above, the Court held that producers who had 
signed a non-marketing undertaking could not be required to resume milk produc­
tion immediately upon the expiry of that undertaking. Consequently, every pro­
ducer whose non-marketing period expired in 1983 ought to have been given time 
to modernise his plant and stock before resuming production. 
36 The applicants state that they were intending to resume milk production after 
modernising their stock, which they were prevented from doing by Regulation N o 
857/84. In any event, it follows, in their view, from the judgment of the Court in 
Case C-85/90 Dowling [1992] ECR I-5305 that producers envisaging a resumption 
of milk production ought to have had at least the period from 1 January 1983 until 
the entry into force in 1984 of Regulation N o 857/84 in which to do so. 
37 As regards their status as producers, which was called in question by the defen­
dants, the applicants state that a definitive reference quantity was granted to them 
by the national authorities, thereby recognising them as producers. The Commu­
nity institutions are bound by that recognition. 
38 The defendants deny that the Community has incurred liability to the applicants. 
The first applicant decided voluntarily not to resume production on the expiry of 
his non-marketing undertaking in 1983. Accordingly, since he decided to abandon 
production for reasons which had nothing to do with the undertaking or its 
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BÖCKER-LENSING AND SCHULZE-BEIERING v COUNCIL AND COMMISSION 
consequences, the principle of the protection of legitimate expectations cannot be 
alleged to have been breached. The loss of income pleaded is therefore not causally 
linked in any way to the Community's legislative activity. 
Findings of the Court 
39 Under the second paragraph of Article 215 of the Treaty, the Community can 
incur non-contractual liability for damage caused by the institutions only if a set of 
conditions relating to the illegality of the conduct complained of, the occurrence of 
actual damage and the existence of a causal link between the unlawful conduct and 
the harm alleged are fulfilled (Joined Cases 197/80 to 200/80, 243/80, 245/80 and 
247/80 Ludwigshafener Walzmühle and Others v Council and Commission [1981] 
ECR 3211, paragraph 18, and Joined Cases T-481/93 and T-484/93 Exporteurs in 
Levende Varkens and Others v Commission [1995] ECR II-2941, paragraph 80). 
40 As regards the position of milk producers who have signed a non-marketing 
undertaking, the Community is liable to every producer who has suffered a repa­
rable loss owing to the fact that he was prevented from delivering milk by Regula­
tion N o 857/84 (Mulder II, paragraph 22). 
41 That liability is based on breach of the principle of protection of the legitimate 
expectation which a producer who has been encouraged by a Community measure 
to suspend marketing of milk for a limited period in the general interest and 
against payment of a premium is entitled to have in the limited scope of his non-
marketing undertaking (see Mulder I, paragraph 24, and Von Deetzen, paragraph 
13). On the other hand, the principle of protection of legitimate expectations does 
not preclude, in the case of a scheme such as that concerning the additional levy, 
the imposition of restrictions on a producer by reason of the fact that he has not 
marketed milk during a given period prior to the entry into force of that scheme, 
for reasons which have nothing to do with his non-marketing undertaking. 
42 The applicants plead that they were unlawfully deprived of a reference quantity 
between 2 April 1984 and 13 June 1991 as a result of the application of Regulation 
N o 857/84. That regulation, it is claimed, frustrated the first applicant's aspiration 
to resume milk production at the end of his non-marketing period. 
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JUDGMENT OF 13. 1. 1999 — CASE T-1/96 
43 In the circumstances of the case, it must first be examined whether the allegations 
made by the applicants in support of the right to compensation are proven, in par­
ticular, in regard to the existence of unlawful conduct on the part of the institu­
tions and the occurrence of the alleged loss. 
44 The first applicant did not resume milk production at the end of his non-
marketing period in March 1983 nor did he evince the intention of doing so until 
several years later. As the Commission rightly points out, the experts' report pro­
duced by the applicants shows that installations were properly maintained 
throughout the period of the undertaking's validity. The applicant could therefore 
have resumed production in 1983 and thus been allocated a reference quantity on 
the entry into force of the additional levy in 1984. 
45 Moreover, the reasons why milk production was not resumed on the expiry of the 
non-marketing undertaking had nothing to do with the fact that an undertaking 
had been entered into under Regulation N o 1078/77. As counsel for the applicants 
stated at the hearing, the first applicant wanted time in which to build up the capi­
tal needed for modernisation of the installations. 
46 Unlike the applicants in Stagi and Pastätter, cited above, the first applicant has not 
in this case shown that he took steps which would have borne out 'his intention to 
resume production at the end of the non-marketing period. 
47 Having voluntarily decided not to resume milk production, he cannot claim to 
have a legitimate expectation in the possibility of resuming production at some 
unspecified future point in time. Indeed, in the sphere of the common organisa­
tions of the market, whose purpose involves constant adjustments to meet changes 
in the economic situation, economic agents cannot legitimately expect that they 
will not be subject to restrictions arising out of future rules of market or structural 
policy (see, to that effect, Joined Cases 424/85 and 425/85 Frico [1987] ECR 2755, 
paragraph 33; Mulder I, paragraph 23; and Von Deetzen, cited above, paragraph 
12). 
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BÖCKER-LENSING AND SCHULZE-BEIERING v COUNCIL AND COMMISSION 
48 In those circumstances, the first applicant was not a producer to whom Regulation 
N o 764/89 of 20 March 1989 and Regulation N o 1639/91 applied, since those leg­
islative acts were merely intended to bring to an end the refusal to allocate a refer­
ence quantity to producers who had been prevented from resuming marketing on 
the expiry of their undertaking. 
49 It follows from the foregoing that the Community cannot be held liable to the 
applicants as a result of the application of Regulation N o 857/84. 
50 The fact that the applicants obtained a reference quantity from the national 
authorities on 10 April 1995 in no way alters that conclusion. Since the conduct of 
national authorities is not binding on the Community, the allocation of a reference 
quantity does not prejudge the question whether there is a right to compensation 
under the second paragraph of Article 215 of the Treaty. 
51 Furthermore, the applicants cannot claim to have suffered loss during the period 
from 2 April 1984 to 28 June 1989 on the ground that that they were prevented 
from resuming milk production. Indeed, the first applicant did not seek the alloca­
tion of a reference quantity until 28 June 1989. 
52 Thus, in the absence of any unlawful act on the part of the defendants giving rise 
to the loss claimed, the Community cannot be held liable. Accordingly, it is not 
necessary to examine whether the other preconditions of such liability are met. 
53 Nor, in those circumstances, is there any need to examine the question whether the 
rights in question are barred by lapse of time. 
54 It follows from all the foregoing that the action must be dismissed. 
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JUDGMENT OF 13. 1. 1999 — CASE T-1/96 
Costs 
55 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be 
ordered to pay the costs if they have been applied for in the successful party's 
pleadings. Since the applicants have been unsuccessful, they must be ordered to 
pay the costs, in accordance with the form of order sought by the Council and the 
Commission. 
On those grounds, 
T H E C O U R T O F FIRST INSTANCE (First Chamber) 
hereby: 
1. Dismisses the action; 
2. Orders the applicants to pay the costs. 
Vesterdorf Moura Ramos Mengozzi 
Delivered in open court in Luxembourg on 13 January 1999. 
H. Jung 
Registrar 
B. Vesterdorf 
President 
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