Opinion of Mr Advocate General Darmon delivered on 25 February 1988. - Kingdom of Spain v Council of the European Communities. - Common organization of the market in the milk and milk products sector - Declaration that Council Regulations Nºs 1335/86 and 1343/86 are void - Reduction of the total guaranteed quantities. - Case 203/86.



European Court reports 1988 Page 04563



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . The Kingdom of Spain seeks a declaration that two Council Regulations of 6 May 1986 are void : Regulation No 1335/86 ( 1 ) amending Regulation ( EEC ) No 804/68 on the common organization of the market in milk and milk products ( 2 ) and Regulation No 1343/86 ( 3 ) amending Regulation ( EEC ) No 857/84 adopting general rules for the application of the levy referred to in Article 5 c of Regulation ( EEC ) No 804/68 in the milk and milk products sector . ( 4 ) Some of the applicant State' s complaints are directed against both these regulations, while others concern only one of them .

2 . The contested regulations were adopted in connection with efforts undertaken by the Community institutions to slow down the increase in the surpluses in milk and milk products . They provide, inter alia, for a 3% reduction of the total guaranteed quantities, to take effect uniformly throughout the Community . For Spain, these regulations mean a reduction of the total quantities for deliveries to dairies and for direct sales to consumers, as provided for in the Act of Accession which amended, on this point, Regulations Nos 856/84 ( 5 ) and 857/84 .

3 . The grounds pleaded by the applicant State for the annulment of these regulations may be divided into the following two categories of infringement : the infringement of the Treaty, or of any rule of law relating to its application, and the infringement of essential procedural requirements .

I - Submissions directed against both regulations

4 . The submission based on infringement of the Treaty or of any rule of law relating to its application comprises three parts :

( i ) infringement of Article 39 ( 1 ) ( b ) according to which one of the objectives of the common agricultural policy is to ensure a fair standard of living for the agricultural community;

( ii ) breach of the principle of non-discrimination as laid down generally in Article 7 of the Treaty and repeated, with reference to the common agricultural policy, in the second subparagraph of Article 40 ( 3 ). Under this provision, the common organization of the market "shall be limited to pursuit of the objectives set out in Article 39 and shall exclude any discrimination between producers or consumers within the Community";

( iii ) breach of the principle of legitimate expectations .

5 . With regard to the alleged infringement of Article 39, the reduction of the total quantities effected under the contested regulations was decided in accordance with the procedure laid down by the Council Regulations of 31 March 1984, Nos 856/84 and 857/84, whose lawfulness has not been challenged by the Kingdom of Spain . In addition, it has not been established that the effects on the milk production in Spain of the contested regulations must necessarily be those described by the applicant State . In order to determine the lawfulness of these regulations in relation to Article 39 of the Treaty :

( i)regard must be had, in the first place, to all the relevant Community legislation . As the Council and Commission stress, the possible effects of the reduction of milk production must be considered in the light, in particular, of Council Regulation No 1336/86 of 6 May 1986 fixing compensation for the definitive discontinuation of milk production; ( 6 )

( ii ) secondly, it is necessary to draw attention to the fact that the reduction imposed by the regulations in question takes effect progressively over a period of two years, and a period does not begin to run until a year after their publication .

In these circumstances, it cannot be said that the regulations at issue disregard the fundamental objective of ensuring a fair standard of living for the agricultural community .

6 . As regards the breach of the principle of non-discrimination, the applicant State stresses the specific situation of the Spanish milk sector and submits that, by not taking this into account, the regulations in question, which impose a uniform reduction of total quantities throughout the Community, are unlawful . In other words, a uniform reduction applying to all milk producers in the Community is said to constitute a breach of the principle of equality and of non-discrimination inasmuch as, by not taking into consideration the specific nature of the Spanish milk sector, different situations are treated alike .

7 . The specific nature of the aforesaid sector, as described and relied on by the applicant State but contested by the Council, appears in any event immaterial in relation to the lawfulness of the contested regulations . In this respect mention should be made of the Court' s decisions, cited by the Council, in which it is held that measures taken by the Community institutions in the context of the common organization of the markets cannot make any distinction between the territories of the Member States . ( 7 ) In addition, as the Council explains, the structural differences between the different regions of the Community were taken into consideration when the regulations introducing the additional levy were adopted and the equilibrium of this system was maintained when they were amended by the Act of Accession .

8 . As far as the alleged disregard of the principle of legitimate expectations is concerned, it is an established rule that economic operators may not properly rely on such a principle to claim a right to the maintenance of existing Community legislation . Moreover, Article 8 of the Act of Accession, which will be referred to below, rules out the possibility that the operators concerned may have a legitimate expectation in the continued application, for any period whatsoever, of the quantities in force at the time of accession . Finally, the principle of legitimate expectations applies, according to the Court' s case-law, only to individual situations and cannot be relied upon in circumstances which are, by definition, general in character .

9 . By the submission alleging infringement of essential procedural requirements, the Kingdom of Spain questions the lawfulness of the contested regulations on the ground that they were adopted notwithstanding its own negative vote . In substance, the applicant government claims that the total quantities provided for in the Act of Accession cannot, because of their contractual nature, be altered by a unilateral decision taken without the consent of the party concerned .

10 . However, this argument disregards the effect of Article 8 of the Act of Accession according to which "provisions of this Act, the purpose or effect of which is to repeal or amend acts adopted by the institutions of the Communities otherwise than as a transitional measure, shall have the same status in law as the provisions which they repeal or amend and shall be subject to the same rules as those provisions ." Since the total quantities applicable to Spain and laid down in the Act of Accession were fixed by the amendment of Community Regulations Nos 804/68 and 857/84, they could be further altered, on the basis of the abovementioned provision, through the Community legislative procedure, in this case by a vote requiring a qualified majority . The Spanish Government' s vote when the contested regulations were adopted has therefore no effect on their lawfulness . Since the parties to the negotiations for the accession of the Kingdom of Spain to the Communities were in agreement regarding the inclusion of Article 8 in the Act of Accession, the Council cannot be criticized for using the procedure in question .

II - Submission concerning solely Regulation No 1343/86

11 . Two procedural infringements are alleged : the failure to consult the European Parliament and the lack of a sufficient statement of the reasons on which the regulation is based .

12 . The Kingdom of Spain relies on the infringement of Article 43 ( 2 ) inasmuch as the European Parliament was not consulted . However, as the Council, supported on this point by the Commission, states, Regulation No 1343/86 is an implementing regulation amending Regulation No 857/84, which itself was adopted to implement the basic Regulation No 804/68 .

13 . Regulation No 857/84 was adopted by the Council without being the subject of a consultation of the European Parliament . As the Court has held, in decisions cited by the Council, the procedure laid down in Article 43 of the Treaty does not necessarily have to be followed for the adoption of measures implementing basic regulations .

14 . Finally, as regards the failure to comply with the obligation to state the reasons on which legislation is based laid down in Article 190 of the Treaty, the applicant State' s argument to the effect that the preamble to the regulations must always refer to a provision of the Treaty cannot be accepted . Where an implementing regulation is concerned, the requirement of a statement of reasons is satisfied, in the sphere at issue here, provided that the regulation pursuant to which the contested measure was adopted is expressly referred to in the preamble . The mention by the contested regulation of Regulation No 804/68, which constitutes its legal basis, is in my view such as to make it unnecessary to refer to a specific provision of the Treaty .

15 . Consequently I consider that this application for annulment should be dismissed and the Kingdom of Spain ordered to pay the costs .

(*) Translated from the French .

( 1 ) OJ L 119, 8.5.1986, p . 19 .

( 2 ) OJ L 148, 28.6.1986, p . 13 .

( 3 ) OJ L 119, 8.5.1986, p . 34 .

( 4 ) OJ L 90, 1.4.1984, p . 13 .

( 5 ) Amending Regulation No 804/68 on the common organization of the market in milk and milk products, OJ L 90, 1.4.1984, p . 10 .

( 6 ) OJ L 119, 8.5.1986, p . 21 .

( 7 ) Inter alia, judgment of 13 July 1978 in Case 8/78 Milac (( 1978 )) ECR 1721; judgment of 13 December 1984 in Case 106/83 Sermide (( 1984 )) ECR 4209 .