Joined Cases C-162/01 P and C-163/01 P

Edouard Bouma and Bernard M.J.B. Beusmans

v

Council of the European Union and Commission of the European Communities

(Action for damages – Non-contractual liability – Milk – Additional levy – Reference quantity – Producers having entered into a non-marketing undertaking – SLOM 1983 producers – Failure to resume production on expiry of the undertaking)

Summary of the Judgment

1. Agriculture – Common organisation of the markets – Milk and milk products – Additional levy on milk – Allocation of reference quantities exempt from the levy – Producers who suspended their deliveries under the system of premiums for non-marketing or conversion – Allocation of a specific reference quantity – Limiting the number of beneficiaries by setting a cut-off date retrospectively by reference to the expiry of the period of non-marketing or conversion – Permissible – Choice of a date excluding producers whose undertaking expired during the reference year but before that date – Principle of protection of legitimate expectations – Breach

(Council Regulations Nos 1078/77 and 857/84, Arts 2 and 3a(1))

2. Agriculture – Common organisation of the markets – Milk and milk products – Additional levy on milk – Allocation of reference quantities exempt from the levy – Producers who suspended their deliveries under the system of premiums for non-marketing or conversion – Compensation – Conditions

(Council Regulations Nos 1078/77, 857/84 and 2187/93)

3. Non-contractual liability – Conditions – Unlawful conduct by the institutions – Milk producers deprived of reference quantities under the system of additional levies following suspension of their deliveries under the system of non-marketing premiums – Need to establish the intention to resume milk production upon expiry of the non-marketing undertaking

(Art. 288, second para., EC; Council Regulations Nos 1078/77 and 857/84)

1. With regard to the allocation of reference quantities exempt from the additional levy on milk, the Community legislature was able validly to set a cut-off date by reference to the expiry of the period of non-marketing with a view to excluding from the benefit of Article 3a of Regulation No 857/84, as amended by Regulation No 764/89, those producers who had not delivered milk during the whole or part of the reference year for reasons unconnected with the non-marketing undertaking.

It is only in respect of producers who could assert their legitimate expectation of resuming their production that a cut-off date of this type could not be set in such a way that it has the effect of excluding from the benefit of Article 3a of Regulation No 857/84 producers whose failure to deliver milk for the whole or part of the reference year derived from the fulfilment of an undertaking given under Regulation No 1078/77.

(see paras 50-51)

2. Since Regulation No 1639/91, amending Regulation No 857/84, does not stipulate the necessary conditions under which a producer who has made a non-marketing or conversion undertaking can claim compensation, and compensation under Regulation No 2187/93 remains a separate issue since the system set up by that regulation constitutes an alternative to the settlement of disputes by the courts and offers an additional means of making damage good, the conditions that must be met in order for producers to be able to claim compensation in their capacity as producers who have made a non-marketing or conversion undertaking can only stem from the interpretation which the Court has given to the rules on that subject.

(see para. 72)

3. Community liability for damage caused to certain milk producers as a consequence of the application of Regulation No 857/84, as amended by Regulation No 764/89, is subject to the condition that the producers must have clearly manifested their intention to resume milk production upon expiry of their non-marketing undertaking.

As a result, the producers concerned must manifest upon expiry of their undertaking under Regulation No 1078/77, their intention to resume milk production either by producing milk again or, at the very least, by taking steps to do so, such as making investments or repairs, or maintaining the equipment necessary for such production.

(see paras 89-90)