Judgment of the Court (Third Chamber) of 27 January 1994. - Bernard Le Nan v Coopérative laitière de Ploudaniel. - Reference for a preliminary ruling: Cour d'appel de Rennes - France. - Additional levy on milk - Transfer of a holding during the reference year - Condition for transfer of the reference quantity - Conditions for taking into account a different reference year. - Case C-189/92.



European Court reports 1994 Page I-00261



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

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1. Agriculture - Common organization of the markets - Milk and milk products - Additional levy on milk - Allocation of reference quantities exempt from the levy - Owner of a holding acquired during the reference year who resumed milk production at the time of entry into force of the levy scheme - Grant of reference quantity corresponding to the milk production of the previous farmer during the reference year - Condition - Use by the Member State concerned of the power to allocate a reference quantity to the new owners in the event of the transfer of all or part of the holding by sale, lease or inheritance

(Council Regulation No 857/84, Art. 7(1), as amended by Regulation No 590/85; Commission Regulation No 1371/84, Art. 5(3))

2. Agriculture - Common organization of the markets - Milk and milk products - Additional levy on milk - Determination of reference quantities exempt from levy - Owner and new producer having commenced his deliveries of milk on the date of the entry into force of the levy scheme - Calculation of the reference quantity on the basis of the deliveries of the previous farmer during the part of the reference year which preceded his ceasing activities - Taking into account of a different reference year - Excluded

(Council Regulation No 857/84, Arts 3, 3a, 4 and 4a; Commission Regulation No 1371/84, Art. 3)

Summary

1. Under the additional milk levy scheme introduced by Article 5c of Regulation No 804/68, as amended by Regulation No 856/84, an owner who during the reference year acquired the whole or part of a holding by sale, lease or inheritance and who resumed milk production at the time when that scheme entered into force, may receive a reference quantity in respect of the quantity of milk produced by the previous farmer in the course of part of the reference year where the Member State concerned, in the exercise of the power conferred by Article 7(1) of Regulation No 857/84 adopting general rules for the application of the said levy, as amended by Regulation No 590/85 and subparagraph 3 of Article 5 of Regulation No 1371/84 laying down detailed rules for the application of the levy, has decided to allocate a reference quantity to producers who find themselves in such circumstances.

2. Articles 3, 3a, 4 and 4a of Regulation No 857/84, as amended, and Article 3 of Regulation No 1371/84 contain an exhaustive list of the special situations in which reference quantities or individual quantities may be allocated and set out precise rules concerning the determination of those quantities. Since no provision of the regulations makes it possible for an owner and new producer who commenced his milk deliveries on the date of entry into force of the additional levy scheme, and whose reference quantity is calculated on the basis of the deliveries made by the previous farmer in the course of only part of the reference year before he ceased his activities, to have account taken, as a result of that fact, of a reference year different from that chosen by the Member State concerned, such taking into account is excluded, even where the deliveries during the reference year are not representative of the production capacity of the holding during that year.

Parties

In Case C-189/92,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Cour d' Appel (Court of Appeal), Rennes (France), for a preliminary ruling in the proceedings pending before that court between

Bernard Le Nan

and

Coopérative Laitière de Ploudaniel,

on the interpretation of certain provisions of Council Regulation (EEC) No 857/84 of 31 March 1984 adopting general rules for the application of the levy referred to in Article 5c of Council Regulation (EEC) No 804/68 in the milk and milk products sector (Official Journal 1984 L 90, p. 13), as amended and supplemented by Council Regulation (EEC) No 590/85 of 26 February 1985 (Official Journal 1985 L 68, p. 1), and Commission Regulation (EEC) No 1371/84 of 16 May 1984 laying down detailed rules for the application of the additional levy referred to in Article 5c of Regulation (EEC) No 804/68 (Official Journal 1984 L 132, p. 11),

THE COURT (Third Chamber),

composed of: J.C. Moitinho de Almeida, President of the Chamber, F. Grévisse and M. Zuleeg (Judge-Rapporteur), Judges,

Advocate General: G. Tesauro,

Registrar: J.-G. Giraud,

after considering the written observations submitted on behalf of:

- Bernard Le Nan, by Christine Hilaire, of the Paris Bar,

- Coopérative Laitière de Ploudaniel, by Jean-Pierre Cuiec, of the Brest Bar,

- the French Government, by Philippe Pouzoulet, Sous-Directeur, Direction des Affaires Juridiques, Ministère des Affaires Etrangères, and Jean-Louis Falconi, Secrétaire des Affaires Etrangères in that ministry, acting as Agents,

- the Commission of the European Communities, by Gérard Rozet, Legal Adviser, acting as Agent,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 26 May 1993,

gives the following

Judgment

Grounds

1 By judgment of 28 April 1992, which was received at the Court Registry on 12 May 1992, the Cour d' Appel, Rennes (France), referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation of certain provisions of Council Regulation (EEC) No 857/84 of 31 March 1984 adopting general rules for the application of the levy referred to in Article 5c of Regulation (EEC) No 804/68 in the milk and milk products sector (Official Journal 1984 L 90, p. 13), as amended and supplemented by Council Regulation (EEC) No 590/85 of 26 February 1985 (Official Journal 1985 L 68, p. 1) and Commission Regulation (EEC) No 1371/84 of 16 May 1984 laying down detailed rules for the application of the additional levy referred to in Article 5c of Regulation (EEC) No 804/68 (Official Journal 1984 L 132, p. 11).

2 Those questions were raised in proceedings between Bernard Le Nan, appellant, and Coopérative Laitière de Ploudaniel, respondent, concerning the allocation of a reference quantity under the additional levy scheme for milk.

3 Mr Le Nan applied for a reference quantity after buying an agricultural holding of around 30 hectares in October 1983. The holding had been used for milk production until the end of the first half of 1983, during which the previous lessee had produced 140 612 litres of milk, before ceasing milk production on the expiry of his lease.

4 With his father, François Le Nan, the appellant in the main proceedings established GAEC de Messioual, a joint agricultural holding, to which the father and son each contributed their land. The joint holding was established on 1 April 1984.

5 Coopérative Laitière de Ploudaniel allocated to GAEC de Messioual only the reference quantities due to François Le Nan. In 1985-86 they proved insufficient. Bernard Le Nan then asked the Coopérative to add to GAEC Messioual' s reference quantities those which he considered himself entitled to claim in respect of the 30 hectares of land purchased in October 1983. The Coopérative refused, whereupon Mr Le Nan instituted proceedings before the Tribunal Administratif, Rennes, then the Tribunal de Grande Instance, Brest. The latter found against him on the ground that he was unable to prove the continuity of deliveries after the lessee ceased operations in the middle of 1983. Mr Le Nan appealed against that decision.

6 Considering that, in the absence of relevant case-law, it needed guidance for its decision, the Cour d' Appel, Rennes, before which the appeal was brought, stayed the proceedings pending a preliminary ruling from the Court of Justice under Article 177 of the EEC Treaty on the following questions:

"May a dairy refuse [to grant a reference quantity] to a young farmer who took over a farm in 1983 on which a certain quantity of milk had been produced and delivered during that year where the farmer in question resumed milk deliveries only as from 1 April 1984, on the pretext that deliveries were temporarily suspended owing to the change in producer?

If not, what reference quantity should the dairy grant to the new producer: the reference quantity calculated on the basis of deliveries made in 1982 or the reference quantity calculated on the basis of the first six months of 1983?"

7 It should be borne in mind that under the second subparagraph of Article 5c(1) of Council Regulation (EEC) No 804/68 of 27 June 1968 on the common organization of the market in milk and milk products (Official Journal, English Special Edition 1968 (I), p. 176), as amended by Council Regulation (EEC) No 856/84 of 31 March 1984 (Official Journal 1984 L 90, p. 10), the levy scheme is to be applied in each region of the territory of the Member States in accordance with Formula A (producers formula) or Formula B (buyers formula) and that France adopted the latter formula and chose 1983 as its reference year.

The first question

8 By its first question, the Cour d' Appel, Rennes, essentially asks whether, under the additional levy scheme introduced by Article 5c of Regulation No 804/68, as amended by Regulation No 856/84, the owner of a holding acquired in the course of the reference year, who resumed production at the precise time when the scheme came into operation, is entitled to a reference quantity in respect of the quantity of milk produced by the previous farmer during part of the reference year.

9 It appears from the documents before the Court that that question is not concerned with the possible allocation of a specific reference quantity to a young farmer under Article 3(2) of Regulation No 857/84. It likewise has no connection with the allocation of any quantity on the basis of Article 6(2) of Regulation No 1371/84 to persons liable to the levy who commenced their activities after the beginning of the reference period. The question can thus relate only to the transfer of entitlement to a reference quantity calculated on the basis of the previous farmer' s milk production in the course of part of the reference year.

10 Under Article 7(1) of Council Regulation No 857/84, as amended by Regulation No 590/85, "where a holding is sold, leased or transferred by inheritance, all or part of the corresponding reference quantity shall be transferred to the purchaser, tenant or heir according to procedures to be determined".

11 Article 5 of Commission Regulation No 1371/84 laid down that procedure. According to subparagraph 1 of Article 5, "where an entire holding is sold, leased or transferred by inheritance, the corresponding reference quantity shall be transferred in full to the producer who takes over the holding". Subparagraph 2 of Article 5 lays down the rules for the apportionment of that reference quantity where only part of the holding is transferred.

12 As is apparent from several judgments of the Court (see those in Case 5/88 Wachauf v Bundesamt fuer Ernaehrung und Forstwirtschaft [1989] ECR 2609, Case C-177/90 Kuehn v Landwirtschaftskammer Weser-Ems [1992] ECR I-35 and Case C-81/91 Twijnstra v Minister van Landbouw, Natuurbeheer en Visserij [1993] ECR I-2455, paragraph 25), those provisions establish the principle that the reference quantity is transferred with the land that gave rise to its allocation.

13 However, as is evident from their very wording, they cover only the case where a reference quantity has already been allocated to a person, that is to say the case where a transfer of the holding has occurred after the entry into force of the additional levy scheme (judgment in Kuehn, cited above, paragraph 22).

14 With respect to transfers of land occurring, as in the present case, in the course of the reference year, that is to say before the entry into force of the additional levy scheme for milk, the second sentence of subparagraph 3 of Article 5 of Regulation No 1371/84 provides "Member States may apply the provisions of subparagraphs 1 and 2 in respect of transfers taking place during and after the reference period". It thus authorizes the Member States to link the transfer of a reference quantity to the transfer of a holding, even where the latter transfer occurred during or after the reference period. The Court stated in that regard (judgment in Kuehn, paragraph 24) that consideration and comparison of all the above provisions show that transfers of holdings occurring before the entry into force of the additional levy scheme give rise to the transfer of the corresponding reference quantities only where the Member State concerned has provided for this in exercise of the power given to it in the second sentence of subparagraph 3 of Article 5 of Regulation No 1371/84.

15 However, it must be pointed out that that power, according to the very terms of the provision, is limited to transfers of the kind referred to in subparagraphs 2 and 3 of the same article, that is to say transfers of entire holdings or parts of them by sale, lease or inheritance. It is only to that extent that milk deliveries made during the reference year by the previous farmer can be taken into account in determining the reference quantity allocated to the new owner.

16 It must be emphasized that it is for the national courts, when called on to give rulings on provisions of national law, to verify whether a purchaser in Mr Le Nan' s situation may claim a reference quantity.

17 It must therefore be stated in reply to the first question that, under the additional levy scheme introduced by Article 5c of Regulation No 804/68, as amended by Regulation No 856/84, the owner of a holding acquired in the course of the reference year, who has resumed milk production at the time when that scheme entered into force, may receive a reference quantity in respect of the quantity of milk produced by the previous farmer in the course of part of the reference year if the Member State concerned, in exercise of the power conferred by Article 7(1) of Regulation No 857/84, as amended by Regulation No 590/85, and the second sentence of subparagraph 3 of Article 5 of Regulation No 1371/84, has decided to allocate a reference quantity to producers who find themselves in such circumstances.

The second question

18 By its second question, the national court asks whether an owner and new producer, who commenced his milk deliveries on the date of entry into force of the additional levy scheme and whose reference quantity is calculated on the basis of the deliveries of the previous farmer in the course of only part of that year, is entitled to have a different reference year taken into account, pursuant to Regulations Nos 857/84 and 1371/84.

19 It must be borne in mind at the outset that the reference quantity allocated to each producer under Formula B of the additional levy scheme is, in principle, equal to the quantity of milk or milk equivalent delivered by the producer or bought by a purchaser during the reference year chosen by the Member State within the period 1981 to 1983, multiplied by a percentage which is determined so as to ensure that the guaranteed quantity is not exceeded. Articles 3, 3a, 4 and 4a of Regulation No 857/84, as amended, and Article 3 of Regulation No 1371/84, enable the Member States to take account of certain special situations when fixing the reference quantities and to allocate specific or additional reference quantities.

20 As the Advocate General has pointed out, it follows from the judgment in Case 113/88 Leukhardt v Hauptzollamt Reutlingen [1989] ECR 1991, that there is no possibility of taking into consideration, because of a change in management, a reference year other than the one chosen.

21 The Court held in that judgment (paragraph 13) that the structure and purpose of the regulations concerned indicate that they contain an exhaustive list of the situations in which reference quantities or individual quantities may be granted and set out precise rules concerning the determination of those quantities. Since no provision of the regulations makes it possible for producers in circumstances like those at issue in the main proceedings to have account taken, as a result of that fact, of a reference year different from that chosen by the Member State concerned, such a possibility must be regarded as excluded, even where the persons concerned do not prove a level of deliveries which is representative of the production capacity of the holding during the reference year.

22 For those reasons it must be stated in reply to the second question that an owner and new producer who commenced his milk deliveries on the date of entry into force of the additional levy scheme, and whose reference quantity is calculated on the basis of the deliveries of the previous farmer in the course of only part of that year, is not entitled to have a different reference year taken into account under Regulations Nos 857/84 and 1371/84.

Decision on costs

Costs

23 The costs incurred by the French Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

Operative part

On those grounds,

THE COURT (Third Chamber),

in answer to the questions referred to it by the Cour d' Appel, Rennes (France) by judgment of 28 April 1992, hereby rules:

1. Under the additional levy scheme introduced by Article 5c of Council Regulation (EEC) No 804/68 of 27 June 1968 on the common organization of the market in milk and milk products, as amended by Council Regulation (EEC) No 856/84, the owner of a holding acquired in the course of the reference year, who resumed milk production at the time when that scheme entered into force, may receive a reference quantity in respect of the quantity of milk produced by the previous farmer in the course of part of the reference year where the Member State concerned, in exercise of the power conferred by Article 7(1) of Council Regulation (EEC) No 857/84 of 31 March 1984 adopting general rules for the application of the levy referred to in Article 5c of Council Regulation (EEC) No 804/68 in the milk and milk products sector, as amended by Regulation No 590/85 of 26 February 1985, and the second sentence of subparagraph 3 of Article 5 of Commission Regulation (EEC) No 1371/84 of 16 May 1984 laying down detailed rules for the application of the levy referred to in Article 5c of Council Regulation (EEC) No 804/68, has decided to allocate a reference quantity to producers who find themselves in such circumstances;

2. An owner and new producer who commenced his milk deliveries on the date of entry into force of the additional levy scheme, and whose reference quantity is calculated on the basis of the deliveries of the previous farmer in the course of only part of that year, is not entitled to have a different reference year taken into account under Regulations Nos 857/84 and 1371/84.