11.

The judgment in Erpelding ( 12 ) is concerned with a milk producer whose herd was repeatedly struck by disease between 1980 and 1985. In response to a question from the Luxembourg Conseil d'État (State Council) in which it asked whether account could not be taken ‘on equitable grounds and to avoid discrimination between producers’ of production in a year prior to 1981 or of a notional production, the Court held that no such account could be taken. In view of the particular relevance of the Court's reasoning to the instant case, I would quote a relative large number of paragraphs from this judgment. In the judgment, the Court placed Regulation No 857/84 in the context of the structural milk surpluses and held as follows: ‘It should be noted that the structure and the purpose of the rules concerned indicate that they contain an exhaustive list of the situations in which reference quantities or individual quantities may be granted and set out predse rules concerning the determination of those quantities. Since none of those provisions makes it possible for producers to obtain reference to milk deliveries made by them outside the 1981 to 1983 period it must be held that such an option is excluded, even in cases where the persons concerned had no representative production throughout the period’ (paragraph 18, my emphasis). ‘That interpretation cannot be considered to be incompatible with the requirements flowing from the concept of force majeure Although the Court has consistently held that force majeure may excuse an operator from certain legal consequences which, under the applicable rules, would normally flow from the nonoccurrence of a fact or the noncompliance with an obligation it can never create for the benefit of that operator a right not provided for in the relevant rules’ (paragraph 20). In addition, the Court also rejected Erpelding's argument that the provision in question was invalid because it conflicted with the aims of the common agricultural policy, the principal of equal treatment and the principal of proportionality. In this connection, the Court held, inter alia: ‘As for the complaint that the principle of proportionality has been breached, the Court has consistently held that when a situation necessitates the evaluation of a complex economic situation, as is the case concerning the common agricultural policy, the Community legislature enjoys a wide discretion as to the nature and scope of the measures to be taken. The particular circumstances mentioned in the judgment making the reference do not make it possible to hold that the bounds of that discretion have been exceeded in this case’ (paragraph 27). ‘By allowing producers whose milk production has significantly declined because of an exceptional event during the reference year selected by the Member State concerned to choose another reference year, but limiting that choice to years in the 1981 to 1983 period, the Community legislature has duly taken into consideration the special position of those operators, but at the same time has complied with the imperative requirements of legal certainty and the effectiveness of the additional levy system. Furthermore, it has allowed Member States, under certain conditions, to reallocate nonutilized reference quantities to producers who arc in a special position. ( 13 ) It cannot, therefore, be accused of having imposed on operators burdens disproportionate to the objectives pursued by failing to take into account every conceivable circumstance ...’ (paragraph 28, my emphasis). ‘In this case it appears that the difference in treatment of which Mr Erpclding is complaining stems from the fact that by not allowing producers whose milk production has been significantly reduced throughout the 1981 to 1983 period to obtain an individual quantity based on a representative production, the rules affect that category of producers adversely in comparison with those who are able to rely on a representative production. However, such an effect is justified by the need to limit the number of years which may be taken as reference years, in the interests of both legal certainty and the effectiveness of the additional levy system. The resulting difference in treatment is therefore objectively justified and consequently may not be regarded as discriminatory within the definition of that concept as established by the Court’ (paragraph 30, my emphasis).