Case C-459/02

Willy Gerekens

and

Association agricole pour la promotion de la commercialisation laitière Procola

v

State of the Grand Duchy of Luxembourg

(Reference for a preliminary ruling from the Cour de cassation (Luxembourg))

(Reference for a preliminary ruling – Milk – Additional levy in the milk and milk products sector – National legislation – Levy fixed retroactively – General principles of legal certainty and non-retroactivity)

Summary of the Judgment

1. Agriculture – Common organisation of the markets – Milk and milk products – Additional levy on milk – National rules replacing rules held by the Court of Justice to be discriminatory – Retroactive application to production under the abolished scheme – Breach of the principles of legal certainty and non-retroactivity – None

(Council Regulations Nos 856/84 and 857/84)

2. Agriculture – Common agricultural policy – Objectives – Rational development of milk production and guarantee of a fair income for producers – Introduction of an additional levy on milk – Lawfulness

(Council Regulations Nos 856/84 and 857/84)

1. The general principles of Community law of legal certainty and non-retroactivity do not mean that, for the application of Community rules establishing production quotas of the type introduced by Regulations No 856/84, amending Regulation No 804/68 on the common organisation of the market in milk and milk products and No 857/84 adopting general rules for the application of the levy referred to in Article 5c of Regulation No 804/68, a Member State is precluded from adopting, in place of initial rules held by the Court of Justice to be discriminatory, new rules applying retroactively to production in excess of the production quotas introduced after the entry into force of those regulations, but in accordance with the national rules which have been replaced.

On the one hand, the aim pursued by such national rules requires that, for the purpose of implementing the arrangements for the additional levy on milk properly and effectively, the arrangements be applied retroactively. On the other hand, traders cannot expect that producers will not be subject to an additional levy on excess quantities of milk produced in excess of the quotas allocated to those producers.

(see paras 27, 32-33, 38, operative part)

2. The additional levy on milk provided for in Regulations No 856/84 amending Regulation No 804/68 on the common organisation of the market in milk and milk products and No 857/84 adopting general rules for the application of the levy referred to in Article 5c of Regulation No 804/68 is not to be regarded as a penalty analogous to those provided for under Articles 3 and 4 of Regulation No 536/93 laying down detailed rules on the application of the additional levy on milk and milk products.

In effect, it amounts to a restriction arising from market policy rules or structural policy, since it is to be considered to be intervention to stabilise agricultural markets and is to be used to finance expenditure in the milk sector. It follows that, apart from its obvious aim of requiring milk producers to observe the reference quantities allocated to them, the additional levy has an economic objective too, in that it is intended to bring to the Community the funds necessary for disposal of milk produced by producers in excess of their quotas.

(see paras 36-37)