Case C-164/01 P: Appeal brought on 13 April 2001 by G. van den Berg against the judgment delivered on 31 January 2001 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-143/97 between, on the one hand, G. van den Berg and, on the other, the Council of the European Union and the Commission of the European Communities
Date: 2001-08-11
Institutions: Court of Justice
Subjects: General Court (EU), action for annulment (EU), dairy production, farmer, indemnification, non-marketing premium

11.8.2001

EN

Official Journal of the European Communities

C 227/7

might be manifested. It is striking to note the importance
attached by the Court of Justice to the fact that in 1989,
immediately after being granted a provisional reference
quantity, the four producers concerned resumed milk
production. That circumstance is totally disregarded in
the considerations of the Court of First Instance as
contained in the contested judgment. For the rest,
it
should be noted that, in its interim judgment in Mulder II,
the Court of Justice did not deal at all with the specific
issues concerning the SLOM 83 producers.

— The Court of First Instance incorrectly allocated the
burden of proof, or at least imposed on Mr Bouma a
burden of proof which is legally impermissible: prior to
the entry into force of Regulation No 857/84, a SLOM
producer in Mr Bouma’s situation could not assume that,
if he did not resume production before 1 April 1984, he
might forfeit, definitively and completely, his right to a
reference quantity — or to alternative compensation. The
imposition of the burden of showing ‘that he had the
intention of resuming milk production upon the expiry
of his non-marketing undertaking and that he found it
impossible to do so owing to the entry into force of
Regulation No 857/84’ necessarily means that Mr Bouma
is faced, retroactively, with the consequences of the entry
into force of that regulation.

A Community citizen in the position of Mr Bouma
cannot reasonably be expected, some 17 to 18 years after
the material time, still to have at his disposal written
evidence concerning the management of his holding
during a period in the distant past — a fortiori since in no
previous judgment of the Court of Justice or the Court of
First Instance was any relevance attached to evidence
concerning the points which the Court of First Instance
now regards as crucial.

— The Court of First Instance set out and assessed the
relevant facts in such an erroneous and biased manner
that its judgment cannot be regarded as consistent with
the obligation to provide reasons or the principle of
objectivity.

(1) OJ 1993 C 334, p. 17.
(2) Judgment of 11 December 1990 in Case C-189/89.
(3) OJ 1984 L 148, p. 13.

Appeal brought on 13 April 2001 by B.M.J.B. Beusmans
against the judgment delivered on 31 January 2001 by the
Fourth Chamber of the Court of First Instance of the
European Communuties in Case T-73/94 between, on the
one hand, B.M.J.B. Beusmans and, on the other, the
Council of the European Union and the Commission of
the European Communities

(Case C-163/01 P)

(2001/C 227/10)

European Communities in Case T-73/94 between, on the one
hand, B.M.J.B. Beusmans and, on the other, the Council of
the European Union and the Commission of the European
Communities was brought before the Court of Justice of
the European Communities on 13 April 2001 by B.M.J.M.
Beusmans, represented by E.H. Pijnacker Hordijk, advocaat,
ther other parties to the proceedings being the Council of
the European Union, represented by A.M. Colaert, and the
Commission of the European Communities, represented by
T. van Rijn.

The appellant claims that the Courts should:

— set aside the judgment delivered by the Court of First

Instance on 31 January 2001 in Case T-73/94 (1);

— refer the case back to the Court of First Instance;

— order the Council and the Commission to pay the costs

of the proceedings before both Courts.

Pleas in law and main arguments

The pleas in law and main arguments are analogous to those
in Case C-162/01 P.

(1) OJ 1994 C 90, p. 25.

Appeal brought on 13 April 2001 by G. van den Berg
against the judgment delivered on 31 January 2001 by the
Fourth Chamber of the Court of First Instance of the
European Communities in Case T-143/97 between, on the
one hand, G. van den Berg and, on the other, the Council
of the European Union and the Commission of the
European Communities

(Case C-164/01 P)

(2001/C 227/11)

An appeal against the judgment delivered on 31 January 2001
by the Fourth Chamber of the Court of First Instance of the
European Communities in Case T-143/97 between, on the one
hand, G. van den Berg and, on the other, the Council of
the European Union and the Commission of the European
Communities was brought before the Court of Justice of the
European Communities on 13 April 2001 by G. van den Berg,
represented by E.H. Pijnacker Hordijk, advocaat, the other
parties to the proceedings being the Council of the European
Union, represented by A.M. Colaert, and the Commission of
the European Communities, represented by T. van Rijn.

The appellant claims that the Court s hould:

— set aside the judgment delivered by the Court of First
Instance on 31 January 2001 in Case T-143/97 (1);

— refer the case back to the Court of First Instance for
further determination of
the action brought by the
appellant before the Court of First Instance on 29 April
1997;

An appeal against the judgment delivered on 31 January 2001
by the Fourth Chamber of the Court of First Instance of the

— order the Council and the Commission to pay the costs

of the proceedings before both Courts.

C 227/8

EN

Official Journal of the European Communities

11.8.2001

Pleas in law and main arguments

— Infringement of Article 288 EC, violation of the principle
of the protection of legitimate expectations, non-com-
pliance with the obligation to provide a statement of
reasons and misinterpretation of
the requirement of
causality, inasmuch as the Court of First Instance held
that the damage suffered by Mr van den Berg after 13 May
1986 was not attributable to the Community: the Court
of First Instance misconstrued the scope of the principle
of the protection of legitimate expectations, and applied
it in a manifestly incorrect way vis-à-vis Mr van den Berg.
The fact is that, having in 1985-1986 deliberately taken
the requisite steps to relocate his holding whilst retaining
— had he had a ‘normal’ quota — the quota in question,
Mr van den Berg had a legitimate expectation that he
would not be treated differently from a comparable
‘normal’ producer merely because he was a SLOM
producer. Furthermore, at the time when hechanged his
holding, Mr van den Berg was entitled to expect that he
would not thereafter, in 1989, be treated, on a retroactive
basis, differently from ‘normal’ producers.

Moreover, the Court of First Instance seriously miscon-
strued the real scope of the judgment in Herbrink. If, by
way of derogation from the principle of attachment to
the land, which forms part of the milk quota system, a
departing tenant is to be permitted to take his quota with
him to his new holding, a SLOM tenant should also be
allowed, in the same way, to take his milk quota with
him to a new holding.

— Violation of the principle of equality, the principle of
legal certainty, the principle of the protection of legitimate
expectations and the obligation to provide a statement of
reasons, inasmuch as the Court of First Instance, when
ruling on the question of prescription, disregarded essen-
tial facts, or at any rate set out those facts in a manifestly
erroneous manner in its judgment, and omitted to find
that the Commission had waived the possibility of relying
on a plea of prescription as against certain SLOM
producers, including Mr van den Berg: the SLOM pro-
ducers made it quite clear that the institutions could not
plead prescription, since the institutions must have been
well aware of the fact that the case of Mulder II was
meant to be a test case in relation to SLOM producers as
a whole. There can be no doubt whatever that the
communication of 5 August 1992 was deliberately
framed in terms wider than those of Article 43 of the
Statute;
that
communication that the Community waived its right to
plead prescription in respect of periods prior to 5 August
1992 as against any milk producer who had applied to
the institutions prior to that date, regardless of when that
happened.

is quite clear from the wording of

it

The Court of First Instance failed to mention certain
established facts in the contested judgment, in particular
the fact that:

— prescription was not taken into consideration with
regard to any of the SLOM producers whose names

appeared on the list of 31 March 1989, to whom a
settlement proposal was put forward pursuant to
Regulation No 2187/93 (2);

— in the course of settlement negotiations conducted
after 1993 with SLOM producers not
initially
covered by the terms of Regulation No 2187/93
but in respect of whom liability was subsequently
admitted, the Commission did not invoke prescrip-
tion where the names of
the SLOM producers
concerned appeared on the list in question, regard-
less of whether or not the producers concerned had
in the interim brought proceedings before the Court
of First Instance under Article 215 of the EC Treaty;

— in its rejoinder in Case T-179/96 Antonissen, the
Commission withdrew the plea of prescription
initially put forward by it, after being confronted
with the letter of 31 March 1989.

— Violation of the principle of equality, the principle of
legal certainty, the principle of the protection of legitimate
expectations and the obligation to provide a statement of
reasons, inasmuch as the Gourt of First Instance ruled
that Mr van den Berg’s claim was wholly time-barred: the
Court of First Instance overlooked (i) the discrepancy
between the wording of the communication of 5 August
1992 and that of Article 43 of the Statute and (ii) the
manner in which the Commission had in practice
interpreted and applied that communication in relation
to those SLOM producers to whom the letter of 31 March
1989 had been addressed.

(1) OJ 1997 C 199, p. 37.
(2) OJ 1993 L 196, p. 6.

Action brought on 9 May 2001 by the Kingdom of the
Netherlands against the Commission of the European
Communities

(Case C-197/01)

(2001/C 227/12)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 9 May 2001 by the Kingdom of
the
Netherlands, represented by H.G. van Sevenster and C.A.H.M.
ten Dam, as Agents.

The applicant claims that the Court should:

1. Annul Regulation No 396/2001 (1) of 27 February 2001
providing for the continued application of safeguard
measures for imports from overseas countries and terri-