Judgment of the Court (Sixth Chamber) of 20 June 2002 in Case C-313/99 (Reference for a preliminary ruling from the High Court): Gerard Mulligan, Tim O'Sullivan, Tom Power, Hugh Duncan v Minister for Agriculture and Food, Ireland, Attorney General (Additional levy in the milk and milk products sector — Regulation (EEC) No 3950/92 — Transfer of the reference quantity on sale or lease of the holding — Whether a Member State may claw back part of the reference quantity and add it to the national reserve)
Date: 2002-08-10
Institutions: Court of Justice
Subjects: agricultural levy, interpretation of the law, milk, milk product, regulation of agricultural production

C 191/2

EN

Official Journal of the European Communities

10.8.2002

4. Article 3(1)(e), second indent, of Directive 89/104 must be
interpreted to mean that a sign consisting exclusively of the
shape of a product is unregistrable by virtue thereof if it is
established that the essential functional features of that shape
are attributable only to the technical result. Moreover, the
ground for refusal or invalidity of registration imposed by that
provision cannot be overcome by establishing that there are
to be
other shapes which allow the same technical result
obtained.

milk and milk products sector (OJ 1992 L 405, p. 1), as
amended by Council Regulation (EEC) No 1560/93 of 14 June
1993 (OJ 1993 L 154, p. 30), the Court (Sixth Chamber),
composed of: N. Colneric, President of the Second Chamber,
acting for the President of the Sixth Chamber, C. Gulmann and
V. Skouris (Rapporteur),
Judges; L.A. Geelhoed, Advocate
General; H.A. Rühl, Principal Administrator, for the Registrar,
has given a judgment on 20 June 2002, in which it has ruled:

(1) OJ C 299 of 16.10.1999.

1. When Member States determine, pursuant to the first subpara-
graph of Article 7(1) of Council Regulation (EEC) No 3950/
92 of 28 December 1992 establishing an additional levy in
the milk and milk products sector, as amended by Council
Regulation (EEC) No 1506/93 of 14 June 1993, the detailed
rules under which the reference quantity attached to a holding
is to be transferred upon the sale or lease of the holding, they
may provide, pursuant to that provision, that part of the
reference quantity is not to be transferred with the holding to
the producer taking it over but is to be added to the national
reserve by means of a ‘clawback’ mechanism. Such a measure
must be adopted and applied:

JUDGMENT OF THE COURT

(Sixth Chamber)

of 20 June 2002

in Case C-313/99 (Reference for a preliminary ruling from
the High Court): Gerard Mulligan, Tim O’Sullivan, Tom
Power, Hugh Duncan v Minister for Agriculture and
Food, Ireland, Attorney General (1)

(Additional levy in the milk and milk products sector —
Regulation (EEC) No 3950/92 — Transfer of the reference
quantity on sale or lease of the holding — Whether a
Member State may claw back part of the reference quantity
and add it to the national reserve)

2.

(2002/C 191/02)

(Language of the case: English)

— in a way which does not compromise the objectives of the
common agricultural policy and in particular those of the
common organisation of the markets in the milk sector;

— on the basis of objective criteria, and

— in accordance with the general principles of Community
law such as, in particular, the principles of legal certainty
and protection of legitimate expectations, proportionality,
non-discrimination and respect for fundamental rights.

The principle of legal certainty does not preclude, as a general
principle of Community law, a Member State from choosing,
for the purpose of adopting national measures pursuant to
Article 7(1) of Regulation No 3950/92, a procedure whereby
a legislative instrument authorises the competent authority,
such as a minister, to adopt those measures by means of a
decision. That principle requires that the publicity for such
measures be of such a nature as to inform the natural or legal
persons concerned by the measures of their rights and obligations
under them. It is for the national court to determine, on the
basis of the facts before it, whether that is the case in the main
proceedings.

In Case C-313/99: Reference to the Court under Article 234
EC by the High Court (Ireland) for a preliminary ruling in
the proceedings pending before that court between Gerard
Mulligan, Tim O’Sullivan, Tom Power, Hugh Duncan and
Minister for Agriculture and Food, Ireland, Attorney General,
on the interpretation of Council Regulation (EEC) No 3950/92
of 28 December 1992 establishing an additional levy in the

(1) OJ C 299 of 16.10.1999.