MAY 1977, DID NOT DELIVER MILK DURING THE REFERENCE YEAR ADOPTED ONLY IN SO FAR AS EACH PRODUCER FULFILS THE SPECIFIC CONDITIONS LAID DOWN IN REGULATION NO 857/84 AND IF THE MEMBER STATES HAVE REFERENCE QUANTITIES AVAILABLE FOR THAT PURPOSE .
THE SECOND QUESTION
MR MULDER MAINTAINS THAT THE LEGISLATION IN QUESTION INFRINGES GENERAL PRINCIPLES OF COMMUNITY LAW AND IS THEREFORE INVALID . HE CLAIMS IN THE FIRST PLACE THAT REGULATION NO 857/84 INFRINGES THE PRINCIPLES OF LEGAL CERTAINTY AND PROTECTION OF LEGITIMATE EXPECTATIONS, SINCE THOSE PERSONS WHO TOOK ADVANTAGE OF THE SYSTEM INTRODUCED BY REGULATION NO 1078/77 WERE ENTITLED TO EXPECT TO BE ABLE TO RESUME PRODUCTION UPON THE EXPIRY OF THEIR NON-MARKETING UNDERTAKING . HE ALSO CLAIMS THAT THE LEGISLATION IN QUESTION INFRINGES THE PRINCIPLE OF PROPORTIONALITY AND THE PROHIBITION OF DISCRIMINATION BETWEEN PRODUCERS, AND AMOUNTS TO DE FACTO EXPROPRIATION OF HIS HOLDING . FINALLY, MR MULDER CONSIDERS THAT THE COMMUNITY LEGISLATURE MISUSED ITS POWERS BY USING A MARKET-REGULATING INSTRUMENT IN ORDER TO ADOPT A MEASURE OF STRUCTURAL POLICY .
ON THE OTHER HAND, THE NETHERLANDS GOVERNMENT, THE COUNCIL AND THE COMMISSION ALL CONTEND THAT THE LEGISLATION IN QUESTION IS VALID . THE COUNCIL AND THE COMMISSION BASE THEIR VIEW MAINLY UPON THE ARGUMENT THAT THE MEMBER STATES HAVE AVAILABLE TO THEM SEVERAL WAYS OF GRANTING QUOTAS NOT SUBJECT TO THE ADDITIONAL LEVY TO THOSE PRODUCERS WHO, DURING THE REFERENCE YEAR, RECEIVED A PREMIUM UNDER REGULATION NO 1078/77 . THE NETHERLANDS GOVERNMENT AND THE COMMISSION - IN AN ALTERNATIVE SUBMISSION - ANALYSE THE SCOPE OF THE GENERAL PRINCIPLES RELIED UPON AND CONCLUDE THAT THEY HAVE BEEN PROPERLY RESPECTED IN THIS CASE . AS REGARDS MORE PARTICULARLY THE PRINCIPLES OF LEGAL CERTAINTY AND PROTECTION OF LEGITIMATE EXPECTATIONS, THE NETHERLANDS GOVERNMENT AND THE COMMISSION CONTEND THAT THEY HAVE NOT BEEN INFRINGED BECAUSE THE PRODUCERS CONCERNED WERE NOT ENTITLED TO EXPECT THAT, UPON THE EXPIRY OF THEIR FIVE-YEAR UNDERTAKING, THEY WOULD HAVE AN UNLIMITED RIGHT TO RESUME MILK PRODUCTION .
IT MUST BE CONCEDED, AS THE NETHERLANDS GOVERNMENT AND THE COMMISSION HAVE CORRECTLY OBSERVED, THAT A PRODUCER WHO HAS VOLUNTARILY CEASED PRODUCTION FOR A CERTAIN PERIOD CANNOT LEGITIMATELY EXPECT TO BE ABLE TO RESUME PRODUCTION UNDER THE SAME CONDITIONS AS THOSE WHICH PREVIOUSLY APPLIED AND NOT TO BE SUBJECT TO ANY RULES OF MARKET OR STRUCTURAL POLICY ADOPTED IN THE MEAN TIME .
THE FACT REMAINS THAT WHERE SUCH A PRODUCER, AS IN THE PRESENT CASE, HAS BEEN ENCOURAGED BY A COMMUNITY MEASURE TO SUSPEND MARKETING FOR A LIMITED PERIOD IN THE GENERAL INTEREST AND AGAINST PAYMENT OF A PREMIUM HE MAY LEGITIMATELY EXPECT NOT TO BE SUBJECT, UPON THE EXPIRY OF HIS UNDERTAKING, TO RESTRICTIONS WHICH SPECIFICALLY AFFECT HIM PRECISELY BECAUSE HE AVAILED HIMSELF OF THE POSSIBILITIES OFFERED BY THE COMMUNITY PROVISIONS .
HOWEVER, THE REGULATIONS ON THE ADDITIONAL LEVY ON MILK GIVE RISE TO SUCH RESTRICTIONS FOR PRODUCERS WHO, PURSUANT TO AN UNDERTAKING ENTERED INTO UNDER REGULATION NO 1078/77, DID NOT DELIVER MILK DURING THE REFERENCE YEAR . AS