THE GROUND THAT IT IS CONTRARY TO COMMUNITY LAW AS IT NOW STANDS, IN PARTICULAR :
A . THE PRINCIPLE OF LEGAL CERTAINTY
B . THE PRINCIPLE OF PROPORTIONALITY
C . THE RIGHT TO ENJOY PROPERTY
D . THE PROHIBITION OF DISCRIMINATION LAID DOWN IN ARTICLE 40 ( 3 ) OF THE EEC TREATY
E . THE PROHIBITION OF THE MISUSE OF POWERS,
SINCE THE REGULATION DOES NOT TAKE INTO ACCOUNT PERSONS WHO IN ACCORDANCE WITH REGULATION ( EEC ) NO 1078/77 HAVE DELIVERED NO MILK IN A REFERENCE YEAR?
3 . IF THE ANSWER TO THE FIRST QUESTION IS IN THE NEGATIVE, DOES A MEMBER STATE INFRINGE COMMUNITY LAW AS IT NOW STANDS WHEN IT FAILS TO MAKE PROVISION AS REFERRED TO IN THE FIRST QUESTION FOR PERSONS WHO IN ACCORDANCE WITH REGULATION ( EEC ) NO 1078/77 HAVE DELIVERED NO MILK IN A REFERENCE YEAR?"
REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE FACTS OF THE MAIN PROCEEDINGS, THE RELEVANT COMMUNITY LEGISLATION, THE COURSE OF THE PROCEDURE AND THE OBSERVATIONS SUBMITTED TO THE COURT, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .
LEGISLATIVE BACKGROUND
IN ORDER TO ANSWER THE QUESTIONS SUBMITTED, IT IS NECESSARY FIRST OF ALL TO REVIEW THE APPLICABLE COMMUNITY REGULATIONS .
IN ORDER TO LIMIT SURPLUS PRODUCTION OF MILK AND MILK PRODUCTS IN THE COMMON MARKET, REGULATION NO 1078/77 INTRODUCED FOR A SPECIFIC PERIOD A SYSTEM OF PREMIUMS FOR PRODUCERS WHO UNDERTOOK EITHER NOT TO MARKET MILK AND MILK PRODUCTS ( NON-MARKETING PREMIUM ) OR TO CONVERT THEIR DAIRY HERDS TO MEAT PRODUCTION ( CONVERSION PREMIUM ). THE NON-MARKETING PREMIUMS AT ISSUE IN THIS CASE WERE GRANTED UPON APPLICATION TO ANY MILK PRODUCER WHO UNDERTOOK NOT TO DISPOSE OF MILK OR MILK PRODUCTS, FOR A CONSIDERATION OR FREE OF CHARGE, FROM HIS HOLDING FOR A PERIOD OF FIVE YEARS ( ARTICLES 1 AND 2 ).
FACED WITH CONSTANTLY INCREASING MILK PRODUCTION, BY COUNCIL REGULATION NO 856/84 THE COUNCIL ALSO INTRODUCED AN ADDITIONAL LEVY PAYABLE, BY VIRTUE OF ARTICLE 1, ON THE QUANTITIES OF MILK DELIVERED IN EXCESS OF A REFERENCE QUANTITY TO BE DETERMINED; IT IS PAYABLE EITHER BY MILK PRODUCERS ( FORMULA A ) OR BY PURCHASERS OF MILK OR OTHER MILK PRODUCTS, WHO ARE TO PASS IT ON TO PRODUCERS WHO HAVE INCREASED THEIR DELIVERIES, IN PROPORTION TO THEIR CONTRIBUTION TO THE PURCHASER' S REFERENCE QUANTITY BEING EXCEEDED ( FORMULA B ).
THE PROCEDURE FOR CALCULATING THE REFERENCE QUANTITY, THAT IS TO SAY THE QUANTITIES EXEMPT FROM THE ADDITIONAL LEVY, WAS LAID DOWN BY COUNCIL REGULATION NO 857/84 . PURSUANT TO ARTICLE 2 ( 1 ) THE REFERENCE QUANTITY IS TO BE EQUAL TO THE QUANTITY OF MILK OR MILK EQUIVALENT DELIVERED BY THE PRODUCER DURING THE 1981 CALENDAR YEAR, PLUS 1 %. UNDER ARTICLE 2 ( 2 ), HOWEVER, THE MEMBER STATES MAY PROVIDE THAT ON THEIR TERRITORY THE REFERENCE QUANTITY SHALL BE