CELEX: 62006CC0446
Language: en
Date: 2007-12-06 00:00:00
Title: Opinion of Mr Advocate General Bot delivered on 6 December 2007. # A. G. Winkel v Minister van Landbouw, Natuur en Voedselkwaliteit. # Reference for a preliminary ruling: College van Beroep voor het bedrijfsleven - Netherlands. # Beef and veal - Common organisation of the markets - Regulation (EC) No 1254/1999 - Article 3(f) - Grant of a suckler cow premium - Conditions consistent with usual animal husbandry practice. # Case C-446/06.

OPINION OF ADVOCATE GENERAL
      BOT
      delivered on 6 December 2007 1(1)
      
      Case C-446/06
      A.G. Winkel
      v
      Minister van Landbouw, Natuur en Voedselkwaliteit
      (Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven (Netherlands))
      (Beef and veal – Regulation (EC) No 1254/1999 – Common organisation of the markets – National legislation making the grant of a suckler cow premium subject to two conditions, relating to the frequency of calving
         and the length of suckling – Concept of ‘suckler cow’)
      1.        In this reference for a preliminary ruling the Court is being asked to rule on whether, in the context of the system of Community
         aid introduced by Regulation (EC) No 1254/1999, (2) it is possible for a Member State to impose conditions relating to the frequency of calving and the length of suckling for
         the purposes of granting such aid.
      
      2.        In this Opinion I shall explain why I consider that Article 3(f) of Regulation No 1254/1999 does not preclude a Member State
         from making the grant of a suckler cow premium subject to a condition relating to the frequency of calving and a condition
         that the calf should remain with its mother for at least four months.
      
      I –  Relevant provisions
      A –    Community law
      1.      Regulation No 1254/1999
      3.        A common organisation of the market in beef and veal was introduced as part of the common agricultural policy in order to
         stabilise markets in the sector concerned and to ensure a fair standard of living for the agricultural community.
      
      4.        To that end, Regulation No 1254/1999 introduced a system of support for beef producers. That system consists in particular
         of making a direct payment to beef producers of a premium for maintaining a herd of suckler cows, also known as a ‘suckler
         cow premium’. 
      
      5.        The following definition of ‘suckler cow’ is given in Article 3(f) of Regulation No 1254/1999:
      
      ‘… a cow belonging to a meat breed or born of a cross with a meat breed, and belonging to a herd intended for rearing calves
         for meat production’.
      
      6.        Article 6 of Regulation No 1254/1999 provides that a producer keeping suckler cows on his holding may qualify, under certain
         conditions, for a suckler cow premium. 
      
      7.        Thus, under Article 6, the suckler cow premium is to be granted to producers who do not supply milk or milk products from
         their farms for 12 months from the day on which the application is lodged. However, some producers supplying milk or milk
         products may qualify for the suckler cow premium if the individual reference quantity referred to in Article 4 of Regulation
         (EEC) No 3950/92 (3) does not exceed 120 000 kilograms. (4)
      
      8.        In order to qualify for the suckler cow premium, producers must keep in their herd, for at least six consecutive months from
         the day on which the application is lodged, at least 60% sucker cows and at most 40% heifers. 
      
      9.        According to Article 3(g) of Regulation No 1254/1999, ‘heifer’ means a female bovine animal from the age of eight months which
         has not yet calved. Article 6(6) of that regulation states that, for the purposes of that provision, only heifers belonging
         to a meat breed and belonging to a herd intended for rearing calves for meat production are to be taken into account.
      
      10.      Furthermore, it falls to the Commission of the European Communities to adopt detailed rules for the application of that regulation
         and, in particular, those relating to the definition of suckler cow. (5)
      
      2.      Regulation (EC) No 2342/1999
      11.      When it adopted Regulation (EC) No 2342/1999, (6) which lays down detailed rules for the application of Regulation No 1254/1999, the Commission defined the concept of suckler
         cow. Article 14 of the implementing regulation, read in conjunction with Annex I to that regulation, lists the bovine breeds
         that cannot be regarded as cows belonging to meat breeds and cannot therefore be considered to be suckler cows within the
         meaning of Article 3(f) of Regulation No 1254/1999.
      
      12.      Moreover, under Article 45 of the implementing regulation Member States are to adopt all suitable measures necessary to ensure
         that that regulation is applied properly.
      
      3.      Regulation (EC) No 2419/2001
      13.      Regulation (EC) No 2419/2001 (7) is intended to ensure effective implementation of the direct payment schemes in the area of the common agricultural policy
         by laying down detailed rules for implementing the integrated administration and control system established by Regulation
         (EEC) No 3508/92. (8) Article 1(1)(b) of Regulation No 3508/92 provides that the integrated administration and control system applies to the suckler
         cow premium arrangements. That system enables Member States to satisfy themselves that transactions financed by Community
         aid are actually carried out and are executed correctly.
      
      14.      Article 36 of Regulation No 2419/2001 provides in particular that aid may not be granted for a number of animals greater than
         that shown in the aid application. If that is the case the aid is to be calculated on the basis of the number of animals which
         actually meet all the conditions for granting the aid.
      
      15.      Article 38 of the same regulation provides that premiums are to be reduced or excluded where a difference is found between
         the number of animals which actually meet the conditions and the number of animals for which an application for a premium
         has been made.
      
      B –    National law 
      16.      Regulation No 1254/1999 was incorporated into Netherlands law by the Regeling on Community animal premiums (Regeling dierlijke
         EG-premies; ‘the Regeling’). In the version in force between 1 August 2002 and 1 June 2003, Article 1 of the Regeling contained
         the same definition of suckler cow as that given in Article 3(f) of Regulation No 1254/1999.
      
      17.      With regard to the detailed rules for granting the suckler cow premium, the Regeling provides that a premium is to be granted
         to a producer only where the suckler cow has calved at least once in the year in question and its calf has remained in the
         herd for at least four months after its birth. 
      
      18.      Since 2 June 2003, following amendment of the calving requirement, the premium has been granted where the cow has calved at
         least once in the period beginning 20 months before the date on which the application period started and ending 4 full months
         after that date.
      
      II –  The facts in the main proceedings and the question referred for a preliminary ruling
      19.      On 19 August 2002 Mr Winkel submitted a premium application to the Minister van Landbouw, Natuur en Voedselkwaliteit (Minister
         for Agriculture, Nature and Food Quality, ‘the Minister’) in respect of maintaining seven suckler cows for 2002. 
      
      20.      After granting Mr Winkel a premium of EUR 1 532.65 for 2002 and subsequently reducing the amount of that premium, the Minister
         finally, by decision of 4 June 2004, dismissed the premium application for 2002 and thus ordered Mr Winkel to refund the sum
         allocated to him on the grounds that four of the cows in respect of which a premium application had been made had not suckled
         a calf for at least four months during the period from 1 January 2001 to 31 December 2002.
      
      21.      Moreover, by decision of 18 June 2004 the Minister decided to exclude the appellant from receiving income subsidy amounting
         to EUR 875.80 under the third subparagraph of Article 38(2) of Regulation No 2419/2001.
      
      22.      On 28 June 2003 Mr Winkel lodged an application for a suckler cow premium for 2003 in respect of seven suckler cows.
      
      23.      On 21 June 2004 the Minister granted Mr Winkel a premium of EUR 1 104.46 for 2003 in respect of six suckler cows. The premium
         for the seventh cow was refused on the grounds that the cow concerned had not suckled its calf for four months.
      
      24.      Mr Winkel raised an objection against the Minister’s decisions of 4, 18 and 21 June 2004. The Minister dismissed that objection
         by decision of 26 October 2004.
      
      25.      It is that decision which forms the subject of an appeal before the national court. Mr Winkel takes the view that the conditions
         laid down in the Regeling are contrary to Regulation No 1254/1999. In particular, Mr Winkel considers that all the cows in
         respect of which he made applications for suckler cow premiums for the years 2002 and 2003 satisfy the definition of suckler
         cow given in Article 3(f) of Regulation No 1254/1999.
      
      26.      As the College van Beroep voor het bedrijfsleven was uncertain as to the interpretation of Article 3(f) of Regulation No 1254/1999,
         it decided to stay the proceedings and refer the following question to the Court:
      
      ‘1.      Are rules which, as regards the right to a suckler cow premium, require, on the basis of the usual animal husbandry practice,
         that a cow has calved at least once in the period which runs from 20 months before to 4 months after the date on which the
         application period started and its calf was not removed from the herd within 4 months after its birth, compatible with Article
         3(f) of Regulation (EC) No 1254/1999?
      
      2.       If the answer to Question 1 is in the negative, what criteria must be applied to establish whether the herd is intended for
         rearing calves for meat production and which cows belong to that herd?’
      
      III –  Analysis
      27.      First of all, it should be noted that Mr Winkel made his application for a suckler cow premium for 2002 on 19 August 2002.
         The amendment of the Regeling to include the calving requirement took place on 2 June 2003. It is therefore the Regeling in
         the version in force from 1 August 2002 to 1 June 2003 which applies in respect of the application for 2002.
      
      28.      I do not think that that amendment relating to the frequency of calving affects the answer that should be given to the question
         referred. The only minor difference lies in the fact that under the Regeling prior to the amendment the cow must have calved
         at least once during the year concerned, whilst under the Regeling as amended the cow must have calved at least once in the
         period beginning 20 months before the start of the application period and ending 4 months after that date.
      
      29.      In both cases, the question that arises is whether Article 3(f) of Regulation No 1254/1999 precludes imposition of a condition
         relating to the frequency of calving for the purposes of obtaining the suckler cow premium.
      
      30.      By its first question, the national court is therefore seeking to ascertain, essentially, whether Article 3(f) of Regulation
         No 1254/1999 must be interpreted as meaning that it precludes a Member State from making the grant of the suckler cow premium
         subject to a condition relating to the frequency of calving and the condition that the cow should have suckled its calf for
         at least four months.
      
      31.      The Commission considers that, in order for a cow to be regarded as a suckler cow and thus give entitlement to a suckler cow
         premium, only the two criteria laid down in Article 3(f) of Regulation No 1254/1999 need be satisfied. Thus, in order to be
         regarded as a suckler cow the animal must belong to a meat breed and belong to a herd intended for rearing calves for meat
         production.
      
      32.      Furthermore, the Commission adds that the suckler nature must be assessed at the level of the herd as a whole and not as regards
         individual cows. Hence it considers that if there is evidence to indicate that a cow has not suckled its calf it is sufficient
         to assess whether the suckler nature of the herd has none the less been retained in order for the premium to be granted in
         respect of that cow. Also, according to the Commission, national conditions such as those laid down in the Regeling fail to
         take into account justifiable exceptions such as in the event of the death of the calf shortly after birth.
      
      33.      It is not therefore possible, according to the Commission, for Member States to lay down conditions relating to the frequency
         of calving and the length of suckling for the purposes of the grant of the suckler cow premium.
      
      34.      I do not share that view. Like the Netherlands and French Governments, I think that Article 3(f) of Regulation No 1254/1999
         must be interpreted as meaning that it does not preclude a Member State from adopting rules imposing conditions relating to
         the frequency of calving and the length of suckling on producers wishing to qualify for the suckler cow premium. 
      
      35.      First of all, the Court has consistently held that, in interpreting a provision of Community law, it is necessary to consider
         not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part. (9)
      
      36.      It is clear from the wording of Article 3(f) of Regulation No 1254/1999 that it does not contain any provision that expressly
         precludes application of conditions such as those laid down in the Regeling. On the contrary, under Article 45 of the implementing
         regulation Member States are to adopt all suitable measures necessary to ensure that that regulation is applied properly.
      
      37.      Article 3(f) of Regulation No 1254/1999 defines a suckler cow as a cow belonging to a meat breed and belonging to a herd intended
         for rearing calves for meat production. That concept of a ‘suckler cow’ was clarified in Article 14 of the implementing regulation.
         That provision states which cows cannot be considered as suckler cows.
      
      38.      However, none of the provisions of Regulation No 1254/1999 or of the implementing regulation explains what is meant by ‘suckler
         cow belonging to a herd intended for rearing calves for meat production’.
      
      39.      The concept of ‘rearing’, which may be defined as a set of techniques whereby animals are reared, by allowing them to be born
         and to develop in favourable circumstances, (10) may be understood very differently from one Member State to another.
      
      40.      The French Government, for example, explains in its observations that in France the minimum period for suckling a calf for
         meat production is four weeks or even longer if the meat is to be marketed as ‘veal from suckled cows’. The calf may even
         be weaned quickly and fattened in order to be marketed as young bull, heifer or bullock. (11)
      
      41.      The Commission acknowledges, moreover, that rearing methods may vary depending on the type of rearing and the breed being
         reared. (12) However, it provides no details as to what rearing methods make a herd a suckler herd.
      
      42.      The Netherlands Government therefore considers that in order to apply Regulation No 1254/1999 it is necessary to define the
         concept of suckler cow as regards the condition that it must belong to a herd intended for rearing calves for meat production.
      
      43.      Conditions such as those laid down in the Regeling, which reflect current stock-rearing practice in the Netherlands, thus
         make it possible to determine whether a cow belongs to such a herd and classify it as a suckler cow. Thus, if the condition
         relating to the frequency of calving is not satisfied or if the calf has not remained with the cow for at least four months,
         it is not possible to bring rearing into the equation and the cow is considered not to be a suckler cow. The premium cannot
         therefore be granted, as happened in the case of Mr Winkel in the dispute in the main proceedings.
      
      44.      In its observations the Commission contends that ‘suckler nature’, which is necessary for the purposes of granting the premium
         for maintaining a herd of suckler cows, should be considered not at the level of individual cows but at the level of the herd
         as a whole. Thus, if there is evidence to indicate that a suckler cow premium has been applied for in respect of cows that
         have not suckled their calves, grant of the premium will depend on whether or not the herd has retained its suckler nature.
         
      
      45.      I do not share that view, for the following reasons.
      
      46.      Article 6(2) of Regulation No 1254/1999 provides that in order to qualify for the suckler cow premium a producer’s herd must
         comprise at lease 60% suckler cows and at most 40% heifers. To my mind, compliance with those percentages is designed to ensure
         that the herd is a suckler herd intended for rearing calves for beef production.
      
      47.      However, even if the suckler nature is retained at herd level by means of those percentages, it is necessary, in order to
         record the 60% suckler cows, to give a detailed description of a suckler cow. That involves being able to distinguish suckler
         cows from other cows, such as dairy cows or heifers. If that were not the case, there would be a risk that a cow would be
         regarded as a suckler cow even though it was not intended for the rearing of calves.
      
      48.      The conditions laid down by the Regeling are therefore necessary, in my view, in order to recognise a suckler cow and distinguish
         it from cows intended for other forms of rearing.
      
      49.      I note in that regard that the Commission itself, by letter of 11 April 2002, informed the Kingdom of the Netherlands that
         it was applying the premium scheme in the beef and veal sector incorrectly, and that is why it made a number of financial
         adjustments to the expenditure that the Kingdom of the Netherlands had declared. According to the Commission, an inspection
         conducted in respect of the entire territory of the Netherlands revealed that 24.6% of calves that had qualified for the suckler
         cow premium left the undertaking during the first four months after their birth.
      
      50.      The Commission stated in that letter that the general rule is that a calf must remain with its mother for an average of four
         months and that there were shortcomings in the Netherlands inspection system because it failed to take into account that average
         time. In the Commission’s view, that shortcoming constituted a risk because some producers might receive the premium in respect
         of animals that were not suckler cows at all. 
      
      51.      That is why the Netherlands authorities amended the system of suckler cow premiums and thought it necessary to provide a more
         detailed definition of a suckler cow, (13)since there is nothing in either Regulation No 1254/1999 or in the regulation implementing it to indicate what is meant by
         the concept of suckler cow ‘belonging to a herd intended for rearing calves for meat production’. 
      
      52.      The Commission subsequently stated, in a letter to the Netherlands authorities of 7 November 2002, that although there is
         no objection to the criterion of four months with the mother, it is nevertheless necessary to examine whether the derogation
         from that rule may not be attributable to an exceptional and justifiable case that does not deprive the herd of its suckler
         nature. In its observations it considers that the conditions relating to the frequency of calving and the length of suckling
         are too rigid and do not allow exceptional and justifiable cases, such as the death of a calf, to be taken into account.
      
      53.      In the case in the main proceedings, I do not see how such conditions prevent exceptional and justifiable cases being taken
         into account. The Netherlands Government states in its observations that a producer may always rely on exceptional circumstances
         and cases of force majeure, such as those provided for in Article 48 of Regulation No 2419/2001, and natural circumstances such as those provided for
         in Article 41 of that regulation.
      
      54.      In my view, there is nothing in the application of those conditions to prevent a producer from relying on such circumstances
         if he can show that the calf was removed from its mother due to force majeure or if removal is due to exceptional circumstances.
      
      55.      The position adopted by the Commission in those letters, to my mind, clearly shows that actual application of the conditions
         laid down in Article 3(f) of Regulation No 1254/1999 requires Member States to specify the content of concepts such as belonging
         to a herd intended for rearing calves for meat production, and to do so in particular for inspection purposes.
      
      56.      That view is confirmed, in my opinion, by the objective and scheme of the Community provisions in question.
      
      57.      The general scheme of premiums for maintaining a herd of suckler cows is a tool designed to stabilise the markets and ensure
         a fair standard of living for the agricultural community. That is why a global scheme of direct payments to producers was
         introduced in 1999. That scheme involves payments direct to the producer, in the form of suckler cow premiums, subject to
         compliance with the minimum number of suckler cows in the herd, namely at least 60% suckler cows.
      
      58.      In order to ensure that such a system is fully effective, Member States must take the measures necessary to satisfy themselves
         that transactions financed by the European Agricultural Guidance and Guarantee Fund (EAGGF) are actually carried out and are
         executed correctly, and prevent and deal with irregularities. (14)
      
      59.      In other words, the purpose of the integrated administration and control system is to ensure, in particular, that the suckler
         cow premium is actually paid in respect of a cow intended for rearing a calf for meat production. 
      
      60.      Moreover, we have seen that under Articles 36 and 38 of Regulation No 2419/2001, if it is found that the number of suckler
         cows declared in the application is higher than the number actually found on the producer’s holding because some of the cows
         do not meet the necessary requirements, premiums may be reduced or excluded.
      
      61.      The objectives of Regulation No 1254/1999 would therefore be undermined if a premium were paid, for example, in respect of
         a cow which is intended only for milk production, which, as we have seen, may be the case if the calf is removed only a few
         weeks after birth. The Commission itself accepts this in its working document of 16 December 1999. (15) It acknowledges that the absence of calves on the holding may lead to the conclusion that there are no calves intended for
         meat production being reared and that all the cows belong to the dairy herd.
      
      62.      Moreover, the condition relating to the frequency of calving makes it possible to ensure that the cow is not a heifer. According
         to Articles 3(g) and 6(6) of Regulation 1254/1999, the only thing which distinguishes a heifer from a suckler cow is calving,
         since a heifer is a female bovine animal belonging to a meat breed which has not yet calved.
      
      63.      I therefore think that making the suckler cow premium subject to conditions relating to the frequency of calving and the length
         of suckling are necessary in order to enable a Member State to satisfy itself that a suckler cow premium has actually been
         paid in respect of a cow that is intended to rear its calf for meat production.
      
      64.      Accordingly, the conditions laid down by the Regeling appear to me to be in accordance with the objective and scheme of the
         relevant legislative provisions.
      
      65.      In the light of all those factors, I consider that Article 3(f) of Regulation No 1254/1999 does not preclude a Member State
         from making the grant of the suckler cow premium subject to a condition relating to the frequency of calving and the condition
         that the cow has suckled its calf for at least four months.
      
      66.      There is therefore no need to reply to the second question.
      
      IV –  Conclusion
      67.      In the light of the above considerations, I suggest that the Court should reply as follows to the question referred by the
         College van Beroep voor het bedrijfsleven:
      
      ‘Article 3(f) of Council Regulation (EC) No 1254/1999 of 17 May 1999 on the common organisation of the market in beef and
         veal, as amended by Council Regulation (EC) No 1512/2001 of 23 July 2001, does not preclude a Member State from making the
         grant of the suckler cow premium subject to a condition relating to the frequency of calving and the condition that the cow
         has suckled its calf for at least four months.’ 
      
      1 –	Original language: French.
      
      2 –	Council Regulation of 17 May 1999 on the common organisation of the market in beef and veal (OJ 1999 L 160, p. 21), as
         amended by Council Regulation (EC) No 1512/2001 of 23 July 2001 (OJ 2001 L 201, p. 1; ‘Regulation No 1254/1999’).
      
      3 –	Council Regulation of 28 December 1992 establishing an additional levy in the milk and milk products sector (OJ 1992 L 405,
         p. 1).
      
      4 –	Article 6(2)(b) of Regulation No 1254/1999.
      
      5 –	Article 6(7) of Regulation No 1254/1999.
      
      6 –	Commission Regulation of 28 October 1999 laying down detailed rules for the application of Regulation No 1254/1999 as regards
         premium schemes (OJ 1999 L 281, p. 30; ‘the implementing regulation’).
      
      7 –	Commission Regulation of 11 December 2001 laying down detailed rules for applying the integrated administration and control
         system for certain Community aid schemes established by Council Regulation (EEC) No 3508/92 (OJ 2001 L 327, p. 11).
      
      8 –	Council Regulation (EEC) No 3508/92 of 27 November 1992 establishing an integrated administration and control system for
         certain Community aid schemes (OJ 1992 L 355, p. 1).
      
      9 –	See Case C‑34/05 Schouten [2007] ECR I‑1687, paragraph 25, and case-law cited therein.
      
      10 –	See Le Petit Robert, Dictionnaire de la langue française, Dictionnaires Le Robert, Paris, 2008, for definition in French.
      
      11 –	See paragraphs 33 and 34 of the French Government’s observations.
      
      12 –	See paragraph 41 of the Commission’s observations.
      
      13 –	See paragraph 18 of the Netherlands Government’s observations.
      
      14 –	See second recital of the implementing regulation, which refers expressly to the first recital of Regulation No 3508/92.
      
      15 –	See Annex I to the Commission’s observations.