CELEX: C2001/227/11
Language: en
Date: 2001-08-11 00:00:00
Title: 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

11.8.2001              EN                    Official Journal of the European Communities                                         C 227/7
      might be manifested. It is striking to note the importance        European Communities in Case T-73/94 between, on the one
      attached by the Court of Justice to the fact that in 1989,        hand, B.M.J.B. Beusmans and, on the other, the Council of
      immediately after being granted a provisional reference           the European Union and the Commission of the European
      quantity, the four producers concerned resumed milk               Communities was brought before the Court of Justice of
      production. That circumstance is totally disregarded in           the European Communities on 13 April 2001 by B.M.J.M.
      the considerations of the Court of First Instance as              Beusmans, represented by E.H. Pijnacker Hordijk, advocaat,
      contained in the contested judgment. For the rest, it             ther other parties to the proceedings being the Council of
      should be noted that, in its interim judgment in Mulder II,       the European Union, represented by A.M. Colaert, and the
      the Court of Justice did not deal at all with the specific        Commission of the European Communities, represented by
      issues concerning the SLOM 83 producers.                          T. van Rijn.
—     The Court of First Instance incorrectly allocated the             The appellant claims that the Courts should:
      burden of proof, or at least imposed on Mr Bouma a
      burden of proof which is legally impermissible: prior to          —     set aside the judgment delivered by the Court of First
      the entry into force of Regulation No 857/84, a SLOM                    Instance on 31 January 2001 in Case T-73/94 (1);
      producer in Mr Bouma’s situation could not assume that,           —     refer the case back to the Court of First Instance;
      if he did not resume production before 1 April 1984, he
      might forfeit, definitively and completely, his right to a        —     order the Council and the Commission to pay the costs
      reference quantity — or to alternative compensation. The                of the proceedings before both Courts.
      imposition of the burden of showing ‘that he had the
      intention of resuming milk production upon the expiry
                                                                        Pleas in law and main arguments
      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             The pleas in law and main arguments are analogous to those
      is faced, retroactively, with the consequences of the entry       in Case C-162/01 P.
      into force of that regulation.
                                                                        (1) OJ 1994 C 90, p. 25.
      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                 Appeal brought on 13 April 2001 by G. van den Berg
      during a period in the distant past — a fortiori since in no      against the judgment delivered on 31 January 2001 by the
      previous judgment of the Court of Justice or the Court of         Fourth Chamber of the Court of First Instance of the
      First Instance was any relevance attached to evidence             European Communities in Case T-143/97 between, on the
      concerning the points which the Court of First Instance           one hand, G. van den Berg and, on the other, the Council
      now regards as crucial.                                           of the European Union and the Commission of the
                                                                                            European Communities
—     The Court of First Instance set out and assessed the
      relevant facts in such an erroneous and biased manner                                    (Case C-164/01 P)
      that its judgment cannot be regarded as consistent with
      the obligation to provide reasons or the principle of
                                                                                                 (2001/C 227/11)
      objectivity.
                                                                        An appeal against the judgment delivered on 31 January 2001
(1) OJ 1993 C 334, p. 17.                                               by the Fourth Chamber of the Court of First Instance of the
(2) Judgment of 11 December 1990 in Case C-189/89.                      European Communities in Case T-143/97 between, on the one
(3) OJ 1984 L 148, p. 13.                                               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,
Appeal brought on 13 April 2001 by B.M.J.B. Beusmans                    represented by E.H. Pijnacker Hordijk, advocaat, the other
against the judgment delivered on 31 January 2001 by the                parties to the proceedings being the Council of the European
Fourth Chamber of the Court of First Instance of the                    Union, represented by A.M. Colaert, and the Commission of
European Communuties in Case T-73/94 between, on the                    the European Communities, represented by T. van Rijn.
one hand, B.M.J.B. Beusmans and, on the other, the                      The appellant claims that the Court s hould:
Council of the European Union and the Commission of
                   the European Communities                             —     set aside the judgment delivered by the Court of First
                                                                              Instance on 31 January 2001 in Case T-143/97 (1);
                        (Case C-163/01 P)                               —     refer the case back to the Court of First Instance for
                                                                              further determination of the action brought by the
                         (2001/C 227/10)                                      appellant before the Court of First Instance on 29 April
                                                                              1997;
An appeal against the judgment delivered on 31 January 2001             —     order the Council and the Commission to pay the costs
by the Fourth Chamber of the Court of First Instance of the                   of the proceedings before both Courts.
 ---pagebreak--- C 227/8                  EN                    Official Journal of the European Communities                                       11.8.2001
Pleas in law and main arguments                                                       appeared on the list of 31 March 1989, to whom a
                                                                                      settlement proposal was put forward pursuant to
                                                                                      Regulation No 2187/93 (2);
—     Infringement of Article 288 EC, violation of the principle
      of the protection of legitimate expectations, non-com-                    —     in the course of settlement negotiations conducted
      pliance with the obligation to provide a statement of                           after 1993 with SLOM producers not initially
      reasons and misinterpretation of the requirement of                             covered by the terms of Regulation No 2187/93
      causality, inasmuch as the Court of First Instance held                         but in respect of whom liability was subsequently
      that the damage suffered by Mr van den Berg after 13 May                        admitted, the Commission did not invoke prescrip-
      1986 was not attributable to the Community: the Court                           tion where the names of the SLOM producers
      of First Instance misconstrued the scope of the principle                       concerned appeared on the list in question, regard-
      of the protection of legitimate expectations, and applied                       less of whether or not the producers concerned had
      it in a manifestly incorrect way vis-à-vis Mr van den Berg.                     in the interim brought proceedings before the Court
      The fact is that, having in 1985-1986 deliberately taken                        of First Instance under Article 215 of the EC Treaty;
      the requisite steps to relocate his holding whilst retaining
      — had he had a ‘normal’ quota — the quota in question,                    —     in its rejoinder in Case T-179/96 Antonissen, the
      Mr van den Berg had a legitimate expectation that he                            Commission withdrew the plea of prescription
      would not be treated differently from a comparable                              initially put forward by it, after being confronted
      ‘normal’ producer merely because he was a SLOM                                  with the letter of 31 March 1989.
      producer. Furthermore, at the time when hechanged his
      holding, Mr van den Berg was entitled to expect that he             —     Violation of the principle of equality, the principle of
      would not thereafter, in 1989, be treated, on a retroactive               legal certainty, the principle of the protection of legitimate
      basis, differently from ‘normal’ producers.                               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
      Moreover, the Court of First Instance seriously miscon-                   Court of First Instance overlooked (i) the discrepancy
      strued the real scope of the judgment in Herbrink. If, by                 between the wording of the communication of 5 August
      way of derogation from the principle of attachment to                     1992 and that of Article 43 of the Statute and (ii) the
      the land, which forms part of the milk quota system, a                    manner in which the Commission had in practice
      departing tenant is to be permitted to take his quota with                interpreted and applied that communication in relation
      him to his new holding, a SLOM tenant should also be                      to those SLOM producers to whom the letter of 31 March
      allowed, in the same way, to take his milk quota with                     1989 had been addressed.
      him to a new holding.
—     Violation of the principle of equality, the principle of            (1) OJ 1997 C 199, p. 37.
      legal certainty, the principle of the protection of legitimate      (2) OJ 1993 L 196, p. 6.
      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          Action brought on 9 May 2001 by the Kingdom of the
      plead prescription, since the institutions must have been           Netherlands against the Commission of the European
      well aware of the fact that the case of Mulder II was                                          Communities
      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                                               (Case C-197/01)
      framed in terms wider than those of Article 43 of the
      Statute; it is quite clear from the wording of that                                           (2001/C 227/12)
      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                An action against the Commission of the European Communi-
      the institutions prior to that date, regardless of when that        ties was brought before the Court of Justice of the European
      happened.                                                           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 Court of First Instance failed to mention certain
      established facts in the contested judgment, in particular          The applicant claims that the Court should:
      the fact that:
                                                                          1.    Annul Regulation No 396/2001 (1) of 27 February 2001
      —      prescription was not taken into consideration with                 providing for the continued application of safeguard
             regard to any of the SLOM producers whose names                    measures for imports from overseas countries and terri-