CELEX: C1996/016/11
Language: en
Date: 1996-01-20 00:00:00
Title: Reference for a preliminary ruling from the Schleswig-Holsteinisches Oberverwaltungsgericht, by order of that court of 27 October 1995, in the case of Matthias Witt v. Amt für Land- und Wasserwirtschaft (Case C-356/95)

20 . 1 . 96            EN                   Official Journal of the European Communities                                     No C 16/5
               JUDGMENT OF THE COURT                                   other, in order to determine whether there has been
                       ( Second Chamber)                               over-production at national level.
                    of 16 November 1995
                                                                       (>) OJ No C 233 , 20 . 8 . 1994 .
in Case C- 1 96/94 (reference for a preliminary ruling
made by the Judicial Committee of the Conseil d'État,
Luxembourg): Catherine Schiltz-Thilmann v. Minister for
                          Agriculture i 1 )
(Preliminary reference — Interpretation of Article S (c) of            Reference for a preliminary ruling from the Bayerisches
Regulation (EEC) No 804/68 of the Council of 27 June                   Verwaltungsgericht Miinchen by order of that court of
1968 on the common organization ofthe market in milk and               14 June 1995 in the case of Selma Kadiman v. Freistaat
milk products — Additional levy — Reference quantity —                                                  Bayern
                             Exceeded)                                                          ( Case C-351/95 )
                           ( 96/C 16/09 )                                                           ( 96/C 16/10.)
                                                                       Reference has been made to the Court of Justice of the
                                                                       European Communities by an order of the Seventh
                (Language of the case: French)                         Chamber of the Bayerisches Verwaltungsgericht Miinchen
                                                                       ( Administrative Court of Bavaria, Munich ) of 14 June 1995 ,
                                                                       which was received at the Court Registry on 13 November
                                                                       1 995, for a preliminary ruling in the case of Selma Kadiman
(Provisional translation; the definitive translation will be           v. Freistaat Bayern on the following questions:
          published in the European Court Reports)
                                                                       1 . does the applicability of the first sentence of Article 7 of
                                                                             Decision No 1/80 of the EEC/Turkey Association
In Case C- 1 96/94 : reference to the Court under Article 177
                                                                             Council on the development of the Association
                                                                              ('Decision No 1/80 ') presuppose that the family must
of the EC Treaty by the Judicial Committee of the Conseil                    still be living together at the time when the other
d'État, Luxembourg, for a preliminary ruling in the                          conditions are fulfilled ?
proceedings pending before that court between Catherine
Schiltz-Thilmann and the Minister of Agriculture — on
the interpretation of Article 5 ( c ) of Regulation ( EEC )            2 . Does the applicability of the first indent of the first
No 804/68 of the Council of 27 June 1968 on the common                        sentence of Article 7 of Decision No 1 /80 presuppose
organization of the market in milk and milk products ( OJ,                   three years' uninterrupted legal residence in a Member
English Special Edition 1968 (I), p. 176 ), as amended by                     State of the Community ?
Council Regulation ( EEC ) No 856/84 ( OJ No L 90, p. 10 )
and Council Regulation ( EEC ) No 1298/85 ( OJ No L 137,               3 . Is a voluntary or forced intermediate stay of five months
p . 5 ), and Article 6 ( a ) of Council Regulation ( EEC )                    in Turkey to be counted towards the period of three
No 857/84 of 31 March 1984 adopting general rules for the                     years' legal residence within the meaning of the first
                                                                              indent of the first sentence of Article 7 of Decision
application of the levy referred to in Article 5 ( c ) of
                                                                              No 1 /80 ?
Regulation ( EEC ) No 804/68 in the milk and milk products
sector ( OJ No L 90, p. 13 ), as amended by Council
Regulation ( EEC ) No 590/85 ( OJ No L 68 , p. 1 ) — the
Court ( Second Chamber ), composed of: G. Hirsch,
President of the Chamber, G. F. Mancini ( Rapporteur ) and
F. A. Schockweiler, Judges; G. Cosmas, Advocate-General;               Reference for a preliminary ruling from the
R. Grass, Registrar, gave a judgment on 16 November 1995 ,             Schleswig-Holsteinisches Oberverwaltungsgericht, by order
the operative part of which is as follows:                             of that court of 27 October 1995 , in the case of Matthias
                                                                                 Witt v. Amt fiir Land- und Wasserwirtschaft
                                                                                                 ( Case C-356/95 )
Article 6 (a) of Council Regulation (EEC) No 857/84 of                                               ( 96/C 16/11 )
3 1 March 1 984 adopting general rules for the application of
the levy referred to in Article 5 (c) of Regulation (EEC)              Reference has been made to the Court of Justice of
No 804/68 in the milk and milk products sector, as amended             the European Communities by an order of the
 by Council Regulation (EEC) No 590/85 of 26 February                   Schleswig-Holsteinisches Oberverwaltungsgericht (Higher
 1985, and Article 5 (c) (7) of Regulation (EEC) No 804/68             Administrative Court of the Land Schleswig-Holstein ),
 ofthe Council of27June 1968 on the common organization                Third Chamber, of 27 October 1995 , which was received at
 of the market in milk and milk products, as amended by                 the Court Registry on 21 November 1995 , for a preliminary
 Council Regulation (EEC) No 856/84 of 31 March 1984                    ruling in the case of Matthias Witt v . Amt fur Land- und
and subsequently by Council Regulation (EEC) No 1298/85                 Wasserwirtschaft on the following questions:
 of 23 May 1985, are to be interpreted as meaning that they
 do not allow aggregation of the reference quantities for               ( a ) Is   a   Member         State  entitled, under  the  first
 direct sales and for deliveries, which are independent ofeach                 subparagraph of Article 3 ( 1 ) of Council Regulation
 ---pagebreak--- No C 16/6                EN                  Official Journal of the European Communities                                      20 . 1 . 96
        ( EEC ) No 1765/92 ( ) of 30 June 1992 establishing a                     of the Community legal system caused the applicant
        support system for producers of certain arable crops, to                  damage which is not yet possible to quantify with
        establish separate production regions without                             certainty;
        indicating the decisive 'criteria' in that regard ?
                                                                              2 . the European Atomic Energy Community should
( b ) If question ( a ) above is answered in the affirmative, is a                compensate the damage on a basis to be agreed
        Member State which under the third sentence of the
                                                                                  between the parties or, failing agreement within 60
        second subparagraph of Article 2 ( 2 ) of Regulation                      days from delivery of the judgment, on a basis to be
        ( EEC ) No 1765/92 has designated not its entire                          defined by the Court.
        territory but — as in the case of the Federal Republic of
        Germany — merely particular parts of it as base area
        regions, entitled in principle under the first
        subparagraph of Article 3 ( 1 ) of Regulation ( EEC )           Pleas in law and main arguments adduced in support:
        No 1765/92 to establish the whole territory of a
        particular base area region also as a production region         Breach of Community law: The Commission disputed the
        with a uniform average cereals yield ? In the situation         finding of the Court of First Instance that Article 66 of the
        described, in which cases do the ' specific characteristics     EAEC Treaty requires users to exhaust internal sources of
        that influence yields such as soil fertility' require a more    supply before resorting to external suppliers. None the less,
        extensive division of base area regions into individual         users may refuse supplies from the Agency and seek supplies
        production regions with different average cereals               outside the Community (Article 66 ) only if they can claim
        yields ?                                                        that the price is excessive ( not having been corrected by the
                                                                        Council, under Article 69 , or by the equalization
H OJ No L 181 , 1 . 7. 1992 , p . 12 .                                  procedure ). The inescapable conclusion must be that
                                                                        Community production offered to the Agency has an
                                                                        assured outlet on the internal market inasmuch as demand
                                                                        exceeds supply, provided that the prices asked are not
                                                                        excessive . The Community preference for producers is
                                                                        obvious .
Appeal brought on 21 November 1995 by ENU ( Empresa
Nacional de Urânio SA) against the judgment delivered on
 15 September 1995 by the Second Chamber ( extended                     Beyond Community production, the Commission will meet
 composition ) of the Court of First Instance of the European           orders only if it obtains supplies from outside the
 Communities in Joined Cases T-458/93 and T-523/93                      Community. In other words, the only production on which
between ENU (Empresa Nacional de Urânio SA) and the                     the Agency and the users may count with any certainty is the
             Commission of the European Communities                     production compulsorily offered to the Agency by
                          Case C-357/95 P )                             Community producers. The Agency must therefore dispose
                                                                        preferentially of the Community production to meet orders,
                             ( 96/C 16/12 )                             resorting to importation only where this proves to be
                                                                        necessary. Failure to act in that way would prejudice the
 An appeal against the judgment delivered on 15 September                'fundamental objective' of the survival and the
 1 995 by the Second Chamber ( extended composition ) of the            encouragement of Community production and, in the long
 Court of First Instance of the European Communities in                 term, ensuring the self-sufficiency of the Community .
 Joined Cases T-458/93 and T-523/93 between ENU
 ( Empresa Nacional de Urânio SA) and the Commission of
 the European Communities was brought before the Court                   Guaranteeing the disposal of the small production of the
 of Justice of the European Communities on 21 November                   ENU, offered to the Agency at a price which is not excessive,
  1 995 by ENU ( Empresa Nacional de Urânio SA),                         does not even require Community preference to be invoked
 represented by Joâo Mota de Campos and by Joâo Luis                     or recognized. It is clear that, as soon as there is Community
 Mota de Campos, of the Lisbon Bar, with an address for                  product available at 'non-excessive' prices, the Agency has
 service in Luxembourg at the Chambers of Joaquim Calvo                  the power to supply users and the latter may not import
 Basarân, 34 Boulevard Ernest Feltgen.                                   directly by virtue of Article 66 . In view of the undisputed
                                                                         fact that Community production is insufficient, covering
 The appellant claims that the Court should :                            only 25 % of a growing market, the above would guarantee
                                                                         the disposal of the small production of ENU.
  ( a ) declare well-founded the application for the annulment
          of the Commission decision challenged before the
          Court of First Instance and, accordingly, declare the          Breach of Community law: the failure by the Agency to
          decision void;                                                 comply with the rules laid down in Chapter VI, under the
                                                                         aegis of the Commission, which disregarded the Treaty,
  ( b ) find that the action for damages brought against the             entailed serious damage for ENU, which must be made good
          Commission, in the terms set forth in the original              by the Community.
          application, is well founded and therefore that:
          1 , the infringement by the Commission of the
              provisions of the EAEC Treaty and of the principles