Ralf-Herbert Kühn v Landwirtschaftskammer Weser-Ems.
Date: 1992-01-10
11 As the Court has held, most recently in its judgment in Case 113/88 Leukhardt v Hauptzollamt Reutlingen [1989] ECR 1991, paragraph 13, the structure and purpose of the regulations concerned indicate that they contain an exhaustive list of the situations in which reference quantities or individual quantities may be granted and set out precise rules concerning the determination of those quantities. Since none of those provisions makes it possible for producers to obtain reference to milk deliveries in the situation which is the subject of the main proceedings, it must be considered impossible to obtain, for that reason, reference to a reference year other than that chosen by the Member State concerned, even in the case where the persons concerned cannot show a level of deliveries representative of the production capacity of the holding during the reference year.
13 Contrary to the contention of the plaintiff in the main proceedings, the legislation in question does not infringe the principle of the protection of legitimate expectations. The Court has consistently held that in the sphere of the common organization of the markets whose purpose involves constant adjustments to meet changes in the economic situation, economic operators cannot legitimately expect that they will not be subject to restrictions arising out of future rules of market or structural policy (see, to this effect, the judgments in Joined Cases 424/85 and 425/85 Frico v Voedesel Voor Zienings In-En Verkoopbureau [1987] ECR 2755, paragraph 33; Case 120/86 Mulder v Minister van Landbouw En Visserij [1988] ECR 2321, paragraph 23, and Case 170/86 Von Deetzen v Hauptzollamt Hamburg-Jonas [1988] ECR 2355, paragraph 12).
14 Moreover, the principle of the protection of legitimate expectations may be invoked as against Community rules, only to the extent that the Community itself has previously created a situation which can give rise to a legitimate expectation.
15 Thus an economic operator who has been encouraged by a Community measure to suspend marketing of milk for a limited period in the general interest and against payment of a premium may, therefore, legitimately expect not to be subject, upon the expiry of his undertaking, to restrictions which affect him specifically precisely because he availed himself of the possibilities offered by the Community rules (see the judgments in Mulder, paragraph 24, and Von Deetzen, paragraph 13, both cited above). On the other hand, the principle of the protection of legitimate expectations does not preclude, in the case of a scheme such as that concerning the additional levy, the imposition of restrictions on a producer by reason of the fact that he has not marketed milk or has marketed only a reduced quantity of milk during a period prior to the entry into force of that scheme, in consequence of a decision which he freely took without being encouraged to do so by a Community measure.
16 Nor, as thus interpreted, do the regulations infringe the right to property or the freedom of the producers concerned to pursue an occupation. Those rights, which are part of the fundamental rights the observance of which is ensured by the Court, are not absolute rights but must be considered in relation to their social function. Consequently, restrictions may be imposed on the exercise of those rights, in particular in the context of a common organization of the markets, provided that those restrictions in fact correspond to objectives of general interest pursued by the Community and do not constitute, with regard to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of those rights (see, for example, the judgment in Case 5/88 Wachauf v Bundesamt fuer Ernaehrung und Forstwirtschaft [1989] ECR 2609, paragraph 18).
18 Finally, as so interpreted, the regulations do not infringe the prohibition of discrimination laid down in Article 40(3) of the EEC Treaty, which is the specific expression of the general principle of equality (see, most recently, the judgment in Joined Cases C-267/88 to C-285/88 Wuidart and Others [1990] ECR I-467, paragraph 13). The situation of which the plaintiff in the main proceedings complains is the result of the fact that, by not providing the allocation of a reference quantity based on a representative production for producers whose milk deliveries began during the reference year chosen by the Member State concerned, the regulations in question affect that category of producers more severely than those who can show a representative production during that year. Such an effect is justified by the need to limit to the greatest extent possible, in the interests of both legal certainty and the effectiveness of the additional levy scheme, the situations which may justify the reference to another reference year. The difference in treatment concerned is therefore objectively justified and cannot, consequently, be regarded as discriminatory within the meaning of Article 40(3) of the EEC Treaty, as interpreted by the Court.
22 As the Court stated in its judgment in Wachauf, cited above, it is apparent from those provisions that the Community legislature intended that at the end of the lease the reference quantity should in principle return to the lessor who retakes possession of the holding, subject however to the Member States' power to allocate all or part of the reference quantity to the departing lessee. Those provisions however only refer, as their wording indicates, to the case where a reference quantity has always been allocated to a person, that is to say, the case where a transfer of the holding has occurred after the entry into force of the additional levy scheme.
24 Consideration and comparison of the above provisions show that transfers of holdings occurring before the entry into force of the additional levy scheme give rise to the transfer of the corresponding reference quantities only where the Member State concerned has provided for this in exercise of the power given to it in the second sentence of the third subparagraph of Article 5 of Regulation No 1371/84. It is only to that extent that deliveries of milk made during the reference year used by the Member State concerned by the lessee who previously managed the undertaking must be taken into consideration when determining the reference quantity allocated to the new lessee.