J. M. Mulder and others and Otto Heinemann v Council of the European Communities and Commission of the European Communities.
Date: 1992-05-19
3 It should be observed in limine that Council Regulation No 857/84, as supplemented by Commission Regulation No 1371/84, originally did not provide for the allocation of a reference quantity to producers who, pursuant to an undertaking given under Regulation No 1078/77, delivered no milk during the reference year adopted by the Member State concerned. However, by judgments of 28 April 1988 in Case 120/86 Mulder v Minister van Landbouw en Visserij [1988] ECR 2321, paragraph 28, and in Case 170/86 von Deetzen v Hauptzollamt Hamburg-Jonas [1988] ECR 2355, paragraph 17, the Court declared those rules invalid on the ground that they were in breach of the principle of the protection of legitimate expectations in so far as they did not provide for the allocation of such a quantity.
4 In those judgments, the Court held that a producer who had voluntarily ceased production for a certain period could not legitimately expect to be able to resume production under the same conditions as those which previously applied and not to be subject to any rules of market or structural policy adopted in the meantime (Mulder, paragraph 23; von Deetzen, paragraph 12). The Court added, however, that where such a producer had been encouraged by a Community measure to suspend marketing for a limited period in the general interest and against payment of a premium he might legitimately expect not to be subject, upon the expiry of his undertaking, to restrictions which specifically affected him precisely because he availed himself of the possibilities offered by the Community provisions (Mulder, paragraph 24; von Deetzen, paragraph 13).
6 That 60% rule, too, was declared invalid by the Court for being in breach of the principle of the protection of legitimate expectations on the ground that the application to the producers covered by Article 3a of Regulation No 857/84, as amended, of a reduction of 40% which, far from being representative of the rates applicable to the producers covered by Article 2, was more than double the highest total of such rates, must be regarded as a restriction which specifically affected the first-mentioned category of producers by very reason of their undertaking as to non-marketing or conversion (judgments of 11 December 1990 in Case C-189/89 Spagl v Hauptzollamt Rosenheim [1990] ECR I-4539, paragraphs 24 and 29, and in Case C-217/89 Pastaetter v Hauptzollamt Bad Reichenhall [1990] ECR I-4585, paragraphs 15 and 20).
9 That argument cannot be accepted. The defendant institutions do not claim that it was for the Member States to allocate reference quantities to the applicants using powers which were not provided or appropriate for dealing with cases of farmers who entered into non-marketing undertakings. Accordingly, the unlawfulness alleged in support of the claim for damages must be regarded as issuing, not from a national body, but from the Community legislature; hence any damage ensuing from the implementation of the Community rules by national bodies is attributable to the Community legislature (see the judgment in Case 175/84 Krohn v Commission [1986] ECR 753, in particular at paragraphs 28 and 19).
13 The Court has also consistently held that, in order for the Community to incur non-contractual liability, the damage alleged must go beyond the bounds of the normal economic risks inherent in the activities in the sector concerned (see the judgments in Case 238/78 Ireks-Arkady v Council and Commission [1979] ECR 2955, paragraph 11, in Joined Cases 241, 242 and and 245 to 250/78 DGV v Council and Commission [1979] ECR 3017, paragraph 11, in Joined Cases 261 and 262/78 Interquell Staerke v Council and Commission [1979] ECR 3045, paragraph 14, and in Joined Cases 64 and 113/76, 167 and 239/78, 27, 28 and 45/79 Dumortier Frères v Council [1979] ECR 3091, paragraph 11).
33 As regards income from any replacement activities which is to be deducted from the hypothetical income referred to above, it must be noted that that income must be taken to include not only that which the applicants actually obtained from replacement activities, but also that income which they could have obtained had they reasonably engaged in such activities. This conclusion must be reached in the light of a general principle common to the legal systems of the Member States to the effect that the injured party must show reasonable diligence in limiting the extent of his loss or risk having to bear the damage himself. Any operating losses incurred by the applicants in carrying out such a replacement activity cannot be attributed to the Community, since the origin of such losses does not lie in the effects of the Community rules.