Georg von Deetzen v Hauptzollamt Oldenburg.
Date: 1991-10-22
12 It must be remembered that in its judgments of 11 December 1990 in Case C-189/89 Spagl v Hauptzollamt Rosenheim [1990] ECR I-4539, paragraph 30, and Case C-217/89 Pastaetter v Hauptzollamt Bad Reichenhall [1990] ECR I-4585, paragraph 21, the Court held that "Article 3a(2) of Council Regulation (EEC) No 857/84 of 31 March 1984, as amended by Council Regulation (EEC) No 764/89 of 20 March 1989, is invalid in so far as it restricts the special reference quantity provided for in that provision to 60% of the quantity of milk delivered or the quantity of milk equivalent sold by the producer during the 12 calendar months preceding the month in which the application for the non-marketing or conversion premium was made".
13 In the grounds of the judgments cited above, the Court found, essentially, that the application to the producers covered by Article 3a of a reduction rate of 40% which, far from corresponding to a value that was representative of the rates applicable to the producers who had delivered milk during the reference year adopted by the Member State concerned, was more than double the highest total of such rates, was to be regarded as a restriction which specifically affected the first-mentioned category of producers by the very reason of their undertaking as to non-marketing or conversion. It followed that the contested 60% rule frustrated the legitimate expectations which the producers concerned were entitled to entertain as to the limited nature of their undertakings and therefore had to be declared invalid for breach of the principle of the protection of legitimate expectations (Spagl, paragraphs 24 and 29; Pastaetter, paragraphs 15 and 20).
20 In those judgments, the Court found, first, that a producer who has voluntarily ceased production for a certain period cannot 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), but, on the other hand, that where such a producer has been encouraged by a Community measure to suspend marketing for a limited period in the general interest and against payment of a premium he may legitimately expect not to be subject, upon the expiry of his undertaking, to restrictions which specifically affect him precisely because he availed himself of the possibilities offered by the Community provisions (Mulder, paragraph 24; von Deetzen, paragraph 13).
21 The second subparagraph of Article 3a(4) of Regulation No 857/84, as amended, does not give rise, for the producers concerned, to specific restrictions of that kind which are incompatible with the requirements of protection of their legitimate expectations. Whilst those producers were legitimately entitled to expect to be able to resume the marketing of milk at the end of their non-marketing or conversion period, and to carry on that activity under conditions that involved no discrimination between them and other milk producers, they could not thereby expect that a common organization of the market would confer on them a commercial advantage which did not derive from their occupational activity. Those producers could not therefore expect to be in a position to dispose, for profit, of an advantage, such as the allocation of a reference quantity under the additional levy scheme, when that advantage had been conferred on them specifically in order to enable them to resume their occupational activity.
23 It is necessary to consider, secondly, whether the contested rules might be contrary to the prohibition of discrimination between Community producers laid down in Article 40(3) of the EEC Treaty. The Court has consistently held (see in particular the judgment in Joined Cases 201 and 202/85 Klensh and Others v Secrétaire d' Etat à l' Agriculture et à la Viticulture [1986] ECR 3477, paragraph 9) that that prohibition is merely a specific enunciation of the general principle of equality which is one of the fundamental principles of Community law. That principle requires that similar situations should not be treated differently unless differentiation is objectively justified.
24 In the present case, the refusal to afford the producers who received a special reference quantity under the contested provision the possibility of transferring that quantity to a purchaser or lessee of their holdings, even though such a possibility is available to those who received reference quantities under other provisions of the Community legislation, is justified by the need to prevent the former from seeking the allocation of a special reference quantity in order, not to resume the marketing of milk on an enduring basis, but to derive from that allocation a purely financial advantage by realizing the marketable value which the reference quantities have acquired in the meantime.
27 It must be emphasized in the first place that the right to property thus safeguarded within the Community legal order does not comprehend the right to dispose, for profit, of an advantage, such as the reference quantities allocated in the framework of the common organization of a market, which does not derive from the assets or occupational activity of the person concerned.
37 Since the legislation at issue is framed in that way, the terms "sold" and "leased" used in the second subparagraph of Article 3a(4) of Regulation No 857/84, as amended, must be construed as referring to any transfer, for consideration, of the ownership of or right to use the holding, whatever the legal basis of the transfer, with the exception of those cases in which it is the result of a "similar transaction" within the meaning of the first subparagraph of Article 7a of Regulation No 1546/88, as amended.
38 The term "similar transaction" must be interpreted as referring to any transaction, whatever its legal basis, which produces effects comparable to those of inheritance. It thus embraces, in particular, transactions concluded in respect of the holding concerned between a producer and the potential beneficiary of his estate, provided that the terms of the transaction in question are such that, according to its purpose and subject-matter, the main intention is that the holding should continue to be exploited by the potential beneficiary and not that the marketable value of the holding should be realized by the person from whom he stands to inherit.
39 It follows that neither the contribution of a holding to a private company in which the producer to whom the special reference quantity was granted has a share nor the fact that, under German law, the latter' s share in the company accrues to the other members following his death or withdrawal from the company nor the leasing of the holding to the potential beneficiary of the estate of the producer to whom the special reference quantity was granted can be excluded from the definition of "any similar transaction", provided that the conditions of the contract embodying the transaction in question are such that they place the potential beneficiary in a privileged position compared with that of an operator taking over a comparable holding on an arm' s length basis.