Gerard Mulligan and Others v Minister for Agriculture and Food, Ireland and Attorney General.
Date: 2002-06-20
26 In order to interpret Article 7(1) of Regulation No 3950/92 and, more specifically, to ascertain whether clawback measures such as those at issue in the main proceedings may be included amongst the detailed rules to be determined by the Member States, it is first necessary to recall the Court's settled case-law to the effect that the entire system of reference quantities is based on the general principle laid down initially by Article 7 of Regulation No 857/84 and Article 7 of Commission Regulation (EEC) No 1546/88 of 3 June 1988 laying down detailed rules for the application of the additional levy referred to in Article 5c of Regulation No 804/68 (OJ 1988 L 139, p. 12) and then by the first subparagraph of Article 7(1) of Regulation No 3950/92. According to that principle, the reference quantity is allocated in relation to land and must therefore be transferred with that land (see, to that effect, Case C-98/91 Herbrink [1994] ECR I-223, paragraph 13, Case C-189/92 Le Nan [1994] ECR I-261, paragraph 12, Case C-463/93 St. Martinus Elten [1997] ECR I-255, paragraph 24; and Case C-15/95 EARL de Kerlast [1997] ECR I-1961, paragraphs 17 and 18).
30 Next, it must be observed that such an interpretation is not contrary to the specific objective pursued by the Community legislature in laying down the principle that the reference quantity attached to a holding is transferred only with that holding. That principle is merely the necessary corollary of the fundamental principle which follows from the general scheme of the provisions concerning the additional levy on milk, namely that a reference quantity can be allocated to a farmer only if he has the status of milk producer (see, to that effect, Case C-341/89 Ballmann [1991] ECR I-25, paragraph 9). In other words, the aim of the principle that the reference quantity is transferred only with the holding to which it is attached is to prevent reference quantities being used not in order to produce or market milk but in order to derive purely financial benefits by taking advantage of their market value.
33 However, in order to provide a full answer to the national court, it is necessary to point out that this finding cannot lead to the conclusion that the Member States are authorised to introduce any type of clawback measure in any circumstances whatsoever. It must be observed, first, that, having regard to the fact that the adoption of a national measure such as that at issue in the main proceedings falls within the scope of the common agricultural policy, such a measure cannot be established or applied in such a way as to compromise the objectives of that policy and, more particularly, those of the common organisation of the markets in the milk sector.
34 Second, as the first subparagraph of Article 7(1) of Regulation No 3950/92 itself provides, where the competent authorities of the Member States lay down or apply such measures they must do so on the basis of objective criteria.
35 Third, it is settled case-law that where Community rules leave Member States to choose between various methods of implementation, the Member States must exercise their discretion in compliance with the general principles of Community law (Joined Cases 201/85 and 202/85 Klensch and Others [1986] ECR 3477, paragraph 10).
36 Consequently, a clawback measure such as that at issue in the main proceedings must be established and applied in compliance with the principles of legal certainty and protection of legitimate expectations (see, to that effect, in particular Case C-63/93 Duff and Others [1996] ECR I-569, paragraph 34). Moreover, it must be proportionate to the aim pursued (see, to that effect, in particular Case C-22/94 Irish Farmers Association and Others [1997] ECR I-1809, paragraphs 30 and 31) and applied without discrimination (see, to that effect, in particular Klensch and Others, paragraph 8). Similarly, such a measure must respect fundamental rights, such as the right to property (see, to that effect, in particular Case C-2/92 Bostock [1994] ECR I-955, paragraphs 16 and 20) and the freedom to pursue a trade or profession (see, to that effect, in particular Joined Cases C-90/90 and C-91/90 Neu and Others [1991] ECR I-3617, paragraph 13).
40 According to the applicants in the main proceedings, in the present case the national measures implementing Regulation No 3950/92 set out in Notice No 266/20 have not complied with the principle of legal certainty, since they are not sufficiently clear and do not enable the national authorities, acting in accordance with the provisions of Community law, to know precisely the limits of their competence or individuals to act in full knowledge of the extent of their rights and obligations in the Community legal order. Still less do they make it possible to predict with reasonable certainty the precise legal implications of such a notice published in a newspaper.
46 It must be observed in that regard that, as has been pointed out in paragraphs 35 and 36 above, where a Community regulation allows the Member States a choice between various methods of implementation, they must exercise their discretion in accordance with the general principles of Community law, including the principle of legal certainty.
47 According to the case-law on this principle, the Member States must implement their obligations under Community law with unquestionable binding force and with the specificity, precision and clarity necessary to satisfy the requirements flowing from that principle (see, to that effect, in particular Case C-159/99 Commission v Italy [2001] ECR I-4007, paragraph 32). Mere administrative practices, which by their nature are alterable at will by the authorities and are not given appropriate publicity, cannot be regarded as constituting the proper fulfilment of a Member State's obligations under Community law, since they maintain, for the persons concerned, a state of uncertainty as regards the extent of their rights in an area governed by Community law (see, to that effect, in particular Case C-80/92 Commission v Belgium [1994] ECR I-1019, paragraph 20 and Case C-151/94 Commission v Luxembourg [1995] ECR I-3685, paragraph 18).
48 It is indeed true that the detailed rules for the exercise of a discretion given to the Member States by a Community regulation are governed by the public law of the Member States (Eridania and Società italiana per l'industria degli zuccheri, paragraph 34). However, it is apparent from the case-law set out in the previous paragraph that there may be an infringement of the principle of legal certainty, as a general principle of Community law, not merely on account of the content of the measures adopted by a Member State but also on account of the procedure or very nature of the legislative instrument chosen by that State in order to implement its obligations under the Community regulation. The requirements relating to the binding nature of the measures adopted by the Member States and appropriate publicity for those measures, which are recognised by that case-law, concern precisely the nature of the legislative instrument chosen and the procedure followed in order to adopt it.
51 With regard to the second aspect of that procedure, it suffices to observe that, although the principle of legal certainty requires appropriate publicity of the national measures adopted pursuant to a Community regulation, it is nevertheless the case that the principle does not prescribe any specific form of publicity, such as publication of the measures in the Official Journal of the Member State concerned.
52 As is clear from the case-law cited in paragraph 47 above, the reason why the principle of legal certainty, as a general principle of Community law, requires appropriate publicity of measures adopted by the Member States in implementation of an obligation under Community law is the obvious need to ensure that persons concerned by such measures are able to ascertain the scope of their rights and obligations in the particular area governed by Community law.