EARL de Kerlast v Union régionale de coopératives agricoles (Unicopa) and Coopérative du Trieux.
Date: 1997-04-17
16 In so far as that question requires an examination of the legal status under national law of the company concerned, it should first be pointed out that although the Court has no jurisdiction under Article 177 of the Treaty to apply the relevant rule of Community law to a particular dispute and thus to judge a provision of national law by reference to that rule it may, in the framework of the judicial cooperation provided for by that article and on the basis of the material presented to it, provide the national court with an interpretation of Community law which may be useful to it in assessing the effects of the provision in question (Case 20/87 Gauchard [1987] ECR 4879, paragraph 5).
The first part of the first question
17 The Court has consistently held that the entire system of reference quantities is based on the general principle laid down by Article 7 of Regulation No 857/84 and Article 7 of Regulation No 1546/88, that a reference quantity is allocated in relation to land and must therefore be transferred with that land (see, to that effect, Case C-463/93 Katholische Kirchengemeinde St Martinus Elten v Landwirtschtskammer Rheinland [1997] ECR I-0000, paragraph 24, Case C-98/91 Herbrink v Netherlands [1994] ECR I-223, paragraph 13, and Case C-189/92 Le Nan v Coopérative Laitière de Ploudaniel [1994] ECR I-261, paragraph 12).
18 Council Regulation (EEC) No 3950/92 of 28 December 1992 establishing an additional levy in the milk and milk products sector (OJ 1992 L 405, p. 1), which has been applicable from 1 April 1993, implemented that principle when the system of reference quantities was renewed.  The first subparagraph of Article 7(1) provides: `Reference quantities ... shall be transferred with the holding in the case of sale, lease or transfer by inheritance to the producers taking it over ...'.
21 With regard to the formal requirements and other conditions to which transfers of reference quantities are subject, it should be noted that Article 7 of Regulation No 857/84 and Article 7 of Regulation No 1546/88 mention only the sale, lease or transfer by inheritance of the holding, and operations which have comparable legal effects.  It is for the national court to determine, under the rules of its internal law, whether the operation which it has to consider can be classified as a sale or a lease or whether it has comparable effects within the meaning of those regulations (see, to that effect, Katholische Kirchengemeinde St Martinus Elten, cited above, paragraph 32).
22 However, the Court has held in that regard that the term `lease' implies a change in the possession of the production units in question within the contractual relations created by the lease and refers to any transfer, for consideration, of the right to use the holding, irrespective of the legal form taken by the transfer (see Case 5/88 Wachauf v Bundesamt für Ernährung und Forstwirtschaft [1989] ECR 2609, paragraph 15, and Case C-44/89 Von Deetzen v Hauptzollamt Oldenburg [1991] ECR I-5119 (`Von Deetzen II'), paragraph 37).
23 In accordance with point 3 of the first paragraph of Article 7 of Regulation No 1546/88, any operation, irrespective of the legal form in which it is effected, which has effects comparable to those of a lease may also be regarded as a lease for present purposes.  Such operations may therefore include, inter alia, transactions concluded in respect of the holding in the context of the formation of an association or group of persons, provided that the terms of the transaction are such that, according to its purpose and subject-matter, the main intention is that the holding should continue to be exploited by the association or group of persons, and that the association or group was not formed for the sole purpose of realizing the marketable value of the holding (see, for operations similar to inheritance, Von Deetzen II, cited above, paragraph 38).  That exclusion of transactions solely intended to realize marketable value, which hitherto has only been considered by the Court in cases concerning lessees, must also apply, for the same reasons and with the same purpose, to an owner and lessor.
24 In the case of a lease within the meaning of Article 7 of Regulation No 857/84 and Article 7 of Regulation No 3950/92, the lessee can have the benefit of the reference quantity attaching to the land forming part of the holding only in so far as he has, as a farmer, the status of a producer within the meaning of Article 12(c) of Regulation No 857/84.  With regard to the grant of a reference quantity, the Court made it clear in Case C-341/89 Ballmann v Hauptzollamt Osnabrück [1991] ECR I-25 that it follows from the general scheme of the provisions concerning the additional levy on milk that a reference quantity can be allocated to a farmer only if he has the status of producer.  By the same token, where a reference quantity has already been allocated, a transferee who takes over the land must have the same status of a producer in order for him to qualify for transfer of the reference quantity attaching thereto.  Consequently, the transfer by lease of a reference quantity together with the land to which it attaches can be effected in accordance with point 1 of the first paragraph of Article 7 of Regulation No 1546/88 and the first subparagraph of Article 7(1) of Regulation No 3950/92 only if the transferee has the status of a producer.
25 As the Court has held, the concept of producer given by the definitions in Article 12(c) and (d) of Regulation No 857/84, taken together, refers to a farmer who operates, for the purposes of milk production, a set of production units for which he is himself responsible (Herbrink, cited above, paragraph 20).  If the lease takes the form of the formation of an association or group of natural and legal persons in the circumstances set out above, all the persons making up the association or group must satisfy the necessary conditions to be met by a producer (Herbrink, paragraph 21).
The second part of the first question
30 It is clear from Case C-314/89 Rauh v Hauptzollamt Nürnberg-Fürth [1991] ECR I-1647, paragraph 10, that the latter article seeks essentially to ensure that, in certain circumstances, producers who did not deliver milk during the reference year, pursuant to an undertaking entered into under Council Regulation (EEC) No 1078/77 of 17 May 1977 introducing a system of premiums for the non-marketing of milk and milk products and for the conversion of dairy herds (OJ 1977 L 131, p. 1), obtain a special reference quantity.
35 It has been consistently held that the second subparagraph of Article 40(3) of the Treaty, the aim of which is to prohibit discrimination in the field of the common agricultural policy, is merely a specific expression of the general principle of equal treatment, a fundamental principle of Community law, which requires that comparable situations are not to be treated differently and different situations are not to be treated alike unless such treatment is objectively justified (Case 203/86 Spain v Council [1988] ECR 4563, paragraph 25).
36 The Court has also consistently held that, since Member States are bound by the fundamental principles of Community law when they implement Community legislation, that rule applies to national provisions, such as those in issue in this case, which determine, pursuant to the Community legislation on milk, the forms of joint exploitation of milk quantities (Case C-351/92 Graff v Hauptzollamt Köln-Rheinau [1994] ECR I-3361, paragraph 17, and Case C-2/92 The Queen v Ministry of Agriculture, Fisheries and Food ex parte Bostock [1994] ECR I-955, paragraph 16).