Karl Spagl v Hauptzollamt Rosenheim.
Date: 1990-12-11
2 The questions were raised in proceedings brought by Karl Spagl, a farmer, against Hauptzollamt Rosenheim concerning a reference quantity under the additional levy scheme applicable to milk .
8 It must first be noted that the Community legislation on the additional levy on milk did not originally contain any specific provision for the grant of a reference quantity to producers who had not, pursuant to an undertaking given under Regulation No 1078/77, delivered milk during the reference year adopted by the Member State concerned . However, in its judgments in Case 120/86 Mulder [1988] ECR 2321, paragraph 28, and Case 170/86 von Deetzen [1988] ECR 2355, paragraph 17, the Court declared those provisions invalid for breach of the principle of legitimate expectations in so far as they did not provide for the allocation of such a reference quantity .
9 In those judgments, the Court stated, on the one hand, that a producer who had voluntarily ceased production for a certain period could not legitimately expect 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 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 could legitimately expect not to be subject, on the expiry of his undertaking, to restrictions which specifically affected him for the very reason that he had availed himself of the possibilities offered by the Community provisions ( Mulder, paragraph 24; von Deetzen, paragraph 13 ).
13 In that regard, the Community legislature was able validly to set a cut-off date by reference to the expiry of the period of non-marketing or conversion of the persons concerned, with a view to excluding from the benefit of Article 3a those producers who had not delivered milk during the whole or part of the reference year for reasons unconnected with the undertaking as to non-marketing or conversion . On the other hand, by virtue of the principle of the protection of legitimate expectations, as interpreted in the cases cited above, the cut-off date cannot be set in such a way that it has the effect of also excluding from the benefit of Article 3a producers whose failure to deliver milk for the whole or part of the reference year derives from the fulfilment of an undertaking given under Regulation No 1078/77 .
14 As the Court pointed out in its judgment in Mulder ( paragraphs 15 and 16 ), the applicable Community legislation does not in all cases ensure that the producers thus excluded from the grant of a representative reference quantity under Article 2 are able to obtain a special or additional reference quantity under other provisions of that legislation, since the grant of such quantities is subject to specific conditions and, moreover, can be envisaged only within the limit of the quantities available for that purpose .
24 In those circumstances, the application to the producers covered by Article 3a of a reduction of 40% which, far from being representative of the rates applicable to the producers covered by Article 2, is more than double the highest total of such rates, must be regarded as a restriction which specifically affects the first-mentioned category of producers by very reason of their undertaking as to non-marketing or conversion .
28 That argument likewise cannot justify the contested provisions . Even if an increase larger than the Community reserve could not be contemplated without the risk of disturbing the balance of the milk market, the fact remains that it would have been sufficient to reduce the reference quantities of the other producers proportionally by a corresponding amount, so as to be able to allocate larger reference quantities to the producers who gave an undertaking under Regulation No  1078/77 .
29 It follows that the contested 60% rule likewise infringes the legitimate expectations which the producers concerned were entitled to entertain as to the limited nature of their undertakings . The contested provision must therefore be declared void for breach of the principle of the protection of legitimate expectations, and it is unnecessary therefore to consider the other arguments concerning its validity made in the course of the proceedings .
30 For those reasons it must be stated in reply to the second question that Article 3a(2 ) of Council Regulation No 857/84 of 31 March 1984, as amended by Council Regulation 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 .