A. A. Herbrink v Minister van Landbouw, Natuurbeheer en Visserij.
Date: 1994-01-27
9 Before a ruling can be given on the question whether that provision is incompatible and invalid by reason of its going beyond the bounds of the enabling legislation, it should be considered, as the Netherlands Government has suggested, whether it may not in this case be interpreted as being consistent with the council regulations at issue and with the principle of the protection of legitimate expectations. The Court has consistently held (see the judgment in Joined Cases 201/85 and 202/85 Klensch and Others [1986] ECR 3477, paragraph 21, and, most recently, the judgment in Case C-314/89 Rauh [1991] ECR I-1647, paragraph 17) that where it is necessary to interpret a provision of secondary Community law, preference should as far as possible be given to the interpretation which renders the provision consistent with the Treaty and the general principles of Community law, and, more particularly as regards Article 3a of Regulation No 857/84, with the principle of the protection of legitimate expectations (judgment of 19 May 1993 in Case C-81/91 Twijnstra, not yet published in the ECR, paragraph 24).
13 The Court has held in that regard, particularly in its judgments in Case 5/88 Wachauf [1989] ECR 2609, paragraph 15, and in Case C-81/91 Twijnstra, cited above, paragraph 25, concerning the transfer of a holding by way of assignment or by a surrender upon the expiry of a lease, that the entire system of reference quantities is characterized by the principle laid down by Article 7(1) of Council Regulation No 857/84 and Article 5 of Commission Regulation (EEC) No 1371/84 of 16 May 1984 laying down detailed rules for the application of the additional levy referred to in Article 5c of Regulation (EEC) No 804/68 (Official Journal 1984 L 132, p. 11), as superseded subsequently by Article 7 of Commission Regulation (EEC) No 1546/88; according to that principle, a transfer of land in respect of which a reference quantity has been allocated necessarily entails the transfer of the reference quantity itself. It is therefore with a view to ensuring the application of that principle also with respect to special reference quantities that Article 3a(1) of Regulation No 1546/88, as inserted by Regulation No 1033/89, reinforces the condition laid down in Article 3a(1)(a) of Regulation No 857/84, by requiring that the producer must still be operating, in whole or in part, the same holding.
15 Since, as is demonstrated by the judgment in Case C-44/89 von Deetzen II [1991] ECR I-5119, paragraph 21, a lessee could expect, in his capacity as a producer and by virtue of the principle of the protection of legitimate expectations, to be able to carry on his activity under conditions that involved no discrimination between him and other producers, he was entitled, at the end of his non-marketing period, to expect also to benefit from a special reference quantity on the expiry of his lease, in so far as the Member State concerned had availed itself of the authorization provided for by Article 7(4) of Regulation No 857/84 and subparagraph (4) of the first paragraph of Article 7 of Regulation No 1546/88.
19 There is nothing, on the basis of the actual wording of Articles 3a and 12(c) of Regulation No 857/84, to preclude an initial lessee who is eligible for a special reference quantity from carrying on his milk production activity within the framework of an association or a group of persons formed by him and other persons for the purposes of operating a tenanted holding. However, the Court has held (see the judgment in von Deetzen II, cited above, paragraph 38), that a special reference quantity can be allocated only if the association or group of persons was not formed for the sole purpose of realizing, for the benefit of the initial lessee, the marketable value of that special reference quantity.
20 The status of a person entitled to a special reference quantity attaches to a producer within the meaning of Articles 3a and 12(c) of Regulation No 857/84. The concept of producer, which is the same as that under Article 3a of Regulation No 1546/88, refers to a farmer who operates, for the purposes of milk production, a set of production units for which he is himself responsible; where the holding is leased, those conditions are fulfilled in the person of the lessee alone, who enjoys the right to the use of the holding (judgment in Case C-236/90 Maier [1992] ECR I-4483, paragraph 11). Where the holding is relet to an association or a group in the circumstances set out above, the status of producer attaches to all the persons comprised in the association or group.
21 For those reasons, the answer to the second and third questions must be that Article 3a of Regulation No 857/84 is to be interpreted as meaning that it does not preclude the allocation of a special reference quantity following the reletting of a holding to the former producer, who was the initial lessee, in collaboration with other persons, and that that association or group of persons is to be regarded as a producer within the meaning of Articles 3a and 12(c) of Regulation No 857/84 and thus as the person entitled to the special reference quantity.
The fourth question
27 Nor, finally, contrary to the contention of the plaintiff in the main proceedings, do the rules as interpreted constitute a breach of the prohibition of discrimination, as laid down in Article 40(3) of the Treaty, which is the specific expression of the general principle of equality (see the judgments in Joined Cases C-267/88 to C-285/88 Wuidart and Others [1990] ECR I-435, paragraph 13, and Case C-177/90 Kuehn [1992] ECR I-35, paragraph 18).