G. van den Berg v Council of the European Union and Commission of the European Communities.
Date: 2004-10-28
60. As regards the assertion by the Court of First Instance that it was for the Netherlands authorities to accord the applicant non-discriminatory treatment, it is clear from paragraph 46 of the judgment under appeal that it is included merely for the sake of completeness. Complaints directed against the grounds of a judgment of the Court of First Instance included merely for the sake of completeness must be rejected outright since such grounds cannot provide any basis for setting that judgment aside (see Case C-82/01 P Aéroports de Paris  v Commission  [2002] ECR I-9297, paragraph 41).
66. It is clear from paragraph 24 of Mulder I  that Mr van den Berg was legitimately entitled to expect not to be subject to restrictions that would specifically affect him due to the fact that he had taken advantage of the opportunities offered by Community legislation, namely the system of premiums for the non-marketing of milk and milk products introduced by Regulation No 1078/77.
69. The alleged Netherlands administrative practice cannot give rise to a legitimate expectation on the part of a producer that he will receive treatment in accordance with that practice from the Community. Mr van den Berg could not have expected the treatment claimed that would have enabled him to retain the special reference quantity after transferring the initial holding unless, as in the case of the legislation at issue in Herbrink , cited above, the relevant Community system made provision for competent national authorities to have such a power or the Community had previously created a situation which could give rise to such a legitimate expectation (see Case C-22/94 Irish Farmers Association and Others  [1997] ECR I-1809, paragraph 19, and Case C-107/97 Rombi and Arkopharma  [2000] ECR I-3367, paragraph 67). However, that is not so in the present case.
71. The requirement laid down in Article 3a(1) of Regulation No 1546/88, as amended by Regulation No 1033/89, that the producer concerned must still operate, in whole or in part, the same holding as the one he operated at the time of the approval of his premium application, is in line with the rules rightly set out by the Court of First Instance in paragraphs 45 and 48 of the judgment under appeal, which apply to all milk producers. Under those rules, the reference quantity is in principle transferred with the land in respect of which it was allocated (see Herbrink , cited above, paragraph 13) and opportunities for transferring a quota from one holding to another exist only as an exception.
91. Such a matter is a question of law which, as such, may be subject to review by the Court of Justice in an appeal (Case C-470/00 P Parliament  v Ripa di Meana and Others  [2004] ECR I-0000, paragraph 41).
95. However, where the grounds of a judgment of the Court of First Instance disclose an infringement of Community law but the operative part of the judgment is shown to be well founded for other legal reasons, the appeal must be dismissed (see Case C-30/91 P Lestelle  v Commission  [1992] ECR I-3755, paragraph 28, Case C-210/98 P Salzgitter  v Commission  [2000] ECR I-5843, paragraph 58, and Case C-312/00 P Commission  v Camar and Tico  [2002] ECR I-11355, paragraph 57).