1. By his appeal, Mr van den Berg is seeking to have set aside the judgment of the Court of First Instance of the European Communities in Case T-143/97 Van den Berg v Council and Commission [2001] ECR II-277 (‘the judgment under appeal’), in which the Court dismissed his action under Article 178 and the second paragraph of Article 215 of the EC Treaty (now Article 235 EC and the second paragraph of Article 288 EC) to establish non-contractual liability on the part of the Community. Legal background The system of reference quantities
2. 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) provided for the payment of a non-marketing premium or a conversion premium to producers who undertook to cease marketing milk or milk products for a non-marketing period of five years or to cease marketing milk or milk products and to convert their dairy herds to meat production for a conversion period of four years.
3. Council Regulation (EEC) No 856/84 of 31 March 1984 amending Regulation (EEC) No 804/68 on the common organisation of the market in milk and milk products (OJ 1984 L 90, p. 10) and Council Regulation (EEC) No 857/84 of 31 March 1984 adopting general rules for the application of the levy referred to in Article 5c of Regulation (EEC) No 804/68 in the milk and milk products sector (OJ 1984 L 90, p. 13) introduced from 1 April 1984 an additional levy on quantities of milk delivered beyond a reference quantity to be determined per purchaser within a guaranteed total quantity for each Member State. The reference quantity to be exempt from the additional levy was equal to the quantity of milk or milk equivalent, either delivered by a producer or purchased by a dairy, as decided by the Member State, during the reference year, which in the case of the Netherlands was 1983.
4. Producers who did not deliver any milk during the reference year adopted by the Member State concerned, pursuant to an undertaking entered into under Regulation No 1078/77, were excluded from the allocation of a reference quantity. Those producers are commonly known as ‘SLOM producers’.
5. In its judgments in Case 120/86 Mulder [1988] ECR 2321 (‘ Mulder I ’) and Case 170/86 von Deetzen [1988] ECR 2355, the Court ruled that Regulation No 857/84, as supplemented by 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 (OJ 1984 L 132, p. 11), was invalid in so far as it did not provide for the allocation of a reference quantity to producers who, pursuant to an undertaking entered into under Council Regulation (EEC) No 1078/77 of 17 May 1977, did not deliver any milk during the reference year adopted by the Member State concerned.
6. Following those judgments, on 20 March 1989 the Council adopted Regulation (EEC) No 764/89 amending Regulation (EEC) No 857/84 (OJ 1989 L 84, p. 2), which entered into force on 29 March 1989, in order that SLOM producers might be allocated a special reference quantity representing 60% of their production during the 12 months preceding their undertaking to cease marketing or to convert given under Regulation No 1078/77.
7. In pursuance of Regulation No 764/89, Commission Regulation (EEC) No 1033/89 of 20 April 1989 amending Regulation (EEC) No 1546/88 laying down detailed rules for the application of the additional levy referred to in Article 5c of Council Regulation (EEC) No 804/68 (OJ 1989 L 110, p. 27), inserted in Regulation No 804/68 Article 3a, the first subparagraph of paragraph 1 of which reads: ‘The requests [for a special reference quantity] referred to in Article 3a(1) of Regulation (EEC) No 857/84 shall be made by the producers concerned to the competent authority designated by the Member State, in accordance with the procedure laid down by it and provided that the producers can prove that they still operate, in whole or in part, the same holdings as those they operated at the time of the approval, referred to in Article 5(2) of Commission Regulation (EEC) No 1391/78, of their premium applications.’ Reference quantities where a holding is transferred
8. As regards what happens to the reference quantity when a holding is transferred, Article 7(1) and (4) of Regulation No 857/84, as amended by Council Regulation (EEC) No 590/85 of 26 February 1985 (OJ 1985 L 68, p. 1), provides: ‘1. Where a holding is sold, leased or transferred by inheritance, all or part of the corresponding reference quantity shall be transferred to the purchaser, tenant or heir according to procedures to be determined. Where land is transferred to the public authorities and/or for public use, without prejudice to the second subparagraph of paragraph 3, Member States may provide that all or part of the reference quantity corresponding to the holding or to the part of the holding transferred shall be put at the disposal of the departing producer if he intends to continue milk production. … 4. In the case of rural leases due to expire, where the lessee is not entitled to an extension of the lease on similar terms, Member States may provide that all or part of the reference quantity corresponding to the holding which forms the subject of the lease shall be put at the disposal of the departing lessee if he intends to continue milk production.’
9. The first paragraph of 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 (EEC) No 804/68 (OJ 1988 L 139, p. 12) provides: ‘For the purposes of applying Article 7 of Regulation (EEC) No 857/84 and without prejudice to paragraph 3 thereof, the following rules shall apply to the transfer of reference quantities granted to producers and purchasers in application of formulas A and B and of reference quantities granted to producers selling for direct consumption: 1. Where an entire holding is sold, leased or transferred by inheritance, the corresponding reference quantity shall be transferred in full to the producer who takes over the holding. … 3. The provisions of points 1 and 2 and of the fourth subparagraph shall be applicable under the various national rules, in other cases of transfer which have comparable legal effects as far as producers are concerned. 4. In the event of the application of the second subparagraph of Article 7(1) of Regulation (EEC) No 857/84, concerning the transfer of land to the public authorities and/or for public use, and Article 7(4) of the said Regulation, concerning rural leases which are due to expire and which cannot be extended on similar terms, all or part of the reference quantity corresponding to the holding or to the part of the holding which is the subject of the transfer or of the said lease shall be put at the disposal of the producer concerned if he intends to continue milk production, provided that the sum of the reference quantity thus made available to him and the quantity corresponding to the holding which he takes over or on which he continues milk production does not exceed the reference quantity which was available to him before the land was transferred or before the lease expired.’ The rules concerning compensation and limitation
10. By an interim judgment in Joined Cases C-104/89 and C-37/90 Mulder and Others v Council and Commission [1992] ECR I-3061 (‘ Mulder II ’), the Court ruled that the European Community was liable for the damage suffered by certain milk producers who had given undertakings under Regulation No 1078/77 and had subsequently been prevented from marketing milk as a result of the application of Regulation No 857/84.
11. Following that judgment the Council and the Commission published Communication 92/C 198/04 in the Official Journal of the European Communities of 5 August 1992 (OJ 1992 C 198, p. 4, ‘the Communication of 5 August 1992’). The communication reads: ‘Following the judgment delivered by the Court of Justice of the European Communities on 19 May 1992 in Joined Cases C-104/89 ( Mulder ) and C-37/90 ( Heinemann ), the Community institutions deem it necessary to notify the parties concerned of the following: 1. The Court of Justice has recognised the Community's non-contractual liability under Article 215 of the EEC Treaty vis-à-vis all producers as defined in Article 12(c) of Regulation (EEC) No 857/84 who have suffered reparable injury falling within the terms of the abovementioned judgment owing to their not having, as a result of their participation in the system introduced by Regulation (EEC) No 1078/77, received a milk quota in good time and who satisfy the terms and criteria of that judgment. 2. The institutions undertake, with regard to all producers covered by point 1 and until the end of the period mentioned in point 3, not to plead that entitlement to claim is barred by lapse of time in accordance with the provisions of Article 43 of the Statute of the Court of Justice, provided that entitlement to compensation has not already been barred on grounds of time on the date of publication of this communication in the Official Journal of the European Communities or was not already barred on the earlier date on which the producer applied to one of the institutions. 3. In order to give full effect to the judgment of 19 May 1992 the institutions will adopt practical arrangements for compensating the persons concerned. Payment of interest will be dealt with in these arrangements. The institutions will specify to what authorities and within what period claims are to be made. Producers are assured that the possible recognition of their rights will be in no way affected if before the opening of this period they do not make an approach to the Community institutions or the national authorities.’
12. Following the Communication of 5 August 1992 the Council adopted Regulation (EEC) No 2187/93 of 22 July 1993 providing for an offer of compensation to certain producers of milk and milk products temporarily prevented from carrying on their trade (OJ 1993 L 196, p. 6).
13. Article 8 of that regulation provides: ‘1. Compensation shall be granted only for the period for which the right to compensation is not time-barred. 2. For the purpose of determining the period for which compensation shall be offered: (a) the date of interruption of the five-year time bar set by Article 43 of the Statute of the Court of Justice shall be the date of the application addressed to a Community institution or, in the case of an action brought before the Court of Justice, the date on which the application is entered in its register, or at the latest the date of the communication of the institutions published in the Official Journal of the European Communities No C 198 of 5 August 1992; …’
14. Article 10(2) of Regulation No 2187/93 provides: ‘The producer shall send his application to the competent authority. The application for production shall reach the competent authority, subject to rejection, by 30 September 1993 at the latest. The limitation period pursuant to Article 43 of the Statute of the Court shall start to run afresh for all producers on whichever of the two dates referred to in the first subparagraph is appropriate if the application referred to in that subparagraph has not been made by that date save where the limitation period has been interrupted by an application to the Court of Justice made in accordance with the same Article 43.’
15. Article 43 of the EC Statute of the Court of Justice provides: ‘Proceedings against the Community in matters arising from non-contractual liability shall be barred after a period of five years from the occurrence of the event giving rise thereto. The period of limitation shall be interrupted if proceedings are instituted before the Court or if prior to such proceedings an application is made by the aggrieved party to the relevant institution of the Community. In the latter event the proceedings must be instituted within the period of two months provided for in Article 173; the provisions of the second paragraph of Article 175 shall apply where appropriate.’
16. According to the first and second paragraphs of Article 175 of the EC Treaty (now the first and second paragraphs of Article 232 EC): ‘Should the European Parliament, the Council or the Commission, in infringement of this Treaty, fail to act, the Member States and the other institutions of the Community may bring an action before the Court of Justice to have the infringement established. The action shall be admissible only if the institution concerned has first been called upon to act. If, within two months of being so called upon, the institution concerned has not defined its position, the action may be brought within a further period of two months.’
17. In the cases which were the subject of Mulder II the Court ruled on the amount of compensation sought by the applicants by its judgment in Joined Cases C-104/89 and C-37/90 Mulder and Others v Council and Commission [2000] ECR I-203. The Netherlands rules
18. In pursuance of Regulations Nos 764/89 and 1033/89, the Kingdom of the Netherlands adopted on 16 May 1989 the decision known as ‘Beschikking Superheffing SLOM-deelnemers’ (Netherlands Decree on the application of the super-levy to participants in a scheme for the slaughter or conversion of dairy herds, ‘the BSD’). Article 3(1) of the BSD provides that a temporary reference quantity cannot be allocated under the BSD except in so far as ‘at the time the application is made, the producer still possesses, in his capacity as owner, long-time lessee or tenant, in whole or in part, and still in that capacity operates on his own account and at his own risk, the undertaking to which the non-marketing agreement related …’. Facts
19. The facts on which Mr van den Berg’s appeal is based are set out as follows in paragraphs 14 to 21 of the judgment under appeal: ‘14 The applicant is a milk producer in the Netherlands. As he gave a non-marketing undertaking, in the context of Regulation No 1078/77, which expired on 23 February 1985, he did not produce any milk during the reference year chosen pursuant to Regulation No 857/84. He was therefore unable to be allocated a reference quantity following the entry into force of that regulation. 15 On 1 May 1985 the applicant acquired a holding at Dalfsen (Netherlands), which he operated together with his initial holding, at Wijhe (Netherlands), for one year. He sold his holding at Wijhe on 13 May 1986. 16 By letter of 31 March 1989 from their legal representative to the Council [of the European Union] and the Commission [of the European Communities], the applicant and 351 other producers listed in an annex to the letter who, as a result of having entered into an undertaking pu rsuant to Regulation No 1078/77, had not delivered milk during the reference year, commonly known as SLOM producers, stated that they held the Community liable for the damage resulting from the invalidity of Regulation No 857/84 as established by the Court of Justice in Mulder I . The institutions did not reply to that letter. 17 Following the Mulder I judgment and the adoption of Regulation No 764/89, the applicant again requested the allocation of a quota in June 1989. That request was rejected on 30 August 1989, on the ground that the applicant no longer operated the same holding as the one he had operated at the time of entering into his non-marketing undertaking. 18 The applicant unsuccessfully challenged before the national courts that decision rejecting his application. The decision therefore became final. 19 By letter of 14 July 1992, the applicant’s legal representative claimed on behalf of the applicant and the producers referred to in the annex to the letter of 31 March 1989 that the limitation period had been interrupted on the date of that letter. By letter of 22 July 1992, the Director-General of the Legal Service of the Council replied that time had begun to run again in respect of the 348 producers, including the applicant, who had not brought an action. None the less, he accepted that the letter of 14 July 1992 might constitute in their regard a fresh application for the purposes of Article 43 of the Statute of the Court of Justice. He further stated that the Council would not plead the limitation period between that date and 17 September 1992 provided that the applications for compensation submitted by the persons concerned were not already time-barred on 14 July 1992. Finally, he stated: “During that period, the institutions will endeavour to adopt together the practical arrangements for compensation, in accordance with the judgment of the Court of Justice. Accordingly, there is no need to institute proceedings before the Court of Justice in order to prevent time beginning to run again. If these procedures are not determined by 17 September next, the Council will inform you what steps to take.” 20 By letter of 10 September 1993, concerning compensation for certain producers in the context of Regulation No 2187/93, the Commission informed the Netherlands authorities: “Enclosed is the list of SLOM applicants who, by virtue of the general communication from the Community institutions of 5 August 1992, interrupted the limitation period applicable to their requests for compensation by referring the matter to the Commission, the Council or the Court of Justice.” 21 The applicant’s name appeared on that list and in his case 31 March 1989 was stated to be the date on which time was suspended pursuant to the Communication of 5 August 1992.’ Proceedings before the Court of First Instance and the judgment under appeal
20. By application lodged at the Registry of the Court of First Instance on 29 April 1997, Mr van den Berg brought an action against the Council and the Commission, under Article 178 and the second paragraph of Article 215 of the Treaty, to establish non-contractual liability on the part of the Community.
21. By order of 24 June 1997, the Court of First Instance stayed the proceedings pending the final judgment of the Court of Justice in Joined Cases C-104/89 Mulder and Others v Council and Commission and C-37/90 Heinemann v Council and Commission . After the parties had been heard on 30 September 1998 at an informal meeting, the proceedings were resumed by order of the President of the Fourth Chamber of the Court of First Instance of 11 March 1999.
22. In his action, Mr van den Berg claimed that the Community should be ordered to pay him the sum of NLG 606 315 by way of damages, together with default interest at the rate of 8% per annum from the day on which the application was lodged.
23. By the judgment under appeal, the Court of First Instance dismissed the application as inadmissible and ordered Mr van den Berg to pay the costs. Community liability
24. The Court summarised in paragraph 38 of the judgment under appeal the conditions relating to Community liability. It held in paragraphs 39 and 40 that the Community is liable to SLOM producers on the basis of infringement of the principle of the protection of legitimate expectations.
25. As regards the claim for compensation for damage in respect of the period between 23 February 1985 and 13 May 1986, the date on which Mr van den Berg sold his SLOM holding, the holding in respect of which he had given an undertaking to cease marketing under Regulation No 1078/77, the Court held in paragraph 42 of the judgment under appeal that there was no dispute that, pursuant to Regulation No 857/84, the applicant was unable to market any milk and that the corresponding damage was attributable to the Community.
26. In the subsequent paragraphs of the judgment under appeal the Court considered to what extent the damage alleged in respect of the period after 13 May 1986 was a consequence of the initial refusal to grant the applicant a quota in 1985.
27. In that regard, the Court held in paragraphs 44 to 46 of the judgment under appeal: ‘44 The applicant transferred his SLOM holding in 1986 and transferred production to another holding for reasons of economic efficiency. Clearly, that decision on the applicant’s part, taken of his own free will, had no connection with the refusal to grant him a quota upon the expiry of his non-marketing undertaking in 1985. 45 Furthermore, it follows from Article 7(1) of Regulation No 857/84, as amended by ... Regulation ... No 590/85 … , in conjunction with Article 7 of Regulation No 1546/88, that even in the situation of a milk producer who had not given a non-marketing or conversion undertaking, the possibilities of transferring a quota from one holding to another were limited either to cases where land was transferred to the public authorities and/or for public use (Article 7(1)), or to those where rural leases were due to expire and could not be renewed (Article 7(4)). 46 Therefore, even supposing it were true that in 1985/1986 producers with a reference quantity were able to transfer it in accordance with Netherlands administrative practice, that situation would not have been one with which the Community legislature was concerned and it would have been for the Netherlands authorities, should the need arise, to accord the applicant non-discriminatory treatment.’
28. In paragraph 47 of the judgment under appeal, the Court held that, following the entry into force of Regulation No 764/89, Mr van den Berg’s application for a quota under that measure was rejected pursuant to Article 3a(1) of Regulation No 1546/88, as amended by Regulation No 1033/89, which provides that in order to be granted a special reference quantity producers must be able to prove that on the date of making such application they still operate the SLOM holding, in whole or in part.
29. In paragraph 48 of the judgment under appeal the Court assessed that measure as follows: ‘Contrary to what the applicant claims, however, and as the Court of Justice has already held on a number of occasions (see, in particular, Case C-98/91 Herbrink [1994] ECR I-223), that requirement merely establishes in relation to special reference quantities the principle laid down in Article 7(1) of Regulation No 857/84 that the reference quantity is transferred with the land in respect of which it was allocated (paragraph 13). In those circumstances, the applicant cannot maintain that the application of that requirement in his case constitutes an infringement of the principle of protection of legitimate expectations in that he could not foresee at the time of transferring his SLOM holding that such a condition would be imposed.’
30. The Court made the following findings in paragraphs 49 and 50 of the judgment under appeal: ‘49 Since the sale of the applicant’s SLOM holding was not the consequence of his having been unlawfully refused a quota in 1985, and since the circumstances of the sale were not such that it was covered by the possibilities of transfer provided for in Regulation No 857/84, the reasons for which the applicant was unable to obtain a quota under Regulation No 764/89 and the consequent harm cannot be attributed to the Community. 50 It follows that the damage sustained by the applicant as a result of being deprived of a reference quantity can only be that incurred up to 13 May 1986.’ Limitation
31. In paragraphs 58 to 60 of the judgment under appeal, the Court considered the conditions whereby limitation may be pleaded. It stated that it was from 23 February 1985, the date on which Regulation No 857/84 became applicable to Mr van den Berg, that the requirements for bringing an action for damages against the Community were fulfilled and that the limitation period started to run. It held that in the present case entitlement to compensation related to consecutive periods commencing on each day on which it was not possible to market milk.
32. On the basis of Article 43 of the EC Statute of the Court of Justice, the Court of First Instance noted, in paragraph 61 of the judgment under appeal, that the limitation period expired five years after 13 May 1986, the date on which the SLOM holding was sold, that is to say on 13 May 1991, unless it was interrupted before that date.
33. As regards possible interruption of the limitation period, the Court held in paragraph 63 of the judgment under appeal that the applicant could not rely, for the purposes of interruption of the limitation period provided for in Article 43 of the Statute of the Court of Justice, on the letter of 31 March 1989 to the institutions, since he did not subsequently institute proceedings before the Court of First Instance.
34. Mr van den Berg’s argument that it followed from the fact that the Communication of 5 August 1992 was applied in his case that the Council and the Commission undertook not to plead that his claim was time-barred after 31 March 1989, the date on which he submitted a claim to the institutions, was refuted as follows in paragraphs 65 to 67 of the judgment under appeal: ‘65 It should be pointed out, in that regard, that the waiver of the right to plead that entitlement to claim was time-barred contained in the Communication of 5 August 1992 was a unilateral act which was intended to limit the number of actions brought by encouraging producers to await the introduction of the flat-rate compensation scheme provided for by Regulation No 2187/93 ([Case T-222/97] Steffens v Council and Commission [[1998] ECR II-4175], paragraph 38). 66 That communication was specifically aimed at producers whose entitlement to compensation was not yet time-barred on the date on which it was published in the Official Journal or on the date on which they had already applied to one of the institutions … By the latter reference, the defendants were referring to producers who had applied to the institutions before the publication of the Communication in order to claim entitlement to compensation on the basis of Mulder II and who had been requested not to initiate actions for damages pending the adoption of the regulation determining flat-rate compensation. The purpose of that reference was to protect those producers’ entitlement to compensation. 67 However, the letter of 31 March 1989 was never followed by a reply from the defendants and, consequently, they never gave any commitment in regard to the applicant on that date. In those circumstances, the applicant cannot rely on the Communication of 5 August 1992.’
35. In paragraphs 68 to 70 of the judgment under appeal the Court rejected Mr van den Berg’s argument based on the fact that his name was on a list sent to the Netherlands authorities in a letter from the Commission dated 10 September 1993, after the entry into force of Regulation No 2187/93, which set out the producers entitled to benefit from the undertaking given in the Communication of 5 August 1992 (‘the list of 10 September 1993’).
36. In that regard, the Court explained in paragraph 69 of the judgment under appeal that ‘… that list was sent to the national authorities in order to inform them, in case they should receive claims for compensation within the compromise arrangement provided for in Regulation No 2187/93, of the date from which the limitation period for claims had been interrupted. It did not distinguish the SLOM producers who had been allocated a definitive reference quantity, and who were therefore entitled to receive a proposal for a compromise pursuant to Regulation No 2187/93, from those who, like the applicant, had not received a quota and consequently did not come within such a compromise arrangement. It follows that the applicant’s name was included on that list in error.’
37. In paragraph 70 of the judgment under appeal the Court of First Instance pointed out that such an error was not capable of leading the applicant to believe that he was entitled to take advantage of the undertaking given in the Communication of 5 August 1992 and that the limitation period in respect of his request had been interrupted with effect from 31 March 1989. According to the Court, when the list of 10 September 1993 was sent the applicant was already aware that he was not entitled to take advantage of the compromise offer provided for in Regulation No 2187/93 and that he was therefore not concerned by the abovementioned undertaking.
38. In paragraph 71 of the judgment under appeal the Court rejected the argument that there had been discrimination, stating that the position of the Council and the Commission as regards the limitation period in respect of the action did not amount to discrimination against the applicant by comparison with the Commission’s attitude to the SLOM producers who received offers of compensation, since the applicant’s position was different from that of those entitled to take advantage of Regulation No 2187/93.
39. As regards Mr van den Berg’s assertions that a member of the Commission’s Legal Service confirmed to the applicant’s legal representative by telephone that the letter of 31 March 1989 constituted a measure that suspended the running of time, the Court held in paragraph 72 of the judgment under appeal that they were not supported by any evidence. Forms of order sought and grounds for setting aside the judgment
40. Mr van den Berg claims that the Court should - set aside the judgment under appeal, - refer the case back to the Court of First Instance for it to rule on the proceedings at first instance, and - order the Council and the Commission to pay the costs of the proceedings before both courts.
41. The Council contends that the Court should: - dismiss the appeal as being partly inadmissible and, at any event, totally unfounded, and - order the appellant to pay the costs.
42. The Commission contends that the Court should: - declare the appeal unfounded, - in the alternative, declare the action for compensation inadmissible, and - order the appellant to pay the costs.
43. Mr van den Berg relies on three grounds in support of his claim for the judgment under appeal to be set aside.
44. In the first ground he submits that the second paragraph of Article 215 of the Treaty, the principle of the protection of legitimate expectations and the obligation to state reasons were infringed and that the causal link had been misinterpreted since the Court of First Instance incorrectly assessed the Community’s liability when it held that the damage he claims he suffered after 13 May 1986 should not be attributed to the Community.
45. In the second and third grounds Mr van den Berg contends that the Court of First Instance infringed the principles of equality, legal certainty, the protection of legitimate expectations and the obligation to state reasons, since it ignored some essential facts in its assessment of the issue of limitation, or set them out in a manifestly incorrect manner. In that regard, he submits that the Court failed to find that the Commission had waived the right to plead limitation in respect of a group of SLOM producers, including himself, and wrongly considered that his application was completely time-barred. The appeal First ground
46. In the first ground, Mr van den Berg challenges the legal finding made by the Court of First Instance in paragraphs 43 to 50 of the judgment under appeal, which deal with the question whether the Community’s liability towards him ended on the date on which he transferred his initial holding and for that very reason.
47. Mr van den Berg raises three complaints in the context of the first ground. They are, first, that the Court of First Instance misinterpreted the division of tasks and powers between the Community and the executive authorities of the Member States; second, that it infringed the principle of the protection of legitimate expectations and misconstrued the judgment in Herbrink , cited above, with regard to application of the requirement laid down by Regulation No 1033/89, whereby a SLOM producer must still have the initial holding in whole or in part, and, third, that it misapplied the requirement relating to a causal link.
48. The first and third complaints, which should be dealt with together, are considered in paragraphs 49 to 62 of this judgment and the second complaint is dealt with in paragraphs 63 to 73. First and third complaints - Mr van den Berg’s arguments
49. In the context of the first complaint, alleging misinterpretation of the division of tasks and powers between the Community and the executive authorities of the Member States, Mr van den Berg disputes in particular the Court’s finding, in paragraph 46 of the judgment under appeal, as regards the ‘system’ applying to ‘normal producers’, that is to say those who had received a reference quantity. It is irrelevant as regards assessing his rights, he maintains, whether the rules in question stem directly from Community regulations or were contained in the national implementing measures, since those measures were compatible with the Community framework.
50. The question which arises is whether, when they adopted the legislation relating to special reference quantities for SLOM producers, such as that contained in Regulations Nos 764/89 and 1033/89, the Community institutions were legally bound to treat SLOM producers as far as possible in the same way as other national producers.
51. Mr van den Berg maintains that he does not understand the Court’s assertion in paragraph 46 of the judgment under appeal that ‘it would have been for the Netherlands authorities, should the need arise, to accord the applicant non-discriminatory treatment’. It is correct in itself that the Netherlands authorities should have treated him in a non-discriminatory manner, but the question is whether Community legislation allowed those authorities to do so. The appellant points out that the situation was precisely that it did not. The premiss, which is legally incorrect, on which that assertion is based is that when implementing Regulations Nos 764/89 and 1033/89 the authorities had the power to grant him a reference quantity according to the principle of equality.
52. The third complaint alleges that the Court of First Instance misapplied the requirement relating to the causal link between the unlawful refusal to grant a reference quantity and the alleged damage. Mr van den Berg claims that, contrary to what the Court of First Instance held, the refusal to grant him a special reference quantity in 1989 cannot be attributed to the fact that he had transferred his holding, and that the refusal should be attributed to the relevant Community legislation, which means that he has been treated differently from a ‘normal producer’ in that regard. The principle is that transfer of a holding, as in the appellant’s case, should not have negative consequences for such a producer.
53. Mr van den Berg refers in particular to an alleged Netherlands administrative practice allowing milk producers who had received a reference quantity under Regulation No 857/84 to change holdings from one location to another without losing that reference quantity provided they are operated in parallel as a single dairy holding for at least a year. He asserts that that practice was in compliance with Community law. In his opinion, in view of such compliance, the damage he claims to have suffered following the sale of his initial holding until the entry into force of Regulation No 764/89 is the fault of the Community institutions.
54. The refusal to grant him a special reference quantity in 1989 under that regulation cannot be due to the fact that he had transferred his holding. That refusal should be attributed to the relevant Community legislation, which means that, being a SLOM producer, he was treated differently from a ‘normal producer’.
55. Mr van den Berg maintains that he does not understand the concept of causality adopted by the Court of First Instance. The Court has applied the criterion of causality to the link between the initial legislation relating to the additional levy and the transfer of the holding in 1986. Clearly no such link exists. In his view, the requisite causal link concerns the relationship between the unlawful measure introduced by the Community legislature and the loss of income he himself sustained. - Findings of the Court
56. The Court of First Instance rightly held in paragraph 43 of the judgment under appeal that it was necessary to consider to what extent the damage claimed to have been sustained after 13 May 1986 was a consequence of the initial refusal to grant the applicant a quota in 1985. Since the Court found that the sale of the SLOM holding had not been a consequence of that refusal, that finding should be understood to mean that that sale cannot be regarded as a link in the chain of events caused by that refusal.
57. As the Advocate General stated in points 55 and 56 of her Opinion, an act of the Community institutions is the cause of damage only where such damage can be attributed directly and exclusively to such act. The requisite causal link does not exist where the damage would also have occurred in the absence of the relevant act of the Community institutions.
58. If Mr van den Berg had obtained a reference quantity under Regulation No 857/84, in the event of the sale of his holding he could not have transferred his reference quantity to a new holding, for the reasons set out in paragraph 45 of the judgment under appeal. Therefore, any damage arising after the sale of the initial holding is not due to the unlawful refusal to grant the reference quantity following the undertaking to cease marketing.
59. The argument based on the alleged Netherlands administrative practice cannot be accepted. That practice has no basis in the Community legislation relating to the additional levy applying at the date of the sale of Mr van den Berg’s holding.
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).
61. Although Mr van den Berg maintains that the refusal to grant him a special reference quantity under Regulation No 764/89 in 1989 cannot be attributed to the fact that he had transferred his holding, his arguments are also based on the premiss that producers who had received a reference quantity were able to keep it, according to the alleged Netherlands administrative practice, even in the event of the sale of their initial holding. As may be seen in paragraph 59 of the present judgment, such a practice has no basis in Community legislation.
62. It is clear from the above considerations that the first and third complaints put forward by Mr van den Berg in support of his first ground of appeal must be rejected. Second complaint - Mr van den Berg’s arguments
63. In the second complaint put forward by Mr van den Berg, he contends that in paragraph 48 of the judgment under appeal the Court of First Instance infringed the principle of the protection of legitimate expectations. According to him, the Court would appear to have ruled that the appellant cannot rely on that principle because the expectation pleaded did not warrant such protection.
64. Mr van den Berg states that he is relying on the expectation that he would not be treated differently from a producer who had obtained a reference quantity, that is to say, that he would not be subjected to particular restrictions merely because he is a SLOM producer. It was precisely that expectation which the Court of Justice held to be legitimate in Herbrink , cited above. In that regard, Mr van den Berg bases his case on paragraph 15 of that judgment in particular.
65. He submits that at the time he transferred his holding he could also have legitimately expected that subsequently, in 1989, he would not be treated, retrospectively, any differently from a ‘normal producer’. - Findings of the Court
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.
67. Since producers who did receive a reference quantity under Regulation No 857/84 were subject, following the sale of their initial holdings, to the same consequences as those complained of by Mr van den Berg, the latter is not specifically, in his capacity as a SLOM producer, subject to restrictions in the context in question.
68. The judgment in Herbrink , cited above, does not in any way alter that finding. In that regard, it should be pointed out that in paragraph 15 of that judgment the Court of Justice, applying the principle of the protection of legitimate expectations, acknowledged the right of a departing lessee to continue 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 authorisation provided in that respect by the Community legislation for a lessee in the same situation possessing a reference quantity granted under Article 2 of Regulation No 857/84.
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.
70. Mr van den Berg’s legitimate expectations were also not infringed in 1989.
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.
72. It follows that that requirement cannot be regarded as having been introduced with retrospective effect, but that SLOM producers should expect to be subject to a requirement such as that mentioned above in order to receive the same treatment as producers who have received a reference quantity.
73. The second complaint cannot therefore be accepted.
74. It follows from the above considerations that the first ground put forward by Mr van den Berg in support of his appeal must be rejected as unfounded. Second and third grounds Mr van den Berg’s arguments
75. Mr van den Berg states that his second ground concerns exclusively limitation of the action in so far as it relates to the period up until 5 August 1992. He contends that the Commission waived its right to plead limitation in respect of a particular group of SLOM producers to which he belongs or at least that it was, by its own action, deprived of the right to plead limitation against them. He also bases his case on a measure that suspended the running of time, namely the letter of 31 March 1989 by which he himself and 351 other Netherlands and Irish SLOM producers stated that they held the Community liable for the damage they had sustained as a result of the invalidity of Regulation No 857/84, as the Court of Justice established in Mulder I.
76. In the light of that letter in particular, following the Mulder II judgment, the Council and the Commission published the Communication of 5 August 1992. During the consultation which took place at that time regarding the effects of that judgment between the appellant and the 351 other SLOM producers on the one hand, and the Council and the Commission on the other, it was clearly stated on behalf of those SLOM producers that the institutions could not plead limitation because the proceedings in Mulder II were intended to be a test case for those producers as a class. The said communication was deliberately worded in broader terms than those of Article 43 of the EC Statute of the Court of Justice and, in the sentence ‘provided that entitlement to compensation has not already been barred on grounds of time … on the earlier date on which the producer applied to one of the institutions,’ covered the letter of 31 March 1989.
77. Mr van den Berg claims that the fact that the Communication of 5 August 1992 makes no distinction based on the date on which the producers in question approached one of the Community institutions in question for the first time is decisive. The communication makes no distinction based on whether that contact took place for the first time in 1989, 1990, 1991 or 1992. He infers from this that it is quite clear from the wording of the communication that the Community itself waived the right to plead limitation in respect of periods prior to the date of 5 August 1992 against any milk producer who applied to one of those institutions before that date, irrespective of when the claim for compensation was made.
78. In Mr van den Berg’s view, in accordance with the literal interpretation of the Communication of 5 August 1992 limitation was not relied upon against any of the SLOM producers on the list of 10 September 1993 to whom a compromise was proposed under Regulation No 2187/93.
79. Mr van den Berg claims that it is none the less common ground that in the compromise negotiations held after 1993 with SLOM producers who were not covered by Regulation No 2187/93, but in respect of whom the Community’s liability was acknowledged none the less, the Commission likewise did not rely on the limitation when the SLOM producer in question appeared on the list of producers who put in issue that liability in the letter of 31 March 1989. The Court of First Instance was wrong not to mention that fact in the judgment under appeal. It also omitted to mention that the Commission, in its rejoinder lodged in the case that gave rise to the order of 29 November 1996 in Case T-179/96 R Antonissen v Council and Commission [1996] ECR II-1641, withdrew the ground of limitation after the producer’s legal representative in that case pointed out the wording of the letter of 31 March 1989.
80. Lastly, Mr van den Berg objects to the point made in paragraph 72 of the judgment under appeal concerning contacts that took place between the legal representative of the Netherlands SLOM producers and a member of the Commission’s Legal Service. In his view, the Court of First Instance was wrong to allow the burden of proof to be placed on him as regards the comments made by a Commission official. The comments concerned, which were summarised by the Commission in response to a written question from the Court of First Instance, should at least be considered to be an implicit acknowledgement.
81. With regard to the third ground, Mr van den Berg points out that it also relates to the finding by the Court of First Instance that he cannot rely on the Communication of 5 August 1992 as regards interruption of the limitation period in respect of periods after that date.
82. He contends with regard to paragraphs 62 and 63 of the judgment under appeal that in order to interrupt the period of limitation he relied not on Article 43 of the EC Statute of the Court of Justice but on the Communication of 5 August 1992. He argued that in the light of the wording of the Communication the Community had waived the right to plead the limitation against him since, so far as he was concerned, ‘entitlement to compensation had not already been barred on grounds of time … on the earlier date on which the producer applied to one of the institutions,’ since he had already applied to the institutions on 31 March 1989.
83. Mr van den Berg also complains that the Court of First Instance, in paragraphs 66 and 67 respectively of the judgment under appeal, failed to note, on the one hand, the conflict between the wording of the Communication of 5 August 1992 and that of Article 43, and on the other hand the interpretation and application of that communication made in practice by the Commission in its relations with the SLOM producers listed in the letter of 31 March 1989. The Court made a distinction between ‘producers who had applied to the institutions before the publication of the communication in order to claim entitlement to compensation on the basis of Mulder II and [whom the defendants had] requested not to initiate actions for damages pending the adoption of the regulation determining flat-rate compensation’ and producers to whom the institutions had not made a request of that nature. The wording of that communication in no way allows such a distinction to be made, however.
84. The Court of First Instance substituted its own views both for the terms of the Communication of 5 August 1992 and for the application of it in practice in the context of the letter of 31 March 1989. By ruling in this way it seriously infringed in Mr van den Berg’s case the principles of equality, legal certainty and the protection of legitimate expectations and the obligation to state reasons. The Court does not give the slightest plausible indication to explain why the appellant could or should be subjected to discrimination by comparison with all the other SLOM producers, who, the Commission has clearly accepted, could rely on both the letter of 31 March 1989 and the Communication of 5 August 1992 to interrupt the limitation period.
85. In paragraphs 68 and 69 of the judgment under appeal the Court failed to recognise the significance of the list of 10 September 1993 which the Commission had sent to the Netherlands authorities. That list was further confirmation of the fact that, by the Communication of 5 August 1992, the Commission had waived the right to rely on limitation against all those on whose behalf the letter of 31 March 1989 had been sent to the institutions. Mr van den Berg accepts that he himself was unaware of that list, but he contends that the SLOM producers were informed of the fact that the Commission had expressly accepted in its correspondence with the Netherlands authorities that the period of limitation had been interrupted on the basis of the letter of 31 March 1989.
86. In the light of that finding, Mr van den Berg also challenges paragraph 70 of the judgment under appeal. That paragraph expresses in particular the notion that SLOM producers who did not fall within the scope of Regulation No 2187/93 - irrespective even of the context of the letter of 31 March 1989 - could by no means derive rights, retrospectively, from the Communication of 5 August 1992 because the latter is deemed to have been addressed solely to producers whose entitlement to compensation was expressly recognised in 1993 by that regulation. He considers that the latter interpretation of the communication is absurd. In his view, it is hard to understand how a promise made unilaterally (in 1992) can be annulled or restricted by a statement made subsequently (in 1993).
87. Mr van den Berg considers that, according to the Court of First Instance itself, which has acknowledged the Community’s liability towards him, he falls within the terms of the Communication of 5 August 1992.
88. Having wrongly held that his action was already time-barred in full by 30 September 1993, the Court of First Instance should not have approached the question whether and, if so, to what extent there was a partial limitation between 30 September 1993 and 29 April 1997, the date on which he brought his action for damages. The Court of First Instance should consider that question later when the Court of Justice has remitted the present case back to it.
89. Mr van den Berg submits that if it is held that his action is partially time-barred it cannot be wholly time-barred. In the worst case, the action would be out of time for a period of 3 years, 6 months and 29 days. As the damage to him began on 23 February 1985 he would at least be entitled to reparation of the damage he sustained after 24 August 1988. As that damage is still continuing the Community is liable towards him. Findings of the Court of Justice
90. The main complaint raised in the second and third grounds alleges that the Court of First Instance misinterpreted the Communication of 5 August 1992. In essence, Mr van den Berg is complaining that the Court failed to draw the correct legal inferences from that communication.
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).
92. As regards producers whose entitlement to compensation was not yet time-barred on the date on which they applied to one of the institutions, the Court of First Instance, as is clear from paragraphs 66 and 67 of the judgment under appeal, interpreted the Communication of 5 August 1992 as referring only to persons who had been asked by those institutions not to initiate actions for damages pending the adoption of the regulation determining flat-rate compensation.
93. That criterion is not clear from the Communication of 5 August 1992. Even if the Council and the Commission had proposed to limit the circle of producers provided for by the communication in that way they did not express that intention in it. In those circumstances, Mr van den Berg could legitimately expect to be one of the producers in respect of whom the institutions had waived their entitlement to plead limitation in accordance with the communication in question.
94. It follows therefore that the Court of First Instance erred in finding that Mr van den Berg could not rely on the Communication of 5 August 1992. In view of that error of interpretation, it is no longer necessary to consider the appellant’s arguments that the list of 10 September 1993 and the comments of a member of the Commission’s Legal Service confirm his interpretation of that communication.
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).
96. In that regard, it should be pointed out that under point 2 of the Communication of 5 August 1992 the institutions undertook ‘until the end of the period mentioned in point 3’ of that communication not to plead that entitlement to claim compensation was barred by lapse of time.
97. Point 3 states that the institutions will adopt practical arrangements for compensating the producers concerned. The second sentence in that point states that ‘the institutions will specify to what authorities and within what period claims are to be made’.
98. Those arrangements were introduced by Regulation No 2187/93, the second sentence of the first subparagraph of Article 10(2) of which provides that ‘the application for production shall reach the competent authority, subject to rejection, by 30 September 1993 at the latest’.
99. The waiver of reliance on the limitation period, set out in the Communication of 5 August 1992, therefore ended on 30 September 1993. After that date the latter no longer precluded the institutions from pleading that Mr van den Berg’s entitlement to claim compensation was barred by lapse of time. Although Mr van den Berg did not appear among the producers who fulfilled the conditions for benefiting from an offer of compensation under the abovementioned regulation, he had no reason to believe that the institutions had waived, in respect of his right to compensation, their entitlement to plead limitation, without any temporal restriction. The intention of those institutions to waive the right to plead limitation only to a partial extent is clear from point 2 of the Communication of 5 August 1992.
100. That communication does not have the effect of causing a new five-year period of limitation to run from 30 September 1993. It should rather be understood to mean that where, as in the present case, an application within the meaning of the first subparagraph of Article 10(2) of Regulation No 2187/93 had not reached the competent authority by 30 September 1993 at the latest, the Council and the Commission decided not to take into account in calculating the period of limitation the period between the date on which the producer approached one of the institutions in order to claim entitlement to compensation that was not yet time-barred and 30 September 1993.
101. As regards the period of limitation in respect of the damage suffered by Mr van den Berg as a result of being unable to obtain a reference quantity from 23 February 1985 until 13 May 1986, the date on which his SLOM holding was sold, it must be noted that that damage was, as the Court of First Instance held in paragraph 60 of the judgment under appeal, continuous and recurred on a daily basis, and entitlement to compensation relates, therefore, to consecutive periods commencing on each day on which it was not possible to market milk. Hence, the period of five years provided for in Article 43 of the EC Statute of the Court of Justice started to run, in respect of the damage suffered on the first day, namely 23 February 1985, on 24 February of that year, and for the last day on which damage materialised, namely 13 May 1986, the following day, 14 May 1986. It is common ground that Mr van den Berg’s application was not lodged at the Court of First Instance until 29 April 1997. Thus, even excluding the period between the date on which the letter of 31 March 1989 was received and 30 September 1993, the five-year period of limitation had already lapsed by the date on which that application was lodged.
102. Contrary to what Mr van den Berg contends, the letter of 31 March 1989 did not interrupt the period of limitation permanently. Since that letter was not followed by the commencement of an action before the Court of First Instance within the period laid down in Article 43 of the EC Statute of the Court of Justice it can no longer be relied upon as grounds for interrupting the period of limitation.
103. Mr van den Berg’s entitlement to compensation was therefore time-barred on the date on which he brought his action before the Court of First Instance.
104. In so far as Mr van den Berg pleads infringement of the principle of equality, that complaint forms part of his case that he can rely on the Communication of 5 August 1992. He does not contend that the Commission refrained from pleading limitation in the case of producers whose entitlement was time-barred, despite the effects of the Communication of 5 August 1992 in their favour, nor that the Court of First Instance erred in law in that respect.
105. It follows from all the above considerations that the appeal must be dismissed. Costs
106. The first paragraph of Article 122 of the Rules of Procedure provides that where the appeal is unfounded the Court is to make a decision as to costs. Under Article 69(2) of those Rules, applicable to appeal proceedings under Article 118 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Council and the Commission have submitted that Mr van den Berg should be ordered to pay the costs and the latter has been unsuccessful, he must be ordered to pay the costs.