1. By order of 6 December 2000, received at the Court Registry on 12 January 2001, the Verwaltungsgericht Hannover (Administrative Court, Hanover, Germany) referred for a preliminary ruling under Article 234 EC a question on the validity of Commission Regulation (EC) No 2799/1999 of 17 December 1999 laying down detailed rules for applying Regulation (EC) No 1255/1999 as regards the grant of aid for skimmed milk and skimmed-milk powder intended for animal feed and the sale of such skimmed-milk powder (OJ 1999 L 340, p. 3).
2. That question was raised in proceedings between Molkerei Wagenfeld Karl Niemann GmbH & Co. KG ( "Niemann" ) and the Bezirksregierung Hannover (Hanover Regional Government) on the application made by Niemann for the grant of aid for skimmed milk for animal feed. Legal framework
3. Article 34(1) EC provides: "In order to attain the objectives set out in Article 33, a common organisation of agricultural markets shall be established. This organisation shall take one of the following forms, depending on the product concerned: (a) common rules on competition; (b) compulsory coordination of the various national market organisations; (c) a European market organisation. "
4. Article 34(2) EC provides: "The common organisation established in accordance with paragraph 1 may include all measures required to attain the objectives set out in Article 33, in particular regulation of prices, aids for the production and marketing of the various products, storage and carryover arrangements and common machinery for stabilising imports or exports. The common organisation shall be limited to pursuit of the objectives set out in Article 33 and shall exclude any discrimination between producers or consumers within the Community. ... "
5. Article 10 of Council Regulation (EEC) No 804/68 of 27 June 1968 on the common organisation of the market in milk and milk products (OJ, English Special Edition 1968 (I), p. 176), as last amended by Council Regulation (EC) No 1587/96 of 30 July 1996 (OJ 1996 L 206, p. 21; "Regulation No 804/68" ), provides: "1. Aid shall be granted for skimmed milk and skimmed-milk powder intended for use as feedingstuffs, if these products reach certain standards. For the purposes of this Article, buttermilk and buttermilk powder shall be regarded as skimmed milk and skimmed-milk powder. 2. The Council, acting in accordance with the voting procedure laid down in Article 43(2) of the Treaty on a proposal from the Commission, shall adopt general rules governing the aid provided for in this Article and in particular the conditions under which such aid may be granted. 3. Detailed rules for the application of this Article, and in particular the amount of the aids, shall be adopted in accordance with the procedure laid down in Article 30. "
6. On the basis of Article 10(2) of Regulation No 804/68, the Council subsequently adopted Regulation (EEC) No 986/68 of 15 July 1968 laying down general rules for granting aid for skimmed milk and skimmed milk powder for use as feed (OJ, English Special Edition 1968 (I), p. 260).
7. In order to lay down the detailed rules for applying those general rules, the Commission adopted three different regulations. One of those was Commission Regulation (EEC) No 1105/68 of 27 July 1968 on detailed rules for granting aid for skimmed milk for use as feed (OJ, English Special Edition 1968 (II), p. 379), as last amended by Commission Regulation (EC) No 1802/95 of 25 July 1995 amending the regulations that fixed, prior to 1 February 1995, certain prices and amounts in the market in milk and milk products of which the value in ecus was adapted as a result of the abolition of the correction factor for agricultural conversion rates (OJ 1995 L 174, p. 27, "Regulation No 1105/68" ). That regulation laid down the detailed rules for the grant of aid for skimmed milk in liquid form intended for use as animal feed.
8. Regulation No 804/68 was replaced with effect from 1 January 2000 by Council Regulation (EC) No 1255/1999 of 17 May 1999 on the common organisation of the market in milk and milk products (OJ 1999 L 160, p. 48). Regulation No 1255/1999 also repealed Regulation No 986/68.
9. Article 10 of Regulation No 1255/1999 provides: "There shall be adopted in accordance with the procedure laid down in Article 42: (a) the detailed rules for the application of this chapter and, in particular, those for establishing the market prices for butter; (b) the amounts of aid for private storage referred to in this chapter; (c) the other decisions and measures which may be taken by the Commission under this chapter. "
10. Article 11 of Regulation No 1255/1999 provides: "1. Aid shall be granted for skimmed milk and skimmed-milk powder intended for use as feedingstuffs, if these products reach certain standards. For the purposes of this Article, buttermilk and buttermilk powder shall be regarded as skimmed milk and skimmed-milk powder. 2. Aid amounts shall be fixed taking into account the following factors: ─ the intervention price for skimmed-milk powder, ─ development of the supply situation as regards skimmed milk and skimmed-milk powder, and developments in the use thereof as feed, ─ trends in calf prices, ─ trends in the market prices for competing proteins as compared with those for skimmed-milk powder. "
11. Article 15 of Regulation No 1255/1999 provides: "The following shall be adopted in accordance with the procedure laid down in Article 42: (a) the detailed rules for the application of this chapter and, in particular, the conditions under which the aids set out therein may be granted, (b) the amounts of the aids referred to in this chapter, (c) the lists of products referred to in Article 13(d) and Article 14(1), (d) the other decisions and measures that may be adopted by the Commission under this chapter. "
12. Article 42 of Regulation No 1255/1999 provides: "1. Where the procedure laid down in this Article is to be followed, the chairman shall refer the matter to the committee either on his own initiative or at the request of the representative of a Member State. 2. The representative of the Commission shall submit to the committee a draft of the measures to be taken. The committee shall deliver its opinion on the draft within a time-limit which the chairman may lay down according to the urgency of the matter. The opinion shall be delivered by the majority laid down in Article 205(2) of the Treaty in the case of decisions which the Council is required to adopt on a proposal from the Commission. The votes of the representatives of the Member States within the committee shall be weighted in the manner set out in that Article. The chairman shall not vote. 3. The Commission shall adopt measures which shall apply immediately. However, if these measures are not in accordance with the opinion of the committee, they shall be communicated by the Commission to the Council forthwith. In that event the Commission may defer application of the measures which it has decided for not more than one month from the date of such communication. The Council, acting by a qualified majority, may take a different decision within one month. "
13. Regulation No 2799/1999 was adopted on the basis of Articles 10 and 15 of Regulation No 1255/1999.
14. Regulation No 1105/68 was repealed by Regulation No 2799/1999. In that regard, the 11th recital in the preamble to the latter regulation stated that "the arrangements laid down in ... Regulation ... No 1105/68 ... have proved difficult to implement and checks on beneficiaries are problematic. Moreover, the quantities of skimmed milk benefiting from this measure have fallen sharply in recent years, so that the scheme now has only a marginal impact on the balance on the market in milk products. In addition, the market in skimmed milk will continue to be supported by the aid granted when skimmed milk is incorporated into compound feedingstuffs. The aid measure provided for in Regulation ... No 1105/68 should therefore be abolished and the said Regulation repealed" .
15. Article 8 of Regulation No 2799/1999 provides: "To qualify for aid, skimmed-milk powder must meet at least the following conditions: (a) it must be used in an undertaking approved in accordance with Article 9: (i) either unaltered or incorporated in a mixture, or (ii) unaltered for the manufacture of denatured skimmed-milk powder; (b) it may not have benefited from aid or a reduction in price under other Community measures. "
16. Article 9(1) of Regulation No 2799/1999 provides: "Undertakings producing mixtures, compound feedingstuffs or denatured skimmed-milk powder must have been approved for that purpose by the competent agency of the Member State on whose territory production takes place."
17. In accordance with the first subparagraph of Article 38, Regulation No 2799/1999 entered into force on 1 January 2000. The main proceedings and the question referred for a preliminary ruling
18. On 8 January 2000, Niemann filed an application with the Bezirksregierung Hannover for the grant of aid for a quantity of skimmed milk in liquid form for January 2000.
19. By decision of 13 January 2000, the Bezirksregierung Hannover refused the application on the ground that, following the adoption of Regulation No 2799/1999, there was no longer any legal basis for granting the aid sought for the period after 31 December 1999.
20. Niemann lodged an administrative objection against that refusal, by which it contested the validity of Regulation No 2799/1999.
21. By decision of 22 February 2000, the Bezirksregierung Hannover dismissed the objection on the ground that it was obliged to apply the new rules and that there was no other legislation which might justify the grant of the aid sought.
22. Niemann then brought an action before the national court seeking annulment of the decision to dismiss its administrative objection and the decision refusing the grant of the aid in question. In support of that action, it contested the validity of Regulation No 2799/1999, claiming, inter alia , that its adoption infringed Article 11(1) of Regulation No 1255/1999 and the prohibition of discrimination.
23. According to the national court, in order to assess the validity of Regulation No 2799/1999, Article 11(1) and (2) of Regulation No 1255/99 must be interpreted so as to establish whether the Council of the European Union wished to maintain the aid for the use of skimmed milk in liquid form in animal feed in all circumstances or whether, on the contrary, it wished to confer on the Commission a discretion, within the limits of which it may, particularly on account of a change in market conditions, abolish that measure because, in its view, its objective cannot (or can no longer) be attained.
24. With respect to Niemann's argument that Regulation No 2799/1999 infringes the prohibition of discrimination, the Verwaltungsgericht Hannover considers that, if it should be established that the use of skimmed milk in liquid form in animal feed is no longer of any importance for the Community market and if the checks on that use entail unacceptable practical and economic difficulties, the repeal of Regulation No 1105/68 may possibly be compatible with the obligation of equal treatment.
25. Finally, as regards the question whether Regulation No 2799/1999 was adopted in breach of the principle of the protection of legitimate expectations, the national court considers that, in principle, the Commission was authorised, under the first sentence of Article 42(3) of Regulation No 1255/99, to adopt measures entering into force immediately. At the same time, however, the question arose as to the "genuine or non-genuine retroactivity" of a law. The national court does not consider that the present case involves genuine retroactivity, since ─ at least as far as Niemann is concerned ─ only the future marketing of buttermilk is at issue. However, even in the case of "non-genuine" retroactivity, a new regulation might infringe constitutionally guaranteed rights which might in turn have prospective effects. According to the national court, in order to resolve that issue, the dictates of the general interest must be weighed up against the damage caused by the infringement of the principle of the protection of legitimate expectations entailed by the legislative amendment.
26. Accordingly, the Verwaltungsgericht Hannover decided to stay proceedings and refer the following question to the Court of Justice for a preliminary ruling: "Does Regulation (EC) No 2799/1999 in conjunction with its annexes contravene (a) Article 11(1) of Regulation (EC) No 1255/1999, (b) the second subparagraph of Article 34(2) EC, and (c) the general legal principles of the European Community and the principle of the protection of legitimate expectations, inasmuch as the aforesaid regulation precludes aid from being granted for skimmed milk and buttermilk for liquid feed unless that milk is first processed into compound feedingstuffs or into skimmed-milk powder, and makes no provision for a transitional period; is it on those grounds void (in part)? " The question referred for a preliminary ruling
27. By its question, which is expressed in three parts, the national court asks essentially whether, inasmuch as it precludes, without providing for a transitional period, the grant of aid for skimmed milk and buttermilk in liquid form intended for use in animal feed where those products have not been processed into compound feedingstuffs or into skimmed-milk powder, Regulation No 2799/1999 is valid in view of: ─ the limits on the Commission's powers of implementation as defined in Article 11(1) of Regulation No 1255/1999; ─ the prohibition of discrimination laid down in the second subparagraph of Article 34(2) EC; and ─ the principle of the protection of legitimate expectations. The Commission's powers of implementation under Article 11(1) of Regulation No 1255/1999 Observations submitted to the Court
28. Niemann submits that the adoption of Regulation No 2799/1999 infringed Article 11(1) of Regulation No 1255/1999. In its view, Article 15 of the latter regulation merely authorised the Commission to adopt detailed rules for the application of the scheme of granting aid for skimmed milk in liquid form and skimmed-milk powder intended for use as animal feed and not to abolish the aid for the first of those products.
29. When adopting Regulation No 1255/1999, the Community legislature took account of the situation prevailing on the market for milk and milk products at that time. That situation was characterised by the existence of a market both for skimmed milk in liquid form and for skimmed-milk powder intended for use as animal feed.
30. In that regard, Niemann submits that, if the Council had wanted to achieve a change in the existing situation by the new common organisation of the markets in the milk and milk products sector, it would have had to express that intention clearly. The Council did not do so, but decided that aid should be granted both for skimmed milk in liquid form and for skimmed-milk powder intended for use as animal feed.
31. Niemann observes that, according to the case-law of the Court (Case C-48/98 Söhl & Söhlke [1999] ECR I-7877, paragraph 36), the limits of the Commission's powers must be assessed in the light of the principal objectives of the common organisation of the market, which authorises the Commission to adopt implementing regulations. In its view, if the common organisation of the markets in the milk and milk products sector is intended to maintain the markets in both the milk sector and the milk powder sector, the Commission is not authorised to modify the scope of that market organisation and thereby unilaterally change the Council's basic decision.
32. The Commission, on the other hand, contends that, by adopting Regulation No 2799/1999, it laid down the rules for implementing Regulation No 1255/1999 without exceeding at any time the limits of the powers conferred on it by that regulation. The Commission bases its argument on the premiss that the concept of powers of implementation, which the Council may confer on it under Article 202 EC, must be given a wide interpretation (Case 23/75 Rey Soda [1975] ECR 1279, paragraphs 10 to 14, and Case C-159/96 Portugal v Commission [1998] ECR I-7379, paragraph 40).
33. Only the essential elements of the matter to be dealt with fall within the exclusive competence of the Council (Case 25/70 Köster [1970] ECR 1161, paragraph 6). In addition, only those provisions which are intended to give concrete shape to the fundamental guidelines of Community policy are classed as essential (Case C-240/90 Germany v Commission [1992] ECR I-5383, paragraph 37).
34. According to the Commission, since the wording of Article 11(1) of Regulation No 1255/1999 does not in any way permit the conclusion that the Council wished unconditionally to continue to subsidise the direct use of skimmed milk in liquid form for animal feed, it was open to it to choose a scheme which subsidised skimmed milk intended for such feed on condition that it was processed into powder or added to a mixture or compound feedingstuffs. The Court's answer
35. The Court observes that, according to the fourth indent of Article 211 EC, in order to ensure the proper functioning and development of the common market, the Commission is to exercise the powers conferred on it by the Council for the implementation of the rules laid down by the latter.
36. In the present case, as is apparent from a reading of Article 11 in conjunction with Article 15 and the first sentence of Article 42(3), Regulation No 1255/1999 provides that aid is to be granted for skimmed milk in liquid form and skimmed-milk powder if those products satisfy certain conditions and authorises the Commission to lay down those conditions.
37. It follows that, in order to answer the first part of the question referred for a preliminary ruling, it must be examined whether, when adopting Articles 8 and 9 of Regulation No 2799/1999 and thereby laying down conditions for the grant of aid for skimmed milk in liquid form and for skimmed-milk powder intended for use as animal feed, the Commission remained within the limits of its competence as defined in Article 11(1) of Regulation No 1255/1999.
38. In that respect, with regard to the common agricultural policy, it should be noted, first, that the Commission alone is in a position constantly to keep a close watch on agricultural market trends and to act quickly when necessary. Therefore, according to the settled case-law of the Court, the Council may confer on it wide powers of discretion and action in this sphere. When it does so, the limits of those powers must be determined in the light of the essential general aims of the market organisation (see, to that effect, Joined Cases 133/85 to 136/85 Rau and Others [1987] ECR 2289, paragraph 31, and Case C-359/89 SAFA [1991] ECR I-1677, paragraph 16).
39. Second, according to settled case-law, the Community institutions have a wide measure of discretion in relation to the common agricultural policy in view of the tasks attributed to them by the EC Treaty (see, inter alia , Case C-63/00 Schilling and Nehring [2002] ECR I-4483, paragraph 39). Given that discretion, the Community judicature must limit itself to examining whether or not the exercise of that discretion is vitiated by any manifest error or misuse of powers and whether or not the authority concerned has manifestly exceeded the limits of its power of assessment (see, inter alia , Case C-189/01 Jippes and Others [2001] ECR I-5689, paragraph 80).
40. In the present case, by exercising the powers of implementation conferred on it by Article 11 of Regulation No 1255/1999, the Commission laid down the conditions under which aid might be granted for skimmed milk in liquid form and for skimmed-milk powder intended for use as animal feed. Thus, under Article 8 of Regulation No 2799/1999, in order to qualify for aid, skimmed milk and skimmed-milk powder must be used in an undertaking approved in accordance with Article 9 of that regulation and may not have benefited from aid or a reduction in price under other Community measures. In addition, Article 9 of Regulation No 2799/1999 provides that the approval referred to relates only to undertakings producing mixtures, compound feedingstuffs or denatured skimmed-milk powder.
41. Admittedly, those provisions mean that, from the entry into force of Regulation No 2799/1999, skimmed milk in liquid form qualifies for aid only if it has first been incorporated in a mixture for the production of compound feedingstuffs or processed into skimmed-milk powder.
42. However, the Court finds, first, that, although that condition is indisputably restrictive, it nevertheless does not amount to a total abolition of aid for skimmed milk in liquid form intended for use as animal feed, which would be a measure contrary to Article 11(1) of Regulation No 1255/1999. The market for that kind of skimmed milk continues to benefit from the aid provided for in that article by way of the aid for undertakings producing mixtures for the production of compound feedingstuffs.
43. Second, it should be noted that the Commission justified the introduction of that restrictive condition by stating, in the third recital in the preamble to Regulation No 2799/1999, that it is necessary to ensure that the skimmed milk and skimmed-milk powder for which aid is granted are in fact used as animal feed.
44. Third, the Commission stated, in the 11th recital in the preamble to that regulation, that the aid scheme established by Regulation No 1105/68 had proved difficult to implement, that checks on beneficiaries were problematic, and that the quantities of skimmed milk benefiting from the measure had fallen sharply in recent years, so that the scheme had only a marginal impact on the balance of the market in milk products.
45. In view of the above considerations, it does not appear that the Commission committed a manifest error of assessment, misused its powers or exceeded the limits of its discretion by making the grant of aid subject to the condition that skimmed milk in liquid form intended for use as feed must first be processed into compound feedingstuffs or skimmed-milk powder.
46. Accordingly, the Commission did not exceed the limits of its powers of implementation by adopting Regulation No 2799/1999. The prohibition of discrimination Observations submitted to the Court
47. Niemann submits that Regulation No 2799/1999 infringes the prohibition of discrimination laid down in the second subparagraph of Article 34(2) EC. Relying on the case-law holding that that article requires comparable situations to be treated in the same way unless different treatment is objectively justified, it submits, first, that skimmed milk in liquid form and skimmed-milk powder are identical products. Skimmed-milk powder is made by desiccating liquid skimmed milk, that is to say by dehydrating it. Second, Niemann claims that skimmed milk in liquid form and skimmed-milk powder are intended for the same use and that, therefore, they are interchangeable. Both are used for fattening calves.
48. The Commission replies that Regulation No 2799/1999 does not give rise to any discrimination prohibited by the second subparagraph of Article 34(2) EC. It submits that producers of skimmed milk in liquid form and producers of skimmed-milk powder are not in comparable situations since the latter's products are subjected to additional processing. The mere fact that both products are used in animal feed and that they thus contribute to the desired exploitation of milk proteins does not mean that, for that reason, they must be treated in the same way as regards the grant of aid. The Commission also refers to the different properties of the two products in question and their effects. In its view, those differences have repercussions as regards the checks which it must carry out in implementing the aid scheme. The Court's answer
49. The Court notes that, according to settled case-law, the second subparagraph of Article 34(2) of the Treaty, which prohibits all discrimination in the context of the common agricultural policy, is merely a specific expression of the general principle of equal treatment, which requires that comparable situations must not be treated differently and different situations must not be treated alike unless such treatment is objectively justified (Case 203/86 Spain v Council [1988] ECR 4563, paragraph 25, Case C-15/95 EARL de Kerlast [1997] ECR I-1961, paragraph 35, and Case C-292/97 Karlsson and Others [2000] ECR I-2737, paragraph 39).
50. In the present case, it cannot be disputed that, in principle, skimmed milk in liquid form and skimmed-milk powder intended for use in animal feed are two comparable products.
51. Nevertheless, there are differences between the two products which objectively justify their being treated differently as regards the right to qualify for aid. First, skimmed milk in liquid form perishes more easily than skimmed-milk powder. Therefore, liquid skimmed milk cannot be preserved for as long and in the same way as skimmed-milk powder.
52. Second, skimmed-milk powder and skimmed milk in liquid form are not subject to the same checks. In view of the perishability of skimmed milk in liquid form, it is essential that checks be carried out at relatively short intervals both in the dairies and on the premises of the veal farmers using that type of milk. The cost of those checks is therefore much higher than the cost of the checks carried out in respect of skimmed-milk powder.
53. As the Commission stated in the 11th recital in the preamble to Regulation No 2799/1999, the quantities of skimmed milk benefiting from the aid have fallen sharply in recent years, so that the scheme now has only a marginal impact on the balance of the market in milk products. That change in market conditions is capable of justifying the abolition of the least effective and most burdensome measures of that scheme.
54. In the light of those considerations, it must be concluded that, by adopting Regulation No 2799/1999, the Commission did not infringe the prohibition of discrimination laid down in the second subparagraph of Article 34(2) EC. The principle of the protection of legitimate expectations
55. Niemann relies on the case-law concerning the principle of the protection of legitimate expectations (Case 1/73 Westzucker [1973] ECR 723, Case 74/74 CNTA v Commission [1975] ECR 533, Case 97/76 Merkur v Commission [1977] ECR 1063, Case 84/78 Tomadini [1979] ECR 1801, and Case C-368/89 Crispoltoni [1991] ECR I-3695, paragraph 21) in order to claim that the abolition from 1 January 2000 of aid for skimmed milk in liquid form intended for use as animal feed by a regulation adopted by the Commission on 17 December 1999 and published in the Official Journal of the European Communities of 31 December 1999 infringes the rights which it derives from that principle. It is no longer possible to fulfil contracts concluded prior to 31 December 1999 and the planning for 2000 had been completed long before that date. Such a fundamental change in the market, entailing significant effects for those concerned, cannot enter into force "from one day to the next" but must be implemented following a sufficient transitional period.
56. It is settled case-law that, in the sphere of the common organisation of the markets, whose purpose involves constant adjustments to meet changes in the economic situation, economic operators cannot legitimately expect that they will not be subject to restrictions arising from future market policy rules or structural policy. In addition, the principle of the protection of legitimate expectations may be invoked as against Community rules only to the extent that the Community itself has previously created a situation which can give rise to a legitimate expectation (see, to that effect, Case C-63/93 Duff and Others [1996] ECR I-569, paragraph 20).
57. In the main proceedings, there is no evidence in the case-file indicating that the competent Community institutions created a situation capable of giving rise to a legitimate expectation on the part of the producers concerned as regards the maintenance of the scheme of aid for skimmed milk in liquid form intended for use as animal feed as provided for in Regulation No 1105/68.
58. On the contrary, as is apparent from Special Report No 1/99 of the Court of Auditors of 25 March 1999 concerning the aid for the use of skimmed-milk and skimmed-milk powder as animal feed, accompanied by the Commission's replies (OJ 1999 C 147, p. 1), the Commission had announced that it intended to modify the existing rules on aid for the sector of skimmed milk for use as animal feed. In its replies to that report, the Commission clearly called into question the maintenance of the aid granted for skimmed milk in liquid form given the limited importance of that product for the balance of the market in milk products, since it represented only 3% of the total volume of subsidised skimmed milk on the internal market.
59. Moreover, the case-file shows that, as early as August 1999, the Commission informed the German Farmers' Association and the National Association of Veal Farmers of its intention to adopt the measures in question.
60. Therefore, the Commission did not infringe the principle of the protection of legitimate expectations by adopting Regulation No 2799/1999.
61. Accordingly, in the light of all the above considerations, the answer to the question referred by the national court must be that examination of that question has revealed no factor of such a kind as to affect the validity of Regulation No 2799/1999.