Opinion of Mr Advocate General Van Gerven delivered on 30 May 1989

1 Original language: French.

2 Council Regulation No 856/84/EEC of 31 March 1984 amending Regulation No 804/68/EEC on the common organization of the market in milk and milk products (OJ 1984, L 90, p. 10). Council Regulation No 857/84/EEC of 31 March 1984 adopting general rules for the application of the levy referred to in Article 5c of Regulation (EEC) No 804/64 in the milk and milk products sector (OJ 1984, L 90, p. 13).

3 Judgment of 25 November 1986 in Joined Cases 201 and 202/85 Klensch and Others v Secrétaire de l'Etat [1986] ĘCR 3477; Judgment of 28 April 1988 in Case 102/86 Mulder [1988] ECR 2321 ; Judgment of 28 April 1988 in Case 107/86 Von Deelzen [1988] ECR 2355; Judgment of 28 April 1988 in Case 61/76 thevenot and Others [1988] ECR 2375; Judgment of 17 May 1988 in Case 84/87 Erpelding [1988] ECR 2647.

4 Council Regulation (EEC) No 804/68 of 27 June 1968 on the common organization of the market in milk and milk products (OJ, English Special Edition 1968 (I), p. 176).

5 Article 1(1).

6 Article 2(1).

7 Article 2(2).

8 Article 5c(3) of Regulation No 804/68.

9 The other producers who arc, or may be, entitled to exceptional treatment are (i) those who have carried out investments without a development plan, if the Member State has sufficient information (second subparagraph of Article 3(1) of Regulation No 857/84); (ii) young farmers setting up after 1980 (Article 3(2) of Regulation No 857/84), (iii) producers whose milk production has been affected by exceptional events during lhe reference year (Article 3(3) of Regulation No 857/84); (iv) producers operating under a development plan approval, after 1 April 1984, under Directive 72/159/EEC, on condition that the plan meets certain criteria (Article 4(l)(b) of Regulation No 857/84); (v) other producers carrying on farming as their mam occupation, provided that the benefit of the derogation is enjoyed within the context of the restructuring of their milk production (Article 4(l)(c) of Regulation No 857/84).

10 Council Directive 72/159/EEC of 17 April 1972 on the modernization of farms (OJ, English Special Edition 1972 (II), p. 324)

11 See the fifth recital in the preamble to the directive

12 See above (point 4 and footnote No 8) the list of categories of producers laid down in Articles 3 and 4 of Regulation No 857/84 who are, or may be, entitled to exceptional treatment.

13 This provision was inserted into Regulation No 857/84 by Council Regulation (EEC) No 590/85 of 26 February 1985 (OJ 1985, L 68, p. 1). The provision was initially for a period of 12 months, but was then extended for a second period of 12 months by Council Regulation (EEC) No 1305/85 of 23 May 1985 (OJ 1985, L 137, p. 12).

14 Decree No 84-661 of 17 July 1984 on controlling lhe production of cow's milk and tne means of recovery of an additional levy on purchasers and producers of cow's milk (JORF, 21.7 1984, p 2373)

15 Decree of 22 November 1984 on the determination of reference quantities for purchasers of milk for the period from 2 April 1984 to 31 March 1985 (JORF, 29 11 1984, p 3660)

16 Decree of 10 July 1985 on the determination of reference quantities for purchasers of milk for the period from 1 April 1985 to 31 March 1986 (JORF, 14 7 1985, p 7979)

17 Article 2 of Decree No 84-661

18 Article 17 of Decree No 84-661

19 Article 3(l)(a) of the Decree of 22 November 1984

20 Anieles 2 and 3(l)(b) of tlie Decree of 10 July 1985

21 Thus it seems likely thai the French Government used the following formula 1983 -2% = 1981 + 1%.

22 At the hearing the representatives of the French Government stated that the reference quantity for purchasers was fixed, at the end of the 1984-85 marketing year, at a slightly lower level (-0.8%) than that provider] for in Decree No 85-661 (1983 -2%), in order to enable increased reference quantities to be granted to producers who had endured climatic catastrophes and were entitled to request that a different reference year be taken into account.

23 Decree No 83-442 of 1 June 1983 on the modernization of farm-holdings (JORF, 3. 6. 1983). This decree replaced the earlier regulations which went back to 1974.

24 Article 5 of Decree No 84-661. The other priority producers provided for in that article are: (i) producers entitled to aid in favour of farmers in difficulty and whose recovery programme provides for an increase in production; (ii) young farmers setting up after 31 December 1980 who meet certain criteria; (iii) producers who before 1 April 1984 committed investments in order to develop their milk production and who meet certain criteria.

25 Article 4(6) of Decree No 84-661.

26 Article 2 of the Decree of 22 November 1984.

27 Article 3(l)(c) of the Decree of 22 November 1984.

28 Last paragraph of Article 3 of ihc Decree of 22 November 1184

29 Article 4(3) of the Decree of 22 November 1984 Certain young farmers and producers in particularly difficult economic and social situations have prior entitlement to any such additional reference.

30 Article 5(2) and (3) of the Decree of 22 November 1984.

31 Article 7 of the Decree of 22 November 1984.

32 Article 2(1) of the Decree of 10 July 1985.

33 Article 3(l)(b) of the Decree of 10 July 1985

34 Article 3(2) of the Decree of 10 July 1985

35 Article 3(3) of the Decree of 10 July 1985.

36 Article 4 of the Decree of 10 July 1985.

37 Article 5 of the Decree of 10 July 1985.

38 See the Decree of 4 July 1986 on the determination of the levy on producers and purchasers of milk who have exceeded their reference quantities (JORF, 23. 7. 1986, p. 9098).

39 Pursuant to Article 2(2) o( Regulation No 857/84, Member States may vary the percentage weighting applied to the production of the reference year chosen, in accordance with the level of deliveries of certain categories of producers.

40 The national court's statement that the Decree of 10 July 1985 permitted an increase in production limited to lo/o for the marketing year 1985/86 seems to me to be incorrect.

41 The objective underlying such approval is set out in the ninth recital in the preamble to Directive 72/159/EEC which Slates that it is to ensure that public money allocated for the development of farms is indeed used for the benefits of farms which satisfy the required conditions... .

42 Sec the 11th recital in the preamble to Directive 72/159/EEC.

43 See the judgment of 27 September 1979 in Case 230/78 Eridania [1979] ECR 2749, at paragraph 22.