Opinion of Mr Advocate General Van Gerven delivered on 12 December 1989

1 Origina! language: Dutch.

2 Regulation (EEC) No 2727/75 of the Council of 29 October 1975 on the common organization of the market in cereals (OJ 1975, L 281, p. 1).

3 See Council Regulation (EEC) No 1579/86 of 23 May 1986 amending Regulation (EEC) No 2727/75 on the common organization of the market in cereals (OJ 1986, L 139, p. 29). On this amendment, see footnote 9 below.

4 Article 6 of the basic regulation, cited above in footnote 1.

5 Recitals in the preamble to Council Regulation (EEC) No 1949/81 of 13 July 1981 amending the basic regulation (OJ 1981, L 198, p. 2)

6 The maximum amount of the payment was laid down at the material date in Article 9(3) of the basic regulation, as amended by the regulation cited in footnote 4.

7 Commission Regulation (EEC) No 1821/81 of 2 July 1981 laying down the conditions for granting carryover payments for certain cereals in stoeit at the end of the marketing year (OJ 1981, L 182, p. 10), and in particular the last recital in the preamble.

8 First recital in the preamble to the implementing regulation, cited above in footnote 6.

9 Third recital in the preamble.

10 Third recital in the preamble.

11 Council Regulation No 1579/86, cited above in footnote 2, transferred the power to decide whether or not carryover payments should be granted wholly to the Commission; see the new Article 9 and the ninth recital in the preamble.

12 Commission Regulation (EEC) No 2124/85 of 26 July 1985 on precautionary measures in the cereals sector other than durum wheat (OJ 1985, L 198, p. 31), and in particular the sixth recital in the preamble and Article 4; the precautionary nature of the regulation is referred to in Article 6.

13 Communication No 10/85/21 of 25 July 1985 on the granting of carryover payments for cereals for 1984/85, Bimdesan/eiger, 1985. p 8481 et ieq

14 In the first annex to the notification, the application form for the payment, the applicant must sign tne declaration that the rye will be milled by me/us for human consumption from a comparison of the two forms annexed to the notice, little support can be found for the interpretation which Lampe-Mühle infers from the way in which it completed the second form, the declaration of milling, as described in 9 above

15 For the rejection of a claim of legitimate expectation by the German administrative courts, with regard to the (identical) previous regulation, Regulation (EEC) No 1554/73, because the undertaking had obtained no information on the meaning of Article 1(b) which in its view was unclear, see the judgment of the Eighth Senate of the Hessischer Verwaltungsgenchlshof (Administrative Court, Hessen), 30 May 1983, VIII OE 28/79 Rieht der Landwirlichaft (1983), p. 333, at p 335

16 This argument is regarded as important by the Eighth Senate of the Hessische Verwaltungsgerichtshof, with regard to the identical Article 1(b) of Regulation (EEC) No 1554/73, the predecessor to Regulation No 1821/81, in its judgment cited in footnote 13, at p. 334.

17 This is Lampe-Miihie's literal argument, to which reference is made in 8.

18 Verordnung uber die Gewahrung von Übcrgangsvergulung fur Getreide, 9 July 1979, Bandei- geíetzblatt I, p 1021

19 The precise question asked, to which Lampe-Muhle and the Federal Office and the Commission were able to reply in writing after the hearing, read as follows On wfial legal basis are milling undertakings not applying for a carryover payment in the Federal Republic of Germany required to keep, retain and make available systematic records on entries and exits of cereals (a stock book) and on millings of cereals (a milling register)

20 The Federal Office had in particular stated in its written observations that the fact that it also has, under the general provision laid down in Paragraph 33(2) of the Gesetz zur Durchführung der gemeinsamen Marktorganisationen (Law on the implementation of the common organization of the market, as contained in the notice of 27 August 1986 in Bundesgesetzblatt I, p. 1397) a right to check milling undertakings which acquire the rye, does not solve the problem, since such purchasers not applying for a carryover payment are not required to keep stock and milling records. In other words, the Federal Republic could make an on-the-spot check but find no evidence. The question asked was intended to give Lampe-Mühler an opportunity of refuting this argument.

21 Bundesgesetzblatt, 1978,1, pp. 883 to 888.

22 Paragraph 2(1) and (2) of the Verordnung and Annex I thereto.

23 Paragraph 5 of the Verordnung.

24 Both in paragraph 12 of the judgment of 12 December 1985 in Case 276/84 Metelmann [19851 ECR 4057, referred to by the Commission, and in the judgments of 3 January 1985 referred to by Lampe-Mühle, namely Case 20/84 De Jong [1985] ECR 2061, paragraph 17, and of 1 October 1985 in Case 125/83 Corman [1985] ECR 3039, paragraph 22, the Court accepted an interpretation of an agricultural regulation which guaranteed the efficacy of the system of control.