Report for the Hearing in Case 217/89

I — Facts and procedure

1. The applicable Community legislation

2. The dispute in the main proceedings

The plaintiff in the main proceedings, Josef Pastätter, has a holding comprising 13.54 hectares of grassland under intensive cultivation. In 1981 he was granted a conversion premium calculated on the basis of a quantity of 83110 kg of milk. His non-marketing undertaking expired on 31 December 1984. As from 1 January 1985, he resumed deliveries of milk.

It appears from the documents before the Court that the farm in question comprises grassland which is suitable in the long term only for dairy production. The experiments carried out during the four-year conversion period showed that the farm could not profitably be used for calf and pig rearing.

By letter of 13 September 1984, the purchasing agency fixed his reference quantity as zero, in the absence of any rules treating as special cases farmers who had given an undertaking as to non-marketing or conversion. For the same reason, the competent authorities, by decisions of 12 August 1984 and 25 April 1985, refused to concede the existence of special circumstances or to grant Mr Pastätter an additional reference quantity.

By decision of 10 December 1984, the defendant in the main proceedings, the Hauptzollamt (Principal Customs Office) Bad Reichenhall, dismissed an administrative complaint made by Mr Pastätter against that determination of reference quantity on the ground that the competent professional organizations had not issued a certificate to the effect that exceptional circumstances existed. The complaint made against that decision was rejected by the Oberfinanzdirection München by decision of 21 February 1985. It is against the latter decision that the proceedings now pending before the Finanzgericht München (Finance Court, Munich) were brought.

Considering that the decision to be given depended on the validity of the applicable Community rules, the Finanzgericht München stayed the proceedings and referred the following question to the Court for a preliminary ruling under Article 177 of the EEC Treaty:

In the grounds of its order for reference, the national court expresses doubts as to the compatibility of Article 3a of Regulation No 857/84, as amended, with the principle of the protection of legitimate expectations, the principle of equal treatment and the guarantee of the right to property in so far as that article provides that the special reference quantity is fixed as 60% of the quantity of milk or milk equivalent delivered by the producer during the period of 12 months preceding the month in which the application for the non-marketing premium was lodged.

3. Procedure before the Court

The order for reference was received at the Court Registry on 10 July 1989.

Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the European Communities, written observations were submitted by Mr Pastätter, represented by W. Niedermeier, a Rechtsanwalt in Munich, the Council of the European Communities, represented by A. Bräutigam, Principal Administrator in the Council's Legal Department, acting as Agent, and by the Commission of the European Communities, represented by its Legal Adviser D. Booß, and by K.-D. Borchardt, a member of its Legal Department, acting as Agents.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided on 14 March 1990 to assign the case to the Fifth Chamber, pursuant to Article 95 of the Rules of Procedure, and to open the oral procedure without any preparatory inquiry.

II — Written observations

1. Mr Pastätter claims that Article 3a(2) of Regulation No 857/84, as amended, is in breach of the principle of equal treatment in so far as it imposes a limit of 60% on the reference production.

2. The Council observes first that Article 3a of Regulation No 857/84, as amended, entitles the producers concerned to the grant of a reference quantity, by contrast with the measures applicable to producers who undertook investments or have the status of young farmers who, by decision of the Member State concerned, may be granted a special reference quantity but may not claim entitlement to it. Furthermore, it was impossible to use for the producers concerned the reference production used in fixing the reference quantities of the other producers, namely one of the years within the period from 1981 to 1983, since the producers concerned had not produced during that period. It was therefore necessary to rely for the reference production on the most recent figures available, namely those on the basis of which the non-marketing or conversion premium had been based.

3. The Commission observes first that Article 3a(2) of Regulation No 857/84, as amended, was adopted to take account of the following circumstances:

III — Reply to a question put by the Court

At the Court's request, the Commission furnished statistical details of the trend in the volume of milk production and deliveries in the Community by farm. It also stated, in reply to a question put to it by the Court, that, in most of the Member States, there was more than one rate for the various groups of products of which production was normal. On that point too it provided more detailed statistics.

1 Language of the case: German.