Opinion of Mr Advocate General Van Gerven delivered on 26 June 1991

1 Original language: French.

2 OJ L 359, p. 23.

3 Regulation of 27 June 1968 on the common organization of the market in milk and milk product; (OJ, English Special Edition 1968 (I), p. 176). Article 5c was inserted by Council Regulation (EEC) No 856/84 of 31 March 1984 amending Regulation (EEC) No 804/68 (OJ L 90, p. 10).

4 Regulation of 31 March 1984 adopting ¡jenerał rules for the application of the levy referred to in Article 5c of Regulation (EEC) No 804/68 in the milk and milk products senor (OJ L 90, p. 13). Article 6a was inserted by Council Regulation (EEC) No 590/85 of 26 February 1985 amending Regulation (EEC) No 857/84 (OJ L 68, p. 1).

5 Regulation 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 L 132, p. 11).

6 Since then, the provisions of Regulation No 1371/84 have been consolidated by Commission Regulation (EEC) No 1546/88 of 3 June 1988 (OJ L 139, p. 12). The provision corresponding to Article 4(5) of Regulation No 1371/84 is Article 5(5).

7 Anicie 4(6) of Regulation No 1371/84 (now Article 5(6) of Regulation No 1546/88) makes similar provision for the case — which is not relevant here — of producers who, having obtained a reference quantity for deliveries, cease deliveries to a purchaser.

8 It is true thai, in its rejoinder, the Commission raised a question concerning the lawfulness of a limitation in transferable quantities. That question, however, falls outside the scope of these proceedings.

9 Section 4.3.11.4 of the Summary Report concerning the results of inspections for the clearance of EAGGF, Guarantee Section, accounts for the 1987 financial year (Doc VI/200/89 — FR — Add 2 Rev 1(1) of 5 October 1989) (hereinafter Summary Report). That section of the Summary Report is attached as Annex I to the Commission's defence. The finding is in the sixth paragraph of section 4.3.11.4(ii).

10 See the seventh paragraph of section 4.3.11.4(ii) of the Summary Report. The relevant criterion — producers who have transferred the greatest possible quantity from the quantities for direct sales — is explained by the limit imposed in France on the transferable quantity of 97% (99% in mounuin areas) of the basic reference quantity (see paragraph 5).

11 See the seventh paragraph of section 4.3.11.4(ii) of the Summary Report.

12 See the third paragraph of section 4.3.11.4(ii) of the Summary Report.

13 The fifth recital in the preamble to Regulation No 590/85 states that fluctuations of the respective portions of their two economic activities must be taken into account.

14 Cast 5/88 [1989] ECR 2609. The words quoted arc lake from paragraph 19 of lhe judgment.