Opinion of Advocate General Lenz delivered on 27 February 1992

1 Original language: German.

2 Regulation (EEC) No 804/68 of the Council of 27 June 1968 on the common organization of the market in milk and milk products (OJ, English Special Edition 1968 (1), p. 176); Article 5c was inserted by Council Regulation (EEC) No 856/84 of 31 March 1984 (OJ 1984 L 90, p. 10).

3 Council Regulation (EEC) No 857/84 of 31 March 1984 adopting general rules for the application of the levy referred to in Article 5c of Regulation (EEC) No 804/68 in the milk and milk products sector (OJ 1984 L 90, p. 13).

4 Council Regulation (EEC) No 1078/77 of 17 May 1977 introducing a system of premiums for the non-marketing of milk and milk products and for the conversion of dairy herds (OJ 1977 L 131, p. 1).

5 Case 120/86 Mulder v Minister van Landbouw en Visserij [1988] ECR 2321.

6 Case 170/86 von Deetzen v Hauptzollamt Hamburg-Jonas [1988] ECR 2355.

7 Council Regulation (EEC) No 764/89 of 20 March 1989 amending Regulation (EEC) No 857/84 adopting general rules for the application of the levy referred to in Article 5c of Regulation (EEC) No 804/68 in the milk and milk products sector (OJ 1989 L 84, p. 2).

8 Commission Regulation (EEC) No 1546/88 of 3 June 1988 laying down detailed rules for the application of the additional levy referred to in Article 5c of Regulation (EEC) No 804/68 (OJ 1988 L 139, p. 12).

9 Commission Regulation (EEC) No 1033/89 of 20 April 1989 amending Regulation (EEC) No 1546/88 laying down detailed rules for the application of the additional levy referred to in Article 5c of Council Regulation (EEC) No 804/68 (OJ 1989 L 110, p. 27).

10 OJ 1978 L 167, p. 45.

11 For the Member States in which Formula B applies, Article 9(l)(a) of Regulation No 1546/88 as amended by Regulation No 1033/89 lays down the necessary consequence for the purchaser's reference quantity.

12 To which the following extract from the preamble to Regulation No 1033/89 corresponds: where producers no longer operate the same holdings, they have thereby demonstrated, according to the logic of the premium scheme, their intention of ceasing milk production (third recital).

13 To which the following extract from the preamble to Regulation No 1033/89 corresponds: these special arrangements only concern producers who could not obtain the allocation of a reference quantity for their holdings since their holdings were subject to an obligation in the reference year selected by the Member State; [...] the aim of these arrangements may be to rectify the consequences arising from this situation only to the extent that it turns out to be unchanged (third or fourth recital, according to the language version).

14 Emphasis added; see also the second recital in the preamble to Regulation No 764/89.

15 Article 3a(2) of Regulation No 857/84.

16 Council Regulation (EEC) No 590/85 of 26 February 1985 amending Regulation (EEC) No 857/84 laying down general rules for the application of the levy referred to in Article 5c of Regulation (EEC) No 804/68 in the milk and milk products sector (OJ 1985 L 68, p. 1).

17 See the restriction in Article 3a(4)(2) of Regulation No 857/84 and, on that point, the judgment in Case 44/89 von Deetzen v Hauptzollamt Oldenburg [1991] ECR I-5119.

18 Paragraphs 23 and 24.

19 Paragraphs 12 and 13.

20 Emphasis added.

21 See, most recently, Case C-l 77/90 Kühn v Landwirtschaftskammer Weser-Ems [1992] ECR I-35, paragraph 18.

22 See, for example, Joined Cases C-267/88 to C-285/88 Wuidart and Others v Laiterie Coopérative Eupenoise and Others [1990] ECR I-435, paragraph 13.

23 On the question of a claim for compensation from this point of view, see in particular Joined Cases C-104/89 and C-37/90 [1992] ECR I-3061, in which Advocate General van Gerven delivered his Opinion on 28 January 1992; see in particular paragraph 33.

24 Commission Regulation (EEC) No 1371/84 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 1984 L 132, p. 11).

25 See the definition of the term producer in Article 12(c), first subparagraph, of Regulation No 857/84.

26 Case C-314/89 Rauh v Hauptzollamt Nümberg-Fürth [1991] ECR I-1647.

27 Even chough Regulation No 764/89, adopted in response to the Mulder and von Deetzen judgments, was aimed only at the legitimate expectations of those taking part in the non-marketing and conversion programme, it may be necessary to examine in a particular case whether Community law protects the possible expectations of a lessee or purchaser who has taken over a holding following the expiry of the non-marketing or conversion period. However, there is no need to go into that question in this case.

28 On the question of the validity of this rule see von Deetzen v Hauptzollamt Oldenburg, cited above, in particular paragraph 33.

29 With regard to the legal position following the expiry of a lease, see Article 7(3) of Regulation No 1546/88 and (concerning its predecessor, Article 5(3) of Regulation No 1371/84) Case 5/88 Wachauf v Bundesamt für Ernährung und Fortwirtschaft [1989] ECR I-2609, paragraph 15, and Case C-l 77/90 Kühn v Landwirtschaftskammer Weser-Ems [1992] ECR I-35, paragraph 22.