Opinion of Advocate General Lenz delivered on 21 May 1992

1 Original language: German.

2 OJ 1984 L 90, p. 13.

3 By means of 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).

4 Judgment of 28 April 1988 in Case 120/89 Mulder v Minister van Landbouw en Visserij [1988] ECR 2321.

5 Judgment of the same date in Case 170/86 Von Deelzen v Hauptzollamt Hamburg ]oms [ 1988] ECR 2355.

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

7 That article has since been amended by Council Regulation No 1639/91 (OJ 1991 L 150, p. 35). However, the amendments have no bearing on the provision at issue (sec sections 21 et seq.).

8 The case of Borsch v Hauptzollamt Wuppertal.

9 Opinion of 8 April 1992 in Case C-85/90 Dowling v Ire-land [1992] ECR I-5305, paragraph 10 et seq., in particular paragraph 15.

10 See the judgment in Case C-37/89 Weiser v Caisse Nationale des Banaux français [1990] ECR I-2395, paragraph 8.

11 See the judgment in Mulder, cited above, paragraph 15.

12 Opinion in Case C-314/89 Rauh v Hauptzollamt Nürnberg/Fürtb [1991] ECR I-1660, paragraph 14 in fine.

13 Judgment in Case C-189/89 Spagl v Hauptzollamt Rosenheim [1990] ECR I-4539, paragraph 13.

14 Commission Regulation (EEC) No 1546/88 of 3 Tunc 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).

15 Cf. Advocate General Jacobs' Opinion in Dowling, cited in footnote 8, paragraph 28.

16 In contrast, reference quantities coming under Article 3(1) and (2) or Article 4(1)(b) and (c) do not result in there being a bar to entitlement under Article 3(a); they arc merely reduced: sec the second subparagraph of Article 3a(2).

17 See the judgments in Spagl, cited in footnote 12, and in Case C-217/89 Pastätter v Hauptzollamt Bad Reichenhall [1990] ECR I-4585.

18 See the fourth recital in the preamble.

19 See the second subparagraph of paragraph 2 of the new provision.

20 Cf., for example, the judgment in Case C-297/89 Rijksadvocaten v Ryborg [1991] ECR I-1943, paragraph 9.

21 The Commission bases this view on the fact that the plaintiff in the main proceedings supplies milk because he has obtained a reference quantity under Article 2 of Regulation No 857/84. The Commission considers that since the concept of a producer within the meaning of the third subparagraph of Article 12(c) in the version of Regulation No 764/89 does not cover milk deliveries by the producer, unlike the concept defined in the first paragraph, the plaintiff cannot be regarded as a producer for the purposes of Article 3a of Regulation No 857/84. In that regard, it should be mentioned in passing that that view clearly conflicts with Article 3a(5) and the seventh recital in the preamble to Regulation No 764/89 and likewise with the first indent of the third subparagraph of Article 3(1) of Regulation No 1546/88 (in the version set out in Commission Regulation (EEC) No 1033/89 of 20 April 1988 (OJ 1989 L 110, p. 27)).

22 In any event, I take the view that that provision is not applicable from the outset to the sale in this case, since it relates only to cases in which the original farmer already had a reference quantity.

23 Whereas, under Article 6(2) of Regulation No 1078/77, the original applicant (the owner of the whole of the farm) conserves his entidement to the premium in the event that he should transfer part of the farm — but not if he transfers it all — if the person to whom he transferred the part of the farm concerned undertook to fulfil his predecessor's obligations, the third subparagraph of Article 3a(2) covers the case where the person to whom the land is transferred acquires a (proportional) entitlement to the premium. The ensuing problems of interpretation and validity have been brought before the Court in Case C-81/91 Twijnstra and in Case C-175/91 Ahlen and Grünefeld.

24 See, depending on the language version, the third or fourth recital; emphasis supplied.

25 However, the Court has already dismissed the argument based on fact that no application was made (judgment in Rauh v Hauptzollamt Nürnberg/Fürtb, cited above, paragraphs 20 and 21).

26 See Joined Cases 95 to 98/74, 15 and 100/75 Union Nationale des Coopératives agricoles de céréales v Commission and Council [1975] ECR 1615, paragraph 38 et seq., Case 84/81 Staples Dairy Products v Intervention Board for Agricultural Produce [1982] ECR 1763 and Joined Cases C-143/88 and C-92/89 Zuckerfabrik Süderdithmarscben v Hauptzollamt Itzehoe [1991] ECR I-415, paragraph 56 et seq.

27 See the judgments in Mulder, cited above, paragraph 15, in Case C-67/89 Berkenheide v Haiiplzollamt Minister [1990] ECR I-2615, paragrapli 14, and in Case C-177/90 Kühm v Lundwirtschajtskammer Ems [1992] ECR I-35, paragraph 11.

28 The deadline for new applicants was 15 September 1980 for the non-marketing premium and the end of the 1980/1981 marketing year for milk for the conversion premium: Article 1 of Council Regulation No 1365/80 amending Regulation No 1078/77 (OJ 1980 L 140, p. 18).

29 OJ 1983 C 314, p. 9.

30 My emphasis.

31 Judgment in Kühn v Landwirtschaftskammer Ems, cited above, paragraph 18.

32 Judgment in Case 84/87 Erpelding v Secrétaire d'Etat à l'Agriculture et à la Viticulture [1988] ECR 2647, paragraph 30.