Opinion of Advocate General Darmon delivered on 3 February 1993

1 Original language: French.

2 Council Regulation (EEC) No 856/84 of 31 March 1984 amending Regulation (EEC) No 804/68 on the common organization of the market in milk and milk products (OJ 1984 L 90, p. 10).

3 OJ, English Special Edition 1968(1), p. 176.

4 Sec the first recital in the preamble to Regulation (EEC) No 857/84.

5 Sec corrigendum published in OJ L 123 of 9 May 1984.

6 The reference quantity allocated to dairies constitutes the total quantity of milk purchased over a given year. Sec Article 2 of Regulation No 857/84. The last indent of Article 5c(1) was amended by Article 1 of Council Regulation (EEC) No 773/87 of 16 March 1987 amending Regulation (EEC) No 804/68 on the common organization of the market in milk and milk products (OJ 1987 L 1987 L 78, p. 1). That regulation is inapplicable ratione temporis to this case.

7 See section 16 of my Opinion in Case 61/87 Thevenot [1988] ECR 2375.

8 Third indent of the second subparagraph of Article 5c(l) of Regulation No 804/68, as supplemented by Article I of Regulation No 856/84.

9 See paragraph 11 of the judgment in Thevenot, cited above.

10 See D. Sorasio, Le nouveau régime de maîtrise dc la production dans Ic secteur du lait et des produits laitiers, Revue du Marché Commun No 291, November 1985, p. 544.

11 Sec the first paragraph of Article 1 of Regulation No 857/84. At present, the levy is 115% of the target price for milk irrespective of the formula chosen. See Article 1 of Council Regulation (EEC) No 3880/89 of 11 December 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 378, p. 3).

12 I shall not discuss the offsetting carried out at the larger levels of the region and the country (Article 4a of Regulation No 857/84).

13 There do, however, exist exceptions to the principle of offsetting within a dairy: where the quantity allocated to a producer is exceeded by a large amount, the whole of that quantity may be penalized, even if the producer concerned is affiliated to a dairy which has not exceeded its reference quantity — which is tantamount to applying formula A (sec Article 1 of Council Regulation (EEC) No 773/87 of 16 March 1987 amending Regulation (EEC) No 804/68 on the common organization of the market in milk and milk products (OJ 1987 L 78, p. 1).

14 In this case, such a practice was ruled out by the period of notice which had to be given for leaving the first dairy.

15 OJ 1984 L 90, p. 13.

16 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).

17 Joined Cases C-90/91 and C-91/91 Neu and Others [1991] ECR I-3617.

18 Sec Article 9 of the Grand-Ducal Regulation of 7 July 1987 on the application in the Grand Duchy of Luxembourg of the scheme of the additional levy on milk, Mémorial, p. 850.

19 Neu, paragraph 13.

20 The exact wording of the question may be found in the Report for the Hearing (Section I, 4).

21 Paragraph 2 of Article 7 was not amended by the version of that article introduced by Article 1 of 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).

22 My emphasis. See also Article 9(1) of 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. That regulation recast the rules applicable in this sphere (see the second recital in the preamble).

23 Joined Cases 201/85 and 202/85 Klensch v Secrétaire d'État [1986] ECR 3477.

24 Paragraph 22.

25 Thevenot, paragraph 11.

26 In particular at paragraph 11

27 Paragraph IV

28 Paragraph 14.

29 That reference quantity is the one which would have been allocated to the purchaser if the producer had not changed his dairy.

30 Neu, paragraph 12. Sec also Klenscb, paragraph 21.