Report of the Judge-Rapporteur in Case C-79/91

1. The relevant Community legislation

Regulation No 1371/84 was replaced by 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) with effect from 4 June 1988. Article 7 of the new regulation essentially reiterates the provisions of Article 5 of the repealed legislation.

2. The dispute in the main proceedings

Walter Knüfer operated a dairy farm which had been leased to his family since the last century. The surface area of the farm was 10.2112 hectares, consisting of 0.2395 hectares of farmyard and buildings, 0.0879 hectares of woodland, 0.1059 hectares of paths and lanes and 9.7779 hectares of cultivatable land, including 0.06 hectares of garden adjoining the farmhouse. In addition to the above areas, which belonged to the lessor, Mr Knüfer also leased 4.75 hectares from a Mr Holsteg and 0.75 hectares from a Mr Neuenhaus. As a result, he had been granted milk reference quantities of 88300 kg.

The farm lease with Mr Holsteg was terminated by mutual agreement on 28 February 1987. On that occasion Mr Knüfer and the landowner agreed that a reference quantity of 23750 kg of milk (5000 kg/hectare, multiplied by 4.75 hectares) should be transferred to Mr Holsteg. The Land-wirtschaftskammer Rheinland (Chamber of Agriculture for the Rhineland) issued a certificate for this quantity in accordance with the German regulations adopted for the implementation of the additional levy scheme.

The father of Mr Buchmann gave notice of termination of the farm lease with effect from 1 November 1986, and the property covered by the lease was actually surrendered on 5 November 1986. On 14 October 1986 Mr Buchmann and his father signed an agreement for the transfer of the entire landed property, comprising about 130 hectares, to Mr Buchmann, on the understanding that the transfer of the property and its usage should take effect when the Landwirtschaftsgericht (Agricultural Tribunal) approved the assignment, as it did on 17 December 1986.

Mr Buchmann asked the Landwirtschaftskammer Rheinland to certify the transfer of a certain reference quantity as a result of the devolution to him of the entire holding until then held by his father and in respect of the property previously leased to Mr Knüfer.

As that request was not met in full, Mr Buchmann challenged the partial refusal.

The action was dismissed by the Verwaltungsgericht (Administrative Court). By decision of 29 June 1988, the Oberverwaltungs-gericht (Supreme Administrative Court) also rejected his appeal but varied the original judgment by declaring that under the German regulations implementing the Community scheme the defendant was required to issue a certificate showing the transfer of a reference quantity of 56387 kg of milk from Mr Knüfer to the father of Mr Buchmann on 5 November 1986 and from him to Mr Buchmann on 17 December 1986.

Mr Knüfer appealed on a point of law to the Bundes-verwaltungsgericht (Federal Administrative Court) while Mr Buchmann raised a procedural issue.

The Bundes-verwaltungsgericht considered that its decision depended on the interpretation of the concept of areas used for milk production in Article 5(2) of Regulation No 1371/84. It therefore stayed the proceedings and made a reference to the Court under Article 177 of the EEC Treaty for a preliminary ruling on the following question:

In the grounds of the order for reference the national court states that the provisions of Article 5(2) of Regulation No 1371/84 are applicable in the event of the surrender of a leased holding, in accordance with Article 5(3) of Regulation No 1371/84. In this instance Article 5(2) of Regulation No 1371/84 must be applied, given the fact that, as a result of the termination of different rural leases, the holding of the lessor in the present case was taken over not by a single producer but by several producers, so that the reference quantity must in principle be distributed among the various producers operating the holding.

The Bundes-verwaltungsgericht adds that if it were necessary to apply in the present case not Regulation No 1371/84 but Regulation No 1546/88, the Court of Justice is invited to reply to the question put to it, bearing in mind the similar concept referred to in Article 7(2) of Regulation No 1546/88.

3. Procedure before the Court

The order for reference was received at the Court Registry on 26 February 1991.

Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted by Walter Buchmann, represented by Messrs Lukanow and Tönnesmann, of the Euskirchen Bar, and by the Commission of the European Communities, represented by its Legal Adviser, Dierk Booss, acting as Agent, assisted by Hans-Jürgen Rabe, of the Hamburg Bar.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided on 13 May 1992 to assign the case to the Third Chamber pursuant to Article 95 of the Rules of Procedure. In accordance with Article 104(4) of the Rules of Procedure, the Court (Third Chamber) decided that no oral procedure would be held.

II — Written observations

1. Mr Buchmann maintains that the definition of a holding as set out in Article 12(d) of Regulation No 857/84 should be taken as the basis for the reply to the question raised by the national court. According to this definition, a holding consists of all the production units operated by the producer .... According to Mr Buchmann, the Court has consistently held that the buildings and their surroundings, including the cowshed and the other farm buildings necessary for milk production, together with the accommodation occupied by the farmer, are part of all the production units operated by the producer. Moreover, according to the interpretation given in the judgment in Case 5/88 Wachauf v Germany [1989] ECR2609, even land which has never been used for milk production forms part of the holding of the milk producer.

2. The Commission points out, by way of introduction, that in paragraph 15 of the Wachauf judgment, cited above, the Court stated that the surrender of a tenanted holding upon the expiry of a lease has comparable legal effects, within the meaning of Article 5(3) of Regulation No 1371/84, to those brought about by the transfer of the holding upon the grant of the lease and that consequently the surrender, upon the expiry of the lease, of leased agricultural production units is a case covered by Article 5(3). In the opinion of the Commission, this finding applies not only to the surrender of the entire tenanted holding (Article 5(1)) but also to the reversion of part of the holding to its owner upon expiry of the lease (Article 5(2)).

1 Language of the case: German.