Opinion of Mr Advocate General Gulmann delivered on 20 April 1993

1 Original language: Danish.

2 OJ 1984 L 90, pp. 10 and 13.

3 Of primary importance for the present case arc the judgments of the Court of Justice in Case 5/88 Wachauf [1989] ECR 2609 and Case C-121/90 Posthumus [1991] ECR I-5833, both of which will be discussed later. The other judgments on the landlord/tenant relationship are the judgments of the Court of Justice in Case C-341/89 Ballmann [1991] ECR I-25, Case C-177/90 Kiilm [1992] ECR I-35, and the judgment in Case C-236/90 Maicr [1992] ECR I-4483. See also the Opinion of Advocate General Lenz in Case C-98/91 Herbrmk (the Court has not yet given its judgment in that case).

4 Paragraph 13 of the judgment in Wachauf, cited above in footnote 2.

5 Sec the sixth recital in the preamble to Council Regulation No 590/85 of 26 February 1985 (OJ 1985 L 68, p. 1), and the Corrigendum (OJ 1985 Ĺ 81, p. 41).

6 The High Court has stated that there are 60 other tenants in the same situation as Mr Bostock who have brought proceedings against their landlords in order to obtain compensation corresponding to that under the Agriculture Act 1986. Those cases have been stayed pending a decision by the Court of Justice on the questions referred to it in this case.

7 The question is worded as follows: ‘Are Council Regulation (EEC) No 804/68, Council Regulation (EEC) No 857/84, Commission Regulation (EEC) No 1371/84 and/or the general principles of Community law to be interpreted as having placed on a Member State the obligation to adopt in respect of the period April 1984 (when the system of reference quantities came into force) to September 1986 (when the compensation provisions of the Agriculture Act 1986 came into force in the United Kingdom) measures similar to those adopted in the United Kingdom by means of the Agriculture Act 1986 in respect of the period from September 1986 entitling a tenant to receive compensation from his landlord in circumstances where: (i) a reference quantity had been allocated to the tenant in respect of the holding pursuant to the said regulations, (ii) the tenant surrendered is lease to the landlord during the period in question, (iii) on the surrender of the lease the reference quantity passed with the holding to the landlord, (iv) the situation fell outside Article 7 (4) of Regulation No 857/84 as amended by Council Regulation (EEC) No 590/85 and in any event the Member State concerned had not exorcised the power conferred by that provision to put some or all of the reference quantity at the disposal of the departing tenant, (v) the Member State concerned operated an outgoers scheme pursuant to Article 4 (1) (a) of Regulation No 857/84 but the tenant was required to obtain the permission of the landlord to participate in the scheme, applications to participate in the scheme were not being accepted at the time when the tenant surrendered the lease and the scheme was limited in terms of the money available in outgoers compensation?.

8 OJ 1992 L 405, p. 1.

9 He reiterated that view in his Opinion in the Posthumus case cited in footnote 2, above; sec in particular paragraphs 19 to 22.

10 The judgment of the Court in the Posthumus case (see footnote 2) may possibly be an expression of the view that there is no general obligation incumbent upon Member States on the basis of Community law to protect the economic interests of tenants. That case concerned a dispute between the tenants of an agricultural holding and the purchaser of a small part of that holding and the question submitted concerned in particular the calculation of the size of the milk quota which the purchaser claimed should be transferred to him. The court making the reference had stated, with reference to the Wachauf judgment, that it might be incompatible with the rights of the tenants if a proportionate part of the milk quota was transferred to the purchaser. As mentioned above, Mr Advocate General Jacobs considered that it was incumbent on the national legal orders to protect the tenants' rights in those circumstances. The Court did not express a view on that question and resolved the matter by interpreting the relevant provisions of the regulations which laid down the criteria for the allocation of the milk quota.

11 Case C-260/89 ERT [1991] ECR I-2925.

12 Case C-159/90 Crogan [1991] ECR I-4685.

13 In paragraph 43 in the ERT the Court held: In particular, where a Member State relies on the combined provisions of Articles 56 and 66 in order to justify rules which are likely to obstruct the exercise of the freedom to provide services, such justification, provided for by Community law, must be interpreted in the light of the general principles of law and in particular of fundamental rights. In its judgment in Joined Cases 201 and 202/85 Klensch [1986] ECR 3503, the Court held that the prohibition of discrimination laid down in Article 40 (3) of the EEC Treaty is merely a specifie enunciation of the general principle of equality which is one of the fundamental principles of Community law and that: That provision covers all measures relating to the common organization of agricultural markets, irrespective of the authority which lays them down. Consequently, it is also binding on the Member States when they arc implementing the said common organization of the markets (paragraphs 8 and 9). In his Opinion in Case C-168/91 Komtantinidis [1993] ECR I-1191 Mr Advocate General Jacobs expresses the view that an employed person or a self-employed person who relies on Articles 48, 52 and 59 of the Treaty in connection with employment or an occupation in another Member State is entitled to assume that, wherever he goes to earn his living in the European Community, he will be treated in accordance with a common code of fundamental values, in particular those laid down in the European Convention on Human Rights (paragraph 46). In its judgment in that case on 30 March 1993 the Court did not adopt a view on that suggestion which, in my opinion, is too far-reaching.