Court of Justice of the European Communities (including Court of First Instance Decisions)

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Agriculture ° Common organization of the markets ° Milk and milk products ° Additional levy on milk ° Allocation of reference quantities exempt from the levy ° Producers who suspended deliveries of milk under the system of non-marketing or conversion premiums ° Grant of a special reference quantity ° Rule against overlapping barring transferees of a non-marketing or conversion premium who obtained a reference quantity under other provisions of the additional levy scheme ° Principle of protection of legitimate expectations ° Infringement
(Council Regulations Nos 1078/77 and 857/84, as amended by Regulation No 764/89, Art. 3a(1))

The rules laid down by Regulation No 857/84 on the additional levy on milk had to take account of the fact that a producer who has taken over a holding subject to a non-marketing or conversion undertaking pursuant to Regulation No 1078/77 together with the obligations entered into by his predecessor and has accordingly been paid the balance of the premium in accordance with Article 6 of that regulation, was legitimately entitled, in exactly the same way as a producer who was bound by such an undertaking throughout the non-marketing or conversion period, to expect not to be subject to subsequent restrictions specifically affecting him on account of that undertaking.
However, the rule against overlapping in the second indent of Article 3a(1) of Regulation No 857/84, according to which allocation of a special reference quantity is restricted to producers bound by an undertaking given pursuant to Regulation No 1078/77 who have not otherwise obtained a reference quantity on the terms prescribed by other rules of the additional levy system, imposes precisely such restrictions on that category of producers in so far as it bars them from obtaining a reference quantity in respect of the holding for which the said undertaking was given, whereas no such prohibition of overlapping is laid down for producers who were not bound by such an undertaking during the reference year. That provision therefore frustrates the legitimate expectation which the producers concerned were entitled to entertain as to the limited nature of their undertakings, which they entered into before the system of the additional levy on milk came into force, and is, to that extent, invalid.

In Case C-264/90,
REFERENCE to the Court under Article 177 of the EEC Treaty by the Finanzgericht Hamburg for a preliminary ruling in the proceedings pending before that court between
Heinrich Wehrs
and
Hauptzollamt Lueneburg
on the validity of the second indent of Article 3a(1) of 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) as amended by Council Regulation (EEC) No 764/89 of 20 March 1989 (OJ 1989 L 84, p. 2),
THE COURT (Third Chamber),
composed of: M. Zuleeg, President of the Chamber, J.C. Moitinho de Almeida and F. Grévisse, Judges,
Advocate General: C.O. Lenz,
Registrar: D. Triantafyllou, Administrator,
after considering the written observations submitted on behalf of:
° the plaintiff in the main proceedings, Heinrich Wehrs, by H.J. Beyer, Rechtsanwalt, Bremervoerde,
° the Commission of the European Communities, by Dierk Booss, Legal Adviser, acting as Agent, and
° the Council of the European Communities, by B. Schloh, Legal Adviser, acting as Agent,
having regard to the Report for the Hearing,
after hearing oral argument from the plaintiff in the main proceedings, the Commission and the Council at the hearing on 2 April 1992,
after hearing the Opinion of the Advocate General at the sitting on 21 May 1992,
gives the following
Judgment

Costs
1 The costs incurred by the Council of the European Communities and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,
THE COURT (Third Chamber)
in answer to the question referred to it by the Finanzgericht Hamburg, by order of 12 July 1990, hereby rules:
The second indent of Article 3a(1) of Council Regulation (EEC) No 857/84 of 31 March 1984, as amended by Council Regulation (EEC) No 764/89 of 20 March 1989, is invalid in so far as persons taking over a premium granted pursuant to Council Regulation (EEC) No 1078/77 of 17 May 1977 are barred from allocation of a special reference quantity if they have received a reference quantity under Article 2 of Regulation (EEC) No 857/84.