Opinion of the Advocate-General
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My Lords,
This reference for a preliminary ruling from the Finanzgericht Hamburg concerns essentially similar issues to those arising in Case 120/86 Mulder v Minister van Landbouw en Visserij (( 1988 )) ECR 2321 and I shall make reference where necessary to my Opinion in that case to avoid repetition .
In the Federal Republic of Germany, Council Regulation ( EEC ) No 1078/77 of 17 May 1977 ( Official Journal 1977 L 131, p . 1 ) was implemented by an Order of the Minister for Food, Agriculture and Forestry of 22 June 1977 ( BGBl . I p . 1006 ). The super-levy introduced by Council Regulations ( EEC ) Nos 856/84 and 857/84 ( Official Journal 1984 L 90, pp . 10 and 13 respectively ) was implemented by the "Verordnung oeber die Abgaben im Rahmen von Garantiemengen im Bereich der Marktorganisation foer Milch und Milcherzeugnisse" ( Milch-Garantiemengen - Verordnung ) (" the Milk Guaranteed Quantities Regulation ") of 25 May 1984 ( BGBl I, p . 720 ) as most recently amended by the regulation of 18 June 1986 ( BGBl I, p . 911 ). The Milk Guaranteed Quantities Regulation creates a producer-based ( formula A ) levy ( paragraph 1 ) and sets the reference quantities on the basis of production in 1983 ( paragraph 4 ). Paragraph 6 sets out certain special situations in which a reference quantity other than that envisaged in paragraph 4 may be allocated . These are where the milk producer is in receipt of development aid under Directive 72/159/EEC ( Official Journal English Special Edition 1972 L 92, p . 1 ); where public funds were granted to the milk producer between 1 July 1978 and 29 February 1984 for investment without a formal development plan; where a construction project was authorized between 1 July 1978 and 29 February 1984; and where such a construction project was completed between 1 July 1978 and 29 February 1984 .
The agreed relevant facts stated in the Order for Reference may be summarised as follows .
Mr von Deetzen is a farmer aged 63 whose total holding of 41.7 hectares in the Weser marshes consists of pasture land which he claims is not suitable for arable farming . His youngest son is being trained as a dairyman; and it is intended that the second youngest son, presently aged 22, should inherit the farm . At present Mr von Deetzen owns some 40 milk cows and 80 young cattle .
In 1980 Mr von Deetzen applied for a non-marketing premium ( not, as I understand Annex 1 to the application to the Finanzgericht, a conversion premium ) pursuant to Regulation No 1078/77 . The premium, granted on the basis of a milk quantity of 190 665 kg, was approved by a notice dated 12 July 1980 . Mr von Deetzen was accordingly required not to market milk for a period of five years . This period included the year - 1983 - chosen by the Federal Republic of Germany as the reference year for the super-levy . Mr von Deetzen' s five year non-marketing period expired on 7 September 1985 .
On 22 May 1985 Mr von Deetzen applied to the Hauptzollamt Oldenburg for the allocation of a reference quantity of 190 665 kg of milk under the Milk Guaranteed Quantities Regulation . He was allocated a reference quantity of 0 kg by decision dated 2 October 1985 . Following the rejection of his administrative appeal, he brought proceedings for a declaration before the Finanzgericht Hamburg, which decided on 26 June 1986 to refer the following question to the Court arising out of those proceedings :
"Are Council Regulations ( EEC ) Nos 856/84 and 857/84 of 31 March 1984 ( the latter as most recently amended by Regulation ( EEC ) No 3571/85 ) and Commission Regulation ( EEC ) No 3571/84 of 16 May 1984, as most recently amended by Regulation ( EEC ) No 3005/85, valid even though farmers who did not produce milk during the relevant reference period because they received a non-marketing or a conversion premium and who have accordingly not been allocated a reference quantity for the purposes of the milk quota rules are required to pay a levy of 75% of the milk target price on recommencing milk production after the expiry of the five-year period laid down on the grant of the premium?"
Unlike Mulder, no questions are referred dealing specifically with the powers and obligations of Member States in implementing the super-levy .
The written arguments presented by the applicant were framed in terms of fundamental rights under German national law rather than in Community law terms . At the hearing, the emphasis was placed on the principle of legitimate expectations, on the alleged discrimination as between producers whose undertakings not to market milk had expired in time for them to be producing milk again in the reference year and those who, like the applicant, were still bound by those undertakings and on the limitation to Mr von Deetzen' s right to exercise his profession .
In my Opinion in Mulder I reached the conclusion that the legitimate expectations of persons who had accepted a marketing premium against an undertaking not to produce milk for a five-year period which inluded the relevant reference year had not been respected and that there had been discrimination against them so that, accordingly, Regulation No 857/84 was void in so far as it failed to make specific provision for those in the position of the applicant . The issue in the present case is substantially identical . I am of the same conclusion on those two grounds .
The present applicant raises a further argument, in the context of the exercise of his property rights, that his liberty to exercise his profession has been affected . For the reasons given in Case 44/79 Hauer v Land Rheinland-Pfalz (( 1979 )) ECR 3727, I would not accept that there had been a violation of such rights if I had not concluded that there had been a breach of the other two principles referred to . In the circumstances, however, it is unnecessary to consider this claim further since it adds nothing .
Accordingly in my opinion the question referred falls to be answered along the following lines :
"Council Regulations ( EEC ) Nos 856/84 and 857/84 of 31 March 1984 ( the latter as most recently amended by Regulation ( EEC ) No 3571/85 ) and Commission Regulation ( EEC ) No 1371/84 of 16 May 1984 as most recently amended by Regulation ( EEC ) No 3005/85 are void in so far as those Regulations contain no explicit provision taking into account the position of former milk producers who had no milk production in the reference years specified in Article 2 ( 1 ) and ( 2 ) of Council Regulation ( EEC ) No 857/84 because they had given undertakings not to market milk during that period under Article 2 ( 2 ) of Council Regulation ( EEC ) No 1078/77 ."
The costs of the parties to the main proceedings fall to be dealt with by the national court . The costs of the Council and the Commission are not recoverable .
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