AS TO THE ADMISSIBILITY OF
Application No. 27026/95
by Elfriede ZACHER
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 4 September 1996, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 7 April 1995 by
Elfriede ZACHER against Germany and registered on 12 April 1995 under
file No. 27026/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1942, is a German national and resident
at Pöttmes. She is a farmer by profession. In the proceedings before
the Commission, she is represented by Mr. E. Eyl, a lawyer practising
in Strasbourg.
A. Particular circumstances of the case
The facts of the case, as submitted by the applicant, may be
summarised as follows.
In 1974 the applicant took over her mother's farm of about
2.5 acres (19.2 hectare) where she produced milk.
In 1985 the Augsburg District Court (Amtsgericht), in the context
of enforcement proceedings brought by a banking institute, ordered the
forced sale by auction (Zwangsversteigerung) of the applicant's
property, inter alia of the parcel of land No. 385. An agricultural
expert opinion on the value of the estate was prepared in February
1986. The applicant's appeals against the fixing of the value of the
different parcels of the estate were to no avail.
On 17 November 1989 the Augsburg District Court accepted the
highest offer made for the parcel No. 385 and decided that the property
had been sold to Mr. and Mrs. L. by forced sale (Zuschlagsbeschluß).
The Court observed that the highest offer for the whole property
involved had been less than the sum of highest offers for the
individual parcels, and that the parcels had therefore been sold
individually.
On 9 January 1990 the Augsburg Regional Court (Landgericht)
dismissed the applicant's appeal against inter alia the forced sale of
the parcel No. 385. The Court observed that the applicant challenged
the correctness of the fixing of the value of the property in question,
arguing that the milk quota (Referenzmenge) issued to her had not been
duly taken into account.
On 3 April 1990 the Friedberg Agricultural Office (Amt für
Landwirtschaft) issued Mr. L. with a certificate according to which he
had acquired, with effect as from 17 November 1989, a milk quota
amounting to 7.190 kg, namely a share in the applicant's previous total
milk quota proportionate to the size of the parcel of land acquired by
him.
In the administrative appeal proceedings brought by the
applicant, the decision of 3 April 1990 was amended to the effect that
20% of the milk quota involved would revert to the Federal Republic of
Germany.
Subsequently, the applicant instituted court proceedings with the
Augsburg Administrative Court (Verwaltungsgericht) against the transfer
of the said milk quota. She claimed that the parcel had been
transferred by forced sale without the milk quota concerned.
On 3 November 1992 the Augsburg Administrative Court dismissed
the applicant's action. The Court considered that the Agricultural
Office had confirmed the transfer of the milk quota involved in
accordance with the relevant provisions of the Dairy Produce Quantity
Regulations (Milch-Garantiemengen-Verordnung).
The Administrative Court found that the applicant's argument that
the milk quota had not been rated in the expert opinion on the market
value of her real estate was irrelevant on the ground that, in
accordance with the relevant legal provisions, the milk quotas were
in principle linked to the farm land used for dairying. Thus, in case
of sale, lease or inheritance of a farm, the milk quota concerned was
transferred to the person who had acquired the farm. The same applied
to other forms of transfer of dairy farms to the extent that such
transfers had similar legal consequences as sale, lease or inheritance.
Thus, while the case of forced sale by auction was not expressly
mentioned in the provision in question, the relevant milk quota was
transferred as the forced sale by auction had similar legal
consequences to a free sale.
On 31 March 1993 the Bavarian Administrative Court of Appeal
(Bayerischer Verwaltungsgerichtshof) dismissed the applicant's appeal.
The Court of Appeal confirmed the findings of the Administrative Court
regarding the transfer of the milk quota concerned.
On 6 September 1993 the Federal Administrative Court
(Bundesverwaltungsgericht) dismissed the applicant's request for leave
to appeal on points of law (Beschwerde gegen die Nichtzulassung der
Revision).
On 29 September 1994 the Federal Constitutional Court (Bundesver-
fassungsgericht) refused to admit the applicant's constitutional
complaint (Verfassungsbeschwerde). The decision was served on
12 October 1994.
B. Relevant law
1. European Economic Community regulations
There had been surpluses of milk and milk products for
some considerable time. By 1984, according to the preamble of Council
Regulation (EEC) no. 856/84, "quantities of milk delivered [were]
increasing at a rate such that disposal of surpluses [was] imposing
financial burdens and market difficulties which [jeopardised] the very
future of the common agricultural policy". Amending an earlier
regulation which had not proved sufficiently effective, Council
Regulation (EEC) no. 856/84 (OJ (Official Journal) no. L 90 of 1 April
1984, p. 10) was adopted by the Council of the European Communities in
response to these structural surpluses. The Council of the European
Communities decided that for an initial period of five years the
quantity of milk every dairy farmer would be allowed to produce should
be limited to a fixed amount. To this end they introduced a system
under which dairy farmers had to pay a penalty or "additional levy" on
milk delivered in excess of their allotted quotas. It was left to the
States themselves to share out their guaranteed quotas within their
jurisdictions according to a formula prescribed by Council Regulation
(EEC) no. 857/84 (OJ no. L 90 of 1 April 1984, p. 13).
Under Article 189 of the EEC Treaty, Council Regulations (EEC)
no. 856/84 and no. 857/84 were binding in their entirety and directly
applicable in all member States of the European Communities. They
entered into force on 1 April 1984.
2. German legislation
The German Dairy Produce Quantity Regulations (Milch-
Garantiemengen-Verordnung) of 1989, as amended in 1990, implemented the
legal instruments issued by the European Communities, in the context
of the organisation of the common market for milk and milk products,
regarding the levies to be paid by the producer of milk for milk or
milk products sold to purchasers or consumers to the extent that the
quotas concerned exceeded the respective producers' quotas as granted
under the guaranteed quantities on the national level. The German Dairy
Produce Quantity Regulations contain detailed provisions on the
calculation of the milk quotas. S. 7 of the Regulations regulates
legal consequences regarding the milk quotas in case of sale, lease or
inheritence of the whole or part of an agricultural estate. Thus, in
case of sale or lease of part of an agricultural estate, as a rule, an
equivalent share in the milk quotas passed to the purchaser or
leaseholder; exceptions limiting the maximum amount of the share
concerned, partly depending on the date of the sales or lease contract,
or excluding the transfer of milk quotas in cases of small parts sold
or leased were also stipulated. These provisions of S. 7 also applied
to other legal transactions with similar legal consequences.
COMPLAINTS
The applicant complains that the decisions of the Friedberg
Agricultural Office, as confirmed by the German courts, on the transfer
part of her milk quota following the forced sale by auction of the
applicant's parcel of land No. 385, amounted to a deprivation of her
property contrary to Article 1 of Protocol No. 1 to the Convention.
She submits that the relevant legal provisions on the transfer of milk
quota do not apply in case of a forced sale by auction of real estate.
Moreover, the German authorities failed to take duly into account that,
according to the applicant, the parcel in question was destined for the
production of potatoes and not for dairying.
THE LAW
The applicant complains under Article 1 of Protocol No. 1 (P1-1) to the
Convention about the transfer of part of her milk quota, following a
forced sale by auction, to the purchaser of part of her real estate,
namely parcel No. 385.
Article 1 of Protocol No. 1 (P1-1) reads as follows:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems necessary
to control the use of property in accordance with the general
interest or to secure the payment of taxes or other contributions
or penalties."
As to the question whether or not Article 1 of Protocol No. 1
(P1-1) applies in the instant case, the Commission recalls that
economic interests connected with the running of a business or trade
are "possessions" for the purposes of Article 1 of Protocol No. 1
(P1-1), and the withdrawal of a licence being one of the principal
conditions for the carrying on of such business may be regarded as
interference with the right to the "peaceful enjoyment of one's
possessions" (cf. Eur. Court HR., Tre Traktörer Aktiebolag v. Sweden
judgment of 7 July 1989, Series A no. 159, p. 21, para. 53).
In this respect, the Commission has held that the applicability
of Article 1 of Protocol No. 1 (P1-1) depends, inter alia, on whether
the licence gives rise to a reasonable and legitimate expectation of
continuing benefits from the exercise of the licensed activity.
Accordingly, a licence-holder cannot be considered to have such an
expectation where the conditions attached to the licence are not or no
longer fulfilled or if the licence is withdrawn in accordance with the
provisions of the law in force (No. 19819/92, Dec. 5.7.94, D.R. 78
p. 88).
In the present case, the applicant's farming estate, including
the parcel in question, was acquired by third persons in the context
of proceedings for the forced sale by auction instituted by a banking
institute, the applicant's creditor. Following the forced sale, the
competent agricultural authority, as confirmed by the German
administrative courts, issued a certificate on the transfer of part of
the milk quota previously attributed to the applicant to the person
having acquired parcel No. 385 in the above forced sale, in the
proportion which the parcel bore to the total size of the real estate,
minus 20% which reverted to the Federal Republic of Germany.
The Commission notes that, in accordance with the relevant legal
provisions, milk quotas are in principle linked to the farm land used
for dairying. Accordingly, a transfer of the milk quotas is provided
for if the property right or the right to exploit the farm land
concerned has been acquired by a third person. Taking into account
that, following the forced sale by auction of her farm estate,
including parcel No. 385, the applicant no longer owned the land so as
to enable her to carry on any dairying activities, the impugned
transfer of the milk quota did not amount to any interference with the
applicant's rights under Article 1 Protocol No. 1 (P1-1) of the
Convention.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy