Conclusions
OPINION OF ADVOCATE GENERAL
STIX-HACKL
delivered on 20 November 2003(1)
Case C-164/01 P
G. van den Berg
v
Council of the European Union
and
Commission of the European Communities
(Appeal – Action for damages – Non-contractual liability – Conditions – Milk quotas – Regulation (EEC) No 857/84 – Reference quantity – Producers who entered into a non-marketing undertaking – Causal link – Change of holding – Transfer of reference quantity – Limitation – Interruption – Suspension)
Table of Contents
| A – Provisions relating to the allocation of a reference quantity that are specifically relevant to a change of holding |
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| B – Legal acts of the Council and Commission in connection with compensation for SLOM producers |
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| IV – Proceedings before the Court of First Instance and judgment under appeal |
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| A – Community liability in respect of the period following the sale of the initial SLOM holding (first ground of appeal) |
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| B – Limitation on claims to compensation (second and third grounds of appeal) |
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I – Introduction
1.
The present appeal is brought against the judgment of the Court of First Instance in Case T-143/97
(2)
(hereinafter ‘the judgment under appeal’) dismissing as inadmissible the action for damages brought against the Council and
the Commission by the Netherlands milk producer Gerhardus van den Berg.
2.
This case forms part of a whole series of disputes which, in general, concern the position within the milk quota scheme of
so-called ‘SLOM producers’,
(3)
that is to say milk producers who undertook, pursuant to Regulation (EEC) No 1078/77,
(4)
not to market milk or milk products (hereinafter ‘non-marketing undertaking’) or to convert their dairy herds to meat production
(hereinafter ‘conversion undertaking’) for a period of five years.
3.
This problem stems from the fact that no account was taken of the situation of SLOM producers when the milk quota scheme –
which provided for the establishment of certain reference quantities to restrict milk production and levies in the event that
those quantities were exceeded – was introduced as from 1 April 1984. Under the original version
(5)
of Council Regulation (EEC) No 857/84 of 31 March 1984 governing the calculation of reference quantities in each individual
case, the reference quantities were to be established on the basis of milk deliveries during a reference year which, it transpired,
coincided in whole or in part with the periods covered by the non-marketing undertakings entered into by the SLOM producers.
Consequently, such milk producers could not be allocated a reference quantity – as they had produced no milk during the reference
year – and were therefore unable to produce any milk exempt from levies.
4.
The resulting, unfavourable situation of SLOM producers, which was prolonged in part by subsequent ‘corrective measures’ by
the Community legislature and ‘enriched’ by further legal aspects, has occupied the Community courts in various forms for
over a decade and also been reflected in a number of acts of secondary law. These judgments and measures of secondary law,
which relate in part to the (validity of the) rules relating to the allocation of reference quantities per se and in part
to compensation for the damage suffered by SLOM producers as a result of those provisions, form the legal background to the
present case which is set out in detail below.
5.
I have already commented on the problem of liability to SLOM producers in my opinion in Joined Cases C-162/01 P and C-163/01
P.
(6)
Those cases related primarily to whether Community liability is subject to the condition that milk production resume upon
expiry of the non-marketing undertaking or that the SLOM producer concerned manifest an intention to do so.
6.
Against a similar legal and factual background, the present appeal raises two questions in particular, that is to say, on
the one hand, whether the Court of First Instance was right to conclude in the judgment under appeal that Community liability
for damage suffered as a result of refusal to grant a reference quantity ends when the SLOM producer concerned changes holding
and, on the other, whether the Court of First Instance was right to find that the rights to compensation at issue were already
time-barred in the absence of any interruption or suspension of the limitation period.
II – Legal background
7.
Below I will merely reproduce the Community acts directly relevant to the grounds of appeal. As regards the broader legal
context also of the present case, I refer to the legal background set out in my opinion in the joined cases of
Bouma and Beusmans.
(7)
A –
Provisions relating to the allocation of a reference quantity that are specifically relevant to a change of holding
8.
Under subparagraph (1) of Article 3a inserted into this regulation by Regulation (EEC) No 764/89 of 20 March 1989 amending
Regulation (EEC) No 857/84,
(8)
producers are to receive provisionally, if they so request, a special reference quantity inter alia on condition that they:
- ‘(a)
- did not ... transfer the whole of their dairy enterprise before the end of the non-marketing or conversion period;
- (b)
- establish in support of their request ... that they are able to produce on their holding up to the reference quantity requested
...’
9.
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 5(c) of Regulation (EEC) No 804/68,
(9)
as amended by Commission Regulation (EEC) No 1033/89 of 20 April 1989,
(10)
required in Article 3(a)(1) that requests for the grant of a special reference quantity be made by the producers concerned
‘to the competent authority designated by the Member State ... provided that the producers can prove that they still operate,
in whole or in part, the same holdings as those they operated at the time ... of their premium applications’.
10.
Reference should then be made to Article 7 of Regulation No 857/84, as amended by Council Regulation (EEC) No 590/85 of 26
February 1985,
(11)
which provides as follows, in so far as is relevant:
‘1. Where a holding is sold, leased or transferred by inheritance, all or part of the corresponding reference quantity shall
be transferred to the purchaser, tenant or heir according to procedures to be determined.
Where land is transferred to the public authorities and/or for public use, without prejudice to the second subparagraph of
paragraph 3, Member States may provide that all or part of the reference quantity corresponding to the holding or to the part
of the holding transferred shall be put at the disposal of the departing producer if he intends to continue milk production.
...
4. In the case of rural leases due to expire, where the lessee is not entitled to an extension of the lease on similar terms,
Member States may provide that all or part of the reference quantity corresponding to the holding which forms the subject
of the lease shall be put at the disposal of the departing lessee if he intends to continue milk production.’
11.
In this respect Article 7 of Regulation No 1546/88 contains the following implementing provisions:
‘For the purposes of applying Article 7 of Regulation (EEC) No 857/84 and without prejudice to paragraph 3 thereof, the following
rules shall apply to the transfer of reference quantities granted to producers and purchasers in application of formulas A
and B and of reference quantities granted to producers selling for direct consumption:
1. Where an entire holding is sold, leased or transferred by inheritance, the corresponding reference quantity shall be transferred
in full to the producer who takes over the holding.
2. Where one or several parts of a holding is sold, leased or transferred by inheritance, the corresponding reference quantity
shall be distributed among the producers operating the holding in proportion to the areas used for milk production or according
to other objective criteria laid down by Member States. Member States may disregard transferred parts the area of which used
for milk production is less than a minimum size which they shall determine. The part of the reference quantity corresponding
to that area may be added entirely to the reserve.
3. The provisions of points 1 and 2 and of the fourth subparagraph shall be applicable under the various national rules, in
other cases of transfer which have comparable legal effects as far as producers are concerned.
4. In the event of the application of the second subparagraph of Article 7(1) of Regulation (EEC) No 857/84, concerning the
transfer of land to the public authorities and/or for public use, and Article 7(4) of the said regulation, concerning rural
leases which are due to expire and which cannot be extended on similar terms, all or part of the reference quantity corresponding
to the holding or to the part of the holding which is the subject of the transfer or of the said lease shall be put at the
disposal of the producer concerned if he intends to continue milk production, provided that the sum of the reference quantity
thus made available to him and the quantity corresponding to the holding which he takes over or on which he continues milk
production does not exceed the reference quantity which was available to him before the land was transferred or before the
lease expired.
Member States may apply the provisions of points 1, 2 and 4 in respect of transfers during and after the reference period.
...’
B –
Legal acts of the Council and Commission in connection with compensation for SLOM producers
12.
Following the judgment in the joined cases of
Mulder and Others (hereinafter: ‘
Mulder II’),
(12)
the Council and the Commission published Communication 92/C 198/04 on 5 August 1992.
(13)
13.
Point 1 of the Communication notes that the Community is liable vis-à-vis all producers who satisfy the terms and criteria
of
Mulder II. The other points of the Communication read as follows, as far as is relevant:
‘2. The institutions undertake, with regard to all producers covered by point 1 and until the end of the period mentioned
in point 3, not to plead that entitlement to claim is barred by lapse of time in accordance with the provisions of Article
43 of the Statute of the Court of Justice, provided that entitlement to compensation has not already been barred on grounds
of time on the date of publication of this communication in the
Official Journal of the European Communities or was not already barred on the earlier date on which the producer applied to one of the institutions.
3. In order to give full effect to the judgment of 19 May 1992 the institutions will adopt practical arrangements for compensating
the persons concerned. Payment of interest will be dealt with in these arrangements.’
14.
In order to comply with
Mulder II the Council subsequently adopted Council Regulation (EEC) No 2187/93 of 22 July 1993 providing for an offer of compensation
to certain producers of milk and milk products temporarily prevented from carrying on their trade.
(14)
This regulation offered producers to whom a special reference quantity was definitively allocated
(15)
flat-rate compensation for all the damage that they suffered from the provisions referred to in
Mulder II.
15.
Under Article 8(1) of this regulation, compensation is to be granted only for the period for which the right to compensation
is not time-barred. For the purpose of determining this period Article 8(2) provides as follows:
‘(a) the date of interruption of the five-year time bar set by Article 43 of the Statute of the Court of Justice shall be
the date of the application addressed to a Community institution or, in the case of an action brought before the Court of
Justice, the date on which the application is entered in its register, or at the latest the date of the communication of the
institutions published in the
Official Journal of the European Communities No C 198 of 5 August 1992;
(b) the starting date of the compensation period shall be five years before the date of interruption of the bar, but it may
not fall before 2 April 1984 or before the date on which the non-marketing or conversion undertaking expired;
(c) the closing dates of the compensation period shall be 29 March 1989 for those producers who received the special reference
quantity pursuant to Regulation (EEC) No 764/89 and 15 June 1991 for those producers who received the special reference quantity
pursuant to Regulation (EEC) No 1639/91.’
16.
As regards the submission of the application for compensation, Article 10(2) of Regulation No 2187/93 further provides:
‘The producer shall send his application to the competent authority. The application for production shall reach the competent
authority, subject to rejection, by 30 September 1993 at the latest.
The limitation period pursuant to Article 43 of the Statute of the Court shall start to run afresh for all producers on whichever
of the two dates referred to in the first subparagraph is appropriate if the application referred to in that subparagraph
has not been made by that date save where the limitation period has been interrupted by an application to the Court of Justice
made in accordance with the same Article 43.’
III – Facts
17.
The facts underlying the case are set out as follows in the judgment under appeal:
(16)
‘14 The applicant is a milk producer in the Netherlands. As he gave a non-marketing undertaking, in the context of Regulation
No 1078/77, which expired on 23 February 1985, he did not produce any milk during the reference year chosen pursuant to Regulation
No 857/84. He was therefore unable to be allocated a reference quantity following the entry into force of that regulation.
15 On 1 May 1985 the applicant acquired a holding at Dalfsen (Netherlands), which he operated together with his initial holding,
at Wijhe (Netherlands), for one year. He sold his holding at Wijhe on 13 May 1986.
16 By letter of 31 March 1989 from their legal representative to the Council and Commission, the applicant and 351 other producers
listed in an annex to the letter who, as a result of having entered into an undertaking pursuant to Regulation No 1078/77,
had not delivered milk during the reference year, commonly known as SLOM producers, stated that they held the Community liable
for the damage resulting from the invalidity of Regulation No 857/84 as established by the Court of Justice in
Mulder I. The institutions did not reply to that letter.
17 Following the
Mulder I judgment and the adoption of Regulation No 764/89, the applicant again requested the allocation of a quota in June 1989.
That request was rejected on 30 August 1989, on the ground that the applicant no longer operated the same holding as the one
he had operated at the time of entering into his non-marketing undertaking.
18 The applicant unsuccessfully challenged before the national courts that decision rejecting his application. The decision
therefore became final.
19 By letter of 14 July 1992, the applicant’s legal representative claimed on behalf of the applicant and the producers referred
to in the annex to the letter of 31 March 1989 that the limitation period had been interrupted on the date of that letter.
By letter of 22 July 1992, the Director-General of the Legal Service of the Council replied that time had begun to run again
as in respect of the 348 producers, including the applicant, who had not brought an action. None the less, he accepted that
the letter of 14 July 1992 might constitute in their regard a fresh prior application for the purposes of Article 43 of the
Statute of the Court of Justice. He further stated that the Council would not plead the limitation period between that date
and 17 September 1992 provided that the applications for compensation submitted by the persons concerned were not already
time-barred on 14 July 1992. Finally, he stated:
“During that period, the institutions will endeavour to adopt together the practical arrangements for compensation, in accordance
with the judgment of the Court of Justice.
Accordingly, there is no need to institute proceedings before the Court of Justice in order to prevent time beginning to run
again.
If these procedures are not determined by 17 September next, the Council will inform you what steps to take.”
20 By letter of 10 September 1993, concerning compensation for certain producers in the context of Regulation No 2187/93,
the Commission informed the Netherlands authorities:
“Enclosed is the list of SLOM applicants who, by virtue of the general communication from the Community institutions of 5
August 1992, interrupted the limitation period applicable to their requests for compensation by referring the matter to the
Commission, the Council or the Court of Justice.”
21 The applicant’s name appeared on that list and in his case 31 March 1989 was stated to be the date on which time was suspended
pursuant to the Communication of 5 August 1992.’
IV – Proceedings before the Court of First Instance and judgment under appeal
18.
In this context, Mr van den Berg (hereinafter: ‘the applicant’) brought, by application lodged at the Registry of the Court
of First Instance on 29 April 1997, an action for compensation against the Council and the Commission – under Article 178
and the second paragraph of Article 215 of the EC Treaty (now Article 235 EC and the second paragraph of Article 288 EC) –
for damage suffered by him as a result of his having been prevented from marketing milk by virtue of Regulation No 857/84,
as supplemented by Regulation No 1371/84.
19.
The applicant sought compensation in the sum of 606 315 Netherlands guilders, together with default interest at the rate of
8% per annum from the day on which the application was lodged, for the damage caused by the unlawful deprivation of a reference
quantity which he sustained following the expiry of his non-marketing undertaking on 23 February 1985, the date on which rules
on levies became applicable to him.
(17)
20.
The defendants disputed the applicant’s claim that the conditions which render the Community liable for the damage he has
sustained are fulfilled and raised a plea of inadmissibility on the ground that the rights on which the applicant relies are
time-barred.
(18)
21.
By order of 24 June 1997, the Court of First Instance stayed proceedings pending delivery of judgment in
Mulder III.
22.
By order of 11 March 1999, the Court of First Instance ordered that proceedings be resumed.
23.
By the judgment under appeal, the Court of First Instance dismissed the application as inadmissible. The grounds of the judgment
are essentially as follows:
24.
In its judgment the Court of First Instance first considers whether the liability of the Community under Article 215 of the
EC Treaty (now Article 288 EC) is susceptible of being incurred and, if so, until what date. It then examines whether the
rights on which the applicant relies are time-barred.
(19)
Considerations of the judgment relating to Community liability
25.
After setting out the bases for possible non-contractual liability of the Community to the SLOM producers based on infringement
of the principle of protection of legitimate expectations, the Court of First Instance rules that as regards the claim for
compensation for damage in respect of the period between 23 February 1985 and 13 May 1986, the date on which the applicant
sold his SLOM holding, it is common ground that, pursuant to Regulation No 857/84, the applicant was unable to market any
quantity of milk and that the corresponding damage is attributable to the Community.
(20)
26.
As regards the damage claimed to have been sustained after 13 May 1986, on the other hand, the Court of First Instance considers
to what extent that damage was a consequence of the initial refusal to grant the applicant a quota in 1985. In that regard
it states as follows:
(21)
‘44 The applicant transferred his SLOM holding in 1986 and transferred production to another holding for reasons of economic
efficiency. Clearly, that decision on the applicant’s part, taken of his own free will, had no connection with the refusal
to grant him a quota upon the expiry of his non-marketing undertaking in 1985.
45 Furthermore, it follows from Article 7(1) of Regulation No 857/84, as amended by Council Regulation (EEC) No 590/85 of
26 February 1985 (OJ 1985 L 68, p. 1), in conjunction with Article 7 of Regulation No 1546/88, that even in the situation
of a milk producer who had not given a non-marketing or conversion undertaking, the possibilities of transferring a quota
from one holding to another were limited either to cases where land was transferred to the public authorities and/or for public
use (Article 7(1)), or to those where rural leases were due to expire and could not be renewed (Article 7(4)).
46 Therefore, even supposing it were true that in 1985/1986 producers with a reference quantity were able to transfer it in
accordance with Netherlands administrative practice, that situation would not have been one with which the Community legislature
was concerned and it would have been for the Netherlands authorities, should the need arise, to accord the applicant non-discriminatory
treatment.
47 Next, it should be observed that, following the entry into force of Regulation No 764/89, the applicant’s application for
a quota under that measure was rejected pursuant to Article 3(a)(1) of Regulation No 1546/88 (see paragraph 7 above), which
provides that in order to be granted a special reference quantity producers must be able to prove that on the date of making
such application they still operate the SLOM holding, in whole or in part.
48 Contrary to what the applicant claims, however, and as the Court of Justice has already held on a number of occasions (see,
in particular, Case C-98/91
Herbrink [1994] ECR I-223), that requirement merely establishes in relation to special reference quantities the principle laid down
in Article 7(1) of Regulation No 857/84 that the reference quantity is transferred with the land in respect of which it was
allocated (paragraph 13). In those circumstances, the applicant cannot maintain that the application of that requirement in
his case constitutes an infringement of the principle of protection of legitimate expectations in that he could not foresee
at the time of transferring his SLOM holding that such a condition would be imposed.
49 Since the sale of the applicant’s SLOM holding was not the consequence of his having been unlawfully refused a quota in
1985, and since the circumstances of the sale were not such that it was covered by the possibilities of transfer provided
for in Regulation No 857/84, the reasons for which the applicant was unable to obtain a quota under Regulation No 764/89 and
the consequent harm cannot be attributed to the Community.’
27.
Therefore, the Court of First Instance concludes that the damage sustained by the applicant as a result of being deprived
of a reference quantity can only be that incurred up to 13 May 1986
(22)
and then considers whether the applicant’s claim in this respect is time-barred.
Considerations of the judgment concerning limitation
28.
As regards the question of limitation, the Court of First Instance rules that the limitation period in respect of the proceedings
before it started to run on 23 February 1985, the date on which Regulation No 857/84 became applicable to the applicant. Entitlement
to compensation relates, therefore, to consecutive periods commencing on each day on which it was not possible to market milk.
(23)
29.
However, the Court of First Instance takes the view that since the applicant sold his SLOM holding on 13 May 1986, he was,
as from that date, no longer entitled to a reference quantity. Therefore, ‘since it has been held that the harm which he claims
to have sustained following that sale has no connection with the application to him of Regulation No 857/84, the limitation
period expired five years after 13 May 1986, that is to say on 13 May 1991, unless it was interrupted before that date.’
(24)
30.
The Court of First Instance then dismisses as follows the objections which the applicant raised to the effect of the limitation:
(25)
‘62 Under Article 43 of the Statute of the Court of Justice, the limitation period is interrupted only if proceedings are
instituted before the Community judicature or if, prior to such proceedings, an application is made to the relevant Community
institution, it being however understood that, in the latter case, interruption only occurs if the request is followed by
an application within the time-limits determined by reference to Article 173 of the EC Treaty (now, after amendment, Article
230 EC) or Article 175 of the EC Treaty (now Article 232 EC), depending on the case (Case 11/72
Giordano v
Commission [1973] ECR 417, paragraph 6, and Case T-222/97
Steffens v
Council and Commission [1998] ECR II-4175, paragraphs 35 and 42).
63 It follows that the applicant cannot rely, for the purposes of interruption of the limitation period provided for in Article
43 of the Statute of the Court of Justice, on the letter of 31 March 1989 to the institutions, since he did not subsequently
institute proceedings before the Court of First Instance.
64 The applicant claims that it follows from the application of the Communication of 5 August 1992 in his case that the defendants
undertook not to plead that his claim was time-barred after 31 March 1989, the date on which he submitted a claim to the institutions.
65 It should be pointed out, in that regard, that the waiver of the right to plead limitation contained in the Communication
of 5 August 1992 was a unilateral act which was intended to limit the number of actions brought by encouraging producers to
await the introduction of the flat-rate compensation scheme provided for by Regulation No 2187/93 (
Steffens v
Council and Commission, cited above, paragraph 38).
66 That communication was specifically aimed at producers whose entitlement to compensation was not yet time-barred on the
date on which it was published in the Official Journal or on the date on which they had already applied to one of the institutions
(see paragraph 11 above). By the latter reference, the defendants were referring to producers who had applied to the institutions
before the publication of the communication in order to claim entitlement to compensation on the basis of
Mulder II and who had been requested not to initiate actions for damages pending the adoption of the regulation determining flat-rate
compensation. The purpose of that reference was to protect those producers’ entitlement to compensation.
67 However, the letter of 31 March 1989 was never followed by a reply from the defendants and, consequently, they never gave
any commitment in regard to the applicant on that date. In those circumstances, the applicant cannot rely on the Communication
of 5 August 1992.
68 Next, it is necessary to reject the applicant’s argument based on the fact that his name was on a list sent to the Netherlands
authorities by the Commission following the entry into force of Regulation No 2187/93 setting out the producers entitled to
benefit from the undertaking given in the Communication of 5 August 1992 not to rely on the limitation period.
69 First of all, that list was sent to the national authorities in order to inform them, in case they should receive claims
for compensation within the compromise arrangement provided for in Regulation No 2187/93, of the date from which the limitation
period for claims had been interrupted. It did not distinguish the SLOM producers who had been allocated a definitive reference
quantity, and who were therefore entitled to receive a proposal for a compromise pursuant to Regulation No 2187/93 from those
who, like the applicant, had not received a quota and consequently did not come within such a compromise arrangement. It follows
that the applicant’s name was included on that list in error.
70 However, such an error was not capable of leading the applicant to believe that he was entitled to take advantage of the
undertaking given in the Communication of 5 August 1992 and that the limitation period in respect of his request had been
interrupted with effect from 31 March 1989. When the list in question was sent, on 10 September 1993, the applicant was already
aware that he was not entitled to take advantage of the compromise offer provided for in Regulation No 2187/93 and that he
was therefore not concerned by the abovementioned undertaking.
71 Furthermore, the defendants’ position as regards the limitation period in respect of the present action cannot amount to
discrimination by comparison with the Commission’s attitude to the SLOM producers who received offers of compensation, since,
as just pointed out (see paragraph 69 above), the applicant’s position is different from that of those entitled to take advantage
of Regulation No 2187/93.
72 Last, as regards the applicant’s assertions concerning the statements allegedly made by Mr Booss, it is sufficient to observe
that they are not supported by any evidence.’
31.
On these grounds the Court of First Instance finally concludes that in the absence of any interruption or suspension of the
limitation period no later than 13 May 1991, the proceedings instituted on 29 April 1997 were brought at a late point, at
a time when the applicant’s rights to compensation were already time-barred.
(26)
V – The appeal
32.
On 13 April 2001 Mr van den Berg (hereinafter: ‘the appellant’) brought before the Court of Justice the present appeal against
the judgment of the Court of First Instance. He claims that the Court should
- –
- set aside the judgment under appeal delivered by the Court of First Instance on 31 January 2001 in Case T-143/97;
- –
- refer the case back to the Court of First Instance;
- –
- order the Council and the Commission to pay the costs of the proceedings before the Court of First Instance and of these proceedings.
33.
The Council contends that the Court should
- –
- declare the appeal inadmissible in part and in any event unfounded in whole;
- –
- order the appellant to pay the costs of the proceedings.
34.
The Commission contends that the Court should
- –
- declare the appeal unfounded;
- –
- in the alternative, declare the action for compensation inadmissible;
- –
- order the appellant to pay the costs of these proceedings.
VI – Legal Analysis
35.
The appellant bases his appeal on three grounds. The first ground of appeal relates to whether the Court of First Instance
erred in law in its assessment of Community liability for the damage suffered in the period following the change of holding.
By both the second and third grounds of appeal the appellant then takes issue with the Court of First Instance’s findings
that the rights to compensation are already time-barred. Since the latter grounds of appeal are essentially based on the same
complaints, they will be dealt with jointly below.
A –
Community liability in respect of the period following the sale of the initial SLOM holding (first ground of appeal) 1. Main arguments of the parties
36.
By the first ground of appeal the
appellant essentially submits that at paragraphs 43 to 50 the Court of First Instance erred in law in ruling that the Community was
not liable for the damage that he had suffered following the change of holding on 13 May 1986.
37.
First, the Court of First Instance misinterpreted the division of powers between the Community and the Member States. With
regard to paragraph 46 of the judgment, the appellant states that obligations of Community institutions and not of national
authorities are indeed concerned in this case. Under the Community regulations, the national authorities were barred from
allocating a reference quantity where a holding was transferred and therefore the liability in that respect lies with the
Community institutions.
38.
In the view of the appellant, at paragraph 48 of the judgment under appeal the Court of First Instance further misconstrued
the principle of protection of legitimate expectations and the relevance of the judgment in
Herbrink. At this juncture the Court of First Instance appears to state that the appellant may not rely on this principle because
the expectation to which he refers does not warrant protection. However, he relies on no expectation other than to be treated
as any ‘normal’ producer or, in other words, not to be subjected to particular restrictions merely because he is a SLOM producer.
It is precisely this expectation which the Court of First Instance held to be legitimate in
Herbrink.
(27)
If – as must be deduced from this judgment – a lessee is able to transfer his reference quantity to a new holding, a SLOM
producer must also be able to take his reference quantity to a new holding. It is regrettable that the Court of First Instance
failed to recognise this parallel with
Herbrink.
39.
The appellant emphasises that – by operating the old and new holding in parallel for a period of one year – he changed holding
in precisely the manner which enabled any producer to transfer the reference quantity to the new holding in accordance with
Netherlands administrative practice. It has always been generally recognised that this practice is consistent with Community
law. By imposing the unexpected and retroactive requirement that a SLOM producer must prove that he still operates, in whole
or in part, the same holdings he operated at the time of his premium application, Regulation No 1033/89 infringes his legitimate
expectation to be able to transfer his reference quality in this carefully selected manner in the same way as any normal producer.
In any event, the Court of First Instance and respondents’ argument that under Community rules he could not have transferred
his reference quantity also as a normal producer, or could not rely on Netherlands practice, must be dismissed.
40.
The appellant further submits that, as is clear from the preceding comments, the Court of First Instance erroneously applied
the requirement relating to a causal link. The refusal to grant him a special reference quantity in 1989 cannot be attributed
to the fact that he changed holding, but to the applicable Community rules. The Court of First Instance wrongly applied the
requirement relating to a causal link to the connection between the original rules on levies and the change of holding in
1986. Naturally, no such connection exists. The relevant causal link is that between the unlawful act of the Community legislator
and the loss of earnings suffered by the appellant.
41.
The
Council and the
Commission dispute the claim that the Court of First Instance erred in law in applying the principle of protection of legitimate expectations
or the requirement relating to a causal link or misinterpreted the judgment in
Herbrink by ruling that the Community could not be held liable for the damage suffered by the applicant after the change of holding.
42.
Both essentially submit that – as the Court of First Instance correctly stated – under the relevant regulations and according
to
Herbrink the principle that the reference quantity is transferred with the land in respect of which it was allocated applies in Community
law. Therefore, under Community law a ‘normal’ producer likewise could not have transferred his reference quantity to a new
holding if there had been a change of holding as in the present case. The possibility of transfer alleged by the appellant
existed at most in accordance with Netherlands administrative practice.
43.
With reference to a judgment of the supreme Netherlands court hearing appeals in SLOM cases,
(28)
the Council expresses in this context uncertainty as to whether a possibility of transfer such as that described by the appellant
existed at all under Netherlands law. The Commission emphasises that in any event it has never recognised such practice, if
it ever existed.
44.
Therefore, as both the Council and the Commission essentially state, the different treatment, if any, occurred only as a result
of national law and not by virtue of or in accordance with Community law. Consequently, the Court of First Instance rightly
held that in any event the Community legislature cannot be alleged to have breached the principle of protection of legitimate
expectations. Moreover, as the Court of First Instance found, the alleged damage was caused not by the rules on levies but
the appellant’s voluntary change of holding.
2. Appraisal
45.
In order to examine whether the Court of First Instance erred in law in finding that the Community is liable only for damage
which the applicant suffered up to 13 May 1986, the relevant part of the judgment under appeal must be placed in context.
46.
As is clear from the judgment,
(29)
in the main proceedings the appellant is seeking compensation for the damage which he sustained owing to the fact that Regulation
No 857/84 deprived him of a reference quantity when his non-marketing undertaking expired on 23 February 1985 and that the
regulations which were supposed to make that situation good made no provision for reference quantities for SLOM producers
who voluntarily changed their initial holding for another holding. As the Court of First Instance finds at paragraph 41 of
the judgment under appeal, the appellant claims overall to have sustained damage caused by the unlawful deprivation of a reference
quantity over a period from 23 February 1985 to the present day.
47.
According to the findings of fact made by the Court of First Instance, it is possible to identify two events in which the
refusal to grant the appellant a reference quantity in the period after the expiry of his non-marketing undertaking manifested
itself. On the one hand, he was refused allocation of a reference quantity directly after the expiry of the non-marketing
undertaking. On the other, a request for the grant of a (special) reference quantity made again after the entry into force
of Regulation No 764/89 was refused.
48.
Thus, there are two rules which could constitute acts that render the Community institutions liable.
49.
Firstly, the alleged damage suffered by the appellant could be attributed to the fact that the Community legislature failed
to take account of the situation of SLOM producers in Regulation No 857/84 in so far as the reference years for the calculation
of the reference quantity exempt from levies coincided with the non-marketing periods. In
Mulder II the Court of Justice ruled that the Community is liable for any damage suffered as a result of the application of this rule.
(30)
50.
Secondly, the repeated deprivation of a reference quantity and the resultant damage following the entry into force of Regulation
No 764/89 could be attributed to the rule under which a producer can be granted a reference quantity only if he still has
the initial holding.
51.
The criticised findings of the Court of First Instance should now be seen against the background of the fact that it clearly
considered whether and to what extent each of the two abovementioned rules concerning the allocation of reference quantities
confer rights to compensation.
52.
Paragraphs 42 to 46 of the judgment under appeal first concern what damage must be attributed to the Community as a result
of the fact that Regulation No 857/84 began to apply to the appellant for the first time after the expiry of its non-marketing
undertaking, thus depriving him of a reference quantity because the regulation took no account of the fact that SLOM producers
were unable to produce any milk during the reference year.
53.
In this context it is necessary to examine whether, in view of the requirement relating to a causal link, the Court of First
Instance erred in law in ruling that only damage suffered up until the sale of the initial holding, and not the damage alleged
to have been suffered after that time, may be attributed to the Community.
54.
More precisely, the question in this case is whether the chain of causation between the abovementioned rule and the continuing
damage was broken by the sale of the holding on 13 May 1986.
55.
According to established case-law, an act of the Community institutions is the cause of damage only where such damage can
be attributed directly and exclusively to such act.
(31)
56.
On the other hand, the requisite causal link does not exist (any longer) where the damage would have also have occurred in
the absence of the act of the Community institutions in question.
(32)
57.
When applied to the present case, this means that the damage suffered by the appellant cannot be attributed to the fact that
Regulation No 857/84 did not permit the allocation of a reference quantity to SLOM producers since he would not have been
granted a reference quantity irrespective of this rule or on account of his failure to satisfy other conditions and the damage
would therefore have occurred in any case.
58.
This situation can be regarded as a particular kind of break in the chain of causation or of interruptive causation brought
about the conduct of the party suffering damage.
(33)
As a result of his own conduct the party suffering damage places himself in a situation in which he would have suffered damage
even in the absence of the unlawful act of the Community institutions in question and consequently this damage cannot be attributed
directly and exclusively to that act.
(34)
59.
Accordingly, the sale of the holding must be regarded as an act which breaks the chain of causation if, under the rules of
Community law concerning reference quantities, the transfer of a reference quantity would in any event have been impossible.
60.
The Court has consistently held that the principle which characterises the entire system of reference quantities, namely that
a reference quantity is allocated in relation to land and must therefore be transferred with that land, is laid down in Article
7(1) of Regulation No 857/84. Therefore, in principle the reference quantity follows the land and not the producer.
(35)
61.
However, the reference quantity can be transferred separately under Community law only in connection with the exceptions
inserted into Article 7 of Regulation No 857/84 by Regulation No 590/85 in cases where land was transferred to the public
authorities and/or for public use, or where rural leases were due to expire and could not be renewed. The Court of First Instance
correctly referred thereto at paragraph 45 of the judgment under appeal.
62.
Therefore, as the Court of First Instance correctly stated at paragraph 46 of the judgment under appeal, the possibility of
transfer described by the appellant in cases of change of holding could have existed at most under national law or in accordance
with national administrative practice.
63.
However, the decisive factor in this case is the fact that it was not possible under Community law – and not only in respect
of SLOM producers – to transfer a reference quantity to a new holding where a holding is sold.
64.
Consequently, the Court of Justice correctly held that the damage suffered, if any, after the sale of the initial holding,
cannot be attributed to the unlawful deprivation of a reference quantity following the expiry of the non-marketing undertaking,
and therefore to the act of the Community institutions in question, because in any event no reference quantity would, for
other reasons, have been available to the appellant from that time.
65.
However, it should be noted that the complaint concerning the erroneous application of the requirement relating to a causal
link is well founded in so far as at paragraph 44, and consequently also at paragraph 49 of the judgment under appeal, the
Court of First Instance takes as a basis a causal link between the deprivation of a reference quantity and the sale of the
SLOM holding. As is clear from the preceding comments, what is important is the extent to which the damage must be regarded
as the consequence of the unlawful refusal of a reference quantity under Regulation No 857/84, as the appellant correctly
submitted.
66.
Thus, paragraphs 47 and 48 of the judgment under appeal must be viewed in the light of the question whether claims of liability
arise from the requirement contained in Article 3(a)(1) of Regulation No 1546/88 that a producer must still have his (initial)
SLOM holding in order to be able to apply for a (special) reference quantity under Article 3(a) of Regulation No 857/84, as
inserted by Regulation No 764/89. More specifically, the issue in this case is whether one of the conditions for liability,
namely unlawfulness, is satisfied in respect of this rule.
67.
In this respect the appellant submitted that at paragraph 48 the Court of First Instance incorrectly ruled that the application
of that requirement in his case does not constitute an infringement of the principle of protection of legitimate expectations.
68.
In that regard, it should be noted that according to settled case-law the legitimate expectation which producers who were
encouraged by a Community measure to suspend marketing of milk for a limited period in the general interest and against payment
of a premium were entitled to have is breached where the non-marketing undertaking they entered into is subject to restrictions
which specifically affect them by reason of that undertaking.
(36)
69.
However, as the Court of First Instance found at paragraph 48, the requirement in question is merely consistent with the principle
laid down in Article 7(1) of Regulation No 857/84 that the reference quantity is transferred with the land in respect of which
it was allocated.
(37)
Therefore, since ‘normal’ producers are also subject to the same requirement under Community law, the appellant cannot claim
to be subject to particular restrictions precisely by reason of his non-marketing undertaking.
70.
On the other hand, the situation of the producer concerned in
Herbrink was different. That SLOM producer was a lessee. However, in the case of rural leases due to expire the Member States are
authorised by Article 7(4) of Regulation No 857/84, as amended by Regulation No 590/85, in conjunction with point (4) of the
first paragraph of Article 7 of Regulation No 1546/88, to transfer to the departing lessee the reference quantity corresponding
to the holding which forms the subject of the lease. In so far as the Member State concerned had generally availed itself
of this authorisation, the SLOM producer was entitled to expect also to benefit from a special reference quantity on the expiry
of his lease.
(38)
71.
Furthermore, for the purposes of liability under Community law, and also in respect of the principle of protection of legitimate
expectations, the appellant cannot claim that in the Netherlands ‘normal’ producers were able to transfer their reference
quantity to another holding. Since, as is clear from the preceding comments, this possibility of transfer has no basis in
Community law, no breach of the principle of protection of legitimate expectations on the part of Community institutions can
be inferred as a consequence. In very general terms, it is settled case-law that the principle of the protection of legitimate
expectations may be invoked as against Community rules only to the extent that the Community itself has previously created
a situation which can give rise to a legitimate expectation.
(39)
72.
Therefore, the appellant’s complaints that the Court of First Instance misinterpreted the principle of protection of legitimate
expectations, the relevance of the judgment in
Herbrink, or the division of powers between the Community and the Member States, must be dismissed.
73.
It follows from all the foregoing considerations that the Court of First Instance was right to rule that the Community was
liable only for damage which the applicant suffered up to 13 May 1986. It is evident from case-law that even if the Court
of First Instance’s findings regarding the requirement relating to a causal link are vitiated by an error, such an error will
remain irrelevant provided that it is clear from other grounds that the Court of First Instance correctly assessed whether
or not the conditions relating to liability were satisfied.
(40)
As is clear from my comments above,
(41)
that is so in this case.
74.
In those circumstances, the first ground of appeal must be dismissed.
B –
Limitation on claims to compensation (second and third grounds of appeal) 1. Main arguments of the parties
75.
Both the second and third grounds of appeal are directed at the Court of First Instance’s view that the claims to compensation
at issue are already time-barred. In the second ground of appeal the appellant criticises the assessment of the limitation
in the judgment under appeal as being erroneous in law in so far as the Court of Justice failed to recognise the suspension
of the limitation period in respect of the period between 31 March 1989 and the publication of the communication on 5 August
1992. In the third ground of appeal he criticises the assessment of the limitation as being erroneous in law in so far as
the Court of First Instance did not consider the limitation period interrupted or suspended also in respect of the period
as of 5 August 1992. In that regard the grounds of appeal are essentially based on two factors. One, the appellant considers
that the Court of First Instance incorrectly interpreted the Communication of 5 August 1992 or failed to draw the correct
inferences therefrom as regards the limitation. Two, he claims that the Court of First Instance misconstrued essential facts
and infringed its obligation to state reasons.
(42)
Consequently, the judgment infringed the principles of equality, legal certainty, protection of legitimate expectations and
the obligation to state reasons.
76.
The appellant essentially submits that by the Communication of 5 August 1992 the Council and the Commission waived the right
to plead limitation in respect of a group of SLOM producers, to which he himself belongs, or relinquished this right as a
consequence of their own conduct. He states that this communication is intentionally worded in broader terms than Article
43 of the EC Statute of the Court of Justice (now Article 46 of the EC Statute of the Court of Justice)
(43)
and also covers the letter of 31 March 1989. Furthermore, the appellant takes the view that the interpretation of Article
43 of the EC Statute of the Court of Justice is not decisive because he relied before the Court of First Instance on the waiver
of the right effected by the Communication of 5 August 1992 and not on this provision. At any rate, it is clear from the wording
of the communication that the Community can no longer rely on the limitation on rights to compensation as against a SLOM producer
who has been offered compensation under Regulation No 2187/93.
77.
Similarly, in the compensation negotiations with the Commission after 1993 it did not rely on the limitation as against SLOM
producers who were party to the letter of 31 March 1989, irrespective of whether or not a SLOM producer had brought an action
before the Court of First Instance in the meantime. The Court of First Instance was wrong not to take account of that fact.
78.
Furthermore, the Court of First Instance also failed to take into account the fact that in the written proceedings in Case
T-179/96
(44)
the Commission withdrew its plea of limitation as a consequence of the letter of 31 March 1989 and thereby again acknowledged
that the Community cannot invoke limitation. Moreover, at paragraph 72 the Court of First Instance was wrong to place the
burden of proof on him as regards the comments by a Commission official and failed to appreciate that these comments were
at least an implicit acknowledgment of the interruptive effect of the letter of 31 March 1989 in conjunction with the Communication
of 5 August 1992.
79.
The appellant then takes issue more specifically with the Court of First Instance’s other comments at paragraphs 62 to 70
of the judgment under appeal. As regards paragraphs 62 and 63 of the judgment, he states that in respect of the interruption
of the limitation period he did not rely on Article 43 of the EC Statute of the Court of Justice but on the Communication
of 5 August 1992. The comments at paragraph 65 stating that the waiver contained in the Communication of 5 August 1992 was
a unilateral act was irrelevant as regards the appellant’s rights. The issue is not what the Council and the Commission intended
in general by the communication, but what legal relationship exists between the Community and the appellant in view of the
content of the communication and the other circumstances referred to.
80.
He contends that the Court of First Instance’s arguments at paragraphs 66 to 67 are incomprehensible and incorrect because
the Court of Justice failed to take account, one, of the different wording of the Communication of 5 August 1992 and Article
43 of the EC Statute of the Court of Justice, and two, of the abovementioned relevance which the Commission attached to the
communication in practice and in relation to the letter of 31 March 1989.
81.
Furthermore, it is not clear from the judgment under appeal why the appellant might have been subject to different treatment
in comparison with SLOM producers who, in the view of the Commission, could rely on the letter of 31 March 1989 in conjunction
with the Communication of 5 August 1992 as regards interruption of the limitation period.
82.
In addition, at paragraphs 68 and 69 the Court of Justice misconstrues the relevance of the list which the Commission sent
to the Netherlands authorities shortly after Regulation No 2187/93 entered into force. The list is further confirmation that
by the communication in question the Commission waived the right to plea limitation as against the authors of the letter of
31 March 1989. Therefore, it follows that the finding at paragraph 70 that the erroneous inclusion of the appellant in that
list was not capable of leading him to believe that he was entitled to take advantage of the undertaking given in the communication,
is incorrect.
83.
Therefore, the appellant concludes overall that the Court of First Instance wrongly assessed the limitation on the claim to
compensation and, on the contrary, the only conclusion that could be reached was that the Community cannot plead limitation
as against him at least in respect of the period up to 30 September 1993.
(45)
As the Court of First Instance considered that his claims were already time-barred in full by this date, there was, as he
goes on to state, no examination of whether there was a partial limitation between this date and the time proceedings were
instituted on 29 April 1997. The Court of First Instance should examine this matter again when the case has been remitted
back to it.
84.
The
Council dismisses the appellant’s complaints as inadmissible in part and in any event as unfounded.
85.
It contends that the appellant is seeking to bring the entire case again before the Court of Justice, in particular as regards
the appraisal of the facts. The submissions are inadmissible at least in so far as the appellant claims that the Court of
First Instance misinterpreted the relevant facts or failed to take them into account. In that respect the Council refers in
particular to the appellant’s comments regarding Mr Booss. In the alternative, it contends that these complaints are, however,
also unfounded. In the view of the Council, the argument that the Commission waived its right to plead limitation in respect
of the period from 31 March 1989 to 5 August 1992 must be dismissed as an inadmissible new complaint. Before the Court of
First Instance the appellant sought instead to plead that the letter of 31 March 1989 has interruptive effect in relation
to the period before 31 March 1989. In this connection the Council notes that if it is accepted that the right to plead limitation
up to 5 August 1992 was waived, no plea of limitation may be raised in respect of the period before this date. On the other
hand, if it is accepted that the limitation period was interrupted, the advantage afforded by the interruption is, according
to established case-law, lost entirely unless proceedings are instituted before the Court of First Instance within the prescribed
period. The Council also notes in general that the appellant claims that the right to plead limitation has been waived only
by the Commission, but in the present case such a right can be legitimately waived only by both institutions concerned.
86.
The appellant’s argument that the Court of First Instance misconstrued the relevance of the Communication of 5 August 1992
and the inferences to be drawn from the letter of 31 March 1989 is unfounded. The Council refers in particular to Article
43 of the EC Statute of the Court of Justice. If the Community institution dismissed a claim, the limitation period in respect
of the claim of liability could be interrupted under this provision only if proceedings were instituted within two months.
However, the Council did not reply to the letter of 31 March 1989 – which constituted an implicit dismissal – and the appellant
did not institute proceedings within the two-month period provided for.
87.
The Council disputes the argument that the letter of 31 March 1989 was covered by the Communication of 5 August 1992 and therefore
– retrospectively – brought about an interruption of the limitation period. The Court of First Instance correctly interpreted
that communication in the light of Article 43 of the EC Statute of the Court of Justice which, as a provision of primary law,
is applicable to the Community institutions.
88.
The Council further submits that the Court of First Instance was right not to infer any rights in respect of the appellant
from decisions of the Commission which it had taken in relation to certain other SLOM producers since the appellant is not
in a comparable situation. The waiver in respect of those producers must be viewed in the context of the attempt to reach
an amicable compromise with producers whose rights to compensation are not entirely time-barred and who are eligible for compensation.
This is not an abstract or general waiver of the rights conferred on the Community by Article 43 of the EC Statute of the
Court of Justice. The Council also points out that the appellant was included on the list of producers in question only in
error.
89.
The
Commission largely shares the Council’s views. It also considers that the question of limitation should be assessed on the basis of
Article 43 of the EC Statute of the Court of Justice.
90.
The Commission essentially submits that the appellant did not dispute the Court of First Instance’s – correct – finding that
the limitation period in respect of the applicant’s rights to compensation took effect on 13 May 1991 in so far as it was
not interrupted previously. The only possible measure interrupting the limitation period was the letter of 31 March 1989.
However, since, following this letter, no proceedings were instituted within the period provided for in Article 43, the only
remaining question is whether the Community institutions gave the appellant the impression that they would not plead limitation
as against him. However, the communication was clearly directed at producers who satisfied the conditions laid down in
Mulder II, that is to say producers who had a definitive reference quantity and whose rights were not yet time-barred. Consequently,
the appellant did not belong to the group of producers as against whom the Commission waived its right to plead limitation.
Nor is this finding in any way altered by his inclusion on the list sent to the Netherlands authorities because he was not
eligible for an offer of compensation under Regulation No 2187/93 even though the list in question was sent precisely for
that purpose. The Court of First Instance set out all these facts correctly at paragraphs 68 to 71 of the judgment.
2. Appraisal
(a) Interruption or suspension of the limitation period in respect of claims to compensation in general
91.
In order to consider the criticised parts of the grounds of the judgments and to be able to classify the appellant’s complaints
accordingly, it is first necessary to examine the rules on limitation applicable to claims of non-contractual liability.
92.
It should firstly be noted that Article 43 of the EC Statute of the Court of Justice (now Article 46 of the Statute of the
Court of Justice),
(46)
the provision of primary law governing limitation in respect of claims of non-contractual liability, refers only to interruption
and not suspension of the limitation period.
(47)
93.
As the Court of First Instance correctly stated at paragraph 62, the limitation period may, according to the wording of the
provision, be interrupted in one of two ways – either by the application brought before the Court of Justice, or by a preliminary
request addressed to the relevant institution. In the latter case interruption only occurs if the request is followed by an
application within the time-limits determined by reference to Article 230 EC or Article 232 EC.
(48)
94.
However, as the Court of Justice makes clear in its judgment in
Roquette frères v
Commission, in principle a court may not of its own motion raise the issue of time limitation by virtue of Article 46 of the Statute.
(49)
95.
Therefore, the defendant institutions or the party against which the application is made can prevent a claim for compensation
from being dismissed on the basis of a limitation under Article 46 of the Statute – and thus ultimately bring about an extension
of the limitation period – in so far as they waive their right to plead limitation.
96.
Accordingly, the Court of First Instance has acknowledged in settled case-law concerning the compensation of SLOM producers
that Community institutions may waive the right to invoke the limitation period also in advance and as against a particular
group and in relation to a particular period.
(50)
97.
Whilst this can per se be regarded as a continuation of the abovementioned
Roquette frères judgment, in which the Court of Justice treated the limitation under Article 46 of the Statute basically as a right that
can be waived, the decisive question is what inferences are to be drawn from an advance waiver of the right to plead limitation
where, contrary to this waiver, the Community institutions nevertheless plead limitation on the right to compensation pursuant
to Article 46 of the Statute.
98.
In that case, the Court of First Instance could be regarded as bound to apply Article 46 of the Statute in full, that is to
say in relation to the entire limitation period, with the result that it must, where applicable, rule that the rights to compensation
are time-barred. The party suffering damage, who was assured that the right to plead limitation would be waived and who therefore
did not institute proceedings earlier, could then seek compensation only by means of a separate action for compensation based
on breach of the principle of protection of legitimate expectations.
99.
However, the Court of First Instance has taken a different approach in its case-law. It has classified such advance waivers
as voluntary, unilateral commitments which have the effect of barring the institutions from pleading limitation in respect
of the period covered by the waiver in a particular case. The period covered by the waiver is removed from the limitation
period and therefore ultimately has the effect of suspending the limitation period.
(51)
100.
The solution whereby a suspension of the limitation period is accepted in accordance with the Court of First Instance’s established
case-law is in any event to be recommended for reasons of legal certainty and procedural economy.
101.
Moreover, since this possibility of suspension of the limitation period is based less on the provisions of Article 46 of the
Statute and more on a waiver of reliance on this article by the party against which the application has been made, it is,
in my view, not precluded by the fact that this article refers only to interruption of the limitation period.
102.
Thus, as regards the running of the limitation period in respect of claims for compensation, a distinction must be drawn between
the possibilities for interruption provided for in Article 46 of the Statute, on the one hand, and for suspension in the above
sense, on the other.
(b) Assessment of the limitation period in the judgment under appeal in particular
103.
As regards the limitation period in the judgment under appeal, it should be noted that at paragraphs 62 to 63 the Court of
First Instance first considered whether or not there was an interruption within the meaning of Article 46 of the Statute.
104.
As regards the matter of interruption, it is evident from my previous comments that the Council and the Commission correctly
noted that the appellant failed to institute proceedings (following the letter to the Community institutions of 31 March 1989)
and the Court of First Instance correctly found at paragraph 63 that there had been no such interruption for this reason.
105.
However, at the subsequent paragraphs of the judgment under appeal the Court of First Instance does not consider the interruption
of the limitation period but whether there is a suspension of the limitation period within the meaning set out above,
(52)
and therefore what is important is not whether proceedings were instituted within the meaning of Article 46 of the Statute
but whether the right to plead limitation was waived.
106.
As the Court of First Instance stated at paragraph 64 of the judgment under appeal, the appellant claimed in the proceedings
before it that the Council and the Commission had undertaken not to plead that his claim was time-barred in respect of the
period after 31 March 1989.
107.
At paragraphs 65 to 72 of the judgment under appeal the Court of First Instance goes on to consider whether and to what extent
the Council and the Commission actually waived their right to plea limitation as against him in the light of the acts and
circumstances cited by the appellant, in particular the Communication of 5 August 1992 and the appellant’s letter of 31 March
1989.
108.
However, the question whether and to what extent the Council and the Commission actually declared to the appellant, by the
Communication of 5 August 1992 in conjunction with the appellant’s letter of 31 March 1989 and in the light of the other circumstances
cited by him, that they waived their right to plead limitation is an issue relating to the assessment of the facts which is
not open to review by the Court of Justice.
(53)
As the Court of Justice has consistently held, an appeal may be based only on grounds relating to the infringement of rules
of law, to the exclusion of any appraisal of the facts.
109.
In that respect the applicant’s complaints relating to the relevance of the Communication of 5 August 1992, the letter of
31 March 1989, the list sent to the Netherlands authorities and the comments by Mr Booss, all of which concern these paragraphs
and form the crux of the second and third grounds of appeal, must be dismissed as inadmissible.
110.
Finally, in so far as the appellant’s complaints are to be construed as meaning that the Court of First Instance failed to
fulfil its obligation to state reasons in its assessment of the limitation, it is sufficient to state that the Court of First
Instance considered the arguments against limitation put to it by the appellant, as summarised at paragraphs 52 to 57 of the
judgment under appeal, examined them to establish whether there had been an interruption
(54)
or a suspension,
(55)
and on this basis concluded that in the absence of any interruption or suspension of the limitation period no later than
13 May 1991, the rights to compensation were already time-barred.
111.
It follows from the foregoing considerations that the Court of First Instance made an assessment of the limitation that is
correct in law and the second and third grounds of appeal must be dismissed as inadmissible or in any event as unfounded.
VII – Costs
112.
Under Article 69(2) of the Rules of Procedure, which, pursuant to Article 118, applies to the procedure on appeal, the unsuccessful
party is to be ordered to pay the costs. If the appeal is dismissed in its entirety, as I propose, on the ground that all
the parts thereof are unfounded or inadmissible, the appellant must be ordered to pay the costs.
VIII – Conclusion
113.
For the reasons set out above, I propose that the Court should
–
dismiss the appeal and
–
order the appellant to pay the costs.
- 1 –
- Language of the case: German.
- 2 –
- Case T-143/97 Van den Berg v Council and Commission [2001] ECR II-277.
- 3 –
- The term ‘SLOM’ comes from the Dutch language and is an abbreviation which, according to a range of views and traditions,
is derived from the expressions ‘Stopzetting Leveranties en Omschakeling Melkproduktie’ (‘cessation of deliveries and conversion
of milk production’), ‘slachten en omschakelen’ (‘slaughter and convert’), ‘slacht- en omschakelingspremie’ (‘slaughter and
conversion premium’) or ‘slachtoffers omschakeling’ (‘conversion victims’).
- 4 –
- Council Regulation (EEC) No 1078/77 of 17 May 1977 introducing a system of premiums for the non-marketing of milk and milk
products and for the conversion of dairy herds (OJ 1977 L 131, p. 1).
- 5 –
- Council Regulation (EEC) No 857/84 of 31 March 1984 adopting general rules for the application of the levy referred to in
Article 5(c) of Regulation (EEC) No 804/68 in the milk and milk products sector (OJ 1984 L 90, p. 13).
- 6 –
- Opinion in Joined Cases C-162/01 P and C-163/01 P (Bouma v Council and Commission and Beusmans v Council and Commission [2003] ECR I-0000).
- 7 –
- Opinion in Joined Cases C-162/01 P and C-163/01 P, cited in footnote 6 above, paragraphs 6 to 26.
- 8 –
- OJ 1989 L 84, p. 2.
- 9 –
- OJ 1988 L 139, p. 12.
- 10 –
- OJ 1989 L 110, p. 27.
- 11 –
- Regulation amending Regulation (EEC) No 857/84 laying down general rules for the application of the levy referred to in Article
5(c) of Regulation (EEC) No 804/68 in the milk and milk products sector (OJ 1985 L 68, p. 1).
- 12 –
- Joined Cases C-104/89 and C-37/90 Mulder and Others v Council and Commission [1992] ECR I-3061.
- 13 –
- OJ 1992 C 198, p. 4.
- 14 –
- OJ 1993 L 196, p. 6.
- 15 –
- Moreover, as is laid down in Article 2 of this regulation, under the conditions set out in Article 3a(3) of Regulation No
857/84, either on 29 March 1991 pursuant to Regulation No 764/89 or on 1 July 1993 pursuant to Regulation No 1639/91.
- 16 –
- Paragraphs 14 to 21.
- 17 –
- See paragraphs 27 and 41 of the judgment under appeal.
- 18 –
- Paragraph 30 of the judgment under appeal.
- 19 –
- See paragraph 31.
- 20 –
- Paragraphs 38 to 42 of the judgment under appeal.
- 21 –
- Paragraphs 44 to 49 of the judgment under appeal.
- 22 –
- Paragraph 50 of the judgment under appeal.
- 23 –
- Paragraphs 59 and 60 of the judgment under appeal.
- 24 –
- Paragraph 61 of the judgment under appeal.
- 25 –
- Paragraphs 62 to 72 of the judgment under appeal.
- 26 –
- Paragraph 73 of the judgment under appeal.
- 27 –
- Case C-98/91 Herbrink v Minister van Landbouw, Natuurbeheer en Visserij [1994] ECR I-223, paragraph 15.
- 28 –
- Judgment of the College van Beroep voor het bedrijfsleven of 3 July 1996, No 94/1619/060/198.
- 29 –
- In particular paragraph 32 of the judgment under appeal.
- 30 –
- See Mulder II, cited in footnote 12 above, paragraph 22.
- 31 –
- See inter alia Case 180/87 Hamill v Commission [1988] 6141, paragraph 14, and Joined Cases 64/76 and 113/76, 167/78 and 239/78, 27/79, 28/79 and 45/79 P. Dumortier frères and Others v Council [1979] ECR 3091, paragraph 21.
- 32 –
- See inter alia Joined Cases 29/63, 31/63, 36/63, 39/63 to 47/63, 50/63 and 51/63 Société Anonyme des Laminoirs, Hauts Fourneaux, Forges, Fonderies et Usines de la Providence and Others v High Authority [1965] ECR 911, at 947 et seq., and Joined Cases 5/66, 7/66 and 13/66 to 24/66 Kampffmeyer and Others v Commission [1967] ECR 245, at 265 et seq.
- 33 –
- As regards breaking of the causal link by the party suffering damage, see for example the Opinion of Advocate General Van
Gerven in Mulder II (judgment cited in footnote 12 above), paragraph 38, and Case 26/81 Oleifici Mediterranei v EEC [1982] ECR 3057, paragraph 23.
- 34 –
- For an example of a comparable situation in which liability for damage suffered as a result of the unlawful application of
a particular condition relating to Community assistance was found not to exist because it was not proven that the other conditions
relating to this assistance had been satisfied, see Case T-478/93 Wafer Zoo v Commission [1995] ECR II-1479, paragraph 49.
- 35 –
- See Case C-15/95 EARL de Kerlast v Unicopa and Coopérative du Trieux [1997] ECR I-1961, paragraph 17, and Case C-98/91, cited in footnote 27 above, paragraph 13.
- 36 –
- See inter alia Case 120/86 Mulder v Minister van Landbouw en Visserij [1988] ECR 2321, paragraph 24, Case 170/86 Von Deetzen v Hauptzollamt Hamburg-Jonas [1988] ECR 2355, paragraph 13, and Case C-264/90 Wehrs v Hauptzollamt Lüneburg [1992] ECR I-6285, paragraph 8. See also my comments on the principle of protection of legitimate expectations in Joined
Cases C-162/01 P and C-163/01 P, cited in footnote 6 above, in particular paragraph 74 et seq.
- 37 –
- See Case C-98/91, cited in footnote 27 above, paragraph 13.
- 38 –
- Case C-98/91, cited in footnote 27 above, paragraph 15.
- 39 –
- See inter alia Case C-14/01 Molkerei Wagenfeld v Bezirksregierung Hannover [2003] ECR I2279, paragraph 56, Case C-63/93 Duff and Others v Minister for Agriculture and Food and Attorney General [1996] ECR I-569, paragraph 20, and Case C-177/90 Kühn v Landwirtschaftskammer Weser-Ems [1992] ECR I-35, paragraph 14.
- 40 –
- See inter alia Case C-93/02 P Biret v Council and Commission [2003] ECR I-0000, paragraph 60, Case C-472/00 P Commission v Fresh Marine Company [2003] ECR I‑0000, paragraph 23, Case C-30/91 P Lestelle v Commission [1992] ECR I-3755, paragraph 28, Case C-36/92 P SEP v Commission [1994] ECR I-1911, paragraph 33, and Case C-294/95 P Ojha v Commission [1996] ECR I-5863, paragraph 52.
- 41 –
- See, in particular, paragraphs 68 to 79.
- 42 –
- See, to that effect, the appellant’s comments on the second and third ground of appeal at paragraphs 27 and 28 of the reply.
- 43 –
- Below the reference to Article 43 of the EC Statute of the Court of Justice will be maintained with regard to the arguments
of the parties.
- 44 –
- Order of the President of the Court of First Instance in Case T-179/96 R Antonissen v Commission and Council [1997] ECR II-425.
- 45 –
- The date on which interruption of the limitation period ended under Article 10(2) of Regulation No 2187/93, as the appellant
states.
- 46 –
- In the appraisal reference will be made hereinafter to Article 46 of the Statute.
- 47 –
- See Order of the Court in Case C-136/01 P Autosalone Ispra v EAEC [2002] ECR I-6565, paragraph 56.
- 48 –
- See inter alia Case 11/72 Giordano v Commission [1973] ECR 417, paragraph 6.
- 49 –
- Case 20/88 Roquette frères v Commission [1989] ECR 1553, paragraph 12.
- 50 –
- See inter alia Case T-222/97 Steffens v Council and Commission [1998] ECR II‑4175, paragraphs 37 to 41) and Joined Cases T-195/94 and T-202/94 Quiller and Heusmann v Council and Commission [1997] ECR II-2247, paragraph 136. See also, to that effect, Ton Heukels/Alison McDonnell, ‘Limitation of the Action for
Damages Against the Community: Considerations and New Developments’, in Ton Heukels/Alison McDonnell, The Action for Damages in Community Law, 1997, p. 217 (at p. 239 et seq.).
- 51 –
- See inter alia Case T-195/94, cited in footnote 50 above, paragraphs 137 to 139 and paragraph 142 and Case T-20/94 Hartmann v Council and Commission [1997] ECR II-595, paragraphs 135 to 140). See also, to this effect, S. Hackspiel, Kommentar zu Artikel 43 in: H. von der Groeben/J. Thiesing/C. Ehlermann (editors), Kommentar zum EU-/EG-Vertrag, 5th edition 1997, volume 4, p. 858 (paragraph 6); M. Núñez Müller, Die Verjährung außervertraglicher Schadenersatzansprüche gegen die EG, EuZW 20/1999, p. 611 (at p. 614 et seq.)
- 52 –
- Thus, at paragraph 73 of the judgment under appeal the Court of First Instance holds that the rights to compensation were
already time-barred ‘in the absence of any interruption or suspension of the limitation period’.
- 53 –
- See, in particular, Case C-121/01 P O’Hannrachain v Parliament [2003] ECR I-5539, paragraph 35, Case C-122/01 P T. Port v Commission [2003] ECR I-4261, paragraph 27, Case C-449/99 P EIB v Hautem [2001] ECR I-6733, paragraph 44, and Case C-184/01 P Hirschfeldt v EEA [2002] ECR I-10173, paragraph 40.
- 54 –
- See paragraph 63 of the judgment under appeal.
- 55 –
- See paragraphs 64 to 72 of the contested appeal.
