61989J0285

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Agriculture - Common organization of the markets - Milk and milk products - Additional milk levy - Determination of reference quantities exempted from the levy - Account to be taken of exceptional events affecting production - Compulsory appropriation - Concept - Agreement concluded by the producer in order to avoid the unilateral imposition of an obligation to tolerate public works on his holding - Included

( Commission Regulation No 1371/84, Art . 3 )

The concept of "compulsory appropriation" within the meaning of Article 3 of Commission Regulation No 1371/84, which allows exceptional events having an appreciable effect on milk production to be taken into account when determining the reference year for calculating the quantities of milk exempted from the additional levy, covers a situation in which a producer has concluded an agreement with a public works undertaking in order to avoid the unilateral imposition of an obligation to tolerate public works on his holding, if the agreement affects a considerable part of the utilizable agricultural area of the holding and results in a temporary reduction of its fodder area .

In Case C-285/89,

REFERENCE to the Court under Article 177 of the EEC Treaty by the College van Beroep voor het Bedrijfsleven ( Administrative court of last instance in matters of trade and industry ), The Hague, for a preliminary ruling in the proceedings pending before that court between

M . E . van der Laan-Velzeboer and P . C . L . van der Laan

and

Minister for Agriculture and Fisheries,

on the interpretation of Article 3 of Commission Regulation ( EEC ) No 1371/84 of 16 May 1984 laying down detailed rules for the application of the additional levy referred to in Article 5c of Regulation ( EEC ) No 804/68 ( Official Journal 1984 L 132, p . 11 ),

THE COURT ( Third Chamber ),

composed of : J . C . Moitinho de Almeida, President of Chamber, F . Grévisse and M . Zuleeg, Judges,

Advocate General : M . Darmon

Registrar : J . A . Pompe, Deputy Registrar,

after considering the observations submitted on behalf of

the Netherlands Government, by B . R . Bot, Secretary-General in the Netherlands Ministry of Foreign Affairs,

the Commission of the European Communities, by R . C . Fischer, Legal Adviser, and P . Hetsch, a member of its Legal Department, acting as Agents,

having regard to the Report for the Hearing,

after hearing oral argument from the plaintiffs in the main proceedings, represented by J . C . Ghijsels, from the Netherlands Government, represented by T . Heukels, acting as Agent, and from the Commission, at the hearing on 23 October 1990,

after hearing the Opinion of the Advocate General delivered at the sitting on 14 November 1990,

gives the following

Judgment

1 By order dated 12 July 1989, which was received at the Court on 15 September 1989, the College van Beroep voor het Bedrijfsleven, The Hague, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Article 3 of Commission Regulation ( EEC ) No 1371/84 of 16 May 1984 laying down detailed rules for the application of the additional levy referred to in Article 5c of Regulation ( EEC ) No 804/68 ( Official Journal 1984 L 132, p . 11 ).

2 That question arose in proceedings between M . E . van der Laan-Velzeboer and P . C . L . van der Laan, who operate an agricultural holding, and the Minister for Agriculture and Fisheries concerning a reference quantity for the purposes of the additional milk levy system .

3 By contracts of 20 August 1982, M . E . van der Laan-Velzeboer and P . C . L . van der Laan granted NV Nederlandse Gasunie the right to lay, use and maintain a gas pipeline on and in land forming part of their holding . A fee of HFL 12 267.99 was paid to them as consideration for that right, on the basis of which Nederlandse Gasunie enjoyed the use, from April 1983 to October 1984, of 7.2663 hectares of agricultural land out of the 19.4409 hectares total agricultural area of the holding . They also received payments of at least HFL 35 383.23 in respect of the creation of rights in rem and by way of compensation .

4 It appears from the documents in the case that a concession was granted, by two Royal Decrees dated respectively 13 December 1963 and 17 January 1964, for the laying and maintenance of the pipeline in question, which was declared to be in the public interest for the purposes, inter alia, of the possible application of the Netherlands Belemmeringenwet Privaatrecht ( Law on Obstruction ( Private law ) ). The essential purpose of that law is to enable a public authority contemplating carrying out public works on immovable property belonging to an individual, failing agreement, to oblige that individual to tolerate that work being carried out, subject to compensation .

5 Mr van der Laan-Velzeboer and Mr van der Laan applied for the allocation of a reference quantity for the purposes of the additional milk levy system, and were allocated a quantity of 156 563 kg of milk calculated on the basis of their deliveries of milk during 1983, which was the year used as reference year by the Netherlands .

6 On 16 June 1984, the plaintiffs applied to the Minister for Agriculture and Fisheries for 1982 to be used as the reference year for their purposes . That application was rejected by a decision of the Minister of 26 March 1985, whereupon the plaintiffs brought proceedings before the College van Beroep voor het Bedrijfsleven .

7 The College van Beroep voor het Bedrijfsleven considered that its decision would depend on the interpretation to be given to the relevant Community legislation; it therefore stayed the proceedings and sought a preliminary ruling from the Court, pursuant to Article 177 of the EEC Treaty, on the following question :

"Must the situation referred to in Article 3 of Commission Regulation ( EEC ) No 1371/84 of 16 May 1984 ( Official Journal 1984 L 132, p . 11 ), now 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 5c of Regulation ( EEC ) No 804/68 ( Official Journal 1988 L 139, p . 12 ), namely 'compulsory appropriation of a considerable part of the utilizable agricultural area of the producer' s holding, resulting in a temporary reduction of the fodder area of the holding' , be interpreted as covering a situation in which the owner of land and a public works undertaking have reached an agreement of the kind referred to in Article 2 of the Netherlands Belemmeringenwet Privaatrecht ( Staatsblad 1927, p . 159 ), in order to avoid the imposition of an obligation to tolerate public works as defined in Article 1 of that law, as a result of which the producer in question has temporarily lost the use of a considerable part of the utilizable agricultural area of his holding, resulting in a temporary reduction of its fodder area, a consequence which would also have occurred if the obligation in question had been imposed?"

8 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the relevant provisions of Community law, the course of the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

9 In view of the documents in the case, the question raised must be understood as seeking essentially to determine whether the concept of "compulsory appropriation", within the meaning of Article 3 of Regulation No 1371/84 covers a situation in which a producer concludes an agreement with a public works undertaking in order to avoid the unilateral imposition of an obligation to tolerate public works on his holding .

10 First of all, it must be pointed out that under the first subparagraph of Article 3(3 ) of Council Regulation ( EEC ) No 857/84 of 31 March 1984 adopting general rules for the application of the levy referred to in Article 5c of Regulation ( EEC ) No 804/68 in the milk and milk products sector ( Official Journal 1984 L 90, p . 13 ), producers whose milk production during the reference year used by the Member State concerned has been affected by exceptional events occurring before or during that year are to obtain, on request, reference to another calendar year within the 1981 to 1983 period .

11 The second subparagraph of Article 3(3 ) of Regulation No 857/84 contains a list of situations which may justify the use of another calendar reference year . That list was supplemented, in accordance with the last subparagraph of Article 3(3 ), by Article 3 of Commission Regulation No 1371/84, which includes among the situations justifying the use of a different calendar reference year "compulsory appropriation of a considerable part of the utilizable agricultural area of the producer' s holding, resulting in a temporary reduction of the fodder area of the holding ".

12 The abovementioned Community legislation does not specify, however, what is to be understood by "compulsory appropriation of a considerable part of the utilizable agricultural area of the producer' s holding ". The scope of the expression must therefore be assessed in the light of the scheme and purpose of those rules .

13 It must be noted that the purpose of the combined provisions of Article 3(3 ) of Regulation No 857/84 and Article 3 of Regulation No 1371/84 is to enable producers whose production during the reference year used by the relevant Member State was not representative, because of certain exceptional events beyond their control, to choose another reference year within the 1981 to 1983 period . The aim of the provisions is therefore to prevent the producers concerned bearing, as a result of the application of the additional levy system, charges which would be particularly heavy on them when compared with the producers subject to the system as a whole .

14 It is common ground that restrictions placed by the public authorities on the use of all or part of an agricultural holding may result in a reduction of the production capacity of that holding and may thus entail, in the same way as a measure taking away the right of ownership, a fall in the milk production of the producer concerned . That may be true of, inter alia, an obligation to tolerate certain public works being carried out on the holding .

15 For the purposes of the application of Article 3 of Regulation No 1371/84, therefore, such a measure must be treated as a measure depriving a landowner of his ownership rights, so that the producer concerned must be allowed to choose another reference year if the other conditions laid down in the Community legislation are met .

16 However, it remains to be determined whether that interpretation is valid also for an agreement which imposes on a producer the obligation to tolerate certain public works being carried out on his holding, when that agreement was concluded between the producer and a public works undertaking in order to avoid such an obligation being imposed by action on the part of the public authorities .

17 It is sufficient to note that an agreement of that kind is entered into in order to avoid dispossession by unilateral action on the part of the public authorities, and that the effects on the producer concerned are comparable to those which such action might have involved if no agreement had been reached . Such an agreement must therefore likewise be regarded as constituting compulsory appropriation within the meaning of Article 3 of Regulation No 1371/84, provided that it affects a considerable part of the utilizable agricultural area of the holding and results in a temporary reduction of its fodder area .

18 In that connection, the Netherlands Government objected that the provision in Article 3 of Regulation No 1371/84 does not apply to a situation where, as in the present case, compensation has been paid in respect of the obligation to tolerate public works .

19 That argument cannot be accepted . It is clear from the order for reference that the compensation in question is unrelated to the producer' s rights under Community law in connection with the additional milk levy system and that it does not cover the consequences, subsequent to the temporary dispossession, suffered by the producer as a result of the fact that, when the additional levy system was applied, account was taken of the quantities of milk delivered during a period when his production capacity was reduced .

20 For those reasons, the answer to the question raised must be that the concept of "compulsory appropriation" within the meaning of Article 3 of Commission Regulation No 1371/84 of 16 May 1984 covers a situation in which a producer has concluded an agreement with a public works undertaking in order to avoid the unilateral imposition of an obligation to tolerate public works on his holding, if the agreement affects a considerable part of the utilizable agricultural area of the holding and results in a temporary reduction of its fodder area .

Costs

21 The costs incurred by the Netherlands Government and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable . Since these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court .

On those grounds,

THE COURT ( Third Chamber ),

in answer to the question referred to it by the College van Beroep voor het Bedrijfsleven, by order of 12 July 1989, hereby rules :

The concept of "compulsory appropriation" within the meaning of Article 3 of Commission Regulation ( EEC ) No 1371/84 of 16 May 1984 laying down detailed rules for the application of the additional levy referred to in Article 5c of Regulation ( EEC ) No 804/68 ( Official Journal 1984 L 132, p . 11 ) covers a situation in which a producer has concluded an agreement with a public works undertaking in order to avoid the unilateral imposition of an obligation to tolerate public works on his holding, if the agreement affects a considerable part of the utilizable agricultural area of the holding and results in a temporary reduction of its fodder area .