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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Alferink and Others v Commission (Agriculture) [2008] EUECJ T-94/98 (26 June 2008) URL: https://www.bailii.org/eu/cases/EUECJ/2008/T9498.html Cite as: [2008] EUECJ T-94/98 |
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(Actions for damages Non-contractual liability Milk Additional levy Reference quantity Producers who entered into non-marketing undertakings Requirement that production be on the initial SLOM holding Article 3a of Regulation (EEC) No 1546/88, as amended by Regulation (EEC) No 1033/89 Allegedly ambiguous wording of the applicable provision Principle of legal certainty)
In Case T-94/98,
Alfonsius Alferink, residing in Heeten (Netherlands), and the 67 other applicants whose names are set out in the annex, represented initially by H. Bronkhorst and E. Pijnacker Hordijk, subsequently by H. Bronkhorst, E. Pijnacker Hordijk and J. Sluysmans, and finally by E. Pijnacker Hordijk, lawyers,
applicants,
Commission of the European Communities, represented by T. van Rijn, acting as Agent,
defendant,
ACTION for compensation pursuant to Article 178 of the EC Treaty (now Article 235 EC) and the second paragraph of Article 215 of the EC Treaty (now the second paragraph of Article 288 EC) for the damage allegedly suffered by the applicants by reason of the fact that the Commission infringed the principle of legal certainty when it adopted Regulation (EEC) No 1033/89 of 20 April 1989 amending Regulation (EEC) No 1546/88 laying down detailed rules for the application of the additional levy referred to in article 5c of Council Regulation (EEC) No 804/68 (OJ 1989 L 110, p. 27), which did not provide clearly and precisely that milk production had to be resumed from the initial SLOM holding,
composed of M. Vilaras, President, M.E. Martins Ribeiro (Rapporteur) and K. Jürimäe, Judges,
Registrar: J. Plingers, Administrator,
having regard to the written procedure and further to the hearing on 25 September 2007,
gives the following
Legal context
'Producers referred to in the third paragraph of Article 12(c):
...
shall receive provisionally, if they so request within three months from 29 March 1989, a special reference quantity and provided that such producers:
(a) did not cease farming within the meaning of Article 2(3) and (4) of Regulation ... No 1078/77 or transfer the whole of their dairy enterprise before the end of the non-marketing or conversion period;
(b) establish in support of their request, to the satisfaction of the competent authority, that they are able to produce on their holding up to the reference quantity requested;
(c) undertake to sell milk or other products direct to the consumer and/or to deliver milk to a buyer;
(d) undertake, as regards the special reference quantity, not to apply for assistance under any programme for the abandonment of reference quantities until the end of the additional levy scheme.'
'If, within two years from 29 March 1989, producers can prove to the satisfaction of the competent authority that they have actually resumed direct sales and/or deliveries, and that such direct sales and/or deliveries have attained during the previous 12 months a level equal to or greater than 80% of the provisional reference quantity, the special reference quantity shall be definitively allocated to the producers. Should this not prove to be the case, the provisional reference quantity shall be returned in its entirety to the Community reserve ...'
'For the purposes of this regulation the following meanings shall apply:
...
(d) holding: all the production units operated by the producer and located within the geographical territory of the Community.'
'The requests [for a special reference quantity] referred to in Article 3a(1) of Regulation ... No 857/84 shall be made by the producers concerned to the competent authority designated by the Member State, in accordance with the procedure laid down by it and 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 the approval, referred to in Article 5(2) of Commission Regulation (EEC) No 1391/78, of their premium applications.
The competent authority shall acknowledge receipt of the request, verify compliance with the conditions laid down in the abovementioned Article 3a(1) and record the written undertakings given by the producer.
Evidence of the producer's ability to produce a quantity equal to the reference quantity requested may involve in particular:
direct sales and/or deliveries of milk already made since the end of the non-marketing or conversion period,
the dairy herd, within the meaning of Article 1(1)(b) of Regulation ... No 1391/78, kept on the holding,
the holding's permanent grazing area and/or area under forage resulting from the rotation and sowing plan implemented,
the investments referred to in the second subparagraph of point 1 of Article 3 of Regulation ... No 857/84.'
The facts of the dispute
Procedure
Forms of order sought
order the Community to pay the sums specified in the annex to their application by way of compensation for the damage suffered by them as a result of the defective drafting of Article 3a of Regulation No 1546/88, together with interest thereon at the rate of 8% per annum from 23 February 1998 until the date of full settlement;
order the Community to pay the costs.
dismiss the action;
order the applicants to pay the costs.
The objection based on illegality of Regulation No 1546/88
Arguments of the parties
Findings of the Court
The claim for damages
Arguments of the parties
Findings of the Court
Costs
On those grounds,
hereby:
1. Dismisses the action;
2. Orders Mr Alfonsius Alferink and the other 67 applicants whose names are listed in the annex to pay the costs.
Vilaras |
Martins Ribeiro |
Jürimäe |
Delivered in open court in Luxembourg on 26 June 2008.
E. Coulon |
M. Vilaras |
Registrar |
President |
The Heirs of G. Vloedgraven,
W.L.A. van der Arend, residing in Harmelen (Netherlands),
H.W. Bakker, residing in Middelstum (Netherlands),
B.M.J.B. Beusmans, residing in Noorbeek (Netherlands),
P.J.M. Biermans, residing in Herkenbosch (Netherlands),
J.A.A. de Bont, residing in Rutten (Netherlands),
H. Boskma, residing in Zwaagwesteinde (Netherlands),
B.A. Bouma, residing in Berlikum (Netherlands),
E.A.M. Bouma, residing in Rutten,
J.A. Bouma, residing in Ried (Netherlands),
H. Buwalda, residing in Franeker (Netherlands),
M.V. Diederen, residing in Doenrade (Netherlands),
R. Dusselaar, residing in Wier (Netherlands),
J. van Duynhoven, residing in Rijkevoort (Netherlands),
H.J. Frederiks, residing in Laag Keppel (Netherlands),
G.J.M. Frieling, residing in Deurningen (Netherlands),
T. de Groot, residing in Creil (Netherlands),
H.J. ten Hagen, residing in Winterswijk (Netherlands),
H.J. ten Have, residing in Beltrum (Netherlands),
P.A.J.N. Hendriks, residing in Valkenburg (Netherlands),
H. Heringa, residing in Leens (Netherlands),
O. Hoekstra, residing in Oosternijkerk (Netherlands),
J. Hoekstra, residing in Oosternijkerk,
W.H.C.M. Holtslag, residing in Lelystad (Netherlands),
J.H.A. Huijsmans, residing in Weert (Netherlands),
M. Huizinga, residing in Firdgum (Netherlands),
G.J. Hulter, residing in Den Velde (Netherlands),
P.J.M. Janssen, residing in Wanssum (Netherlands),
G.C. de Jongh, residing in Marknesse (Netherlands),
C. de Keijzer, residing in Noordgouwe (Netherlands),
P. Kemp, residing in Breukelen (Netherlands),
W. Koopmans-Hut, residing in Ezinge (Netherlands),
H.J. Leemkuil, residing in Winterswijk-Miste (Netherlands),
J.A.J. Leijten, residing in Bant (Netherlands),
G.J. Loozeman, residing in Callantsoog (Netherlands),
A. Lukens Folkers, residing in Vlagtwedde (Netherlands),
P.L. Marinussen, residing in Grijpskerke (Netherlands),
G.J. Meijer, residing in Usquert (Netherlands),
W.H.J. Mulder, residing in Haarzuilens (Netherlands),
Th. Neelen, residing in Nunhem (Netherlands),
G.J. Nijboer, residing in Ane (Netherlands),
A. Nijboer, residing in Ane,
B. Oude Kotte, residing in Fleringen (Netherlands),
J.H.M. Roebroek, residing in Schimmert (Netherlands),
F.M.C. Rommens, residing in Rijsbergen (Netherlands),
J.A.C.M. Soffers, residing in Rijsbergen,
J.G. Rompelberg, residing in Noorbeek,
M.J. Scheele, residing in Mensingeweer (Netherlands),
J. van Sinderen, residing in Ternaard (Netherlands),
J.W.M. Smeets, residing in Papenhoven (Netherlands),
W.C.G.M. Stoffelen, residing in Ottersum (Netherlands),
J.H. Thomassen, residing in Bemelen (Netherlands),
J.H. van Til, residing in Eppenhuizen (Netherlands),
K.J. Veenkamp, residing in Thesinge (Netherlands),
J.T.F.J. op't Veld, residing in Vlodrop (Netherlands),
J.P.W. Vrencken, residing in Beek (Netherlands),
O. Vries, residing in Engwierum (Netherlands),
K. Vries, residing in Engwierum,
M.W. de Weerd, residing in Tollebeek (Netherlands),
A.M. Weijenberg-Pleijers, residing in Wittem (Netherlands),
H.F.W.M. Wennekers, residing in Creil,
R.W. Werners, residing in Meppel (Netherlands),
C.H.L. Wijnen, residing in Maasbree (Netherlands),
L.G.H. Willems, residing in Ulestraten (Netherlands),
J.G. Wilman, residing in Engwierum,
D. Wilman, residing in Engwierum,
J. Wolfs, residing in Gronsveld (Netherlands).
* Language of the case: Dutch.