Council Regulation (EC) No 2330/98 of 22 October 1998 providing for an offer of compensation to certain producers of milk and milk products temporarily restricted in carrying out their trade
Council Regulation (EC) No 2330/98of 22 October 1998providing for an offer of compensation to certain producers of milk and milk products temporarily restricted in carrying out their tradeTHE COUNCIL OF THE EUROPEAN UNION,Having regard to the Treaty establishing the European Community, and in particular Article 43 thereof,Having regard to the proposal from the CommissionOJ C 273, 2. 9. 1998, p. 3.,Having regard to the opinion of the European ParliamentOJ C 328, 26. 10. 1998.,Having regard to the opinion of the Economic and Social CommitteeOpinion delivered on 15 October 1998 (not yet published in the Official Journal).,Whereas, when the additional levy scheme was introduced in 1984 in the milk and milk products sector, Community legislation, in establishing rules for the allocation of individual reference quantities, did not take account of the situation of producers who, as a result of an undertaking pursuant to 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 herdsOJ L 131, 26. 5. 1997, p. 1. Regulation as last amended by Regulation (EEC) No 1300/84 (OJ L 125, 12. 5. 1984, p. 23)., had not delivered or sold milk during the reference year adopted by the Member State or were restricted in the level of deliveries or sales during that year;Whereas, following the judgment of the Court of Justice of 19 May 1992 in joined cases C-104/89 and C-37/90, the Community institutions undertook to give full effect to that ruling in respect of all concerned producers whose circumstances satisfied the conditions laid down in the judgment with regard to the liability of the Community to make good the damage the said producers had suffered insofar as the original Community legislation did not provide for the allocation of an individual reference quantity to them; whereas the producers concerned were essentially those who were entitled to apply for a special reference quantity pursuant to the provisions added to 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 sectorOJ L 90, 1. 4. 1984, p. 13. Regulation repealed by Regulation (EEC) No 3950/92 (OJ L 405, 31. 12. 92, p. 1 ). by Regulation (EEC) No 764/89OJ L 84, 29. 3. 1989, p. 2. or Regulation (EEC) No 1639/91OJ L 150, 15. 6. 1991, p. 35.; whereas 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 tradeOJ L 196, 5. 8. 1993, p. 6. introduced compensation arrangements for these producers under which an offer calculated on a flat-rate basis was made to all eligible producers who submitted applications, which could be accepted in full and final settlement or else rejected;Whereas, on the application of two producers, the Court of First Instance, in its judgment of 9 December 1997 in joined cases T-195/94 and T-202/94, ordered the Community to make good the damage the said producers had suffered insofar as the original Community legislation establishing the additional levy scheme did not provide for the allocation of an individual reference quantity in respect of holdings subject to an undertaking pursuant to Regulation (EEC) No 1078/77 and insofar as subsequent amendments to the legislation excluded the allocation of special reference quantities to transferees of a premium granted pursuant to Regulation (EEC) No 1078/77 who had received a reference quantity by virtue of Article 2 and/or Article 6 of Regulation (EEC) No 857/84;Whereas there is a significant number of other producers whose circumstances satisfy the conditions laid down in the judgment with regard to the liability of the Community and who have either already initiated proceedings against the Council and the Commission or addressed claims for compensation to the Community institutions; whereas the producers concerned are essentially those who were entitled to apply for a special reference quantity pursuant to Regulation (EEC) No 2055/93OJ L 187, 29. 7. 1993, p. 8.; whereas it is therefore appropriate to adopt arrangements with a view to the settlement of these claims;Whereas, in view of the number of potentially eligible producers it would not be possible to evaluate the claim of each producer on an individual basis; whereas it is therefore necessary to use a flat-rate approach; whereas it is appropriate to follow as far as possible the arrangements set out in Regulation (EEC) No 2187/93;Whereas a direct link should be drawn between the acceptance of the right to a special reference quantity pursuant to Regulation (EEC) No 2055/93 and the existence of an injury consisting in the restriction in milk production contrary to the wishes of the producer concerned; whereas in order to ensure that a producer cannot benefit by obtaining a special reference quantity for the sole purpose of speculating on the supposed asset value of the reference quantity allocated, account should be taken of the subsequent actions of the producer during the restricted period laid down in Regulation (EEC) No 2055/93;Whereas it is necessary to determine in the case of transferees of part of a holding subject to an undertaking pursuant to Regulation (EEC) No 1078/77 the basis on which the annual quantity should be calculated; whereas the annual quantity will generally be determined by reference to the area of land transferred as a proportion of the total area of the original holding; whereas, however, as a result of the judgment of the Court of Justice of 16 October 1997 in Case C-165/95, where the original holding was a mixed holding, the determination should be made, where the necessary proofs exist, in proportion to the part of the holding directly or indirectly given over to dairy production at the time when the undertaking was entered into pursuant to Regulation (EEC) No 1078/77; whereas the same principles should be applied in the case where the transferee of the whole of a holding subject to such an undertaking, or the transferee of part of such a holding, subsequently gave up a part of the holding prior to the allocation of a special reference quantity;Whereas, subject to the above, the quantity to be compensated must be calculated in accordance with the principles enunciated in the grounds of the judgments of the Court of Justice of 19 May 1992 and of the Court of First Instance of 9 December 1997;Whereas the period for which compensation is to be offered should be indicated; whereas the damage suffered by the producers concerned can, in accordance with the abovementioned principles be considered to have ended at the date of adoption of Regulation (EEC) No 2055/93, or, if earlier, the date of allocation of a special reference quantity; whereas the provisions of Article 43 of the Statute of the Court of Justice laying down the five-year time bar on claims must be applied; whereas in response to applications from producers received after the date of the judgment of the Court of First Instance of 9 December 1997, the institutions have temporarily waived their right to invoke the time bar provisions; whereas therefore it is necessary to stipulate the circumstances in which the limitation period shall start to run again;Whereas for administrative reasons it is necessary to fix a time limit for the submission of applications for compensation by producers to the competent authorities in order to be admissible, as well as the time limits for the transmission of offers and their acceptance; whereas the Commission should be empowered to extend the time limit for the transmission of offers in appropriate circumstances;Whereas, for the purposes of the implementation of this Regulation, the Member States shall carry out the necessary administrative tasks in accordance with its provisions, by virtue of a specific mandate limited to the execution of those tasks; whereas, given that a condition of acceptance of an offer must be the relinquishment of all claims against the Community arising out of the failure to allocate reference quantities, the offer of compensation to the producer should be made by the competent authority of the Member State in the name and on behalf of the Council and the Commission;Whereas Regulation (EEC) No 2187/93 sets out the amounts of compensation in ecus per 100 kg of milk for each of the years 1984/85 to 1990/91 differentiated according to farm size in terms of milk production; whereas these amounts represent the global estimate per year and farm size of the difference between the income which the producers concerned would have received from marketing milk had they not been restricted from doing so and the income which they obtained, or could have obtained, by showing reasonable diligence during the same period; whereas, in the light of the experience of the application of that Regulation, it can be concluded that the objectivity of the method used for the calculation of the amounts has been demonstrated and that they constitute an acceptable assessment of the losses sustained by the producers;Whereas it is therefore appropriate to retain the same amounts for the purposes of the compensation arrangements for producers under this Regulation; whereas, however, the differentiation according to farm size is not relevant to producers who are transferees of a non-marketing premium or of part of a holding subject to a non-marketing undertaking; whereas it can be accepted that in general such producers were operating on holdings on which the milk production was expanding and with reference quantities which were above the average; whereas it is therefore appropriate to use the figures relating to the largest farm size; whereas it is necessary to fix amounts also for the years 1991/92 to 1993/94; whereas these amounts can be calculated on the basis of the amounts for the preceding years with adjustments to take account of fluctuations in the milk price in the Member States on whose territory the majority of the producers concerned have their holdings;Whereas failure by the producer to accept the offer made by the competent authority of the Member State in accordance with the provisions of this Regulation would constitute a refusal of the Community offer; whereas any legal proceedings continued or initiated thereafter by the producer would fall within the Community's jurisdiction;Whereas the experience of the implementation of Regulation (EEC) No 2187/93 has shown the advisability of providing for a power to authorise the transmission of compensation offers to producers who fail to comply with certain conditions set out in the arrangements fixed in the Regulation, but whose circumstances nevertheless satisfy the conditions laid down in the judgments of the Court of Justice or Court of First Instance with regard to the liability of the Community,HAS ADOPTED THIS REGULATION: