Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27026/95

by Elfriede ZACHER

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 4 September 1996, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 7 April 1995 by

Elfriede ZACHER against Germany and registered on 12 April 1995 under

file No. 27026/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1942, is a German national and resident

at Pöttmes. She is a farmer by profession. In the proceedings before

the Commission, she is represented by Mr. E. Eyl, a lawyer practising

in Strasbourg.

A. Particular circumstances of the case

The facts of the case, as submitted by the applicant, may be

summarised as follows.

In 1974 the applicant took over her mother's farm of about

2.5 acres (19.2 hectare) where she produced milk.

In 1985 the Augsburg District Court (Amtsgericht), in the context

of enforcement proceedings brought by a banking institute, ordered the

forced sale by auction (Zwangsversteigerung) of the applicant's

property, inter alia of the parcel of land No. 385. An agricultural

expert opinion on the value of the estate was prepared in February

1986. The applicant's appeals against the fixing of the value of the

different parcels of the estate were to no avail.

On 17 November 1989 the Augsburg District Court accepted the

highest offer made for the parcel No. 385 and decided that the property

had been sold to Mr. and Mrs. L. by forced sale (Zuschlagsbeschluß).

The Court observed that the highest offer for the whole property

involved had been less than the sum of highest offers for the

individual parcels, and that the parcels had therefore been sold

individually.

On 9 January 1990 the Augsburg Regional Court (Landgericht)

dismissed the applicant's appeal against inter alia the forced sale of

the parcel No. 385. The Court observed that the applicant challenged

the correctness of the fixing of the value of the property in question,

arguing that the milk quota (Referenzmenge) issued to her had not been

duly taken into account.

On 3 April 1990 the Friedberg Agricultural Office (Amt für

Landwirtschaft) issued Mr. L. with a certificate according to which he

had acquired, with effect as from 17 November 1989, a milk quota

amounting to 7.190 kg, namely a share in the applicant's previous total

milk quota proportionate to the size of the parcel of land acquired by

him.

In the administrative appeal proceedings brought by the

applicant, the decision of 3 April 1990 was amended to the effect that

20% of the milk quota involved would revert to the Federal Republic of

Germany.

Subsequently, the applicant instituted court proceedings with the

Augsburg Administrative Court (Verwaltungsgericht) against the transfer

of the said milk quota. She claimed that the parcel had been

transferred by forced sale without the milk quota concerned.

On 3 November 1992 the Augsburg Administrative Court dismissed

the applicant's action. The Court considered that the Agricultural

Office had confirmed the transfer of the milk quota involved in

accordance with the relevant provisions of the Dairy Produce Quantity

Regulations (Milch-Garantiemengen-Verordnung).

The Administrative Court found that the applicant's argument that

the milk quota had not been rated in the expert opinion on the market

value of her real estate was irrelevant on the ground that, in

accordance with the relevant legal provisions, the milk quotas were

in principle linked to the farm land used for dairying. Thus, in case

of sale, lease or inheritance of a farm, the milk quota concerned was

transferred to the person who had acquired the farm. The same applied

to other forms of transfer of dairy farms to the extent that such

transfers had similar legal consequences as sale, lease or inheritance.

Thus, while the case of forced sale by auction was not expressly

mentioned in the provision in question, the relevant milk quota was

transferred as the forced sale by auction had similar legal

consequences to a free sale.

On 31 March 1993 the Bavarian Administrative Court of Appeal

(Bayerischer Verwaltungsgerichtshof) dismissed the applicant's appeal.

The Court of Appeal confirmed the findings of the Administrative Court

regarding the transfer of the milk quota concerned.

On 6 September 1993 the Federal Administrative Court

(Bundesverwaltungsgericht) dismissed the applicant's request for leave

to appeal on points of law (Beschwerde gegen die Nichtzulassung der

Revision).

On 29 September 1994 the Federal Constitutional Court (Bundesver-

fassungsgericht) refused to admit the applicant's constitutional

complaint (Verfassungsbeschwerde). The decision was served on

12 October 1994.

B. Relevant law

1. European Economic Community regulations

There had been surpluses of milk and milk products for

some considerable time. By 1984, according to the preamble of Council

Regulation (EEC) no. 856/84, "quantities of milk delivered [were]

increasing at a rate such that disposal of surpluses [was] imposing

financial burdens and market difficulties which [jeopardised] the very

future of the common agricultural policy". Amending an earlier

regulation which had not proved sufficiently effective, Council

Regulation (EEC) no. 856/84 (OJ (Official Journal) no. L 90 of 1 April

1984, p. 10) was adopted by the Council of the European Communities in

response to these structural surpluses. The Council of the European

Communities decided that for an initial period of five years the

quantity of milk every dairy farmer would be allowed to produce should

be limited to a fixed amount. To this end they introduced a system

under which dairy farmers had to pay a penalty or "additional levy" on

milk delivered in excess of their allotted quotas. It was left to the

States themselves to share out their guaranteed quotas within their

jurisdictions according to a formula prescribed by Council Regulation

(EEC) no. 857/84 (OJ no. L 90 of 1 April 1984, p. 13).

Under Article 189 of the EEC Treaty, Council Regulations (EEC)

no. 856/84 and no. 857/84 were binding in their entirety and directly

applicable in all member States of the European Communities. They

entered into force on 1 April 1984.

2. German legislation

The German Dairy Produce Quantity Regulations (Milch-

Garantiemengen-Verordnung) of 1989, as amended in 1990, implemented the

legal instruments issued by the European Communities, in the context

of the organisation of the common market for milk and milk products,

regarding the levies to be paid by the producer of milk for milk or

milk products sold to purchasers or consumers to the extent that the

quotas concerned exceeded the respective producers' quotas as granted

under the guaranteed quantities on the national level. The German Dairy

Produce Quantity Regulations contain detailed provisions on the

calculation of the milk quotas. S. 7 of the Regulations regulates

legal consequences regarding the milk quotas in case of sale, lease or

inheritence of the whole or part of an agricultural estate. Thus, in

case of sale or lease of part of an agricultural estate, as a rule, an

equivalent share in the milk quotas passed to the purchaser or

leaseholder; exceptions limiting the maximum amount of the share

concerned, partly depending on the date of the sales or lease contract,

or excluding the transfer of milk quotas in cases of small parts sold

or leased were also stipulated. These provisions of S. 7 also applied

to other legal transactions with similar legal consequences.

COMPLAINTS

The applicant complains that the decisions of the Friedberg

Agricultural Office, as confirmed by the German courts, on the transfer

part of her milk quota following the forced sale by auction of the

applicant's parcel of land No. 385, amounted to a deprivation of her

property contrary to Article 1 of Protocol No. 1 to the Convention.

She submits that the relevant legal provisions on the transfer of milk

quota do not apply in case of a forced sale by auction of real estate.

Moreover, the German authorities failed to take duly into account that,

according to the applicant, the parcel in question was destined for the

production of potatoes and not for dairying.

THE LAW

The applicant complains under Article 1 of Protocol No. 1 (P1-1) to the

Convention about the transfer of part of her milk quota, following a

forced sale by auction, to the purchaser of part of her real estate,

namely parcel No. 385.

Article 1 of Protocol No. 1 (P1-1) reads as follows:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of his

possessions except in the public interest and subject to the

conditions provided for by law and by the general principles of

international law.

The preceding provisions shall not, however, in any way impair

the right of a State to enforce such laws as it deems necessary

to control the use of property in accordance with the general

interest or to secure the payment of taxes or other contributions

or penalties."

As to the question whether or not Article 1 of Protocol No. 1

(P1-1) applies in the instant case, the Commission recalls that

economic interests connected with the running of a business or trade

are "possessions" for the purposes of Article 1 of Protocol No. 1

(P1-1), and the withdrawal of a licence being one of the principal

conditions for the carrying on of such business may be regarded as

interference with the right to the "peaceful enjoyment of one's

possessions" (cf. Eur. Court HR., Tre Traktörer Aktiebolag v. Sweden

judgment of 7 July 1989, Series A no. 159, p. 21, para. 53).

In this respect, the Commission has held that the applicability

of Article 1 of Protocol No. 1 (P1-1) depends, inter alia, on whether

the licence gives rise to a reasonable and legitimate expectation of

continuing benefits from the exercise of the licensed activity.

Accordingly, a licence-holder cannot be considered to have such an

expectation where the conditions attached to the licence are not or no

longer fulfilled or if the licence is withdrawn in accordance with the

provisions of the law in force (No. 19819/92, Dec. 5.7.94, D.R. 78

p. 88).

In the present case, the applicant's farming estate, including

the parcel in question, was acquired by third persons in the context

of proceedings for the forced sale by auction instituted by a banking

institute, the applicant's creditor. Following the forced sale, the

competent agricultural authority, as confirmed by the German

administrative courts, issued a certificate on the transfer of part of

the milk quota previously attributed to the applicant to the person

having acquired parcel No. 385 in the above forced sale, in the

proportion which the parcel bore to the total size of the real estate,

minus 20% which reverted to the Federal Republic of Germany.

The Commission notes that, in accordance with the relevant legal

provisions, milk quotas are in principle linked to the farm land used

for dairying. Accordingly, a transfer of the milk quotas is provided

for if the property right or the right to exploit the farm land

concerned has been acquired by a third person. Taking into account

that, following the forced sale by auction of her farm estate,

including parcel No. 385, the applicant no longer owned the land so as

to enable her to carry on any dairying activities, the impugned

transfer of the milk quota did not amount to any interference with the

applicant's rights under Article 1 Protocol No. 1 (P1-1) of the

Convention.

It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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ZACHER v. GERMANY

ZACHER v. GERMANY

LEXI