Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 30032/96

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 17 January 1996

by Elfriede ZACHER against Germany and registered on 1 February 1996

under file No. 30032/96;

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.

A. Particular circumstances of the case

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

summarised as follows.

In January 1986, following the termination of a lease of parcels

of land used by the applicant for agricultural purposes, in particular

dairying, the lessor of the land concerned, Mr. S., requested the

Friedberg Agricultural Office (Amt für Landwirtschaft) to issue a

certificate on the transfer of part of the milk quota (Anlieferungs-

Referenzmenge) attributed to the applicant, namely a share in the

applicant's previous total milk quota proportionate to the size of the

parcels of land taken back by him. He submitted inter alia that having

regard to his personal situation he was particularly dependent upon the

milk quota involved.

On 12 August 1986 the Friedberg Agricultural Office issued Mr. S.

with a certificate according to which he had acquired, with effect as

from 1 October 1984, i.e. the termination of the lease, a milk quota

amounting to 12.189 kg, which was deducted from the applicant's

quantity.

The applicant's administrative appeal was to no avail.

Subsequently, the applicant instituted court proceedings with the

Augsburg Administrative Court (Verwaltungsgericht) against the transfer

of the said milk quota. She claimed in particular that the lease

contract regarding the said parcels of land had been concluded by her

husband and that, therefore, the milk quota attributed to her could not

be reduced following the termination of the lease.

On 9 April 1991 the Augsburg Administrative Court, upon the

applicant's action, quashed the administrative decisions on the

transfer of the milk quota. The Court, referring to the relevant

provisions of the German Dairy Produce Quantity Regulations (Milch-

garantiemengen-Verordnung) providing inter alia for the protection of

leaseholders, found that Mr. S., in the pursuance of his farming

activities, was not dependent on the attribution of a further milk

quota of 12.198 kg in addition to his quota of already 180.000 kg.

On 6 May 1993 the Bavarian Administrative Court of Appeal

(Bayerischer Verwaltungsgerichtshof), upon the defendant's appeal,

quashed the Administrative Court decision of 9 April 1991, and

dismissed the applicant's action. The Court of Appeal found that the

provision of the German Dairy Produce Quantity Regulations providing

for the protection of leaseholders upon termination of lease were null

and void on the ground that they had been enacted before the entry into

force of the respective EC Regulations permitting the Member States to

enact such legislation. Thus, in the applicant's case the general rule

on the transfer of milk quotas upon termination of the lease of a farm,

or part of the quota in case of termination of the lease of parcels of

land used for agricultural purposes, applied. In this context, it was

irrelevant that the lease contract had been signed by the applicant's

husband, as the calculation of the total milk quota attributed to the

applicant as the owner of the farm had included the leased parcels of

land.

On 14 February 1994 the Federal Administrative Court (Bundes-

verwaltungsgericht) dismissed the applicant's request for leave to

appeal on points of law (Beschwerde gegen die Nichtzulassung der

Revision).

On 17 July 1995 the Federal Constitutional Court (Bundesver-

fassungsgericht) refused to admit the applicant's constitutional

complaint (Verfassungsbeschwerde). The decision was served on

26 July 1995.

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

quantity concerned exceeded the respective producers' quota 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 quota 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 quota 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

of part of her milk quota following termination of a lease of some

parcels of land used for agricultural purposes amounted to a

deprivation of her property contrary to Article 1 of Protocol No. 1 to

the Convention.

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

termination of a lease of some parcels of land used for agricultural

purposes, to the lessor of these parcels of land.

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, some parcels of land used by the applicant

for agricultural purposes were taken back by the lessor following

termination of the lease. Thereupon, the competent agricultural

authority, as eventually confirmed by the German administrative courts,

certified that part of the milk quota previously attributed to the

applicant was transferred to the lessor of the parcels of land

concerned, in the same proportion as the parcels bore to the total size

of the real estate.

The Commission notes that, in accordance with the relevant legal

provisions, the milk quota is in principle linked to the farm land used

for dairying. Accordingly, a transfer of the milk quota, or part

thereof, is provided for if the property right or the right to exploit

the farm land concerned, or part thereof, respectively, has been

acquired by a third person. Taking into account that, following the

termination of the lease of the parcels of land which were taken back

by the lessor, the applicant no longer had possession of these parcels

of land for the purpose of pursuing any dairying activities, the

impugned transfer of a part of the milk quota previously attributed to

her 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

Menu

ZACHER v. GERMANY

ZACHER v. GERMANY

LEXI