Supreme Court dismisses appeal claiming milk quota restructuring scheme violated constitutional property rights.

THE SUPREME COURT

340/00

Keane, C.J.

Denham, J.

Murphy, J.

Murray, J

Fennelly, J.

BETWEEN

NICHOLAS PHILIP (OTHERWISE MARTIN) MAHER

MALACHY BRETT AND RITA RYAN

Applicants

AND

THE MINISTER FOR AGRICULTURE FOOD AND RURAL DEVELOPMENT IRELAND AND THE ATTORNEY GENERAL

Respondents

Judgment delivered the 30th day of March, 2001, by Murray, J.

I have had the advantage of reading the judgment of Fennelly, J. and I agree with his reasoning and conclusions on the issue as to

whether the national rules contained in the European Communities (milk quota) Regulations 2000 (S.I. No. 94/2000) (“The 2000

Regulations”), implemented for the purpose of community regulations ought to have been introduced by way of primary legislation in

order to comply with the provisions of the Constitution in lieu of the statutory instrument adopted by the Minister.

Fennelly, J. has very clearly set out all the factual elements and applicable law , in particular the legal measures adopted at both

community level and national level governing the milk quota system. Therefore, it is not necessary for me to make detailed reference

to those matters and I do so only so far as it is necessary for the purpose of addressing the particular issues with which this

judgment in concerned. Those issues are the claim made on behalf of each of the Applicants that the 2000 regulations infringed the

property rights of the Applicants as guaranteed by the Constitution and, or alternatively, their property rights as protected by

European Community law.

In this respect it was submitted on behalf of the Applicants that a milk quota should be treated as just as valuable an asset in its own

right as land itself. In effect the Applicants were being required to sell their milk quota under the 2000 restructuring scheme to the

Minister at a price fixed by him at a fraction of its market value. It was submitted that this was equivalent to the forfeiture of unused

agriculture land at a price significantly below its market value and was in conflict with Article 40.3.2 and Article 43 of the

Constitution.

Since the basis on which the milk quota could be sold into the restructuring scheme pursuant to the 2000 Regulations was a matter

within the discretion of the national authorities it fell to be exercised in accordance with national law , the Minister was bound in so

doing to respect the property rights of the Applicants as guaranteed by the Constitution.

It was also submitted that, even if a right derived from community law does not fall to be considered as a fundamental right within

the meaning of that law, it does not follow that such a right cannot enjoy protection of the Constitution where it is expressly or

implicitly recognised as a fundamental right.

As regards European community law, it was submitted that the right to property is one of the fundamental rights protected by

community law. While it was accepted that the Court of Justice has generally taken the view that milk quotas do not constitute a

property right so far as community law is concerned, as in the case of R -v- Ministry of Agriculture, ex-parte Bostock (C-2/92 [1994]

ECR 1-955) it was submitted that Bostock concerned the right to dispose of a quota for profit whereas the present case concerns a

form of compulsory acquisition by the state of a quota at a price substantially less than the prevailing market value. In this context a

quota may qualify for protection as a property right which the member states in turn are obliged, as a matter of community law to

protect. In support for this submission the Applicants relied on the opinion of the Advocate General in Demand -v- Hauptzollampt Trier

(C-186/96 [1998] ECR 1-8529 at 8541). That opinion included the following statement at paragraph 42 “Milk quotas thus constitute

instruments of market intervention which through the process of the law, have become an item of property. The content of that item

of property/instrument will clearly vary according to the various national legal systems. Some will require a closer link between the

quota and the holding or will subject the transfer of the quota to various conditions. The quota is not thereby deprived of its

character as an item of property, just as fire arms are enriched uranium or not deprived of their character as items of property by the

restrictions on transferring them. These conditions will only provide a means of preventing, to some extent, the creation of ‘quota

markets’.”

For the Respondents it was submitted that the nature of rights conferred by the milk quota on the Applicants can be no different

under Irish law than under Community law. The Respondents rely on the judgment of the Court of Justice in R -v- Ministry of

Agriculture, ex-parte Bostock for the submission that so far as Community law is concerned a milk quota it is not a property right. It

follows, in their submission, that it cannot be a property right under national law. Furthermore, on the facts of the case the

Applicants are seeking no more than to earn a greater profit from the milk quota currently held by them than is allowed for by the

2000 Regulations. These milk quotas form part of the additional levy scheme which has been introduced for a limited period only and

which has been the subject of constant changes including reductions in the amount of quota without compensation which has been

upheld as permissible by the Court of Justice. It is not a property right in Community law.

In the alternative the Respondents argue that if the Applicants are to be considered as having a property right in their milk quota, it

can be no greater than a property right and a licence to produce and deliver milk in the amount of their quota. The changes made by

the 2000 Regulation does not interfere with this right since the quota must be regarded in Irish law as a licence or permit created by

law and subject to an implied condition that the law may legitimately change the licence scheme or conditions attaching to such

licence. Accordingly, the 2000 Regulations do not conflict with either Article 40.3.2 or 43 of the Constitution.

Decision:-

It is appropriate first of all to consider the submission on behalf of the Applicants that the State is entitled and indeed bound to

respect constitutional guarantees for the respect of fundamental rights even where that right is derived from Community law in

circumstances where the degree of protection to be afforded to such a right is left to the discretion of the member state. In support

of that contention, the Appellants relied on the views expressed in an opinion of Advocate General Cosmas in Duff -v- Minister for

Agriculture (C-63/93 [1996] ECR 1/569) where he held that the Plaintiff’s legitimate expectations at Community law level had not been

infringed by the actions of the Minister, but this did not prevent “... such a requirement from been founded on principles of national

law which, in an appropriate case, may ensure greater protection in this respect than that afforded by the general principles

applicable in the community legal order.”

I do not consider that the proposition as framed and advanced on behalf of the Appellants needs to find its source in Community law.

It seems to me that the view expressed by Advocate General Cosmas is no more than a reflection of the position in national law when

member states exercise their legislative powers in a matter in which they have competence and a discretion as to the legal protection

to be afforded to fundamental personal rights. In such circumstances the Member States have the power, or as the case may be, the

duty to legislate in accordance with national law including constitutional law. One of the primary duties of the organs of government

under our Constitution including the judicial organ of government is to ensure due observance of the Constitution, respect for the

fundamental rights which it protects and where appropriate to defend and vindicate them, always with due regard to the precedence

which the Constitution in effect accords to Community law and its fundamental principles by virtue of the relevant provisions of Article

29. Of course it is the case that a Member State when introducing legal measures at national level, which fall within the scope of

community law, such as giving effect to a directive or regulation, must comply with community requirements with regard to the

protection of fundamental rights which is an integral part of the community legal order. (C-222/84 Johnston -v- Chief Constable of the

RUC [1986] ECR 1651 para. 18). This is so even if the measures taken are within the ambit of a discretion left to the member state.

Whether such a measure respects the community protection of fundamental rights must be determined by community law alone.

However, where the State enacts a legislative measure in the exercise of a discretion conferred by community law it is not ipso facto

absolved from ensuring that such legislation is compatible with the Constitution. This is self-evident from the terms of Article 29.4

which, inter alia, provides that no provision of the Constitution invalidates laws enacted or measures adopted by the State which are

“necessitated” by the obligations of membership of the European Union or of the Communities. The discretion allowed to the Member

State maybe so circumscribed by community law that the entire of any legislative measure taken by it or the exercise of such

discretion is “necessitated”. This could arise where the exercise of a discretion conferred by community law was required to be

exercised exclusively having regard to the policy considerations and objectives of the community measure and where considerations

of national law would distort the proper exercise of such a discretion.

On the other hand, the discretion conferred by community law on the State when implementing legislative measures maybe

sufficiently wide to permit the State to have full regard to the constitutional protection afforded to fundamental rights without

impinging on the full effect and uniform application of community law. In such circumstances the State, in the exercise of such

discretion, would be bound to respect personal and fundamental rights as guaranteed by the Constitution.

In this particular case it may well be that the discretion conferred on the Minister to cease to apply Article 7 (1) of Regulation (EEC)

3950/92 as amended by the insertion of Article 1 (10) of Regulation (EC) 1256/99 of Article 8 a (b) is so circumscribed to be

considered “necessitated” within the meaning of Article 29 of the Constitution. These concern the rules on the transfer of quotas.

The position may be otherwise in respect of the power conferred on the Minister by the national regulations, the 2000 Regulations, to

fix the maximum price per litre/gallon for which the price of milk quotas may be calculated.

However, it is not necessary to venture further into these issues unless the Applicants have established that they have a property

right and that the constitutional guarantees have been infringed as they allege.

Property Rights - national law:-

The next question which arises is whether a right being asserted by the Appellants in these proceedings is a property right, and if so

whether it has been infringed contrary to Article 40.3.2 or Article 43 of the Constitution.

First of all regard must be had to the general context in which the milk quota or super levy system has functioned and been

regulated. It is an integral part of the Common Agriculture Policy the objectives of which are set out in Article 33 of the E.C. Treaty

namely:-

(a) To increase agricultural productivity by promoting technical progress and by ensuring the rational development agricultural

production and the optimum utilisation or the factors of production, in particular, labour;

(b) Thus to ensure a fair standard of living for the agricultural community, in particular by increasing the individual earnings of

persons engaged in agriculture;

(c) To stabilise markets;

(d) To ensure the availability of supplies;

(e) To ensure that supplies reach consumers at reasonable prices.

Article 34 of the Treaty authorises the community to take all measures required to attain the above objectives and in particular

measures concerning the “regulation of prices, aids for the production and marketing of the various products, storage and carry over

arrangements and common machinery for stabilising imports or exports.”

The milk quota system is an integral part of the common organisation of the market in the milk sector. This common organisation of

the milk sector market was introduced initially by council Regulation (EEC) No. 804/68 with a view to guaranteeing to producers a

common target price with the support of certain intervention measures.

The basic common organisation of the market in the milk sector from its inception on the adoption of Council Regulation (EEC) no.

804/68 and its evolution to the present regime to which the 2000 Regulations apply has been clearly set out in the judgment of

Fennelly, J. From a general point of view it is clear that the milk quota system as successively varied and amended was intended to

achieve the objectives of the common organisation of the market in the milk sector and those of the Common Agricultural Policy. In

particular it had among its primary objectives that of maintaining market balance and producers income. In a real sense it created an

artificial market for milk products since the regime was designed at all times to counteract the negative effects of prevailing market

forces in open unregulated national markets. A stable milk sector market has benefits for the consumer and thus for society for a

whole but it can be fairly said that at least equal benefactors of the regulation of the market are those farmers who participate in the

milk quota regime. This is highlighted by the recital in Council Regulation (EC) 1255/99 which recites as one of its fundamental

objectives “to ensure a fair standard of living for the agricultural community.”

Thus by the various measures and mechanisms authorised by the Treaty, a particular and common organisation of the market of milk

as a product was constructed. The market can be said to be particular in so far as that the conditions of trade, including the price of

milk, are fashioned by the regulatory regime to the direct benefit of producers. The history of the establishment and evolution of the

common organisation of the market in the milk sector, as outlined in the judgment of Fennelly, J. and elsewhere, demonstrates that

the regulatory regime did not always achieve the objectives anticipated either because it did not have the full effect expected or

because of intervening factors such as over production of milk. The common organisation of this market successively over the years

has been subject to variations, refinements and amendments with a view to achieving the basic objectives of the Common Agricultural

Policy. These changes have included reductions in the amount of quota without compensation (the legality of which was upheld by

the Court of Justice in the Irish Farmers Association and Ors -v- Minister for Agriculture (C-22/94 [1997] ECR 1 1809). Such constant

changes are an inherent feature of the common organisation of the market in the agricultural sector. As Mr Patrick Evans, official at

the Department of Agriculture, Food and Rural Development, points out in paragraph 9 of his affidavit “each year the commission

carries out an analysis of the market situation and a future outlook with regard to each of the agricultural products governed by the

common organisation to the market. The Commissions report of this market analysis is followed by any proposals the Commission

considers necessary to provide for changes to ensure that the objectives of the regime in individual sectors continued to be met.”

Neither the organisation nor the market which it governs can be assumed to remain static.

It seems to me that when changes are effected to a regime regulating the organisation of a product market, such as that which we

have here, which are internally rational to the regime and the objectives to be achieved by it, those who participate as economic

operators in that market must, in principle, accept such changes as an inherent element in that market in which they participate

provided, at least, those changes do not affect other substantive rights independent of the regime and do not offend against

fundamental principles such as non- discrimination.

If a person’s rights or activities under such a regulatory regime were to be abridged or limited for purposes external or extraneous to

those of the regulatory regime, any question of compensation which might arise would have to be approached from a different

perspective. Such could arise, for example, where a state authority compulsory acquired portion of a farmer’s lands for public road or

public housing to the extent that his entitlement to be attributed or ability to use a quota was reduced or eliminated altogether.

Obviously this does not arise in this case

The substantive independent right which has been put in issue in this case is what is claimed to be the Appellant’s fundamental right

to the ownership of property. No issue has arisen concerning the breach of fundamental principles such as non-discrimination.

Whether the Applicant’s property rights as guaranteed by the Constitution have been breached falls to be considered in the light of

the impact of the 2000 regulations on their position as persons who have been allocated a quota under the system and the

disadvantage which they claim to suffer as a result of that impact.

The position of the Applicants:-

It is not contested, and it indeed it is part of their case, that each of the Applicants participated for a significant number of years in

the milk quota regime and profited therefrom. It is also the case that each have profited, in varying degrees, from a leasing of their

quota in respect of milk quantities of which they were not the actual producers.

As regards Mr Maher, the options now available to him in the light of the 2000 Regulations are as follows: -

(a) He can resume milk production and benefit fully from the milk quota regime;

(b) He can transfer the quota with land to a relative as defined in the 2000 Regulations. The quota which he leased to Mr

Maurice Ryan since 1996 to March 31, 2000 can be sold to Mr Ryan, with or without the leased land;

(c) He can sell the quota under the 2000 milk quota restructuring scheme;

This would involve selling at the maximum price fixed by the Minister which is less than he would obtain on the market without a

capped prices restraint.

(d) If he sells the quota under the restructuring scheme, his son or daughter will have priority to buy up an equivalent level of

quota from future restructuring schemes provided that sufficient quota is available.

Mr Maher submits that the only real option to him are either to resume milk production or to sell his milk quota under the 2000 milk

quota restructuring scheme. It was submitted that at present he is not in a position to resume milk production as this would be very

expensive. Selling the quota to Mr Ryan is not a realistic option as he and Mr Ryan have not been able to agree on terms. In practice,

it is claimed, he cannot keep the quota for any of his children and that the option of his children to buy an equivalent level of quota

from a future restructuring scheme is subject not only to the availability of quota at that time but also subject to the operation of a

restructuring scheme being in place. His only option therefore is to sell the quota under the 2000 milk quota restructuring scheme at a

price less than the ‘market value’.

Mr Brett and his wife are an elderly couple depending on income from their quota. The options open to Mr Brett are:-

(a) Resume milk production

(b) Sell the quota under the 2000 milk quota restructuring scheme.

Because of their age it is not a realistic option for them to resume milk production and the only realistic option open to them is to sell

under the restructuring scheme at a price less than the market value of the milk quota.

Ms Ryan it is contended is in much the same position. She could not afford at this stage, it is stated, to return to milk production and

selling into the restructuring scheme is her only option leading again to a loss by comparison to what she could obtain if she was

allowed to sell on the open market.

The common elements in the position of the three applicants is that none of them are active producers, all have the option of

resuming production of milk on their respective farms and benefiting in full from the milk quota regime, but because of their personal

circumstances the resumption of working their farm to produce milk is not a realistic option for them personally. In each case it is

claimed that they are realistically only left with one option to sell into the restructuring scheme. This would involve selling at the

capped price fixed by the Minister of £1.36 per gallon. In support of the first Applicant’s claim, evidence was tendered on his behalf by

way of the affidavit of Mr Noel Corcoran, an auctioneer, to the effect that his milk quota had a value of £3.00 per gallon “on a sale on

the open market”. It is not in dispute that, at least at the time of the High Court proceedings, the capped price fixed by the Minister

was significantly less than what would be obtainable on the “open market.”

In their written and oral submissions the Applicants contended that it would be unrealistic not to regard a milk quota as valuable an

asset in its own right as land itself, and that the resulting effect of the price fixed by the Minister was analogous to “to the forfeiture

of unused agricultural land at a price significantly below market values or which seriously inhibited the right to lease such an asset.

Such a consequence was manifestly in conflict with Articles 40.3.2 and 43 of the Constitution.”

First of all it should be said that the 2000 Regulations apply to all persons who were holders of a milk quota so to speak at the time of

their entry into force and it is not in issue that they apply to all that class of persons in accordance with objective criteria.

Pursuant to those regulations, each of the Applicants is entitled, in common with all other holders of quotas, to retain the quotas

attributed to them on resuming production of milk. It is for reasons wholly personal to them that they will not do so.

Their quotas are not being forfeited. That the Minister was entitled to make detailed rules concerning restrictions on transfer of quota

with land with a view to implementing the community regulations is not in dispute (save obviously as to whether it ought to have

been done by way of primary legislation or secondary legislation). In making such rules and in exercising the discretion provided for in

Article 8a(b) of Regulation 3950/92 (as inserted by Article 1.10 of Regulation 1256/1999, the Minister was constrained by the

objective of “ensuring that reference quantities are solely attributed to active milk producers”. As Fennelly, J. points out in his

judgment, member state discretionary action is circumscribed by the objectives of the scheme authorising it and that “in the instant

circumstances, Member States are authorised to act only to achieve the aim of ensuring that reference quantities are attributed to

producers”.

In my view the adjustments implemented by the 2000 Regulations are internally rational to the objectives to be achieved by the

regulatory regime. There is no forfeiture. There is no interference with a substantive right, such as property right.

The foregoing measures are no more than regulatory adjustments which are an inherent part of a particular organisation of any

market. Clearly no economic operator who participates in such a market can legitimately expect it to remain in a static or frozen form

and must accept the consequences of such inherent internal adjustment as governing his or her participation in that market.

It seems to me that on any view the interest of the Applicants in their quotas, however it is characterised, have not been

substantively diminished subject only to the remaining question which has arisen with regard to sale under the 2000 restructuring

scheme. In reality it is that question which has been the focal point of the Applicant’s complaint regarding infringement of their

property rights. In doing so they have contrasted the price available in the restructuring scheme by virtue of the capped price fixed

by the Minister and that which would be available on what, the first Applicant’s auctioneer referred to as, “the open market”. It may

be said that “open market” is hardly an apt term since the market in milk and hence its price is a creature of the particular market

conditions created by the regulatory regime itself. In reality it is the price which the sale of a quota, based on the maximum fixed

price per gallon, (or litres), would obtain on that particular market as a construct of the regulatory regime, which is contested.

Article 26 (5) of the 2000 regulations is the provision which authorises the Minister to fix the capped or maximum payment for a quota

surrendered in the 2000 Restructuring Scheme. It is also the provision which authorises the Minister to set the reallocation price. It is

not this provision which is in issue with regard to the infringement of the Applicant’s property rights but rather the price fixed by the

Minister pursuant to that provision and which he announced by way of departmental notice no. 94/1, namely that the maximum price

for quota to be offered under the restructuring scheme is fixed at 30p per litre or approximately £1.36 per gallon. The uncontested

evidence before the High Court, as set out in paragraph 39 of the affidavit of Mr Evans is that the maximum price was fixed having

regard to the objectives contained in Article 8, (the allocation of quotas to active milk producers). In this regard Mr Evans added “I

say and believe that this was a fair price taking into account the interest of milk producers requiring additional quota and those

person disposing of their quota. Most of quota surrendered and reallocated in accordance with the scheme will be reallocated to small

and medium size producers. In most cases, producers finance the purchase of additional quota by raising loans from lending

institutions. Many of the producers will have required quota in previous years, similarly financed. On the other hand, persons selling

their quota under the restructuring scheme are likely to have benefited significantly from leasing their quota over a number of years

with land or under temporary leasing schemes”

It is clear that the price fixed by the Minister is internally and rationally related to the functioning and the continuing existence of the

common organisation of the milk market with a view to achieving it’s objectives. Non-active milk producers, such as the Applicants

who have a quota and who for reasons personal to them do not wish to or cannot resume actual production of milk are allowed an

opportunity to sell at a maximum price which takes account on the one hand of the needs of such persons and on the others of

persons who wish to enter the system, acquire a quota or an additional quota and actively produce milk. The so called ‘market value’

relied upon by the Applicants is also an artificial product of the organised market in milk. The potential opportunity to sell at the

“market price” generated by the functioning of the quota system to the exclusion of the regime now established by the 2000

regulations (including the price fixed by the Minister under those regulations) is not a property right. Property rights generates notions

of proprietorship and dominion. In the context of this scheme I do not consider that the Applicant’s had a proprietary interest in the

selling at the particular “market price” which they seek to rely on. For the reasons stated I consider that the Minister, in fixing the

price which he did, has acted within the ambit of the common organisation of the milk market and a quota regime and if there can be

said to be a market price it is that governed by the maximum price fixed by the Minister. To hold otherwise it would be to deny the

Minister his right and duty to exercise his lawful regulatory powers to ensure the proper functioning of the system. It would also

wrongfully attribute to the Applicant’s some proprietorial right to determine how the regulatory system in which they have participated

should be operated.

For these reasons I am of the view that the property rights of the Applicants have not been infringed under national law.

Property Rights - community law: -

It is well established that the protection of fundamental rights is an integral part of the community legal order which Member States

must respect. The right to property is one of those rights (C-4/73 Nold -v- Commission [1974] ECR 491, para 14 and C-4/79 Hauer -

v- Land Rhinland Pfalz [1979] ECR 3727, paras 17-30). Action on the part of Member States taken within the scope of community law

has to comply with community requirements with regards to the protection of fundamental rights (C-22/84 Johnston-v- Chief

Constable of the RUC [1986] ECR 1651, para 18). In the Wachauf case the Court of Justice held that “since those requirements are

also binding on the Member States when they implement community rules, the Member States must, as far as possible, apply those

rules in accordance with those requirements” (C-5/88 Washauf [1989] ECR 2609 para19). The Hauer case made it clear that the

compatibility of such measures with the fundamental rights as protected by the community must be determined autonomously in the

light of community law alone. [at p.3744].

In this context the issue is whether the 2000 regulation made by the Minister infringes community law guarantees on the right to

property.

Counsel for the Applicants have freely acknowledged that in the Bostock case (cited above) the Court of Justice held, in reaffirming

an earlier decision, that “the right to property safeguarded by the community legal order does not include the right to dispose, for

profit, of an advantage, such as the reference quantities allocated in the context of the common organisation of a market, which

does not derive from the assets or occupational activity of the person concerned ...” (at p. 984)

That statement of the law still stands and nothing in the subsequent case law of the Court of Justice including its decision in Demand

-v- Hauptzollampt Trier (cited above) has qualified it notwithstanding the views expressed by the Advocate General in that case.

The Applicants have argued that Bostock concerned the right to dispose of a quota for profit whereas this case is concerned with

what is in effect a compulsory acquisition of the State of a quota at a price substantially less than the prevailing market price. As I

have already held there is no forfeiture of the quota. It is the personal circumstances of the Applicants which prevent them from

utilising the quota attributed to them. What they are concerned with is the price limitation on which they may sell that quota. In my

view the situation of the Applicants is governed by the Court of Justice in the Bostock case.

There is in any case parallel jurisprudence of the Court of Justice in its approach to the assertion of property rights in the context of

the common organisation of the market in the agricultural sector. In this approach the Court of Justice, without declaring that the

rights in question are in fact property rights, has dealt with the issue by defining the proper restrictions which in any event maybe

placed on the exercise of property rights in the context of a common organisation of the market. In Schrader (C-265/87 [1989] ECR

2237, the Court stated “both the right to property and the freedom to pursue a trade or profession ... do not constitute an

unfettered prerogative, but must be viewed in the light of the social function of the activities protected thereunder. Consequently,

the right to property and the freedom to pursue a trade or profession may be restricted, particularly in the context of a common

organisation of the market, provided that those restrictions in fact correspond to objectives of general interest pursued by the

community and that they do not constitute a disproportionate and intolerable interference which infringes upon the very substance of

the rights guarantee”.

This approach has been followed in successive cases and repeated in the Demand case where the Court stated, at paragraph 40,

“with regard to more particularly to right to property, which according to the Plaintiff in the main proceedings has been infringed, the

Court held, in paragraphs 28 and 29 of Irish Farmers Associations, cited above, that the regulations in question form part of a body of

legislation intended to remedy the surpluses on the milk market and therefore correspond to aims pursued by the community in the

general interest and that the conversion into a definitive reduction without compensation does not affect the actual substance of

that right”.

In the ensuing paragraph it stated “it must be added, regardless of the legal nature to be attributed to an additional reference

quantity, but having regard to the persistence of surpluses, a definitive withdrawal of 4.74% of an additional reference quantity

appears to be appropriate and necessary to achieve the aim of that measure, namely an enduring reduction of surpluses”.

Having regard to the position of the Applicants as I have already outlined this case law also applies to their situation however their

interest is regarded.

Accordingly I conclude that there are no property rights of the Applicants which have been infringed under community law.

The issue being clearly governed by decisions of the Court of Justice, there is no obligation to make a reference under the third

paragraph of Article 234 of the E.C. Treaty (C-283/81 CILFIT -v- Ministry of Health [1982] ECR 3415, paras. 14,15).

Having regard to the conclusions which I have reached and those of Fennelly, J. in his judgment I would dismiss the appeal.