No L 84/2 Official Journal of the European Communities 29. 3. 89 COUNCIL REGULATION (EEC) No 764/89 of 20 March 1989 amending Regulation (EEC) No 857/84 adopting general rules for the application of the levy referred to in Article 5¢c of Regulation (EEC) No 804/68 in the milk and milk products sector THE COUNCIL OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing -the European Economic Community, Having regard to Council Regulation (EEC) No 804/68 of 27 June 1968 on the common organization of the market in milk and milk products(’), as last amended by Regulation (EEC) No 763/89 (3, and in particular Article Sc (6) thereof, Having regard to- the proposal from the Commission, Having regard to the opinion of the European Parliament (%), Having regard to the opinion of the Economic and Social Committee (*), : : Whereas Article 3 of Regulation (EEC) No 857/84 (), as last amended by Regulation (EEC) No 1110/88 (9, provides for certain special situations to be taken into account in determining the reference quantities ; whereas the- situations which may entail the grant of a special quantity from the national reserve do not cover. producers - who entered into 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 herds (), as last amended by Regulation (EEC) No 1300/84 (¥), and who for that reason did not deliver any milk or milk products during the reference year selected by the Member State concerned, unless such- producers have made investments; have implemented - a development plan or rank as young farmers ; whereas the Court of Justice, in the judgments it handed down on 28 April 1988 'in Cases 120/86 and 170/86. considered that . the producers in question may not be excluded form the allocation of a reference quantity by reason of their undertaking not to deliver milk during the reference year in question; whereas the list of special situations in Article 3 must therefore be supplemented by a new Article, so that the producers: concerned can receive a- special reference quantity from ‘deliveties’ and/or from ‘direct sales’; - Whereas, however, producers may claim such. special quantities- only if they comply with certain eligibility criteria thus making clear that they intend and are really able to resume milk production and find it impossible to () OJ No L 148, 28. 6. 1968, p. 13. () See page 1 of this Official Journal. () OJ No C 12, 16. 1. 1989, () OJ No C 337, 31. 12. 1988, p. 16. 9 OJ No L 90, 1. 4. 1984, p. 13. g‘) OJ No L 110, 29. 4. 1988, p. 28. () OJ No L 131, 26. 5. 1977, p. 1. () OJ No L 125, 12. 5. 1984, p. 3. obtain- a reference quantity -pursuant to Article 2 of Regulation (EEC) No 857/84; Whereas, by way of contrast to the producers referred to in Article 2 of Regulation (EEC) No 857/84, these producers have not delivered milk during the reference year and, thus, have not contributed to the establishment of the overall guaranteed quantity per Member State, fixed on the basis of quantities actually delivered in each Member State; whereas, by way of -contrast to the producers referred to in Article 3 of that Regulation, save those referred to in paragraph 3 of that Article, the same producers may invoke -an entitlement to allocation of a certain reference quantity, as the Court recognized in its abovementioned judgments; whereas, under- those conditions, the situation of the producers in question is characterized by the factors specific thereto; Whereas a reference production should therefore be set on - the basis of the most recent figures known and accepted by the competent authority prior to the implementation of the non-marketing and conversion programme ; Whereas, it is advisable in these circumstances, in order-to take account of the various interests involved, on the one hand to increase by 600000 tonnes the Community reserve fixed by Regulation (EEC) No 2237/88 (), in order to create -the necessary availability of .supplies so as to allow allocation of the necessary reference quantities to the producers concerned, and on the other hand to limit such quantities to 60 % of the abovementioned reference production taking into account the overriding necessity of not jeopardizing the fragile stability that currently obtains in the milk products sector ; Whereas the quantities granted are not intended to confer an undue advantage but must in fact be produced by those to- whom they are allocated; whereas such quantities should therefore be made subject to certain restrictive conditions ; Whereas where the producer has resumed production prior to receiving his special reference quantity, it seems fair not to subject the quantities thus produced to- the levy, within the limit of the reference quantity allocated ; Whereas Article 4a authorizes quantities which have not been used by purchasers or producers to be redistributed to other purchasers or producers ; whereas the levy is then collected only on those quantities which exceed the individual reference quantities, as corrected by the said redistribution ; whereas these provisions, which are applicable to the person liable to the levy and to the () OJ No L 197, 26. 7. 1988, p. 39.