Opinion of the Advocate General — ECLI:EU:C:1997:521
Date: 1997-11-06
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Sugar
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment
1. Community law — Principles — Proportionality — Primary obligation and secondary obliga­
tion — Identical penalty — Not permissible
2. Agriculture — Common organisation of the markets — Sugar — Production in excess of the
quota (C sugar) — Charge imposed on sugar disposed of on the internal market — Levied
where sugar is exported, but customs formalities have not been completed — Principle of pro­
portionality — No breach
(Commission Reguhtions No 2670/81, Arts 2(2) and 3, and No 3183/80)
I-281
SUMMARY — CASE C-161/96
1. In order to establish whether a provision
of Community law is in conformity with
the principle of proportionality it is nec­
essary to ascertain whether the means
which it employs are appropriate and
necessary to attain the objective sought.
Where Community legislation makes a
distinction between a primary obligation,
compliance with which is necessary in
order to attain the objective sought, and a
secondary obligation, essentially of an
administrative nature, it cannot, without
breaching the principle of proportional­
ity, penalise failure to comply with the
secondary obligation as severely as failure
to comply with the primary obligation.
2. Compliance with the customs formalities
provided for on the export of sugar pro­
duced in excess of the quota (C sugar),
like the actual exportation, must be
regarded as forming part of the primary
obligations under the system in question,
in so far as those formalities are not only
intended to simplify administrative pro­
cedures but are also necessary to the
proper functioning of the quota system in
the sugar sector. They are not therefore to
be classed as secondary obligations of an
essentially administrative nature, failure
to comply with which cannot be pena­
lised as severely as infringement of a pri­
mary obligation without breaching the
principle of proportionality.
It is, in consequence, compatible with the
principle of proportionality to charge the
amount provided for by Article 3 of
Regulation No 2670/81, laying down
detailed implementing rules in respect of
sugar production in excess of the quota,
on C sugar, where the sugar in question
has unarguably been exported from the
Community but the customs formalities
have not been completed, with the result
that proof of exportation cannot be pro­
duced by means of copy No 1 of the
export licence bearing the necessary attri­
butions and endorsements, in accordance
with Article 2(2) of Regulation No
2670/81, read in conjunction with Regu­
lation No 3183/80, laying down common
detailed rules for the application of the
system of import and export licences and
advance fixing certificates for agricultural
products.
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