Opinion of the Advocate General — ECLI:EU:C:2006:322
Date: 2006-05-16
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Free movement of goods;Common customs tariff;Customs Union;Sugar
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment 1. Own resources of the European Communities – Repayment or remission of import duties – Article 13 of Regulation No 1430/79 (Council Regulation No 1430/79, Arts 1(2)(a) and 13; Commission Regulation No 2670/81, Art. 3) 2. Agriculture – Common organisation of the markets – Sugar – Production in excess of the quota (C sugar) (Council Regulation No 1785/81; Commission Regulation No 2670/81) 1. Article 13(1) of Regulation No 1430/79 on the repayment or remission of import or export duties, according to which import duties may be repaid or remitted in special situations which result from circumstances in which no deception or obvious negligence may be attributed to the person concerned, cannot serve as a basis for remission or repayment of a charge due under Article 3 of Regulation No 2670/81 laying down detailed implementing rules in respect of sugar production in excess of the quota for C sugar disposed of on the internal market. First, such a charge is levied not because a quantity of C sugar has crossed the external frontiers of the Community but, rather, because that quantity has not been exported outside the Community or because the conditions and time-limits laid down by Regulation No 2670/81 were not complied with when it was exported. Therefore, such a charge does not correspond to any of the three categories listed in Article 1(2)(a) of Regulation No 1430/79, namely customs duties, charges having equivalent effect, and agricultural levies, and, consequently, does not come under import duties within the meaning of Article 13 of the same regulation. Second, there is nothing to indicate that the Community legislature intended to treat a charge due under Article 3 of Regulation No 2670/81 in the same way as import duties referred to in Article 1(2)(a) of Regulation No 1430/79 for the purposes of the application of Article 13 of that regulation. Firstly, such a charge and the import duties referred to in Article 1(2)(a) of Regulation No 1430/79 do not pursue the same objectives. Secondly, it does not follow from either Article 26 of Regulation No 1785/81 or the third recital or Article 3 of Regulation No 2670/81 that the Community legislature intended that importers of sugar from non-member countries and producers of C sugar disposed of on the internal market be placed on an equal footing. Thirdly, the fact that the agricultural levies on imports and the other import charges referred to in Article 1(2)(a) of Regulation No 1430/79, on the one hand, and the charge due under Article 3 of Regulation No 2670/81, on the other, form part of the Community’s own resources is irrelevant for the purposes of determining whether that charge falls within the ambit of Article 13 of Regulation No 1430/79. The Community’s own resources are made up of receipts of a very diverse nature which come under systems which are equally diverse. In the third place, whilst, in certain exceptional cases, a trader may rely on an application by analogy of a regulation which does not normally apply to him, if he can show that the rules applicable to his case are very similar to those which it is sought to have applied by analogy and also contain an omission which is incompatible with a general principle of Community law and which can be remedied by the application by analogy of those other rules, a Community sugar producer liable to pay a charge under Article 3 of Regulation No 2670/81 is not in the same situation as an importer of sugar from non-member countries who is subject to import duties, so that those two types of trader are not subject to legal rules that are very similar. (see paras 32-35, 42, 46, 48, 51-52) 2. Without prejudice to the special cases expressly provided for by the Community legislature, there is no general legal principle in Community law that a Community provision which is in force may not be applied by a national authority if it causes the person concerned hardship which the Community legislature would clearly have sought to avoid if it had envisaged that eventuality when enacting the provision. Equity cannot therefore be regarded as allowing any derogation from the application of provisions of Community law, save as provided for by the legislation or where the legislation is itself declared invalid. The Community legislature did not afford the national authorities the possibility of granting remission or repayment, on equitable grounds, of a charge due under Article 3 of Regulation No 2670/81 laying down detailed implementing rules in respect of sugar production in excess of the quota for C sugar disposed of on the internal market. Consequently, save in the case of force majeure, Regulation No 1785/81 on the common organisation of the markets in the sugar sector and the said Regulation No 2670/81 do not permit the grant of a remission or repayment of such a charge. Moreover, the absence of a possibility of remitting or repaying, on equitable grounds, a charge owing under Article 3 of Regulation No 2670/81 does not infringe either the principle of equality or the principle of legal certainty. Concerning, first, the principle of equality, a C sugar producer is, in the first place, not in a comparable situation with that of an importer of sugar from non-member countries, since C sugar disposed of on the internal market cannot be placed on the same footing as imported sugar or treated in the same way. Secondly, the situation of a C sugar producer whose production gives rise to fraud cannot be compared to that of a producer whose C sugar is exported within the time-limits and under the conditions laid down in Article 1(1) of Regulation No 2670/81. Moreover, as regards the principle of legal certainty, by providing for the levying of a charge in all cases, except in the case of force majeure, in which a consignment of C sugar is not exported under the conditions or within the time-limits laid down in Article 1(1) of Regulation No 2670/81, Article 3 of that regulation constitutes a clear and precise provision. (see paras 63-66, 73-75, 77, 81-82)