Opinion of the Advocate General — ECLI:EU:C:2012:196
Date: 2012-03-29
Language of the case: German
Subject matter: Agriculture and Fisheries;Sugar
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (First Chamber), 15November 2012 1. Agriculture — Common organisation of the markets — Sugar — Marketing year — Expiry — Surplus quantities — Calculation of the production levy — Reference period — Whether a surplus quantity which has come to light after the establishment of the final production figures for the previous marketing year is to be taken into account — Whether permissible where the surplus constitutes A or B sugar within the meaning of Article 24(1) of Regulation No 1785/81 (Council Regulation No 1009/67, Art. 23, and No 1785/81, as amended by Commission Regulation No 1148/98, Art. 24(1); Commission Regulation No 700/73, Art. 2(3), and No 1443/82, as amended by Regulation No 392/94, Art. 3(4)) 2. Agriculture — Common organisation of the markets — Sugar — Production quotas — Surplus quantity of sugar found by the authorities of a Member State during an a posteriori investigation carried out at the producer’s premises — Whether that surplus quantity is to be taken into account when establishing the final production figures for the current marketing year — Not permissible where such a surplus constitutes C sugar within the meaning of Article 24(1) of Regulation No 1785/81 (Council Regulations No 1785/81, as amended by Commission Regulation No 1148/98, Arts 24(1), 26(1) and 27(1) and (3); Commission Regulation No 1443/82, as amended by Regulation No 392/94, Art. 3(4)) 1. See the text of the decision. (see paras 44-47, 49) 2. Article 3(4) of Regulation No 1443/82 laying down detailed rules for the application of the quota system in the sugar sector, as amended by Regulation No 392/94, which provides that, where differences are found after the establishment of final production figures for sugar by each undertaking for the preceding marketing year, such differences are to be taken into account when final production figures are established for the marketing year in which the differences were found, must be interpreted as not being applicable in a situation in which a surplus quantity of sugar has been found by the national authorities in the context of an a posteriori investigation carried out at the producer’s premises if the surplus quantity constitutes C sugar within the meaning of Article 24(1) of basic Regulation No 1785/81 on the common organisation of the markets in the sugar sector, as amended by Regulation No 1148/98. Any interpretation of Article 3(4) of the basic regulation by which it was possible to attribute such sugar surpluses to the marketing year during which they came to light would have undermined the objective of the C sugar system, which was to prevent such sugar being disposed of on the internal market. Indeed, if it had been possible, under Article 3(4) of Regulation No 1443/82, for C sugar, in the same was as A and B sugar, to be taken into account when establishing the final production figures for the marketing year during which the difference was discovered, producers would have had no incentive to export such sugar surpluses or to declare them and carry them forward to the next marketing year. Thus, the possibility could not have been ruled out that producers might retain indefinitely the same sugar surpluses, which could be perpetually attributed to the marketing year during which they came to light, even though the sugar was in actual fact being carried forward from an earlier marketing year. Such a situation would not only have precluded any effective control of the marketing of C sugar but would also have infringed Article 27(3) of the basic regulation, which provided that the quantities of sugar allowed to be carried forward could be limited. The fact that the producer concerned was unaware of the existence of the surplus at the time when he submitted his final figures for sugar production is irrelevant. First, setting aside the difficulty entailed in substantiating such a claim, it is clear that a prudent trader aware of the rules must, in his assessment of the benefits which trading in sugar may confer, take account of the risks associated with the production of such goods, in particular the difficulty of identifying with any degree of certainty the quantity of sugar produced, and accept them as normal trade risks inherent in such production. Second, the system applicable to C sugar established by the legislation in question is based on objective criteria and is applicable irrespective of any fraudulent intent on the part of the producer. Accordingly, the charges to be levied in accordance with Article 27(3) of the basic regulation where C sugar was not exported within the period prescribed in Article 26(1) of that regulation, or where such sugar was placed on the domestic market, should be imposed irrespective of any fraudulent conduct on the part of the producer. (see paras 56-60, 62, operative part)