Opinion of the Advocate General — ECLI:EU:C:2007:346
Date: 2007-06-14
Language of the case: German;French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Sugar
Procedure: Reference for a preliminary ruling
Origin: Germany;France

Summary of the Judgment 1. Agriculture – Common organisation of the markets – Sugar (Council Regulation No 1260/2001, Art. 15(1)(b) and (c)) 2. Agriculture – Common organisation of the markets – Sugar (Council Regulation No 1260/2001, Art. 15(1)(d); Commission Regulations No 1837/2002, No 1762/2003 and No 1775/2004) 1. Pursuant to Article 15(1)(c) of Regulation No 1260/2001 on the common organisation of the markets in the sugar sector, for the purpose of calculating the exportable surplus, all the quantities of exported products which fall under that article must, regardless of whether or not refunds have actually been paid, be subtracted from consumption. As the exportable surplus is the difference between Community production under quotas A and B and consumption within the Community, the latter is not intended to include the quantities of exported products, regardless of whether they have or have not benefited from export refunds. The quantities of exported products cannot be considered to have been disposed of for consumption within the Community, within the meaning of Article 15(1)(b) of Regulation No 1260/2001. The exportable surplus includes quantities of products for the disposal of which Community support measures have been laid down. Moreover, if quantities exported without refunds were included in the account of consumption within the Community, that account would be overvalued. As a consequence, the exportable surplus would be underestimated. Thus, there is a risk that the objective pursued by the system of the self‑financing of the costs of disposing of surpluses – which has been to ensure, in a fair yet efficient way, that the producers themselves meet those costs in full – would not be achieved. (see paras 37‑39, 44‑45, 68, operative part) 2. Article 15(1)(d) of Regulation No 1260/2001 on the common organisation of the markets in the sugar sector is to be interpreted as meaning that all the quantities of exported products which fall under that article, regardless of whether or not refunds have actually been paid, are to be taken into account for the purpose of calculating the estimated average loss per tonne of product. The estimated total loss – obtained by multiplying the exportable surplus by the average loss – will be excessive if a product may be considered to have been exported for the purpose of calculating the exportable surplus but was not correspondingly taken into account for the purpose of the calculation of the average loss, the denominator of which is the total tonnage of export obligations to be fulfilled during the current marketing year. Thus, with the exception of the largely theoretical case in which all exports benefit from refunds, the system introduced by the Commission, by excluding from export obligations the quantities exported without refunds, inasmuch as it resulted, in practice, in fixing a priori the total loss at an amount greater than that of the costs linked to refunds, goes beyond the objective of Regulation No 1260/2001, and in particular beyond that of the equitable financing of the costs of disposing of Community production surpluses, in accordance with the principle of self‑financing. It follows that the method of calculating the average loss per tonne of sugar which takes into consideration only the quantities of exported products which actually gave rise to the payment of refunds does not comply with Article 15 of Regulation No 1260/2001. Consequently, Regulations No 1762/2003 and No 1775/2004 fixing production levies in the sugar sector for the marketing years 2002/03 and 2003/04, which apply that method, are invalid. By contrast, examination of Regulation No 1837/2002, which refers to the marketing year 2001/02, has not disclosed the existence of any factors liable to affect its validity since the average loss was calculated on the basis of the total quantities of sugar exported in the form of processed products, regardless of whether or not those exports had actually benefited from refunds. (see paras 53‑54, 60‑61, 63‑66, 68, operative part)