Opinion of the Advocate General — ECLI:EU:C:2009:97
Date: 2009-02-17
Language of the case: Estonian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Accession;Agriculture and Fisheries;Sugar
Procedure: Reference for a preliminary ruling
Origin: Estonia

Summary of the Judgment 1. Accession of new Member States to the Communities – Estonia – Agriculture – Common organisation of the markets – Transitional measures concerning trade in agricultural products (Commission Regulations No 1972/2003, Art. 4(1) and (2), No 60/2004, Art. 6(3), and No 832/2005) 2. Accession of new Member States to the Communities – Estonia – Agriculture – Common organisation of the markets – Transitional measures concerning trade in agricultural products (Commission Regulation No 1972/2003) 3. Accession of new Member States to the Communities – Estonia – Agriculture – Common organisation of the markets – Transitional measures concerning trade in agricultural products (Commission Regulations No 1972/2003, Art. 4, and No 60/2004, Art. 6) 4. Accession of new Member States to the Communities – Estonia – Agriculture – Common organisation of the markets – Transitional measures concerning trade in agricultural products (Commission Regulations No 1972/2003 and No 60/2004) 5. Accession of new Member States to the Communities – Estonia – Agriculture – Common organisation of the markets – Transitional measures concerning trade in agricultural products (Commission Regulation No 60/2004, Art. 6(3)) 6. Accession of new Member States to the Communities – Estonia – Agriculture – Common organisation of the markets – Transitional measures concerning trade in agricultural products (Commission Regulation No 1972/2003, Art. 10) 1. Article 4(1) and (2) of Regulation No 1972/2003 on transitional measures to be adopted in respect of trade in agricultural products on account of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia, Article 6(3) of Regulation No 60/2004 laying down transitional measures in the sugar sector by reason of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia, and Regulation No 832/2005 on the determination of surplus quantities of sugar, isoglucose and fructose for the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia do not preclude a national measure under which an operator’s surplus stock is determined by deducting from the stock actually held on 1 May 2004 the transitional stock defined as the average stock on 1 May of the previous four years of activity multiplied by a coefficient of 1.2 corresponding to the growth of agricultural production observed in the Member State in question during that period. When the new Member States determine surplus stocks of agricultural products under Regulation No 1972/2003 and stocks of sugar under Regulations No 60/2004 and No 832/2005, in the absence of more precise rules they have a discretion as to defining the relevant period, the method of calculating the averages of stocks available and the system for identifying excess stocks, in compliance with the objectives pursued by those regulations and the general principles of Community law. (see paras 37-38, 40, 51, operative part 1) 2. Regulation No 1972/2003 on transitional measures to be adopted in respect of trade in agricultural products on account of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia does not preclude the entire stock held by an operator on 1 May 2004 from being regarded as surplus stock if it is shown, on the basis of consistent evidence, that that stock is not normal in relation to the operator’s activity and has been built up for speculative purposes in order to benefit from the effect of accession on agricultural prices. (see paras 58-59, operative part 2) 3. Article 4 of Regulation No 1972/2003 on transitional measures to be adopted in respect of trade in agricultural products on account of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia and Article 6 of Regulation No 60/2004 laying down transitional measures in the sugar sector by reason of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia do not preclude a national measure under which an operator who has commenced an activity less than one year before 1 May 2004 is required to prove that the amount of stock he held at that date corresponds to the stock normally produced, sold, transferred or acquired for payment or without payment. There is no reason to suppose that the general principles of Community law and the objectives pursued by the regulations in question have been disregarded by such a national measure, since the State, because the activity in question is new, does not have any relevant factors of comparison. (see paras 63-64, operative part 3) 4. Regulation No 1972/2003 on transitional measures to be adopted in respect of trade in agricultural products on account of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia and Regulation No 60/2004 laying down transitional measures in the sugar sector by reason of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia do not preclude the levying of a charge on an operator’s surplus stock even if he is able to prove that he obtained no advantage when marketing that stock after 1 May 2004. Regulations No 1972/2003 and No 60/2004 aim not to penalise speculative conduct but to protect the common organisation of agricultural markets, in this case the market in sugar and associated products. The instruments introduced in that respect by those regulations apply to all surplus stocks within the meaning of those regulations, regardless of whether the holders of the stocks have actually derived an advantage from marketing them. (see paras 70-72, operative part 4) 5. Article 6(3) of Regulation No 60/2004 laying down transitional measures in the sugar sector by reason of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia cannot be interpreted as meaning that an increase in an operator’s storage capacity in the year preceding accession justifies a reduction of the surplus stock, regardless of the subsequent development of the economic activity of the holder of the stock, the volume processed and the amount of the stock. That provision confines itself to requiring the Member States concerned to take operators’ storage capacities into account in their overall assessment of all the relevant factors for the purpose of identifying surplus stocks. Those Member States are not, however, obliged under that provision to reduce systematically the surplus quantities of operators whose storage capacities have increased. Only if the increase in storage capacity has been accompanied by an increase in the level of subsequent activity does that factor have to be taken into account for assessing whether the stock held on 1 May 2004 is normal or surplus stock. (see paras 77-78, operative part 5) 6. Article 10 of Regulation No 1972/2003 on transitional measures to be adopted in respect of trade in agricultural products on account of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia does not preclude the validity of a tax notice received by an operator who is liable to pay the surplus stock charge after 30 April 2007, where it is shown that the notice was issued by the national authorities on or before that date. (see paras 84-85, operative part 6)