61996CC0269_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I - Introduction
1 This case raises the question whether an industrial installation where syrup is derived from sugar beet, and where white sugar is refined from a combination of raw cane sugar and beet syrup, is to be deemed to be a refinery for the purpose of the grant of certain aids for the marketing of raw cane sugar from the French overseas departments (hereinafter `DOM raw sugar'). (1)
In particular, it relates to the interpretation of Council Regulation (EEC) No 1785/81 of 30 June 1981 on the common organisation of the markets in the sugar sector (2) (hereinafter `the basic Regulation'), as amended by Council Regulation (EEC) No 1482/85 of 23 May 1985 (3) and by Council Regulation (EEC) No 2250/88 of 19 July 1988, (4) and of Council Regulation (EEC) No 2225/86 of 15 July 1986 laying down measures for the marketing of sugar produced in the French overseas departments and for the equalisation of the price conditions with preferential raw sugar. (5)
II - Legal and factual context
2 Sugar can be manufactured from sugar cane or from sugar beet.
The initial processing, resulting in both cases in either raw sugar or syrup, takes place at a sugar mill near the place where the plant is cultivated and harvested, in order to minimise the loss of sugar to which both plants are susceptible and, thus, to maximise the amount of sugar extracted.
The raw sugar or syrup is then refined in order to produce white sugar.
DOM raw sugar is normally shipped to Europe for refining, principally at refineries located near seaports such as, in the case of France, Nantes and Marseilles.
3 Article 3 of the basic Regulation provides for the fixing of an intervention price for Community white sugar.
In addition, Articles 4 and 5 provide, respectively, for a basic price for beet and for a minimum price for certain quantities of beet.
The basic price must take account of the processing margin and of the intervention price for white sugar. (6)
The intervention price for Community white sugar is not complemented by similar price mechanisms in respect of sugar cane or of raw sugar derived from cane. All Community white sugar is subject to a storage levy, imposed by Article 8(2) of the basic Regulation in order to fund a compensation system for storage costs established by paragraph (1) of that article, as well as to a production levy, imposed by Article 28(3) in order to finance export refunds for surpluses sold on the world market.
4 By virtue of Protocol No 8 of the Fourth ACP-EEC Convention, signed in Lomé on 15 December 1989, (7) and of the Agreement between the European Economic Community and the Republic of India on cane sugar, (8) the Community imports specified quantities of `preferential sugar', either raw or white, from the third countries concerned at guaranteed prices.
5 DOM raw sugar suffers certain disadvantages on the Community sugar market relative to preferential sugar and raw sugar.
DOM raw sugar is subject to both the storage and the production levies, which do not apply to preferential sugars.
The Community legislator has established a storage aid for DOM raw sugar in order to counteract this disadvantage. (9)
An additional aid has also been established in respect of DOM raw sugar to complement an adjustment aid granted by the Community to refineries which process preferential raw sugar. (10)
6 Article 9(4) of the basic Regulation (which I will hereinafter refer to, when the context permits, simply as `Article 9(4)') was amended by Regulation No 1482/85 so as to provide as follows:
`Appropriate measures shall be taken on the subject of the transport and storage costs of sugars produced in the French overseas departments, in order to permit these sugars to be marketed in the European regions of the Community.
To the extent necessary for the supply of refineries, provision may be made that raw sugar manufactured from beet harvested in the Community shall qualify for the same measures as those referred to in the first subparagraph.
For the purposes of this Article, "refinery" shall mean a production unit whose sole activity consists in refining either raw sugar or syrups produced prior to the crystallising stage.'
The amending Regulation No 1482/85 notes in its second recital the objective of ensuring `the regular supply of all Community refineries processing raw sugar into white sugar', while acknowledging that, `in addition to preferential sugar, these refineries require supplies of raw cane sugar produced in the French overseas departments and of raw beet sugar harvested in the Community'.
7 Article 9(4) was supplemented as follows by Annex I, List XIV(c)(2) to the Act of Accession of the Kingdom of Spain and the Portuguese Republic to the European Communities: (11)
`However, with regard to the sugar-producing undertaking, situated in the Autonomous Region of the Azores, this undertaking shall be considered to be a refinery within the meaning of this paragraph for refining unrefined beet sugar up to a quantity limit expressed in white sugar equal to the difference between the actual production achieved within the framework of quotas A and B and 20 000 tonnes.'
8 Article 36(3) of the basic Regulation defined a refinery in the same terms as the third subparagraph of Article 9(4), for the purposes of an exception to the differential charge on raw preferential sugar where such sugar `is intended for refining in a refinery'.
Article 36(2)(b) also permitted the non-application of the charge in respect of raw preferential sugar imported into particular regions of the Community `which is refined in a production unit other than a refinery'. (12)
A refinery was also defined in the same terms as in the third subparagraph of Article 9(4) by Article 9(7) of its legislative predecessor, Council Regulation (EEC) No 3330/74 of 19 December 1974 on the common organisation of the market in sugar, (13) as amended by Council Regulation (EEC) No 2623/75 of 13 October 1975. (14)
Article 9(3) of Regulation No 3330/74, as amended, permitted the award of a grant for DOM raw sugar `refined either in a refinery or in some other production unit situated in the Community'. (15)
9 Article 9(4b) of the basic Regulation, inserted by Article 1(1) of Regulation No 2250/88, provided that `adjustment aid shall, as an intervention measure, be granted to the Community's preferential raw cane sugar refining industry', at a specified rate, for specified quantities, in respect of sugar refined into white sugar at the refineries referred to in the third subparagraph of Article 9(4).
Article 9(4b) also provided that an equivalent amount of `additional aid ... shall be granted for the refining, in the refineries referred to in the third subparagraph of paragraph 4, of raw cane sugar produced in the French overseas departments, in order to restore the price balance between that sugar and preferential sugar'.
Such aid could also be provided for raw sugar obtained from beet where the provisions of the second subparagraph of Article 9(4) were applied.
These aids are now provided for, subject to similar conditions, by the new Title IV of the basic Regulation inserted by Regulation No 1101/95.
Article 37 of the basic Regulation, as thereby amended, also provides for a reduced rate of duty on `special preferential' raw cane sugar, (16) `in order to ensure adequate supplies to the Community refineries referred to in Article 9(4)', and sets out the estimated maximum supply needs per marketing year of the refining industries of Finland, metropolitan France, continental Portugal and the United Kingdom.
It appears that the refining industries of Finland, continental Portugal and the United Kingdom are almost exclusively cane-based, while there are two exclusively cane-based refining plants in France, at Nantes and Marseilles.
The eleventh recital in the preamble to Regulation No 1101/95 states that `refining produces high-quality products from sugar cane' and that `the port-related refining industry is ..., for the Community, a valuable complement to the beet processing industry'.
10 Article 3 of Regulation No 2225/86 provides for the grant of storage aid for sugars produced in the French overseas departments.
The aid is contingent on the sugars in question having been `refined in a refinery in the European regions of the Community'.
Article 3 of Regulation No 2225/86 does not define a refinery, but the first recital in the preamble refers to the statement in Article 9(4) of the basic Regulation that appropriate measures are to be taken in respect of the transport and storage costs of DOM raw sugar.
Article 3(2) of Regulation No 2225/86 states that the storage aid shall be granted `within the limits of the quantities to be determined according to the regions of the Community in which the refining is likely to take place and separately according to the originating French overseas department or departments in question'.
These quantities are to be determined `on the basis of a Community supply balance sheet for raw sugar and for their refining in the European regions of the Community concerned'. (17)
The fourth recital in the preamble to Regulation No 2225/86 describes the aids established therein as `enabling, on the one hand, the marketing in the European regions of the Community of the raw sugar produced by the French overseas departments and, on the other hand, the refining of that sugar in those regions'.
The second recital refers to the need to enable, `in particular, Portuguese refineries to be supplied with this sugar under price conditions similar to those obtaining for preferential sugars'.
The second subparagraph of Article 3 of Regulation No 2750/86 of 3 September 1986 laying down detailed rules for the application of measures for the marketing of sugar produced in the French overseas departments and amending for the fourth time Regulation (EEC) No 3016/78 provides that, for the purposes of granting the storage aid, `refining' means the conversion of raw sugar into white sugar. (18)
11 The applicant in the main proceedings, Société des Sucreries et Raffineries d'Erstein (hereinafter `Erstein'), is a sugar manufacturer established in Alsace.
Its industrial facilities include a plant which transforms sugar beet into sugar syrups or raw sugar and a refining plant which transforms syrups and raw sugar into white sugar.
The syrups and raw sugar used in the refining plant are derived both from beet and from sugar cane, which are mixed in order to obtain an end product of consistent quality.
Erstein states that its facility is unique in that it can operate on the basis of both beet and cane. Erstein purchased raw cane sugar in Guadeloupe in 1993 which it proceeded to use in its refining plant in 1993 and 1994.
It applied on several occasions to the Fonds d'Intervention et de Régularisation du Marché du Sucre (the French sugar intervention agency, hereinafter `the FIRS') for storage aid pursuant to Article 9(4) of the basic Regulation and Article 3(1) of Regulation No 2225/86 and for additional aid pursuant to Article 9(4b) of the basic Regulation.
These applications were rejected by the director of the FIRS, in a series of decisions from 28 March 1994 to 7 February 1995, on the grounds that Erstein had not shown that DOM raw sugar and beet syrup were processed separately and at separate periods at its facility, and that its refining plant did not, thus, constitute a `refinery' for the purposes of the aid rules. (19)
Erstein sought the annulment of these decisions before the Tribunal Administratif de Paris (the Administrative Court of Paris, hereinafter `the national court'), on the grounds that they were based on an erroneous interpretation of the Community rules in question.
12 The national court, considering that it was necessary for its decision in the case, suspended the proceedings before it and referred the following questions to the Court for a preliminary ruling pursuant to Article 177 of the Treaty establishing the European Community:
`In an industrial site which processes sugar beet into white sugar, in which the first-stage installations take delivery of the sugar beet, process it and extract the sugar-bearing liquids and the second-stage installations convert into white sugar the liquids and syrups in question, which can be enriched by the addition of raw cane sugar from the French Overseas Departments, can the said second-stage installations, for the purposes of the grant of refining aids for the refining of that sugar from the Overseas Departments, be regarded at all times as a "production unit" and as a "refinery" within the meaning of Regulations (EEC) Nos 1785/81, Article 9, and 2225/86 mentioned above?$
If the answer is no, can such a complex of installations, intermittently and for non-continuous periods, be regarded as a "production unit" and as a "refinery" within the meaning of those regulations?$
And finally, if the answer to the preceding question is yes, must those periods be limited to those in which the processing of raw cane sugar into white sugar is carried out at a different time from the processing of syrups extracted from sugar beet in the first-stage installation on the same industrial site?'
III - Observations and analysis
13 Written observations were submitted by Erstein, the Federal Republic of Germany, the French Republic, the Portuguese Republic and the Commission of the European Communities.
Oral observations were presented by Erstein, France, the United Kingdom of Great Britain and Northern Ireland, and the Commission.
14 Erstein argues that all sugar-refining plants fall within the definition of a refinery in the third subparagraph of Article 9(4) of the basic Regulation.
It submits that `raw sugar' and `syrups produced prior to the crystallising stage' are not necessarily exclusively derivatives of cane and beet, respectively.
Furthermore, raw sugar manufactured from beet is expressly referred to in the second subparagraph of Article 9(4).
In addition, the objective of aiding the marketing of sugar from French overseas departments would not be advanced by confining aid to refining plants exclusively devoted to processing raw cane sugar, which would penalise more advanced, mixed manufacturers and would constitute an unlawful discrimination contrary to Article 40(3) of the Treaty.
15 I cannot accept this argument.
As France and the United Kingdom have stated, a definition of a refinery `for the purposes of' Article 9(4) of the basic Regulation which extended to all types of sugar-refining facility would be pointless.
It would also be inconsistent with a number of clear indications, both within and without that article, that the definition is intended to serve a purpose.
The qualification added by the fourth subparagraph of Article 9(4), with regard to a beet-refining undertaking in the Azores, implies that this undertaking would not otherwise have been covered by the definition.
The former Article 36(2)(b) of the basic Regulation and Article 9(3) of Regulation No 3330/74 both expressly envisaged the existence of production units, other than refineries (defined in the same terms as in the provision at issue in this case), where sugar was, none the less, refined. (20)
16 Furthermore, an extended interpretation of the definition of a refinery in Article 9(4) would be inconsistent with the objectives of the aids in question, which have been invoked in favour of a variety of more restrictive approaches by the Commission and by the Member States which have submitted observations.
The Commission and France invoke the dual objectives of directly aiding the marketing of DOM raw sugar, which is in competition with preferential sugars, and of ensuring the continuing supply and viability of certain traditional port-related refining plants, which process exclusively raw cane sugar and which are in a relationship of mutual dependence with the producers of DOM raw sugar, thus assuring to the latter a permanent outlet.
The needs of Portuguese refineries are directly referred to in the second recital in the preamble to Regulation No 2225/86.
Although the general reference to the role of the `port-related refining industry' in the eleventh recital in the preamble to Regulation No 1101/95 and the express identification in Article 37 of the basic Regulation, as amended by Regulation No 1101/95, of the needs of the refining industries of Finland, metropolitan France, continental Portugal and the United Kingdom postdate the decisions which are the subject of the present litigation, storage aid for DOM raw sugar has from the outset been confined to refiners in metropolitan France, Portugal and the United Kingdom, where there are significant, exclusively cane-based refining plants. (21) On the other hand, the agent for France stated at the oral hearing that the DOM raw sugar processed by Erstein benefited from transport aid under Article 2 of Regulation No 2225/86, which aid serves quite different objectives.
17 The Commission and Germany add that the cost structure of such cane-based refining plants is very different from that of plants which extract and refine sugar from beet, and that competition would be distorted and the aid dispersed by its allocation to the latter whenever they also used some raw cane sugar.
In similar vein, counsel for the United Kingdom referred at the oral hearing to three objectives:
the need to maintain a balance between the positions of specialist cane-based refiners and of beet-based refiners, in the light of the cost advantages enjoyed by the latter, as well as the two objectives discussed in the immediately preceding paragraph.
The competition between traditional cane-based and primarily beet-based refiners could also lead to difficulties for the former in obtaining supplies.
The Commission states, in particular, that beet-based refiners benefit from an institutionalised processing margin, as the prices of both their raw material and their end product are governed by Community pricing mechanisms, whereas cane-based refiners do not, because there is no basic or minimum price for sugar cane, nor is there a target price for raw cane sugar.
18 I am reluctant to attribute the same interpretative significance to these considerations as I do to those discussed in paragraph 16 above.
First, the competition between cane-based refiners, on the one hand, and those who refine exclusively from beet or, in Erstein's case, from beet and cane, on the other, is not referred to in the relevant legislation.
Secondly, the economic consequences of the differences in the organisation of the markets in beet and cane are neither clear nor undisputed.
For example, counsel for Erstein maintained at the oral hearing that the absence of institutional prices for cane or raw cane sugar constitutes an advantage for refiners who use these raw materials rather than a handicap, presumably because it frees their hands to force down the prices charged by cane producers.
However, this line of analysis does serve to emphasise the interest of cane-based refiners in security of supply if they are to continue to provide a guaranteed outlet for DOM raw sugar.
As counsel for the United Kingdom stated at the oral hearing, any shortfall caused by the diversion of amounts of raw cane sugar calculated on the basis of the needs of such specialist refiners would force them to use more expensive raw sugar imported subject to heavy tariffs.
19 The Commission and the Member States which have submitted observations put forward three possible readings of the definition of a refinery in Article 9(4) which take into account these objectives.
One, suggested by France, is that a refinery is an installation which refines exclusively raw sugar or exclusively syrups, but not both together.
It states that this view is supported by the form of disjunctive used in the French text, at least. (22) It seems to assume that this interpretation would result in a rigid distinction between cane-based refining, employing raw cane sugar, on the one hand, and, on the other, both beet-based refining using syrups (in plants which would qualify as refineries but which would not benefit from an aid for DOM raw sugar) and refining using raw (cane) sugar and (beet-derived) syrups.
Another possible interpretation is the more overtly purposive one favoured by the Commission, which expressly favours exclusively cane-based refining facilities.
However, industrial sites where the refining of raw cane sugar is temporally distinct from beet-based sugar production would also satisfy its purposive criteria, in particular regarding cost structures, and should also qualify, to that extent, for aid. (23)
During such periods, their `sole activity' would consist in the refining of raw cane sugar.
20 Neither of these interpretations attributes any special significance to the definition of a `production unit';
the Commission's approach implicitly treats a refining plant as the relevant production unit, even if it is part of a larger industrial facility.
The third possibility is that initially propounded by Germany and Portugal, which was seemingly also supported by France in its written observations, and which was developed in greater detail at the oral hearing by the United Kingdom.
They argue or imply that the entire industrial site of a sugar-producing undertaking constitutes the production unit referred to in the third subparagraph of Article 9(4), so that the refining plant of a larger site which also contains a sugar mill for first-stage sugar extraction would not satisfy the condition that a production unit have as its sole activity the refining of raw sugar and syrups.
Counsel for the United Kingdom spoke of `specialist' or `pure refineries'. (24)
This argument, in the case of refining in the European regions of the Community, effectively confines the status of refinery to plants dealing with cane sugar, as the upstream sugar-extraction process takes place in sugar mills in the non-European regions where cane is cultivated. It appears from the Commission's pleadings that there is no market in raw beet sugar or beet syrups which would permit these products to be refined in a refinery, so defined, independently of the initial sugar-extraction process;
the second subparagraph of Article 9(4) may none the less be construed as envisaging this as an exceptional possibility, when raw cane sugar supplies are unavailable.
21 I do not accept France's principal argument about the refining either exclusively of raw sugar or exclusively of syrups.
While this argument attributes central significance to the term `sole activity' in the material provision, it ultimately fails, in my view, because it is based on a misconception of the sugar-production process. It appears to be the case that sugar can be extracted from both cane and beet in the form of both raw sugar and syrups.
In fact, as counsel for Erstein remarked at the oral hearing, the second subparagraph of Article 9(4) refers to `raw sugar manufactured from beet'.
That subparagraph also clearly envisages that refineries, as defined in the third subparagraph, may sometimes wish to refine on the basis of beet.
If the distinction between raw sugar and syrups and that between cane and beet are not exactly coextensive, the strict isolation of the refining of raw sugar from that of syrups does not serve in any way the objective of securing the refining and marketing of DOM sugar.
I should add that France's argument is not, in any event, convincing on a textual level, having regard to all the language versions of Article 9(4) applicable at the material time. (25)
22 Nor do I accept the Commission's argument for the inclusion in the category of refineries of industrial facilities where cane and beet are refined in the same plant but in a temporally distinct fashion.
First of all, there is nothing in the text of Article 9(4) to suggest that the term `sole activity' relates to a plant's sole activity only at any given time.
Furthermore, any competitive advantage gained by refining beet and raw cane sugar together, by using the lower cost structure of beet-based refining to cross-subsidise the use of raw cane sugar, to the detriment of exclusively cane-based refiners, will also be available where the same quantities are refined separately in the same plant, as the capital and current costs will remain essentially the same.
As counsel for the United Kingdom observed at the oral hearing, the additional refining of raw cane sugar by a beet-based plant could be done at marginal cost.
If beet supplies are insufficient to keep a refining plant in operation at full capacity, for example, outside the beet harvesting campaign, additional production via cane-based refining could be attractive in order to spread the capital and other fixed costs of the plant.
A cost base thus reduced, fortified by the indiscriminate grant of storage aid, could enable such plants to obtain DOM raw sugar supplies by outbidding exclusively cane-based refiners, and thereby endanger, in the short term, the adequacy of supplies to the latter and, in the longer term, the existence of dedicated refining outlets for DOM raw sugar.
23 In my view, the third interpretation outlined above is to be preferred.
A refinery, within the meaning of the third subparagraph of Article 9(4), is an industrial site or facility whose sole activity consists in refining either raw sugar or syrups into white sugar, to the exclusion of the upstream extraction of sugar from sugar-bearing plants such as beet or cane.
The crucial aspect of this interpretation is that Article 9(4) thereby establishes a dichotomy between the refining stage and the preceding sugar-extraction stage, when raw sugar and syrups are produced.
This dichotomy permits the aid schemes established by Article 3 of Regulation No 2225/86 and by Article 9(4b) of the basic Regulation to be restricted to refining facilities which normally process exclusively cane sugar, in accordance with the objective of securing the relationship of mutual dependence and security of supply between these refineries and the producers of DOM raw sugar.
24 Furthermore, this interpretation seems to be most in keeping with the wording of Article 9(4) and with its legislative context, in so far as it permits a restrictive definition of refineries by giving meaning to the terms `production unit' and `sole activity' used in that provision.
It is consistent with the confinement of aid-assisted DOM raw sugar to a number of Member States which host exclusively cane-based refineries, (26) whose needs are apparently used to calculate the distribution of storage aid, and whose activities would be prejudiced by the aid-assisted entry of primarily beet-based plants onto the market for DOM raw sugar.
This interpretation is in no way contradicted by the reference to beet in the second subparagraph of Article 9(4).
That provision states that raw beet sugar will be aid-assisted only to the extent necessary for the supply of refineries, indicating that not all beet or beet-based refining would benefit from such aid.
In my view, that provision is designed to ensure that refining plants which are normally exclusively cane-based can have recourse to aid-assisted raw beet sugar when supplies of raw cane sugar are unavailable.
Otherwise, they might be forced to cease operation, to the ultimate detriment of the producers of DOM raw sugar.
25 This interpretation is not affected by the fact, raised by counsel for Erstein at the oral hearing, that it has the sole plant in Europe capable of refining on the basis of both cane and beet.
Even if it were the case that it alone would not divert excessive amounts of DOM raw sugar from specialist cane refineries, it cannot be excluded that other refiners would similarly adapt their facilities in order to engage in marginal aid-assisted cane-based refining if aid were available.
It should also be obvious from the preceding discussion that I do not accept Erstein's discrimination argument.
The costs, supply channels, and relationship with DOM sugar producers of, respectively, specialist cane refiners and a mixed refiner such as Erstein are sufficiently different to justify a difference in treatment regarding the grant of aid.
IV - Conclusion
26 In the light of the foregoing, I recommend that the Court answer the questions referred by the Tribunal Administratif de Paris as follows:
In an industrial site which processes sugar beet into white sugar, in which the first-stage installations take delivery of the sugar beet, process it and extract the sugar-bearing liquids and the second-stage installations convert into white sugar the liquids and syrups in question, which can be enriched by the addition of DOM raw sugar, the said second-stage installations cannot be regarded as constituting, either permanently or intermittently, a `production unit' or a `refinery' within the meaning of Article 9(4) of Council Regulation (EEC) No 1785/81 and of Article 3 of Council Regulation (EEC) No 2225/86.
(1) - `DOM' is the common acronym in French for départements d'outre-mer.
(2) - OJ 1981 L 177, p. 4.
(3) - OJ 1985 L 151, p. 1.
(4) - OJ 1988 L 198, p. 28.
(5) - OJ 1986 L 194, p. 7.
(6) - Article 4(2) of the basic Regulation.
(7) - Commonly referred to as the Fourth Lomé Convention, which was approved by and annexed to Council Decision 91/400/ECSC, EEC of 25 February 1991, OJ 1991 L 229, p. 1.
(8) - Concluded by and annexed to Council Decision 75/456/EEC of 15 July 1975, OJ 1975 L 190, p. 35.
(9) - See paragraphs 6 and 10 below.
A transport aid has also been established for sugars produced in the French overseas departments by Article 2 of Regulation No 2225/86 to offset the fact that prices for Community sugar are fixed on an f.o.b. (`free on board') basis (see Article 3(3) of the basic Regulation), whereas guaranteed preferential sugar prices refer to sugar c.i.f. (`cost, insurance, freight') European ports of the Community (see Article 5(4), Protocol No 8 to the Fourth Lomé Convention).
(10) - See paragraph 9 below.
(11) - OJ 1985 L 302, p. 1.
This additional subparagraph of Article 9(4) was deleted by Article 1 of Council Regulation (EEC) No 1548/93 of 14 June 1993, OJ 1993 L 154, p. 10.
(12) - These provisions were replaced by Article 1(12) of Council Regulation (EC) No 1101/95 of 24 April 1995 amending Regulation (EEC) No 1785/81 on the common organisation of the market in the sugar sector and Regulation (EEC) No 1010/86 laying down general rules for the production refund on certain sugar products used in the chemical industry, OJ 1995 L 110, p. 1, which is discussed further in the paragraph immediately below.
(13) - OJ 1974 L 359, p. 1.
(14) - OJ 1975 L 268, p. 1.
(15) - Article 46 of Regulation No 3330/74, as amended, provided for a differential charge in terms equivalent to those of Article 36 of the basic Regulation, as originally enacted.
(16) - That is, sugar imported from the ACP countries and India other than preferential sugar, as defined in Protocol No 8 of the Fourth Lomé Convention and in the Agreement between the European Economic Community and the Republic of India on cane sugar.
(17) - The Annex to Commission Regulation (EEC) No 2750/86 of 3 September 1986 laying down detailed rules for the application of measures for the marketing of sugar produced in the French overseas departments and amending for the fourth time Regulation (EEC) No 3016/78, OJ 1986 L 253, p. 8, broke down the European regions, for the purposes of applying Article 3(2) of Regulation No 2225/86 in the 1986/87 marketing year, into metropolitan France, Portugal, the United Kingdom, and `the other regions of the Community'.
This break-down was maintained in subsequent regulations, without any quantity of DOM raw sugar being attributed to `the other regions';
see, for example, in respect of the period material to the present case, Commission Regulation (EEC) No 2930/93 of 25 October 1993, OJ 1993 L 265, p. 8.
(18) - These terms are defined by Article 1(2)(a) and (b) of the basic Regulation.
It is strange that refining should be defined, for the purposes of storage aid, by reference to the conversion of raw sugar into white sugar, whereas Article 9(4) of the basic Regulation (in which raw sugar is defined) defines a refinery, for the purpose of the same storage aid, as a production unit whose sole activity consists in refining either raw sugar or syrups. However, nothing seems to turn on this apparent inconsistency in the present case.
(19) - It appears that Erstein later complied with the criterion of temporally distinct refining on the basis of cane and of beet, and was awarded storage aid in the 1996/97 marketing year.
(20) - France also submits that a restrictive definition is implicit in the confinement to refineries, as defined in Article 9(4), of licences to import and refine special preferential sugar by Article 2 of Commission Regulation (EC) No 1916/95 of 2 August 1995 laying down detailed rules of application for the importation under preferential agreements on tariff quotas of raw cane sugar for refining, OJ 1995 L 184, p. 18.
(21) - See, for example, Regulation No 2750/86 and Regulation No 2930/93, both of which are discussed in footnote 17 above.
(22) - The French text refers to `une unité technique dont la seule activité consiste à raffiner soit du sucre brut, soit des sirops produits en amont du sucre à l'état solide'.
France acknowledges that other linguistic versions do not express clearly the notion of alternatives. To this end, Erstein cites the Spanish, Italian and German texts, which, respectively, define a refinery, or refineries, as follows:
`una unidad técnica cuya actividad única consista en refinar, bien azúcar terciado, bien jarabes producidos con anterioridad al azúcar en estado sólido';
`un'unità tecnica la cui unica attività consiste nella raffinazione di zucchero greggio o di sciroppi prodotti prima della fase zucchero allo stato solido';
and (as amended by a corrigendum, OJ 1985 L 177, p. 21) `technische Einheiten, deren einzige Tätigkeit darin besteht, Rohzucker oder als Vorstufe für Zucker in fester Form hergestellte Sirupe zu raffinieren'.
(23) - The Commission view was conveyed to the FIRS by a letter of 7 July 1993, and formed the basis for its decision to reject Erstein's aid applications.
(24) - She stated that the latter term was drawn from the Commission's Common Agricultural Policy Working Notes for the marketing year 1996/97.
(25) - The other language versions, apart from those already quoted, read as follows:
`I denne artikel forstås ved raffinaderi:
et anlæg, hvis virksomhed udelukkende består i raffinering af råsukker eller af sirup, som er fremkommet inden det stadium, på hvilket der produceres sukker i fast form' (Danish);
`In dit artikel wordt onder raffinaderij verstaan een technische eenheid waarvan de enige activiteit bestaat in het raffineren van hetzij ruwe suiker, hetzij stropen die een tussen stadium in de produktie van vaste suiker vormen' (Dutch);
`Na acepção do presente artigo, entende-se por refinaria uma unidade técnica cuja única actividade consiste em refinar quer açúcar bruto, quer xaropes produzidos acima do açúcar no estado sólido' (Portuguese);
`ÊáôÜ ôçí Ýííïéá ôïõ ðáñüíôïò Üñèñïõ, ùò åñãïóôÜóéï ñáöéíáñßóìáôïò íïåßôáé ìéá ôå÷íéêÞ ìïíÜäá ôçò ïðïßáò ç ìüíç äñáóôçñéüôçôá åßíáé íá ñáöéíÜñåé åßôå áêáôÝñãáóôç æÜ÷áñç åßôå óéñüðéá ðïõ Ý÷ïõí ðáñá÷èåß ðñéí áðï ôçí ðáñáãùãÞ æÜ÷áñçò óå óôåñåÜ êáôÜóôáóç' (Greek).
(26) - See footnote 17 above.