9.

But, for the guideline laid down in Regulation No 700 of 1973 to be accepted as applying to previous years despite the absence of any express provision to this effect in legislation then in force, it is not enought merely to recognize its usefulness, practical value and consistency with the general objects of the common organization of the market in sugar: it is also important to make sure that it is not in conflict with any specific Community Regulation. In this respect, it is significant that Article 32, which enables surpluses to be carried forward to the next year, strictly limits the possibility to the case of a surplus in the immediately preceding sugar year and not in others. The German court asks whether it is possible to take account of quantities produced in years prior to the immediately preceding one: would not a calculation which took into account the surplus produced in the 1966/67 and 1967/68 sugar years in the return for the 1970/71 year in practice mean increasing the quanitity which can, under Article 32, be carried forward? The German court sees further confirmation of its doubts in the transitional rule in Article 33 which, to enable the surpluses of the 1967/68 marketing year to be carried forward to the 1968/69 marketing year, has been obliged to introduce a sort of legal fiction. In this context, an important consideration is that the fixing of the benefit consisting in the right to carry forward represents a restriction on the undertaking, and it is certainly not intended to prevent account being taken of production belonging to earlier years but whose tonnage was not included in returns during the year in which it occurred. The is accordingly no conflict between the guideline referred to earlier and the requirements of the basic Regulation. As for the reference in Article 3 to the quantity of sugar ‘actually manufactured’ by the undertaking for the purposes of Article 27 of Regulation No 1009/67, it should be noted that this is not necessarily a reference to the quantity of sugar actually manufactured in the course of the year in question. On the contrary, the requirement contained in this provision that the quantity actually manufactured by each undertaking must be taken into account means that account must be taken, albeit late, of the quantities manufactured by the undertaking in other years and which have not yet entered into the calculations. It is true that Article 1 (2) of Regulation No 142/69 of the Commission provides that, in calculating the quantity referred to under paragraph 1 of that Article which defines ‘sugar production’ within the meaning of Article 27, account shall not be taken of the quantities of white sugar produced from raw sugar or syrups which were produced before the marketing year in which white sugar was manufactured. As the German Government has correctly observed, however, this rule is designed to do no more than ensure that, when the sugar production levy is calculated, quantities which have already been taken into account because they were produced in the course of a previous marketing year are excluded from the calculation. Given its purpose, therefore, this provision does not conflict with a system of accounting which includes quantities which have not previously been taken into account. Moreover, it would cause serious distortion of the way in which the system works and would also have the effect of creating discrimination if the formula laid down in Article 2 (3) of the present Regulation, No 700/73, were now to be applied to the additional quantities, attributable to earlier marketing years, which came to light after the present Regulation came into force. These quantities could be subject to a supplementary production levy in the light of the production position of the undertaking in the current sugar year and it would be unfair not to apply the same rule to the additional quantities attributable to the same period which had been ascertained before 15 March 1973. Since, therefore, the principle of subsequent allocation of production established after the year in which it occurred is not in conflict with the specific provisions of the Regulations in force at the material time, and the principle accords with the general objectives of the system, its operational requirements and the need to avoid differences of treatment for which there is no objective justification between undertakings subject to the common mechanism of the market, it is reasonable to conclude that this principle is sufficient to cover the question left open by the legislation under review.