Opinion of the Advocate-General



Opinion of the Advocate-General

Conclusion

76. For the reasons given above, I am of the view that the questions referred by the Finanzgericht Düsseldorf in Case C-5/06 should be answered as follows:

– Article 15 of Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the markets in the sugar sector requires that, when determining the exportable surplus, account should be taken only of those export quantities of sugar, isoglucose and inulin syrup in respect of which export refunds have actually been paid.

– Article 6(4) of Commission Regulation (EC) No 314/2002 of 20 February 2002 laying down detailed rules for the application of the quota system in the sugar sector, as amended by Commission Regulation (EC) No 1140/2003 of 27 June 2003, is invalid in so far as it does not reflect that interpretation of Article 15 of Regulation No 1260/2001.

– Commission Regulation (EC) No 1775/2004 of 14 October 2004 setting the production levies in the sugar sector for the 2003/04 marketing year is invalid in so far as those production levies are fixed on the basis of an incorrect interpretation of Article 15 of Regulation No 1260/2001.

77. For the same reasons, I consider that the first question referred by the Tribunal de Grande Instance de Nanterre in Joined Cases C-23/06 to C-36/06 should be answered as follows:

– Article 6(4) of Commission Regulation (EC) No 314/2002 of 20 February 2002 laying down detailed rules for the application of the quota system in the sugar sector, as amended by Commission Regulation (EC) No 1140/2003 of 27 June 2003, together with Commission Regulation (EC) No 1837/2002 of 15 October 2002 fixing the production levies and the coefficient for the additional levy in the sugar sector for the marketing year 2001/02, Commission Regulation (EC) No 1762/2003 of 7 October 2003 fixing the production levies in the sugar sector for the 2002/03 marketing year and Commission Regulation (EC) No 1775/2004 of 14 October 2004 setting the production levies in the sugar sector for the 2003/04 marketing year are invalid in the light of Article 15 of Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the markets in the sugar sector in so far as, with regard to calculation of the production levy, they do not provide for the exclusion from the ‘exportable surplus’ of the sugar contained in processed products which are exported without export refunds.

ANNEX

Regulation No 1260/2001 (the basic regulation)

Article 15 of the basic regulation provides, in so far as is relevant:

‘1. Before the end of each marketing year, the following shall be recorded:

(a) a forecast of the production of A and B sugar, A and B isoglucose and A and B inulin syrup attributable to the marketing year concerned;

(b) a forecast of the quantities of sugar, isoglucose and inulin syrup disposed of for consumption within the Community during the marketing year concerned;

(c) the exportable surplus obtained by subtracting the quantity referred to in (b) from the quantity referred to in (a);

(d) an estimate of the average loss or revenue per tonne of sugar for export obligations to be fulfilled during the current marketing year.

This average loss or revenue shall be equal to the difference between the total amount of refunds and the total amount of levies on the total tonnage of export obligations in question;

(e) an estimate of overall loss or revenue, obtained by multiplying the surplus referred to in (c) by the average loss or revenue referred to in (d).

2. Before the end of the 2005/06 marketing year and without prejudice to Article 10(3), (4), (5) and (6), the following shall be recorded cumulatively for the 2001/02 to 2005/06 marketing years:

(a) the exportable surplus established on the basis of the definitive production of A and B sugar, A and B isoglucose and A and B inulin syrup and the definitive quantity of sugar, isoglucose and inulin syrup disposed of for consumption within the Community;

(b) the average loss or revenue per tonne of sugar resulting from the total export obligations concerned, calculated using the method described in the second subparagraph of paragraph 1(d) above;

(c) the overall loss or revenue, obtained by multiplying the surplus referred to in (a) by the average loss or revenue referred to in (b);

(d) the sum total of the basic production levies and the B levies charged.

The estimate of overall loss or revenue referred to in paragraph 1(e) shall be adjusted by the difference between the amounts referred to in (c) and (d).

3. … should the figures recorded under paragraph 1 and adjusted under paragraph 2 result in a foreseeable overall loss, then that loss shall be divided by the estimated production of A and B sugar, A and B isoglucose and A and B inulin syrup attributable to the current marketing year. The resulting amount shall be charged to manufacturers as a basic production levy on their production of A and B sugar, A and B isoglucose and A and B inulin syrup.

However, this levy shall not exceed:

– for sugar, 2% of the intervention price for white sugar,

– for inulin syrup, expressed as sugar/isoglucose equivalent by applying a coefficient of 1.9, the maximum amount payable on white sugar, and

– for isoglucose, the share of the basic production levy borne by sugar manufacturers.

4. Should the maximum permitted basic production levy not fully cover the overall loss referred to in the first subparagraph of paragraph 3, the balance not covered shall be divided by the estimated production of B sugar, B isoglucose and B inulin syrup attributable to the marketing year in question. The resulting amount shall be charged to manufacturers as a B levy on their production of B sugar, B isoglucose and B inulin syrup.

However, subject to paragraph 5, this levy shall not exceed:

– for B sugar, 30% of the intervention price for white sugar,

– for B inulin syrup, expressed as sugar/isoglucose equivalent by applying a coefficient of 1.9, the maximum amount payable on B white sugar, and

– for B isoglucose, the share of the B levy borne by sugar manufacturers.

5. Where the figures recorded under paragraph 1 suggest that the foreseeable overall loss for the current marketing year is unlikely to be covered by the expected proceeds from the levies because of the ceilings on the basic production levy and the B levy fixed in paragraphs 3 and 4, then the maximum percentage referred to in the first indent of paragraph 4 shall be adjusted to the extent necessary to cover the overall loss, without exceeding 37.5%.

The revised maximum percentage for the B levy shall be fixed for the current marketing year before 15 September. The minimum price for B beet referred to in Article 4(1)(b) shall be adjusted accordingly.

6. All the losses resulting from the grant of production refunds under Article 7(3) shall be taken into account when calculating the overall loss referred to in paragraph 1(e).

7. The levies referred to in this Article shall be collected by the Member States.

8. Detailed rules for applying this Article shall be adopted in accordance with the procedure referred to in Article 42(2), and shall cover in particular:

– the amounts of the levies to be collected,

– the revised maximum percentage for the B levy,

– the adjusted minimum price for B beet corresponding to the revised maximum percentage for the B levy.’

Regulation No 314/2002 (the implementing regulation)

Article 6(4) and (5) of the implementing regulation as amended provide:

‘4. The quantities disposed of for consumption in the Community to be recorded under Article 15(1)(b) and (2)(a) of Regulation (EC) No 1260/2001 shall be established by totalling the quantities, expressed as white sugar, of the sugars and syrups indicated in Article 1(1)(a), (b), (c), and (d) and of isoglucose and inulin syrup:

(a) stored at the beginning of the marketing year;

(b) produced under quotas A and B;

(c) imported in the natural state;

(d) contained in imported processed products;

subtracting [from] the quantities referred to in the first subparagraph, [the quantities (42) ] expressed as white sugar, of sugar, isoglucose and inulin syrup:

(a) exported in the natural state;

(b) contained in exported processed products;

(c) stored at the end of the marketing year;

(d) for which certificates for production refunds as indicated in Article 7(3) of Regulation (EC) No 1260/2001 have been issued. (43)

Quantities as indicated in points (c) and (d) of the first subparagraph and in points (a) and (b) of the second subparagraph shall be extracted from the Eurostat databases and shall, if the figures for a marketing year are incomplete, cover the most recent 12 months available. Quantities produced under inward processing arrangements shall not be counted.

Quantities as indicated in point (c) of the first subparagraph and point (a) of the second subparagraph shall include those consigned to the Canary Islands, Madeira and the Azores covered by Article 1(1a) of Regulation (EEC) No 2670/81.

The quantities of sugar, isoglucose and inulin syrup in the products indicated in point (d) of the first subparagraph and point (b) of the second subparagraph shall be established on the basis of the average sugar contents established for the products concerned and of Eurostat figures.

Quantities as indicated in point (a) of the second subparagraph shall exclude C sugar, C isoglucose, C inulin syrup and food aid.

5. The following shall be regarded within the meaning of Article 15(1)(d) of Regulation (EC) No 1260/2001 as export obligations to be fulfilled during the current marketing year:

(a) all quantities of sugar to be exported in the natural state with export refunds or levies fixed by means of tenders opened in respect of that marketing year;

(b) all quantities of sugar, isoglucose and inulin syrup to be exported in the natural state with export refunds or levies fixed periodically on the basis of export licences issued during that marketing year;

(c) all foreseeable exports of sugar, isoglucose and inulin syrup in the form of processed products with export refunds or levies fixed for that purpose during that marketing year, such quantities being spread evenly over the marketing year.

For the calculation of the foreseeable average loss referred to in Article 15(1)(d) of Regulation (EC) No 1260/2001, the production refunds for the quantities of basic products expressed as white sugar for which certificates for the production refunds referred to in Article 7(3) of that Regulation have been issued during the course of the marketing year in question shall also be taken into account.’

(1) .

(42) – It is clear from other language versions (and indeed common sense) that the English text is wrong. The correct meaning is arrived at by including the words in square brackets.

(43) – Article 7(3) concerns sugar used in the chemical industry.