OPINION OF ADVOCATE GENERAL

SHARPSTON

delivered on 29 March 2012 ( 1 )

Case C‑131/11

Pfeifer & Langen Kommanditgesellschaft

v

Hauptzollamt Aachen

(Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany))

‛Common organisation of the markets in the sugar sector — Establishment of final sugar production figures in respect of a marketing year — Surplus quantities of white sugar discovered by the competent authorities of a Member State after the end of the marketing year under investigation — Obligation to take sugar surpluses into account for the marketing year under investigation or for that in which they are established’

1. In this reference from the Finanzgericht Düsseldorf (Germany), the Court is asked whether sugar surpluses found by the national authorities during the course of an investigation should be allotted to the marketing year in which their existence is established or with retrospective effect to the year under investigation.

Legislation

The common organisation of the markets in the sugar sector

2. On 1 July 1968 Regulation No 1009/67/EEC of the Council ( 2 ) introduced a system of support for sugar. Sugar produced and sold during a marketing year within the maximum quota benefited from financial support (‘the intervention measures’). The Member States allocated quotas (introduced in Article 23 of Regulation No 1009/67) to sugar producers within their respective territories for each marketing year. Provision was also made for a Community ( 3 ) system to finance the costs of the intervention measures. Those costs were borne within certain limits by all Community producers, through payment of a production levy, whilst the remaining costs were covered by the Community budget. ( 4 ) Any sugar produced surplus to the maximum quota could not be sold on the internal market and did not benefit from the intervention measures.

The basic regulation

3. From 1 July 1981 Council Regulation (EEC) No 1785/81 ( 5 ) (‘the basic regulation’) applied.

4. The 11th recital to the preamble explained that: ‘… the reasons which have hitherto led the Community to retain a production quota system for sugar … remain valid; … however, changes should be made in that system to take account of recent developments in production and to provide the Community with the instruments necessary to ensure, in a fair yet efficient way, that the producers themselves meet in full the cost of disposing of the surpluses of Community production over consumption; …’

5. The 15th recital stated that: ‘… the production quotas allocated to undertakings constitute a means of guaranteeing producers Community prices and an outlet for their production …’

6. The basic regulation introduced a new quota system. In that respect it laid down that minimum prices should be fixed each year for A beet and for B beet. ( 6 ) There were at the relevant time three classes of production in the sugar sector. A and B production was that generated within quotas corresponding in principle, respectively, to demand on the internal market and to exports of excess sugar with export refunds. C sugar was produced outside those quotas and could not be freely marketed within the EU; it had to be exported without refund at the expense of the sugar industry. ( 7 ) Furthermore the beet used to produce C sugar did not benefit from the price support measures. Thus, the second subparagraph of Article 24(1) provided: ‘... (a) “A sugar” ... mean[s] any quantity of sugar ... the production of which is attributable to a specific marketing year and which is produced by the undertaking concerned within its A quota; (b) “B sugar” ... mean[s] any quantity of sugar ... the production of which is attributable to a specific marketing year and which is produced by the undertaking concerned outside its A quota but within the sum of its A and B quotas; (c) “C sugar” ... mean[s] any quantity of sugar the production of which is attributable to a specific marketing year and which is produced either by the undertaking concerned outside the sum of its A and B quotas or by an undertaking which has no quota.’ ( 8 )

7. Article 26 prohibited the disposal on the Community’s internal market of C sugar which had not been carried forward under Article 27. Such sugar had to be exported before 1 January of the calendar year following the marketing year in question. Article 26(3) provided for a charge to be levied in the absence of proof that C sugar had been exported within the prescribed period.

8. Article 27(1) provided: ‘Each undertaking shall be free to decide to carry forward the whole or part of its sugar production outside its “A” quota to the next marketing year to be treated as part of that year’s production. That decision shall be irrevocable.’ ( 9 )

9. Article 28 laid down the principle that producers themselves should meet the full cost of disposal of surpluses that arose from the difference between Community production and consumption of sugar in the internal market. The entire production of A and B sugar was therefore subject to a production levy. The calculation of that levy involved two stages. A provisional levy was first established, based upon estimated figures for the current marketing year. ( 10 ) Then, before the end of the following marketing year, the final figures for sugar production in the preceding marketing year were established. ( 11 )

10. Article 28(3) stated: ‘When the recorded figures referred to in paragraph 1 result, after adjustment in accordance with paragraph 2, and without prejudice to Article 29(1), in an estimated overall loss, that loss shall be divided by the estimated production of A and B sugar … attributable to the current marketing year. An amount equal to this quotient shall be charged on manufacturers as a basic production levy on their production of A and B sugar …’

11. The system laid down in Article 28 set a ceiling to the amount of the basic production levy. When, on account of that ceiling, the basic production levy did not fully cover the overall loss (the total cost of disposing of the surpluses), the basic regulation provided for charging an additional levy on the B quota (the ‘B levy’). ( 12 )

12. Implementing rules for the application of the sugar system were adopted under Article 41 of the basic regulation. ( 13 )

The implementing regulation

13. Articles 27(3), 28(7), 29(5) and 39 of the basic regulation served as the legal basis for the implementing regulation. ( 14 ) Its preamble explained that, in order to apply the quota system correctly, it was necessary, in particular, to introduce rules concerning the data required to determine the production levies provided for in Article 28 of the basic regulation (namely, the basic production levy and – where applicable – the B levy). It was recognised that those levies could not be fixed before the end of a marketing year. However, financial responsibility for each marketing year should be allocated to producers as soon as possible. It was therefore considered necessary to ensure that provision was made for advance payment of production levies (calculated on the basis of estimated figures) and that any amounts due should be paid well before the end of the marketing year in question. Furthermore, it was acknowledged that levies could not be fixed until information on consumption which was as precise as possible became available. In order to facilitate proper management of the quota system, time-limits for recording production and for communicating relevant data should therefore be laid down and provision should be made for appropriate control measures by Member States. ( 15 )

14. Article 3 of the implementing regulation provided: ‘1. Before 15 February of each year Member States shall establish provisional sugar production figures for the current marketing year for each undertaking situated on their territories. … 3. Before 1 October of each year Member States shall establish final figures for sugar … production by each undertaking in the preceding marketing year. 4. Where differences are found after the establishment of final production figures for the sugar … referred to in paragraph 3, such differences shall be taken into account when final production figures are established for the marketing year in which the differences were found.’ ( 16 )

15. Article 5 laid down that the basic production levy and (where applicable) the B levy should be estimated in accordance with Article 28 of the basic regulation before 1 April in respect of the current marketing year.

16. Article 7 laid down the deadlines by which the production levies should be fixed. Provision was also made for determining the balance of the levies due, taking into account the advance payments collected pursuant to Article 5.

Commission Regulation (EEC) No 2670/81: arrangements for C sugar

17. Article 1 of Commission Regulation (EEC) No 2670/81 ( 17 ) provided that manufacturers of C sugar must provide proof that the sugar had been exported from the Member State on whose territory it was produced without either a refund or levy. In the absence of proof that any such C sugar had been exported before 1 January of the year following the end of the marketing year during which it had been produced, the quantity of sugar in question would be considered to have been disposed of on the internal market. ( 18 )

18. Article 3(1) laid down that in such circumstances a charge was to be imposed upon the sugar producer.

National legislation

19. During the marketing year 1997/98 the Verordnung über die im Rahmen der Produktionsregelung für Zucker zu erhebenden Abgaben (Regulation on the levies to be charged in connection with the regulation of sugar production) of 7 March 1983 (‘the national measure’) applied.

20. Paragraph 1, entitled ‘Scope’, explained that the national measure applied to sugar produced above the production quotas and to sugar carried forward from one marketing year to the next, in the context of the Community’s system.

21. Paragraph 4 of the national measure required a sugar producer to declare to the competent national authorities by 31 January of each year his provisional sugar production for the current marketing year; and by 15 September of each year the final sugar production in respect of the preceding marketing year.

22. Paragraph 8 of the national measure required the competent authorities to issue an ‘establishment decision’ to each sugar producer (at the times laid down by the relevant Community acts) concerning his provisional and final sugar production for the marketing year in question. In a written decision the competent authorities next determined the advance payment of the levies (calculated in accordance with Paragraph 9) for the quantities of sugar produced within production quotas according to those establishment decisions. The final levies for the quantities of sugar produced within the A and B quotas were then to be ascertained by calculating the difference between the figures for provisional and final sugar production and the advance payment of levies.

23. Paragraph 9(1)(3) of the national measure required the competent authorities to determine the levies for the quantities of C sugar disposed of on the internal market.

Facts and procedure

24. During the marketing year 1997/98 Pfeifer & Langen KG (‘Pfeifer’) manufactured sugar in its factories in Elsdorf, Euskirchen, Appeldorn and Lage. On 8 September 1998 Pfeifer made a declaration of its final figures for sugar production. On 25 September 1998 the competent authorities issued an establishment decision concerning Pfeifer’s final sugar production for that marketing year.

25. On 4 November 1999 the competent authorities began an investigation at Pfeifer’s premises. That investigation was suspended following a challenge by Pfeifer, but resumed on 16 January 2003. The investigation concerned inter alia the sugar production levy for the marketing year 1997/98.

26. In 2006 additional quantities of white sugar (a total of 9657,4 tonnes) were found. That sugar was treated as C sugar and allocated to the marketing year 1997/98; and a charge of EUR 5 810 857.58 was therefore imposed pursuant to Paragraph 9(3) of the national measure. Following Pfeifer’s challenge, the competent authorities issued establishment decisions on 27 April 2010 indicating a revised figure of 6922,1 tonnes of white C sugar and reducing the charge to EUR 4 165 027.57.

27. Pfeifer then challenged the decisions of 27 April 2010. Pfeifer contends that those establishment decisions are incompatible with Article 3(4) of the implementing regulation.

28. Since that raises a matter of interpretation of Community law, the Finanzgericht Düsseldorf has stayed proceedings and referred the following question to the Court for a preliminary ruling: ‘Must Article 3(4) of [the implementing regulation] be interpreted as extending also to the additional quantities subsequently found by the authorities in the context of an inspection at the producer’s premises?’

29. Written observations have been submitted by Pfeifer, the competent authorities and the Commission. All presented oral argument at the hearing on 9 February 2012.

Assessment

Preliminary observations

30. White sugar is a homogeneous product. ( 19 ) Nothing physically distinguishes the A, B and C categories of sugar from each other. Nor is it possible to ascertain the date of manufacture of sugar from its physical state. Thus, where a producer stores sugar in silos already containing sugar produced in earlier marketing years, it is impossible to make a distinction between sugar produced in different marketing years. ( 20 )

31. It is therefore important that systems for accounting in respect of sugar produced in a given marketing year are reliable and accurate. ( 21 )

32. It is not disputed that the sugar at issue was produced over and above the sum of Pfeifer’s A and B quotas for the marketing year 1997/98. The surpluses found by the competent authorities therefore constitute C sugar for the purposes of Article 24(1)(c) of the basic regulation.

33. No production levies were charged in respect of C sugar at the material time (that indeed remains the case for sugar produced surplus to quota in the system governed by Regulation No 1234/2007 ( 22 )).

The system of quotas and sugar production levies

34. In order to ascertain the correct interpretation of Article 3(4) of the implementing regulation it is necessary to consider how the system of quotas and sugar production levies applied during the marketing year 1997/98.

35. A feature of the common organisation of the sugar markets at that time was the financial support provided for sugar produced for consumption within the internal market and for certain exports.

36. In any particular marketing year, A and B sugar production matched quotas corresponding respectively (in principle) to demand on the internal market and to exports of surplus sugar with the benefit of export refunds. In British Sugar ( 23 ) the national court asked whether a producer could classify sugar as C sugar before it had actually produced a quantity of sugar equivalent to its A and B quotas in the course of a marketing year. The Court held that the basic regulation required a producer to have fulfilled his A and B quotas before he classified sugar as C sugar. ( 24 )

37. Levies were charged to sugar producers in order to finance the cost of the financial support for the production of A and B sugar, in particular of export refunds for A and B sugar which was surplus to Community consumption in any particular marketing year. ( 25 ) Article 28 of the basic regulation laid down the manner in which those levies were to be estimated, first on the basis of provisional figures and then on the basis of final figures. ( 26 ) Thus, the following data were collected and recorded: (i) the quantity of A and B sugar produced; (ii) the quantity of sugar sold for consumption within the Community; (iii) the ‘exportable surplus’ obtained by subtracting the quantity referred to at (ii) from the quantity at (i); (iv) the average loss (or if appropriate the average revenue) per tonne of sugar designated for export; (v) the amount that therefore required to be covered by levies, arrived at by multiplying the quantity at (iii) by the amount at (iv).

38. In the basic regulation the scheme for A and B sugar is specified in detail. However, only the essential principles for C sugar are laid down. C sugar was produced outside the sum of the A and B quotas and could not be freely marketed within the Community. The beet used to produce C sugar did not benefit from a guaranteed minimum price. ( 27 ) Its price was freely negotiated between producers and growers. Sugar producers had the option of carrying C sugar forward to the following marketing year, when it could be accounted for as A sugar. Such sugar had to be stored for at least 12 months. The option to carry forward was limited to 20% of a producer’s A quota. ( 28 ) C sugar that was not carried forward had to be exported without any refund; and proof of export had to be provided. The value of C sugar was taken to be the price that it fetched on the world market. The producer concerned bore the full expense of exporting the C sugar that he produced. ( 29 )

39. Where the producer failed to provide proof of export of C sugar that quantity was deemed to have been disposed of on the internal market. ( 30 ) Article 3(2) of Regulation No 2670/81 provided that the Member State concerned was obliged to impose a charge. There was no express provision in that regulation which allowed the charge to be varied, although in certain circumstances that might be required under the principle of proportionality. ( 31 ) Thus, the charge relating to C sugar is different in important respects from the production levies that applied to A and B sugar. ( 32 )

40. Since C sugar was not subject to the system of production levies laid down in Article 28 of the basic regulation, the competent authorities of Member States were not obliged to collect and record data for that category of sugar under the rules that applied to A and B sugar.

41. The basic regulation has subsequently been repealed and replaced. The categories of A, B and C sugar are no longer used in the new system. ( 33 ) However, the revised sugar regime continues to provide financial support funded by producers who pay a levy in respect of sugar that is produced within quota. Surplus sugar produced beyond the quota that is not carried forward to the following marketing year is still subject to a charge, since it cannot be freely disposed of on the internal market. ( 34 )

Interpretation of Article 3(4) of the implementing regulation

42. The national court is unsure whether Article 3(4) of the implementing regulation requires quantities of C sugar found by the competent authorities to be allotted retrospectively to the marketing year here under investigation (here 1997/98) or to the marketing year in which they are established.

43. Pfeifer submits that the question raised has important financial consequences for sugar producers and that it should be able to choose whether to carry sugar surpluses forward to the marketing year following that in which they were established ( 35 ) or to export the surpluses within the prescribed period of time. Pfeifer acknowledges that if the surplus quantities are allotted with retrospective effect, to the marketing year 1997/98, a charge would indeed be levied pursuant to Article 3 of Regulation No 2670/81. ( 36 )

44. Pfeifer contends further that Article 3(4) of the implementing regulation should be interpreted in the light of the Court’s decision in Hannoversche Zucker ( 37 ) and argues that as a result of that judgment, sugar surpluses found by the competent authorities should be allotted to the marketing year in which they are established. Pfeifer argues that, since the Court’s ruling in that case concerned marketing years that arose before Regulation No 1009/67 came into force, its judgment applies a fortiori within the context of the subsequent common organisation of the sugar markets.

45. The competent authorities, the Commission and the national court consider that Hannoversche Zucker does not apply to the present matter. The Commission contends that Hannoversche Zucker concerns only A and B sugar and is therefore not relevant to the principal action which concerns C sugar. Furthermore the Commission submits that it is not possible to attribute retroactively A and B quota sugar to marketing years which have closed. To do so would create administrative havoc, since it would be impossible to match annual quotas and annual stocktaking based upon the accounting period of a marketing year.

46. It seems to me that the circumstances of Hannoversche Zucker were unique. The facts that gave rise to that case concerned marketing years that preceded and followed 1 July 1968, the date when Regulation No 1009/67 came into effect. ( 38 ) Hannoversche Zucker was at that time a sugar producer. It was subject to two stocktaking exercises. The first took place on 5 October 1966, the second on 30 September 1970. A sugar surplus was discovered during the second stocktaking. That surplus related to sugar for which a production levy was payable. It was considered that the surplus in question was (almost certainly) partially attributable to marketing years prior to 30 June 1968 and therefore before the production levy (introduced in Regulation No 1009/67) came into effect. ( 39 ) The national court asked whether a surplus that came to light after 1 July 1968, but which had arisen before that date, should be assigned, for the purposes of calculating the production levy, (i) to the period before the common organisation of the sugar markets came into effect, (ii) to the first marketing year under that regime (1968/69), or (iii) to the marketing year in which it was established.

47. In the absence of any legislation governing the position, the Court considered that it was necessary to seek a solution in light of the aims and objectives of the common organisation of the sugar markets, taking into account both administrative and practical considerations. ( 40 ) The Court noted that (for technical reasons) stocktaking was carried out at intervals that spanned several years rather than on an annual basis. It was therefore difficult to determine with any precision the actual production year of the surplus in question. Allocating those surpluses to a marketing year prior to that in which they were established would require an amendment to the final production figures for that period, not only for Hannoversche Zucker, but also for the Member State concerned and for the entire Community. ( 41 ) That would involve administrative complications out of all proportion to the result sought. ( 42 )

48. The Court therefore held that a surplus which came to light after final production figures had been recorded must be treated as arising during the marketing year in which it was ascertained. Accordingly, the surplus was to be allotted to that marketing year. ( 43 )

49. I consider that the present matter differs from Hannoversche Zucker.

50. First, the particular set of circumstances that arose 47 years ago in that case are not repeated in the principal proceedings. Second, the sugar surplus in Hannoversche Zucker concerned quota sugar (subsequently ‘A’ and ‘B’ sugar under the basic regulation) involving complex production levy calculations. ( 44 ) The present case concerns C sugar for which no such levy is charged.

51. The particular administrative difficulties identified by the Court in Hannoversche Zucker are thus not triggered in the present case.

52. Pfeifer contends that Article 3(4) of the implementing regulation applies to sugar surpluses found by the competent authorities and that the surplus sugar should be allotted to the marketing year in which it is established. At the hearing, Pfeifer made a number of additional points in support of its contention that Article 3(4) applied to C sugar. Pfeifer argued that the words ‘sugar production’ in Articles 1 and 4 of the implementing regulation referred to Articles 26 to 29 of the basic regulation. Since those provisions of that regulation covered all categories of sugar, it followed that A, B and C sugar fell within Article 3(4) of the implementing regulation. Pfeifer further submitted that Regulation No 2670/81 should be read together with the implementing regulation.

53. The competent authorities submit that Article 3(4) of the implementing regulation does not apply, because the word ‘establishment’ in the first sentence of that provision (‘Where differences are found after the establishment of final figures …’) refers to the final figures established by the sugar producer, not the final sugar production figures confirmed by the competent authorities following an investigation.

54. The Commission contends that Article 3(4) of the implementing regulation does not apply to the determination of the final figures for the production of C sugar. It submits that although certain provisions of the implementing regulation apply to all categories of sugar, Article 3 of that regulation applies only to A and B sugar.

55. I agree with the Commission.

56. It is true that Articles 1 and 4 of the implementing regulation referred to ‘sugar production’ for the purposes of Articles 26 to 29 of the basic regulation. However, the legal basis of the implementing regulation was Articles 27(3), 28(7), 29(5) and 39 of the basic regulation. All of those provisions (apart from Article 39 ( 45 )) concerned A and B sugar or sugar that was carried forward pursuant to Article 27(1) of the basic regulation and thus treated as A sugar. This suggests to me that the main purpose of the implementing regulation was to make provision for the system that applied to A and B sugar, rather than C sugar.

57. Furthermore, sugar was categorised as A, B or C sugar after production so as to enable the complex financial system introduced by the common organisation of the sugar markets to function. ( 46 ) The classification had to be done sequentially. Thus, the C category only arose after the A and B quotas were filled. ( 47 )

58. It is therefore unsurprising that the implementing regulation referred to total sugar production in certain provisions. It would have been necessary to establish the total quantity of sugar produced in order to determine, first, whether the A and B quotas had been met and then whether the total quantity of sugar produced gave rise to C sugar which the producer might wish to carry forward to the following marketing year to comprise part of his A quota for that year. The presence of a requirement for information about total sugar production does not lead to the conclusion that the implementing regulation laid down rules for the particular system that applied to C sugar. It did not. Those rules are, in essence, to be found in Regulation No 2670/81.

59. Article 3 of the implementing regulation has to be read in the context of that regulation as a whole, which should itself be interpreted within the system of quotas and production levies laid down in Articles 26 to 29 of the basic regulation.

60. The preamble to the implementing regulation explained that it was necessary to collect and record data on sugar production in any given marketing year in order to determine the production levies, initially on a provisional basis. Since production levies did not apply to C sugar, there would have been no need to collect and record data for C sugar on that basis.

61. The system was designed to ensure that producers met their obligations to pay the production levies for the marketing year in question as soon as possible after the close of that period. The aim was to avert a situation where stocktaking (by producers, and subsequent verification by the competent authorities) occurred at intervals that would have frustrated the expressed objective due to the lapse of time between sugar production and the recording of data accounting for the A and B sugar actually produced.

62. Article 3(1) of the implementing regulation therefore required Member States to establish provisional sugar production figures for the marketing year at issue by 15 February for each undertaking situated within their respective territories. Article 3(3) required final figures for sugar production to be provided before 1 October of the following marketing year.

63. Article 3(4) of the implementing regulation allowed for adjustment to be made where differences arose in relation to the final sugar production figures (as set out in Article 3(3)). Provision was made for further adjustment where the competent authorities discovered a surplus due to a difference in sugar production figures following an audit or investigation of a producer’s declarations.

64. Given that sugar is a homogeneous product, such differences might occur as a result of inadvertence rather than an irregularity on the part of a producer. In any event, the legislature recognised that the system required a degree of flexibility in order to take account of administrative and practical difficulties in determining the figures for sugar production. Thus, Article 3(4) of the implementing regulation provided that such differences should be taken into account in the marketing year in which they were found. No provision was made for allotting those differences retrospectively to the marketing year under investigation.

65. It is true that Article 3 of the implementing regulation did not state expressly whether it applied to all categories of sugar in the Community regime, or only to A and B sugar.

66. However, I consider that, when Article 3 is read in the context of the implementing regulation as a whole, it becomes clear that its function was to lay down deadlines for establishing both the provisional and final sugar production figures (for any particular marketing year) in respect of A and B sugar production.

67. Thus, Article 5 of the implementing regulation provided that the basic production levy and the B levy should be estimated in accordance with Article 28 of the basic regulation. Advance payments were to be determined by reference to the data recorded pursuant to Article 3(1) of the implementing regulation. Member States were required to collect those payments before 1 May. Article 7 provided that the basic production levy and the B levy were to be fixed before 1 November in respect of the preceding marketing year, taking into account the advance payments already made under Article 5. The deadlines by which the information required had to be provided were not relevant to C sugar, because there was no production levy for that category of sugar.

68. It follows that the purpose of the data collected pursuant to Article 3(1) and (3) (relating to provisional and final production figures in a marketing year) was to enable the obligations laid down in Article 28(1) to (4) of the basic regulation with regard to the determination and collection of the basic levy and the B levy to be fulfilled. ( 48 )

69. In my view, the words ‘establishment of final production figures’ in Article 3(4) of the implementing regulation therefore refer only to A and B sugar.

70. There was no obligation in the basic regulation to determine provisional and final production figures for C sugar. Under the common organisation of the sugar markets, only the following information was required in respect of C sugar: whether it was actually produced, whether it was carried forward and whether it was exported within the prescribed period. ( 49 ) The deadlines for collecting data laid down in Article 3(1) and (3) of the implementing regulation did not apply to C sugar. There was therefore no need to make any adjustment under Article 3(4) in respect of that category of sugar.

71. Finally, I consider that to interpret Article 3(4) of the implementing regulation as if it applied to C sugar would be inconsistent with the objective of the common organisation of the markets in the sugar sector, in so far as C sugar should not be freely disposed of by producers on the internal market. ( 50 ) To allocate C sugar to the marketing year in which its existence is established by the competent authorities, as Pfeifer contends, could undermine the administration of that system, as I shall now explain.

72. The charge imposed pursuant to Article 3(1) of Regulation No 2670/81 applied in the absence of proof that C sugar had either been carried forward to the following marketing year or exported within the period laid down. ( 51 ) The purpose of that charge was to place C sugar on a similar footing to sugar imported from non-member States. ( 52 ) Provision was made for an exemption from the charge only in cases of force majeure, where C sugar had either been destroyed or sustained damage beyond possibility of recovery. ( 53 )

73. The existence of that charge may also have served to encourage producers to ensure that data collected and recorded for A and B sugar production were as accurate as possible and were provided to the competent authorities in accordance with the deadlines laid down, with a view to avoiding or minimising the risk of a charge.

74. The effect of allotting surpluses of C sugar to the year in which they were established would be to allow producers to avoid the charge under Article 3(1) of Regulation No 2670/81 by taking advantage, well after the applicable time-limits had expired, of the export and carry-forward facilities. ( 54 ) Thus, sugar producers would be allowed a degree of flexibility in accounting for C sugar that was not envisaged by the system laid down in the basic regulation.

75. It would therefore be inconsistent with the purpose of Article 3(4) of the implementing regulation to interpret that provision as applying to C sugar.

76. I therefore conclude that C sugar found by the competent authorities of a Member State during the course of an investigation falls outwith the scope of Article 3 of the implementing regulation.

Conclusion

77. Accordingly, I am of the opinion that the Court should answer the question raised by the Finanzgericht Düsseldorf as follows: Article 3(4) of Commission Regulation (EEC) No 1443/82 of 8 June 1982 laying down detailed rules for the application of the quota system in the sugar sector does not apply to C sugar. Quantities of C sugar established by the competent authorities of a Member State in respect of a marketing year under investigation therefore fall outwith the scope of that provision.

( 1 ) Original language: English.

( 2 ) Of 18 December 1967 on the common organisation of the market in sugar (OJ, English Special Edition 1967, p. 304).

( 3 ) In this Opinion I shall refer to ‘the Community’ since the relevant legislative provisions use that term.

( 4 ) Certain amendments to the sugar sector were made by Council Regulation (EEC) No 3330/74 of 19 December 1974 on the common organisation of the market in sugar (OJ 1974 L 359, p. 1). The quota system (which had been introduced for an interim period) was extended until (in effect) 30 June 1980 and the basic quotas were increased.

( 5 ) Of 30 June 1981 on the common organisation of the markets in the sugar sector (OJ 1981 L 177, p. 4). In respect of the marketing year in issue it was the basic regulation as amended in particular by Council Regulation (EC) No 133/94 of 24 January 1994 (OJ 1994 L 22, p. 7) and Council Regulation (EC) No 1599/96 of 30 July 1996 (OJ 1996 L 206, p. 43) that applied. At the material time production in the sugar sector included sugar, isoglucose and inulin syrup. Since the present matter concerns white sugar I shall not refer to those other products.

( 6 ) Articles 3 to 5 of the basic regulation.

( 7 ) See points 34 to 41 below.

( 8 ) The basic regulation has since been repealed and replaced. A revised form of the quota system currently applies under Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (OJ 2007 L 299, p. 1).

( 9 ) At the material time the first subparagraph of Article 2(1) of Commission Regulation (EEC) No 65/82 of 13 January 1982 laying down detailed rules for carrying forward sugar to the following marketing year (OJ 1982 L 9, p. 14), as amended in particular by Commission Regulation (EEC) No 948/82 of 26 April 1982 (OJ 1982 L 113, p. 7), provided that an undertaking could carry forward sugar only if the Member State concerned first verified that such sugar was produced as B sugar or as C sugar.

( 10 ) Article 28(1) of the basic regulation. A marketing year was defined in Article 2 of the basic regulation as the period from 1 July to 30 June of the following year.

( 11 ) Article 28(2) of the basic regulation.

( 12 ) Article 28(4).

( 13 ) See for example, the implementing rules referred to in points 13 and 17 below.

( 14 ) Commission Regulation (EEC) No 1443/82 of 8 June 1982 laying down detailed rules for the application of the quota system in the sugar sector (OJ 1982 L 158, p. 17), as amended in particular by Commission Regulation (EC) No 392/94 of 23 February 1994 (OJ 1994 L 53, p. 7), (‘the implementing regulation’). It was repealed and replaced by 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 (OJ 2002 L 50, p. 40). Commission Regulation (EC) No 952/2006 of 29 June 2006 laying down detailed rules for the application of Council Regulation (EC) No 318/2006 as regards the management of the Community market in sugar and the quota system (OJ 2006 L 178, p. 39), now applies.

( 15 ) See the first to seventh recitals in the preamble to the implementing regulation.

( 16 ) The implementing regulation repealed and replaced Regulation (EEC) No 700/73 of the Commission of 12 March 1973 laying down certain detailed rules for the application of the quota system for sugar (OJ 1973 L 67 p. 12). Article 3(4) of the implementing regulation was substantially the same as Article 2(3) of that earlier regulation. Regulation No 952/2006 now applies; and Article 22(5) of that regulation is materially the same as Article 3(4) of the implementing regulation.

( 17 ) Of 14 September 1981 laying down detailed implementing rules in respect of sugar production in excess of the quota (OJ 1981 L 262, p. 14). That regulation was repealed and replaced by Commission Regulation (EC) No 967/2006 of 29 June 2006 laying down detailed rules for the application of Council Regulation (EC) No 318/2006 as regards sugar production in excess of the quota (OJ 2006 L 176, p. 22).

( 18 ) Article 26(3) of the basic regulation, summarised in point 7 above.

( 19 ) See the Opinion of Advocate General Mischo in Case C-101/99 British Sugar [2002] ECR I-205, point 45.

( 20 ) At the hearing, the Commission provided a nice illustration of this point by recalling the fable of ‘The hare and the hedgehog’, as related by the Brothers Grimm. Provoked into running a race by the hare, the hedgehog arranged for his wife (who was indistinguishable from him, at least to a hare) to position herself at the finish line. As the hare arrived, the hedgehog’s wife confounded him by calling out, ‘I’m already here’. The hare re-ran the race over and over again, not believing the result. The two hedgehogs kept up the deception; and eventually the hare dropped dead from exhaustion. Because white sugar is as indistinguishable from other white sugar as the two hedgehogs in the fable, being able to attribute a particular quantity of C sugar to the year in which it was found (‘the finish line’) rather than its actual year of production (‘the start of the race’) would enable a producer to invoke Article 27 of the basic regulation so as to carry it forward into the subsequent marketing year, thus avoiding the charge (and ‘defeating the hare’ – that is, circumventing the proper functioning of the market in sugar).

( 21 ) One might reasonably expect sugar producers to record the quantities of sugar produced in a marketing year and whether their A and B quotas have been fulfilled. Such information would be necessary for producers to operate their businesses, for companies to meet their responsibilities towards their shareholders and in order to comply with relevant obligations under national law to maintain production records. Moreover, as there is no financial support for C sugar it is hard to see how it would be in a producer’s interests to classify sugar as C sugar before the A and B quotas are met. See also British Sugar (in point 36) below, and point 57 below.

( 22 ) See further point 41 below.

( 23 ) Cited in footnote 19 above.

( 24 ) British Sugar, paragraph 48.

( 25 ) British Sugar, paragraph 7.

( 26 ) See Article 28(1) and (2) of the basic regulation and point 9 above.

( 27 ) Unlike A beet and B beet used to produce A sugar and B sugar: see point 6 above.

( 28 ) See point 8 above.

( 29 ) See point 7 above.

( 30 ) Article 1(1) of Regulation No 2670/81.

( 31 ) In British Sugar, cited in footnote 19 above, Advocate General Mischo observed that the sugar producer had been able to export quota sugar ostensibly as C sugar because the national intervention agency had issued export licences even though the applications for those licences did not contain proof that the sugar concerned had actually been produced in excess of British Sugar’s A and B quotas. He considered that, in those circumstances, the principle of proportionality might require the charge to be varied: see points 86 to 89 of his Opinion. In its judgment the Court did not deal with this particular issue, in the light of the other answers that it had given to the national court.

( 32 ) See point 47 and footnote 41 below.

( 33 ) See footnote 8 above.

( 34 ) See Chapter III of Regulation No 1234/2007, in particular Article 55.

( 35 ) In which case it could then be treated as A sugar and sold on the internal market (see point 8 above).

( 36 ) See points 7 and 17 above.

( 37 ) Case 159/73 [1974] ECR 121.

( 38 ) The date on which the common organisation of the markets in the sugar sector was introduced and the quota system funded by production levies paid by Community producers as a whole was put in place (see points 2 and 34 to 41 above).

( 39 ) Hannoversche Zucker, cited in footnote 37 above, paragraph 2.

( 40 ) Hannoversche Zucker, paragraph 4.

( 41 ) Under the common organisation of the markets in the sugar sector, the production levies were calculated on the basis of sugar production within the entire Community and then allocated between the Member States who divided them amongst the sugar producers within their respective territories. An amendment to the final production figures would therefore entail recalculations for every sugar producer within the Community.

( 42 ) Hannoversche Zucker, paragraph 5.

( 43 ) Hannoversche Zucker, paragraph 6.

( 44 ) See point 2 above.

( 45 ) Article 39 merely required the Member States and the Commission to communicate to each other the information necessary for implementation of the basic regulation.

( 46 ) British Sugar, paragraphs 40 to 43.

( 47 ) British Sugar, paragraph 44.

( 48 ) See point 9 above.

( 49 ) See respectively points 7, 8 and 17 above.

( 50 ) Article 26(1) of the basic regulation.

( 51 ) Article 1(1) of Regulation No 2670/81.

( 52 ) Article 3(1) of Regulation No 2670/81.

( 53 ) Article 3(4) of Regulation No 2670/81.

( 54 ) See Articles 26 and 27 of the basic regulation and footnote 20 above (the fable of the hare and the hedgehog).