3.

The first question concerns Article 12 which I have just mentioned. That provision, I would recall, lays down the rule that the levy in respect of white sugar and in respect of syrups obtained prior to the crystallizing stage or by dissolving crystallized sugar is incurred “at the moment of disposal”. Moreover, according to Article 12 (1) (d), the processing of those products into substances other than solid sugars is to be regarded as equivalent to disposal. The national court (see pages 9 and 10 of the order making the reference) doubts whether there is any justification for treating a transitional product arising in the course of the manufacturing process as equivalent to a finished product which is marketed in the light of Article 8 of Regulation No 3330/74 (which is the basic regulation) or of the implementing regulation, No 1358/77. In other words, Article 12 (1) (d) may be invalid on the ground that the Commission exceeded the limits of the legislative powers conferred upon it by the Council. That doubt is groundless. In my view, the Council conferred sufficient powers on the Commission to enable it legitimately to treat a transitional product as the operative factor giving rise to the levy and the processing of the sugar or syrups into other products as equivalent to disposal. Let us consider why this is so. Article 8 of the basic regulation makes the collection of the levy conditional on disposal only in the case of syrups, including those obtained by dissolving-solid sugar. In the case of white or raw sugar (see Article 8 (1) (a)) there is no such link. It fallows in my view that “disposal” is not a strict pre-condition for the obligation to pay the levy. Its scope is flexible. Nor is it possible to counter that argument by having recourse to Article 6 of Regulation No 1358/77 wich does indeed relate the levy to disposal without providing for any exceptions but is in itself an implementing provision and is therefore incapable of binding the Commission. Therefore, in laying down the detailed rules for the implementation of Article 8, the Commission in order to comply with the requirements imposed under the system of levies, quite reasonably had recourse to a fiction, inasmuch as it treated as equivalent to disposal an entirely different process such as the processing of the sugar and syrups into products other than solid sugars. Moreover, the requirements to which I have referred are mandatory. As the Hauptzollamt submits in its written observations, it is necessary to treat certain operations as equivalent to disposal in order to ensure that the levy is collected in all cases. If it were otherwise, that would not be possible. That is true in the case of solid sugar dissolved in water and processed by the manufacturer into a product falling outside heading No 17.01, that is to say outside the scope of the phrase “beet sugar and cane sugar, in solid form”. The same applies to the other operations which are treated as equivalent to disposal. They are not referred to in the question but it is useful to recall them. I have in mind in particular Article 12 (1) (f) which provides that “denaturing of sugar” is to be regarded as disposal. Here, too, any processing would preclude the collection of the levy in respect of the storage of the product, which is sugar. Once again that risk has been averted by treating an operation which is not a disposal as equivalent thereto.