CELEX: 62007CC0560
Language: en
Date: 2009-02-17 00:00:00
Title: Opinion of Mr Advocate General Ruiz-Jarabo Colomer delivered on 17 February 2009. # Balbiino AS v Põllumajandusminister and Maksu- ja Tolliameti Põhja maksu- ja tollikeskus. # Reference for a preliminary ruling: Tallinna halduskohus - Estonia. # Accession of Estonia - Transitional measures - Agricultural products - Sugar - Surplus stocks - Regulations (EC) Nos 1972/2003, 60/2004 and 832/2005. # Case C-560/07.

OPINION OF ADVOCATE GENERAL
      RUIZ-JARABO COLOMER
      delivered on 17 February 2009 1(1)
      
      Case C‑560/07
      Balbiino AS
      v
      EV Põllumajandusministeerium
      and
      Maksu- ja Tolliameti Põhja maksu- ja tollikeskus
      (Reference for a preliminary ruling from the Tallinna Halduskohus)
      (Accession of Estonia – Transitional measures – Agricultural products – Regulation not translated into the language of a Member State – Surplus stock charge)I –  Introduction
      1.        The Tallinna Halduskohus (Tallinn Administrative Court) has referred to the Court of Justice for a preliminary ruling six
         questions concerning the transitional measures adopted in order to facilitate the incorporation, on 1 May 2004, of ten new
         Member States into the European Union.
      
      2.        The questions refer to three Community regulations designed to persuade the economic operators of the Member States to avoid
         accumulating stocks of agricultural products, owing to the disruptive effects they may have on the common organisation of
         the markets. These restrictive devices consist, in short, in imposing a charge on surplus stocks created in the new Member
         States and eliminating them in some cases (sugar, isoglusoce and fructose). 
      
      3.        In connection with the 1994 accessions, the Court of Justice ruled on similar measures, which also included a charge on the
         aforementioned surplus agricultural stocks. (2) The judgment in Weidacher declared that the Commission was competent to adopt that measure, after holding that the Community institutions enjoyed a
         broad discretion in attaining the objectives of the common agricultural policy, and denied that the regulation infringed the
         principle of proportionality or the principle of the protection of legitimate expectations. (3)
      
      4.        Weidacher is, to date, the only precedent in the matter, but it will not be the last. Simultaneously with and separately from this
         reference for a preliminary ruling, six of the ten new Member States have contested those three regulations and a Commission
         decision before the Court of First Instance of the European Communities. The actions are still pending. (4)
      
      II –  Legal framework
      A –    Community legislation 
      1.      The Act of Accession (5)
      
      5.        Under the first paragraph of Article 41 of the Act of Accession, the transitional measures necessary for joining the regime
         of the common agricultural policy are to be adopted by the Commission ‘during a period of three years following the date of
         accession’ and are to be limited to that period.
      
      6.        On the basis of the aforementioned article of the Act of Accession, the Commission adopted three regulations.
      
      2.      Regulation (EC) No 1972/2003 (6)
      
      7.        Regulation No 1972/2003 contains a series of transitional provisions ‘to avoid the risk of deflection of trade, affecting
         the common organisation of agricultural markets due to the accession of 10 new States to the European Union on 1 May 2004’
         (first recital).
      
      8.        The third recital warns of the need to levy deterrent charges on surplus agricultural stocks in the new Member States, since
         deflections ‘liable to disrupt the market organisations often involve products moved artificially with a view to enlargement
         and do not form part of the normal stocks of the State concerned’, although ‘surplus stocks may also result from national
         production’.
      
      9.        Article 4(1) of Regulation No 1972/2003 requires those Member States which do not have stricter legislation to levy charges
         ‘on holders of surplus stocks at 1 May 2004 of products in free circulation’. 
      
      10.      Article 4(2) mentions three factors which the new States must take into account when determining the surplus stock of each
         operator: (a) averages of stocks available in the years preceding accession; (b) the pattern of trade in those years; and
         (c) the circumstances in which stocks were built up. 
      
      11.      Under Article 4(4) of the regulation, for the charge to be correctly applied, the new Member States are required ‘without
         delay’ to carry out an inventory of stocks available as at 1 May 2004. 
      
      12.      The entry into force of Regulation No 1972/2003 coincided with that of the Treaty of Accession, and was applicable ‘until
         30 April 2007’ (Article 10).
      
      3.      Regulation (EC) No 60/2004 (7)
      
      13.      Regulation No 60/2004 incorporates specific rules for the sugar sector, in view of the considerable risk of disruption on
         the markets in the sector as a result of speculative actions (fifth recital). 
      
      14.      The regulation allocates obligations between the Commission and the Member States. 
      
      15.      It was for the Commission to determine, ‘by 31 October 2004 at the latest’, for each new Member State, the quantity of raw
         or processed sugar, isoglucose and fructose ‘exceeding the quantity considered as being normal carry-over stock at 1 May and
         which has to be eliminated from the market at the expense of the new Member States. To determine this surplus quantity, account
         is in particular taken of the development during the year preceding accession in relation to the previous years of: (a) imported
         and exported quantities of raw or processed sugar, isoglucose and fructose; (b) production, consumption and stocks of sugar
         and isoglucose; and (c) the circumstances in which stocks were built up’ (Article 6(1) of the regulation). 
      
      16.      It was for the new Member States to ensure, ‘by 30 April 2005 at the latest’ the elimination from the market of a quantity
         of sugar or isoglucose, without Community intervention, equal to the surplus quantity referred to in paragraph 1 (Article
         6(2)).  For that purpose, the competent national authorities had to have available on 1 May 2004 a system for the identification
         of traded or produced surplus quantities of raw or processed sugar, isoglucose or fructose, at the level of the main operators
         concerned.  Under Article 6(3) of the regulation, this system would ‘in particular rely on import tracking, fiscal monitoring,
         surveys based on operators’ accounts and physical stocks, and include measures such as risk guarantees’. Also, according to
         the provision, ‘the system of identification shall be based on risk assessment that takes due account in particular of the
         following criteria: type of activity of the operators concerned, capacity of storage facilities, and level of activities’.
      
      4.      Regulation (EC) No 832/2005 (8)
      
      17.      By Regulation No 832/2005 the Commission established the surplus quantities of sugar, isoglucose and fructose to be destroyed
         by each new Member State. 
      
      B –    National legislation 
      18.      In implementation of this legislation, on 7 April 2004 the Estonian Parliament approved the Üleliigse laovaru tasu seadus
         (Law on the surplus stock charge, ‘the ÜLTS’).
      
      19.      By judgment of 5 October 2006, the Riigikohus (Estonian Supreme Court) declared certain provisions of the ÜLTS contrary to
         Regulation No 1972/2003, and annulled Paragraph 6(1) of the ÜLTS, taking the view that the requirement in Paragraph 6(1) of
         the ÜLTS to calculate the transitional stock by multiplying by a factor of 1.2 did not ensure a situation in which each operator
         was treated differently. The Riigikohus also criticised Paragraph 6(2) of the ÜLTS, because it considered that, under Community
         law, an operator who has not been active in his field of activity before 2004 or has been active for less than four years
         is not under an obligation to prove that the stock of the agricultural product in his possession on 1 May 2004 corresponds
         to the amounts of the stock of the agricultural product customarily produced, sold, transferred or acquired by him, for payment
         or without payment. 
      
      20.      Following this judgment, on 16 June 2005 and 25 January 2007, the Riigikogu (Estonian Parliament) introduced significant amendments
         to the text of the ÜLTS, which came into force on 30 April 2005 and 16 February 2007, respectively. 
      
      21.      Paragraph 7(1) of the ÜLTS specifies that the amount of the surplus stock is obtained ‘by deducting the amount of the transitional
         stock from the amount of the stock of the agricultural product in the possession of the operator on 1 May 2004’. The amendment
         introduced a paragraph (2) to this provision, stating that, if it were essential ‘for achieving the objectives of Commission
         Regulation No 1972/2003 or Commission Regulation No 60/2004, the operator’s entire stock of the agricultural product is surplus
         stock’.
      
      22.      Paragraph 6(1) of the ÜLTS calculates the ‘transitional stock’ as the average amount stored on 1 May of the four years last
         preceding 2004, multiplied by 1.2. Paragraph 6(2) and (3) lessen the severity of this rule of calculation for operators who
         have been active for less than four years. 
      
      23.      Accordingly, in accordance with Paragraph 6(2), if the operator was not active in the sector before 2004 or had been active
         for less than four years, he must show that the amount of the stock of the agricultural product in his possession on 1 May
         2004 is equivalent to the amount of the stock of the agricultural product customarily produced, sold, or otherwise transferred
         or acquired by him for payment or without payment.
      
      24.      Paragraph 6(3), incorporated after the amendment, refers to those who have operated in the sector for less than four years
         but at least one, allowing them to choose, in calculating the amount of their transitional stocks, either the average of the
         positions on 1 May of the four years last preceding 2004, multiplied by 1.2, or the position on 1 May of the last years of
         operation preceding 2004, multiplied by 1.2. 
      
      25.      Paragraph 10(1) of the ÜLTS places the responsibility for determining the transitional stock and surplus stock on the Ministry
         of Agriculture, on the basis of the data declared by the persons concerned. If the operator presents a reasoned application,
         Paragraph 10(2) permits account to be taken, in making this evaluation, of various circumstances, such as the growth in production,
         processing or sales volume of the company concerned (if it took place during the previous year and was reflected in the economic
         results for the last half year), the maturation period of the agricultural product, the fact that the stocks were built up
         before the third quarter of 2003, the reduction of the export or sales volume for reasons not attributable to the operator,
         and other eventualities beyond his control. 
      
      26.      Paragraph 23 of the ÜLTS completes these provisions with rules permitting the revision upwards of the transitional stocks;
         thus, their amount may be increased if there has been a growth in production, processing or sales during the year preceding
         1 May 2004, provided that the increase is reflected in the economic results for the last half-year and continued in the period
         from 1 May 2004 to 1 May 2006. 
      
      III –  The main proceedings and the questions referred for a preliminary ruling 
      27.      The applicant in the main proceedings, AS Balbiino, is an Estonian company which sells ice-cream and frozen foods. 
      
      28.      Faced with the prospect of the changes which the accession of Estonia to the European Union would cause in the market, Balbiino
         improved and enlarged its facilities, opening a new warehouse to store raw materials such as sugar. At around the same time,
         the undertaking also undertook a new activity, selling frozen foods wholesale. 
      
      29.      Following several procedural steps, on 19 April 2007 the Minister for Agriculture determined Balbiino’s transitional stocks
         and surplus stock at a total of 12 agricultural product groups, taking as a basis for the determination Paragraphs 6, 7 and
         10 of the ÜLTS, in the version following the amendment made by the judgment of the Riigikohus.
      
      30.      The charge on this surplus stock was fixed on 30 April 2007 by the Maksu- ja Tolliameti Põhja maksu- ja tollikeskus (Tax and
         Customs Office, Northern Tax and Customs Centre) at EEK 1.243.867 (approximately EUR 77 000).
      
      31.      This tax notice and the decision of the Minister of Agriculture of 19 April 2007 were contested by Balbiino before the Tallinna
         Halduskohus, which doubts whether the ÜLTS is compatible, even after amendment, with Community law. It has therefore referred
         the following questions to the Court of Justice pursuant to Article 234 EC: 
      
      ‘(1)      Does the law of the European Union, in particular Article 6(1) of Regulation No 60/2004, in conjunction with recital 3 in
         the preamble to Regulation No 832/2005 and Article 4(1) and (2) of Regulation No 1972/2003, preclude the ascertainment of
         the amount of an operator’s surplus stock by automatically deducting from the surplus stock (regarded as transitional stock)
         the average stock as at 1 May of the operator’s years of activity preceding 1 May 2004, but not more than four years of activity,
         multiplied by 1.2? 
      
      If the answer is in the affirmative, would the answer be different if, in determining the transitional stock and surplus stock,
         account were also taken of the growth of the operator’s production, processing or sales volume, the maturation period of the
         agricultural product, the time when the stocks were built up, and other circumstances independent of the operator? 
      
      (2)      Is it compatible with the law of the European Union, in particular the objective of Commission Regulation No 1972/2003, to
         regard the entire stock of an agricultural product in the operator’s possession as at 1 May 2004 as the operator’s surplus
         stock? 
      
      (3)      If the operator started to deal in the corresponding agricultural product less than one year before 1 May 2004, does the law
         of the European Union, in particular Article 4 of Commission Regulation (EC) No 1972/2003 and Article 6 of Commission Regulation
         (EC) No 60/2004, preclude that operator himself having to prove that the amount of the stock of the agricultural product in
         his possession on 1 May 2004 is equivalent to the amount of the stock of the agricultural product customarily produced, sold,
         or otherwise transferred or acquired by him for payment or without payment?
      
      If the answer is in the affirmative, would the answer be different if, regardless of the operator’s obligation to provide
         proof, the administrative body had an obligation to take into account, on the basis of the declaration of the agricultural
         product submitted by the operator, in assessing the operator’s transitional stock and surplus stock, the growth of the operator’s
         production, processing or sales volume and stock after 1 May 2004?
      
      (4)      Is it compatible with the objective of Commission Regulation No 1972/2003 and Commission Regulation No 60/2004 to levy the
         surplus stock charge where the operator is found to have a surplus stock as at 1 May 2004, provided that the operator shows
         that he has not obtained a real advantage in terms of a price difference from marketing the surplus stock after 1 May 2004?
      
      (5)      May the provisions of Article 6(3) of Commission Regulation No 60/2004, under which account is taken, in determining surplus
         quantities of sugar, isoglucose or fructose, inter alia, of storage capacities, be interpreted as meaning that in a situation
         in which the operator’s storage capacities have increased during the year preceding accession that is a basis for reducing
         the surplus stock of the agricultural product in the possession of the operator as at 1 May 2004, regardless of the operator’s
         economic activity, the volume of the agricultural product processed and the amount of stocks of the agricultural product in
         the years of activity preceding 1 May 2004 and during the two years following 1 May 2004?
      
      (6)      Does Article 10 of Commission Regulation No 1972/2003 preclude the demanding of a surplus stock charge from an operator by
         a tax notice in a situation in which the tax notice was indeed drawn up while the regulation was applicable, on 30 April 2007,
         but according to national law became enforceable against the operator after the final date of application of the Commission
         regulation, provided that national law does not establish a time-limit for demanding the stock charge?’
      
      IV –  Procedure before the Court of Justice
      32.      The reference for a preliminary ruling was lodged with the Court Registry on 18 December 2007.
      
      33.      Written observations have been submitted by the applicant in the main proceedings, the Estonian and Lithuanian Governments
         and the Commission. 
      
      34.      At the hearing, which was held on 18 December 2008, the representatives of AS Balbiino, the Republics of Estonia and Cyprus,
         and the Commission presented oral argument. 
      
      V –  A preliminary matter: the applicability of the Community regulations 
      35.      The Tallinna Halduskohus has referred six questions to the Court of Justice for a preliminary ruling concerning Community
         Regulations Nos 1972/2003, 60/2004 and 832/2005. However, the applicant undertaking in the main proceedings claims that, in
         accordance with the judgment in Skoma-Lux, (9) those regulations were unenforceable against it, because on the date of accession they had not yet been published officially
         in Estonian.
      
      36.      In Skoma-Lux, the Court of Justice declared that, where Community legislation has not appeared in the Official Journal of the European Union in the language of a new Member State, Article 58 of the Act of Accession ‘precludes the obligations contained ... from being
         imposed on individuals in that State, even though those persons could have learned of that legislation by other means’, such
         as the version in electronic format published on the EUR-Lex website. 
      
      37.      However, this precedent is of only limited relevance to the present case, since the Community regulations were developed in
         Estonia by law before accession. As I have pointed out, the Estonian Parliament adopted the ÜLTS on 7 April 2004, introducing
         a charge on surplus stocks of agricultural products and establishing the procedure for calculating them, in accordance with
         Article 4(1) and (2) of Regulation No 1972/2003 respectively. 
      
      38.      The Court of Justice was at pains to point out, in its judgment in Skoma-Lux, that, if a Community regulation has not been published in one of the official languages, it is unenforceable against the
         nationals of the relevant Member State, but that does not alter the fact that, ‘as part of the acquis communautaire, its provisions
         are binding on the Member State concerned as from its accession.’ (10) In short, the regulation retains its validity and the Republic of Estonia cannot avoid its obligation to tax surplus stocks
         of agricultural products by arguing that the Community regulation requiring it to do so did not appear in the Official Journal
         in the language of its country. 
      
      39.      Accordingly, there is no objection to be made against the ÜLTS, (11) and it therefore applies to Estonians, acting as a ‘drive belt’ for the Community regulations. At least, this is what happens
         as regards the measures in the Community regulations which are understood to be ‘incorporated’ into the national legislation:
         provisions which, because they had not been published, had not created obligations for individuals, create them by means of
         a national law. 
      
      40.      The Skoma-Lux decision would have residual scope in this matter with regard to those provisions in the Community regulations which the
         ÜLTS has not incorporated. In that event, non-publication in Estonia would make it impossible to rely on the provisions concerned.
         However, it is for the national court alone to carry out that examination and decide whether there are parts of the Community
         legislation which are not contained in the national law and are therefore unenforceable against individuals. 
      
      41.      Therefore, the failure to publish the corresponding regulations in Estonian must be considered by the national court when
         it gives its decision in the main proceedings, but it does not affect the admissibility of the questions referred for a preliminary
         ruling. The Court of Justice is asked whether legislation such as the ÜLTS constitutes a transposition which is correct and
         in accordance with the Community regulations, a point which is relevant since, although that Community legislation is not
         enforceable against Estonian nationals, it did create obligations for the new Member State. The Tallinn court must evaluate
         the national legislation in the light of the Community legislation and, in particular, of the criteria which the Court of
         Justice offers for its interpretation. 
      
      VI –  Analysis of the questions referred for a preliminary ruling
      A –    The characteristics of the method for calculating the surplus stock 
      1.      General considerations 
      42.      In the first five questions referred for a preliminary ruling the Court of Justice is asked to clarify the conditions which
         Community Regulations Nos 1972/2003, 60/2004 and 832/2005 require the new Member States to satisfy for calculating the surplus
         stocks of agricultural products. 
      
      43.      From the wording of the first two of these regulations it is clear that the new Member States are authorised to adopt implementing
         measures: the creation and levying of a charge on surplus stock, their elimination in some cases (the sugar sector) and the
         prior identification of their amount. 
      
      44.      The regulations not only expressly authorise the Member States to develop them, but also give them ample enough room for manoeuvre
         when carrying out this task. Article 4(2) of Regulation No 1972/2003 and Article 6(3) of Regulation No 60/2004 list the criteria
         for fixing the amounts of surplus stock, but allow other elements to be taken into account. depending on what each Member
         State deems appropriate. The lists are not, therefore, exhaustive, although it is mandatory to consider the factors they set
         out. 
      
      45.      Furthermore, the aforementioned regulations propose a flexible method of calculation, perfectly capable of being adapted to
         the particular features of each operator and each product. For that reason, they do not provide a detailed arrangement of
         the process, but simply indicate minimum and very generic guidelines: ‘the pattern of trade’, ‘the circumstances in which
         stocks were built up’, ‘type of activity of the operators concerned’ and ‘level of activities’ (the last two for sugar).
      
      46.      With these basic ingredients, the Member States had to prepare a mechanism of overall assessment which contained various components,
         each with its own specific weight. 
      
      47.      In any event, the Community legislation forms the boundary and yardstick for the national legislation adopted by each Member
         State, whose power of development and implementation does not jeopardise the objectives of the regulations, or amend their
         provisions or go beyond what they permit. (12)
      
      48.      The answer to the first five questions from the Tallinna Halduskohus is based on these initial ideas.
      
      2.      The first and fifth questions 
      a)      The first question 
      49.      In its first question, the Tallinn Administrative Court asks the Court of Justice whether Article 6(1) of Regulation 60/2004,
         the third recital of Regulation No 832/2005 and Article 4(1) and (2) of Regulation No 1972/2003 prohibit quantifying an operator’s
         surplus stock by deducting from the stock actually held on 1 May 2004 what is known as transitional stock, which is calculated
         as the average stock as at 1 May the four years before accession, multiplied by 1.2. If the answer to this first part of the
         question is in the affirmative, the national court wishes to know whether the situation would be different if account were
         taken, in that calculation, of ‘the growth of the operator’s production, processing or sales volume, the maturation period
         of the agricultural product, the time when the stocks were built up, and other circumstances independent of the operator’. (13)
      
      50.      So as to bring order to the motley mass of details relating to this first question, it is necessary to distinguish between
         the three basic stages in the procedure for calculating surplus stocks which is under consideration: the use of averages obtained
         on the basis of the stocks accumulated at a certain date; the application of a general coefficient; and the weighting of the
         result according to factors beyond the economic operator’s control. 
      
      i)      The calculation of averages using details of stocks at a certain date
      51.      The reference for a preliminary ruling and the observations of the parties in this case show doubts as to the compatibility
         with Community law of a system for calculating surplus stock which is based on the stock held by each undertaking on a calendar
         date. 
      
      52.      This is the system of the ÜLTS, which may be summarised in the following mathematical formula: 
      
      Surplus stock = (stocks at 1/5/04) – (average of stocks at 1/5/00, 1/5/01, 1/5/02 and 1/5/03) x 1.2. (14)
      
      53.      Under Article 4(2) of Regulation No 1972/2003, in order to ascertain the surplus stocks of each holder, ‘the averages of stocks
         available in the years preceding accession’, are taken into account, among other factors. The Community legislation therefore
         requires that former information about stock to be used, but leaves the Member States a certain freedom to specify the figures
         which must be taken as a reference, and the number of years over which and the manner in which the average must be taken.
         
      
      54.      The applicant in the main proceedings maintains in its observations that to consider the level of stocks only at four precise
         moments (1 May in the four years preceding accession) gives unrepresentative results, since an operator did not know that
         the situation in his facilities on those days would be used as an indication of his ‘normal stock’. It adds that Balbiino’s
         activity is cyclical, particularly with regard to the sale of ice-cream, which requires a greater stock of these products
         in the months prior to the summer. 1 May falls precisely within that period of preparation for the high season. 
      
      55.      None of the arguments put forward by Balbiino is persuasive. The handling of those figures cannot be criticised in the light
         of the principle of equality for, although they are not always a ‘true reflection’, to use an accounting term, of what is
         normal in the warehouse of each operator, the possibility of amending the data obtained according to the particular circumstances
         of each economic operator allows for a fairer outcome.
      
      56.      I therefore consider that the Community legislation does not preclude calculating the transitional stocks on the basis of
         the average of the stocks at 1 May 2000, 2001, 2002 and 2003. 
      
      ii)    The weighting of the transitional stocks with a single coefficient of 1.2 
      57.      The Tallinn court also asks whether the introduction of a single coefficient of 1.2 to weight the transitional stocks is consistent
         with the Community legislation, pointing out that the Riigikohus held, in its judgment of 5 October 2006, that that multiplier
         infringed Article 4(2) of Regulation No 1972/2003, because it does not authorise any distinction according to the circumstances
         of each operator. 
      
      58.      The view of the Riigikohus is shared by Balbiino and the Commission, which points out in its observations that, in accordance
         with the principle of equal treatment, holders of stocks who are in different situations cannot be treated in the same way.
         
      
      59.      The Estonian Government has stated that the purpose of introducing the coefficient of 1.2 was to take into account the rapid
         economic growth of Estonia in the years before accession. (15) When the average of the stocks for those years was multiplied by 1.2, the transitional stocks of all economic operators increased,
         with a corresponding reduction in their surplus stock. 
      
      60.      In my view, the application of a coefficient for the purpose of evaluating the economic situation of the applicant State does
         not undermine the objectives of the Community legislation. Furthermore, Regulation No 1972/2003 requires the overall economic
         framework of the State concerned to be assessed, stating in Article 4(2) that it is necessary to take into account ‘the pattern
         of trade in the years preceding accession’. I consider that this expression refers to the changes which have occurred in the
         volume of trade of the State concerned. (16)
      
      61.      The percentage likewise does not jeopardise the attainment of the objectives of the Community legislation, because it makes
         it possible to gauge more accurately the volume of surplus stocks which might incur a risk for the economy of the Union. The
         increase in the transitional stocks reflects the normal effects of economic growth stemming from the prospect of accession:
         the greater the economic buoyancy, the higher the storage rates. 
      
      62.      Enlargements of the Union involve a clear risk of speculative activity which must be prevented, but they also create legitimate
         expectations of economic progress and greater market flexibility, so it is reasonable for operators to prepare to meet them
         in the most favourable circumstances. The Community regulations seek only to avoid the consequences of an excessive accumulation
         of stocks, but a particularly high increase in stock levels in the years preceding accession is a natural consequence of enlargement
         and must be taken into account in order to reduce the degree of disruption which surplus stocks cause in the normal operation
         of the agricultural markets. 
      
      63.      I also consider that there is no objection to the application of this coefficient from the perspective of the principle of
         equal treatment, since it is just one factor in the complex method of calculating the surplus stocks. The possibility of amending
         the result in the light of other circumstances – as explained below – removes any suspicion of unequal treatment. 
      
      iii) The assessment of factors beyond the economic operator’s control
      64.      The national court alludes to this last aspect of the question referred for a preliminary ruling in a secondary question,
         probably with the aim of examining more effectively whether the ÜLTS, once amended, complies with the Community legislation.
         However, the calculation method of the new Member States must be assessed overall, taking all the factors together. The use
         of a general coefficient and the calculation of the average on the basis of details of stocks on four specific dates must
         not be detached from the remaining characteristics of the procedure of each Member State. On their own, they do not make up
         a satisfactory system for identifying surplus stocks, but there can be no objection to their use if they are supplemented,
         as the Community legislation requires, by additional elements in order to adjust the result obtained. 
      
      65.      Article 4(2) of Regulation No 1972/2003 requires the new States to take into account, when determining the surplus stocks
         liable to a charge, the averages of the stocks available in the years preceding accession, the pattern of trade during that
         period and the circumstances in which the stocks were built up. 
      
      66.      Thus, ‘the growth of the operator’s production, processing or sales volume, the maturation period of the agricultural product,
         the time when the stocks were built up, and other circumstances independent of the operator’ are contextual references easily
         adaptable to the concepts dealt with in the aforementioned provision. 
      
      67.      However, even with the residual clause inserted at the end, this list of circumstances is not enough to comply with the Community
         legislation. 
      
      68.      It is necessary, in addition, to integrate, as an essential criterion, the operator’s storage capacity, even though it is
         not included in the list given, because that capacity is linked to a decision taken by the operator. However, the Community
         regulations require the increase or reduction in the storage capacity of the person concerned to be assessed.
      
      69.      This may be deduced, on the one hand, from Article 4(2)(c) of Regulation No 1972/2003, because it is a relevant circumstance
         of the process of generating stock; and, on the other, from Article 6(3) of Regulation No 60/2004, which provides, that, in
         the system of identification for calculating the surplus stocks of sugar, isoglucose and fructose, due account should be taken
         of the ‘capacity of storage facilities’. Furthermore, the third recital in the preamble to Regulation No 832/2005 emphasises
         that, to calculate the surplus stocks of sugar, isoglucose and fructose, the Commission has taken into consideration ‘specific
         circumstances of stock-piling’. Admittedly, these last two provisions apply only to the sugar sector, for the purposes of
         eliminating stocks, but they constitute an important criterion for the interpretation of the legislation which concerns, in
         general, all agricultural products. 
      
      b)      The fifth question 
      70.      Since it is connected with the aspects considered, for the sake of greater clarity I shall now examine the fifth question,
         in which the national court expresses doubts as to the form and extent of that storage capacity. 
      
      71.      It wishes to know whether the aforementioned provision of Regulation No 60/2004 may be interpreted as meaning that an increase
         in an operator’s storage capacity during the year preceding accession means that the surplus stock of the agricultural product
         in his possession as at 1 May 2004 is reduced, regardless of his economic activity, the volume of the agricultural product
         processed and the amount of stocks of the agricultural product in the years of activity preceding 1 May 2004 and during the
         two years following 1 May 2004. 
      
      72.      The question is based on the fact that the decree of the Minister for Agriculture of 30 March 2007, contested by Balbiino
         in the main proceedings, stated that the increase in the undertaking’s storage capacity between 2000 and 2003 as a consequence
         of the construction of additional premises was not reflected in a proportional increase in the level of processing of the
         products stored (especially sugar), which showed that Balbiino does not customarily acquire or possess large stocks of sugar. (17) Therefore, the volume of surplus stock obtained on the basis of the information about the new facilities was not taken into
         account. 
      
      73.      It should be emphasised again that the intention of the Community legislature was to create an overall assessment mechanism
         combining various factors, to be assessed together. Storage capacity is no exception. The Community legislation (particularly
         Regulation No 60/2004, for the sugar sector) requires ‘due’ account to be taken of storage capacity when the surplus stocks
         of each operator are calculated, which does not mean that any increase in that capacity automatically gives rise to a reduction
         in that operator’s surplus stocks. 
      
      74.      It must not be forgotten that the Community legislation is intended to discourage the accumulation of surplus stocks and to
         identify those operators involved in major speculative trade movements (the eighth recital in the preamble to Regulation No
         60/2004). Changes in the storage capacity of the person concerned may therefore alter the assessment of his normal level of
         stocks, provided that the storing of more goods has also been reflected in the level of activity related to those goods. 
      
      c)      Corollary
      75.      I therefore consider that the Community regulations do not preclude quantifying an operator’s surplus stock by deducting from
         the stock actually held on 1 May 2004 the so-called transitional stock, which is calculated as the average stock as at 1 May
         of the four years before accession, multiplied by 1.2, provided that, in that calculation, account is taken of the growth
         of the operator’s production, processing or sales volume, the maturation period of the agricultural product, the time when
         the stocks were built up, the operator’s storage capacity and other circumstances independent of the operator.
      
      76.      As regards storage capacity, Article 6(3) of Regulation No 60/2004 may not be interpreted as meaning that an increase in that
         capacity in the year preceding accession gives a reason for reducing the surplus stock of the agricultural product in his
         possession as at 1 May 2004, regardless of his economic activity, the volume of the agricultural product processed and the
         amount of stocks of the agricultural product in the years of activity preceding 1 May 2004 and during the two years following
         1 May 2004. 
      
      3.      The second question
      77.      By its second question, the Tallinn Administrative Court wishes to know whether it is compatible with Regulation No 1972/2003
         to regard as surplus stock the entire stock of an agricultural product in the operator’s possession as at 1 May 2004. 
      
      78.      In my view, the reply should be in the affirmative.
      
      79.      As has already been pointed out, the transitional measures in Regulation No 1972/2003 are intended to prevent the artificial
         movement of products which do not form part of the normal stocks of the State awaiting accession, or an excessive accumulation
         of nationally produced goods in the same context, from causing trade deflections liable to disrupt the market organisations. (18)
      
      80.      Accordingly, the regulation establishes a procedure for calculating those surplus stocks, in which a whole series of factors
         have to be taken into account together, among them the circumstances in which the stocks were built up and the pattern of
         trade in the years preceding accession. 
      
      81.      Consequently, the Community legislation does not preclude regarding all a company’s stock as surplus stock, in certain circumstances,
         such as limited commercial activity in relation to the product concerned. 
      
      82.      The Government of Estonia sets out the facts in the main proceedings which have given rise to this reference for a preliminary
         ruling. On 1 May 2004, Balbiino had 1 346 kilogrammes of Camembert cheese and 1 338 kilogrammes of Brie. During the previous
         months, the undertaking sold 1.8% and 2% respectively of the Camembert and Brie acquired during that period. In contrast,
         in the two years following accession (from 1 May 2004 to 1 May 2006) it did not acquire a single kilogramme of either of the
         two cheeses and all the stock it held in 2004 was sold by the end of 2005. 
      
      83.      This situation shows that the entire stock of a product held by a company at the time of accession may be regarded as surplus
         stock, where there is evidence of stock-piling with a view to speculation, for example, because following the transaction
         there has not been a proportional movement of sales nor has the supply been kept up.
      
      84.      According to the applicant, any operator has the right to buy and sell any goods, and to enter into any transactions or marketing
         of goods of different kinds whenever it is in his best interests. Certainly, the free market is limited by Community law.
         In the circumstances, the operators of the State applying to join the Union may accumulate stocks of agricultural products,
         but the fact that surplus stocks may be eliminated (in the case of sugar) or taxed probably deters them. 
      
      85.      Therefore, in the aforementioned circumstances, it is compatible with the objective pursued by Regulation No 1972/2003 to
         regard the entire stock of an agricultural product in the operator’s possession on 1 May 2004 as surplus stock.
      
      4.      The third question 
      86.      The third question refers to the burden of proof in the calculation of the surplus stocks of agricultural products. The national
         court wishes to ascertain whether Article 4 of Regulation No 1972/2003 and Article 6 of Regulation No 60/2004 are infringed
         by a scheme under which an operator who started to deal in the goods less than one year before accession has to prove that
         the amount of the stock in his possession on 1 May 2004 is equivalent to the amount customarily produced, sold, or otherwise
         transferred or acquired by him for payment or without payment. (19)
      
      87.      Neither of the aforementioned regulations refers to the onus probandi. That silence allows the Member States to regulate this aspect as they think fit, according to national law, provided that
         the attainment of the objectives of the Community legislation is not jeopardised.
      
      88.      Moreover, it seems logical that, where the State does not have points of comparison for assessing the ‘normal’ level of stocks,
         the interested party should himself have to justify the figures in that respect. 
      
      89.      Since the reply to the first part of the question is in the negative, there is no need to analyse the second part. 
      
      5.      The fourth question 
      90.      By the fourth question referred for a preliminary ruling, it is sought to clarify whether it is compatible with the aforementioned
         Community regulations to levy the surplus stock charge where the operator is found to have a surplus stock as at 1 May 2004
         but proves that he has not obtained a real advantage, in terms of a price difference, from marketing it since 1 May 2004.
         
      
      91.      It is therefore a question of deciding whether, for the purposes of taxing the surplus stocks, the operator has to have obtained
         an advantage. 
      
      92.      The regulations do not include a requirement to that effect, which is rather revealing; it is apparent from the wording that
         the aim of the charge is not to punish the speculator but to prevent any behaviour of this kind from unduly distorting the
         agricultural markets. (20)
      
      93.      Therefore, the deterrent measure must apply to any activity which might cause such disruption, despite the economic benefits
         attained by the operator. 
      
      B –    The consequences for the national measures concerning the charge of the fact that the regulation was no longer applicable
            
      94.      Leaving aside the system for identifying the surplus stocks of agricultural products, the Tallinn court raises, finally, the
         matter of the interpretation of Article 10 of Regulation No 1972/2003, according to which the provision would apply until
         30 April 2007. The problem arises because the tax notice charging Balbiino tax on its surplus stocks was adopted while the
         regulation was applicable (30 April 2007), (21) but, under national law, was not enforceable until a later date, and no time-limit was established for the demand. 
      
      95.      In my view, the Estonian rules on whether the tax dues are payable are irrelevant in this respect. As the Commission points
         out, in that period of three years from accession to the time the regulation ceased to be in force, the States had to regulate
         taxation of the surplus stocks, determine their amount and identify their holders, and calculate the charges. It is immaterial
         that, for various reasons (specific features of the national law or unsettled actions challenging the tax notices, for example)
         none of the sums charged has been collected. If it were otherwise, that period could easily be manipulated by the persons
         concerned. 
      
      96.      The delay in collecting the tax does not undermine legal certainty (as the assessment was to have been sent by 30 April 2007)
         or jeopardise the objectives of the Community legislation, since its impact of discouraging stock-piling is achieved provided
         that, during that period, the national law is adopted and the taxation procedure initiated.
      
      97.      Therefore, Article 10 of Regulation No 1972/2003 does not invalidate a tax notice imposing a charge on surplus stocks issued
         on 30 April 2007, even though under national law that notice did not become enforceable against the operator until after that
         date and no time-limit was established for issuing the demand.
      
      VII –  Conclusion
      98.      In the light of the foregoing considerations, I propose that the Court of Justice give the following reply to the questions
         referred by the Tallinna Halduskohus:
      
      (1)      Article 6(3) of Commission Regulation (EC) No 60/2004 of 14 January 2004 laying down transitional measures in the sugar sector
         by reason of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and
         Slovakia, the third recital in the preamble to Commission Regulation (EC) No 832/2005 of 31 May 2005 on the determination
         of surplus quantities of sugar, isoglucose and fructose for the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary,
         Malta, Poland, Slovenia and Slovakia, and Article 4(1) and (2) of Commission Regulation (EC) No 1972/2003 of 10 November 2003
         on transitional measures to be adopted in respect of trade in agricultural products on account of the accession of the Czech
         Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia, do not prohibit quantifying an
         operator’s surplus stock by deducting from the stock held on 1 May 2004 what is known as transitional stock, which is calculated
         as the average stock as at 1 May of the four years of activity before accession, multiplied by 1.2, provided that, in that
         calculation, account is taken of the growth of the operator’s production, processing or sales volume, the maturation period
         of the agricultural product, the time when the stocks were built up, the operator’s storage capacity and other circumstances
         independent of the operator.
      
      As regards storage capacity, Article 6(3) of Regulation No 60/2004 is not to be interpreted as meaning that an increase in
         that capacity in the year preceding accession gives a reason for reducing the surplus stock of the agricultural product in
         the operator’s possession as at 1 May 2004, regardless of his economic activity, the volume of the agricultural product processed
         and the amount of stocks of the agricultural product in the years of activity preceding 1 May 2004 and during the two years
         following 1 May 2004. 
      
      (2)      It is compatible with Regulation No 1972/2003 to describe the entire stock of an agricultural product in the operator’s possession
         on 1 May 2004 as surplus stock, where there is evidence that stock has been piled with a view to speculation. 
      
      (3)      Neither Article 4 of Regulation No 1972/2003 nor Article 6 of Regulation No 60/2004 is infringed by a scheme under which an
         operator who started to deal in the goods less than one year before accession has to prove that the amount of his stock on
         1 May 2004 is equivalent to the stock of the agricultural product customarily produced, sold, or otherwise transferred or
         acquired by him for payment or without payment. 
      
      (4)      It is compatible with Regulation No 1972/2003 and Regulation No 60/2004 to levy the surplus stock charge where the operator
         has a surplus stock as at 1 May 2004 but proves that he has obtained no real advantage, in terms of a price difference, from
         marketing it since that date. 
      
      (5)      Article 10 of Regulation No 1972/2003 does not preclude the demanding of a surplus stock charge from an operator by a tax
         notice which was drawn up while the regulation was applicable (30 April 2007), although under national law it became enforceable
         against the operator after the final date of application of the regulation and national law does not establish a time-limit
         for recovering the charge. 
      
      1 –	Original language: Spanish.
      
      2 –	In particular, Commission Regulation (EC) No 3108/94 of 19 December 2004 on transitional measures to be adopted on account
         of the accession of Austria, Finland and Sweden in respect of trade in agricultural products (OJ 2004 L 328 p. 42).
      
      3 –	Case C-179/00 Weidacher [2002] ECR I-501, inter alia paragraph 19. 
      
      4 –	They are Cases T-257/04 Poland v Commission; T-258/04 Poland v Commission; T-300/05 Cyprus v Commission; T-316/05 Cyprus v Commission; T-324/05 Estonia v Commission; T‑247/07 Slovakia v Commission; T-248/07, Czech Republic v Commission; and T-262/07 Lithuania v Commission.
      
      5 –	Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the
         Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the
         Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded (OJ
         2003 L 236 p. 33).
      
      6 –	Commission Regulation (EC) No 1972/2003 of 10 November 2003 on transitional measures to be adopted in respect of trade
         in agricultural products on account of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta,
         Poland, Slovenia and Slovakia (OJ 2003 L 293 p. 3).
      
      7 –	Commission Regulation (EC) No 60/2004 of 14 January 2004 laying down transitional measures in the sugar sector by reason
         of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia
         (OJ 2004 L 9 p. 8).
      
      8 –	Commission Regulation (EC) No 832/2005 of 31 May 2005 on the determination of surplus quantities of sugar, isoglucose and
         fructose for the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (OJ 2005
         L 138, p. 3).
      
      9 –	Case C-161/06 Skoma-Lux [2007] ECR I-10841.
      
      10 –	Judgment in Skoma-Lux, paragraph 59.
      
      11 –	Any objections raised pursuant to national law concerning the validity or applicability of the ÜLTS (such as its alleged
         belated publication, to which the undertaking refers in points 22 and 23 of its observations) must be raised only before the
         national court. 
      
      12 –	With regard to the discretion enjoyed by the Member States in the application and development of the Community regulations,
         see Case 31/78 Bussone [1978] ECR 2429, paragraph 16; Case C-313/99 Mulligan [2002] ECR I-5719, paragraph 33; and Case C-55/06 Arcor [2008] ECR I‑0000, paragraph 140. 
      
      13 –	The question referred for a preliminary ruling cites, among the relevant Community provisions, Article 6(1) of Regulation
         No 60/2004. It would be more appropriate, however, to refer to Article 6(3), since it is necessary to evaluate the correctness
         of a method of calculating the surplus stock of each operator, not to determine, as in Article 6(1), the overall surplus stock
         of each Member State.  
      
      14 –      The weighted average which constitutes the subtrahend of this subtraction is given the name ‘transitional stocks’. 
      
      15 –	The volume of production in the food industry in 2004 had increased by 20.7% in relation to 2000. 
      
      16 –	The wording of Regulation No 3108/94, adopted in connection with the 1994 enlargement, is clearer. Article 4(2) thereof
         referred to the need to record ‘the pattern of trade in the years preceding accession’. 
      
      17 –	AS Balbiino’s sugar stock fluctuated, before May 2004, only between 0.9% and 2.4% of that year's processed volume, since
         the operator did not have a sufficiently large storage capacity of its own in which to keep sugar in the necessary amount,
         and as at 1 May 2005 it still did not exceed 3% of the volume processed in that year (from 1 May 2005 to 1 May 2006), that
         is, 9.7 times less than on 1 May 2004. 
      
      18 –	The third recital in the preamble to the regulation. 
      
      19 –	It is surprising that the only article of the ÜLTS which establishes a scheme similar to the one under consideration here
         does not concern operators who have been dealing for less than one year, but less than four years (Article 6(2)), which does
         not affect the reply suggested. 
      
      20 –	To that effect see, in relation to Regulation No 3108/94, the judgment in Weidacher, paragraph 22.
      
      21 –	The assessment was handed over to the postal services on that date, 30 April.