CELEX: 51980PC0811
Language: en
Date: 1980-12-01
Title: Proposal for a COUNCIL REGULATION (EEC) amending Regulation (EEC) No 1111/77 laying down common provisions for isoglucose#Proposal for a COUNCIL REGULATION (EEC) amending Regulation (EEC) No 1592/80 on the application of the system of production a n tthe sugar and isoglucose sectors during the period 1 July 1980 to 30 June 1981 (submitted to the Council by the Commission)

ARCHIVES HISTORIQUES
DE LA COMMISSION
COLLECTION RELIEE DES
DOCUMENTS "COM"
COM (80) 811
Vol. 1980/0256
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 ---pagebreak--- COMMISSION OF THE EUROPEAN COMMUNITIES
                                                   COM(80)811 final
                                                   Brussels , 1 December 1980
                              Proposal for a
                        COUNCIL REGULATION ( EEC )
                  amending Regulation ( EEC ) No 1111 /77
             laying down common provisions for isoglucose
                             Proposal for a
                        COUNCIL REGULATION ( EEC )
  amending Regulation ( EEC ) No 1592/80 on the application of the
      system of production           an tthe sugar and isoglucose
        sectors during the per,iod 1, July 1980 to 30 June 1981
             ( submitted to the Council by the Commission )
COM 80 ) 811 final
 ---pagebreak---                                    EX P LA',, ATOP i MEMORAjv.DtTj
» i „ For the period * J-ily 1Q79 t *> 30 Jur.e 1 980 the basic isogluccoe
    . 'flegulatien (1 ). ( as r.T.pndsd -by Regular. ion .( EEC , No 1?33 / '79(2 ))
         established a-quot?. ~V'-        3i?bf,ouE to that- applied to sugar dur ing
         the same; period . The introduction of such a regime for isoglucose was
         provided for in Regulation ' ( EEC ) >'o 1293 /79 following a judgement by
         the European Court of Justice on 25 October 1978 which , under the
         terms of Article 177 of the EEC Treaty ( reference for a preliminary
         ruling ), pronounced on the claim by three isoglucose-producing
         undertakings that Regulation ( EEC ) No 1111 /77 was invalid to the
         extent that its Articles 8 and 9 imposed a production levy on
         isoglucose of 5 UC per 100 kg of dry matter .             The Court declared that
         this levy breached the general principle of non-discrimination within
       ""the meaning of Article 40(3 ) of the EEC Treaty , mainly on the ground ,
         that the production levy on sugar:' applied only to "B " sugar and thus
 .<      the sugar manufacturers had the possibility of reducing the charge
      . represented by the ievy by limiting their production .              The Court also
         pointed out . that under the common organisation of the markets in the
         sugar sector about 60 ^ of the average charge represented by the
         production levy was borne by the beet growers and that because this
         element had not been taken into consideration the charges borne by the
         sugar ihanufacturers had been materially over-estimated .
         In the light of this judgement the Council , on a proposal from the
     ; Commission and after consultation with Parliament , adopted Regulation
         ( EEC ) No 1293 / 79 which introduced , in particular', a system of
         production quotas for isoglucose based on the provisions in force in
         the sugar sector .     In an effort to avoid any discrimination between
         the two see tors or between undertakings producing isoglucose these
         quotas were determined by reference , on the one hand , to the actual
         production of each undertaking in the most recent possible reference
         period after the Court 's judgement in which the dissuasive effect of
         the levy no , longer existed , and ,- on the other , to the technical annual
         production capacity of each undertaking.                            '
 ( 1 ) OJ No L 13 ^, 28.5.1977 , P - 1
 ( 2 ) OJ No L 162 , 30.6.1979 , p. 10
 ---pagebreak---                                         - 2 -
       Hence for the period 1 July 1979 to 30 June 1980 each
    . isoglucose-producing undertaking established in the Community was
      allocated a basic quota equal to twice its actual production in the
      period 1 November 1978 to 30 April 1979 . To this basic " A " quota was
      added a "B " quota equal to 27-5 ? of the basic quota on condition that
      the sum of the " A " and "B " quotas should be neither less than 65$ of
      the technical annual production capacity of the undertaking in
      question nor more than 85% of that capacity .     Consequently , provision
     was made ( as in the case of "B " quota sugar ) to charge a production
      levy on "B " quota isoglucose .   Taking account of the Court 's judgement
     of 25 October 1978 , the amount of this levy was limited to the
      proportion of the levy on "B " quota sugar borne by the sugar
     manufacturers ( i.e. about 40$ of the sugar levy ).     Finally , the
      Regulation also defined the status of " C " isoglucose .    For the rest ,
      Regulation ( EEC ) No 1293 /79 brought the system of export refunds for
      isoglucose into line with that for sugar syrups , and it repealed the
     previous production levy system for isoglucose with effect from 1 July
      1977 .
2 . To the extent that it provided for a production levy system for
      isoglucose by inserting a new Title II ( Articles 8 and 9 ) in the basic
      isoglucose Regulation ( EEC ) No 1111 /77 , Regulation ( EEC ) No 1293 /79
     was the subject of a claim for its annulment made to the European
     Court of Justice by two other isoglucose-producing undertakings .
     In essence such a regime , according to the plaintiffs , violated the
     legal principles of competition , the principle of proportionality , and
     the principle of equality of treatment , and created a discrimination
     between sugar producers and isoglucose producers , and between
     isoglucose producers themselves .     In addition , the plaintiffs invoked
     errors of substantial form , in which they were supported by the
     European Parliament as the intermediary , in that Parliament had not
     been consulted in accordance with Article *13(2 ) of the EEC Treaty .
     In its judgements of 29 October 1980 the Court rejected all -the basic
     complaints invoked by the plaintiffs .      The grounds for these
     judgements can be summarised as follows :
 ---pagebreak---                                        - 3 -
a )- Re th e violation or . the principles of the law of competition :
     The Court stated that the establishment of a system of und.istorted
     competition was not the only objective laid down in Article . 3 of the
     EEC Treaty , which also provides , in particular , for the establishment
     of a common agricultural policy , and that the authors ef the Treaty ,
     realising that the simultaneous pursuit of these two objectives could ,
     at certain times and in certain circumstances , be difficult , had
     provided that the Treaty provisions relating to the rules of
     competition were applicable to the production of and trade in
     agricultural products only to the extent determined by the Council
     having regard to the objectives laid down in Article 39 of the EEC
     Treaty .  The Court concluded that these considerations indicated at
     one and the same time the primacy of the agricultural policy over the
     objectives in the Treaty relating to competition and the power of the
     Council to decide to what extent the rules of competition should apply
     in the agricultural sector . 'The Court added that in exercising this
                                    I
  ; power , as in the implementing the whole of the agricultural policy ,
     the Council retained a large measure of discretion and that in
   " establishing the regime for isoglucose in the present case the Council
     had not exceeded this discretionary power .                            *
b ) Re the breach of the proportionality principle
     The Court rejected this complaint .     It took the view that the
     plaintiffs' argument that the Council had obstructed the rational use •
     of their production capacities was not , well- founded since their actual
     production did not even reach their allotted maximum quotas ; that the
     plaintiffs ought not to expect the Council to take account of the
% motivations of , and . commercial options open to , each individual
     undertaking when it adopted measures in the general interest of
     avoiding a situation in which the uncontrolled production of
     isoglucose could put the Community 's sugar policy at risk ; and ,
     finally , that it was incorrect to- maintain that no restrictive steps .
     had been taken against the sugar industry and that , in any case , the
     scope for' action in respect of that industry was limited because the
     Council had to have regard to the maintenance of a fair standard of
     living for those engaged in agriculture .      -
 ---pagebreak---                                        - 4 -
 c ) R e t h e breach of the principle of equality of treatment :
      The Cou"t rejected this complaint . It held that - taking account of
      the fact that isoglucose production had contributed to an increase in
     sugar surpluses and that it was permissible to apply restrictive
     measures to such production - it was open to the Council to adopt
     whatever measures it judged appropriate having regard to the
     similarity between the two markets and to their interdependence as
     well as to the specific nature of the market in isoglucose ; and ,
     finally , that it was a question of the Council being faced with the
     delicate situation for the Community 's sugar policy created by the
     production of isoglucose and having to introduce as quickly as
     possible a transitional' regulation .
d ) Re the discrimination between sugar producers and isoglucose producers
     and between isoglucose producers :
     The Court rejected these complaints also .    It considered that the
     differences , referred to by the plaintiffs , between the provisions
     were accounted for by the differences between the two industries from
     which the Council , in exercising its power of discretion , had drawn
     the inferences .    The Court added that after its first judgement on 25
     October 1978 the isoglucose-producing enterprises had reacted
     differently but the Council was not to be blamed for not having taken
   ' into account the commercial options and internal policies of each
     individual undertaking when adopting measures in the general interest
     of avoiding a situation in which the uncontrolled production of
     isoglucose could put the Community 's sugar policy at risk .
     In rejecting all these complaints the Court established that
     Regulation ( EEC ) No 1293 /79 is in basic conformity with Community law .
     Nevertheless , the Court annulled the Regulation and upheld the claim
     of error of substantial form on the ground that the Opinion of the
     European Parliament , as required by the third subparagraph of Article
     43(2 ) of the Treaty , was not obtained .
     In essence the Court 's view here was that the consultation required by
     the third subparagraph of Article ^ 3(2 ) of the Treaty is the means
     whereby Parliament can effectively participate in the Community 's
     legislative process . The Court added that this requirement was an
     essential element in the institutional balance sought by the Treaty
     and that it was a reflection , albeit a limited one , at Community level
 ---pagebreak---                                         - 5 -
      of a fundamental democratic principle according to Which the people
     participate in the exercise of power via a representative Assembly .
     The Court concluded that the regular consultation with Parliament in
     the cases prescribed by the Treaty therefore constitutes a substantial
     formality , the non-observance of which would lead to the' annulment of
     the action concerned . The Court stated that in' the present, case an
     observance of this consultation requirement would imply the expression
     by Parliament of an Opinion and that this requirement could not be .
     regarded as having been fulfilled by a simple request by the Council
     for Parliament 's view because , according to the Court , the Council had
     not exhausted all the possibilities of obtaining Parliament 's view ,
     had not requested that the matter be dealt with under the urgent
     procedure , and had not utilised the possibility offered by Article 139
     of the Treaty to request an extraordinary session of Parliament ,
     although on 1 March and 10 May 1979 the Office of the Parliament had
     drawn the /Council 's attention to this possibility .
3 . In the light of the annulment of Regulation ( EEC ) No 1293 / 79 on the
     ground of error of form , and having regard to the Court 's judgement of
     29 October 1980 , the Commission now proposes that the Council , after
     consultation with Parliament under the urgent procedure , should
     reinstate retroactively from 1 July 1979 the provisions contained in
*    the annulled Regulation which , according to the Court , are in basic
     conformity with Community law .     It is both urgent and essential to do
     this in view of the situation in respect of the period 1 July 1979 to
     30 June 1980 created by the Court 's annulment .       The Council should be
     aware that the representatives of the Member States on the Management
     Committee have been notified of the Commission 's Intention to make
     this proposal to the Council .     In the meantime , pending the Council 's
     decisions in this matter , it is inappropriate to continue to charge a
     production levy on B isoglucose or. to reimburse the levy already
     collected
     In addition , the Commission deems it necessary to make a further
     proposal about ' the provisions concerning isoglucose contained in
     Council Regulation (EEC) No 1592/80 ( 1 ) . Article 2 of that
                                                     •C ' •    ,
( 1 ) 0^ Νο I, 160 , 26.6.198ο , ρ . 12
 ---pagebreak---  Regulation lays , down that " Article 9 of Regulation ( EEC ) No 1111 /77
shall apply during the period 1 July 1980 to 30 June 1981 ." and that
" The basic quota of each isoglucose-producing enterprise for the
period 1 July 1980 to 30 June 1 98 1 shall be that applicable during the
period 1 July 1979 to 30 June 1980 .".
The effect of the aforementioned Article 2 of Regulation ( EEC )
No 1592 /80 is to apply during a supplementary period of 12 months the
isoglucose production regime laid down in Regulation ( EEC ) No 1293 /79 ,
now annulled by the Court ( this Regulation having , in particular ,
inserted a new Article 9 concerning this regime in Regulation ( EEC )
No 1111 /77 ).   The Commission therefore proposes that in order to
remove any juridical doubt concerning this provision in Regulation
( EEC ) No 1592 /80 the Council should , after consultation with
Parliament under the urgent procedure , confirm the said Article 2 and ,
to avoid all ambiguity , should state that the text so confirmed will
henceforth refer to the new Article 9 of the Regulation which will
replace Regulation • ( EEC ) No 1293 /79 ( the aim of the first proposal ).
These two proposals aim retroactively to re-establish , or to render
more precise , the current provisions .      They involve no new financial
implications for the Community budget .
 ---pagebreak---                                           Proposal for a
                                    . COUNCIL REGULATION ( EEC )-          •
                         amending Regulation ( EEC ) No 1111 /77             "         .
                    laying down common provisions for isoglucose
   THE COUNCIL OF THE EUROPEAN COMMUNITIES ,          <
   Having regard to the Treaty establishing the European Economic Community ,
   and in particular Article H3 thereof ,
   Having regard ,to the proposal from the Commission ,
   Having regard to the opinion of the European Parliament ^
                                                        (?)
   Whereas Council Regulation ( EEC ) No 1111 /77           *
                                                in the version as last amended by
                                   (3)         ....                 .
   Regulation ( EEC ) No 1293 /79      ♦ provided for the application of a .
   system of -production quotas for the period from 1 July 1979 to - 30 June
   1980 ;   .          ^  '            '■                                 -•
   Whereas in Cases 138 / 79 " and 139 /79 the Court of Justice of the European
   Communities , on 29 October 1980 , annulled Regulation ( EEC ) No 1293/79 ,
   which amended Regulation ( EEC ) No 1111 /77 , on the ground of an infringement of an
   essential procedural requirement due to the absence of an opinion of the Parliament as
   required by Article ^3 of the Treaty ; whereas , in rejecting all the
   alleged       ' breaches           of the principle of the law of competition ,
   of the principle of proportionality and of             ' non-discrimination invoked
   against the system of production quotas introduced by Regulation ( EEC ) No
   1293 /79 , the Court affirmed that the latter Regulation was in basic
   conformity with Community law ; whereas it is therefore appropriate to
reintroduce retroactively the provisions of Regulation (EEC ) No 1293/79 and
 , to repeal the provisions of TitLe II of Regulation ( EEC ) No 1111 / 77 as amended
   by Regulation ( EEC ) No 1298 / 78       .
. HAS ADOPTED THIS REGULATION :.,                           ' .
   ( 1 ) OJ No C
   ( 2 ) OJ No L 134 , 28.5.1977 , p. M
   ( 3 ) OJ No L 162 , 30.6.1979 , p. 10                          •
   ( 4 ) 0J No L 160 , 17.6.1978 , p. 9 .                                          - :
 ---pagebreak---                                               - 2 -
       Regulation ( EEC ) No 1111 / 77 is hereby amended as follows :
  1 . Article 4(1 ) is replaced by the following :
                                           "Article 4
      1 . Provision may be made for an export refund for the products listed in
           Article 1 when unprocessed and for isoglucose falling within
           subheading 17.02 D 1 exported in the form of the goods listed in Annex
           1.
           The level of the refund shall be determined per 100 kilograms of dry
           matter , taking into account the following in particular :
           a ) the export refund fixed pursuant to Article 19(1 ) of Regulation
               ( EEC ) No 3330 /74 for the products referred to in Article 1(1 )( d ) of
               that Regulation ;                                                  ,
           b ) the economic aspects, of the proposed exportations .
           When the refund is being fixed , account may be taken of the need to
           establish a balance between' the use of Community raw materials in the
           manufacture of processed goods for export to third countries and the
           use of the products of such countries brought in under inward
           processing arrangements .".
2 . Title II is hereby repealed with effect fropi 1 July 1977 .
      The following Title shall be inserted after Article 7 :
      ( 1 ) OJ No L 160 , 17.6.1978 , p. 9
 ---pagebreak---                        ■  -     .    r TITLE II
                                Quota Arrangements
                                     Article 8
Article 9 shall apply for the period 1 July 1979 to 30 June 1980 .-
                                     Article 9
 1 . For the period referred to in Article 8 a basic quota shall be
      allotted to each isoglucose-producing undertaking established in the
      Community .
      Without prejudice to the ' application of paragraph 3 , the basic quota
      of each such undertaking shall be equal to twice its - production , as
      established under this Regulation , during the period 1 November 1978
      to 30 April 1979 .                   ;    -          ,
2 . To each undertaking having a basic quota , there shall also be allotted
  ;   a maximum quota equal to its basic quota multiplied by a coefficient .
      This coefficient shall be that fixed pursuant to the second ..
      subparagraph of Article 25(2 ) of Regulation ( EEC ) No 3330 /7 ^ for the
      period 1 July 1979 to 30 June 1980 .         ■  .
3 . If necessary , the basic quota referred , to in paragraph 1 shall be
      corrected so that the maximum quota determined in accordance with
      paragraph 2 :         '                                  '  :
    , -   does not exceed 85% ,                                                 ■(
          is not less than 65%
      of the technical production capacity per annum of the undertaking in
      question .
4 . The basic quotas established pursuant to paragraphs 1 and 3 shall be
      fixed for each undertaking as set out in Annex II .
5 . Isoglucose-producing undertakings which have not produced any during
      the reference period referred to in the second subparagraph of
      paragraph 1 and which can be shown to have resumed systematic
      production during the period referred to in Article 8 shall be .
      allotted a basic quota equal to the highest volume of their production
      attained during one of the following periods :
      -   1 August 1976 to 31 July 1977 ,
      -   1 July 1977 to 30 June 1978 .
 ---pagebreak---                                         - 14 -
      A maximum quota , determined in accordance with the provisions of
      paragraph 2 , shall be allotted to such undertakings .
6.    A basic quota shall be allotted to undertakings starting systematic
      production of isoglucose during the period referred to in Article 8
     within the limits of a Community reserve quantity equal to           of the
      total of basic quotas established pursuant to paragraph 1 .
7.   The quantity of isoglucose produced during the period referred to in
     Article 8 which :
     - exceeds the maximum quota of the undertaking ,
        or
     - was produced by an undertaking not having a basic quota
     may not be disposed of on the Community 's internal market and must be
     exported in the natural state to third countries without the
     application of Article 4 .
8.   For the quantity of isoglucose production which exceeds the basic
     quota without exceeding the maximum quotas Member States shall charge
     a production levy on the isoglucose producer concerned .
     For the period referred to in Article 8, the amount of the isoglucose
     production levy shall be equal to the share of the sugar production
     levy , as fixed for the 1979 / 80 sugar year pursuant to Article 28 of
     Regulation ( EEC ) No 3330 / 7 ^, borne by the sugar manufacturers .
9.   The Council , acting by a qualified majority on a proposal from the
     Commission , shall allocate the quotas referred to in paragraphs 5 and
     6 and shall adopt any general rules necessary for the application of
     this Article .
10 . Detailed rules for the application of this Article , which shall in
     particular provide for the levying of a charge on the quantity of
     isoglucose referred to in paragraph 7 which has not been exported in
     the natural state during the period referred to in Article 8 and fix
     the amount of the production levy referred to in paragraph 8 , shall
     be adopted in accordance with the procedure laid down in Article 12 .".
 ---pagebreak---                                            - 5 -
it . The following Annex II is added :
                                        " ANNEX II
                                                               Basic quota in      :
     :     Undertaking        Address of Registered Office     tonnes expressed as :
                                                               dry matter          :
                                                                         \         !
     : Maizena GmbH          D-2000 Hamburg 1 , Postfach 1000         28 000       :
     : Amy1 um SA            rue de l' Intendant 49 , Β- 1020
                               Bruxelles                              56 667       :
     : Roquettes Frères ;    17 , Boulevard Vauban
     :   SA                    F-59000 Lille ,                        15 887       :
     : SPAD                  15063 Cassano Spinola ,
                               I-Alessandria , casella
                                postale 1                              5 863       :
     : Fabbriche riunite                                                      ø    9
                                             <-
     : Amido glucosio
     : destrina , SpA        Piazza Erculea 9 , I-Milano              10 706       :
     : Tunnel Refineries     Thames Bank House , Greenwich
     : Ltd                   UK-London SE 10 OPA                      21 696       :
                                        Article 2
     1.  This Regulation shall enter into force on the day of its publication
         in the Official Journal of the European Communities .
     2.  It shall apply with effect from 1 July 1979, with the exception of
         Article 1(2 ), which shall app.ly with effect from 1 July 1977 .
   . 3.  References to Regulation ( EEC ) No 1293/79 contained in acts
         adopted in implementation of Regulation ( EEC ) No 1111 /77 shall be
         construed    as references to this Regulation .
     This Regulation shall be binding in its entirety and directly applicable
     in all Member States .
     Done at Brussels ,                              For the Council
 ---pagebreak---                                          Proposal for a
                                       COUNCIL REGULATION ( EEC )
               amending Regulation ( EEC ) No 1592 /80 on the application of
                the system of production quotas in the sugar and isoglucose
                  sectors during the period 1 J^ily 1980 to 30 June 1981
     THE COUNCIL OF THE EUROPEAN COMMUNITIES ,
    Having regard to the Treaty establishing the European Economic Community ,
    and in particular Article *43 thereof,
    Having regard to the proposal from the Commission ,
    Having regard to the opinion of the European Parliament
                                                                    (?)
    Whereas Article 2 of Council Regulation ( EEC ) No 1592 / 80
    applied to the period 1 July 1980 to 30 June 1981
                               the production quota system for isoglucose
    provided for up to 30 June 1980 by Council Regulation ( EEC ) No 1111 /77 of
              *        .                     . .    ...              ( 3)
    17 May 1977 laying down common provisions for isoglucose              , as last
    amended by Regulation (EEC) No 1293/79 ^^;
    Whereas Regulation ( EEC ) No 1293/79                 amended Article 9 in
    Regulation ( EEC ) No 1111 /77 and thereby introduced the aforesaid
    production quota system for isoglucose with effect from 1 July 1979 ;
 ' Whereas in Cases 138 / 79 and 139 / 79 the Court of Justice of the European
    Communities , on 29 October 1980 , annulled Regulation ( EEC ) No 1293 /79 on
    the ground of an infringement of an essential procedural requirement; whereas Article 2
of Regulation ( EEC ) No 1592 /80 applied the production quota system , as
    established by the now annulled Regulation , to the period 1 July 1980 to
    30 June 1981 ; whereas, in order to avoid any doub.ts as to the legality of
    this provision, it is appropriate that , in respect of the same period , the
    aforesaid Article 2 of Regulation ( EEC ) No 1592 /80 should henceforth
    contain a reference to Article 9 of Regulation ( EEC ) No 1111 /77 in the
    version contained in Council Regulation ( EEC ) No           /80 of           1980
    amending Regulation ( EEC ) No 1111 /77 laying down, common provisions for isoglucose ^
    HAS ADOPTED THIS REGULATION :
    ( 1 ) OJ No C
    ( 2 ) 0J No L 160 , 26.6.1980 , p. 12
    ( 3 ) 0J No L 13-4 , 28.5.1977 , p. 4
    ( 4 ) OJ No L 162 , 30.6.1979 , p . 10
   •( 5 ) 0J No L
 ---pagebreak---                                        - 2 -
                                     Article 1 .
Article 2 of Regulation ( EEC ) No 1592/ 8Q is hereby replaced fc>y the
following :                          '
                                   " Article 2
 1 . Article 9 of Regulation ( EEC ) No 1111 /77 in the version as amended by
     Regulation ( EEC ) No    /80 shall apply to       the period 1 July 1980
     to 30 June 198 1 .
2 . For the period 1 July 1980 to 30 June 1981 the basic quota of each
     isoglucose-producing undertaking shall be that applicable during the
     period 1 July 1979 to 30 June 1980 pursuant to Regulation ( EEC )
     No     / 80 .
                                     Article 2
This Regulation shall enter into force on the day of its publication in
the Official Journal of the European Communities .
It shall apply     with effect from 1 July 1980 .
This Regulation shall be binding in its entirety and directly applicable
in all Member States .
Done at Brussels ,                               For the Council