Zuckerfabrik Jülich AG and Others v Hauptzollamt Aachen and Others.
Date: 2012-09-27
39. Pursuant to Article 15(1)(d) of the basic regulation, the average loss is equal to the difference between the total amount of refunds and the total amount of levies on the total tonnage of export obligations to be fulfilled during the marketing year concerned. The estimate of the total loss is, according to Article 15(1)(e) of that regulation, calculated by multiplying the exportable surplus by the average loss.
46. To that end, it should be noted that the basic regulation seeks to establish a system of self-financing of the costs of disposing of surpluses, which consists of ensuring, in a fair yet efficient way, that the producers themselves meet those costs in full ( Zuckerfabrik Jülich and Others , paragraph 44). Consequently, the method of calculation adopted must not lead, in practice, to fixing a priori  the total loss at an amount greater than that of the costs linked to refunds in relation to disposing of Community production surpluses ( Zuckerfabrik Jülich and Others , paragraph 60).
47. Moreover, it is apparent from Article 15(1)(e) of the basic regulation that the overall loss is obtained by multiplying the exportable surplus by the average loss. Therefore, any overestimation of the average loss inevitably leads to an overestimation of the overall loss.
48. The method of calculation used by the Commission to determine production levies in the sugar sector, as fixed by Regulation No 1193/2009, is not based on the taking into account of the amount of export refunds paid to ensure the disposal of the quantities of sugar contained in processed products which have been subject to export obligations. It consists of attributing to all those quantities a theoretical amount of refund, based on the average of the amounts fixed periodically by the Commission, irrespective of how effective it is to pay a possible refund and of the actual amount of such a refund.
49. However, as is apparent from the file and, in particular, from the various working documents of the Management Committee for the Common Organisation of Agricultural Markets, in so far as a substantial part of the sugar contained in processed products is exported without the payable refunds ever being paid, that method of calculation amounts to artificially increasing the total amount of refunds. The figure retained by the Commission as the total amount of refunds thus no longer bears a direct relationship with the costs for the European Union’s budget related to the disposal of sugar surpluses.
50. It should be noted that the total amount of refunds constitutes part of the numerator of the ratio making it possible to calculate average loss. Moreover, that increase of the numerator necessarily implies an overestimation of the average loss and thus of the overall loss, in infringement of Article 15(1) of the basic regulation.
54. In the light of the foregoing, the answer to the single question in Case C-113/10, the first question in Case C-147/10 and the two questions in Case C-234/10 must be that Regulation No 1193/2009 is invalid, with the exception of Article 3 thereof, which has already been annulled as a result of the annulment of Article 2 of Regulation No 1686/2005 by the General Court in its judgment in Case T-4/06 Poland  v Commission .
The second question in Case C-147/10
58. Moreover, since, pursuant to Article 8(1) of Decisions 2000/597 and 2007/436, those levies are collected by the Member States in accordance with national provisions imposed by law, regulation or administrative action, which are adapted, where necessary, to the requirements of European Union law, disputes relating to the recovery of sums levied on behalf of the European Union therefore come within the jurisdiction of national courts and must be settled by those courts in application of their national law as regards both procedure and substance to the extent to which European Union law has not made other provision in the matter (Case 26/74 Roquette frères  v Commission [1976] ECR 677, paragraph 11, and Case 130/79 Express Dairy Foods  [1980] ECR 1887, paragraph 11).
60. In the absence of provisions of European Union law in the area, it is for the national authorities, and in particular the national courts in the case of refunds of levies unduly charged on the basis of European Union regulations which have been declared invalid, to resolve all ancillary questions related to such refunds, such as the payment of interest, by applying their domestic rules regarding the rate of interest and the date from which interest must be calculated (see, to that effect, Express Dairy Foods , paragraphs 14 and 17).
61. In the absence of European Union legislation, it is for the internal legal order of each Member State to lay down the conditions in which such interest must be paid, particularly the rate of that interest and its method of calculation (simple or ‘compound’ interest). Those conditions must comply with the principles of equivalence and effectiveness; that is to say that they must not be less favourable than those concerning similar claims based on provisions of national law or arranged in such a way as to make the exercise of rights conferred by the European Union legal order practically impossible (Case C-591/10 Littlewoods Retail and Others  [2012] ECR, paragraph 27).
65. Where a Member State has levied charges in breach of the rules of European Union law, individuals are entitled to reimbursement not only of the tax unduly levied but also of the amounts paid to that State or retained by it which relate directly to that tax. That also includes losses constituted by the unavailability of sums of money as a result of a tax being levied prematurely (see Joined Cases C-397/98 and C-410/98 Metallgesellschaft and Others [2001] ECR I-1727, paragraphs 87 to 89; Case C-446/04 Test Claimants in the FII Group Litigation  [2006] ECR I-11753, paragraph 205; and Littlewoods Retail and Others , paragraph 25).
66. It follows from that case-law that the principle of the obligation of Member States to repay with interest amounts of tax levied in infringement of European Union law follows from that law (see Littlewoods Retail and Others , paragraph 26).
67. Thus, irrespective of the question whether the Member State may recover interest on the European Union’s own resources — which is a question which does not have to be resolved in the context of the present case — individuals entitled to reimbursement of sums paid unduly in respect of production levies in the sugar sector determined on the basis of an invalid regulation are also entitled to payment of the interest on such sums.