Raffinerie Tirlemontoise SA v État belge.
Date: 2017-02-09
13


As a preliminary point, it should be noted, first, that Article 33(1) of Regulation No 2038/1999, establishing the criteria for determining the production levies for the 1995/1996 to 2000/2001 marketing years, and Article 15(1) of Regulation No 1260/2001, establishing the criteria for determining the production levies for the 2001/2002 to 2005/2006 marketing years, are essentially identical (see, to that effect, judgment of 8 May 2008, Zuckerfabrik Jülich and Others, C‑5/06 and C‑23/06 to C‑36/06, EU:C:2008:260, paragraph 31). The same is true for Article 33(2) of Regulation No 2038/1999 and Article 15(2) of Regulation No 1260/2001.
16


Under Article 33(1)(d) of Regulation No 2038/1999, 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 the export obligations to be fulfilled during the marketing year concerned (see, to that effect, judgments of 8 May 2008, Zuckerfabrik Jülich and Others, C‑5/06 and C‑23/06 to C‑36/06, EU:C:2008:260, paragraph 46, and of 27 September 2012, Zuckerfabrik Jülich and Others, C‑113/10, C‑147/10 and C‑234/10, EU:C:2012:591, paragraph 39).
17


The concept of ‘export obligations to be fulfilled during the current marketing year’, the tonnage of which, pursuant to Article 33(1)(d) of Regulation No 2038/1999, constitutes the denominator of the ratio making it possible to calculate the average loss, has the effect of covering any quantity of products coming under Article 33 of that regulation which is intended for export from the European Community, and the question whether or not the quantities of products for export attract export refunds is not relevant in the light of that concept (see, to that effect, judgment of 8 May 2008, Zuckerfabrik Jülich and Others, C‑5/06 and C‑23/06 to C‑36/06, EU:C:2008:260, paragraphs 49 to 51).
18


Therefore, all the quantities of exported products which come under Article 33 of Regulation No 2038/1999 are to be taken into account pursuant to Article 33(1) thereof for the purpose of calculating the estimated average loss per tonne of product, regardless of whether or not refunds have actually been paid (see, to that effect, judgment of 8 May 2008, Zuckerfabrik Jülich and Others, C‑5/06 and C‑23/06 to C‑36/06, EU:C:2008:260, paragraph 61).
19


As to the ‘total amount of refunds’, which, pursuant to Article 33(1)(d) of Regulation No 2038/1999, constitutes part of the numerator of the ratio making it possible to calculate average loss, this must bear a direct relationship with the costs for the Community’s budget related to the disposal of product surpluses in the sugar sector and must, consequently, be based on the taking into account of the amount of export refunds paid to ensure the disposal of the quantities of product which have been subject to export obligations (see, to that effect, judgment of 27 September 2012, Zuckerfabrik Jülich and Others, C‑113/10, C‑147/10 and C‑234/10, EU:C:2012:591, paragraphs 48 and 49).
21


It should be pointed out that, pursuant to Regulation No 2038/1999, in particular Article 33 thereof, production levies are calculated from the total loss (see, to that effect, judgment of 8 May 2008, Zuckerfabrik Jülich and Others, C‑5/06 and C‑23/06 to C‑36/06, EU:C:2008:260, paragraph 41).
22


In that regard, it should be borne in mind that the objective of Regulation No 2038/1999, as well as that of Regulation No 1260/2001, is 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. 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 the disposal of Community production surpluses (see, to that effect, judgments of 8 May 2008, Zuckerfabrik Jülich and Others, C‑5/06 and C‑23/06 to C‑36/06, EU:C:2008:260, paragraphs 44, 57 and 60, and of 27 September 2012, Zuckerfabrik Jülich and Others, C‑113/10, C‑147/10 and C‑234/10, EU:C:2012:591, paragraph 46).
23


It is apparent from Article 33(2)(c) of Regulation No 2038/1999 that the total 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 total loss and, consequently, to the fixing of production levies which are too high (see, by analogy, judgment of 27 September 2012, Zuckerfabrik Jülich and Others, C‑113/10, C‑147/10 and C‑234/10, EU:C:2012:591, paragraph 47).
27


It must be borne in mind that the Court has held that the method of calculation used by the Commission to determine production levies in the sugar sector, as fixed by Commission Regulation (EC) No 1193/2009 of 3 November 2009 correcting Regulations (EC) No 1762/2003, (EC) No 1775/2004, (EC) No 1686/2005, (EC) No 164/2007 and fixing the production levies in the sugar sector for the marketing years 2002/2003, 2003/2004, 2004/2005 and 2005/2006 (OJ 2009 L 321, p. 1), was 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 had been subject to export obligations. The Court has held that that method of calculation consisted 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 was to pay a possible refund and of the actual amount of such a refund (judgment of 27 September 2012, Zuckerfabrik Jülich and Others, C‑113/10, C‑147/10 and C‑234/10, EU:C:2012:591, paragraph 48).
28


Since that theoretical amount of refund is used as part of the numerator of the ratio making it possible to calculate the average loss, the increase in the numerator necessarily implied an overestimation of the average loss and, thus, of the overall loss, contrary to Article 15(1) of Regulation No 1260/2001 (see, to that effect, judgment of 27 September 2012, Zuckerfabrik Jülich and Others, C‑113/10, C‑147/10 and C‑234/10, EU:C:2012:591, paragraph 50).
29


Consequently, Regulation No 1193/2009, which, with the exception of Article 3 thereof, has already been annulled by the General Court of the European Union in its judgment of 29 September 2011, Poland v Commission (T‑4/06, not published, EU:T:2011:546), was declared invalid by the Court in its judgment of 27 September 2012, Zuckerfabrik Jülich and Others (C‑113/10, C‑147/10 and C‑234/10, EU:C:2012:591, paragraph 54).
37


The Court must point out in this regard that, where it is justified by overriding considerations of legal certainty, the second paragraph of Article 264 TFEU, which is also applicable by analogy to a request under Article 267 TFEU for a preliminary ruling on the validity of acts of the European Union, confers on the Court a discretion to decide, in each particular case, which specific effects of the act in question must be regarded as definitive (judgment of 28 April 2016, Borealis Polyolefine and Others, C‑191/14, C‑192/14, C‑295/14, C‑389/14 and C‑391/14 to C‑393/14, EU:C:2016:311, paragraph 103).
38


Thus, the Court has exercised the possibility of limiting the temporal effect of a declaration that an EU measure is invalid in the case where overriding considerations of legal certainty involving all the interests, public as well as private, at stake in the cases concerned precluded the calling into question of the charging or payment of sums of money effected on the basis of that measure in respect of the period prior to the date of the judgment (judgment of 8 November 2001, Silos, C‑228/99, EU:C:2001:599, paragraph 36).