Zuckerfabrik Süderdithmarschen AG v Hauptzollamt Itzehoe and Zuckerfabrik Soest GmbH v Hauptzollamt Paderborn.

JurisdictionEuropean Union
CourtCourt of Justice (European Union)
Writing for the CourtJoliet
Celex Number61988CJ0143
Docket NumberC-92/89,C-143/88
Procedure TypeReference for a preliminary ruling
Date21 February 1991
EUR-Lex - 61988J0143 - EN 61988J0143

Judgment of the Court of 21 February 1991. - Zuckerfabrik Süderdithmarschen AG v Hauptzollamt Itzehoe and Zuckerfabrik Soest GmbH v Hauptzollamt Paderborn. - References for a preliminary ruling: Finanzgericht Hamburg et Finanzgericht Düsseldorf - Germany. - Jurisdiction of national courts, in proceedings for interim relief, to suspend enforcement of a national measure based on a Community regulation - Validity of the special elimination levy in the sugar sector. - Joined cases C-143/88 and C-92/89.

European Court reports 1991 Page I-00415
Swedish special edition Page I-00019
Finnish special edition Page I-00029

Decision on costs
Operative part



1. Measures adopted by the Community institutions - Regulations - Dispute before a national court as to the legality of a regulation during an action brought against a national implementing measure - Grant of suspension of enforcement of the national measure - Whether permissible -Conditions - Prima facie case - Question of validity referred to the Court by way of a reference for a preliminary ruling - Serious and irreparable damage - Account to be taken of the interest of the Community

(EEC Treaty, Arts 177 and 185 and second paragraph of Art. 189)

2. European Communities' own resources - Levies and other charges provided for under the common organization of the markets in the sugar sector - Concept - Special elimination levy - Inclusion

(EEC Treaty, Art. 201; Council Regulation No 1914/87; Council Decision 85/257, Art. 2)

3. Measures adopted by the Community institutions - Application in time - Principle of non-retroactivity - Exceptions - Conditions - The particular case

(Council Regulation No 1914/87)

4. Agriculture - Common organization of the markets - Sugar - Special elimination levy - Application by producers of the principle that the common organization be fully self-financing - Creation of unreasonable financial burdens - None - Infringement of the right to own property and of the freedom to pursue an economic activity - None

(Council Regulation No 1914/87)

5. Agriculture - Common organization of the markets - Discrimination between producers or consumers - Special elimination levy in the sugar sector - Heavier charge on the production of sugar other than A quota sugar - Difference in treatment objectively justified - No discrimination

(EEC Treaty, second subparagraph of Art. 40(3); Council Regulation No 1914/87)


1. Article 189 of the Treaty does not preclude the power of national courts to suspend enforcement of an administrative measure based on a Community regulation.

In the first place, in the context of actions for annulment, Article 185 of the Treaty enables applicants to request suspension of enforcement of the contested act and empowers the Court to order such suspension. The coherence of the system of interim legal protection therefore requires that, in the context of a preliminary reference to be made by a national court, the latter should also be able to order suspension of enforcement of a national administrative measure based on a Community regulation, the legality of which is in dispute and which only the Court of Justice may declare to be invalid.

Secondly, the Court, for the purpose of ensuring the effectiveness of Article 177 of the Treaty, has already acknowledged that national courts which refer to it for a preliminary ruling questions of interpretation in order to resolve a problem of compatibility between national legislation and rules of Community law may suspend the application of that national legislation. The interim protection guaranteed to individuals before national courts cannot vary according to whether they contest the compatibility of national legal provisions with Community law or the validity of Community measures by way of secondary law, if the dispute in both cases is based on Community law itself.

In order for a national court to be entitled to grant such a suspension, it must entertain serious doubts as to the validity of the Community measure and, should the question of the validity of the contested measure not already have been brought before the Court, itself refer that question to the Court; there must be urgency in the sense that the applicant is threatened with serious and irreparable damage, and due account must be taken of the interests of the Community. It follows from the last-mentioned requirement that the national court must examine whether the Community measure in question would be deprived of all effectiveness if not immediately implemented. It also follows from that requirement that the national court should be in a position to require the applicant to provide adequate guarantees if there is a possibility that suspension of enforcement may involve a financial risk for the Community.

2. The special elimination levy in the sugar sector, introduced by Regulation No 1914/87, must be included among the "contributions and other duties provided for within the framework of the common organization of the markets in sugar", within the meaning of Council Decision 85/257 on the Communities' system of own resources, because it complements the levies which already existed when that decision was adopted. Even if it was in the nature of a financing levy within the meaning of Decision 85/257, its introduction would not have required the procedure laid down in Article 201 of the Treaty. The purpose of that decision, as a measure of budgetary law, was to define own resources allocated to the Community budget and not to specify the Community institutions which are competent to impose duties, taxes, charges, levies or other forms of revenue.

3. Although as a general rule the principle of legal certainty precludes a Community measure from taking effect from a point in time before its publication, it may exceptionally be otherwise when the purpose to be achieved so demands and when the legitimate expectations of those concerned are duly respected.

This was precisely the case as regards the introduction by Regulation No 1914/87 of 2 July 1987, within the framework of the common organization of the markets in the sugar sector, of a special elimination levy for the marketing year which had closed on the previous 30 June.

In order to ensure compliance with the principle that producers themselves should be responsible for the entire financing of the common organization, they were required to bear all the charges for the marketing year in progress, including those resulting from exceptional events, the impact of which could be precisely ascertained only after the end of that year. Furthermore, producers had been informed that they would be required to provide an additional financing for that year.

4. The common organization of the markets in the sugar sector is based on the principle of full self-financing by producers. It was pursuant to that principle and in order to cope with an exceptional increase in expenditure, brought about by fluctuations on the world market, on which Community producers have to dispose of part of their production, and closely reflecting the high cost of export refunds, that the special elimination levy was introduced for the 1986/87 marketing year. As the counterpart of the advantages which that common organization entails, the levy did not result in unreasonable financial burdens for producers, since they were for the greater part entitled to require reimbursement from their suppliers of sugar beet and sugar cane. By virtue of its nature, the levy cannot be regarded as an infringement of the right to own property. Finally, both its purpose and its characteristics preclude it from being described as an unreasonable and intolerable interference which encroaches upon the substance of the right of the producers concerned freely to pursue their economic activities.

5. The purpose of the special elimination levy for the 1986/87 marketing year, introduced within the framework of the common organization of the markets in the sugar sector, was to eliminate the exceptional losses occasioned by the grant of high export refunds designed to promote the disposal of the Community' s surpluses on the markets of non-member countries. The fact that this levy imposed burdens which were proportionately higher for sugar produced in excess of the A quota cannot be regarded as constituting discrimination prohibited under the second subparagraph of Article 40(3) of the Treaty. Any amount of sugar produced in excess of the A quota gives rise to surpluses. As the only normal means of disposal of such surpluses is by way of exportation to non-member countries, those surpluses entail the grant of refunds that are costly for the Community budget.


In Joined Cases C-143/88 and C-92/89,

REFERENCES to the Court under Article 177 of the EEC Treaty by the Finanzgericht Hamburg (Federal Republic of Germany) and the Finanzgericht Duesseldorf (Federal Republic of Germany) for a preliminary ruling in the proceedings pending before those courts between

Zuckerfabrik Suederdithmarschen AG


Hauptzollamt Itzehoe,

and between

Zuckerfabrik Soest GmbH


Hauptzollamt Paderborn,

on the interpretation of Article 189 of the EEC Treaty (Case C-143/88) and on the validity of Council Regulation (EEC) No 1914/87 of 2 July 1987 introducing a special elimination levy in the sugar sector for the 1986/87 marketing year (Official Journal L 183, p. 5) (Cases C-143/88 and C-92/89),


composed of: O. Due, President, G. F. Mancini, J. C. Moitinho de Almeida, G. C. Rodríguez Iglesias and M. Díez de Velasco (Presidents of Chambers), Sir Gordon Slynn, C. N. Kakouris, R. Joliet, F. A. Schockweiler, F. Grévisse and M. Zuleeg, Judges,

Advocate General: C. O. Lenz,

Registrar: H. A. Ruehl, Principal...

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