Koninklijke Coöperatie Cosun UA v Minister van Landbouw, Natuur en Voedselkwaliteit.

• Jurisdiction: European Union
• Celex Number: 62004CC0248
• ECLI: ECLI:EU:C:2006:322
• Docket Number: C-248/04
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 16 May 2006

OPINION OF ADVOCATE GENERAL

STIX-HACKL

delivered on 16 May 2006 ¹(1)

Case C-248/04

Koninklijke Coöperatie Cosun UA

v

Minister van Landbouw, Natuur en Voedselkwaliteit

(Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven (Netherlands))

(Sugar – Production quotas – Validity of Regulations (EEC) No 1785/81 and (EEC) No 2670/81 – Regulation (EEC) No 1430/79 – Producers of sugar in excess of the quota (C sugar) – Repayment or remission of charges – Remission on grounds of equity)

I – Introductory comments

1. The present preliminary ruling procedure (2) concerns the validity of Council Regulation (EEC) No 1785/81 of 30 June 1981 on the common organisation of the markets in the sugar sector (3) and of Commission Regulation (EEC) No 2670/81 of 14 September 1981 laying down detailed implementing rules in respect of sugar production in excess of the quota. (4) In particular, it concerns the question whether the absence of the possibility of the repayment or remission of charges on C sugar is compatible with the principle of equity.

II – Legislative background

2. Rules of market organisation legislation and customs legislation are relevant in the present proceedings.

A – Organisation of the markets in sugar

3. The market organisation legislation applicable in the present case comprises a Council regulation and the Commission implementing regulation associated therewith.

1. Regulation No 1785/81

4. Regulation No 1785/81, now repealed, governed the production, importation and exportation of sugar. The system of production quotas was a means of guaranteeing producers Community prices and an outlet for their production.

5. Article 24 of Regulation No 1785/81 specified for each marketing year basic quantities of A and B sugar, which each Member State allocates to the producers established in its territory. The quantity exceeding the quota allocated is deemed to be C sugar.

6. C sugar is eligible for neither price support nor export refunds. Pursuant to Article 26(1), C sugar which is not carried forward to the following marketing year may not be disposed of in the Community and must be exported.

7. Implementing rules were to be adopted in accordance with the procedure laid down in Article 41.

2. Regulation No 2670/81

8. The detailed implementing arrangements for C sugar were defined by Regulation No 2670/81.

9. Article 1 contains provisions on export from the Community. Paragraph 1 thereof, in the version applicable here, (5) reads:

‘The export referred to in Article 26(1) of Regulation (EEC) No 1785/81 shall be considered to have taken place if:

(a) the C sugar or the C isoglucose is exported from the Member State on whose territory it was produced;

(b) the export declaration in question is accepted by the Member State referred to under (a) before 1 January following the end of the marketing year during which the C sugar or the C isoglucose was produced;

(c) the C sugar or the C isoglucose or a corresponding quantity within the meaning of Article 2(3) left the customs territory of the Community at the latest within 60 days from 1 January referred to under (b);

(d) the product has been exported without refund or levy as white sugar or raw sugar, non denatured, or as syrups, obtained prior to the crystallising stage, falling within CN codes 1702 60 90 and 1702 90 90, or as isoglucose in its natural state, from the Member State referred to under (a).

Except in the case of force majeure, if all of the conditions provided for in the first subparagraph are not complied with, the quantity of C sugar or C isoglucose in question shall be considered to have been disposed of on the internal market.

In the case of force majeure, the competent agency of the Member State on whose territory the C sugar or the C isoglucose has been produced shall adopt the measures which are necessary by virtue of the circumstances invoked by the interested party.’

10. Article 2 governs the procedures for proving compliance with the conditions referred to in Article 1(1).

11. Article 3 specifies the charges to be imposed as a sanction where quantities have been disposed of on the internal market. The relevant parts thereof, in the version applicable here, (6) read as follows:

‘1. The Member State concerned shall impose on the quantities which, within the meaning of Article 1(1), have been disposed of on the internal market a charge equal to the sum of:

(a) for C sugar, per 100 kilograms:

– the highest import levy per 100 kilograms of white or raw sugar, as the case may be, applicable during the period comprising the marketing year during which the sugar in question was produced and the six months following that marketing year, and

– 1 [euro];

…

2. The Member State concerned shall, before 1 May following 1 January referred to in Article 1(1)(b), notify those manufacturers who are required to pay the charge referred to in paragraph 1 of the total amount to be paid.

Such total amount shall be paid by the manufacturers in question before 20 May of the same year

3. However, where the competent agency has, pursuant to the second subparagraph of Article 2(3), extended the time-limit for furnishing the proof, the dates referred to in paragraph 2 shall be replaced by the dates determined by the competent agency on the basis of the extension allowed.

4. In the case of quantities of C sugar or C isoglucose which prior to export were destroyed or damaged without possibility of recovery, in circumstances recognised by the competent agency of the Member State concerned as a case of force majeure, the relevant amount referred to in paragraph 1 shall not be levied.’

B – Customs legislation

12. In the area of customs legislation, reference must be made to a Council regulation and the Commission implementing regulation associated therewith, both of which have meanwhile been repealed.

1. Regulation No 1430/79

13. Article 13(1) of Council Regulation (EEC) No 1430/79 of 2 July 1979 on the repayment or remission of import or export duties, (7) in the version applicable here, (8) reads as follows:

‘Import duties may be repaid or remitted in special situations other than those referred to in Sections A to D, which result from circumstances in which no deception or obvious negligence may be attributed to the person concerned.

The situations in which the first subparagraph may be applied, and the detailed procedural arrangements to be followed for this purpose, shall be determined in accordance with the procedure laid down in Article 25. Repayment or remission may be made subject to special conditions.’

14. Pursuant to Article 1(2)(a), import duties comprise:

‘customs duties and charges having equivalent effect, as well as agricultural levies and other import charges laid down within the framework of the common agricultural policy or in that of specific arrangements applicable, pursuant to Article 235 of the Treaty, to certain goods resulting from the processing of agricultural products’.

15. Article 14 stipulates inter alia that Article 13 applies mutatis mutandis to the repayment or remission of export duties.

16. Pursuant to Article 1(2)(b), export duties comprise:

‘agricultural levies and other export charges laid down within the framework of the common agricultural policy, or in that of specific arrangements applicable, pursuant to Article 235 of the Treaty, to certain goods resulting from the processing of agricultural products’.

2. Regulation No 3799/86

17. The detailed implementing arrangements were set out in Commission Regulation (EEC) No 3799/86 of 12 December 1986 laying down provisions for the implementation of Articles 4a, 6a, 11a and 13 of Council Regulation (EEC) No 1430/79 on the repayment or remission of import or export duties. (9) Article 4 thereof specifies the special situations resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned. This applies without prejudice to other situations to be considered case by case by a decision of the Commission as part of the procedure laid down in Articles 6 to 10.

III – Facts of the case, main proceedings and questions referred

18. Koninklijke Coöperatie Cosun UA (‘Cosun’), which operates an undertaking producing sugar, produced more sugar in the 1992/93 marketing year than the A and B quotas allocated to it. A subsidiary of Cosun sold on consignments of sugar to other undertakings for export to Croatia, Slovenia and Morocco.

19. In 1994, Cosun was called upon to pay a charge. On 19 June 1995 a decision was taken by the Hoofdproduktschap Akkerbouw (‘HPA’).

20. In August 2001, the Kingdom of the Netherlands applied to the Commission for the remission of the charge imposed. On 2 May 2002 the Commission declared that application to be inadmissible.

21. Cosun lodged an appeal with the Court of First Instance against that decision. In its judgment of 7 December 2004 in Case T-240/02, the Court of First Instance dismissed the appeal as unfounded.

22. In addition, on 18 July 1995 Cosun brought an action before the College van Beroep voor het bedrijfsleven (Administrative Court for Trade and Industry; ‘CBB’) against the Minister van Landbouw, Natuur en Voedselkwaliteit because of the decision taken by the HPA. The CBB stayed the proceedings pending the judgment in De...