Opinion of Mr advocate-general Trabucchi

Mr President,

Members of the Court,

1. The questions of interpretation referred under Article 177 of the EEC Treaty by the Hamburg Finanzgericht are concerned with a possibility which was not expressly covered by Community legislation in force at the time with which the main action is concerned, nor is there any precise guideline clearly identifiable from the objectives of the system.

2. In order to prevent over-production in the sugar sector, Article 23 of Regulation No 1009/67 lays down that, for a transitional period which will expire on 1 July 1975, the States shall fix a basic quota for each factory or for each undertaking producing sugar on their territory, calculated in accordance with the formula set out in the Article.

3. The Hamburg Finanzgericht in the first place asks:

4. In the course of the proceedings, the Commission pointed out that retrospective allocation of additional quantities of sugar to a production year previous to the current one would give rise to enormous administrative problems. The outcome of Article 27 (2), taken together with Article 6 of Regulation No 142/69, is that the total production of sugar recorded in the Community during a given marketing year is one of the factors taken into account in calculating the production levy to be charged for that year under Article 27. Accordingly, if an undertaking's final production figures, established for each year on the date laid down in Article 2 (2) of Regulation No 142/69, were to be later corrected, even slightly, it would become necessary for this change to be reflected in the Community's overall production figure and therefore in the production levy imposed on sugar-producing undertakings throughout the Community. The loss of time, administrative complication and expense of making these re-calculations would be quite disproportionate to the importance of the correction.

5. In the light of these adjustments, the Commission, in Regulation No 1789 of 8 November 1968 (OJ L 273) fixed the sum of the quantities to be carried over to the 1968/69 sugar marketing year. This Regulation serves therefore to establish a factor which must be taken into account in the calculation of the production levy for the 1968/69 marketing year. As the Commission pointed out, if, during previous marketing years, there had been a realization at that time that additional quantities of sugar had been produced in Germany, the surplus ascertained for that country would have been higher, with the result that the additional tonnage produced in the 1966/67 marketing year would have affected the extent to which production in the 1967/68 marketing year had to be adjusted, while the additional tonnage in the 1967/68 marketing year would have had a direct effect on the excess quantity as defined by Article 33 (1) of Regulation No 1009/67.

6. Accordingly if, in the case of an individual undertaking, some of the tonnage produced was omitted from the returns, this had a direct effect on the individual quota to be carried forward and might have been reflected in the amount of the levy to be paid on excess production after Regulation No 1009/67 came into force.

7. It is clear, therefore, that the production figures arrived at in each Member State before Regulation No 1009/67 came into force subsequently affected the calculation pursuant to Article 33 of the Regulation, of sugar production in the 1968/69 marketing year, and therefore also affected the application of the levy pursuant to Article 27. Indeed the quantities produced, but not identified at the time, had the result that the surplus taken into account as required under Article 33 was lower than the real surplus. As the quotas fixed on a national basis under the transitional arrangements represented a foretaste of the stricter control laid down in Regulation No 1009/67, and had themselves the effect of preventing surpluses by restricting Community output, it is clearly in the general interest of the Community that no production quota, even one relating to a period of time before the present arrangements came into force, should be exempt from the rules for calculating surpluses and carrying them forward. Otherwise there would be a danger that the levy on surplus production payable by each undertaking under Article 27 could be avoided.

8. In this connection, I attach little importance to the argument, adduced by the Commission, that maintenance of the principle that Community law must be uniformly applied may, in the absence of a standard basis for fixing the date of production, be jeopardized by difficulties which may be created by ex post facto alterations in the production figures already declared in respect of a given production year.

9. But, for the guideline laid down in Regulation No 700 of 1973 to be accepted as applying to previous years despite the absence of any express provision to this effect in legislation then in force, it is not enought merely to recognize its usefulness, practical value and consistency with the general objects of the common organization of the market in sugar: it is also important to make sure that it is not in conflict with any specific Community Regulation.

I accordingly suggest that the Hamburg Finanzgericht should be answered as follows:

1 Translated from the Italian.