Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. This reference for a preliminary ruling concerns the system for offsetting storage costs for sugar. The Court will have to decide whether the manufacturers of certain substances which appear temporarily during the sugar manufacturing process are required to pay the levy in respect of storage costs.

2. I propose to begin by considering the provisions relevant to the case pending before the court making the reference. As I have already said, they are provisions of Community law relating to the levy in respect of storage costs for sugar.

3. The first question concerns Article 12 which I have just mentioned. That provision, I would recall, lays down the rule that the levy in respect of white sugar and in respect of syrups obtained prior to the crystallizing stage or by dissolving crystallized sugar is incurred at the moment of disposal. Moreover, according to Article 12 (1) (d), the processing of those products into substances other than solid sugars is to be regarded as equivalent to disposal. The national court (see pages 9 and 10 of the order making the reference) doubts whether there is any justification for treating a transitional product arising in the course of the manufacturing process as equivalent to a finished product which is marketed in the light of Article 8 of Regulation No 3330/74 (which is the basic regulation) or of the implementing regulation, No 1358/77. In other words, Article 12 (1) (d) may be invalid on the ground that the Commission exceeded the limits of the legislative powers conferred upon it by the Council.

4. I now turn to the second question in which the Court is requested to interpret the phrase syrups produced prior to the crystallizing stage and marketed in their natural state (third subparagraph, under (a), of Article 8 (1) of the basic regulation). The court making the reference wishes in particular to ascertain whether that phrase includes sugars which, during the manufacturing process, have been dissolved by the addition of water as a first stage towards the production of invert sugar. The answer, on which the Commission and the parties to the main proceedings are agreed, can only be in the negative.

5. The third question presupposes that the second question is answered in the negative. I am therefore obliged to consider it. It concerns the interpretation of the phrases sugar produced (first indent, under (a), of the third subparagraph of Article 8(1) of the basic regulation, as amended by Regulation No 1396/78) and white... sugar... produced and marketed (Article 6 (4) of the implementing regulation, No 1358/77). The national court further subdivides the third question into three parts. In the first part it wishes to ascertain whether those phrases include a transitional product — such as white sugar — which appears temporarily during a continuing manufacturing process.

6. The second part of the third question is linked to the first part. The national court asks whether the fact that a transitional product can be quantified, stored and marketed is an important factor for the purpose of establishing whether it falls within the scope of the phrase sugar produced. In my view, neither the possibility of quantifying it nor that of storing it is an important factor. The first possibility is unnecessary for the calculation of the levy, which is fixed by reference to the quantity of the finished product. The second possibility is only ostensibly more important. The presence, if any, of crystallized juice may diminish the suitability of the product for storage but, as the Commission observes, it does not affect the properties of the sugar qua white sugar, as defined in the first indent of Article 1 (2) of Regulation No 3330/74 (beet sugar and cane sugar, in solid form containing in the dry state, 99.5%... of sucrose determined by the polarimetrie method).

7. In the final. part of the third question, the national court again refers to the possibility of storage. It wishes to ascertain whether a product in respect of which the levy has been collected to pay for the storage costs (Article 8 (1) of the basic regulation) qualifies for the reimbursement of such costs where its characteristics — high temperature, moisture content — have in practice prevented it from being stored.

8. In the light of all those considerations, I suggest that the Court should answer the questions submitted by the Finanzgericht München by order of 13 May 1983 in the case between Zuckerfabrik Franken GmbH and the Hauptzollamt Würtzburg in the following manner:

1 Translated from the Italian.