JUDGMENT OF 15. 5. 1984 — CASE 121/83 ZUCKERFABRIK FRANKEN / HAUPTZOLLAMT WÜRZBURG
In Case 121/83 REFERENCE to the Court of Justice under Article 177 of the EEC Treaty by the Finanzgericht München (Finance Court, Munich) for a preliminary ruling in the proceedings pending before that court between
THE COURT (Third Chamber) composed of: Y. Galmot, President of Chamber, U. Everling and C. Kakouris, Judges, Advocate General: G. F. Mancini Registrar: P. Heim
gives the following
JUDGMENT
Facts and Issues
I — Facts and procedure
1. Rules of Community law concerning the levy in respect of storage costs for sugar
2. Background to the main proceedings
3. Procedure before the Court of Justice
II — Written observations
1. Background to the main proceedings and the system for offsetting storage costs
2. First question
3. Second question
4. Third question
III — Oral procedure
Decision
The system for offsetting storage costs for sugar
First question
Second question
Third question
Costs
I —. Facts and procedure
1. Rules of Community law concerning the levy in respect of storage costs for sugar
(a). The legal basis for offsetting storage costs is Article 8 of Regulation (EEC) No 3330/74 of the Council of 19 December 1974 on the common organization of the market in sugar (Official Journal, L 359, p. 1), as amended by Council Regulation (EEC) No 1396/78 of 20 June 1978 (Official Journal, L 170, p. 1). According to the first subparagraph of Article 8 (1) the storage costs in respect of:
(b). Council Regulation (EEC) No 1358/77 of 20 June 1977 laying down general rules for offsetting storage costs for sugar and repealing Regulation (EEC) No 750/68 (Official Journal, L 156, p. 4) contains general rules for the implementation of the system for offsetting storage costs. Article 6 (4) of that regulation provides as follows:
(c). The rules for offsetting storage costs are set out in detail in Commission Regulation (EEC) No 1998/78 of 18 August 1978 laying down detailed rules for the offsetting of storage costs for sugar (Official Journal, L 231, p. 5) which provides in Article 8 (2) :
2. Background to the main proceedings
1. Is the second subparagraph of Article 12 (1) of Regulation (EEC) No 1998/78 valid, having regard to the enabling power contained in the third sentence of Article 8 (3) of Regulation (EEC) No 3330/74 on which it is based and to the first subparagraph of Article 6 (4) of Regulation (EEC) No 1358/77 in so far as it provides, under (d), that disposal is to mean the processing of the sugar by the manufacturer into products other than those falling within heading No 17.01 of the Common Customs Tariff?
2. If the first question is answered in the affirmative, how is the phrase syrups produced prior to the crystallizing stage and marketed in their natural state within the meaning of the third subparagraph, under (a), of Article 8 (1) of Regulation (EEC) No 3330/74, to be interpreted with regard to Article 8 (2) of Regulation (EEC) No 1998/78?
3. If the second question is answered in the negative, how are the phrases sugar produced within the meaning of the first indent, under (a), of the third subparagraph of Article 8 (1) of Regulation (EEC) No 3330/74, as amended by Article 1 of Regulation (EEC) No 1396/78, and white... sugar... produced and marketed contained in Article 6 (4) of Regulation (EEC) No 1358/77 to be interpreted?
3. Procedure before the Court of Justice
II —. Written observations
1. Background to the main proceedings and the system for offsetting storage costs
(a). Zuckerfabrik Franken maintains that the so-called Grundsorte-Kristallmasse, which is a transitional product yielded during the manufacture of invert sugar syrup, comes into being during production only for short, scarcely definable periods. It cannot be quantified accurately in units of weight and is not capable of being stored or marketed since, in view of its high moisture content and high temperature, the water adhering to the surface of the crystals would evaporate and the sugar would harden into lumps. Moreover, the product easily deteriorates microbially and therefore cannot be stored or marketed also for hygienic reasons.
(b). The Hauptzollamt Würzburg observes that the offsetting of storage costs constitutes a closed system within the common organization of the market in sugar. Its purpose is to ensure that throughout the entire business year the market is provided with a steady supply of sugar which is produced only during a few months. Manufacturers and certain traders are granted a reimbursement for each month in which they store sugar. In order to finance the reimbursement, a single levy is collected from sugar manufacturers.
(c). The Commission explains the conditions in which liability to the levy arises under the system for offsetting storage costs. First of all, such liability presupposes that a levy is payable on the manufacture of the product in question and, furthermore, that the levy was due at the time at which it was collected.
2. First question
(a). According to Zuckerfabrik Franken, the second subparagraph, under (d), of Article 12 (1) of Commission Regulation No 1998/78 is invalid since it goes beyond the substantive shpere of the superior legislation enacted by the Council and finds no basis in any enabling powers conferred on the Commission by the Council.
(b). The Hauptzollamt Würzburg contends that the second subparagraph, under (d), of Article 12 (1) of Regulation No 1998/78 merely gives concrete form to Article 8 (1) of the basic regulation, No 3330/74. Furthermore, that provision is indispensible if all the loopholes as regards the collection of the levy are to be closed since, otherwise, it would not be possible for the levy in respect of storage costs to be collected at any time for solid sugar, capable of storage, which is dissolved in water by the manufacturer and thus processed into a product falling outside heading No 17.01 of the Common Customs Tariff.
(c). The Commission maintains that the contested provision of Regulation No 1998/78 has a sufficient basis for its adoption in the aforesaid Council regulations. The processing of sugar into products other than those covered by heading No 17.01 of the Common Customs Tariff is closely related to denaturing. Since processing changes the sugar into another product it ceases to exist as such and cannot be recorded in accounting terms. Accordingly, the second subparagraph, under (d), of Article 12 (1) provides that for purposes of calculating the amount of the levy, in so far as it has not already been incurred, disposal shall mean processing, for example by actual disposal to a purchaser who intends to process the goods.
3. Second question
(a). Zuckerfabrik Franken expresses the view that the phrase syrups... produced prior to the crystallizing stage and marketed in their natural state within the meaning of the third subparagraph of Article 8 (1) of the basic regulation, no 3330/74, must be interpreted by itself and cannot be construed in the light of Regulation No 1998/78 which is subordinate legislation enacted by the Commission.
(b). The Hauptzollamt Würzburg considers first of all the process whereby solid sugar is manufactured from sugar beet. During that process, certain substances known as raw juice and thick juice are yielded which are also stored by many manufacturers. Reimbursement in respect of the storage costs thus incurred may also be granted under the conditions laid down by Article 8 (2) of Regulation No 1998/78, in accordance with the basic regulation, No 3330/74.
(c). The Commission maintains that Article 8 (2) of Regulation No 1998/78 contains implementing provisions regarding the offsetting of storage costs in respect of syrups produced or obtained prior to the crystallizing stage within the meaning of the second indent, under (a), of the third subparagraph of Article 8 (1) and of the third indent of the first subparagraph of Article 8 (1) of the basic regulation, No 3330/74. Article 8 (2) makes it quite clear that the phrase in question covers only syrups falling within subheading 17.02 D II of the Common Customs Tariff which are subsequently processed into solid sugar under customs control, or under an administrative control providing equivalent safeguards, and which are stored in special containers separated from the sugar manufacturing plant. The last-mentioned requirement is not satisfied in the present case.
4. Third question
(a). According to Zuckerfabrik Franken, the phrase sugar produced implies that a finished product which is not merely temporary is involved. Thus it excludes transitional products which appear only temporarily during a continuing manufacturing process. The phrase produced and marketed implies that the sugar is in fact capable of being stored, disposed of and marketed. That is apparent from the very wording of the provisions in question and is confirmed by the meaning and purpose of the rules relating to storage costs. An obligation to pay the levy should arise only in respect of sugar which is actually borne by the market in sugar as a finished product.
(b). The Hauptzollamt Würzburg contends that the phrase sugar produced which, moreover, is also to be found in Title III (Quota arrangements) of Regulation No 3330/74, is to be interpreted in accordance with objective entena which are to be deduced from the provisions on classification for tariff purposes, and not in accordance with the manufacturer's subjective assessment. Thus, a given product such as white sugar may be a finished product or, as in the present case, a transitional product or even a basic product. Accordingly, for the purposes of Regulation No 3330/74, sugar must be regarded as produced as soon as for the first time during the manufacturing process a product comes into being which is sugar within the meaning of the Common Customs Tariff.
(c). According to the Commission, it is clear from the relationship between the phrase sugar produced, within the meaning of the third subparagraph of Article 8 (1) of Regulation No 3330/74, and the phrase white... sugar... produced and marketed, within the meaning of Article 6 (4) of Regulation No 1358/77, that white sugar produced or manufactured is subject to a levy which, however, becomes payable only upon disposal of the white sugar produced or manufactured.,
III —. Oral procedure
1. By order of 13 Ma y 1983 which was reived at the Court Registry on 29 June 1983 and amended by order of 2 February 1984, received at the Registry on 3 February 1984, the Finanzgericht München [Finance Court, Munich] referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty three questions on the validity of the second subparagraph, under (d), of Article 12 (1) of Commission Regulation No 1998/78 of 18 August 1978 laying down detailed rules for the offsetting of storage costs for sugar (Official Journal 1978, L 231, p. 5) and on the interpretation of the provisions of Regulation (EEC) No 3330/74 of the Council of 19 December 1974 on the common organization of the market in sugar (Official Journal 1974, L 359, p. 1), as amended by Council Regulation (EEC) No 1396/78 of 20 June 1978 (Official Journal 1978, L 170, p. 1) and of Council Regulation (EEC) No 1358/77 of 2 June 1977 laying down general rules for offsetting storage costs for sugar and repealing Regulation (EEC) No 750/68 (Official Journal 1977, L 156, p. 4).
2. Those questions were raised in a dispute between the Hauptzollamt [Principal Customs Office], Würzburg, and Zuckerfabrik Franken GmbH, Ochsenfurt. In 1978 and 1979 that undertaking produced, inter aha, invert sugar (subheading 17.02 D II of the Common Customs Tariff) the primary material for which is a crystalline sugar which is yielded at an interim stage during the manufacture of white sugar. The crystalline sugar, which is known as basic-category crystalline mass (heading No 17.01 of the Common Customs Tariff), is obtained by separating by centrifugal turbine action the mother syrup from the crystalline magma which has been produced by crystallization of the juice and is continuously dissolved, by the addition of water, into syrup during the same manufacturing process. The syrup, which is known as clarified syrup (subheading 17.02 D II of the Common Customs Tariff) is processed into invert sugar either immediately or after interim storage.
3. By decisions of 15 November and of 7 and 16 December 1979, the Hauptzollamt Würzburg claimed payment from Zuckerfabrik Franken GmbH, on the basis of the Community provisions on the offsetting of storage costs for sugar, of the levies in respect of sugar produced in 1978 and 1979. The basic-category crystalline mass was incorporated in the basis of assessment for the amounts fixed by the Hauptzollamt. In its action before the Finanzgericht, Zuckerfabrik Franken GmbH seeks respectively the annulment of the abovementioned decisions and their amendment inasmuch as they incorporate the basic-category crystalline mass in the basis of assessment.
4. The legal basis of the system for offsetting storage costs for sugar is contained in Article 8 of Regulation No 3330/74, as amended by Council Regulation No 1396/78, cited above. The first subparagraph of Article 8 (1) provides that the storage costs in respect of white sugar, raw sugar and syrups obtained prior to the crystallizing stage are to be reimbursed at a flat rate by the Member States.
5. In order to finance the reimbursement of storage costs, levies, which are calculated in such a way as to ensure that the total amount levied is equal to the total amount reimbursed, are imposed by the Member States on sugar manufacturers, importers and refiners. As far as sugar manufacturers are concerned, the third subparagraph, under (a), of Article 8 (1) provides that the Member States are, according to the circumstances, to impose the levy, as appropriate by unit of weight of sugar produced or by unit of weight of syrups produced prior to the crystallizing stage and marketed in their natural state.
6. According to Article 8 (3) of the same regulation, the Council is to adopt the general rules for the implementation of that article and the Commission is to adopt the detailed rules for its implementation in accordance with the management committee procedure.
7. The general rules for offsetting storage costs for sugar are contained in Council Regulation No 1358/77 of 20 June 1977, cited above. Article 6 (4) of the regulation provides that the Member State shall collect the levy from each sugar manufacturer in respect of the white and raw sugar and of the syrups, referred to under (a) of the third subparagraph of Article 8 (1) of Regulation (EEC) No 3330/74, produced and marketed within his maximum quota.
8. On the other hand, the detailed rules for the implementation of the system for of f setting storage costs are contained in Commission Regulation No 1998/78 of 18 August 1978 cited above. Article 8 (2) of that regulation provides that syrups obtained prior to the crystallizing stage means those syrups which fall within subheading 17.02 D II of the Common Customs Tariff and are subsequently processed into solid sugar under customs control, or under an administrative control providing equivalent safeguards, and which are stored in special containers separated from the sugar manufacturing plant.
9. The first subparagraph of Article 12 (1) of the same regulation provides that the levy is incurred in respect of the products referred to in the third subparagraph, under (a), of Article 8 (1) of Regulation No 3330/74 at the moment of disposal. According to the second subparagraph of Article 12 (1), for purposes of calculating the amount of the levy, in so far as it has not already been incurred, disposal is to mean inter alia (d) processing by the manufacturer of the sugar and syrups into products other than those falling within heading No 17.01 of the Common Customs Tariff.
10. Taking the view that its decision depended on the answer to the questions concerning the validity and interpretation of the provisions of the Community regulations referred to earlier, the Finanzgericht München stayed the proceedings and referred to the Court the following questions for a preliminary ruling:
11. The first question seeks in substance to ascertain whether the second subparagraph of Article 12 (1) of Commission Regulation No 1998/78 of 18 August 1978 is valid in so far as it provides, under (d), that disposal is to mean the processing of the sugar and syrups by the manufacturer into products other than those falling within heading No 17.01 of the Common Customs Tariff.
12. The plaintiff in the main proceedings contends that the contested provision is not valid since it goes beyond the sphere of the superior legislation enacted by the Council. In its view, according to that legislation the levy in respect of storage costs applies only to sugar marketed and to syrups produced prior to the crystallizing stage and disposed of without further treatment. The concept of disposal implies that the product is transferred to a third party but not that it undergoes further treatment during the manufacturing process.
13. It is appropriate to state that, according to Article 8 (3) of the basic regulation, No 3380/74, it is for the Council to adopt the general rules for the implementation of that article, whilst the adoption of the detailed rules for its implementation is a matter for the Commission. That provision must be understood as meaning that, in the exercise of its powers, the Commission is authorized to adopt all the measures which are necessary or appropriate for the implementation of the basic legislation, provided that they are not contrary to such legislation or to the implementing legislation adopted by the Council.
14. In the present case the Commission has adhered to that division of powers. The third subparagraph of Article 8 (1) of Regulation No 3330/74 of the Council merely lists the persons liable to the levy, namely sugar manufacturers, importers and refiners and, in addition, it establishes the basic unit for calculating the amount of the levy, namely the weight of the products in question. As regards the implementing regulation adopted by the Council, No 1358/77, its purpose is to make it clear that the levy may not be collected from sugar manufacturers until after the sugar or syrups produced have been marketed. None of those regulations contains a precise definition of the concept of disposal as the operative factor which gives rise to the obligation to pay the levy.
15. In those circumstances the Commission was justified in defining the said concept in the contested provision of its legislation containing detailed rules for the implementation of the system for offsetting storage costs. Having regard to the aim of that system, which is to ensure that the levy is collected in respect of all the products covered by the basic legislation, the Commission cannot be reproached for including in the concept of actual disposal of the products in question certain operations which produce an equivalent effect in relation to the system for offsetting storage costs, in this case the processing of the sugar or syrups into products which do not fall within heading No 17.01 of the Common Customs Tariff and are not subject to the levy.
16. The answer to the first question must therefore be that consideration of the question raised has disclosed no factor of such a kind as to affect the validity of the second subparagraph of Article 12 (1) of Commission Regulation No 1998/78 of 18 August 1978 in so far as it provides, under (d), that disposal is to mean the processing by the manufacturer of sugar into products other than those falling within heading No 17.01 of the Common Customs Tariff.
17. The second question seeks in substance to ascertain whether the phrase syrups produced prior to the crystallizing stage and marketed in their natural state, within the meaning of the third subparagraph, under (a), of Article 8 (1) of Regulation No 3330/74 of the Council of 19 December 1974 is to be interpreted as also including syrups which, during the manufacturing process, are produced from sugars which have been dissolved by the addition of water as a first stage towards the production of invert sugar.
18. It is clear from the very system for offsetting storage costs for sugar that the contested provision applies to the case of disposal in their material state of syrups which are capable of being processed into solid sugar. Since, in the event of such processing, the levy is collected only upon disposal of the finished product, the purpose of the provision in question is to ensure that, even in the absence of such further processing, the syrup remains subject to the levy.
19. However, that provision does not cover syrups which are manufactured by dissolving solid sugar in water, whether or not those syrups are intended for the manufacture of invert sugar, since, in those circumstances, the syrup is actually obtained after the crystallizing stage.
20. The answer to the second question must therefore be that the phrase syrups produced prior to the crystallizing stage and marketed in their natural state within the meaning of the third subparagraph, under (a), of Article 8 (1) of Regulation No 3330/74 of the Council of 19 December 1974 must be interpreted as not including syrups which, during the manufacturing process, are produced from sugars which have been dissolved by the addition of water as a first stage towards the production of invert sugar.
21. The third question seeks in substance to ascertain whether the phrases sugar produced within the meaning of the first indent, under (a), of the third subparagraph of Article 8 (1) of Regulation No 3330/74 of the Council of 19 December 1974 and white... sugar... produced and marketed within the meaning of Article 6 (4) of Council Regulation No 1358/77 of 20 June 1977 are to be interpreted as also including a transitional product which appears only temporarily during a continuing manufacturing process, even if that product cannot be quantified directly, stored and marketed without further treatment, and whether or not the storage costs may be reimbursed in respect of that product in the same state.
22. In that regard, the plaintiff in the main proceedings considers that the veryconcept sugar produced covers only a finished product in solid form, and not transitional products which appear only temporarily during a continuing manufacturing process. The reason for this, in its view, is that such a product, which cannot be quantified, stored or marketed, is not actually borne by the market in sugar. In any event, it is clear from the principle of the financial neutrality of the system for offsetting storage costs that only sugar in respect of which storage costs are reimbursed may be subjected to the levy which represents the consideration for the reimbursement.
23. However, the Hauptzollamt and the Commission maintain that the sugar must be regarded as a product as soon as during the manufacturing process a product which is sugar within the meaning of the Common Customs Tariff comes into being, whether or not it is a finished product and can be stored and marketed. Nor is it important to determine whether such a product can be quantified, provided that the finished product can be quantified. Finally, the financial neutrality of the system for offsetting storage costs is assured in so far as the storage costs may be reimbursed in respect of the product subject to the levy at different manufacturing stages prior to its disposal.
24. It must be stated in the first place that the abovementioned provisions do not subject the collection of the levy from sugar manufacturers to any condition other than that the sugar in question, in this case white sugar, must have been produced and disposed of, in view of the fact that the concept of disposal also includes the operations listed in Article 12 (1) of Commission Regulation No 1998/78.
25. The additional criteria referred to by the court making the reference cannot be accepted either, regard being had to the spirit and the purpose of the system tor offsetting storage costs. As has already been stated, that system is intended to ensure that the levy is collected in respect of all products which are sugar within the meaning of the tariff heading in question. Accordingly, it is unnecessary to ascertain whether or not a product which is sugar within the meaning of the Common Customs Tariff is a finished product or a transitional product and whether or not it can be stored and marketed For the same reason, no requirement may be imposed that the product whose disposal gives rise to the obligation to pay the levy must be quantifiable without further treatment since the quantity may be calculated from a derived product.
26. It must be emphasized, moreover, that financial neutrality — the principle on which the system for offsetting storage costs is based — is achieved precisely by the fact that storage costs are reimbursed only in respect of products on which a levy may be collected following their disposal and, conversely, by the fact that a levy is collected only in respect of products which are capable of qualifying for the reimbursement of storage costs, without there being any need for such a reimbursement actually to be made in respect of the product in question. That principle is complied with where the products subject to the levy are capable of qualifying for reimbursement of storage costs at any manufacturing stage; such a stage may be different from that at which the levy is collected.
27. For those reasons the answer to the third question must be that the phrases sugar produced within the meaning of the first indent, under (a), of the third subparagraph of Article 8 (1) of Regulation No 3330/74 of the Council of 19 December 1974 and white... sugar... produced and marketed within the meaning of Article 6 (4) of Council Regulation No 1358/77 of 20 June 1977 must be interpreted as also including a transitional product which appears only temporarily during a continuing manufacturing process, even it that product cannot be quantified, stored or marketed without further treatment, and whether or not that product, in the same state, may qualify for reimbursement of storage costs.
28. The costs incurred by the Commission of the European Communities which have submitted observations to the Court are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.
On those grounds, THE COURT (Third Chamber), in answer to the questions submitted to it by the Finanzgericht München by orders of 13 May 1983 and 2 February 1984, hereby rules:
1 Consideration of the question raised has disclosed no factor of such a kind as to affect the validity of the second subparagraph of Article 12 (1) of Commission Regulation No 1998/78 of 18 August 1978 in so far as it provides, under (d), that disposal is to mean the processing, by the manufacturer, of sugar into products other than those falling within heading No 17.01 of the Common Customs Tariff;
2 The phrase syrups produced prior to the crystallizing stage and marketed in their natural state within the meaning of the third subparagraph, under (a), of Article 8 (1) of Regulation No 3330/74 of the Council of 19 December 1974 must be interpreted as not including syrups which, during the manufacturing process, are produced from sugars which have been dissolved by the addition of water as a first stage towards the production of invert sugar;
3 The phrases sugar produced within the meaning of the first indent, under (a), of the third subparagraph of Article 8 (1) of Regulation No 3330/74 of the Council of 19 December 1974 and white... sugar... produced and marketed within the meaning of Article 6 (4) of Council Regulation No 1358/77 of 20 June 1977 must be interpreted as also including a transitional product which appears only temporarily during a continuing manufacturing process, even if that produce cannot be quantified, stored or marketed without further treatment, and whether or not that product, in the same state, may qualify for reimbursement of storage costs.
1 Translator's note: The term marketed corresponds to écoulé[e]s in the French text. However, in the case of Commission Regulation (EEC) No 1998/78 (see infra), where the term écoulement is used in the French text the English text has disposal and not marketing.