61983J0121

1 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKET - SUGAR - OFFSETTING OF STORAGE COSTS - LEVY IMPOSED ON PRODUCERS - OPERATION GIVING RISE TO THE OBLIGATION TO PAY THE LEVY - DISPOSAL OF SUGAR OR SYRUPS PRODUCED - CONCEPT OF DISPOSAL - DEFINITION BY THE COMMISSION - WHETHER PERMISSIBLE

( COMMISSION REGULATION ( EEC ) NO 1998/78 , ART . 12 ( 1 ), SECOND SUBPARA ., UNDER ( D ))

2 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKET - SUGAR - OFFSETTING OF STORAGE COSTS - LEVY IMPOSED ON PRODUCERS - PRODUCTS CONCERNED - SYRUPS PRODUCED PRIOR TO THE CRYSTALLIZING STAGE AND MARKETED IN THEIR NATURAL STATE - CONCEPT

( REGULATION ( EEC ) NO 3330/74 OF THE COUNCIL , ART . 8 ( 1 ), THIRD SUBPARA ., UNDER ( A ), AS AMENDED BY REGULATION ( EEC ) NO 1396/78 )

3 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKET - SUGAR - OFFSETTING OF STORAGE COSTS - LEVY IMPOSED ON PRODUCERS - PRODUCTS CONCERNED - SUGAR PRODUCED - CONCEPT

( REGULATION ( EEC ) NO 3330/74 OF THE COUNCIL , ART . 8 ( 1 ) ( A ), AND COUNCIL REGULATION ( EEC ) NO 1358/77 , ART . 6 ( 4 ))

1 . IN ITS LEGISLATION CONTAINING DETAILED RULES FOR THE IMPLEMENTATION OF THE SYSTEM FOR OFFSETTING STORAGE COSTS FOR SUGAR , THE COMMISSION WAS JUSTIFIED IN 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 TOT THE LEVY .

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 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 AND ' ' WHITE . . . SUGAR . . . PRODUCED AND MARKETED ' ' WITHIN THE MEANING OF ARTICLE 6 ( 4 ) OF COUNCIL REGULATION NO 1358/77 MUST BE INTERPRETED AS ALSO INCLUDING A TRANSITIONAL PRODUCT WHICH APPEARS ONLY TEMPORARILY DURING A CONTINUING MANUFACTURING PROCESS , EVEN IF 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 .

IN CASE 121/83

REFERENCE TO THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE EEC TREATY BY THE FINANZGERICHT MUNCHEN ( FINANCE COURT , MUNICH ) FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

ZUCKERFABRIK FRANKEN GMBH , OCHSENFURT ,

AND

HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) WURZBURG ,

ON THE VALIDITY OF CERTAIN PROVISIONS OF COMMISSION REGULATION ( EEC ) NO 1998/78 OF 18 AUGUST 1978 LAYING DOWN DETAILED RULES FOR THE OFFSETTING OF STORAGE COSTS FOR SUGAR ( OFFICIAL JOURNAL 1978 , L 31 , 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 20 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 ),

1 BY ORDER OF 13 MAY 1983 WHICH WAS RECEIVED 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 MUNCHEN ( 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 ), WURZBURG , AND ZUCKERFABRIK FRANKEN GMBH , OCHSENFURT . IN 1978 AND 1979 THAT UNDERTAKING PRODUCED , INTER ALIA , 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 WURZBURG 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 .

THE SYSTEM FOR OFFSETTING STORAGE COSTS FOR SUGAR

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 OFFSETTING 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 MUNCHEN STAYED THE PROCEEDINGS AND REFERRED TO THE COURT THE FOLLOWING QUESTIONS FOR A PRELIMINARY RULING :

' ' 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 SO 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?

DOES IT CONTAIN SUGARS WHICH , DURING THE MANUFACTURING PROCESS , HAVE BEEN DISSOLVED BY THE ADDITION OF WATER AS A FIRST STAGE TOWARDS THE PRODUCTION OF INVERT SUGAR?

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 REGU LATION ( 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?

( A ) DO THEY INCLUDE A TRANSITIONAL PRODUCT WHICH APPEARS ONLY TEMPORARILY DURING A CONTINUING MANUFACTURING PROCESS?

( B)IF PART ( A ) OF THE THIRD QUESTION IS ANSWERED IN THE AFFIRMATIVE , IS IT ALSO AN IMPORTANT FACTOR WHETHER SUCH A TRANSITIONAL PRODUCT CAN BE QUANTIFIED DIRECTLY AND IS CAPABLE OF BEING STORED AND MARKETED WITHOUT FURTHER TREATMENT?

( C)IF PART ( B ) OF THE THIRD QUESTION IS ANSWERED IN THE NEGATIVE , IS IT A PRECONDITION OF THE CHARGING OF THE LEVY IN RESPECT OF STORAGE COSTS PURSUANT TO THE THIRD SUBPARAGRAPH OF ARTICLE 8 ( 1 ) OF REGULATION ( EEC ) NO 3330/74 , THAT THE STORAGE COSTS MUST BE CAPABLE OF REIMBURSEMENT IN RESPECT OF THE SAME PRODUCT IN THE SAME STATE?

' '

FIRST QUESTION

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 .

SECOND QUESTION

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 .

THIRD QUESTION

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 VERY CONCEPT ' ' 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 FOR 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 IF 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 .

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 ),