61995J0172

1. Agriculture ° Common organization of the markets ° Sugar ° Offsetting of storage costs ° Levy imposed on manufacturers ° Materialization of the obligation to pay the levy ° Disposal of the sugar

(Council Regulations No 1358/77, Art. 6(4), and No 1785/81, Art. 8(2), third subpara. (a))

2. Agriculture ° Common organization of the markets ° Sugar ° Basic production levy ° Additional levy on the B quota ° Materialization of the obligation to pay the levies ° End of each marketing year

(Council Regulation No 1785/81, Art. 28(3) and (4))

3. Agriculture ° Common organization of the markets ° Sugar ° Elimination levy ° Materialization of the obligation to pay the levy ° End of each of the marketing years from 1986/87 to 1990/91

(Council Regulation No 1785/81, Art. 32a(1), as amended by Regulation No 934/86; Commission Regulation No 3046/86, Art. 1(1))

4. Agriculture ° Common organization of the markets ° Sugar ° Special elimination levy ° Materialization of the obligation to pay the levy ° End of the 1986/87 marketing year

(Council Regulation No 1914/87, Art. 1; Commission Regulation No 3061/87, Arts 1 and 2)

1. Article 8(2), third subparagraph (a), of Regulation No 1785/81 on the common organization of the markets in the sugar sector and Article 6(4) of Regulation No 1358/77 laying down general rules for offsetting storage costs for sugar and repealing Regulation No 750/68 must be interpreted as meaning that the prescribed conditions for materialization of the obligation to pay the storage levy are satisfied when the sugar is disposed of.

2. Article 28(3) and (4) of Regulation No 1785/81 on the common organization of the markets in the sugar sector must be interpreted as meaning that the prescribed conditions for materialization of the obligation to pay the basic production levy and the additional levy on the B quota are satisfied when sugar production is calculated at the end of each marketing year.

3. Article 32a(1) of Regulation No 1785/81 on the common organization of the markets in the sugar sector, as amended by Regulation No 934/86, and Article 1(1) of Regulation No 3046/86 laying down detailed rules concerning the collection of the elimination levy in the sugar sector must be interpreted as meaning that the prescribed conditions for materialization of the obligation to pay the elimination levy are satisfied when sugar production is calculated at the end of each of the marketing years from 1986/87 to 1990/91.

4. Article 1 of Regulation No 1914/87 introducing a special elimination levy in the sugar sector for the 1986/87 marketing year and Articles 1 and 2 of Regulation No 3061/87 fixing the coefficient for the calculation of that levy must be interpreted as meaning that the prescribed conditions for materialization of the obligation to pay the special elimination levy are satisfied when sugar production is calculated at the end of the 1986/87 marketing year.

In Case C-172/95,

REFERENCE to the Court under Article 177 of the EC Treaty by the Tribunal Administratif, Amiens (France), for a preliminary ruling in the proceedings pending before that court between

Société Sucrière Agricole de Maizy,

Société Sucrière de Berneuil-sur-Aisne

and

Directeur Régional des Impôts

on the interpretation of the Community rules relating to various levies in the sugar sector,

THE COURT (Fourth Chamber),

composed of: C.N. Kakouris, acting for the President of the Fourth Chamber (Rapporteur), P.J.G. Kapteyn and H. Ragnemalm, Judges,

Advocate General: M.B. Elmer,

Registrar: H.A. Ruehl, Principal Administrator,

after considering the written observations submitted on behalf of:

° the French Government, by Catherine de Salins, Assistant Director in the Legal Affairs Directorate of the Ministry of Foreign Affairs, and Frédéric Pascal, Central Administrative Attaché in the same Directorate, acting as Agents,

° the Greek Government, by Georgios Kanellopoulos, Deputy Legal Adviser in the State Legal Service, and Foteini Dedoussi, Legal Representative in the State Legal Service, acting as Agents,

° the Commission of the European Communities, by Eugenio de March, Legal Adviser, and Gérard Berscheid, of its Legal Service, acting as Agents,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 13 June 1996,

gives the following

Judgment

1 By judgment of 22 May 1995, received at the Court on 7 June 1995, the Tribunal Administratif (Administrative Court), Amiens (France), referred to the Court for a preliminary ruling under Article 177 of the EC Treaty a number of questions on the interpretation of the Community rules relating to various levies in the sugar sector.

2 Those questions were raised in proceedings brought by Sucrerie Agricole de Maizy SA (hereinafter "Sucrerie de Maizy"), an undertaking specializing in the manufacture of sugar, all of whose assets, rights and obligations, including the case before the national court, have been taken over by Sucrerie de Berneuil-sur-Aisne SA, against the Directeur Régional des Impôts (Regional Director of Taxes).

3 Those proceedings concern the legality of revised assessments by which the tax authorities demanded additional corporation tax from Sucrerie de Maizy in respect of the tax years 1985/86 (which ended on 30 June 1986) and 1986/87 (which ended on 30 June 1987). The revised assessments at issue concern: (a) amounts payable as storage levy, elimination levy and special elimination levy, which were all established by the Community rules in the sugar sector; (b) the taking into account of amounts payable as production levies, imposed by the same rules, and the two abovementioned elimination levies, when revaluing the stocks held by Sucrerie de Maizy on 30 June 1987.

4 The file shows that under French tax legislation (Article 38(2) of the Code Général des Impôts (General Tax Code)) the amount of a levy, being a debt owed to a third person, is deductible from the basis of assessment for corporation tax purposes (that is to say from taxable income). A debt owed to a third person cannot be entered in the accounts as a current liability at the end of a tax year unless it is substantively certain, is for a determined amount and relates to a transaction which has its chargeable event in that year.

5 The tax authorities made the revised assessments because they consider that under Community rules, first, the storage levy is a marketing charge linked to the disposal of sugar and the corresponding amounts therefore relate to the tax year in which the sugar was disposed of and not the year in which it was produced, secondly, the elimination levy and the special elimination levy are assessed on production in the 1986/87 to 1990/91 marketing years and the corresponding amounts accordingly relate to those years and, thirdly, the amounts relating to the production levies, the elimination levy and the special elimination levy must, as charges linked to the production of sugar, be taken into account when determining the cost price of stocks held by Sucrerie de Maizy on 30 June 1987.

6 Sucrerie de Maizy, on the other hand, takes the view that under Community rules, first, the storage levy constitutes a charge on production for which the chargeable event is the production of the sugar and the corresponding amounts therefore relate to the tax year in which the sugar was produced, secondly, the elimination levy and the special elimination levy relate to the transactions of producers in the 1981/82 to 1985/86 tax years and, consequently, the corresponding amounts must be deductible in those years, not in 1986/87 to 1990/91, and, thirdly, the production levies and the two elimination levies constitute marketing charges linked to the disposal of sugar and therefore the corresponding amounts are not to be taken into account when determining the cost price of the stocks on 30 June 1987.

7 By an application made on 14 November 1990 to the Tribunal Administratif, Amiens, Sucrerie de Maizy sought cancellation of the additional tax and default interest charged to it.

8 The Tribunal Administratif considered that the outcome of the dispute turned on interpretation of Community law and therefore decided to request a preliminary ruling from this Court. Article 1 of the operative part of that judgment states:

"Proceedings on the application by Société Sucrière Agricole de Maizy shall be stayed until the Court of Justice of the European Communities has given a preliminary ruling on the questions defined in the grounds of this judgment."

9 The questions resulting from the grounds of the national court' s judgment seek to establish, by interpretation of the pertinent provisions of the Community rules on the common organization of the markets in the sugar sector:

(1) whether it is the production or the disposal of sugar which constitutes the chargeable event for the storage levy;

(2) whether the elimination levy and the special elimination levy are payable in respect of the 1981/82 to 1985/86 tax years, or the 1986/87 to 1990/91 tax years;

(3) whether it is the production or the disposal of sugar which constitutes the chargeable event for the production levies and the two abovementioned elimination levies.

10 The questions for a preliminary ruling are not set out in the national court' s judgment. However, since the content of those questions is clear from the provisions of Community law mentioned in the grounds of the judgment and from the description of the issues therein, the Court can formulate the questions itself.

11 Therefore the Court will now formulate and consider in turn the questions on, first, the storage levy, secondly, the production levies, thirdly, the elimination levy and, fourthly, the special elimination levy.

The first question

12 The national court states in its judgment that "the decision to be given is dependent on the interpretation of the abovementioned Community provisions regarding the chargeable event for the storage levy".

13 In Case C-19/94 SAFBA v Ministre du Budget [1995] ECR I-1051, paragraph 11, the Court noted that the term "le fait générateur" (the chargeable event) for the storage levy to which the national court referred is not a term used in the Community rules concerned, but a term used in French tax law. It is not for the Court to give a ruling on the meaning of a term of national law. However, within the framework of its cooperation with national courts, the Court must interpret the relevant provisions of Community law in order to specify the time at which the conditions prescribed in those provisions for materialization of the obligation to pay the levy are satisfied. It is then for the national court to apply its national tax law on the basis of the Court' s interpretation.

14 Accordingly, the national court should be regarded in this case as seeking to ascertain, by a first question, whether Article 8(2), third subparagraph (a), of Council Regulation (EEC) No 1785/81 of 30 June 1981 on the common organization of the markets in the sugar sector (OJ 1981 L 177, p. 4) and Article 6(4) 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 (OJ 1977 L 156, p. 4) must be interpreted as meaning that the prescribed conditions for materialization of the obligation to pay the storage levy are satisfied when the sugar is produced, or when it is disposed of.

15 In the SAFBA case, the Court ruled that Article 8(2), third subparagraph (a), of Regulation No 1785/81 and Article 6(4) of Regulation No 1358/77 must be interpreted as meaning that the prescribed conditions for materialization of the obligation to pay the storage levy are satisfied when the sugar is disposed of.

16 The same answer must be given in this case to the first question.

The second question

17 The national court does not state in its judgment which Community provisions on production levies it seeks to have interpreted. However, it is apparent from the observations submitted to the Court that the production levies referred to in that judgment are the basic production levy and the B levy, imposed by Article 28 of Regulation No 1785/81, as amended by Council Regulation (EEC) No 934/86 of 24 March 1986 (OJ 1986 L 87, p. 1).

18 Regulation No 1785/81 laid down the principle that the producers themselves should meet in full the cost of disposing of the surpluses of Community production. The basic production levy, that is to say a levy on the production of A and B sugar, was imposed for that purpose.

19 Article 28(3) of Regulation No 1785/81 states:

"When the recorded figures referred to in paragraph 1 result, after adjustment in accordance with paragraph 2, and without prejudice to Article 29(1), in an estimated overall loss, that loss shall be divided by the estimated production of A and B sugar and A and B isoglucose attributable to the current marketing year. An amount equal to this quotient shall be charged on manufacturers as a basic production levy on their production of A and B sugar and A and B isoglucose.

..."

20 A ceiling is set on the amount of that levy. When, on account of the prescribed ceiling, the basic production levy does not fully cover the overall loss, that is to say the total cost of disposing of the surpluses, Regulation No 1785/81 provides for charging an additional levy on the B quota, "the B levy".

21 Article 28(4) states:

"When the maximum permitted basic production levy does not fully cover the overall loss referred to in the first subparagraph of paragraph 3, the uncovered balance shall be divided by the estimated production of B sugar and B isoglucose attributable to the marketing year in question. An amount equal to this quotient shall be charged on manufacturers as a levy on their production of B sugar and B isoglucose.

Subject to paragraph 5, this levy shall not, however, exceed:

° on B sugar, an amount equal to 30% of the intervention price for white sugar, and

° on B isoglucose, the share of the levy on B sugar borne by sugar manufacturers."

22 The section of the national court' s judgment that deals with production levies states that "the decision to be given depends on the interpretation of the ... Community provisions regarding the chargeable event in respect of the levies at issue". The point at issue is whether the amounts relating to those levies constitute marketing charges linked to disposal of the sugar, or whether they constitute charges linked to its production which must, as such, be taken into account when determining the cost price of the stocks held by Sucrerie de Maizy on 30 June 1987.

23 The "chargeable event" for the production levies to which the national court refers is not a term used in the Community rules concerned, but a term used in French tax law (see, as regards the storage levy, paragraph 13 of this judgment). In such a situation, the Court must interpret the relevant provisions of Community law in order to specify the time at which the conditions prescribed in those provisions for materialization of the obligation to pay the production levies are satisfied. It is then for the national court to apply its national tax law on the basis of the Court' s interpretation.

24 Accordingly, the national court should be regarded as seeking, in substance, to ascertain, by the second question resulting from its judgment, whether Article 28(3) and (4) of Regulation No 1785/81 must be interpreted as meaning that the prescribed conditions for materialization of the obligation to pay the production levies thereby imposed are satisfied when the sugar is produced, or when it is disposed of.

25 Under Article 28(3) of Regulation No 1785/81, it is the production of sugar, not disposal thereof, which gives rise to the obligation to pay the basic production levy. According to that provision, the levy is to be calculated by dividing the estimated overall loss by "the estimated production of A and B sugar ... attributable to the current marketing year" and "an amount equal to this quotient shall be charged on manufacturers ... on their production of A and B sugar".

26 At the end of each marketing year, therefore, the amount of the basic production levy can be established on the basis of overall sugar production.

27 The same applies to the B levy. Under Article 28(4) of Regulation No 1785/81, that levy is calculated by dividing the uncovered balance of the overall loss, that is to say the amount not covered by income from the basic production levy, by "the estimated production of B sugar ... attributable to the marketing year in question" and "an amount equal to this quotient shall be charged on manufacturers ... on their production of B sugar ...".

28 The answer to this question must therefore be that Article 28(3) and (4) of Regulation No 1785/81 must be interpreted as meaning that the prescribed conditions for materialization of the obligation to pay the production levies thereby imposed are satisfied when sugar production is calculated at the end of each marketing year.

The third question

29 At the end of the period 1981/82 to 1985/86, a deficit amounting to some ECU 400 million was recorded on expenditure relating to the export of Community production surpluses. The elimination levy was created in order to cover that deficit.

30 For that purpose, Article 1(9) of Regulation No 934/86 inserted Article 32a into Regulation No 1785/81. Article 32a(1) states:

"1. Without prejudice to Title III, an elimination levy, designed to eliminate the 400 million ECU deficit recorded following application of the quota arrangements in the period 1981/82 to 1985/86, shall be charged to manufacturers of sugar and isoglucose during the 1986/87 to 1990/91 marketing years in respect of their production of A and B sugar and A and B isoglucose.

..."

31 The detailed rules concerning collection of the elimination levy in the sugar sector were laid down by Commission Regulation (EEC) No 3046/86 of 3 October 1986 (OJ 1986 L 283, p. 15).

32 Article 1(1) of that regulation states:

"Member States shall collect the elimination levy, the amounts of which are fixed in Article 32a(2) and (3) of Regulation (EEC) No 1785/81, from manufacturers of sugar and manufacturers of isoglucose in two instalments. Collection shall take place for each marketing year concerned before 15 December of the year in question for the first instalment which represents an advance payment, and before 15 December following the said year for the second instalment which represents the balance to be paid."

33 The national court states in its judgment that "the decision to be given depends on the interpretation of the abovementioned Community provisions regarding the chargeable event" for the elimination levy and "the period in respect of which the elimination [levy is] payable". The point at issue is whether the amounts relating to the elimination levy are marketing charges linked to disposal of the sugar which is therefore the relevant "chargeable event", or whether they are charges linked to the production of sugar which is therefore the relevant "chargeable event" and whether they must, as such, be taken into account when determining the cost price of the stocks held by Sucrerie de Maizy on 30 June 1987. As regards "the period in respect of which the levy is payable", the point at issue is whether the amounts in respect of the elimination levy relate to the transactions of the producers in the 1981/82 to 1985/86 marketing years, which would mean they were deductible in those years, or whether they relate to the 1986/87 to 1990/91 marketing years.

34 Since the "chargeable event" for the elimination levy and "the period in respect of which the levy is payable", to which the national court refers, are not terms used in the Community rules concerned, but rather terms used in French tax law, the Court must in this instance as well (see paragraphs 13 and 23 of this judgment) interpret the relevant provisions of Community law in order to specify the time at which the conditions prescribed in those provisions for materialization of the obligation to pay the elimination levy are satisfied. It is then for the national court to apply its national tax law on the basis of the Court' s interpretation.

35 Accordingly, the national court should be regarded as seeking, in substance, to ascertain, by the third question resulting from its judgment, whether Article 32a(1) of Regulation No 1785/81, as amended by Regulation No 934/86, and Article 1(1) of Regulation No 3046/86 must be interpreted as meaning that the prescribed conditions for materialization of the obligation to pay the elimination levy are satisfied during the period 1981/82 to 1985/86, or when sugar is produced in each of the marketing years from 1986/87 to 1990/91.

36 The seventh and eighth recitals in the preamble to Regulation No 934/86 state, with regard to imposition of the elimination levy: "to enable all actual expenditure relating to the export of Community production surpluses in respect of the 1981/82 to 1985/86 marketing years to be covered, regardless of application in the future of the self-financing system provided for in Article 28 of Regulation (EEC) No 1785/81, provision should be made for the introduction of an elimination levy in this sector; ... a demonstration of solidarity should be asked of all producers concerned so that the deficit recorded following the period 1981/82 to 1985/86, amounting in budgetary terms to some 400 million ECU, may be eliminated; ... to establish this levy as fairly as possible, it seems warranted to spread it out over a period of five marketing years and to apply it to all sugar ... production which has benefited ... from the guarantee under the common organization of the markets; ... it is materially impossible to pass on this levy individually to the agricultural producer and the processing industry ...".

37 Those are the circumstances in which Article 32a(1) of Regulation No 1785/81 states that "an elimination levy ... shall be charged to manufacturers of sugar ... during the 1986/87 [to] 1990/91 marketing years in respect of their production of A and B sugar ...".

38 It is therefore production of sugar in the 1986/87 to 1990/91 marketing years which is the determining factor when calculating the elimination levy and the sugar production of individual manufacturers in the 1981/82 to 1985/86 marketing years is not taken into account in that calculation.

39 Moreover, under Article 1(1) of Regulation No 3046/86 the elimination levy must be paid in two instalments, the first for each marketing year concerned before 15 December of the year in question and the second before 15 December following the said year.

40 The answer to this question must therefore be that Article 32a(1) of Regulation No 1785/81, as amended by Regulation No 934/86, and Article 1(1) of Regulation No 3046/86 must be interpreted as meaning that the prescribed conditions for materialization of the obligation to pay the elimination levy are satisfied when sugar production is calculated at the end of each of the marketing years from 1986/87 to 1990/91.

The fourth question

41 The special elimination levy concerns the 1986/87 marketing year. It was imposed by Council Regulation (EEC) No 1914/87 of 2 July 1987 introducing a special elimination levy in the sugar sector for the 1986/87 marketing year (OJ 1987 L 183, p. 5) in order to eliminate the large estimated loss for that year which would not be covered by income arising from production levies.

42 Article 1(2) of Regulation No 1914/87 states:

"The special elimination levy shall be calculated for each sugar-producing undertaking and each isoglucose-producing undertaking by multiplying the amount owed by the undertaking as a production levy for the 1986/87 marketing year by a coefficient to be determined. (...)

The special elimination levy shall be paid before 15 December 1987."

43 The detailed rules for implementing Regulation No 1914/87 were laid down by Commission Regulation (EEC) No 3061/87 of 13 October 1987 fixing the coefficient for the calculation of the special elimination levy in the sugar sector for the 1986/87 marketing year (OJ 1987 L 290, p. 10).

44 Article 2(1) of that regulation provides that the special elimination levy is to be collected at the same time as the balance of the production levies provided for in Article 28 of Regulation No 1785/81. Under Article 2(2) Member States are to draw up for that purpose, for each producer, the statement of the balance outstanding, within the meaning of Article 1(2) of Regulation No 1914/87, before 1 November 1987 for the 1986/87 marketing year.

45 The national court states in its judgment that "the decision to be given depends on the interpretation of the abovementioned Community provisions regarding the chargeable event" and "the period in respect of which the [special elimination levy is] payable".

46 The reasons why the national court raised the question of the "chargeable event" for that levy and "the period in respect of which the levy is payable" are analogous to those set out in paragraph 33 of this judgment concerning the elimination levy.

47 Since the "chargeable event" for the special elimination levy and "the period in respect of which the levy is payable", to which the national court refers, are not terms used in the Community rules concerned, but rather terms used in French tax law, the Court must in this instance as well (see paragraphs 13, 23 and 34 of this judgment) interpret the relevant provisions of Community law in order to specify the time at which the conditions prescribed in those provisions for materialization of the obligation to pay the special elimination levy are satisfied. It is then for the national court to apply its national tax law on the basis of the Court' s interpretation.

48 Accordingly, the national court should be regarded as seeking, in substance, to ascertain, by the fourth question resulting from its judgment, whether Article 1 of Regulation No 1914/87 and Articles 1 and 2 of Regulation No 3061/87 must be interpreted as meaning that the prescribed conditions for materialization of the obligation to pay the special elimination levy are satisfied when sugar is produced during the 1986/87 marketing year, or prior to that year.

49 It follows from Article 1(2) of Regulation No 1914/87 that the special elimination levy is in the nature of a supplement to the production levies. Under that provision, the levy in issue is calculated for each undertaking concerned by multiplying the amount owed by the undertaking as a production levy for the 1986/87 marketing year by a coefficient.

50 Therefore the special elimination levy is of the same nature as the production levies.

51 Having regard to the findings in paragraphs 25 and 27 of this judgment concerning production levies, the obligation to pay the special elimination levy should be regarded as materializing as a result of the production of sugar in the marketing year 1986/87, not disposal thereof. It becomes a concrete obligation when the amount payable is specified.

52 As regards that amount, Article 1 of Regulation No 3061/87 laid down the coefficient referred to in Article 1(2) of Regulation No 1914/87.

53 Article 1(2) of Regulation No 1914/87 also provides that the special elimination levy is to be paid before 15 December 1987. Article 2 of Regulation No 3061/87 states that the levy in question is to be collected at the same time as the balance of the production levies (Article 2(1)) and that, for that purpose, Member States are to draw up before 1 November 1987 the statement of the balance outstanding for each producer (Article 2(2)).

54 The answer to the fourth question must therefore be that Article 1 of Regulation No 1914/87 and Articles 1 and 2 of Regulation No 3061/87 must be interpreted as meaning that the prescribed conditions for materialization of the obligation to pay the special elimination levy are satisfied when sugar production is calculated at the end of the 1986/87 marketing year.

Costs

55 The costs incurred by the French and Greek Governments and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, 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 (Fourth Chamber),

in answer to the questions referred to it by the Tribunal Administratif, Amiens, by judgment of 22 May 1995, hereby rules:

(1) Article 8(2), third subparagraph (a), of Council Regulation (EEC) No 1785/81 of 30 June 1981 on the common organization of the markets in the sugar sector and Article 6(4) 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 must be interpreted as meaning that the prescribed conditions for materialization of the obligation to pay the storage levy are satisfied when the sugar is disposed of.

(2) Article 28(3) and (4) of Regulation No 1785/81 must be interpreted as meaning that the prescribed conditions for materialization of the obligation to pay the production levies thereby imposed are satisfied when sugar production is calculated at the end of each marketing year.

(3) Article 32a(1) of Regulation No 1785/81, as amended by Council Regulation (EEC) No 934/86 of 24 March 1986, and Article 1(1) of Commission Regulation (EEC) No 3046/86 of 3 October 1986 laying down detailed rules concerning the collection of the elimination levy in the sugar sector must be interpreted as meaning that the prescribed conditions for materialization of the obligation to pay the elimination levy are satisfied when sugar production is calculated at the end of each of the marketing years from 1986/87 to 1990/91.

(4) Article 1 of Council Regulation (EEC) No 1914/87 of 2 July 1987 introducing a special elimination levy in the sugar sector for the 1986/87 marketing year and Articles 1 and 2 of Commission Regulation (EEC) No 3061/87 of 13 October 1987 fixing the coefficient for the calculation of the special elimination levy in the sugar sector for the 1986/87 marketing year must be interpreted as meaning that the prescribed conditions for materialization of the obligation to pay the special elimination levy are satisfied when sugar production is calculated at the end of the 1986/87 marketing year.