Case C‑585/15

Raffinerie Tirlemontoise SA

v

État belge

(Request for a preliminary ruling
from the tribunal de première instance francophone de Bruxelles (Francophone Court of first instance, Brussels, Belgium))

(Reference for a preliminary ruling — Sugar — Production levies — Calculation of the average loss — Calculation of production levies — Regulation (EC) No 2267/2000 — Validity — Regulation (EC) No 1993/2001 — Validity)

Summary — Judgment of the Court (Third Chamber), 9 February 2017

1. Agriculture—Common organisation of the markets—Sugar—Production levy—Calculation of estimates of the average loss per tonne of sugar—Taking into account of the quantities exported for the products with the benefit of export refunds

   (Council Regulation No 2038/1999, Art. 33(1))

2. Agriculture—Common organisation of the markets—Sugar—Production levy—Calculation—Taking into account of estimates of the average loss per tonne of sugar

   (Council Regulation No 2038/1999, Art. 33)

3. Agriculture—Common organisation of the markets—Sugar—Production levy—Calculation—Regulations No 2267/2000 and No 1993/2001—Using a method of calculation not based on the taking into account of the actual amount of export refunds paid, and implying an overestimation of the overall loss—Not permissible—Annulment

   (Council Regulations No 2038/1999, Art. 33(1) and No 1260/2001, Art. 15(1); Commission Regulations No 2267/2000, No 1993/2001 and No 1193/2009)

4. Questions referred for a preliminary ruling—Assessment of validity—Declaration of invalidity of an EU act—Effects—Application by analogy of Article 264 TFEU

   (Arts 264, second para., and 267 TFEU)

1.  Article 33(1) of Council Regulation (EC) No 2038/1999 of 13 September 1999 on the common organisation of the markets in the sugar sector must be interpreted as meaning that, for the purpose of calculating the average loss, it is necessary to divide the total amount of the actual expenditure for export refunds for products which come under that provision by the total amount of the quantities exported for those products, regardless of whether or not refunds have in fact been paid for the latter.

   Under Article 33(1)(d) of Regulation No 2038/1999, the average loss is equal to the difference between the total amount of refunds and the total amount of levies on the total tonnage of the export obligations to be fulfilled during the marketing year concerned (see, to that effect, judgments of 8 May 2008, Zuckerfabrik Jülich and Others, C‑5/06 and C‑23/06 to C‑36/06, EU:C:2008:260, paragraph 46, and of 27 September 2012, Zuckerfabrik Jülich and Others, C‑113/10, C‑147/10 and C‑234/10, EU:C:2012:591, paragraph 39). The concept of ‘export obligations to be fulfilled during the current marketing year’, the tonnage of which, pursuant to Article 33(1)(d) of Regulation No 2038/1999, constitutes the denominator of the ratio making it possible to calculate the average loss, has the effect of covering any quantity of products coming under Article 33 of that regulation which is intended for export from the European Community, and the question whether or not the quantities of products for export attract export refunds is not relevant in the light of that concept (see, to that effect, judgment of 8 May 2008, Zuckerfabrik Jülich and Others, C‑5/06 and C‑23/06 to C‑36/06, EU:C:2008:260, paragraphs 49 to 51).

   Therefore, all the exported quantities for the products which come under Article 33 of Regulation No 2038/1999 are to be taken into account pursuant to Article 33(1) thereof for the purpose of calculating the estimated average loss per tonne of product, regardless of whether or not refunds have actually been paid (see, to that effect, judgment of 8 May 2008, Zuckerfabrik Jülich and Others, C‑5/06 and C‑23/06 to C‑36/06, EU:C:2008:260, paragraph 61). As to the ‘total amount of refunds’, which, pursuant to Article 33(1)(d) of Regulation No 2038/1999, constitutes part of the numerator of the ratio making it possible to calculate average loss, this must bear a direct relationship with the costs for the Community’s budget related to the disposal of product surpluses in the sugar sector and must, consequently, be based on the taking into account of the amount of export refunds paid to ensure the disposal of the quantities of product which have been subject to export obligations (see, to that effect, judgment of 27 September 2012, Zuckerfabrik Jülich and Others, C‑113/10, C‑147/10 and C‑234/10, EU:C:2012:591, paragraphs 48 and 49).

   (see paras 16-20, operative part 1)

2.  It should be pointed out that, pursuant to Regulation No 2038/1999, in particular Article 33 thereof, production levies are calculated from the total loss (see, to that effect, judgment of 8 May 2008, Zuckerfabrik Jülich and Others, C‑5/06 and C‑23/06 to C‑36/06, EU:C:2008:260, paragraph 41). It is apparent from Article 33(2)(c) of Regulation No 2038/1999 that the total loss is obtained by multiplying the exportable surplus by the average loss. Therefore, any overestimation of the average loss inevitably leads to an overestimation of the total loss and, consequently, to the fixing of production levies which are too high (see, by analogy, judgment of 27 September 2012, Zuckerfabrik Jülich and Others, C‑113/10, C‑147/10 and C‑234/10, EU:C:2012:591, paragraph 47). The average loss within the meaning of Article 33(2)(b) of Regulation No 2038/1999 is calculated by using the method indicated in the second subparagraph of Article 33(1)(d) thereof.

   It follows that the answer to the second question is that Article 33(2) of Regulation No 2038/1999 must be interpreted as meaning that, for the purpose of the overall calculation of the production levies, it is necessary to take into account the average loss calculated by dividing the total amount of the actual expenditure for export refunds for products which come under that provision by the total amount of the quantities exported for those products, regardless of whether or not refunds have in fact been paid in respect of the latter.

   (see paras 21, 23, 24, 26, operative part 2)

3.  Commission Regulation (EC) No 2267/2000 of 12 October 2000 fixing the production levies and the coefficient for calculating the additional levy in the sugar sector for the 1999/2000 marketing year and Commission Regulation (EC) No 1993/2001 of 11 October 2001 fixing the production levies in the sugar sector for the 2000/2001 marketing year are invalid.

   It must be borne in mind that the Court has held that the method of calculation used by the Commission to determine production levies in the sugar sector, as fixed by Commission Regulation (EC) No 1193/2009 of 3 November 2009 correcting Regulations (EC) No 1762/2003, (EC) No 1775/2004, (EC) No 1686/2005, (EC) No 164/2007 and fixing the production levies in the sugar sector for the marketing years 2002/2003, 2003/2004, 2004/2005 and 2005/2006 (OJ 2009 L 321, p. 1), was not based on the taking into account of the amount of export refunds paid to ensure the disposal of the quantities of sugar contained in processed products which had been subject to export obligations. The Court has held that that method of calculation consisted of attributing to all those quantities a theoretical amount of refund, based on the average of the amounts fixed periodically by the Commission, irrespective of how effective it was to pay a possible refund and of the actual amount of such a refund (judgment of 27 September 2012, Zuckerfabrik Jülich and Others, C‑113/10, C‑147/10 and C‑234/10, EU:C:2012:591, paragraph 48). Since that theoretical amount of refund is used as part of the numerator of the ratio making it possible to calculate the average loss, the increase in the numerator necessarily implied an overestimation of the average loss and, thus, of the overall loss, contrary to Article 15(1) of Regulation No 1260/2001 (see, to that effect, judgment of 27 September 2012, Zuckerfabrik Jülich and Others, C‑113/10, C‑147/10 and C‑234/10, EU:C:2012:591, paragraph 50).

   It is common ground that the method of calculation used by the Commission to determine production levies in the sugar sector, as fixed by Regulations No 2267/2000 and No 1993/2001, was also not based on the taking into account of the actual amount of export refunds paid to ensure the disposal of the quantities of sugar contained in processed products which had been subject to export obligations. To the extent that such a method of calculation, for the reasons set out in paragraph 28 of the present judgment, implied an overestimation of the average loss and, thus, of the total loss, it must also be deemed to be contrary to Article 33(1) of Regulation No 2038/1999.

   (see paras 27, 28, 30-32, operative part 3)

4.  See the text of the decision.

   (see paras 37, 38)