1 BY ORDER DATED 24 JULY 1973, FILED AT THE COURT ON 16 AUGUST 1973, THE HAMBURG FINANZGERICHT REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS ON THE INTERPRETATION OF REGULATIONS NO 1009/67 OF THE COUNCIL OF 18 DECEMBER 1967 ON THE COMMON ORGANIZATION OF THE MARKET IN SUGAR AND NO 142/69 OF THE COMMISSION OF 25 JANUARY 1969 LAYING DOWN CERTAIN DETAILED RULES FOR THE APPLICATION OF THE QUOTA SYSTEM FOR SUGAR .
2 THE QUESTIONS REFER TO THE REGULATIONS RELATING TO THE PRODUCTION QUOTAS LAID DOWN IN RESPECT OF EACH SUGAR PRODUCER FOR EACH SUGAR MARKETING YEAR BY THE NATIONAL AUTHORITIES WITHIN THE FRAMEWORK OF THE QUOTAS ALLOTTED BY THE COMMUNITY PROVISIONS TO EACH OF THE MEMBER STATES .
THIS QUOTA SYSTEM PROVIDES FOR THE IMPOSITION OF A LEVY ON QUANTITIES PRODUCED OUTSIDE THE BASIC QUOTA BUT WITHIN THE MAXIMUM QUOTA, SUBJECT NEVERTHELESS TO THE LIBERTY FOR THE PRODUCER TO CARRY FORWARD THAT PART OF HIS PRODUCTION WHICH IS OUTSIDE THE BASIC QUOTA UP TO A MAXIMUM CORRESPONDING TO 10 PER CENT OF THE BASIC QUOTA, TO THE FOLLOWING MARKETING YEAR .
BEFORE THE COMMON ORGANIZATION OF THE MARKET IN SUGAR CAME INTO FORCE ON 1 JULY 1968, THE TRANSITIONAL SYSTEM ESTABLISHED BY REGULATION NO 44/67 OF THE COUNCIL OF 21 FEBRUARY 1967 ON CERTAIN MEASURES FOR THE COMMON ORGANIZATION OF THE MARKET IN SUGAR FOR THE 1967/68 MARKETING YEAR, WHILE FIXING PRODUCTION QUOTAS, DID NOT PROVIDE FOR THE IMPOSITION OF A PRODUCTION LEVY ON EXCESSES .
CERTAIN PORTIONS HOWEVER OF THESE EXCESSES PRODUCED DURING THE 1967/68 MARKETING YEAR, AS LAID DOWN BY REGULATION NO 1789/68 OF THE COMMISSION OF 8 NOVEMBER 1968, HAVE BEEN CARRIED FORWARD TO THE FOLLOWING MARKETING YEAR, WHICH IS GOVERNED BY THE COMMON ORGANIZATION OF THE MARKET .
3 THE NATIONAL COURT INQUIRES BASICALLY WHETHER AN EXCESS WHICH COMES TO LIGHT ON AN OFFICIAL STOCKTAKING AFTER 1 JULY 1968, THE DATE OF THE COMING INTO FORCE OF REGULATION NO 1009/67, AND WHICH AROSE BEFORE THIS DATE, MUST BE ASSIGNED, FOR THE PURPOSE OF THE CALCULATION OF THE PRODUCTION LEVY, TO THE PERIOD BEFORE THE COMMON ORGANIZATION OF THE MARKET IN SUGAR CAME INTO FORCE, OR TO THE FIRST SUGAR MARKETING YEAR UNDER THE SYSTEM OF THIS ORGANIZATION ( 1968/69 ), OR TO THE MARKETING YEAR DURING WHICH IT WAS DISCOVERED .
THE QUESTIONS HAVE BEEN PUT IN CONNEXION WITH LIGITATION BETWEEN A SUGAR PRODUCER AND THE GERMAN CUSTOMS AUTHORITIES RELATING TO THE LEVY ON AN EXCESS OF SOME 310 METRIC TONS WHICH CAME TO LIGHT ON AN OFFICIAL STOCKTAKING CARRIED OUT ON 30 SEPTEMBER 1970, THAT IS FOUR YEARS AFTER THE PREVIOUS STOCKTAKING AND MORE THAN TWO YEARS AFTER THE COMMON ORGANIZATION OF THE MARKET IN SUGAR CAME INTO FORCE .
4 THE REGULATIONS IN FORCE AT THE TIME WERE SILENT IN THIS RESPECT .
THE RULES OF THE COMMON ORGANIZATION OF THE MARKET IN SUGAR MUST BE REGARDED AS FORMING A COMPLETE SYSTEM IN THE SENSE THAT IT DOES NOT LEAVE THE MEMBER STATES THE POWER TO FILL SUCH A LACUNA BY RESORTING TO THEIR NATIONAL LAW .
IT IS THUS PROPER TO SEEK A SOLUTION IN THE LIGHT OF THE AIMS AND OBJECTIVES OF THE COMMON ORGANIZATION OF THE MARKET, TAKING ACCOUNT OF CONSIDERATIONS OF A PRACTICAL AND ADMINISTRATIVE NATURE .
5 NO GENERAL STOCKTAKING WAS ORDERED EITHER ON THE COMING INTO FORCE OF THE COMMON ORGANIZATION OF THE MARKET IN SUGAR ON 1 JULY 1968 OR SUBSEQUENTLY ON THE TRANSITION FROM ONE SUGAR MARKETING YEAR TO THE NEXT .
ACCORDING TO THE EXPLANATIONS GIVEN TO THE COURT, THE TECHNICAL CONDITIONS FOR STOCKING SUGAR ARE SUCH THAT STOCKTAKING CAN ONLY TAKE PLACE AT INTERVALS OF SEVERAL YEARS .
IN PRACTICE IT WOULD BE DIFFICULT TO DETERMINE PRECISELY THE EFFECTIVE PRODUCTION YEAR OF AN EXCESS FOUND IN RELATION TO THE STOCKS CALCULATED ON THE BASIS OF THE PRODUCER'S ACCOUNTING .
THE ASSIGNMENT OF AN EXCESS TO A PREVIOUS SUGAR MARKETING YEAR WOULD ENTAIL THE NECESSITY OF AMENDING THE FINAL PRODUCTION FIGURES ESTABLISHED FOR THIS MARKETING YEAR NOT ONLY FOR THE PARTICULAR UNDERTAKING BUT ALSO FOR THE MEMBER STATE CONCERNED AND THE WHOLE OF THE COMMUNITY .
SUCH AN AMENDMENT, BY REASON OF THE CONSEQUENCES WHICH WOULD BE ENTAILED RETROACTIVELY FOR THE CALCULATION OF THE PRODUCTION QUOTAS AND THE LEVIES TO BE IMPOSED ON THE EXCESS PRODUCTION, WOULD INVOLVE, ACCORDING TO THE UNCHALLENGED EXPLANATIONS OF THE COMMISSION, ADMINISTRATIVE COMPLICATIONS OUT OF ALL PROPORTION TO THE RESULT SOUGHT .
6 IN THESE CIRCUMSTANCES THE REPLY TO THE QUESTIONS MUST BE TO THE EFFECT - FORMALLY ADOPTED BY REGULATION NO 700/73 OF THE COMMISSION WITH EFFECT FROM 15 MARCH 1973 - THAT A DIFFERENCE WHICH COMES TO LIGHT AFTER THE FINAL PRODUCTION FIGURES HAVE BEEN ESTABLISHED MUST BE TREATED AS ARISING DURING THE MARKETING YEAR IN WHICH IT WAS ASCERTAINED .
7 THE COSTS INCURRED BY THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, BOTH OF WHOM HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE, AND SINCE THE PROCEEDINGS ARE, INSOFAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE HAMBURG FINANZGERICHT, BY ORDER OF THAT COURT DATED 24 JULY 1973, HEREBY RULES :
SUGAR EXCESSES WHICH COME TO LIGHT AFTER THE EXPIRATION OF THE MARKETING YEAR IN WHICH THEY WERE PRODUCED MUST BE TREATED FOR THE PURPOSE OF THE PRODUCTION LEVY AS ARISING IN THE MARKETING YEAR IN WHICH THEY WERE ASCERTAINED, EVEN IF THEY HAVE BEEN PRODUCED BEFORE THE COMING INTO FORCE OF THE COMMON ORGANIZATION OF THE MARKET IN SUGAR .
