8 November 1990 (*1)

Summary

A — Facts

(a) Objective of Regulation No 1914/87

(b) Was there a legitimate expectation on the part of sugar producers that their obligation to make up losses would be limited?

3. The prohibition on burdening an economic sector with extraneous risks and the disproportionate nature of the levies

(a) The burdening of an economic sector with extraneous risks

(b) Observance of the principle of proportionality

4. Breach of the prohibition of discrimination

(a) The heavier charge imposed on the production of B sugar

(b) Misuse of powers

(c) Discrimination in the treatment of the sugar industry from one Member State to another

(d) Method of charging only in accordance with the example of the ‘solidarity levy’ ...

5. Protection of the right to own property and the freedom to pursue an economic activity

(a) Infringement of the right to own property

(b) Interference with the freedom to pursue an economic activity

6. Breach of the principles governing the levying of taxes in the German legal system

Costs

C — Conclusion

Mr President,

Members of the Court,

A — Facts

1.The case which I wish to consider today is a reference for a preliminary ruling from the Finanzgericht Düsseldorf. As in Case C-143/88, the national court raises the question of the validity of Regulation No 1914/87 introducing a special elimination levy in the sugar sector for the 1986/87 marketing year. (*1)

2.The special elimination levy is a levy imposed on sugar production and is primarily designed to eliminate budgetary deficits in the sector occasioned by the payment of export refunds. The special elimination levy is payable in addition to a basic production levy of 2% of the intervention price for sugar, a B levy on the production of B-quota sugar of up to 37.5% of the intervention price (*2) and an elimination levy. (*3) The regulation introducing the special elimination levy entered into force on 2 July 1987 in respect of the 1986/87 marketing year, which ended on 30 June 1987.

3. With regard to its reservations as to the regulation's validity on account of a possible breach of the prohibition of retroactivity, the national court expressly refers to the order making the reference in Case C-143/88. Furthermore, it refers the following questions to the Court of Justice:

‘(1) Is Regulation No 1914/87 introducing a special elimination levy in the sugar sector for the 1986/87 marketing year (OJ L 183, 3.7.1987, p. 5) invalid because the special elimination levy constitutes a financing levy which could be introduced only on the basis of Article 201 of the EEC Treaty?

In the alternative,

(2) Is the introduction of the special elimination levy in the sugar sector for the 1986/87 marketing year by Council Regulation No 1914/87 compatible with the limitation on self-financing which is laid down in Article 28 of Regulation No 1785/81 and with the principle of noninterference with the legislative system of the Community?

In the alternative,

(3) Is the introduction of the special elimination levy in the sugar sector for the 1986/87 marketing year compatible with the prohibition on subjecting a sector of the economy to risks which constitute extraneous risks within the context of an organization of the market and with the principle of the prohibition of unreasonable financial burdens?

In the alternative,

(4) Does Article 1 of Regulation No 1914/87 introducing a special elimination levy in the sugar sector for the 1986/87 marketing year conflict with the prohibition of discrimination (second subparagraph of Article 40(3) of the EEC Treaty) because the levy applied to B sugar is considerably higher than that applied to A sugar?

In the alternative,

(5) Does Regulation No 1914/87 introducing a special elimination levy in the sugar sector for the 1986/87 marketing year conflict in such cases with fundamental rights applying in Community law, namely the right to property and freedom to pursue economic activities, when the levy can no longer be financed out of earned profits but only out of reserves and as a result the existence of the undertaking concerned is threatened?’

4.So far as the facts, the reasoning of the Finanzgericht and the arguments of the parties are concerned, I would refer to the Report for the Hearing. I shall go into the detail of the facts and arguments only in so far as is necessary for the understanding and reasoning of my Opinion.

B — Opinion

5.Objection is taken to the introduction of the special elimination levy under Article 43 of the EEC Treaty on the ground that this does not constitute a measure regulating the sugar market, but is rather exclusively a financing levy. A measure designed to regulate the market can relate only to the present or to the future, but not to the past. Furthermore, the third recital in the preamble to the contested regulation refers expressly to ‘severe budgetary constraints on the Community’.

6.It is argued that since the special elimination levy was introduced outside the framework of the organization of the market in sugar, it does not constitute own resources within the meaning of subparagraph (a) of the first paragraph of Article 2 of the Council Decision of 7 May 1985 on the Communities' system of own resources. (*4) According to that provision, own resources are constituted only by ‘contributions and other duties provided for within the framework of a common organization of the markets in sugar’. Since the special elimination levy is not a levy designed to regulate the market and does not constitute own resources within the meaning of the above decision, it ought to have been adopted on the basis of Article 201 of the EEC Treaty. As the procedure outlined in that provision was not complied with, the regulation, so it is contended, is invalid.

7.Finally, the plaintiff in the main proceedings states that it is exclusively sugar producers who have to bear the burden of the special elimination levy, even though the organization of the market in sugar was created for the general benefit of sugar-beet growers. This follows from the third recital in the preamble to the basic regulation which recommends that provision should be made for measures to stabilize the market in sugar in order ‘to ensure that the necessary guarantees in respect of employment and standards of living are maintained for Community growers of sugar beet...’

8.In determining the correct legal basis for the adoption of the special elimination levy, it is necessary to decide whether it has the character of a charge for the regulation of the market or whether, as submitted, it is exclusively designed to finance a budgetary deficit and is suitable for that purpose. If it was intended to be a regulatory charge, the objectives of Articles 39 and 40 of the EEC Treaty must to some degree have been determinant when the measure was adopted.

9.The levy ought also to contain a reference of this nature to the regulation of the market in sweeteners in order for it to be capable of being described as Community own resources under subparagraph (a) of the first paragraph of Article 2 of the Decision on own resources, the adoption of which does not require the complicated procedure set out in Article 201 of the EEC Treaty.

10.It has been argued against the applicability of the above provision of the Decision on own resources basically that it could not apply precisely because it relates only to charges which already existed when the decision was adopted. All other charges, the argument runs, must come under the second paragraph of Article 2. So far as concerns the matters here at issue, Article 2 of the Decision on own resources is worded as follows :

‘Revenue from:

In addition, revenue accruing from other charges introduced within the framework of a common policy in accordance with the Treaty establishing the European Economic Community ... shall constitute own resources entered in the budget of the Communities, subject to the procedure laid down in Article 201 of the Treaty establishing the European Economic Community ... having been followed.’

11.A literal interpretation of that provision does not lead to any clear conclusion. While the past and future forms were expressly chosen with regard to duties in respect of trade within the framework of the Common Agricultural Policy, it is the present tense which has been used with regard to the imposition of duties within the common organization of the market in sugar. (6) This formulation renders a further interpretation possible.

12.The wording and objective of the provision would suggest that it covers not only charges introduced in the past, since there would otherwise be a danger that charges which are in fact identical would be included automatically among own resources solely on the basis of the date on which they were adopted, whereas others would require compliance with the complicated procedure under Article 201 of the EEC Treaty followed by ratification under the legal systems of the Member States. Thus, in the case of a simple alteration in the modalities of a charge, the question could arise as to whether the charge was still one which had previously been introduced or whether it had to be regarded, in view of the change in its legal nature, as a newly introduced charge.

13.These considerations find confirmation in the case-law of the Court (7) in regard to subparagraph (a) of the first paragraph of Article 2 of the Council Decision of 21 April 1970 on the Communities' own resources, a provision which is identical in content to that of subparagraph (a) of the first paragraph of Article 2 of the Decision on own resources and its relevant amendments: (8)‘in view of the developments which were inevitably to take place in Community production and marketing of sugar and, consequently, the need to adapt contributions, levies, refunds and price support measures to those developments in the requirements of the Community markets in sugar, it was not conceivable that the scope of application of the decision of 21 April 1970 could have been limited merely to the levies which were provided for when it was adopted, that is to say to the levies laid down at that time by Regulation No 1069/67 ... establishing a common organization of the market in sugar’. (9)

14.The legislative procedure under Article 201 of the EEC Treaty, which requires consultation with the Parliament, unanimity on the part of the Council and adoption by the Member States in accordance with their respective constitutional requirements, as referred to in the second paragraph of Article 2 of the Decision on own resources, finds its justification in the fact that sovereignty in matters of taxation must first be transferred to the Community. However, the sovereign power to levy duties within the common organization of the market in sugar has very clearly been conferred on the Community by way of subparagraph (a) of the first paragraph of Article 2 of the Decision on own resources. Consequently, in so far as the disputed levy comes within the common organization of the market in sugar, it is not necessary, for the purpose of introducing new levy provisions, to have recourse to the second paragraph of Article 2 of the Decision on own resources and thus to Article 201 of the EEC Treaty.

15.With regard to the identical provision contained in the second paragraph of Article 2 of the Council Decision of 21 April 1970, the Court has held that the only purpose of that provision is to allow new own resources to be created within the framework of a common policy, provided that the procedure laid down in Article 201 is followed. ‘However, that provision cannot be interpreted, contrary to its wording, as making the procedure laid down in Article 201 compulsory for the adoption of a measure which is part of a common policy merely because the measure entails the collection of revenue’. (10)

16.The only thing that would not be permissible would be for the levy to be attached to the organization of the market in sugar purely in a formal manner, while in reality pursuing a completely different objective, in order to circumvent the procedure set out in Article 201 of the EEC Treaty.

17.It does not matter if, apart from its function of regulating the agricultural market, the levy also has a financial aspect in so far as, for instance, it contributes to limiting expenditure connected with the organization of the market in the agricultural sector. Indeed, as the Court has stated, Article 201 does not concern agricultural charges which apply in a specific agricultural sector and are allocated to the financing of costs in that sector alone. (11)

18.In the event that the special elimination levy falls to be treated as a levy within the context of the common organization of the market in sugar and therefore comes under subparagraph (a) of the first paragraph of Article 2 of the Decision on own resources, this cannot in any way justify the conclusion that the Council had no power to adopt that measure, on the ground that it relates by definition to ‘own resources’. The Court has held on numerous occasions with regard to the Decision on own resources and the legislation preceding it ‘that its purpose is to define own resources allocated to the Community budget and not to stipulate the Community institutions which are competent to impose duties, taxes, charges, levies or other forms of revenue’. (12) The power of the Council to create a levy has its basis in the provisions of the Treaty relating to the Common Agricultural Policy. (13)

19.In considering whether Article 43 of the EEC Treaty was properly selected as the legal basis for Regulation No 1914/87, it is necessary to proceed on the basis that Article 43 must be interpreted in the light of Articles 39 and 40 of the EEC Treaty. (14) This means that in order to attain the objectives set out in Article 39 a common organization of agricultural markets must be established under Article 40 and ‘this organization may include all measures required to attain the said objectives’. (15) In considering whether a measure adopted on this basis is lawful, it is necessary, according to the case-law of the Court, to recognize that the Council carries the political responsibility and must be accorded a corresponding discretion. (16) By seeking to restrain production in the face of surpluses that have been found to exist, the imposition of a levy contributes to the attainment of the objective of stabilizing markets. (15) The principle of self-financing for the sugar sector was introduced by way of the basic regulation (17) in force at the time of the adoption of the special elimination levy. Express reference is made in the recitals in the preamble to the basic regulation to the desire ‘to provide the Community with the instruments necessary to ensure, in a fair yet efficient way, that the producers themselves meet in filli the cost of disposing of the surpluses of Community production over consumption’. (18)

The specific legal particulars of the measures for attaining that objective are set out in Article 28 of the regulation and have hitherto been subject on numerous occasions to amendments in view of the fact that the provisions in force were in each case sufficient only to cover a part of the costs.

The measures designed to rectify the consequences of surplus production, which were originally intended to be for a limited period only, may be described in terms of an evolutionary period during which legal rules were created to deal with events on the market and if necessary to direct them. These measures comprise, on the one hand, the rules governing production quotas and, on the other, those relating to the imposition of production levies designed to finance export refunds. When it became apparent that the basic production levy and the B levy were inadequate to cover the deficits which were being created, it was decided to levy a charge spread over the marketing years 1986/87 to 1990/91 for the actual expenditure incurred in respect of exports during the 1981/82 to 1985/86 marketing years. This was done through the insertion into the basic regulation of provisions relating to an elimination levy.

Market developments soon revealed that there would also be considerable deficits in respect of the marketing years succeeding those from 1981/82 to 1985/86 and that the existing legal instruments would be insufficient to enable those deficits to be made up. In order to counter this emerging trend as quickly as possible, the disputed special elimination levy for the 1986/87 marketing year was introduced by way of a separate regulation.

Although the basic regulation was not formally amended by Regulation No 1914/87, the latter does fit substantially into the framework established by the basic regulation. Regulation No 1914/87 is inseparable from the basic regulation, both with regard to the method of collecting the special elimination levy and to the grounds on which it is based. The common organization of the market in sugar, as introduced by the basic regulation, constitutes the only basis which is put forward in the preamble to Regulation No 1914/87. With regard to the anticipated losses, reference is made to the forecasts in Article 28 of the basic regulation and the provisions of Article 28 are also referred to as constituting the basis for calculating the special elimination levy. Reference is even made to the procedure provided for in the basic regulation for the purpose of adopting detailed rules of application.

Finally, it should be pointed out that the introduction of the special elimination levy is regarded as being an alternative to the amendment of existing rules on production quotas which might otherwise have become necessary, and is consequently inextricably associated with the rules relating to the existing organization of the market. The argument that Regulation No 1914/87 was adopted outside the framework of the common organization of the market in sugar and for that reason cannot be regarded as a regulatory measure ultimately emerges as the expression of a purely formalistic point of view. In truth, the special elimination levy must, if we consider both its intention and purpose, be regarded as complementing existing provisions on the organization of the market. The choice of Article 43 of the EEC Treaty as the legal basis for the regulation cannot therefore be questioned.

To finish with the question of proper legal basis, it is still necessary to address the argument to the effect that, unlawfully, sugar-producing undertakings alone are made subject to the levy, a situation contrary to the objectives of the organization of the market in sugar which was expressly adopted only for the benefit of sugar-beet growers.

It is of no account whether the sugar-producing undertakings are to be regarded as producers or as consumers within the meaning of Articles 39 and 40 of the EEC Treaty. It is in any event beyond doubt that they benefit from the Community's price guarantees through the common organization of the market in sugar at least to the same extent as the sugar-beet growers. Reference is made to this fact in the recitals in the preamble to the basic regulation, which state that:

The entire price-regulation mechanism applies not only to basic products but also to sugar. Title I of the basic regulation provides that a target price for white sugar is to be fixed for each marketing year. Likewise, an intervention price is to be fixed both for raw sugar and white sugar (Articles 2 and 3 of the basic regulation). The pricing arrangements governing trade with nonmember countries therefore also apply to sugar (Title II of the basic regulation). Under the conditions there specified, sugar producers can thus qualify for export refunds when they export their products outside the Community. The Community quota rules, one element in the price guarantees, also apply to the production of sugar (Article 19).

It is on the basis of the allocation of quotas that contracts of supply are concluded between sugar producers and sugar-beet growers. Moreover, since the introduction of production levies on sugar, it is primarily the sugar producers who are liable for the levy, although it is possible to pass this on in part to the sugar-beet growers. The method for charging the special elimination levy is based on the existing system. Finally, in its method of imposition and in its effects the special elimination levy is derived from the method for calculating production levies. It follows that the apportionment of the financial charges relating to the special elimination levy corresponds to that of production levies under the basic regulation. Regulation No 1914/87 is therefore not invalid on the ground that it introduced a levy which runs counter to the system, something which, in law, would only have been possible on a different legal basis.

The legal limits of the principles of self-financing, legal certainty and the prohibition of retroactivity

In order to be in a position to decide whether Regulation No 1914/87 is invalid by reason of retroactivity, it is first necessary to address the issue of whether and to what extent it must be regarded as retroactive in its effect. In so far as Regulation No 1914/87 entered into force on the day of its publication, 2 July 1987, and introduced a special elimination levy for the 1986/87 marketing year, which ran from 1 July 1986 to 30 June 1987, its effects were attached to a specific period in the past. The determining factor for the computation of this special elimination levy was the sugar production during the marketing year which had just ended. The amount of the special elimination levy due was quite simply to be calculated by multiplying the production levy owed by the undertaking in question by a coefficient to be determined. Undertakings subject to the levy were therefore not in a position to modify their business arrangements in any way so as to have any influence on the amount due in respect of the levy.

The same holds true for sellers of sugar beet, from whom sugar producers were to be entitled to demand reimbursement of up to 60% of the special elimination levy under the provisions of Article 1(3) of Regulation No 1914/87. Since Regulation No 1914/87 thus has an impact on a factual situation in the past, in respect of which it imposes charges a posteriori, it can truly be said to be retroactive in its effect.

So far as the possible retroactive effect of legal consequences is concerned, it can be said that there is indeed such an effect. Although the date from which the regulation is operative is not shifted to a point in time prior to its entry into force, all the facts to which it relates predate, as has already been seen, its entry into force. The legal consequence of the regulation, that is to say, the creation of the liability to pay the levy, had already ended at that date. It is of no account in this regard that the final amount due from the undertaking concerned in respect of the levy remained to be determined. That is a purely administrative procedure for the completion of which all factual elements were already present.

This is also true of the date on which the levy is due. The regulation provides that the special elimination levy must be paid before 15 December 1987. However, liability to pay the levy as such is quite independent of the date by which it must be paid. Consequently, Regulation No 1914/87 can be valid only if the objective which it pursued necessitated its adoption and the legitimate expectations of parties concerned were properly respected.

(a) Objective of Regulation No 1914/87

The objective of Regulation No 1914/87 is to reinforce the principle that the sugar sector should be self-financing, a principle anchored in the common organization of the market in sugar since the beginning of the 1980s. The initial introduction of production levies and the subsequent imposition of the solidarity levy were designed to realize that objective.

The legislature has in principle a wide discretion with regard to defining in concrete terms the detailed rules for the organization of agricultural markets and the selection of objectives to be pursued therein, subject to the condition that such objectives must not constitute a misuse of powers. It is indisputable that the market in sweeteners is the only Community agricultural sector so far to which the principle of ‘full financing of costs by producers themselves’ has expressly applied.

The detailed legal rules for the attainment of an objective also come in principle within the discretion of the legislature. Nevertheless, it must for reasons of legal certainty respect the limits which it itself has defined and it may not make arbitrary alterations. Account must be taken of the legitimate expectation on the part of persons to whom those rules are directed that they continue to be in existence, particularly if those persons arrange their affairs on the basis of the legal position in force, and they must be given the opportunity to adapt their conduct in accordance with changes in the law.

(b) Was there a legitimate expectation on the part of sugar producers that their obligation to make up losses would be limited?

This question must be examined in the light of the existing legislation.

Regulation No 1785/81 lays down the principle that producers themselves should meet costs in full, although this system should apply for a limited period only and should be regarded as transitional. Article 28, however, sets out maximum amounts for the levies necessary to cover costs, and these maximum amounts may not be exceeded.

These texts do not answer the question of what happens if the full financing of the costs by the producers is not achieved by means of the maximum amounts specified. I do not believe that this is sufficient to give rise to a legitimate expectation that the maximum amounts will not be exceeded.

The frame established by Regulation No 1785/81 was given detailed content by Regulation No 1738/85, under which the maximum amount for B sugar was raised from 30% to 37%. This regulation also provided that losses resulting from the obligation to export surpluses of Community sugar were to be covered within certain limits.

The principle of limitation is clearly expressed in this regulation.

Regulation No 934/86 reiterates ‘the principle that producers are financially liable for all... losses’ and, in addition to changes in the system of financing, introduces an elimination levy for this sector. The regulation also contains a provision to the effect that at the end of the 1987/88 marketing year there is to be recorded cumulatively for the two marketing years 1986/87 and 1987/88 inter alia the total sum of the basic production levies and the B levies charged.

This regulation does not alter the maximum limits for existing contributions, but it does introduce a new elimination levy ‘designed to eliminate the ECU 400 million deficit recorded following application of the quota arrangements in the period 1981/82 to 1985/86’. One cannot conclude from this that it would be unlawful also to pass the losses which arose in the past on to the persons responsible for them.

Furthermore, it should be pointed out that the Community had to choose at that time between introducing a special elimination levy and reducing production quotas. The latter would have hit sugar producers harder than a financial levy.

In addition, this solution would have been impossible for the 1986/87 marketing year, since the overall loss only became known after the quotas had already been used up. Moreover, the special elimination levy only affected those economic operators who had been responsible for the deficit to be eliminated. The appropriate solution therefore (and in this I must agree with the defenders of the contested regulation) was not to reduce quotas, but rather to introduce the special elimination levy.

If the view is not accepted that sugar producers could not have acquired, on the basis of the existing tests, a legitimate expectation that the Community would cover the deficits for which they were responsible, or in any event that they could not have continued to nurture such an expectation, account must be taken of the matters which the United Kingdom, the Council and the Commission have put into consideration. These are that the Commission published on 9 September 1986 an estimate which clearly indicated the likelihood of a deficit in respect of the 1986/87 marketing year. The Commission submitted in February 1987 the proposal for the introduction of the special elimination levy. On 7 March, the Commission representative explained the proposal before the Advisory Committee on Sugar, and the proposal was finally published in the Official Journal on 3 April 1987. All this information was available to sugar producers through the specialized press, and for that reason they could not have been surprised by the introduction of the special elimination levy. These arguments would also suggest that the Council acted quite properly in adopting Regulation No 1914/87 and did not infringe the principle of the protection of legitimate expectations.

My examination of the issues raised has not, up to now, brought to light any factor of such a kind as to affect the validity of the regulation.

3. Prohibition on burdening of an economic sector with extraneous risks and the disproportionate nature of the levies

(a) Burdening of an economic sector with extraneous risks

In the reservations which it expresses regarding the validity of Regulation No 1914/87, the national court is obviously proceeding on the assumption that there exists in Community law a prohibition on burdening an agricultural sector with extraneous risks. That court understands an extraneous risk as consisting of factors which give rise to or increase costs which do not have their immediate origin in the common organization of the market and in the conditions existing in the Common Market. It sees such an extraneous risk in the price level of sugar on the international market, a level which is essentially determined by sugar production in nonmember countries and the fall in the value of the US dollar. The low price level of sugar on the world market caused substantial export refunds to be paid and these in turn were responsible for the budgetary deficit which had to be offset by the special elimination levy.

It is unclear what legal basis exists for the principle that price-forming factors within a common organization of the market, such as in this instance the world market price or the fall in the value of the dollar, may not be passed on to operators within the relevant agricultural sector in the form of financial charges. The description of such factors as ‘extraneous risks’ itself appears questionable. Admittedly, we are dealing here with circumstances which lie outside the sphere of influence of producers within the internal market as well as outside that of the Community institutions invested with public powers, which can only react to such developments, but cannot in any way direct them. None the less, these factors must be regarded as influential factors inherent in the system of the common organization of the market. Both the price regulation mechanism with its system of refunds and levies and the rules which apply to trade with nonmember countries constitute an integral part of the common organization of the market in sugar. (38)

Despite their effect of increasing costs, export refunds benefit the Community market in sugar in so far as they form part of the price guarantees. Conditions on the internal market cannot be considered separately from developments on the world market. The common organization of the market in sugar is itself based on the interdependencies which exist between those two markets.

Given these conditions, the question arises as to how a limit might be placed on the large volume of export refunds. If we proceed in this regard on the basis that price guarantees must be retained, the only appropriate method for consideration will be a reduction in the guaranteed quantities, that is to say, the A and B quotas. This once again demonstrates the mutual dependency and interconnection between regulatory mechanisms in the common organization of the market and developments outside the internal market. It is for that reason not correct to speak of ‘extraneous risks’, which by definition cannot influence the financial burdens of economic operators within a common organization of the market.

(b) Observance of the principle of proportionality

It is possible to discern a submission alleging a breach of the principle of proportionality only in so far as it is claimed that the financial charges resulting from the special elimination levy are unreasonable because of the amounts involved and the fact that they are in addition to earlier levies. In order to decide the question whether the special elimination levy is disproportionate and consequently invalid it has to be considered whether and to what extent the principle of self-financing in the sector in question was properly introduced and to what degree the special elimination levy is necessary and suitable for the attainment of that objective.

The administration of an agricultural sector within the framework of a common organization of the market comes in principle within the discretion of the Community legislature. No criticism can be levelled at the objective that a market sector should be self-financing. It is immaterial that this objective does not expressly apply to all aspects of the Common Agricultural Policy. In any event, such an objective would be unobjectionable in law. The conception in the Treaty of the common organization of agricultural markets does not require that it must permanently be ‘a subsidized undertaking’ as is de facto the case. The fact that the principle of self-financing was introduced for one market sector and not for others does not in itself present any problems, since economic operators in the different market sectors are not in comparable situations vis-à-vis one another. The implementation of the principle of self-financing, in circumstances which are otherwise legally correct, must therefore be regarded as permissible.

If we start from this premiss, it is however essential that the financial charges arising from the system of price and sales guarantees should in some form fall also on those market participants who, as subjects of the common organization of the market, benefit from the regulation of that market. The level of charges deriving from the system cannot be criticized so long as there is an economic correlation between benefits and burdens. At most, one might criticize, on grounds of material justice and the prohibition of discrimination, a requirement to make contributions with respect to budgetary deficits not caused by the production of the undertaking subjected to that requirement.

However, the special elimination levy presents no problem in this regard, since it imposes obligations on those economic operators who engaged in the production giving rise to the costs in question. The submissions based on the unlawful burdening of an economic sector with extraneous risks and the disproportionate nature of the levy must therefore be rejected.

4. Breach of the prohibition of discrimination

The plaintiff in the main proceedings disputes the validity of Regulation No 1914/87. That regulation, it argues, infringes the prohibition of discrimination under Article 40(3) of the EEC Treaty, in the first place because it imposes different charges on the production of A and B sugar, and secondly because a heavier burden is imposed on the German sugar industry, which has a comparably high B quota, than is imposed on the sugar industry of other Member States. Apart from the fact that comparable situations are involved, differences in the treatment of which cannot be justified on any objective grounds, the discrepancies in the charges imposed on A and B sugar are in particular unlawful because the special elimination levy does not represent a charge for the regulation of the market, but is rather a financing charge, in respect of which the principle that persons subject to a charge should be treated equally must a fortiori be observed. As early as the fixing of the elimination levy under Regulation No 934/86, referred to as a solidarity levy, the objective was to impose an equitable charge on all aspects of sugar production and this ought a fortiori to have been prescribed in the case of the special elimination levy.

Before I examine whether the special elimination levy constitutes discrimination, I would point out that, according to the views expressed here, the special elimination levy is a measure designed to regulate the market, which requires to be examined in the context of the common organization of the market in sugar, and is not a purely financial charge.

(a) The heavier charge imposed on the production of B sugar

The special elimination levy is calculated on the basis of the different production levies imposed on A and B sugar under Article 28 of the basic regulation. Since the amount of the special elimination levy is determined simply by applying a coefficient to the production levies due, the special elimination levy is imposed on the production of A and B sugar in the same ratio as are the production levies under Article 28 of the basic regulation.

In so far as the discrepancy in the charges imposed on A and B sugar does not constitute unlawful discrimination, it is permissible to conclude that the special elimination levy is equally nondiscriminatory in its effect. While it has to be admitted, when deciding whether the production of A sugar and that of B sugar represent comparable situations, that both cases concern sugar and consequently the same product, the same observation must also apply to C sugar. It is thus necessary to have regard not only to the product itself, but also to its function within the common organization of the market. In this connection, it should be noted that the difference between A sugar and B sugar has a historical basis. As early as the first common organization of the market introduced by Regulation No 1009/67, (39) a distinction was drawn between a ‘basic quota’ and a ‘maximum quota’ for each undertaking and each marketing year. The recitals in the preamble to that regulation state that:

‘This aim [limitation of production] could be achieved by allocating to each factory or undertaking ... a basic quota for which a price and sales guarantee would be given by the Community and by limiting or withdrawing this guarantee for quantities manufactured over and above the basic quota, depending on whether or not they exceed a certain ceiling’. (40)

This objective is implemented in Article 22 et seq. of the regulation. This system, the period of application of which had originally been limited to July 1975, was extended with a number of amendments through Regulations No 3330/74 (41) and No 1592/80. (42)

That system was replaced, with effect from 1 June 1981, by Regulation No 1785/81, which is here referred to as the basic regulation. The terms ‘A, B and C sugar’, ‘A quota’ and ‘B quota’, were also incorporated, from the point of view of terminology, the basic regulation. That regulation basically retained the system under which both A and B sugar could be marketed in the common market with the aid of price guarantees, although from the outset there was a possibility that an appreciably higher production levy would be charged in respect of B sugar. A consequence of the production levies is a reduction in the guaranteed prices. (44)

In contrast to a simple reduction in the intervention price, the system of production levies has the advantage that it takes account of Community interests, such as the principle of regional specialization.

65.With regard to the quantities of quota sugar produced, it should be pointed out that the sugar produced within the A quota corresponds approximately in volume to sugar consumption within the Community. Although the marketing of B sugar is not attached to any specific objective, the Court has stated, against the background of a sugar market characterized by surplus production and in view of the function of production quotas, that ‘all undertakings which exceed their A quota therefore produce, by definition, surpluses for export’.

This analysis explains the considerably heavier charges imposed on B-sugar production and the resultant restrictions placed on the special rules applying to its disposal within the common organization of the market in sugar.

66.The above considerations justify the conclusion that A sugar and B sugar do not constitute the same product within the common organization of the market, with the result that it is not possible to speak of comparable situations when examining the problem of equal treatment. However, if one none the less were to proceed on the basis that they are comparable, the grounds already outlined are sufficient to justify the different levels of charges imposed within the common organization of the market.

(b) Misuse of powers

67.This appears to be a suitable point at which to examine the objection that the special elimination levy is vitiated by misuse of powers. It is claimed that the true objective of the regulation is not to compensate for losses incurred during the 1986/87 marketing year, but rather to dissuade sugar producers from all production of B-quota sugar. It was for this reason that a strangulatory levy was imposed on the production of B sugar.

68.It should first be pointed out that the recitals in the preamble to Regulation No 1914/87, and the general conception of that regulation, indicate very clearly that it was intended to cover the budgetary losses arising in the 1986/87 marketing year by means of the special elimination levy. The only question possible is therefore whether this was the only objective pursued and, if relevant, whether other objectives were legally permissible.

69.It is not disputed that the practical effect of the production levy is similar to that of a reduction in price guarantees. In so far as a heavier charge is imposed on B sugar, the surplus production which cannot be sold within the Community is charged in a purely theoretical manner. The surplus lawfully produced under production quotas is thus the essential cause of the high budgetary deficit, since export refunds must be paid when it is exported from the Community. The fact that it is much less attractive from an economic point of view to produce B-quota sugar than to produce A-quota sugar, in view of the higher charges imposed on surplus production, which may be theoretically defined as B sugar, is a lawful consequence of the method by which deficits are apportioned, which is intended to affect surplus production to a greater degree than sugar which can be disposed of in the common market.

70.This reasoning cannot be countered by the argument that ultimately both A sugar and B sugar contribute to surplus production, that both benefit from the advantages of the intervention system and that both attract export refunds when they are exported. The difference between A sugar and B sugar lies in their legal status. The distinction drawn at the time of the first organization of the market in sugar justifies a factual difference in treatment, with the result that the imposition of additional charges on production of B sugar does not amount to a misuse of powers.

(c) Discrimination in the treatment of the sugar industry from one Member State to another

71.Finally, the plaintiff in the main proceedings argues that the special elimination levy is discriminatory and consequently invalid on the ground that it imposes on the sugar industry a charge which varies in amount from one Member State to another. The discrepancy in the average charge imposed is due solely to the unequal apportionment of A and B quotas among Member States. Heavier charges are accordingly necessarily imposed on the sugar industry in Member States which have a comparably higher B quota. If the inequality in treatment objected to is not in fact based on the method of imposing the special elimination levy, but rather on the allocation of production quotas determined according to differing criteria, it cannot merely for that reason be declared invalid.

72.The complaint of discrimination is ultimately an attack on the allocation of quotas, if it is accepted that the imposition of a higher charge on B sugar is permissible in law. However, as the plaintiff in the main proceedings itself stated, the allocation of quotas is in large measure the result of political negotiations. Any assessment of the results of negotiations conducted in the context of legislative activity must assume a priori a wide measure of discretion on the part of the legislature. Furthermore, the pursuit of objectives which are mandatory or at least permissible under Community law may also have an effect on the final outcome. Thus the allocation of quotas, apart from having the objective of stabilizing markets, also expressly pursues that of regional specialization. Moreover, the Court has already held that this procedure, which results in differences in the treatment of national economies, does not constitute prohibited discrimination.

In conclusion, therefore, the objection of discrimination must also be rejected.

(d) Method of charging only in accordance with the example of the ‘solidarity levy’

73.It remains in this connection to examine the objection that the special elimination levy ought, if at all, to have been charged in the form of the imposition of the solidarity levy under Regulation No 934/86, that is to say, imposed in equal measure on A sugar and B sugar. Against this it should be pointed out that even if one regards the charges as being equivalent within the common organization of the market in sugar, their situations are still not identical. Whereas the solidarity levy, as is already evident from its title, was designed to make good, on the basis of solidarity, a deficit built up over several years, the special elimination levy placed more emphasis on individual responsibility in so far as it was linked to production in the marketing year during which the deficit had arisen. There was therefore no obligation in law to choose the system for collecting the solidarity levy for the purposes of the special elimination levy.

5. Protection of the right to own property and the freedom to pursue an economic activity

(a) Infringement of the right to own property

74.The plaintiff in the main proceedings disputes the validity of Regulation No 1914/87 on the ground that it infringes the fundamental right to own property and the freedom to pursue economic activities. It claims that the special elimination levy is strangulatory in nature, since it is imposed on top of other financial charges. The total burden placed on the plaintiff constitutes a serious financial interference with the intrinsic value of the business established and pursued by it. The real-asset loss is at the same time an interference with the undertaking's competitive capacity.

75.The plaintiff claims that the amounts of the levies imposed on the B quota will result in sugar-beet growers growing very little sugar beet, if indeed any at all, under their B quota. The resultant fall in supplies will prevent the proper utilization of the undertaking's capacity and inhibit its economic recovery.

76.The Court has consistently held that fundamental rights form an integral part of the general principles of law whose observance is ensured by the Court. Quite recently the Court confirmed that it is bound, when safeguarding such rights, to draw inspiration from constitutional traditions common to the Member States, and that it cannot therefore uphold Community measures which are incompatible with fundamental rights recognized by the constitutions of those States. It has been recognized that the right to own property and the freedom to pursue a trade or profession rank among the general principles of Community law. As in the constitutional systems of the Member States, those principles do not constitute an unfettered prerogative, ‘but must be viewed in the light of [their] social function’.

77.The Court outlined as follows the criteria to be used when determining whether there has been an unlawful infringement of protected rights or whether there has been a legitimate restriction on the exercise of personal rights: rights of this nature ‘are protected by law subject always to the limitations laid down in accordance with the public interest. Within the Community legal order it likewise seems legitimate that these rights should, if necessary, be subject to certain limits justified by the overall objectives pursued by the Community, on condition that the substance of these rights is left untouched’.

The Court has also stated elsewhere that:

‘Consequently, the right to property and the freedom to pursue a trade or profession may be restricted, particularly in the context of a common organization of the market, provided that those restrictions in fact correspond to objectives of general interest pursued by the Community and that they do not constitute a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed’.

79.If we apply those criteria to the facts of the present case, the question to be answered amounts to asking whether the special elimination levy can be justified by an objective pursued by the Community in the common interest, and in particular whether it serves the recognized objectives of the common organization of the market, is not disproportionate to the objective pursued and does not encroach upon the very substance of the freedoms protected.

80.I have already drawn attention to the fact that the special elimination levy was designed as a measure to implement the principle of self-financing within the common organization of the market in sugar. It has also been ascertained that the relatively high charge imposed on the production of B sugar is not disproportionate to the objective pursued, particularly in view of the fact that it is difficult to envisage a less drastic method for achieving that objective.

81.Although production limitation is not one of the declared objectives of the special elimination levy, it may none the less be described as a regulatory measure within the common organization of the market. If a diminution in B-sugar production was indeed intended as a side effect of the special elimination levy, that would still not mean that the measure was disproportionate. Measures for the regulation of the market — which include, considered in their broadest sense, the special elimination levy — must be considered in the light of the whole context of the legislation.

82.It was originally intended that the problem of surplus production should not be resolved by restrictions on production, i. e. a reduction in quotas. It was decided to introduce the special elimination levy in order to avoid, at least temporarily, the need to adopt such a drastic measure. Even if the amount of that levy rendered the production of B sugar uneconomical and consequently resulted indirectly in a limitation on production, such a consequence would still not constitute an encroachment upon the substance of the right to own property. Even a reduction in production quotas imposed for reasons of market policy would be permissible, given that an undertaking ‘cannot claim a vested right to the maintenance of an advantage which it obtained from an organization of the market in the form in which it existed at a given time’.

(b) Interference with the freedom to pursue an economic activity

83.Finally, the foregoing arguments also preclude acceptance of the view that there has been an interference — in breach of fundamental rights — with the undertaking's freedom to pursue an economic activity. The economic activity of the undertaking as such is not restricted. On the contrary, the production quotas remain the same as before and as a result the marketing guarantee for the finished product, sugar, continues to apply as previously. The only ascertainable restriction lies in the resultant limits imposed on the preferential regimes. Such interference, however, still remains within the bounds of a lawful regulation of the exercise of a trade or business. Although the reduction in advantages may have serious consequences for the operators affected, it cannot be considered as constituting an infringement of the fundamental right to pursue an economic activity.

6. Breach of the principles governing the levying of taxes in the German legal system

84.The plaintiff has submitted that the levy system and in particular the system whereby charges are passed on are at variance with principles of German administrative and constitutional law which, as general principles of law, are also protected under Community law. It argues that the legal principles in the light of which the levy system falls to be examined are also recognized in Community law and that consequently the results of such an examination must also apply within the Community legal order, which is not yet so highly developed in this area.

85.It must be pointed out with regard to this submission that the fact that Community legislation is allegedly or effectively at variance with the principles applicable in Member States regarding the levying of taxes may result in the invalidity of such legislation only if the national constitutional principles in question also constitute general principles of law in the Community legal order. Only in that case can they be used as a test of validity. In so far as the plaintiff submits that the relevant principles of constitutional and administrative law, such as for example the principle of proportionality, the prohibition of discrimination and the prohibition of retroactivity, are recognized as such in Community law, it is necessary to point out that those legal principles, as formulated in Community law, have already been used as criteria for testing the regulation at issue.

86.However, no other constitutional principles in the nature of fundamental rights, which ought to be recognized as general principles within the Community legal order and which would result in the invalidity of Regulation No 1914/87, have been put forward in argument. Consequently, the special elimination levy is not invalid on the ground that it infringes national principles governing the levying of taxes.

87.Consideration of the question referred to the Court for a preliminary ruling has therefore revealed no factors of such a kind as to affect the validity of Council Regulation No 1914/87.

Costs

88.As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings pending before the national court, the decision on costs is a matter for that court. The costs incurred by the United Kingdom and the Italian Government, as well as those of the Council and the Commission, are not recoverable.

C — Conclusion

In view of the foregoing considerations, I propose that the following answer be given to the national court:

‘Consideration of the question referred has revealed no factors of such a kind as to affect the validity of Council Regulation No 1914/87.’

* * *

(*1) Original language: German.

(*1) Council Regulation No 1914/87 of 2 July 1987 (OJ 1987 L 183, p. 5).

(*2) See Article 28(31 and (4i of the basic Council Regulation No 1785/81 of 30 June 1981 (OJ 1981 L 177, p. 4).

(*3) See Article 32a of Regulation No 1785/81, as amended by Council Regulation No 934/86 of 24 March 1986 (OJ 1986 L 87, p. 1).

(*4) Decision on own resources (OJ 1985 L 128, p. 15).

(*5) My emphasis.

(*6) Translator's note: This observation is based on the German text of the provision.

(*7) Judgments in Case 108/81 Amylum v Council [1982] ECR 3107, at paragraph 33, and in Case 110/81 Roquette Frères v Council [1982] ECR 3159, at paragraph 39.

(*8) Council Decision of 21 April 1970 on the replacement of financial contributions from Member States by the Communities' own resources (OJ, English Special Edition 1970 (I), p. 224): ‘contributions and other duties provided for within the framework of the organization of the markets in sugar’.

(*9) Case 108/81, loc. cit., at paragraph 33 of the judgment.

(*10) Judgment in Case 265/87 Schrader v Hauptzollamt Gronau [1989] ECR 2237, at paragraph 11.

(*11) Case 265/87, loc. cit., at paragraph 10 of the judgment, see also the judgment in Case 179/84 Bozzetti v Invernizzi SpA [1985] ECR 2301, at paragraphs 19 and 20.

(*12) Case 110/81, loc. cit., at paragraph 38 of the judgment, and Case 108/81, loc. cit., at paragraph 32 of the judgment.

(*13) Cases 108/81 and 110/81, loc. cit.

(*14) Judgment in Case 138/78 Stölting v Hauptzollamt Hamburg-Jonas.

[1979] ECR 713, at paragraph 4

Case 138/78, loc. cit.

Case 138/78, at paragraph 7 of the judgment.

Council Regulation No 1785/81 of 30 June 1981 (OJ 1981 L 177, p. 4).

11th recital in the preamble to the basic regulation, my emphasis.

See the 11th recital in the preamble to the basic regulation.

Regulation No 1914/87.

Article 1(4) of Regulation No 1914/87, with reference to Article 41 of the basic regulation

Fourth recital in the preamble to Regulation No 1914/87

Fourth recital in the preamble to the basic regulation

Article 5 of the basic regulation; see also Regulation No 206/68 of 20 February 1968 on provisions governing contracts and group agreements relating to the purchase of sugar beet, Journal Officiel 1968, L 47, p. 1.

Articles 28 and 5 of the basic regulation.

See Article 2(1) of the basic regulation.

See Article 1(2) and (4) of Regulation No 1914/87 and Commission Regulation No 3061/87 of 13 October 1987 (OJ 1987 L 290, p. 10).

See the preamble to basic Regulation No 1785/81

1 Uh recital in the preamble.

See paragraphs 3 and 5 of Article 28 of Regulation No 1785/81.

See Case 61977??0103, Royal Scholten-Honig and Tunnel Refineries Limited v Intervention Board for Agricultural Produce [1978] ECR 2037, at paragraph 39.

With regard to the system of quotas and sugar production levies, see also the judgment in Case 250/84, Eridania Zuccherifici Nazionali SpA and Others v Cassa Conguaglio Zucchero and the Italian Ministry of Finance and Treasury [1986] ECR 117.

See Case 250/84, loc. cit., at paragraph 32 of the judgment.

See Case 138/78, loc. cit., at paragraph 6 of the judgment.

Judgment in Case 230/78, Endanta-Zuccherifici Nazionali and Società Italiana per l'Industria degli Zuccheri v Minister of Agriculture and Forestry and Others [1979] ECR 2749, at paragraph 17 et seq.; also see Case 250/84, at paragraph 11 et seq. of the judgment.

Judgment in Case 4/73, Nold v Commission [1974] ECR 491; judgment in Case 44/79, Hauer v Land Rbeinland-Pfalz [1979] ECR 3727; and judgment in Case 265/87, Schrädery Haupttollamt Gronau [1989] ECR 2237.

Case 265/87, loc. cit. at paragraph 14 of the judgment.

Case 44/79, loc. cit., and Case 265/87, loc. cit.

Case 265/87, loc. cit., at paragraph 15, and Case 4/73, loc. cit., at paragraph 14.

(52) Case 4/73. at paragraph 14 of the judgment.

(53) Case 265/87, at paragraph 15 of the judgment

(54) Judgment in Joined Cases 133 to 136/85 Walter Ran Lebensmittelwerke and Others v Bundesamtalt ßir landwirtschafiliche Marktordnung [1987] ECR 2289, at paragraph 18

(55) See also Case 230/78, at paragraph 22 of the judgment.