17 October 2019 (*1)

(Reference for a preliminary ruling – Agriculture – Common organisation of the markets – Regulation (EC) No 967/2006 – Article 3(2) – Sugar – Surplus amount – Time limit for notifying the total levy to be paid – Time limit for a retrospective correction – Principles of proportionality, legal certainty and the protection of legitimate expectations)

In Case C‑423/18,

concerning a request for a preliminary ruling under Article 267 TFEU from the Finanzgericht Baden-Württemberg (Finance Court, Baden-Württemberg, Germany), made by a decision of 20 March 2018, received at the Court on 27 June 2018, in the proceedings

Hauptzollamt Karlsruhe,

THE COURT (Eighth Chamber),

composed of L.S. Rossi (Rapporteur), President of the Chamber, J. Malenovský and F. Biltgen, Judges,

Advocate General: E. Sharpston,

Registrar: M. Krausenböck, Administrator,

having regard to the written procedure and further to the hearing on 16 May 2019,

after considering the observations submitted on behalf of:

–Südzucker AG, by D. Ehle, Rechtsanwalt,

–the Hauptzollamt Karlsruhe, by A. Weins and R. Gleim-Arnold, and by T.‑M. Seith, acting as Agents,

–the European Commission, by B. Eggers and B. Hofstötter, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

1The request for a preliminary ruling relates to the interpretation of Article 3(2) of Commission Regulation (EC) No 967/2006 of 29 June 2006 laying down detailed rules for the application of Council Regulation (EC) No 318/2006 as regards sugar production in excess of the quota (OJ 2006 L 176, p. 22).

2This request was made in proceedings between Südzucker AG and the Hauptzollamt Karlsruhe (Principal Customs Office, Karlsruhe, Germany, ‘the Customs Office’) relating to the fixing of the levy on surplus sugar produced for the 2007/2008 marketing year.

Legal context

EU law

3Article 15 of Council Regulation (EC) No 318/2006 of 20 February 2006 on the common organisation of the markets in the sugar sector (OJ 2006 L 58, p. 1), as amended by Council Regulation (EC) No 1260/2007 of 9 October 2007 (OJ 2007 L 283, p. 1) (‘Regulation No 318/2006’), provides that:

(a)surplus sugar, surplus isoglucose and surplus inulin syrup produced during any marketing year, except quantities carried forward to the quota production of the following marketing year and stored in accordance with Article 14 or quantities referred to in Article 12(c) and (d);

(b)industrial sugar, industrial isoglucose and industrial inulin syrup for which no proof has been supplied, by a date to be determined, that it has been processed in one of the products referred to in Article 13(2);

(c)sugar, isoglucose and inulin syrup withdrawn from the market in accordance with Article 19 and for which the obligations provided for in Article 19(3) are not met.

4Article 3 of Regulation No 967/2006, entitled ‘Amount’, reads as follows:

5Article 4 of that regulation, entitled ‘Surplus subject to levy’, provides that:

However, the levy shall not be charged on the quantities referred to in paragraph 1 which have been:

(a)delivered to a processor before 30 November of the following marketing year to be used in the manufacture of the products referred to in the Annex;

(b)carried forward in accordance with Article 14 of Regulation (EC) No 318/2006 and, in the case of sugar, stored by the manufacturer until the last day of the marketing year in question;

(c)delivered before 31 December of the following marketing year in the context of the specific supply arrangements for the outermost regions provided for in Title II of Regulation (EC) No 247/2006;

(d)exported before 31 December of the following marketing year under an export licence;

(e)destroyed or damaged without possibility of recovery, in circumstances recognised by the competent authority of the Member State concerned.

Sugar manufacturers shall also communicate, where appropriate, before the end of each of the following months, the adjustments to this production made in the course of the previous month of that marketing year.

6According to Article 10 of Commission Regulation (EC) No 952/2006 of 29 June 2006 laying down detailed rules for the application of Regulation No 318/2006 as regards the management of the Community market in sugar and the quota system (OJ 2006 L 178, p. 39)

), as amended by Commission Regulation (EC) No 707/2008 of 24 July 2008 (OJ 2008 L 197, p. 4) (‘Regulation No 952/2006’):

‘1. Each marketing year, the competent authority of the Member State shall carry out checks on each approved manufacturer and refiner.

The checks shall verify the accuracy of the measuring instruments and laboratory analyses used to determine deliveries of raw materials and their entry into production, the products obtained and stock movements.

Checks shall include verification of the accuracy and completeness of the data used to establish the average monthly selling prices of the undertaking referred to in Article 13(2).

For sugar manufacturers, checks shall also cover compliance with the obligation to pay the minimum price to beet growers.

At least once every two years, checks shall include physical checks on stocks.

5. Every on-the-spot check shall be the subject of an inspection report signed by the inspector giving the details of the checks carried out. Reports shall indicate in particular:

(a)the date of the check, and the persons present;

(b)the period checked and the quantities involved;

(c)the checking techniques used including, where applicable, reference to sampling methods;

(d)the results of the check and any corrective measures required;

(e)an assessment of the seriousness, extent, permanence and duration of any faults and discrepancies found and all other elements to be taken into consideration for the purposes of applying penalties.

Each inspection report shall be archived and kept for at least three years following the year in which the check is carried out, in a way that ensures that it is readily useable by the Commission departments responsible for checks and inspections.

The dispute in the main proceedings and the questions referred for a preliminary ruling

German law

7The first sentence of Paragraph 12(1) of the Gesetz zur Durchführung der gemeinsamen Marktorganisationen und der Direktzahlungen (Law implementing the common organisation of markets and direct payments), in the version of 24 June 2005 (BGB1. 2017 I, p. 3746, ‘the MOG’) states that:

‘The provisions of the Fiscal Code of Germany … shall apply mutatis mutandis to levies for market organisation purposes … unless this law or a regulation adopted pursuant to this Law stipulates otherwise.’

8Paragraph 8(1) of the Verordnung über die im Rahmen der Produktionsregelung für Zucker zu erhebenden Abgaben (Regulation on the levies to be charged in connection with the regulation of sugar production) of 13 March 1983, in the version of 9 November 2006, provides that:

‘(1) The competent principal customs office shall, at the times laid down by the acts mentioned in paragraph 1, issue

…’

9According to Paragraph 164(1), the first sentence of Paragraph 164(2) and the first sentence of Paragraph 164(1)(4) of the Abgabenordnung (German tax code) (BGBl. 2002 I, p. 3866):

‘(1) As long as the tax case has not been subject to a final audit, taxes may be assessed generally, or in certain cases, subject to review, without justification being required. …

(2) The tax assessment may be cancelled or amended for as long as the review proviso remains in effect …

(4) The review proviso shall no longer apply in the event that the period for assessment expires.’

10Paragraph 169(1) and (2) of that code provides that:

‘(1) Tax assessment and its cancellation or amendment shall no longer be permissible once the period for assessment has expired. …

(2) The period for assessment shall be:

1.one year for excise duties and excise duty rebates,

2.four years for taxes and tax rebates that are not taxes or tax rebates within the meaning of point 1 or import and export duty in accordance with Article 5(20) and (21) of the European Union Customs Code. …’

11Paragraph 170(1) of the same code, entitled ‘Period for assessment’, provides that:

‘(1) The period prescribed for assessment shall begin on the expiry of the calendar year during which the tax liability arose.’

Paragraph 171(10) of that code, entitled ‘Extension of the period’, states that:

‘To the extent that a notice of determination … is binding for the assessment of a tax (basic assessment notice), the period for assessment shall not end before the expiry of two years following the disclosure of such a basic assessment notice. …’

Under Paragraph 179 of the tax code:

‘(1) Notwithstanding the provisions of Paragraph 157(2), tax bases shall be determined separately by way of notice of determination where this is stipulated in this Code or in other tax laws.

(2) A notice of determination shall be issued against the taxpayer to whom the object of the determination is attributable for taxation. …

(3) Where a determination which should have been made does not appear in a notice of determination, it shall be included in an additional notice.’

14According to Paragraph 181 of that code, entitled ‘Procedural rules for separate determination, determination period, obligation to file returns’:

‘(1) The provisions on executing the taxation procedure shall apply mutatis mutandis to separate determination. …

(2) Those persons to whom the object of the determination is wholly or partially attributable shall file a return for separate determination. …

…

(5) Separate determination may also be undertaken following expiry of the determination period to which it applies in as much as the separate determination is of relevance for a tax assessment for which the period of assessment has not yet expired at the time when the separate determination is made …’

The dispute in the main proceedings and the questions referred for a preliminary ruling

15It is apparent from the decision to refer that Südzucker operates nine sugar factories. During the 2007/2008 sugar marketing year (from October 2007 to September 2008), its sugar quota was 11788978 decitonnes of white sugar.

16By a notice of 14 November 2008, the customs office determined the surplus sugar attributable for the 2007/2008 marketing year on the basis of Südzucker’s report of 30 October 2008 as 311 060.6 tonnes.

17On that basis, by a notice of 7 April 2009, it was decided to impose a levy of EUR 925 for 1.85 tonnes of white sugar. That decision, issued under Article 15(1)(a) of Regulation No 318/2006, stated that it had been issued subject to subsequent review.

18Having regard to the results of an on-the-spot check carried out at one of Südzucker’s customers, by a decision of 19 October 2009, the customs office amended the surplus amount for the 2007/2008 sugar marketing year, which it fixed as EUR 1 083.03 for 2.16606 tonnes of white sugar. That decision was also issued subject to subsequent review.

19Südzucker lodged a complaint against that amended decision. During the complaint procedure, the customs office carried out an audit of compliance with market regulations at Südzucker’s factory at Ochsenfurt (Germany) and, by a decision of 20 May 2010, amended the final production of sugar determined, setting the attributable surplus sugar at 3 128 878.93 decitonnes. By a decision of the same date, it accordingly assessed the surplus levy for the 2007/2008 sugar marketing year as a total of EUR 914 726.50 for 1829453 tonnes of white sugar. Südzucker lodged a complaint against that decision, which was likewise issued subject to a subsequent review.

20On the basis of the outcome of an audit of compliance with market regulations that had been resumed at Südzucker’s factory at Zeitz (Germany), the attributable surplus quantity of sugar was further amended (assessed as 3 149 202.3 decitonnes) by a decision of 27 October 2011, and the surplus levy was set at EUR 1930895.

21During the complaint and appeal proceedings, Südzucker claimed, inter alia, that the amended assessment was time barred, and specifically that it had not received timely notification of the surplus levy. By a decision of 17 March 2015, the customs office dismissed the complaint made against the decision of 27 October 2011 as unfounded in relation to, first, Südzucker’s claim that the amended assessment was time-barred and, secondly, in relation to the determination of the final production of sugar during the 2007/2008 sugar marketing year.

22On 24 April 2015, Südzucker appealed against that decision of 17 March 2015 to the Finanzgericht Baden-Württemberg (Finance Court, Baden-Württemberg, Germany), on the basis of the amended assessment of the surplus levy, claiming only that it had not received timely notification of that levy.

23The Finanzgericht Baden-Württemberg (Finance Court, Baden-Württemberg) takes the view, in essence, that the decision on the substance turns on whether the surplus levy for the 2007/2008 sugar marketing year could still be notified to Südzucker on 20 May 2010 and 27 November 2011, that is to say, after the expiry date of the time limit under the first sentence of Article 3(2) of Regulation No 967/2006, in the present case, 1 May 2009.

24The referring court notes in that respect that, according to that provision, the Member State must notify manufacturers of the total levy to be paid, before 1 May following the marketing year in which the surplus has been produced. For the 2007/2008 sugar marketing year that time limit therefore expired on 1 May 2009. Within that time limit, Südzucker was indeed notified, on 7 April 2009, of a surplus amount of EUR 925 for the excess quantity of sugar that it had notified, but that amount was subsequently amended twice, on 20 May 2010 and 27 November 2011 respectively.

25The Finanzgericht Baden-Württemberg (Finance Court, Baden-Württemberg) notes in that respect that, in its judgment of 10 January 2002, British Sugar (C‑101/99, EU:C:2002:7, paragraph 57), the Court held that the time limit set by Article 3(2) of Commission Regulation (EEC) No 2670/81 of 14 September 1981 laying down detailed implementing rules in respect of sugar production in excess of the quota (OJ 1981 L 262, p. 14) – which was subsequently replaced by the first sentence of Article 3(2) of Regulation No 967/2006, which applies in the case in the main proceedings, – is mandatory. It then clarified that exceeding the time limit may nevertheless be permissible where the competent national authority, without negligence on its part, did not know the details of the undertaking’s sugar production and where that lack of knowledge may reasonably be attributed to the undertaking, because it has not acted in good faith and has not complied with all the relevant provisions (judgment of 10 January 2002, British Sugar, C‑101/99, EU:C:2002:7, paragraph 63).

26However, in its judgment of 25 March 2004, Azienda Agricola Ettore Ribaldi and Others (C‑480/00, C‑482/00, C‑484/00, C‑489/00 to C‑491/00 and C‑497/00 to C‑499/00, EU:C:2004:179, paragraphs 52 and 53), concerning the notification of additional levies in relation to the common organisation of the milk market, the Court held that, although the time limits in question are mandatory, the fact remains that they do not preclude the competent authorities of a Member State from making after-the-event checks and corrections for the purpose of ensuring that that Member State’s production does not exceed the guaranteed global quantity allocated to it. On the contrary, the aim both of those time limits and of checks and corrections made after the event is to ensure that the additional milk levy system is operated efficiently and the relevant legislation applied correctly.

27The Court concluded from the foregoing that on a proper construction of the provisions setting those time limits, it is therefore not contrary to those provisions for a Member State, after checks have been carried out, to correct the individual reference quantities allocated to each producer and, after the unused reference quantities have been reallocated, to recalculate in consequence the additional levies payable, after the final date for payment of those levies for the milk marketing year concerned (judgment of 25 March 2004, Azienda Agricola Ettore Ribaldi and Others (C‑480/00, C‑482/00, C‑484/00, C‑489/00 to C‑491/00 and C‑497/00 to C‑499/00, EU:C:2004:179, paragraph 68).

28The Finanzgericht Baden-Württemberg (Finance Court, Baden-Württemberg) states on that point that the Court, in contrast to its ruling in the judgment of 10 January 2002, British Sugar (C‑101/99, EU:C:2002:7), did not make amendment to the notification of levies after expiry of the time limit contingent on any other conditions where the first notification has been made in good time.

29Under those circumstances, the chamber takes the view that the considerations that the Court set out in its judgment of 25 March 2004, Azienda Agricola Ettore Ribaldi and Others (C‑480/00, C‑482/00, C‑484/00, C‑489/00 to C‑491/00 and C‑497/00 to C‑499/00, EU:C:2004:179) apply in the present case.

In the event that the Court nevertheless found that the effects of the judgment of 25 March 2004, Azienda Agricola Ettore Ribaldi and Others (C‑480/00, C‑482/00, C‑484/00, C‑489/00 to C‑491/00 and C‑497/00 to C‑499/00), EU:C:2004:179) should not be transposed to the case in the main proceedings and that the notification time limit under the first sentence of Article 3(2) of Regulation No 967/2006 also had to apply to amended notifications, the referring court then enquires whether that time limit can be exceeded, in particular where the additional conditions flowing from the judgment of 10 January 2002, British Sugar, (C‑101/99, EU:C:2002:7) are satisfied, that is to say, if it can be proven that the sugar producer did not act in good faith.

In that case, the determination of the surplus would in itself not have any consequence whatsoever, meaning that sugar manufacturers would have no incentive to export such sugar surpluses or to declare them and carry them forward to the next marketing year, as the Court stated in paragraph 57 of its judgment of 15 November 2012, Pfeifer & Langen (C‑131/11, EU:C:2012:715). The checks, likewise, would become pointless and could be dispensed with.

In the event that the Court nevertheless found that the effects of the judgment of 25 March 2004, Azienda Agricola Ettore Ribaldi and Others (C‑480/00, C‑482/00, C‑484/00, C‑489/00 to C‑491/00 and C‑497/00 to C‑499/00), EU:C:2004:179) should not be transposed to the case in the main proceedings and that the notification time limit under the first sentence of Article 3(2) of Regulation No 967/2006 also had to apply to amended notifications, the referring court then enquires whether that time limit can be exceeded, in particular where the additional conditions flowing from the judgment of 10 January 2002, British Sugar, (C‑101/99, EU:C:2002:7) are satisfied, that is to say, if it can be proven that the sugar producer did not act in good faith.

That is the context in which the Finanzgericht Baden-Württemberg (Finance Court, Baden-Württemberg) decided to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Should the first sentence of Article 3(2) of Regulation ([No 967/2006] be interpreted to mean that the time limit stated therein also applies to the amendment of a timely notification of the levy following an amended determination of the attributable quantity of surplus sugar after the passing of the time limit based on a check under Article 10 of Regulation [No 952/2006] ?

(2) If the answer to Question 1 is in the affirmative, In that case, where a timely notification is amended on the basis of findings made during checks, do the conditions established by the judgment of the Court of Justice of the European Union of 10 January 2002 in British Sugar, C‑101/99, EU:C:2002:7, for exceeding the notification time limit stipulated in Article 3(2) of Regulation [No 2670/81], as amended by [Commission Regulation (EEC) No 3559/91 of 6 December 1991 (OJ 1991 L 336, p. 26)], also apply for exceeding a notification time limit under Article 3(2) of Regulation [No 967/2006] ?

(3) If the first sentence of Article 3(2) of Regulation [No 967/2006] does not apply to amending notifications based on checks (see Question 1) or if the conditions for exceeding the time limit are fulfilled (see Question 2), should the time limit by which the amendment to the levy must be notified be 1 May of the following year or should national law apply?

(4) If the answer to Question 3 is that neither 1 May of the following year nor national law applies: Is it compatible with the general principles of EU law, which include the principles of proportionality, legal certainty and the protection of legitimate expectations, if, in a case such as the present, the levy for the 2007/2008 sugar marketing year was notified on 20 October 2010 or 27 October 2011 due to the time needed for checks and the time needed for preparation and evaluation of the inspection report? Is objection by the sugar producer to the determination of the surplus quantities relevant in this context?’

The questions referred

The first and second questions

By its first and second questions, which it is appropriate to examine together, the referring court asks, in essence, whether the first sentence of Article 3(2) of Regulation No 967/2006 should be interpreted to mean that, where the competent authority of a Member State, complying with the time limit under that provision, notifies the sugar manufacturer concerned of a levy on surplus sugar, that time limit also applies to an amendment of that notification arising from a check carried out under Article 10 of Regulation No 952/2006 or whether, in contrast, the conditions laid down in the judgment of 10 January 2002, British Sugar, (C‑101/99, EU:C:2002:7), which allow the notification time limit under Article 3(2) of Regulation No 2670/81 to be exceeded, also apply where the time limit under Article 3(2) of Regulation No 967/2006 is exceeded.

The facts in the main proceedings concerned specifically the 2007/2008 sugar marketing year, the time limit for which expired on 1 May 2009. During that period, on 7 April 2009, a surplus amount of EUR 925 was imposed on Südzucker for the excess quantity of sugar notified by it. However, following checks carried out under Article 10 of Regulation No 952/2006, that amount was amended twice, on 20 May 2010 and 27 November 2011 respectively, and gave rise to a surplus amount totalling EUR 1930895, that is to say, an appreciably higher amount than that indicated in the first decision adopted by the competent national authority.

By its first two questions, the referring court is therefore seeking, in essence, to ascertain whether the surplus levy for the 2007/2008 sugar marketing year could still be notified to Südzucker on 20 May 2010 and 27 November 2011, that is to say, after the expiry date of the time limit under the first sentence of Article 3(2) of Regulation No 967/2006, in this case, 1 May 2009.

In order to answer those questions, it should be noted at the outset that, under Article 4(2) of Regulation No 967/2006, every sugar manufacturer must communicate to the competent authority of the Member State which approved it, before 1 February of the marketing year concerned, the quantity of sugar produced in excess of its production quota and, before the end of each of the following months, the adjustments to that production made in the course of the previous month of that marketing year.

Furthermore, under Article 3(2) of that regulation, before 1 May following the marketing year in which the surplus has been produced, the Member State must notify manufacturers of the total levy to be paid.

The Court held in that respect, in its judgment of 10 January 2002, British Sugar (C‑101/99, EU:C:2002:7), that bus transport cannot be regarded as an activity based essentially on manpower, as it requires substantial plant and equipment. The Court added that, accordingly, the fact that the tangible assets used for operating the bus routes were not transferred from the old to the new contractor therefore constitutes a circumstance to be taken into account for the purposes of classification as a transfer of an undertaking. It then held, in paragraph 42 of that judgment, that, since the tangible assets contribute significantly to the performance of that activity, the absence of a transfer to a significant extent from the old to the new contractor of such assets, which are necessary for the proper functioning of the entity concerned, must lead to the conclusion that the entity does not retain its identity. Finally, the Court concluded, in paragraph 43 of that judgment, that, in a situation such as that in the main proceedings, Directive 77/187 does not apply in the absence of a transfer of significant tangible assets from the old to the new contractor.

EU:C:2002:7

paragraphs 57, 58 and 63), that the time limit set by Article 3(2) of Regulation No 2670/81 is mandatory. However, it also clarified that exceeding that time limit may be permissible where the competent national authority, without negligence on its part, first, did not know the details of the undertaking’s sugar production and where, secondly, that lack of knowledge may reasonably be attributed to the undertaking, because it has not acted in good faith and has not complied with all the relevant provisions.

38It is apparent from that case-law that it is only exceptionally permissible to exceed that time limit for notification, that is to say, where both the conditions set out by the Court in that judgment are fulfilled.

39In the same judgment, the Court furthermore held that it is for the national court to make the necessary inquiries and to draw the appropriate conclusions therefrom, taking into consideration, inter alia, how far the competent national authority was aware of the situation in question and the care and attention exercised by that authority (see judgment of 10 January 2002, British Sugar, C‑101/99, EU:C:2002:7, paragraph 59).

40Although that judgment concerns the interpretation of Article 3(2) of Regulation No 2670/81, it should be noted that this provision was subsequently replaced, in substantially identical terms, by the first sentence of Article 3(2) of Regulation No 967/2006, which applies in the case in the main proceedings. The considerations that the Court set out in its judgment of 10 January 2002, British Sugar (C‑101/99, EU:C:2002:7), in relation to Article 3(2) of Regulation No 2670/81, are fully transposable to the circumstances of the case in the main proceedings.

41That being so, in order to determine, as the referring court requests, whether it is permissible to exceed the notification time limit under the first sentence of Article 3(2) of Regulation No 967/2006 in such circumstances, it is necessary to determine whether the cumulative conditions established in the case-law cited in paragraph 37 of this judgment are fulfilled.

42As regards the first of those conditions, the file before the Court does not contain evidence unequivocally establishing that the competent national authority was unaware of the details of Südzucker’s sugar production.

43As regards the second condition, that the undertaking concerned must have acted other than in good faith, it should be noted that Südzucker did indeed acknowledge that it had produced a quantity of sugar in excess of its production quota. However, as confirmed at the hearing in this case, that surplus production appears to be due solely to a change in the density initially applicable and the change in question appears to have taken place after the production quota allocated to Südzucker was set, which, moreover, the customs office has not disputed.

44In other words, as Südzucker highlighted at the hearing, it is apparent that if the density initially applicable had not been altered, the undertaking concerned would not have produced excess sugar.

45Under the circumstances, it is for the referring court to ascertain whether such a causal nexus exists and to take it into account in the analysis intended to verify that the sugar producer at issue in the main proceedings acted in good faith.

46Those considerations cannot be called into question merely because, as the referring court suggests, it can be argued that the principles identified by the Court in the judgment of 25 March 2004, Azienda Agricola Ettore Ribaldi and Others (C‑480/00, C‑482/00, C‑484/00, C‑489/00 to C‑491/00 and C‑497/00 to C‑499/00, EU:C:2004:179), which, as apparent from paragraphs 26 and 27 of this judgment, was made in the context of notification of additional levies in relation to the common organisation of the milk market, apply in the circumstances of the case in the main proceedings.

47Indeed, as Südzucker highlights, the Court delivered that judgment in the light of a different legal situation and a different field from those at issue in the main proceedings. Those differences concern, in particular, the verification measures necessary to ensure payment of the levy on quantities of milk and the detailed rules on the application of the additional levy. The considerations that the Court set out in that judgment, in the context of the common organisation of the milk market, cannot therefore be applied by analogy to the dispute in the main proceedings, which concerns the organisation of the sugar market. Accordingly, those considerations cannot be decisive for the interpretation and application of the relevant provisions of Regulation No 967/2006.

48In the light of the foregoing, the answer to the first and second questions must be that the first sentence of Article 3(2) of Regulation No 967/2006 must be interpreted as meaning that, where a notification of a levy on a sugar surplus is sent by the competent authority of a Member State to the sugar producer concerned in accordance with the time limit provided for by that provision, that time limit applies, in principle, also to the correction of such a notification resulting from a review carried out under Article 10 of Regulation No 952/2006. A failure to comply with that deadline may however be accepted where the competent national authority, without negligence on its part, did not know the details of the undertaking’s sugar production and where that lack of knowledge may reasonably be attributed to the undertaking, because it has not acted in good faith and has not complied with all the relevant provisions. It is for the referring court to determine whether such is the case in the main proceedings, in the light of all of the facts of that case.

The third and fourth questions

49By its third and fourth questions, which it is appropriate to examine together, the referring court asks the Court, in essence, to clarify whether, in the event that the Member States may send sugar manufacturers an amended notification of the levy on surplus sugar produced, after the time limit set by the first sentence of Article 3(2) of Regulation No 967/2006 has expired, the deadline by which that amendment must be notified must be 1 May of the year following preparation of the inspection report, or whether national law should apply. That court also questions whether, on a proper construction of the general principles of EU law, in circumstances such as those of the case in the main proceedings, that notification for the 2007/2008 marketing year may not be effected on 20 October 2010 and 27 October 2011.

50In order to answer those questions, it needs pointing out that, although Regulation No 967/2006, in Article 3(2), establishes a deadline before which the Member State must notify manufacturers of the amount of the total levy to be paid for a given marketing year, it does not, in contrast, contain any provision on the time limit for sending those manufacturers amended notifications resulting from checks, within the meaning of Article 10 of that regulation.

Accordingly, in the absence of provisions of EU law in the area, it is for the national authorities, and in particular the national courts, under the principle of the procedural autonomy of the Member States, to resolve those aspects of procedure and thereby to lay down the conditions in which those States can send the sugar producers concerned notifications correcting the total amount to be paid in relation to the surplus sugar produced. However, those conditions must comply with the principles of equivalence and effectiveness, that is to say, they must not be less favourable than those concerning similar notifications based on provisions of national law or arranged in such a way as to make the exercise of rights conferred by the EU legal order practically impossible (see, to that effect, judgments of 27 September 2012, Zuckerfabrik Jülich and Others, C‑113/10, C‑147/10 and C‑234/10, EU:C:2012:591, paragraphs 60 and 61 and the case-law cited, and of 27 June 2018, Diallo, C‑246/17, EU:C:2018:499, paragraph 59).

52In the present case it should be noted that, first, the aim of both the levy on the excess sugar produced and of the checks and corrections made after the event is to ensure that the levy system for the sugar market is operated efficiently and, in particular, to prevent some producers having an advantage over others. Specifically, the checks carried out after the first levy notification are expressly intended to clarify the accuracy of the allocated sugar production and, after the event, to correct decisions of the competent national authority made previously, subject to checks, providing for the possible imposition of penalties on manufacturers.

53Secondly, in relation to notifications amending the amounts to be paid by sugar producers, as stated in paragraph 38 of this judgment, it is only exceptionally permissible to exceed that time limit for notification.

54If a correction of that nature resulting from checks carried out after the event were able, in all circumstances and irrespective of any applicable time limit, to give rise to a fresh determination of the total amount to be paid, the notification time limit under Article 3(2) of Regulation No 967/2006 would risk being deprived of any practical effect whatsoever. Indeed, in order to comply with that time limit, the competent national authority would only need to send a purely formal notification to the undertaking concerned before expiry of that time limit and then to amend that notification at any time by means of an amended notification.

55Furthermore, that approach would risk undermining the rights of the sugar producer concerned and, in particular, infringing the principle of legal certainty, which requires that legal rules be clear and precise, and aims to ensure that situations and legal relationships governed by EU law remain foreseeable (judgment of 15 September 2005, Ireland v Commission, C‑199/03, EU:C:2005:548, paragraph 69 and the case-law cited).

56Under those circumstances, it is therefore for the national court to ascertain, in each particular case and in the light of all the circumstances of the case in the main proceedings, whether the time limit within which a corrected levy on a surplus can be notified after expiry of the time limit set by the first sentence of Article 3(2) of Regulation No 967/2006 complies with the principles of equivalence and effectiveness and the principle of legal certainty.

In the light of all the foregoing, the answer to the third and fourth questions must be that, in the absence of provisions of EU law regarding the time limit within which the Member States must send sugar manufacturers a corrected notification of the levy on the surplus sugar produced, after expiry of the time limit set by the first sentence of Article 3(2) of Regulation No 967/2006, it is for the national court to ascertain, in each particular case and in the light of all the circumstances of the case in the main proceedings, whether that time limit complies with the principles of equivalence and effectiveness and the principle of legal certainty.

Costs

58Since these proceedings are, for the parties in the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Eighth Chamber) hereby rules:

1.The first sentence of Article 3(2) of Commission Regulation (EC) No 967/2006 of 29 June 2006 laying down detailed rules for the application of Council Regulation (EC) No 318/2006 as regards sugar production in excess of the quota must be interpreted as meaning that, where a notification of a levy on a sugar surplus is sent by the competent authority of a Member State to the sugar producer concerned in accordance with the time limit provided for by that provision, that time limit applies, in principle, also to the correction of such a notification resulting from a review carried out under Article 10 of Commission Regulation (EC) No 952/2006 of 29 June 2006 laying down detailed rules for the application of Council Regulation (EC) No 318/2006 as regards the management of the Community market in sugar and the quota system, as amended by Commission Regulation (EC) No 707/2008 of 24 July 2008. A failure to comply with that deadline may however be accepted where the competent national authority, without negligence on its part, did not know the details of the undertaking’s sugar production and where that lack of knowledge may reasonably be attributed to the undertaking, because it has not acted in good faith and has not complied with all the relevant provisions. It is for the referring court to determine whether such is the case in the main proceedings, in the light of all of the facts of that case.

2.In the absence of provisions of EU law concerning the time limit within which the Member States must send to sugar producers a corrected notification of a levy on a surplus of sugar produced, after the expiry of the time limit set by the first sentence of Article 3(2) of Regulation No 967/2006, it is for the national court to verify, in each specific case and in the light of the circumstances of the case in the main proceedings, whether that time limit complies with the principles of equivalence and effectiveness and the principle of legal certainty.

[Signatures]

*1 Language of the case: German.