Important legal notice

61991C0308

European Court reports 1993 Page I-02787

Opinion of the Advocate-General

My Lords,

2. The questions referred for a preliminary ruling are the following:

"(1) Must Article 13(2) of Regulation (EEC) No 394/70 be interpreted as meaning that the percentage purity of the syrup is to be calculated by dividing total sugar content, after multiplying by 0.95, by dry matter content and multiplying the result by one hundred?

(2) Must Article 13(2) of Regulation (EEC) No 394/70 be interpreted as meaning that the purity of fruit-sugar syrups may be determined by measuring the fructose content and relating it to the dry matter content?

(3) Must Article 13(2) of Regulation (EEC) No 394/70 be interpreted as meaning that the purity of fruit-sugar syrups may be determined by establishing the dry matter content in the inverted solution by appropriate methods and relating it to the sugar content of the inverted solution?"

"The sucrose content, including other sugars expressed as sucrose shall be determined in accordance with ... Article 13 of Regulation (EEC) No 394/70 in the case of exports."

5. For what follows, it is necessary to have some understanding of the concepts of "sucrose content" and of "other sugars expressed as sucrose". Sucrose is a sugar of the kind known as "disaccharide", with a molecular weight of approximately twice that of such "monosaccharides" as fructose (also known as "fruit-sugar") and glucose. A solution of sucrose can be converted into a solution consisting of a mixture of fructose and glucose, by a procedure known as "inversion". When the sucrose solution is thus inverted, each molecule of sucrose (C12H22O11) breaks down into a molecule of fructose and a molecule of glucose (each C6H12O6); however, in order to produce fructose and glucose from a molecule of sucrose, a molecule of water is necessary:

C12H22O11 + H2O C6H12O6 + C6H12O6.

6. It follows that, when a syrup of sucrose is inverted into a solution of fructose and glucose, the dry matter content of the solution is increased by slightly more than 5%; the increase in the mass of dry matter results from the incorporation of a molecule of water for each molecule of sucrose converted into fructose and glucose. That increase is known as "inversion gain". Conversely, the weight of a quantity of fructose or glucose must be multiplied by a factor of 0.95 if it is to be expressed as an equivalent weight of sucrose. As we have seen, MCAs for the export of sugar are calculated in terms of the sucrose content of the product, including other sugars "expressed as sucrose".

7. As I have already mentioned, the sucrose content of syrups is determined, for that purpose, in accordance with Article 13 of Commission Regulation No 394/70 of 2 March 1970 on detailed rules for granting export refunds on sugar (OJ, English Special Edition 1970 (I), p. 132; hereafter "the regulation"). According to Article 13(1) of the regulation:

"... without prejudice to the provisions of paragraphs 2 and 3, the sucrose content including where appropriate other sugars expressed as sucrose, shall be the total sugar content resulting from the application of the Lane and Eynon method (copper reduction method) to the solution inverted according to Clerget-Herzfeld. The total sugar content determined in this manner shall be expressed as sucrose by multiplying by 0.95."

The "Lane and Eynon method", or "copper reduction method", is a standard method for measuring the sugar content of solutions. That method is however suitable only for measuring the amounts of monosaccharides present. Before the sugar content of a syrup containing sucrose can be accurately measured, therefore, the syrup must be inverted, that is to say transformed into a solution consisting solely of fructose and glucose. As we saw above, the result of such an inversion is an increase in the mass of sugar contained in the solution. However, by the last sentence of Article 13(1), the resulting figure for sugar content is then expressed in terms of sucrose by means of a multiplication by 0.95.

"In the case of syrups which are 85% or more but less than 94.5% pure, the sucrose content including where appropriate other sugars expressed as sucrose shall be fixed at a flat rate of 73% by weight in the dry state. The percentage purity of the syrups shall be calculated by dividing total sugar content by dry matter content and multiplying the result by one hundred. Total sugar content shall be determined in accordance with the method referred to in paragraph 1 and the dry matter content according to the areometric method."

The issue raised by the first of the three questions referred by the Finanzgericht is whether, in that provision, the "method referred to in paragraph 1" includes the multiplication by 0.95 mentioned in the last sentence of paragraph 1, or whether the reference is simply to the copper reduction method applied (if necessary) to the inverted solution, without any such adjustment. I shall discuss that problem first, before turning to the issues raised by the second and third questions referred.

The first question

10. When the purity of a syrup is being determined, three distinct cases can be distinguished: (1) syrups consisting only of disaccharides such as sucrose, (2) syrups consisting only of monosaccharides such as fructose or glucose, and (3) syrups consisting of a mixture of monosaccharides and disaccharides. It is to be noted that, in laying down the procedure to be used in determining purity, Article 13(2) of the regulation does not make any express distinction between the three cases. It will be recalled that in cases (1) and (3), the application of the copper reduction method specified in Article 13(1) requires a prior inversion of the syrup, leading to an increase in the mass of the sugar contained. Such an increase will not however occur in case (2), since there the copper reduction method can be used without any prior conversion of sucrose into fructose and glucose.

11. If, in cases (1) and (3), the dry matter content of the syrup is measured before it is inverted, and the resulting figure used in the calculation of the purity of the syrup, it is clear that the degree of purity will be overestimated ° unless, that is, an adjustment can be made to the figure for the total sugar content. In case (1), the overestimation can be corrected by multiplying the total sugar content, as determined by the copper reduction method, by 0.95: in other words, by the application of the entire procedure laid down by Article 13(1), including the adjustment provided for in the last sentence of that paragraph. It is equally clear, however, that the application of such a procedure in cases (2) and (3) will lead to an underestimation of the purity of the syrup, since a quantity of sugar corresponding to the fructose or glucose originally present in the syrup would also be subject to the adjustment. As we have seen, such an underestimation can have serious consequences for the exporter, given that Article 13(2) fixes a flat rate of sucrose content of 73% by weight for syrups measured as less than 94.5% pure.

12. As the Commission suggests in its written observations, that difficulty could be resolved by distinguishing between the three cases. Thus in case (1), the adjustment would be applied to the entire figure for the total sugar content, since all the sugar measured by the copper reduction method will be derived from inverted sucrose. In case (2), it is clear that no adjustment would be necessary. In case (3), the adjustment could be applied to a proportionate part of the figure for the total sugar content, corresponding to that proportion of the sugar in the inverted solution which is derived from sucrose. As the Commission points out, the amount of sucrose present in the original syrup can be determined by applying the copper reduction method to samples of the syrup taken before and after inversion. Thus, if the sugar content is measured as * before inversion and as * after inversion, a quantity * - * of monosaccharides in the inverted solution must derive from the conversion of sucrose into fructose and glucose. The amount of sucrose present in the original syrup is accordingly (* - *) multiplied by 0.95.

13. It seems to me that the approach proposed by the Commission is essentially correct. The purpose of Article 13 of the regulation would not be served by an interpretation of Article 13(2) which led to systematic inaccuracies in the measurement of the purity of syrups, inaccuracies which would be compounded in certain cases by the application of the flat rate for sucrose content laid down in the first sentence of that paragraph. The only difficulty with the Commission' s proposed approach is that, as I have already observed, the wording of Article 13(2) makes no distinction between cases where an adjustment of the figure for total sugar content may be necessary, and cases where it is unnecessary because the original syrup consisted entirely of fructose or glucose. Similarly, the last sentence of Article 13(1) makes no such distinction, requiring the entire sugar content of the inverted solution to be expressed as sucrose for the purpose of awarding export refunds or, as the case may be, MCAs. Thus, the adjustment provided for in that sentence is applied to the whole of the sugar content of the inverted solution, and not merely applied pro rata to the proportion of the total sugar content derived from sucrose in the original syrup.

The second and third questions

18. By its second and third questions, the Finanzgericht asks, in substance, whether methods other than those specified in Article 13 may be used to measure the total sugar content or the dry matter content of the syrup. It appears that more advanced technology, only recently widely available, permits sugar content to be measured directly, without any need for a prior inversion of the syrup in the case of a syrup containing sucrose. Similarly, more recent methods permit the direct measurement of the density, and hence the dry matter content, of an inverted solution. The Finanzgericht suggests that the object of Article 13 would be better served by the use of such more advanced methods.

Conclusion

20. I am accordingly of the opinion that the questions referred by the Finanzgericht should be answered as follows:

(1) Article 13(2) of Regulation No 394/70 must be interpreted as meaning that the purity of the syrup is to be determined by the following procedure:

(a) the total sugar content of the syrup is measured by applying the copper reduction method to the inverted solution;

(b) the dry matter content of the inverted solution is determined by measuring the dry matter content of the original syrup by means of the areometric method, and adjusting the figure so determined in order to take into account any gain in the dry matter content resulting from the inversion of the syrup;

(c) the total sugar content of the inverted solution is divided by the dry matter content of the inverted solution.

However, where no inversion of the syrup is necessary in order to apply the copper reduction method, the purity of the syrup is determined by dividing the total sugar content of the syrup by the dry matter content of the syrup.

(2) Article 13 of Regulation No 394/70 must be interpreted as meaning that no method other than the copper reduction method or the areometric method may be applied in determining the sugar content or the dry matter content of the syrup or its inverted solution.

(*) Original language: English.