Opinion of Advocate General Sharpston delivered on 28 January 2016

Overview

2. The common organisation of the market in sugar was set up in 1967⁽⁵⁾ and later adjusted, amended or reformed a number of times, most recently before the material time in the present case by Regulation No 1785/81⁽⁶⁾ and Regulation No 2038/99.⁽⁷⁾

3. It was regulated at that material time by Regulation No 1260/2001,⁽⁸⁾ which was adopted both in order to take account of developments and to comply with obligations under the agreements resulting from the Uruguay Round of multilateral trade negotiations. The agreement on agriculture required the Community gradually to reduce its export support in particular for sugar under guarantee of production quotas, in terms of both quantities covered and level of subsidies, over a transitional period, from the 2001/02 to 2005/06 marketing years.⁽⁹⁾

4. The system under that regulation, described very broadly, involved three classes of production, known respectively as A, B and C sugar. A sugar fell within a quota corresponding in principle to demand on the internal market. B sugar fell within a further quota. Production within the A and B quotas could be either sold on the internal market (where it benefited from artificially high prices maintained by an intervention mechanism) or exported to third countries with the benefit of export refunds designed to offset the difference between the price on the internal market and the significantly lower prices on the world market. The refund system was designed to be self-financing, in that it was funded by a basic levy on A and B production of up to 2% of the intervention price, supplemented where necessary by a further levy (of up to 37.5% of that price) on B production alone. Any production outside those quotas was known as C sugar. It could not be marketed within the Community during the relevant marketing year, but it could be either exported without the benefit of any refund (or the charging of any levy) or carried over in stock until the following marketing year, when it would be counted against the producer’s allotted A and B quotas.

5. Detailed rules implementing Regulation No 1260/2001 were laid down in Regulation No 314/2002.⁽¹⁰⁾

6. In 2005, a WTO ruling⁽¹¹⁾ obliged the Union to limit exports of subsidised white sugar to 1.37 million tonnes, compared to the previous annual average of 6.5 million tonnes. More radical reform was therefore necessary. Both Regulation No 1260/2001 and Regulation No 314/2002 were repealed and replaced with effect from 1 July 2006 by, respectively, Regulation No 318/2006⁽¹²⁾ and Regulation No 952/2006.⁽¹³⁾ In addition, Regulation No 320/2006⁽¹⁴⁾ provided for restructuring of the sugar industry.

7. In order to deal with issues arising out of the changeover to the new system, transitional measures were laid down in Regulation No 493/2006.⁽¹⁵⁾

Regulation No 1260/2001

8. The preamble to Regulation No 1260/2001 stated, inter alia:

• The reasons which have hitherto led the Community to adopt a production quota system … remain valid. However, that system has been adjusted to … provide the Community with the instruments necessary to ensure, in a fair yet efficient way, that the producers themselves meet in full the cost of disposing of the surpluses of Community production over consumption …

…

• The common organisation of the markets in the sugar sector is based, firstly, on the principle that producers should bear full financial responsibility for the losses incurred each marketing year from disposing of that part of Community production under quota which is surplus to the Community’s internal consumption ...

• ... The sector’s system of self-financing through production levies and the production quota regime should be maintained.

• The producers should thus continue to assume financial responsibility by paying a basic production levy charged on all production of A and B sugar, which is however limited to 2% of the intervention price for white sugar, and a B levy charged on the production of B sugar up to a limit of 37.5% of that price. …

…

• In any given marketing year, the consumption, production, importation, stock and carryover levels, and the average loss likely to be borne under the self-financing scheme, may be such that the production quotas allocated to each undertaking in the sugar sector result in an export volume exceeding that set in the [WTO Agreement on Agriculture]. The guarantees linked to the quotas should therefore be adjusted each marketing year so that the Community can meet its commitments.’

9. Article 1(2)(e), (f) and (g) of Regulation No 1260/2001 defined ‘A sugar’ and ‘B sugar’ as any quantity of sugar production attributed to a specific marketing year under, respectively, the A and B quotas of the undertaking concerned, while ‘C sugar’ was any quantity of production attributed to a specific marketing year either over and above the sum of the A and B quotas of the undertaking concerned or by an undertaking which had no quota.

10. Chapter 2 of Title I (‘Quotas’) comprised Articles 10 to 21. Article 10 provided, in particular:

‘1.

Chapter 2 shall apply to the 2001/02 to 2005/06 marketing years.

2.

The basic quantities for the production of A and B sugar … shall be those fixed in Article 11(2).

3.

The guarantees for the disposal of sugar ... produced under quota may be reduced for one or more marketing years in order to comply with the Community’s commitments under the [WTO Agreement on Agriculture].

4.

For the purposes of applying paragraph 3, the guaranteed quantity under quotas shall be fixed before 1 October for each marketing year on the basis of forecasts relating to production, imports, consumption, storage, carryovers, the exportable balance and the average loss likely to be borne by the self-financing scheme within the meaning of Article 15(1)(d). If these forecasts show that the exportable balance for the marketing year in question is greater than the maximum laid down in the Agreement, then the guaranteed quantity shall be reduced by the difference …

…’

11. Under Article 11, basic A and B quantities were fixed for each Member State, to be allocated among producers as their A and B quotas. Article 13 provided that C sugar could not be disposed of on the internal market but had to be either exported without further processing by 1 January following the end of the marketing year concerned or carried forward in accordance with Article 14.

12. Article 14(1) provided:

‘Each undertaking may decide to carry forward all or part of the sugar it has produced in excess of its quota to the next marketing year to be treated as part of that year’s production. That decision shall be irrevocable.

Each undertaking may decide to carry forward all or part of its production of A sugar and B sugar which has become C sugar after application of Article 10(3), (4), (5) and (6) to the next marketing year to be treated as part of that year’s production. That decision shall also be irrevocable. …’⁽¹⁶⁾

13. With regard to the calculation of production levies to meet the cost to the Community of disposing of surplus production, Article 15(1) to (4) provided, in particular:

‘1.

Before the end of each marketing year, the following shall be recorded:

1. a forecast of the production of A and B sugar … attributable to the marketing year concerned;

2. a forecast of the quantities of sugar … disposed of for consumption within the Community during the marketing year concerned;

3. the exportable surplus obtained by subtracting the quantity referred to in (b) from the quantity referred to in (a);

4. an estimate of the average loss or revenue per tonne of sugar for export obligations to be fulfilled during the current marketing year.

   This average loss or revenue shall be equal to the difference between the total amount of refunds and the total amount of levies [⁽¹⁷⁾ ] on the total tonnage of export obligations in question;

5. an estimate of overall loss or revenue, obtained by multiplying the surplus referred to in (c) by the average loss or revenue referred to in (d).

2.

Before the end of the 2005/06 marketing year …, the following shall be recorded cumulatively for the 2001/02 to 2005/06 marketing years:

1. the exportable surplus established on the basis of the definitive production of A and B sugar … and the definitive quantity of sugar … disposed of for consumption within the Community;

2. the average loss or revenue per tonne of sugar resulting from the total export obligations concerned, calculated using the method described in the second subparagraph of paragraph 1(d) above;

3. the overall loss or revenue, obtained by multiplying the surplus referred to in (a) by the average loss or revenue referred to in (b);

4. the sum total of the basic production levies and the B levies charged.

   The estimate of overall loss or revenue referred to in paragraph 1(e) shall be adjusted by the difference between the amounts referred to in (c) and (d).

3.

… should the figures recorded under paragraph 1 and adjusted under paragraph 2 result in a foreseeable overall loss, then that loss shall be divided by the estimated production of A and B sugar … attributable to the current marketing year. The resulting amount shall be charged to manufacturers as a basic production levy on their production of A and B sugar ...

…

4.

Should the maximum permitted basic production levy not fully cover the overall loss referred to in the first subparagraph of paragraph 3, the balance not covered shall be divided by the estimated production of B sugar … attributable to the marketing year in question. The resulting amount shall be charged to manufacturers as a B levy on their production of B sugar ...

…’

14. Article 15(8) provided for the adoption of detailed rules for applying the amounts of the levies to be collected.⁽¹⁸⁾

Regulation No 314/2002

15. On the basis of, inter alia, Article 15(8) of Regulation No 1260/2001, the Commission adopted Regulation No 314/2002, Article 6(4) of which originally provided:

‘The quantity to be determined under Article 15(1)(b) of Regulation (EC) No 1260/2001 shall be established on the basis of the sum of the following quantities:

1. the quantities of sugar … disposed of in the Community for direct consumption or for consumption after processing by the user industries;

2. the quantities of denatured sugar;

3. the quantities of sugar … imported from non-member countries as processed products.

There shall be subtracted from the sum referred to in the first subparagraph the sum of the quantities of sugar … exported to non-member countries as processed products and the quantities of basic products expressed as white sugar for which certificates for the production refunds referred to in Article 7(3) of Regulation (EC) No 1260/2001 have been issued.’⁽¹⁹⁾

16. That text was replaced, with effect from 1 July 2003, by Regulation No 1140/2003. The amended provision read:

‘The quantities disposed of for consumption in the Community to be recorded under Article 15(1)(b) and (2)(a) of Regulation (EC) No 1260/2001 shall be established by totalling the quantities …:

1. stored at the beginning of the marketing year;

2. produced under quotas A and B;

3. imported in the natural state;

4. contained in imported processed products;

subtracting [from] the quantities referred to in the first subparagraph, [the quantities⁽²⁰⁾] …:

1. exported in the natural state;

2. contained in exported processed products;

3. stored at the end of the marketing year;

4. for which certificates for production refunds as indicated in Article 7(3) of Regulation No (EC) 1260/2001 have been issued.

…’

17. It was made clear by the Commission at the hearing in the present case, without being challenged by Saint Louis Sucre, that the change in wording represented not a change in method of calculation but merely a clearer and more explicit expression of that method.

Regulation No 493/2006

18. The Commission adopted Regulation No 493/2006 on the basis of, inter alia, Article 44 of Regulation No 318/2006, which allowed transitional measures to be adopted to facilitate the transition from the market situation in the marketing year 2005/06 to that in 2006/07, in particular by reducing the quantity that could be produced under quota.

19. Recital 8 in the preamble to Regulation No 493/2006 stated that, to carry out the calculation, fixing and collecting of production levies in the 2005/06 marketing year, certain provisions of, in particular, Regulation No 314/2002, should continue to apply beyond 30 June 2006. It continued: ‘The levies are calculated on the basis of statistical data which are regularly updated. As it is the last time that levies are to be fixed for the entire period between the 2001/02 marketing year and the 2005/06 marketing year, without a subsequent possibility, as in previous years, to adjust the calculations on the basis of updated figures, the calculation should be deferred and the levies should be fixed on 15 February 2007 to guarantee the reliability of the calculations and the relevance of the statistical data used.’

20. In accordance with Article 6 of Regulation No 493/2006, Regulation No 314/2002, as amended, was therefore to apply to the fixing and collecting of production levies in the 2005/06 marketing year, including the corrections relating to the calculation of the levies in the 2001/02, 2002/03, 2003/04 and 2004/05 marketing years as laid down in Article 15(2) of Regulation No 1260/2001. Pursuant to Article 12(3)(a) of Regulation No 493/2006, in respect of the 2005/06 marketing year, the amounts of the levies were to be fixed before 15 February 2007.

The reformed system

21. The principal aims of the 2006 reform were to ensure competitiveness by reducing unprofitable production capacity, to stabilise the markets while guaranteeing availability of supplies and to mitigate the social and economic impact on the agricultural community in affected regions. The main features of the reform included: reduced production quotas; gradual reductions in prices; (ultimately) suspension of the export refund mechanism; and restructuring and diversification measures, financed via a temporary restructuring fund.⁽²¹⁾

22. As regards quotas, Article 7 of Regulation No 318/2006 provided henceforth for a single undifferentiated quota, equal to the total of the A and B quotas allocated to each undertaking for the marketing year 2005/06. However, under Article 8, undertakings could also request the allocation of an additional quota (within a total limit per Member State) in exchange for a one-off amount of EUR 730 per tonne.

23. Export refunds were not abolished. Articles 32 and 33 of Regulation No 318/2006 concerned the scope and fixation of such refunds, which were granted in 2006/07 and 2007/08.⁽²²⁾ However, they were suspended in the following year,⁽²³⁾ and have not been granted since. Moreover, Article 14 of Regulation No 318/2006 allowed undertakings to carry forward all or part of their production in excess of their quotas, to be treated as part of the next marketing year’s production, in the same way as Article 14 of Regulation No 1260/2001 in the present case.

24. However, the detailed rules for financing export refunds (and the common organisation of the market as a whole) were changed. Recital 19 in the preamble to Regulation No 318/2006 stated: ‘A production charge should be introduced to contribute to the financing of the expenditure occurring under the common organisation of the markets in the sugar sector.’ The new charge was therefore intended to finance general expenditure, not merely export refunds. Consequently, its calculation was not linked to the amount of those refunds. Article 16(1) of Regulation No 318/2006 introduced the production charge from the 2007/08 marketing year (it was not levied in 2006/07), and Article 16(2) set the amount at a flat rate of EUR 12 per tonne of quota sugar. The temporary restructuring fund set up by Regulation No 320/2006 was however financed independently by a significantly higher ‘temporary restructuring amount’ governed by that regulation.⁽²⁴⁾

Regulations fixing the amounts of the levies for the marketing years 2002/03 to 2005/06; judgments of the Court

25. Regulation No 164/2007⁽²⁵⁾ fixed the production levies for the 2005/06 marketing year. The method of calculation used was the same as that which had been used in the four previous marketing years, and resulted in a basic production levy of EUR 6.333 per tonne of white sugar for A and B sugar, but (in contrast to the previous years) with no need for a B levy.

26. Then, on 8 May 2008, in its judgment in Jülich I, the Court declared the regulations fixing the levies for the marketing years 2002/03 and 2003/04⁽²⁶⁾ invalid, essentially on the ground that they took into account, in the denominator of the ratio making it possible to calculate the ‘average loss per tonne’ for the purposes of Article 15(1)(d) of Regulation No 1260/2001, only those exports within the A and B quotas in respect of which refunds had actually been paid, and omitted also to include those contained in exported processed products and in respect of which no export refunds were paid.⁽²⁷⁾

27. As a consequence, the Commission adopted Regulation No 1193/2009,⁽²⁸⁾ amending not only the regulations which had been declared invalid, but also Regulation No 164/2007, on the basis of a revised calculation which slightly modified some of the production levies in question (lowering the basic levy from EUR 6.333 to EUR 6.133 per tonne of white sugar for A and B sugar in Regulation No 164/2007).

28. On 11 December 2010, the Commission issued a communication ‘establishing formal recognition that a certain number of acts of Union law in the field of agriculture have become obsolete’,⁽²⁹⁾ including Regulation No 164/2007 on the ground that ‘the levies were recalculated by Regulation [No] 1193/2009’. The effect of the communication was stated to be that the acts listed were to be ‘removed from the active acquis’, and the Publications Office was invited to withdraw those acts from the Directory of Union legislation in force, although there was no formal repeal.

29. However, Regulation No 1193/2009 was in turn declared invalid by the Court on 27 September 2012, in its judgment in Jülich II, essentially on the ground that, in its revised calculations, the Commission had included in the ‘total amount of refunds’ for the purposes of Article 15(1)(d) of Regulation No 1260/2001 (the numerator of the ratio making it possible to calculate average loss) all refunds available, and not only those which had actually been paid.

30. The Council then adopted Regulation No 1360/2013.⁽³⁰⁾ The preamble to that regulation acknowledged the Court’s judgments in Jülich I and Jülich II, and went on to state, in particular:

• Consequently, levies in the sugar sector should be fixed at the appropriate level. For exports …, the “average loss”, within the meaning of Article 15(1)(d) of Regulation (EC) No 1260/2001 should be calculated by dividing the refunds effectively paid by the exported quantities, regardless of whether or not a refund has been paid. The “exportable surplus”, within the meaning of Article 15(1)(c) of Regulation (EC) No 1260/2001, should also be calculated by using all exports, regardless of whether or not a refund has been paid.

…

• For the 2005/06 marketing year, the application of the method referred to in recital 11 results in an amount of 1.2335% for the basic production levy without the need for a B levy. The recalculated overall loss is covered in its entirety by the receipts from the basic production levy and there is no need to fix the additional coefficient referred to in Article 16(2) of Regulation (EC) No 1260/2001 for that marketing year.

...’

31. In accordance with Article 1(1) of Regulation No 1360/2013, the production levies for the marketing years 2001/02 to 2005/06 are those set out in point 1 of the Annex. The basic levy thus set for the marketing year 2005/06 was EUR 7.794 per tonne of white sugar; for all the other marketing years, it was unchanged at EUR 12.638 per tonne. The B levy remained unchanged for 2001/02, 2004/05 and 2005/06 (in which year it was 0), while in 2002/03 it was reduced from EUR 126.139 to EUR 103.447 per tonne and in 2003/04 from EUR 170.929 to EUR 109.061 per tonne.

Admissibility of the request for a preliminary ruling

43. The French Government submits, primarily, that the request for a preliminary ruling is manifestly inadmissible in its entirety.

44. First, the referring court has not given reasons justifying its request for a preliminary ruling but has merely noted that there is a dispute before it concerning the interpretation of an act of the Union. It has not attempted to resolve that dispute but has simply requested a preliminary ruling by the Court on the questions suggested by Saint Louis Sucre.

45. Second, the order for reference fails to provide a sufficient account — and itself to take sufficient account — of the factual background to the main proceedings. The judgments in Jülich I and Jülich II required the Commission to take the measures necessary to remedy the defects found in the regulations declared invalid. Sugar producers were finally reimbursed on the basis of Regulation No 1360/2013 in April 2015, but the request for a preliminary ruling was made in January 2015 without any verification as to whether the questions would still be relevant following reimbursement.

46. I disagree with the arguments advanced by the French Government.

47. According to settled case-law, questions referred by a national court enjoy a presumption of relevance. The Court may refuse to rule on such a question only where it is quite obvious that the interpretation sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it.⁽³⁴⁾

48. In addition, however, the need to provide an interpretation of EU law which will be of use to the national court makes it necessary for that court to define the factual and legal context of the questions it is asking or, at the very least, to explain the assumptions of fact on which they are based. The order for reference must, moreover, set out the precise reasons why the national court is unsure as to the interpretation of EU law and finds it necessary to refer a question to the Court for a preliminary ruling.⁽³⁵⁾

49. In the present case, it must be acknowledged that the order for reference is succinct and does not provide the Court with a full picture of the legal arguments advanced in the main proceedings. However, there is in my view sufficient detail of the legal and factual context of that dispute and the scope of the questions referred is clear. The national court is required to decide on the validity of the final calculation of levies when the production levy system came to an end on 30 June 2006, and in particular on the validity of the inclusion of quantities held in stock on that date. Moreover, neither the Commission nor either of the governments submitting observations has shown any difficulty in formulating those observations on the basis of the order for reference.⁽³⁶⁾

50. I therefore conclude that the request for a preliminary ruling itself is admissible.

Admissibility and scope of the fourth question

51. The French Government raises also a specific objection to the admissibility of the fourth question (on the validity of Regulation No 164/2007), in that the referring court does not explain how that regulation, having been replaced first by Regulation No 1193/2009 and then by Regulation No 1360/2013, can be relevant to the main proceedings.

52. In the original written observations, Saint Louis Sucre submitted that Regulation No 164/2007 was invalid; the Belgian Government argued that it was valid; and the Commission submitted that there was no need to answer the fourth question on the ground that Regulation No 164/2007 was declared invalid by the Court in its judgment in Jülich II.

53. Then, in response to a written question from the Court, the Belgian Government and the Commission submitted that the Court should interpret the fourth question as concerning the validity of Regulation No 1360/2013. The French Government took the same view, subject to its more general reservations as to admissibility; as did Saint Louis Sucre, subject to the proviso that any finding of invalidity should not affect reimbursements to which producers had already become entitled under that regulation.

54. It therefore seems to me necessary to examine the status of Regulation No 164/2007 at the times material to the main proceedings.

55. When Saint Louis Sucre initiated the main proceedings on 19 November 2009, Regulation No 164/2007 was in force but had been ‘corrected’ by Regulation No 1193/2009, which was adopted with a view to compliance with the judgment in Jülich I and applied, in so far as Regulation No 164/2007 was concerned, from 23 February 2007. However, since Regulation No 1193/2009 did not enter into force until 9 December 2009,⁽³⁷⁾ it may be assumed that the production levies which had been collected from Saint Louis Sucre at the time when it initiated the main proceedings were calculated on the basis of the original text of Regulation No 164/2007. Contrary to what the Commission asserts, the judgment in Jülich I did not declare Regulation No 164/2007 invalid (that regulation had not even been adopted when the orders for reference were made in those proceedings), but the grounds of the judgment did require the Commission to amend it on the basis of a correct calculation.

56. The required correction was effected by Regulation No 1193/2009 on the basis of an amended calculation, itself subsequently found incorrect by the Court in its judgment in Jülich II, which consequently annulled the latter regulation.

57. It would accordingly appear that the original text of Regulation No 164/2007 was legally in force at all the material times in the main proceedings but that, as a consequence of the Court’s judgments in Jülich I and Jülich II, it would have to be declared invalid in any event, whether in its original form or as corrected by Regulation No 1193/2009, because it was based on a calculation which has already been found unlawful. I do not, however, consider that the Commission’s communication of 11 December 2010,⁽³⁸⁾ which is not a legal act of the Union within the meaning of Article 288 TFEU, can have any relevance in that regard.

58. If Regulation No 164/2007 cannot be applied, on what basis can the final production levies in respect of the 2001/02 to 2005/06 marketing years lawfully be collected from Saint Louis Sucre?

59. The only possibility is Regulation No 1360/2013, which entered into force on 20 December 2013 (before the request for a preliminary ruling was made), and which applied from the same dates as the original regulations. Even though Regulation No 164/2007 was not repealed by that measure and had not been repealed by any other, it could not serve as a basis for charging production levies since, whether in its original version or in the version corrected by Regulation No 1193/2009, it was based on a calculation which had been declared invalid by the Court.

60. I take the view, therefore, that any challenge to the amount of the production levies in issue must be assessed with regard to the calculations underlying Regulation No 1360/2013 alone.

61. I would none the less take this opportunity to express concern with regard to the Commission’s legislative approach in these matters. Whilst the aim of eliminating deadwood from the Union acquis is admirable, it must be pursued judiciously. When a measure has genuinely exhausted all its possible effects, the best action must be to repeal it. To leave it in existence, but in a state of limbo, through a ‘formal recognition of obsolescence’⁽³⁹⁾ is to sow doubt and confusion. That is all the more true in the case of a measure such as Regulation No 164/2007 which, far from having exhausted all its effects on 11 December 2010 when the Commission’s communication was published, in fact remained in force as corrected by Regulation No 1193/2009. It is my view that, in the interests not merely of the Court but, above all, of all those who are subject to EU law, the Commission should review its practice in that regard.

Substantive assessment of the first and fourth questions

62. In essence, the national court asks in its first question whether Regulation No 1260/2001 is to be interpreted in such a way that, on the expiry of the common organisation of the market governed by that regulation, and the replacement of the ‘fair yet efficient’ system of self-financing (in which the basic and B levies were intended to finance export refunds) by a system of flat-rate production charges (no longer specifically linked to export refunds), producers are entitled to reimbursement of production levies which they paid on the basis of quantities held in stock on the expiry of that common organisation of the market.

63. The fourth question is closely linked to the first in that it directly queries the validity of Regulation No 1360/2013, replacing Regulation No 164/2007, in which the production levies in question were fixed on the basis of calculations taking into account the quantities held in stock on the expiry of the common organisation of the market governed by Regulation No 1260/2001.

64. I shall address the two questions together. Saint Louis Sucre submits that they should be answered to the effect that Regulation No 1360/2013 is invalid in so far as final stocks were taken into account in the calculations; and that producers are therefore entitled to reimbursement. The Belgian and French Governments and the Commission take the opposite view.

65. In order to address those issues, it may be helpful to have clearly in mind the design and operation of the self-financing system under Regulation No 1260/2001, and its relationship with the two systems which, respectively, preceded and succeeded it.

66. As regards the overall design of the system, it is clear from the preamble to Regulation No 1260/2001 that the purpose of the production levies was specifically to cover the cost of export refunds and that the intention was to calculate those levies in such a way that they would do so. However, from, in particular, Article 15(1) and (2) of Regulation No 1260/2001 and Article 6(4) of Regulation No 314/2002, it is also clear that the calculation was not a simple matter of totalling costs and apportioning them among quantities produced within the A and B quotas.⁽⁴⁰⁾

67. In detail, the basic and B levies were determined in accordance with Article 15(3) and (4) of Regulation No 1260/2001 by dividing the overall loss for each period by the production of A and B sugar during that period. Pursuant to Article 15(1) and (2), that overall loss was the exportable surplus multiplied by the average loss per tonne. The present case concerns only the calculation of the exportable surplus; Saint Louis Sucre does not dispute the calculation of the average loss per tonne or the production figures.

68. The exportable surplus for each period comprised, essentially, in accordance with Article 15(1) and (2) of Regulation No 1260/2001, the quantities produced within the A and B quotas, minus the quantities disposed of for consumption within the Union.⁽⁴¹⁾

69. The latter were determined, in accordance with Article 6(4) of Regulation No 314/2002, by adding together (i) quantities stored at the beginning of the relevant period (initial stocks), (ii) quantities produced and (iii) quantities imported during that period, and by subtracting from that total (i) quantities exported during the period, (ii) quantities stored at the end of the period (final stocks) and (iii) quantities used in the chemical industry benefiting from production refunds.

70. It will thus be seen that, if final stocks were to be eliminated from the calculation, quantities disposed of for consumption within the Union would increase (because final stocks would otherwise have been subtracted from those quantities) and the amount of the exportable surplus would be reduced (because the exportable surplus is determined by subtracting quantities disposed of for consumption from quantities produced). That would have the effect of reducing the overall loss (determined by multiplying the average loss by the exportable surplus), and thus the amount of the production levies (determined by dividing the overall loss by the production of A and B sugar).

71. As regards the relationship with the previous system, the principle of full self-financing of export refunds by the producers had been in place since the reform of the common organisation of the markets in the sugar sector in 1981. Article 28 of Regulation No 1785/81 was worded almost identically to Article 15 of Regulation No 1260/2001.⁽⁴²⁾ To that extent, the situation in issue in the present case was merely a continuation of that under the previous regime. The formula for calculating ‘quantities disposed of for consumption’ on the internal market also remained the same, although its definition was clarified and rendered more explicit when Article 6(4) of Regulation No 314/2002 was amended by Regulation No 1140/2003.⁽⁴³⁾

72. As regards the relationship with the subsequent system, the need to finance export refunds continued at least until the end of the 2007/08 marketing year, but the previous method for calculating production levies designed specifically to cover export refunds was replaced by a simple, flat-rate production charge designed to contribute to the funding of the system as a whole (including any export refunds granted).⁽⁴⁴⁾ However, it is important to note that Article 6 of Regulation No 493/2006, for the reasons given in recital 8 in the preamble thereto, expressly confirmed that Article 15(2) of Regulation No 1260/2001 was to apply to the fixing and collecting of production levies for the whole 2001/02 to 2005/06 period, following determination of the definitive statistical data.

73. Turning to the submissions in the present case, I note, first of all, that Saint Louis Sucre does not dispute that the final calculations were carried out in strict conformity with the literal wording of Article 15(2) of Regulation No 1260/2001 and Article 6(4) of Regulation No 314/2002 — in which the formula for the exportable surplus explicitly takes account of quantities held in stock at the end of the period — and respected the Court’s judgments in Jülich I and Jülich II.

74. Saint Louis Sucre’s submission is rather that, when the system of export refunds financed by production levies intended specifically to cover the cost of those refunds changed to a system in which that link between levies and refunds was no longer present, there was no justification for regarding quantities held in stock at the time of the changeover as forming part of the ‘exportable surplus’ which could give rise to the payment of refunds to be financed under the old system. Any export refunds to be paid in respect of those quantities would be financed under the new system. The final calculation of the levies under the old system should therefore take no account of such quantities. To that end, it was necessary to interpret Article 15(2) of Regulation No 1260/2001 and Article 6(4) of Regulation No 314/2002 in such a way as to use the concept of ‘exported’ rather than ‘exportable’ surplus for the final calculation. The Commission should have adopted transitional measures to make that possible or should have earlier used its powers under Article 10 of Regulation No 1260/2001 to reduce the A and B quotas so that only minimal quantities were held in stock at the end of the old system; but, even in the absence of such measures, a systematic interpretation of the legislation in the light of its context and purpose requires final stocks to be excluded from the calculation.

75. The essence of those arguments is that Article 6(4) of Regulation No 314/2002 should be interpreted, contrary to its clear wording, by excluding, at the end of the 2001/02 to 2005/06 period, the quantities ‘stored at the end of the marketing year’ from the amounts to be deducted under the second subparagraph of that provision, in such a way as to erect a definitive and impermeable barrier between the financing of the old system and that of the new.

76. In order for it to be right to interpret that provision contrary to its wording, a literal interpretation must be shown to be contrary either to Regulation No 1260/2001 or to the overall scheme of the common organisation of the market in the sugar sector.

77. As regards consistency with Regulation No 1260/2001, I note that Article 15(1) and (2) of that regulation explicitly refer to the ‘exportable’ surplus and not the ‘exported’ surplus. Quantities of sugar held in stock are clearly exportable but not yet exported. It is therefore fully consistent with Article 15 of Regulation No 1260/2001 for those quantities to be taken into account when calculating the exportable surplus; indeed, not to do so would be inconsistent with that article. Moreover, by continuing to refer to a ‘foreseeable’ overall loss, even after the adjustment provided for at the end of the 2001/02 to 2005/06 period in Article 15(2), Article 15(3) of Regulation No 1260/2001 implies that the loss may not yet have been incurred in its entirety.⁽⁴⁵⁾ As the Court stated in its judgment in Jülich I, ‘the method for calculating the estimated total loss is designed, in any event, to establish, in a forward-looking and conventional way, the losses caused by disposing of surplus Community production’.⁽⁴⁶⁾

78. Could it be, none the less, that both Regulation No 1260/2001 and Regulation No 314/2002 are inconsistent in that regard with what Saint Louis Sucre refers to as the ‘context, aim and effect’ of the common organisation of the markets in the sugar sector?

79. I do not think so.

80. First, it must be borne in mind that the EU legislature enjoys a wide discretionary power in matters concerning agriculture corresponding to the political responsibilities given to it by Articles 40 to 43 TFEU. Consequently, judicial review must be limited to verifying that the measure in question is not vitiated by any manifest error or misuse of powers and that the authority concerned has not manifestly exceeded the limits of its discretionary power.⁽⁴⁷⁾

81. Next, it should be noted that the common organisation of the market in sugar has been in existence for many years and has undergone repeated reforms, some minor, some more radical. But the market itself has always gone on, and continues to go on, from year to year, with fluctuating levels of production, stocks, imports and exports. The same is true of its common organisation. Of course, there was a starting point on 1 July 1967 and there may one day be a finishing point after which there will be no more common organisation of the market in sugar. If and when such a finishing point comes, it will be necessary to settle the accounts definitively on the relevant date, and there will be no question of carrying forward payments, quantities or calculations to the future. In the meantime, however, it would be artificial and counterproductive to attempt to draw a complete line under the previous situation every time a reform is introduced and to restore all the settings to zero for the future. Of course, it is inevitable that, for some parameters, there will be a need to draw such a line and to start anew; and the more thoroughgoing the reform, the more that will be true.

82. The reform in 2006, far-reaching though it was, did not put an end either to the system of export refunds or to the possibility for producers to carry stocks over from one marketing year to the next, to be counted against the following year’s production. In particular, with a view to benefiting from export refunds in 2006/07, producers could, in 2005/06, rely on Article 14 of Regulation No 1260/2001 in order to carry stocks forward to the next marketing year.⁽⁴⁸⁾ There was thus a clear overlap between the common organisation of the market for the 2001/02 to 2005/06 period and the reformed system from 2006/07 onward.

83. It therefore seems to me that there is no incompatibility between that situation and continuing to use the exportable, rather than the exported, surplus as an element in the calculation of the foreseeable overall loss to be funded by producers. There is, in any event, no evidence of any manifest error or misuse of powers, or that the Council or the Commission manifestly exceeded the limits of their discretionary powers.

84. In particular, Saint Louis Sucre’s argument that quantities held in stock at the end of the 2005/06 marketing year did not give rise to expenditure by the Union, with the result that the Union benefited from unjust enrichment, appears untenable. Export refunds were granted the following year in respect of quantities surplus to demand on the internal market, and those quantities had necessarily been added to by the quantities held in stock and carried forward.

85. With regard to the financing of those refunds, Saint Louis Sucre submits principally that they were not covered by the ‘self-financing’ levies due in respect of the 2001/02 to 2005/06 period, which were intended specifically to finance export refunds granted for the same period.

86. I disagree with that argument. The inclusion of final stocks in the calculation of the exportable surplus is designed to take account of the fact that those stocks are indeed exportable and liable to give rise to export refunds. In order ‘to ensure, in a fair yet efficient way, that the producers themselves meet in full the cost of disposing of the surpluses of … production over consumption’⁽⁴⁹⁾ — surpluses created or accumulated during the 2001/02 to 2005/06 period — it is necessary to take account of all the elements forming part of those surpluses in the calculation of the production levies due in respect of that period.

87. Furthermore, Saint Louis Sucre argued at the hearing that export refunds granted in 2006/07 were financed out of the revenue from the sale of additional quotas in that same marketing year, pursuant to Article 8 of Regulation No 318/2006. That revenue was more than adequate for the purpose, and there was no need for stocks carried forward to give rise to production levies in 2005/06.

88. On the contrary, it seems quite clear that the revenue from the sale of additional quotas was intended to finance both the general expenditure relating to the common organisation of the market and the specific cost of ensuring that additional quotas (over and above those carried forward from the preceding A and B quotas) would be able to benefit from intervention prices or export refunds. On the one hand, the sale of additional quotas gave rise to a one-off amount even though the quotas sold could give rise to expenditure over a number of years; on the other, the production charge was levied only as from the 2007/08 marketing year, so that an additional source was required to finance general expenditure in 2006/07.

89. A further argument raised (with some insistence) by Saint Louis Sucre is that the Commission should have ‘declassified’, as it puts it, production quotas pursuant to Article 10 of Regulation No 1260/2001⁽⁵⁰⁾ in order to ensure that only minimal (if any) stocks of A and B sugar were held at the end of the 2005/06 marketing year, rather than the very considerable stock of 5 669 000 tonnes which caused the production levies to be calculated at a particularly high level.

90. However, as the Commission rightly pointed out at the hearing, Article 10 of Regulation No 1260/2001 is not a market management tool for internal EU purposes; its function is to adjust quotas to meet international commitments in the WTO Agreement on Agriculture. Moreover, such adjustments did take place for several of the marketing years between 2001/02 and 2005/06. Finally, I do not see how the Commission’s obligation to adjust quotas to meet international commitments could be relied upon by producers in order to claim that quantities held in stock should, for internal purposes, be excluded from the calculation of the exportable surplus. Producers were free to carry over as much or as little tonnage as they wished. If they believed that such tonnage could subsequently benefit from export refunds, they should have been prepared for it to be included in the exportable surplus; if they did not, it would have been more judicious on their part to avoid holding the quantities concerned in stock.

91. To conclude on these questions, I find nothing in the legislation or its aims or context which would require an interpretation of Article 15(1) and (2) of Regulation No 1260/2001, in conjunction with Article 6(4) of Regulation No 314/2002, under which quantities held in stock at the end of the 2005/06 marketing year should have been excluded from the calculation of the exportable surplus at the end of the 2001/02 to 2005/06 marketing years. Consequently, there is no reason to call into question the validity of Regulation No 1360/2013.

The second and third questions

92. Having reached that view on the validity of the calculations on which the amounts of the production levies in Regulation No 1360/2013 were based, I find it unnecessary — and indeed impossible — to address the second and third questions referred, which concern methods of determining the amounts to be reimbursed if the amounts had been incorrectly calculated. Such questions could be addressed only if it were known what aspect of the calculation was incorrect.