Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

OPINION OF ADVOCATE GENERAL

SHARPSTON

delivered on 29 July 2019(1)

Case C‑360/18

Cargill Deutschland GmbH

v

Hauptzollamt Krefeld

(Request for a preliminary ruling from the Finanzgericht Düsseldorf (Finance Court, Germany))

(Reference for a preliminary ruling — Agriculture — Common organisation of the markets in the sugar sector — Production levies — Reimbursement of sums paid in error — Interpretation of Regulation (EU) No 1360/2013 — National rules on limitation periods —Principle of effectiveness)

1.        By this reference for a preliminary ruling the Finanzgericht (Finance Court, Düsseldorf, Germany) seeks guidance as to whether reimbursement of production levies in the sugar sector, under Council Regulation (EU) No 1360/2013, (2) is to be carried out in accordance with national law (in the light of the principles of equivalence and effectiveness) and in particular subject to the limitation period set out thereunder. The issue arises in a dispute between Cargill Deutschland GmbH (‘Cargill Deutschland’), a producer of isoglucose, and the national competent authorities. Cargill Deutschland claims reimbursement of sugar levies it paid on the basis of legislation which this Court subsequently declared invalid. The competent authorities allege that those claims are time barred as a result of national rules laying down a limitation period for pursuing such actions.

 European Union law

 The common organisation of the markets in the sugar sector

2.        At the relevant time, (3) the essential features of the common organisation of the sugar markets included rules on prices, production quotas and trade with third countries. The system was self-financing. What was at that time Community support for the sector involved a minimum price for sugar beet, which sugar manufacturers paid to Community farmers, and an intervention price for sugar at which the intervention agencies bought in all sugar offered to them by Community producers. Production levies were charged to sugar producers in order to finance the cost of the financial support for the production of sugar which was divided into different categories. (4) The production levies were intended in particular to reflect the cost to the Community of export refunds – that is, payments which were made in certain circumstances to compensate sugar producers for the fact that world prices of sugar were, in general, lower than the supported Community price. The principle applied was that the industry itself should finance losses incurred from disposal of excess production. (5)

 Case law

3.        In Jülich I (6) a number of sugar producers challenged the lawfulness of certain aspects of how the sugar production levies were calculated. They argued that the Commission’s method of calculation resulted in their paying more than the costs of disposing of excess Community production. The Court was asked whether the method of calculation applied by the Commission was valid. The Court ruled in favour of the sugar producers. It declared Commission Regulation (EC) No 1762/2003 (7) and Commission Regulation (EC) No 1775/2004 invalid. (8)

4.        On 29 September 2011, the General Court delivered its judgment in Case Poland v Commission, (9) in which it stated that there was no proper legal basis for a differentiated coefficient for the additional levy in the sugar sector and annulled Article 2 of Commission Regulation (EC) No 1686/2005. (10)

5.        In Jülich II (11) the Court was once again seised of issues relating to the calculation of the sugar production levies. The main issue now concerned uncertainty as to the ‘total amount of refunds’ at issue. Uncertainty derived from the fact that the export refunds, for which certain quantities of sugar contained in exported processed products qualified, were neither claimed nor paid. In regulations determining the production levies chargeable for the marketing years between 2003 and 2006, the Commission had included those quantities in the ‘exportable surplus’ but not in the ‘export obligations to be fulfilled’. Requested to rule on the validity of that calculation, the Court had found in 2008 in Jülich I that all quantities exported should have been taken into account in both cases, regardless of whether refunds had been paid or not, and that the regulations in question were invalid for that reason. It did not, however, rule on whether the ‘total amount of refunds’ should likewise have included all refunds available, regardless of whether they had been paid or not, or only refunds actually paid. (12)

6.        In order to comply with the Court’s rulings, the Commission adopted a new regulation in 2009 correcting those regulations that had been declared invalid. (13) In its new calculations, the Commission included under the ‘total amount of refunds’ all refunds available, regardless of whether they had been paid or not. The recalculated levies differed little from those originally fixed but were higher than they would have been if only refunds actually paid had been included under the ‘total amount of refunds’. That was challenged by a number of sugar producers. In Jülich II the Court declared Regulation No 1193/2009 invalid, stating that, for the purpose of calculating the estimated average loss per tonne of product, Article 15(1)(d) of Regulation No 1260/2001 was to be interpreted as meaning that the total refund amount includes only the total amount of export refunds effectively paid.

7.        In response, the Council then adopted Regulation No 1360/2013. (14)

 Regulation No 1360/2013

8.        Recitals 1 to 10 set out the basis on which levies had been calculated for the marketing years at issue and the rulings of the Court which had declared the relevant earlier Commission regulations (which established those levies) invalid. Recital 11 states, ‘consequently, levies in the sugar sector should be fixed at the appropriate level. For exports defined in accordance with Article 6(5) of Commission Regulation (EC) No 314/2002, the ‘average loss’, within the meaning of Article 15(1)(d) of [Regulation 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 statements in the recitals confirm that the corrected levies were to apply retroactively to the marketing years at issue, that is from the date when the levies were declared invalid. (15) Recital 23 states, ‘for reasons of legal certainty and to ensure uniform treatment of the operators concerned in different Member States, it is necessary to set a common date upon which the levies fixed by this Regulation should be established, within the meaning of the second subparagraph of Article 2(2) of Council Regulation (EC, Euratom) No 1150/2000. ^[ (16)^] However, this deadline should not apply where Member States are required, under national law, to reimburse the operators concerned after that date.’

9.        Article 1 provides that the production levies in the sugar sector for the 2001/2002, 2002/2003, 2003/2004, 2004/2005 and 2005/2006 marketing years are to be those set out in point 1 of the Annex. (17) The coefficients for calculating the additional levy for the 2001/2002 and 2004/2005 marketing years are set out in point 2 of the Annex. Finally, the amounts payable by sugar manufacturers to beet sellers in respect of the A and B levies for the marketing years at issue are set out in point 3 of the Annex.

10.      Article 2 states, ‘the date of establishment, as referred to in the second subparagraph of Article 2(2) of [Regulation No 1150/2000], of the levies fixed by [that Regulation] shall be no later than 30 September 2014, except where Member States are prevented from respecting that deadline due to the application of national law on the recovery by economic operators of sums paid but not due.’

11.      Article 3 lists the dates on which Regulation 1360/2013 enters into force in relation to the marketing years at issue. Article 1(1) applies from:

–        ‘16 October 2002 for the 2001/2002 marketing year,

–        8 October 2003 for the 2002/2003 marketing year,

–        15 October 2004 for the 2003/2004 marketing year,

–        18 October 2005 for the 2004/2005 marketing year, and

–        23 February 2007 for the 2005/2006 marketing year.’

Article 1(2) applies from:

–        ‘16 October 2002 for the 2001/2002 marketing year, and

–        18 October 2005 for the 2004/2005 marketing year.’

 Council Regulation (EU) 2018/264

12.      Council Regulation (EU) 2018/264 (18) is not as such at issue in the present proceedings. Nonetheless, the referring court cites that regulation in its order for reference. In Raffinerie Tirlemontoise, (19) the Court had declared Commission Regulation (EC) No 2267/2000 (20) and Commission Regulation (EC) No 1993/2001 (21) invalid. The aims of Regulation 2018/264 include compliance with that judgment and fixing the additional levy for the marketing year 1999/2000 and the production levy for the marketing year 2000/2001 at the appropriate levels. (22)

13.      Article 2(2) states, ‘the difference between the levies fixed by Regulations (EC) No 2267/2000 and (EC) No 1993/2001 and the levies provided for in Article 1 of this Regulation shall be reimbursed to those economic operators that paid levies in respect of the 1999/2000 and 2000/2001 marketing years, on duly justified application of the latter’.

 National law

14.      Paragraph 12(1) of the Gesetz zur Durchführung der Gemeinsamen Marktorganisationen und der Direktzahlungen (Law implementing the common organisation of markets and direct payments; ‘the MOG’), states that the provisions of the Tax Code apply mutatis mutandis in the case of levies for the purpose of market organisation, provided that derogation from those provisions is not made by the MOG or by a regulation adopted on the basis of the MOG.

15.      Paragraph 169(1) and (2) of the Abgabenordnung (German Tax Code; ‘the AO’) state that ‘a tax assessment and its annulment or amendment shall no longer be admissible when the period prescribed for assessment has expired. … The period prescribed for assessment shall be: 1. one year in respect of excise duties and refunds of excise duties, 2. four years in respect of taxes and tax rebates that are not taxes or tax rebates within the meaning of point 1 or import duties or export duties under Article 5(20) and (21) of the Union Customs Code. …’

16.      Paragraph 170(1) of the AO states that the period prescribed for assessment begins on the expiry of the calendar year during which the tax liability arose.

17.      Pursuant to Paragraph 172(1) of the AO, read together with Paragraph 172(1)(d) thereof, in so far as a tax assessment notice is not issued provisionally or subject to review, it may only be annulled or amended to the extent that is otherwise permitted by law.

18.      In accordance with Paragraph 175(1) of the AO, a tax assessment notice is to be annulled or amended if an event occurs that has tax implications for periods already elapsed.

 Background facts, procedure and the question referred

19.      The Hauptzollamt Krefeld (‘the competent authorities’) issued the following levy notices in respect of Cargill Deutschland’s liabilities for isoglucose production : (i) a notice of 23 October 2002 for the marketing year 2001/2002 comprising a final production levy of EUR 832 677.71 and an additional levy of EUR 69 270.46; (ii) a notice of 20 October 2003 for the marketing year 2002/2003 comprising a final production levy of EUR 525 236.03; (iii) a notice of 30 March 2004 for the marketing year 2003/2004 for advance payments to be made on the production levy of EUR 115 084.15; and (iv) a notice of 18 October 2005 for the marketing year 2004/2005 comprising a final production levy of EUR 778 800.52 and an additional levy of EUR 124 101.86. (23) Cargill Deutschland did not contest those notices (‘the initial levy notices’).

20.      Following the adoption of Regulation No 1360/2013, Cargill Deutschland requested the Hauptzollamt Krefeld to fix afresh the levies for the marketing years at issue and to reimburse the corresponding amounts which it had overpaid in respect of those marketing years. The Hauptzollamt Krefeld rejected that request by notice of 18 April 2016. It took the view that the annulment, amendment or correction of notices that had become final is possible only within the period prescribed for assessment under point 2 of the first sentence of Paragraph 169(2) of the AO. That period had, however, expired for the sugar marketing years at issue.

21.      Cargill Deutschland brought proceedings before the referring court seeking reimbursement of the levies which it claims it overpaid as a result of calculations based on legislation which had subsequently been declared invalid and corrected by Regulation No 1360/2013. It submits that entitlement to reimbursement arises from EU law and national law.

22.      The Hauptzollamt Krefeld counters that Cargill Deutschland’s claim should be dismissed. It argues that the limitation provisions of general tax law apply, in the light of the general principles of EU law of equivalence and effectiveness.

23.      The referring court is of the view that under national law Cargill Deutschland is not entitled to reimbursement of the levies paid for the marketing years at issue, because in light of the dates of the respective levy notices such claims are now time barred.

24.      Regarding the operation of the limitation period in accordance with national rules, the referring court states that, pursuant to Paragraph 12(1) of the MOG, read in conjunction with point 2 of the first sentence of Paragraph 169(2) of the AO, a prescribed period for assessment of four years applies.

25.      The referring court states that the changes to the calculation of the levies introduced by Regulation No 1360/2013 with retroactive effect do not, under national law, trigger the operation of point 2 of Paragraph 175(1) of the AO.

26.      The referring court wonders whether, where levy notices are final in accordance with national law, that circumstance precludes reimbursement of overpaid levies, given that Article 2(2) of Regulation 2018/264 allows levies to be reimbursed in respect of the 1999/2000 and 2000/2001 marketing years on submission of a duly justified application. It wishes to know whether that interpretation of Article 2(2) of Regulation 2018/264 has implications for the reimbursement of levies under Regulation No 1360/2013.

27.      Accordingly, the referring court has put the following question to the Court for a preliminary ruling:

‘Is the reimbursement of production levies in the sugar sector – for which, under [Regulation (EU) No 1360/2013] different calculations to those used previously are to be made – to be carried out, in the light of the principles of equivalence and effectiveness, in accordance with national law and in particular in application of the limitation period set out thereunder?’

28.      Written observations were submitted by Cargill Deutschland, the Belgian Government and the European Commission. At the hearing on 2 May 2019 the same parties made oral submissions. Furthermore, the Hauptzollamt Krefeld (which had not submitted written observations) also attended the hearing and made oral submissions to the Court.

 Assessment of the question referred

29.      The referring court seeks in essence to ascertain whether Cargill Deutschland remains liable for sugar production levies calculated on the basis of EU legislation which this Court has subsequently declared invalid; and whether national rules governing limitation periods preclude new calculations being made under Regulation No 1360/2013 generating a right to reimbursement of that part of the levies paid that was not lawfully due.

 Preliminary remarks

30.      It is common ground that Cargill Deutschland’s situation falls within the scope of Regulation No 1360/2013 and that it is in principle entitled to reimbursement (subject to the effects of national procedural laws, in particular the rules governing limitation periods).

31.      Cargill Deutschland submits that its right to reimbursement of overpaid levies is confirmed by Article 2(2) of Regulation 2018/264. The referring court therefore also asks whether that provision should be taken into account when interpreting Regulation No 1360/2013. I agree with the Commission in so far as it submits that the wording of Regulation 2018/264 is not relevant. First, the marketing years at issue here do not include 1999/2000 and 2000/2001 – the two marketing years that are governed by Regulation 2018/264. Second, Regulation No 1360/2013 should be interpreted by reference to its wording, purposes and context.

 Regulation No 1360/2013

32.      Cargill Deutschland submits that it has a right to reimbursement of the overpaid levies for the marketing years at issue under Regulation No 1360/2013. That right is derived from judgments of this Court and Articles 264 and 267 TFEU which should be read in the light of Article 4(3) TEU and Article 291 TFEU.

33.      The Hauptzollamt Krefeld argues, to the contrary, that Regulation No 1360/2013 does not confer a direct right to reimbursement upon sugar producers. In order to make a claim under that regulation sugar producers have to rely on national procedural rules.

34.      The Belgian Government maintains that the answer to the question referred should be in the affirmative. The limitation period can only begin to run on the date when the regulations which form the legal basis of the overpaid levies are repealed or declared invalid.

35.      The Commission submits that in accordance with settled case-law, where there are no harmonised EU provisions to be applied, the process of reimbursement is regulated by national procedural rules.

36.      Does Regulation No 1360/2013 itself provides economic operators with a right to reimbursement of overpaid levies for the marketing years at issue or do such rights arise from national procedural rules and arrangements?

37.      It seems to me that the rights to reimbursement of overpaid levies for the marketing years at issue are undoubtedly derived from EU law. Such rights derive logically from the decisions of this Court declaring the legislation under which those levies were paid invalid. (24) Regulation No 1360/2013 does not in itself grant rights to economic operators. Rather, it corrects with retroactive effect the errors made in calculating the production levies for the marketing years at issue and sets new amounts for those levies which allows economic operators and Member States’ competent authorities to establish the amounts overpaid under the old system. (25)

38.      Article 1 of Regulation No 1360/2013 brings into effect the (new, corrected) production levies for the marketing years at issue and cross-refers to point 1 in the Annex thereto. That point contains a table setting out, for each marketing year, the production levies in the sugar sector (expressed as EUR figure per tonne of the relevant product). (26)

39.      In accordance with Article 2, the date of establishment (27) of the levies fixed by Regulation No 1360/2013 is no later than 30 September 2014. It follows from Article 2 that the shared management system applies to the sugar production levies. (28) Producers do not make claims to the Commission. Rather, claims are made to the competent national authorities pursuant to domestic arrangements.

40.      Article 3 lays down the rules for the retroactive application of Regulation No 1360/2013 by setting out the dates from which the production levies and the coefficient for calculating the additional levy apply in respect of the marketing years at issue. (29)

41.      The aim of Regulation No 1360/2013 is to correct levies calculated and imposed in error on the basis of Commission Regulations which were subsequently declared invalid. (30) Thus, a necessary objective of that measure is to ensure that the system of sugar levies is self-financing, rather than generating surplus funds. (31) Recital 11 of Regulation No 1360/2013 states that sugar production levies should be fixed at the appropriate level. (32)

42.      Regulation No 1360/2013 makes no provision for the procedures and arrangements which Member States should apply to give effect to the obligation to reimburse to economic operators overpayments of sugar production levies for the marketing years at issue. That regulation is an act of general application, binding in its entirety and directly applicable in all Member States in accordance with Article 288 TFEU. Accordingly, such lacunae would be surprising if those matters were indeed intended to be governed directly by Regulation No 1360/2013.

43.      The processes by which national competent authorities revise assessments and reimburse amounts which have been overpaid fall squarely within the scope of national procedural rules. Naturally, those rules are subject to the general principles of EU law of equivalence (detailed procedural rules must be no less favourable than those governing similar domestic actions) and effectiveness (those rules must not in practice render impossible or excessively difficult the exercise of rights conferred by EU law). (33) It is important to keep firmly in mind that the central aim of Regulation No 1360/2013 is to lay down rules giving effect to a number of judgments of this Court.

44.      Whilst it is plain that economic operators do derive a right to reimbursement of overpaid levies from EU law, I disagree with Cargill Deutschland in so far as I consider that Regulation No 1360/2013 does not as such provide arrangements or procedural rules which enable sugar producers to claim reimbursement of overpaid levies.

 Limitation periods

45.      Are the national rules on the limitation of actions at issue in the main proceedings consistent with the principles of equivalence and effectiveness?

46.      Cargill Deutschland submits that provisions governing limitation periods are a key component of the right to reimbursement under Regulation No 1360/2013 and should be interpreted autonomously. Such provisions have nothing to do with national procedural rules. Here, the limitation period began when Regulation No 1360/2013 entered into force on 20 December 2013. It suggests that in interpreting that regulation the Court should draw appropriate analogies with the reimbursement rules in Article 236 of the Customs Code. (34)

47.      The Hauptzollamt Krefeld maintains that the national rules at issue comply with the principles of equivalence and effectiveness and adds that it is essential to apply a limitation period. Cut-off dates for claims are necessary in the interests of legal certainty.

48.      Belgium submits that claims for reimbursement are subject to national procedural rules, subject to the principles of equivalence and effectiveness. Belgium explained at the hearing that its national arrangements are not the same as those in Germany. In Belgium, actions for reimbursement on grounds of undue payment arise from the date payment was made or knowledge that the payment at issue was indeed ‘undue’. The limitation period is 10 years from that date. Depriving economic operators of any right to reimbursement contravenes the principle of effectiveness.

49.      The Commission argues thatRegulation No 1360/2013 makes no provision for the arrangements for reimbursement of overpaid production levies, limitation periods or any interest which might be due. It follows that everything is covered by national procedural law.

50.      I shall start by stating that I disagree with Cargill Deutschland’s submission that Article 236 of the Customs Code provides a useful analogy here. I have already indicated that in my view, Regulation No 1360/2013 does not as such lay down rules which provide arrangements for economic operators to claim overpaid sugar levies. (35) In contrast, the version of the Customs Code which applied at the time of the marketing years at issue did lay down specific rules (in Title VII) for the ‘Customs Debt’, which included provisions on ‘time limits and procedures for the amount of duty’ as well as rules on ‘repayment and remission of duty’ (in Chapter 5, which included Article 236). All this formed part of a bespoke system of arrangements enacted at EU level.

51.      Since the EU legislature has chosen to leave the detailed arrangements for both the collection and reimbursement of sugar levies in the hands of the Member States, no useful analogy can be drawn with the harmonised arrangements under the Customs Code.

52.      The referring court states in its order for reference that the Hauptzollamt Krefeld calculated and issued the initial levy notices for the marketing years at issue and that those notices were not contested. By notice of 18 April 2016, the Hauptzollamt Krefeld rejected Cargill Deutschland’s request (of 13 February 2014) to fix new levy notices in accordance with Regulation No 1360/2013 and to reimburse the amounts overpaid under the initial levy notices. Pursuant to the relevant national rules, Cargill Deutschland is not entitled to reimbursement because its claim is precluded by the rules governing the limitation period for such claims. The prescribed period of four years applies to the assessment and amendments of the assessment of the sugar production levies. In relation to the latest of the marketing years at issue (2004/2005), that period began at the latest on 31 December 2006. Cargill Deutschland’s application for reassessment and reimbursement made on 13 February 2014 could not therefore prosper. That is a fortiori the case in respect of the earlier marketing years at issue.

53.      The referring court also expresses the view that the national procedural rules at issue are compatible with the principles of equivalence and effectiveness.

54.      I am not convinced that the referring court’s view is correct.

55.      This Court recognised as long ago as 1970 that rules governing limitation periods in proceedings must be fixed in advance and must fulfil the requirements of legal certainty. (36) There are cogent reasons of procedural logic which indicate that provisions governing limitation periods should comprise a set of rules specifying the length of the limitation period, the date on which time starts to run and the events which have the effect of interrupting or suspending the limitation period. In this respect the interests of the Member States’ competent authorities and economic operators, together with the supervisory role of the Commission in protecting the financial interests of the EU, should all be taken into account.

56.      It is settled case-law that in the absence of EU legislation, it is for the internal legal order of each Member State to designate the competent courts and lay down the detailed procedural rules for legal proceedings intended fully to safeguard the rights which individuals derive from EU law. It is thus on the basis of the rules of national law on liability that the State must make reparation for the consequences of the loss or damage caused, provided that the conditions, including time-limits, for reparation of loss or damage laid down by national law are not less favourable than those relating to similar domestic claims (principle of equivalence) and are not so framed as to make it in practice impossible or excessively difficult to obtain reparation (principle of effectiveness). (37)

57.      In order to establish whether the principle of equivalence has been complied with in the main proceedings, it is for the referring court which alone has direct knowledge of the procedural rules governing such matters to consider both the purpose and essential characteristics of allegedly similar actions. Every case in which the question arises as to whether a national procedural provision governing a claim under EU law is less favourable than those concerning similar domestic actions must be analysed by the national court by reference to the role of that provision in the procedure, its conduct and its special features, viewed as a whole, before the various national bodies. (38)

58.      The principle of equivalence is an emanation of the general principle of non-discrimination. In that respect, it is unclear whether similar domestic actions do or indeed can occur. The background to the main proceedings is intricate and complex and the situation which has arisen is very specific. Those proceedings are firmly rooted in EU law. The calculation of the sugar levies has generated significant litigation at EU level and decisions of the EU Courts declaring the relevant legislation invalid. (39) The legislature’s initial attempts to correct the position were unsuccessful, as is recorded in recitals 1 to 22 of Regulation No 1360/2013. Given those circumstances it would be surprising if truly comparable domestic situations could be identified. The fact that Regulation No 1360/2013 has retroactive effects is not sufficient of itself to render domestic actions concerning fiscal measures that likewise have such effects equivalent.

59.      Rules laying down reasonable limitation periods for bringing proceedings satisfy, in principle, the requirement for effectiveness inasmuch as this constitutes an application of the fundamental principle of legal certainty. However, such time-limits should not render practically impossible or excessively difficult the exercise of rights conferred by European Union law. (40)

60.      It is clear from the referring court’s statements in its order for reference as to the operation of national rules governing limitation periods that Cargill Deutschland could not possibly have lodged a claim for reimbursement within the limitation period laid down for so doing. (41)That period expired before Regulation No 1360/2013 came into force on 20 December 2013 and before the EU legislature had specified the production levies, the coefficients required for calculating the additional levy and the amounts payable by sugar manufacturers to beet sellers as set out in Article 1 and the Annex to that regulation. It would thus have been practically impossible for economic operators such as Cargill Deutschland to quantify the amount of overpaid levies and claim reimbursement. Such claims were time barred even before Regulation No 1360/2013 came into force.

61.      The Hauptzollamt Krefeld argued (at the hearing) that a prudent economic operator could have contested the initial levy notices which would have had the effect of preserving Cargill Deutschland’s position by keeping the assessments open.

62.      That is a matter of domestic procedural law. It is also a question of commercial choice and judgment, which may legitimately differ from one economic operator to another. However, it is not the question of EU law raised in the present proceedings, which is whether the national rules essentially deprive economic operators such as Cargill Deutschland of their rights to claim reimbursement.

63.      It is indeed a general principle common to the legal systems of the Member States that an injured party must show reasonable diligence in limiting the extent of the loss or damage suffered, or risk having to bear the loss or damage himself. (42) It would, however, be contrary to the principle of effectiveness to oblige injured parties systematically to have recourse to every legal remedy potentially available to them even if that would give rise to excessive difficulties or could not reasonably be required of them.

64.      Moreover, the interpretation of the national rules at issue as described by the referring court deprives Regulation No 1360/2013 of its effet utile. The express purpose of that regulation is to enable national authorities to give effect to the judgments of the EU Courts concerning the correct application of the regime governing the sugar production levies. Those judgments aim to ensure that the system which underpins those levies is applied correctly. The purpose of that system was to ensure that the scheme is self-financing so that the industry itself should finance losses incurred as the result of excess production of sugar. Allowing the competent authorities to retain surplus levies collected in error runs counter to the whole philosophy underpinning that system.

65.      As the limitation period for reimbursement of overpaid levies is not set by the EU legislature, the point when that period begins is a matter of national law and will necessarily vary between the Member States. (43) The application of national procedural rules is likewise clearly a matter for national courts.

66.      However, in so far as economic operators could not quantify the amount of any claim for reimbursement of overpaid levies prior to the entry into force of Regulation No 1360/2013, national rules which provide that the relevant limitation period expires before that regulation came into effect make it impossible in practice for such economic operators to claim reimbursement of sugar levies paid in error on the basis of legislation which this Court has declared invalid.

 Conclusion

67.      In the light of all the foregoing considerations, I suggest that the Court should answer the questions raised by the Finanzgericht (Finance Court, Düsseldorf, Germany) as follows:

Where sugar production levies have been paid in error, national rules governing limitation periods which deprive economic operators of the possibility to claim reimbursement of levies calculated afresh on the basis of Council Regulation (EU) No 1360/2013 of 2 December 2013 fixing the production levies in the sugar sector for the 2001/2002, 2002/2003, 2003/2004, 2004/2005 and 2005/2006 marketing years, the coefficient required for calculating the additional levy for the 2001/2002 and 2004/2005 marketing years and the amount to be paid by sugar manufacturers to beet sellers in respect of the difference between the maximum levy and the levy to be charged for the 2002/2003, 2003/2004 and 2005/2006 marketing years, are precluded where the application of those rules renders such claims practically impossible.

1      Original language: English.

2      Regulation of 2 December 2013 fixing the production levies in the sugar sector for the 2001/2002, 2002/2003, 2003/2004, 2004/2005 and 2005/2006 marketing years, the coefficient required for calculating the additional levy for the 2001/2002 and 2004/2005 marketing years and the amount to be paid by sugar manufacturers to beet sellers in respect of the difference between the maximum levy and the levy to be charged for the 2002/2003, 2003/2004 and 2005/2006 marketing years (OJ 2013 L 343, p. 2).

3      Notices for the payment of sugar levies to which the claim for reimbursement relates were issued between October 2002 and October 2005 (see further point 19 below).

4      Sugar was divided into three categories. In any particular marketing year, A and B sugar production was within quotas corresponding in principle, respectively, to demand on the internal market and to exports of surplus sugar with the benefit of export refunds. C sugar was produced outside those quotas, could not be freely marketed within the Community and was exported without the benefit of financial support.

5      Recitals 11 to 15 of Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the markets in the sugar sector (OJ 2001 L 178, p. 1). That regulation was repealed and replaced on various occasions. The sugar markets are now governed by Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007 (OJ 2013 L 347, p. 671).

6      Judgment of 8 May 2008, Zuckerfabrik Jülich, C‑5/06 and C‑23/06 to C‑36/06, EU:C:2008:260 (‘Jülich I’).

7      Regulation of 7 October 2003 fixing the production levies in the sugar sector for the 2002/03 marketing year (OJ 2003 L 254 p. 4).

8      Regulation of 14 October 2004 setting the production levies in the sugar sector for the 2003/04 marketing year (OJ 2004 L 316 p. 4).

9      Judgment of 29 September 2011, T-4/06, not published, EU:T:2011:546.

10      Regulation of 14 October 2005 setting the production levies and the coefficient for the additional levy in the sugar sector for the 2004/05 marketing year (OJ 2005 L 271 p. 12).

11      Judgment of 27 September 2012, Zuckerfabrik Jülich and Others, C‑113/10, C‑147/10 and C‑234/10, EU:C:2012:591 (‘Jülich II’).

12      Indeed, the Court was not asked to rule on that point, see my Opinion Zuckerfabrik Jülich and Others, C‑113/10, C‑147/10 and C‑234/10, EU:C:2011:701, point 82.

13      Commission Regulation (EC) No 1193/2009 of 3 November 2009 correcting Regulations (EC) No 1762/2003, (EC) No 1775/2004, (EC) No 1686/2005, (EC) No 164/2007 and fixing the production levies in the sugar sector for marketing years 2002/2003, 2003/2004, 2004/2005, 2005/2006 (OJ 2009 L 321 p. 1).

14      In the meantime, Regulation No 1260/2001 had been repealed and replaced. It therefore no longer provided a legal basis for the Commission to adopt legislation correcting the levies.

15      Recitals 12 to 22.

16      Regulation of 22 May 2000 implementing Decision 94/728/EC, Euratom on the system of the Communities’ own resources (OJ 2000 L 130 p. 1).

17      Points (c) to (f) are relevant to isoglucose.

18      Regulation of 19 February 2018 fixing the production levies and the coefficient for calculating the additional levy in the sugar sector for the 1999/2000 marketing year and fixing the production levies in the sugar sector for the 2000/2001 marketing year (OJ 2018 L 51, p. 1).

19      Judgment of 9 February 2017, C‑585/15, EU:C:2017:105.

20      Regulation of 12 October 2000 fixing the production levies and the coefficient for calculating the additional levy in the sugar sector for the 1999/2000 marketing year (OJ 2000 L 259, p. 29).

21      Regulation of 11 October 2001 fixing the production levies in the sugar sector for the 2000/01 marketing year (OJ 2001 L 271 p. 15).

22      Recitals 1 to 9.

23      I shall refer to those marketing years collectively as the marketing years at issue.

24      See points 3 to 6 above.

25      See point 41 below.

26      See point 9 above.

27      The date of establishment is defined in the second subparagraph of Article 2(2) of Regulation No 1150/2000. Member States are subject to an obligation: (i) to establish the EU’s own resources (Article 2(2) of Regulation No 1150/2000); (ii) to credit them to the European Union’s bank account; and if they fail to meet those obligations (iii) to pay default interest on outstanding sums. Production levies form part of the European Union’s own resources. ‘Establishing’ own resources means that those amounts are to be taken into account, rather than collected: see judgment of 15 November 2005, Commission v Denmark, C‑392/02, EU:C:2005:683, paragraph 67.

28      For funds in ‘shared management’, the Commission entrusts the Member States with implementing EU programmes at national level. The competent authorities then allocate funds to recipients (here, the economic operators in the sugar sector).

29      See point 11 above.

30      Recitals 1 to 10 of Regulation No 1360/2013: see also page 3 of the Explanatory Memorandum to COM(2013) 527, the Commission’s proposal for a Council Regulation, which states, ‘The Court has ruled, however, that the Commission has repeatedly erred in calculating the annual levies set for the period in question pursuant to [Regulation No 1260/2001]. Lastly, it found that the method used by the Commission in its [Regulation No 1193/2009] to fix the levies was incorrect because it led to an over-estimation of the costs to be covered and to consequently over-charging sugar producers. As a result of the invalidity of [Regulation No 1193/2009], the Court held that individuals are entitled to reimbursement of the excess sums unduly paid in respect of the invalid production levies collected by the Member States over the period in question as well as to the payment of interest on such sums. The judgement has left a legal void as to the exact amount of the levies for the marketing years 2002/2003, 2003/2004, 2004/2005, 2005/2006. Therefore, to comply with the judgement, the levies set for these marketing years should be replaced by new ones, calculated according to the method validated by the Court, with retroactive effect.’

31      Recital 5 of Regulation No 1360/2013; see also point 2 above.

32      See point 8 above.

33      A recent statement relating to those general principles of EU law is set out in the Court’s judgment of 17 May 2018, Specializuotas transportas, C‑531/16, EU:C:2018:324, paragraph 36.

34      Council Regulation (EEC) No 2913/92 establishing the Community Customs Code of 12 October 1992 (OJ 1992 L 302, p. 1). That regulation was amended several times. Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code now governs the EU customs sector. Articles 116, 117 and 121 of Regulation No 952/2013 are the provisions which reflect Article 236 of the Community Customs Code.

35      See points 42 to 44 above.

36      Judgment of 15 July 1970, ACF Chemiefarma v Commission, 41/69, EU:C:1970:71, paragraphs 19 and 20.

37      Judgment of 24 March 2009, Danske Slagterier, C‑445/06, EU:C:2009:178, paragraph 31 and the case-law cited.

38      Judgment of 8 July 2010, Bulicke, C‑246/09, EU:C:2010:418, paragraphs 28 and 29 and the case-law cited.

39      See points 3 to 6 and footnote 30 above.

40      Judgment of 8 July 2010, Bulicke, C‑246/09, EU:C:2010:418, paragraph 36 and the case-law cited.

41      See points 23 to 25 above.

42      Judgment of 24 March 2009, Danske Slagterier, C‑445/06, EU:C:2009:178, paragraph 61 and the case-law cited.

43      See point 48 above.

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