C-210/90

Isoglucose is a substitute for sugar obtained The cycle can of course be repeated. The by the isomerization of glucose syrup isoglucose obtained from the second isomer- which, for its part, is derived from starch. ization can be separated into fructose and * Original language: Italian.

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glucose, and the latter can be re-isomerized. erization operations. This also means that And so on. 100 tonnes of 'enriched' isoglucose, with a fructose content approaching 100%, can be mixed with glucose in a ratio such that 200 tonnes of isoglucose are obtained with a fructose content of about 50%, that is to say 200 tonnes of a product having the same sweetening power as sugar. In practice, by repetition of the cycle of separation and re-isomerization of the glucose, the proportion of fructose extracted from the glucose syrup initially used is progressively increased. Thus, taking an example of an initial input of 100 tonnes of glucose, it is possible to obtain, after four 4. Finally, it should be noted that the successive isomerizations, 100 tonnes of re-isomerization process is in fact used by isoglucose whose fructose content is no the plaintiff in the main proceedings. longer approximately 50% but is in excess of 90% and in which the glucose content is of course less than 10%.

B — The applicable Community legislation

3. The purpose of the process just described is to obtain a product which has a greater sweetening power than standard isoglucose. 5. Isoglucose is, as already indicated, a Fructose is the constituent which has direct substitute for sugar; at the same time, sweetening properties. It follows that an it is a derivative of glucose which is itself increase in the fructose content also obtained from starch. It follows that, as far increases the suitability of isoglucose as a as its use is concerned, isoglucose is substitute for sugar. governed by the common organization of the markets in the sugar sector whereas, by virtue of its origin, it comes within the common organization of the markets in the cereals sector.

(a) The common organization of the markets Finally, in parallel with the abolition of the in the cereals sector production refund for the manufacture of isoglucose, the regulation provides that the Member States are to recover from manu- facturers of isoglucose the amounts of the refunds granted in respect of cereals from which glucose has been obtained. 6. It need merely be pointed out that, pursuant to Article 11 of Regulation No 2727/75, ' production refunds are available for, inter alia, maize and common wheat 7. For the implementation of the latter used for the manufacture of starch and for provision, Commission Regulation maize groats and meal used in the No 1761/77 3 — as amended by Regulation Community for the manufacture of glucose No 3609/84 4 — provides that the amounts by direct hydrolysis (Article ll(l)(a) and (c) recoverable are to be arrived at by multi- of Regulation N o 2727/75). As is apparent plying the quantity of isoglucose produced from the ninth recital in the preamble to by a specified coefficient, which varies that regulation, that benefit is granted in according to the type of cereal used. It is order to enable the cereal starch, potato clear therefore that, in order to determine starch and glucose industry to obtain basic the production refund to be recovered, it is products at lower prices than those that first necessary to establish how much would result from the application of the isoglucose has been produced by the under- Community system (levies and common taking in question. However, Regulation prices), thus ensuring that those products No 1761/77 does not indicate how the are not replaced by competing products calculation is to be made. priced more competitively.

(a) physical metering of the tel quel volume 9. In order to ensure the efficient and of the product, harmonious application throughout the Community of the system of production quotas and levies, the Commission gave a definition both of what was to be understood by isoglucose production and of and the method by which such production was to be quantified.

(b) determination of the dry matter content by refractometry

To that end, Commission Regulation No 1443/82 8 provided that, pursuant to Articles as soon as the isomerization process has 26 to 29 of the basic regulation (specifically terminated and before any operation to concerning the system of production quotas separate the glucose and fructose constituents and levies), isoglucose production means the or to produce mixtures. total quantity of the product obtained from glucose and its polymers with a content by weight in the dry state of at least 10% fructose (see Article 2 of Regulation No C — The preliminary questions 1443/82).

6 — Since Roquette is the only French manufacturer of isoglucose, its quota corresponds to that allocated to (metropolitan) France. 7 — A further 'elimination l e y / and a 'special elimination lev/, 11. In the light of the details given so far it intended to meet specific financing requirements, were introduced, respectively, by Council Regulation (EEC) N o is now possible to respond to the questions 934/86 of 24 March 1986 (OJ 1986 L 87, p. 1) and submitted by the national court. Council Regulation (EEC) N o 1914/87 of 2 Juh/ 1987 (OJ 1987 L 183, p. 5). 8 — Commission Regulation N o 1443/82 of 8 June 1982 (OJ 9 — Commission Regulation (EEC) 434/84 (OJ 1982 L 51, p. 1982 L 158, p. 17). 13).

At the end of the process (one isomerization plus four re-isomerizations of recycled The purport of the provision is clear. It glucose) the output will be 100 tonnes of requires account to be taken of all the quan- isoglucose with a high fructose content: tities of isoglucose produced when it during each re-isomerization part of the emerges from the isomerization column. glucose will have been converted into Technically, this is carried o u t — a s is fructose. However, from the accounting apparent from the order for reference — by point of view, a total of 187.5 tonnes of installing a meter designed to record the isoglucose will have been recorded. The volume of isoglucose resulting from each reason for this is that, although the product isomerization, before any separation of the is recycled, every passage through the isom- glucose and the fructose. erization column results in the production of isoglucose which is duly recorded on emerging from the column.

In the case of an undertaking which — like the plaintiff in the main proceedings — produces isoglucose with a 12. It will also be observed — even though high fructose content using the method Roquette did not specifically argue the described above, the rules introduced by point — that that method of recording Regulation N o 434/84 require account to isoglucose production, provided for in be taken of the quantities of isoglucose Regulation No 434/84 proved necessary in deriving from each successive isomerization order to prevent the fundamental objectives of recycled glucose. It follows that the of the Community legislation in the sugar larger the number of separation and isomer- sector from being undermined.

It seems to me to follow that one of the purposes of the rules in question is to guarantee a balance between the two Therefore, that method, by taking account markets, avoiding distortions of competition of all the quantities of isoglucose deriving between isoglucose and sugar. from each successive re-isomerization, ensures that the 'enriched' isoglucose is not brought into account, in particular for application of the quota and production levy rules, in the same way as standard isoglucose, the fructose content of which is about the same as that of sugar. From that As already stated, it is that purpose which viewpoint, therefore, Regulation N o 434/84 prompted recourse to the method of appears entirely consistent with the objective recording isoglucose production provided of ensuring both the correct application of for in Regulation No 434/84. the measures directed towards containment of supply introduced by the Community legislature and balance between the two related markets in sugar and isoglucose.

That regulation takes account of the fact that the re-isomerization of glucose is 13. The position is, however, very different designed to increase the fructose content of in the cereals sector, where other rules apply the isoglucose obtained; that process thus regarding the recordal of isoglucose gives rise to an increase in the sweetening production. For the purpose of recovering power of the isoglucose, enhancing its production refunds, the different fructose substitutability for sugar. As already pointed content of the isoglucose, and therefore its out, 100 tonnes of isoglucose with a greater or lesser sweetening power, is fructose content approaching 100% have a entirely irrelevant. In order to calculate the sweetening power equivalent to that of sums to be recovered, all that is necessary is about 200 tonnes of converted sugar to establish the quantity of cereals converted

If, on the other hand, account were also A preliminary observation is called for taken of the quantities of isoglucose before that question is answered. The deriving from the subsequent recycling of plaintiff in the main proceedings, apprised glucose, the quantity of cereals used would of the fact that the French tax adminis- be artificially 'inflated'. The recycling in fact tration, giving effect to the regulation just only modifies the composition — more referred to, intended to bring into account particularly, the fructose content — of the the quantities of isoglucose resulting from isoglucose produced; but it is obvious that, each re-isomerization,' modified its on the other hand, regardless of the number production process. It no longer fed pure of recycling operations carried out, the glucose (separated by chromatography) into quantity of intermediate product (glucose) the isomerization column but used a and of basic product (cereals) used remains solution of isoglucose with a very low exactly the same. fructose content (about 11%).

According to Roquette, a product of that It follows that, for the purpose of applying kind is not covered by the rules laid down Regulation N o 1761/77, as amended by in Regulation No 434/84. The latter, in its Regulation No 3609/84, account must be view, relates, only to isoglucose obtained taken only of the isoglucose production from glucose or its polymers, not from other resulting from the first isomerization. In isoglucose.

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I must say straight away that I find that manufacturer produces isoglucose with a interpretation unacceptable, in so far as it high fructose content by successively derives from a formalistic reading of the re-isomerizing not pure glucose but provisions and takes no account of the aim isoglucose with a fructose content exceeding pursued by the calculation method 10%. It follows that the isoglucose deriving introduced by the regulation in question. from each re-isomerization operation must be brought into account as a quantity to be set against the manufacturer's quota under the system established by Regulation No 1785/81.

As the Commission correctly observed, that is confirmed a contrario by Article 31 of I consider therefore that the calculation Regulation No 1785/81, which empowers method provided for in Regulation No the Council to decide that sugar or 1443/82, as amended by Regulation No isoglucose intended for the manufacture of 434/84, should also be applied where a certain products may be excluded from

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relevant production for the purpose of that they are interchangeable even as inter­ applying the quota system. mediate products.

Finally, it should also be observed that the Court, in its judgment in Case C-18/89 In view of the foregoing considerations, I Maizena [1990] ECR Ī-2587, recognized am of the opinion that isoglucose used as an that a departure from the equal treatment of intermediate product for the manufacture of isoglucose and sugar in cases where they are other products must be subject to the quota intermediate products necessarily results in system established by Regulation No distortion of competition in view of the fact 1785/81.

D — Conclusion