C-308/91

3. The reference is made in the course of an action brought by the plaintiff, Süddeutsche 2. The questions referred for a preliminary Zucker, against the defendant customs office, ruling are the following: and relating to the export of fructose syrup from Germany to Belgium. The plaintiff exported syrup falling within heading 17.02 D I I of the common customs tariff ('other sugars and syrups'). For the purposes of awarding MCAs on those exports, the '(1) Must Article 13(2) of Regulation (EEC) defendant determined the purity of the syrup N o 394/70 be interpreted as meaning to be between 92.9% and 93.9% of the dry that the percentage purity of the syrup matter content. In making that determination is to be calculated by dividing total the defendant first expressed the sugar con- sugar content, after multiplying by 0.95, tent of the syrup as sucrose, by multiplying by dry matter content and multiplying the figure for the total sugar content by a the result by one hundred? factor of 0.95, before dividing that figure by the figure for the dry matter content. The plaintiff objects to that method of calcula- * Original language: English. tion, arguing that in determining the purity

I - 2794

SÜDDEUTSCHE ZUCKER v HAUPTZOLLAMT HAMBURG-JONAS

4. In the relevant period, the MCAs referred to in Article 1 of Council Regulation N o 974/71 of 12 May 1971 (OJ, English Special C 12 H 22 O11 + H 2 O Edition 1971 (I), p. 257) were set by Com- C6H12O6 + C6H12O6. mission Regulation N o 1800/83 of 28 June 1983 (OJ 1983 L 176, p. 65). By Annex I to the latter regulation, MCAs for sugar are fixed by 1% of sucrose content and by 100 kg net of the products listed, including in particular those falling under tariff head- 6. It follows that, when a syrup of sucrose is ing 17.02 ex D II ('other sugars and syrups inverted into a solution of fructose and glu- excluding sorbose'). According to note (4) to cose, the dry matter content of the solution that annex: is increased by slightly more than 5 % ; the increase in the mass of dry matter results from the incorporation of a molecule of water for each molecule of sucrose converted into fructose and glucose. That increase is known as 'inversion gain'. Conversely, the 'The sucrose content, including other sugars weight of a quantity of fructose or glucose expressed as sucrose shall be determined in must be multiplied by a factor of 0.95 if it is accordance with ... Article 13 of Regulation to be expressed as an equivalent weight of (EEC) N o 394/70 in the case of exports.' sucrose. As we have seen, MCAs for the export of sugar are calculated in terms of the sucrose content of the product, including other sugars 'expressed as sucrose'.

5. For what follows, it is necessary to have some understanding of the concepts of 'sucrose content' and of 'other sugars expressed as sucrose'. Sucrose is a sugar of the kind known as 'disaccharide', with a 7. As I have already mentioned, the sucrose molecular weight of approximately twice content of syrups is determined, for that

'In the case of syrups which are 85% or The 'Lane and Eynon method', or 'copper more but less than 94.5% pure, the sucrose reduction method', is a standard method for content including where appropriate other measuring the sugar content of solutions. sugars expressed as sucrose shall be fixed at a That method is however suitable only for flat rate of 73% by weight in the dry state. measuring the amounts of monosaccharides The percentage purity of the syrups shall be present. Before the sugar content of a syrup calculated by dividing total sugar content by containing sucrose can be accurately mea- dry matter content and multiplying the sured, therefore, the syrup must be inverted, result by one hundred. Total sugar content that is to say transformed into a solution shall be determined in accordance with the consisting solely of fructose and glucose. As method referred to in paragraph 1 and the we saw above, the result of such an inversion dry matter content according to the areomet- is an increase in the mass of sugar contained ric method.' in the solution. However, by the last sen- tence of Article 13(1), the resulting figure for sugar content is then expressed in terms of sucrose by means of a multiplication by 0.95. The issue raised by the first of the three questions referred by the Finanzgericht is whether, in that provision, the 'method referred to in paragraph 1' includes the mul- 8. It will be recalled that M C As, like export tiplication by 0.95 mentioned in the last sen- refunds, are calculated in terms of sucrose tence of paragraph 1, or whether the

reference is simply to the copper reduction corrected by multiplying the total sugar con- method applied (if necessary) to the inverted tent, as determined by the copper reduction solution, without any such adjustment. I method, by 0.95: in other words, by the shall discuss that problem first, before turn- application of the entire procedure laid down ing to the issues raised by the second and by Article 13(1), including the adjustment third questions referred. provided for in the last sentence of that para- graph. It is equally clear, however, that the application of such a procedure in cases (2) and (3) will lead to an underestimation of the purity of the syrup, since a quantity of sugar The first question corresponding to the fructose or glucose originally present in the syrup would also be subject to the adjustment. As we have seen, such an underestimation can have serious consequences for the exporter, given that 10. When the purity of a syrup is being Article 13(2) fixes a flat rate of sucrose con- determined, three distinct cases can be distin- tent of 73% by weight for syrups measured guished: (1) syrups consisting only of disac- as less than 94.5% pure. charides such as sucrose, (2) syrups consist- ing only of monosaccharides such as fructose or glucose, and (3) syrups consisting of a mixture of monosaccharides and disaccha- rides. It is to be noted that, in laying down the procedure to be used in determining purity, Article 13(2) of the regulation does not make any express distinction between the three cases. It will be recalled that in cases (1) and (3), the application of the cop- per reduction method specified in Article 12. As the Commission suggests in its writ- 13(1) requires a prior inversion of the syrup, ten observations, that difficulty could be leading to an increase in the mass of the resolved by distinguishing between the three sugar contained. Such an increase will not cases. Thus in case (1), the adjustment would however occur in case (2), since there the be applied to the entire figure for the total copper reduction method can be used with- sugar content, since all the sugar measured out any prior conversion of sucrose into by the copper reduction method will be fructose and glucose. derived from inverted sucrose. In case (2), it is clear that no adjustment would be neces- sary. In case (3), the adjustment could be applied to a proportionate part of the figure for the total sugar content, corresponding to 11. If, in cases (1) and (3), the dry matter that proportion of the sugar in the inverted content of the syrup is measured before it is solution which is derived from sucrose. As inverted, and the resulting figure used in the the Commission points out, the amount of calculation of the purity of the syrup, it is sucrose present in the original syrup can be clear that the degree of purity will be overes- determined by applying the copper reduc- timated — unless, that is, an adjustment can tion method to samples of the syrup taken be made to the figure for the total sugar con- before and after inversion. Thus, if the sugar tent. In case (1), the overestimation can be content is measured as a before inversion

and as β after inversion, a quantity β - α of provided for in the last sentence of Article monosaccharides in the inverted solution 13(1). The point of making the former must derive from the conversion of sucrose adjustment is to ensure that an accurate mea­ into fructose and glucose. The amount of surement is made of the purity of the syrup. sucrose present in the original syrup is If the dry matter content of the original accordingly (β -α) multiplied by 0.95. syrup is determined by means of the areo- metric method specified in Article 13(2), but the total sugar content of the syrup is mea­ sured after the solution has been inverted, no account will have been taken of a possible 13. It seems to me that the approach pro­ gain in mass as a result of the inversion. posed by the Commission is essentially cor­ Given that, as we have seen, the proportion rect. The purpose of Article 13 of the regu­ of sucrose in the original syrup can be deter­ lation would not be served by an mined by using the copper reduction interpretation of Article 13(2) which led to method, there can be no objection to making systematic inaccuracies in the measurement a pro rata adjustment which ensures that the of the purity of syrups, inaccuracies which mass of sugar in the original syrup is com­ would be compounded in certain cases by pared with the dry matter content of that the application of the flat rate for sucrose same syrup. The purpose of the adjustment content laid down in the first sentence of provided for in the last sentence of Article that paragraph. The only difficulty with the 13(1) is, on the other hand, quite different. Commission's proposed approach is that, as That adjustment must be applied to the I have already observed, the wording of entire sugar content of the inverted solution, Article 13(2) makes no distinction between and not merely the proportionate part deriv­ cases where an adjustment of the figure for ing from sucrose in the original syrup, total sugar content may be necessary, and because even fructose and glucose must be cases where it is unnecessary because the expressed as sucrose for the purpose of original syrup consisted entirely of fructose awarding MCAs. It is clear, therefore, that or glucose. Similarly, the last sentence of when Article 13(2) of the regulation speaks Article 13(1) makes no such distinction, of 'the method referred to in paragraph 1', requiring the entire sugar content of the the method in question is the copper reduc­ inverted solution to be expressed as sucrose tion method as applied to the inverted solu­ for the purpose of awarding export refunds tion, and not the entire procedure for deter­ or, as the case may be, MCAs. Thus, the mining sucrose content laid down by Article adjustment provided for in that sentence is 13(1). applied to the whole of the sugar content of the inverted solution, and not merely applied pro rata to the proportion of the total sugar content derived from sucrose in the original syrup.

The second and third questions

16. The calculation provided for in Article 13(2) would then proceed as follows. First, 18. By its second and third questions, the the proportion of sucrose in the original Finanzgericht asks, in substance, whether syrup is determined by applying the copper methods other than those specified in Article reduction method to samples taken before 13 may be used to measure the total sugar and after inversion, and the dry matter con- content or the dry matter content of the tent of the original syrup is determined by syrup. It appears that more advanced tech- the areometric method. The total sugar con- nology, only recently widely available, per- tent of the inverted solution is determined mits sugar content to be measured directly, without any adjustment in respect of inver- without any need for a prior inversion of the sion gain. Finally, the dry matter content of syrup in the case of a syrup containing the inverted syrup is determined by making sucrose. Similarly, more recent methods per- a pro rata adjustment for inversion gain, and mit the direct measurement of the density, the total sugar content divided by the dry and hence the dry matter content, of an matter content. Thus, the dry matter content inverted solution. The Finanzgericht sug- referred to in Article 13(2) would be taken to gests that the object of Article 13 would be be that of the inverted solution rather than better served by the use of such more of the original syrup. advanced methods.

17. In practical terms, there is no difference 19. It is however clear that the aim of Article between the procedure suggested above and 13 is to define a standard method for

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

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

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

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

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

I - 2800