C-329/01

BRITISH SUGAR

OPINION OF ADVOCATE GENERAL STIX-HACKL delivered on 10 September 2003 1

I — Introduction II — Legal context

1. These proceedings concern the interpre- tation of Commission Regulation (EEC) No 2670/81 of 14 September 1981 laying down detailed implementing rules in A — Community law respect of sugar production in excess of the quota 2('Regulation No 2670/81') and the interpretation and validity of Commis- sion Regulation (EEC) No 3719/88 of 16 November 1988 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products 3('Regulation No 3719/88'). Organisation of the market in sugar

Article 1(1) of Regulation N o 2670/81 reads, in extract:

5. For that purpose the basic regulation defines certain A and B quotas and their amounts. Each Member State is allocated certain quotas per marketing year (1 July to 'The products referred to in Article 26(1) of 30 June of the following year). The Regulation (EEC) N o 1785/81 shall be Member States subdivide these A and B considered to have been exported if: quotas among the sugar producers estab- lished in their territory. The undertaking can dispose of the quantities allocated on the internal market or sell them on the world market, with export refunds being available in some cases. The quantity pro- (a) without prejudice to the other provi- duced within the marketing year by a sugar sions of this Regulation, the proof producer in excess of the A and B quotas is referred to in Article 2 is in the pos- known as C sugar. The present proceedings

7 — Before 1 January following the end of the marketing year: first subparagraph of Article 26(1) of the basic regulation. 5 — Case C-101/99 British Sugar [2002] ECR I-205, paragraph 8 — See note 2; the version applicable at the material time was 3 et seq. that as amended by Commission Regulation (EC) N o 158/96 6 — 'The sugar C O M . ' of 30 January 1996 (OJ 1996 L 24, p. 3).

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session of the competent agency of the Article 3(1) of Regulation N o 2670/81 Member State of production whichever reads, in extract: the Member State of export of the C sugar... may have been;

OPINION OF MRS STIX-HACKL — CASE C-329/01

7. Since the effectiveness of the entire If the issuing agency considers a correction system of the Community organisation of to be required, it shall withdraw the extract the agricultural markets depends on a or the licence or certificate as well as any comprehensive knowledge of trade with extracts previously issued and shall issue non-member countries, 10 the basic regu- without delay either a corrected extract or lation prescribes that licences are required a corrected licence or certificate and the for imports and exports of agricultural corrected extracts corresponding thereto. products. On such further documents, which shall include the entry "licence (or certificate) corrected on..." or "extracts corrected on...", the former attributions shall be reproduced, as appropriate, on each copy.

8. The general provisions on import and export licences and their administrative treatment by the national authorities were regulated at the material time in Regulation N o 3719/88. Where the issuing agency does not consider it necessary to correct the licence or certifi- cate or the extract, it shall enter thereon the endorsement "verified on... in accordance with Article 24 of Regulation (EEC) Article 24 of Regulation N o 3719/88 reads: N o 3719/88" and apply its stamp.' 11

1 1 . An export licence authorises and obliges the holder to export from the internal market the quantity of the relevant 13. The total quantity in the head licence product specified in the licence within its must in any case — including where period of validity. 13 The licence is granted extracts are used — be exported within on application, using a form prescribed by the period of validity of the head licence. the regulation, by the authorities competent The period of validity of a licence for the nationally for the issue of licences ('the export of C sugar is regulated in Regulation licensing authority'). 14 N o 1464/95. It is valid from the day of issue until the end of the third month following that of issue. 17

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B — National law licence (except for the indication of the partial quantity in question). In particular, they always state the total quantity for which the head licence was issued. If so desired by the applicant, Copy N o 1 of the extract is sent by the IBAP directly to the shipping agent named by the applicant. 15. According to the national court, the following procedure is laid down in the United Kingdom for export licences for C sugar.

18. The additional proof referred to in point 14 above is furnished in the United Kingdom by means of Form C88(CAP). 16. The competent authority for the issue This form is completed by the licence of export licences for C sugar is the Inter- holder (in accordance with Article 2(2)(a) vention Board for Agricultural Produce of Regulation N o 2670/81, this is the sugar (IBAP), the respondent in the main pro- producer) and sent either directly to the ceedings. Customs or to the shipping agent. If the shipping agent receives Copy N o 1 of the licence directly from the IBAP and Form C88(CAP) from the holder of the licence, he sends both together to the Customs.

2 0 . On 7 August 1997 British Sugar 2 3 . T h e t h i r d e x t r a c t is n u m b e r e d applied for a head licence for the export 3SG00070/3. It was applied for on British of 20 000 tonnes of C sugar, which was Sugar's own standard form, on which the issued by the IBAP on the following day export quantity applied for had been under n u m b e r 3 S G 0 0 0 7 0 . This head entered under 'tonnage required' in figures licence was valid up to and including as '2 900' with no unit specified and below 30 November 1997. At the same time a that in words as 'two thousand nine first extract was applied for and issued. h u n d r e d k i l o g r a m m e s ' . British Sugar Copy N o 1 of the first extract was — at explained in the main proceedings that the British Sugar's request — sent by the IBAP latter entry was a clerical error, the real directly to the shipping agent named by intention having been to apply for an British Sugar. extract for 'two thousand nine hundred tonnes'.

21 The 46th extract

26. The shipment of 2 900 000 kg of C 29. On 11 September 1997 British Sugar sugar was exported from the United King- was issued, on application, an extract for dom on 22 August 1997. 298.2 tonnes under number 3SG00070/46. Of this quantity, a consignment of 140 tonnes was shipped on 10 October 1997 (long before the last day of validity of the head licence). However, a second shipment of 158.2 tonnes was not exported until 3 December 1997 (three days after the last day of validity of the head licence). On the date of each export the Customs placed their attribution beside the quantity of the corresponding part shipment. 27. The export declaration was received by the Customs on 29 August 1997, and the Form C88(CAP) attributed and endorsed on that date. The Customs moreover put their stamp against the entry with the shipping agent's handwritten correction of 30. The Customs further stamped with the '2 900 000'. The Customs also stamped the date 3 December 1997 a Form C88(CAP) Form C88(CAP) and ticked box A 1 , which related to a total quantity of 480 000 marked 'Satisfied that the goods specified kg and contained in box 47 (quantity have left the UK... for export to a non- details) inter alia a shipment of '158.2' member country'. On Copy N o 1 of the (no unit stated) with a reference to extract third extract, the Customs attributed '2 900 T' in figures and ' T w o million nine hundred thousand kilos' in words and 21 — The information in the order for reference is partially unclear with respect to the quantities and dates. The placed their stamp and signature on it. following account of the facts is therefore based on the The IBAP received Copy N o 1 of the third documents from the main proceedings annexed to the order for reference, which include a copy of the 46th extract on 15 September 1997. extract.

32. On the date when the IBAP received C o p y N o 1 of t h e t h i r d e x t r a c t , 15 September 1997, checking of the export documents started, and it was found that the quantity of C sugar declared to the Customs on the corresponding Form C88(CAP) (2 900 000 kg) did not agree 35. According to the High Court, British with the quantity authorised in the third Sugar contacted the IBAP on 19 December extract (2 900 kg). British Sugar was 1997 to obtain information on the unclear informed of this by letters of 9 and points in connection with the third extract. 15 October 1997, in which it was inter Afterwards there were further conver- alia requested: 'Could you please confirm sations, in the course of which no agree- the quantity exported against this licence ment could be reached in the matter. By extract, as the incorrect use of licences will letter of 20 April 1998, British Sugar affect the figures which m o n i t o r the formally called on the IBAP to make use amount of C sugar produced against the of its power of correction under Article 24 amount of C sugar exported.' of Regulation N o 3719/88 with respect to

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the third extract mistakenly applied for as referred the following questions to the '2 900 kg', in order to 'regularise the Court: position and remove the inaccuracies'. The IBAP declined to make such a correc- tion.

' 1 . In circumstances where:

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above question different in circum- (c) the licence extract was [amended], stances where: with the authority of the trader, by the trader's agent, accurately to record the trader's intention of exporting 2 900 tonnes;

(a) the trader presented to the customs authority a customs declaration form (C88) amended in manuscript to reflect the a m o u n t actually (d) t h a t licence extract w a s sub- exported; and sequently endorsed by H . M . Cus- toms & Excise to certify the export of 2 900 tonnes of sugar;

(b) the customs authority has endorsed the relevant licence extract against (e) the sugar was subject to a Form the trader's entry in the actual C88 export licence for 2 900 amount exported? tonnes, which was subsequently attributed and endorsed by H.M. Customs & Excise;

3. Is the answer to question 1 above different on the assumption that the circumstances were as follows: (f) 2 900 tonnes of sugar were in fact exported;

(a) the trader intended to apply for an (g) licence extracts were subsequently extract for 2 900 tonnes; applied for, and granted, on the basis that only 2.9 tonnes had earlier been authorised for export;

(b) If so, are there any factors in this case which the Court regards as relevant to the exercise of that (b) the amendment is sought to be discretion? made after the expiry of the valid- ity of the relevant extract or head licence?

7. In the circumstances referred to in paragraphs 33 to 35 above, 2 2 is a (c) Does it make a difference if the penalty under Article 3 of Regulation trader intended to apply for a 2670/81 properly levied?' licence extract (from a licence already issued) in respect of a quantity greater than that for 22 — These paragraphs of the order for reference describe the which he called off? facts relating to the 46th extract.

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V — Essential submissions of the parties between the partial quantity authorised and that actually exported, or at the latest when British Sugar exceeded the quantity under the head licence because all further extracts had been issued and used on the basis of a third extract authorised for 2.9 tonnes 39. The Commission and the United King- only. dom take the view that the proof required u n d e r A r t i c l e 2 ( 2 ) of R e g u l a t i o n N o 2670/81 is to be regarded as not having been furnished in the case of an export which goes beyond the quantity (the 3rd extract) or period of validity (the 46th extract) of a head licence.

42. Nor could the mistake be corrected by a representative of the sugar producer (in this case the shipping agent) altering the quantity stated so as to show the quantity actually to be exported. The Court of 40. They rely generally, to begin with, on Justice already said in Südzucker Mann- the Court's judgment in Südzucker Mann- heim that other proof of the actual quantity heim 23 and on Article 8(1) of Regulation exported does not release the holder of a N o 3719/88. Those two elements show the licence from the obligation to comply fully particular importance of the control system with the formal requirements for sugar in a market which is completely regulated exports. by the quota system of the sugar C O M . The statements of quantities in the licences and the period of export determined by the validity of the licences are of central importance for the working of the entire system.

44. On the interpretation of Article 24(2) with the principles of proportionality and of Regulation N o 3719/88, the Commis- equal treatment, the Commission and the sion and the United Kingdom submit that United Kingdom again rely on the judg- that provision must be understood in con- ment in Südzucker Mannheim, 24 in which nection with the 17th recital in the pre- it was held generally that the obligation to amble and, being an exception, must be comply with the licensing formalities, in interpreted strictly. The application of the view of their special importance for the provision is thus limited to cases of inaccur- functioning of the sugar C O M , does not acies which are clear on the face of a licence infringe the principle of proportionality. It and mistakes on the part of the licensing follows, moreover, from the Court's con- authority. If the licensing authority auth- sistent case-law 25 on the principle of pro- orises the export quantity applied for by the portionality that it is to be measured sugar producer, there is thus no obvious against the purpose of the rule concerned. inaccuracy. In any case, the sugar pro- Licences play a central part in the manage- ducer's intention when making the appli- ment of the sugar C O M and their content cation cannot be decisive, since that is a may thus be amended only under the strict subjective element whose taking into conditions laid down in Article 24 of account would be incompatible with effec- Regulation N o 3719/88. The licence-holder tive management of the regulated sugar is not burdened disproportionately if that market. article is not applied, since in the case of a statement of quantity on an extract which is based on an incorrect application by the sugar producer, he (or his representative) is aware of the mistake at the latest when the extract is returned, and he can immediately apply for further extracts up to the amount 45. Moreover, a correction in accordance actually intended to be exported. w i t h A r t i c l e 2 4 ( 2 ) of R e g u l a t i o n N o 3719/88 may in principle no longer be made after the expiry of the period of validity of the head licence. The 17th recital in the preamble makes clear that that provision is intended to promote sound administration. Effective management of the sugar C O M requires, however, that the licensing authorities have accurate and timely information on the current state of sugar exports, which would no longer be ensured if licences were altered retro- 47. On the compatibility of Article 24 of actively. Regulation N o 3719/88 with the principle of equal treatment, they submit that a licence can indeed be corrected if the mistake is obvious or is a mistake on the part of the licensing authority, but not if it

48. On the interpretation of Article 3(1) of Regulation N o 2670/81 as regards the amount of the penalty, they submit that the method of calculating penalties pre- cisely defined in that provision in principle leaves no room for divergent decisions of the licensing authorities and/or the national courts. The legal consequence is of crucial importance for ensuring the proper func- tioning of the sugar C O M . A flexible calculation of penalties would lead to undertakings being treated differently in 5 1 . O n Article 24(2) of R e g u l a t i o n different Member States in an unjustifiable N o 3719/88, British Sugar submits that manner. that provision, as follows from the 17th recital in the preamble and from the general purpose of agricultural licences (the obtain- ing of accurate information on Community trade in agricultural products), applies not only in the case of mistakes of the licensing authority but generally to 'obvious inaccur- acies' in a licence. That cannot depend on a mistake being visible on the face of the document. On 15 September 1997 at the latest, the IBAP was able to spot the discrepancy in the quantities stated on the 49. British Sugar submits that proof in basis of the documents transmitted to it and accordance with Article 2(2) of Regulation able, by amending the third extract to N o 2670/81 is also to be regarded as having correspond with the actual export, to avoid been provided if the quantity stated in a further extracts being issued and the total licence (the 3rd extract) or its period of quantity under the head licence eventually validity (the 46th extract) is exceeded. being exceeded.

26 — Case 240/78 Atalanta [1979] ECR 2137, Case 21/85 Maas Question 3 raises the question, in parts (a) [1986] ECR 3537, Case 181/84 Man [1985] ECR 2889, to (c), of what significance it may have that and Joined Cases 103/77 and 145/77 Royal Scholten- Honig [1978] ECR 2037. the sugar producer mistakenly applied for 27 — Judgment cited in note 5. the extract for a smaller quantity than that

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intended for export, the extract was issued if only the quantity of sugar actually in accordance with the application, and the exported or the actual date of export are extract was then amended by unauth- proved, but not the fact that they cor- orisedly correcting the amount upwards to respond to the quantity for export or the quantity originally intended. Parts (g) to period of export stated in the licence. 28 (i) of the question concern the particular aspect t h a t subsequent extracts were applied for and granted in accordance with calculations based on the extract which had been applied for with the amount mis- takenly understated, with the result that the total amount authorised in the head licence 59. In my view, the obligation to furnish was eventually exceeded. proof is fulfilled only when export in conformity with the licence is proved. That is supported by the following consider- ations.

57. Question 1(b) and (c) concerns the due furnishing of proof where there is a dis- crepancy between the export period defined in a licence and the actual export. Question 60. The Court has already in the Südzucker 7 in my opinion relates to the same point of Mannheim case, 29 in which an export of C law, because, firstly, it refers to the para- sugar clearly took place without a licence graphs of the order for reference which (extract), addressed the part played by address the same facts and, secondly, both export licences for C sugar in the sugar the national court and the parties discuss C O M and stressed the particular import- this question solely in relation to the con- ance of licences for the functioning of the ditions for imposing the corresponding part entire quota system. of the penalty.

62. It also follows from the preamble to the basic regulation that export licences for agricultural products serve not only for the 64. If, then, export licences are also used observation but also for the management of for imposing quotas on the export of C trade with non-member countries. The sugar in the individual case, proof of eighth and ninth recitals in the preamble compliance with the quantities and periods to the basic regulation state that 'appropri- specified in the licences must be regarded as ate provisions should be laid down in order mandatory. An export which takes place to avoid in good time a situation where with proof being provided only of the regional surpluses are exported to third quantity actually exported and the actual countries' and that 'to this end, provision date of export, but with the quantity stated should be made for a system of import and in the licence or the period for export being export licences... [which] guarantee that exceeded, must therefore be regarded as an the operation for which the licence is being export without proof within the meaning of requested will be carried out'. 3 2 Article 2(1) of Regulation N o 2670/81, and the conditions are met for the imposition of a penalty pursuant to Article 3 of the regulation.

63. That is also the reason why export licences for C sugar are granted only for a limited quantity and not, for instance, 65. The answer to Questions 1(a) to (c) and 7 must therefore be that proof in accord- 30 — For example, proof of the identity of the exporting and ance with Article 2(2)(a) of Regulation producing State, the material quality of the goods exported, classification as C sugar (judgment cited in note N o 2670/81 is not furnished if the quantity 23, paragraph 37). 31 — The British Sugar judgment (cited in note 5), paragraph of C sugar actually exported exceeds the 43, mentions for example the connection between exports of C sugar, prices on the world market and the system of financing the sugar regime. 32 — Emphasis added. 33 — See point 5 above.

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3. The significance of a mistake in stating ment of the duty to furnish proof because the quantity in an application for an of exceeding the export quantity auth- extract, if the extract was issued accord- orised. 3 4 ingly and, on the basis of the quantity stated in it, further extracts were issued and used until the total amount in the head licence was exhausted

73. A mistake made by the sugar producer when applying for an extract ought to be evident to the sugar producer or his repre- sentative (for instance, the shipping agent) 70. Question 3(a) and (b) concerns gen- at the latest when the quantity of sugar erally the question of the significance a intended for export is presented to the mistake by the sugar producer when apply- Customs with the extract being produced. ing for an extract may have as regards the The knowledge and conduct of his agent due furnishing of proof, where the licensing must be imputed fully to the sugar producer authority has issued the extract in accord- in that respect. 3 5 A sugar producer who ance with the application. Question 3(g) to makes a mistake of that sort could there- (i) concerns the aspect of the grant and use fore fulfil his obligation to furnish proof of further extracts, on the basis of which a simply by applying, before exporting the greater total quantity of C sugar than amount actually intended, for a further authorised in the head licence was event- extract to cover the missing quantity. ually exported.

71. Question 3(c) relates to the particular 74. If that is not done, then there would in aspect that the part quantity intended may any case be a failure to fulfil the obligation have been evident from an unauthorised to furnish proof at the latest 36 when the correction to the extract. sugar producer who has made the mistake as to quantity when applying for an extract

75. According to the facts stated by the national court, which recur in parts (g) to (i) of Question 3, this was the case in the dispute in the main proceedings; the total quantity was eventually exceeded, by the difference between the quantity applied for and authorised in the third extract and the quantity actually exported under that extract.

77. It must therefore be taken that it must be visible to the sugar producer, either already when applying for or at the latest 76. In my view, in such a case a failure to before using one of the subsequent extracts, comply with the duty to furnish proof lies whether or not he will by using it exceed in the use of the extract which exceeds the the total quantity approved in the head total export quantity. That follows from licence. The same applies of course where the fact that the sugar producer — unlike the sugar producer makes use of a repre- the licensing authority — is able immedi- sentative (for e x a m p l e , the shipping ately before the corresponding partial agent). 3 7 exports to recognise a threatened exceeding of the total quantity as a result of using the corresponding extracts. 37 — It is not therefore relevant that the head licence with the attributed extracts remains with the special authority, nor that the extracts are transmitted directly by the licensing authority to the shipping agent and the latter makes the customs declarations. Since all that matters is therefore that the sugar producer or his representative was able to perceive the threatened exceeding of the total quantity authorised in the head licence, it also cannot be material to the infringement of the duty to furnish proof that the sugar producer's agent on his own initiative corrected Copy N o 1 of the first extract mistakenly applied for in respect of too small a quantity (this aspect is clearly the basis of Question That is because the total quantity under the 3(c)). That is all the more so if the amendment — as the head licence is restated in each extract and national court itself states (see point 24 above) — was made only on the special proof and not on Copy N o 1 of must therefore be known to the sugar the extract.

It cannot be stated precisely when the application was made for the first of the s u b s e q u e n t e x t r a c t s , use of w h i c h 80. The answer to Question 3(a) to (c) and threatened to exceed the total quantity (g) to (i) must therefore be that there is also authorised. But it is not disputed that the a failure to comply with the duty to furnish IBAP could see the difference between the proof in accordance with Article 2(2)(a) of quantity of C sugar authorised in the third Regulation N o 2670/81 if C sugar in excess extract and the quantity actually exported of the total quantity authorised in the head under that extract only after they received licence is exported on the basis of extracts the documents endorsed and attributed by which the licensing authority has issued, the Customs (additional proof and Copy arithmetically correctly, on the basis of the N o 1 of the third extract). 3 8 N o w it might extract mistakenly applied for in respect of be the case that the total quantity of the too small a quantity, and the issuing of

38 — According to the submissions, which agree on this point, 39 — According to the national court, the final extract was this was on 15 September 1997. issued on 16 October 1997.

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extracts after the total quantity has been The question of the 'inaccuracy3 of entries exhausted cannot be imputed to the licen- in an extract mistakenly applied for in sing authority as a contributory cause. respect of too small a quantity and granted accordingly

B — The fourth and fifth questions 83. It must first be clarified whether in such a case 'the accuracy of entries on the licence, certificate or extract is in doubt' at all (first sentence of Article 24(2) of Regulation N o 3719/88). That is clearly what Question 4(a) is aimed at. 81. By Question 4(a) to (c) and Question 5, the national court asks as to the interpre- tation, and if necessary the validity, of Article 24(2) of Regulation N o 3719/88.

90. The possibility of a supplementary extract exists only, of course, as long as 87. In my opinion, even on the assumption the total quantity authorised in the head that the subjective inaccuracy of the quan- licence has not yet been exhausted at the tity stated in the application is, because of time in question. Otherwise, the grant of a the content being the same, reflected as an supplementary extract after that date objective 'inaccuracy' in the extract issued, would lead to the total quantity authorised there are considerations of principle which in the head licence being retrospectively argue against the conclusion that increased. That would be incompatible Article 24(2) of Regulation N o 3719/88 is with the central function of export licences to be applied in cases such as that in the in the regulation of sugar supply in the main proceedings. That follows from the sugar C O M . following considerations.

91. So if the sugar producer, despite the perceptibility of the discrepancy between 88. Any amendment to a licence is an the export quantity intended and that interference with the principle of the authorised, 41 has for reasons within his appearance of legality for export licences responsibility (for instance, lack of atten- laid down in Article 24(1) of Regulation tion of his representative or absence of No 3719/88. A correction under information from the sugar producer) Article 24(2) must therefore, as an excep- omitted to apply for a supplementary tion to that principle, be made subject to very strict conditions, that is, the provision must be interpreted narrowly as regards its 40 — See point 73 above. scope. 41 — See point 72 above.

42 — See point 60 et seq. above. 43 — The question therefore no longer arises whether — as the High Court may also be asking (Question 4 is not completely clear on this point) — a correction, as para- graph 2(1) of the provision suggests, may only be made on application or may also be effected by the licensing authority of its own motion. In his Opinion of 24 June 95. Since the applicability of Article 24(2) 1992 in Case C-187/91 Belovo [1992] ECR I-4937, paragraph 16, Advocate General Gulmann expressed of Regulation N o 3 7 1 9 / 8 8 has been himself critically as regards correction of the authority's rejected for the reasons set out above and own motion, at least in cases where the legal certainty of the persons concerned could be affected. Question 4 as a whole has therefore been

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answered in the negative, Question 5 must cannot even arise in that way in the case of be answered. This question relates to the the non-applicability of a provision which compatibility of Article 24 of Regulation constitutes a derogation from the principle N o 3719/88, interpreted as in the answer to of legal certainty. Question 4 proposed above, with the principles of proportionality and/or equal treatment.

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99. The answer to Question 5 must there- 102. In his Opinion in British Sugar, 47 fore be that consideration of the question Advocate General Mischo nevertheless did has not revealed any factor which could not exclude such a departure in principle, if affect the validity of Article 24 of Regu- the licensing authority's own conduct was lation N o 3719/88. at least partly responsible for the conduct of a producer of C sugar which was relevant for the penalty. In the judgment, however, the Court saw no occasion to consider the point.

C — The sixth question

103. In the present proceedings, the sugar producer's conduct relevant for the penalty consisted in an export of C sugar without proof within the meaning of Article 2(2)(a) of Regulation N o 2670/81, since the head licence was exceeded temporally and as regards quantity. N o grounds have been adduced which could show any conduct on 100. Question 6 is aimed at ascertaining the part of the IBAP which was partly whether the licensing a u t h o r i t y or a responsible for that misconduct. national court enjoys a discretion when calculating the amount of the penalty under Article 3(1) of Regulation N o 2670/81, and if so, what criteria should be observed.

104. The answer to Question 6 must there- fore be that in principle it is not within the discretion of the licensing authority or a national court to vary the amount of the 101. There is nothing in the wording of penalty under Article 3(1) of Regulation Article 3(1) of Regulation N o 2670/81 to N o 2670/81. indicate that the calculation laid down in that provision could be departed from in the discretion of the licensing authorities. 47 — Case cited in note 5, point 78 et seq. of the Opinion.

— the proof provided for in that provision is also not furnished where the total quantity of C sugar stated in a head licence is exceeded, even if the customs authority has attributed and endorsed the quantity actually exported on the corresponding extract and/or the additional proof in accordance with Article 31(2) of Commission Regulation (EEC) N o 3719/88 of 16 November 1988 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products;

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— the proof provided for in that provision is also not furnished if C sugar in excess of the total quantity authorised in the head licence is exported on the basis of extracts which the licensing authority has issued, arith- metically correctly, on the basis of an extract mistakenly applied for in respect of too small a quantity, and the issuing of those extracts after the total quantity has been exhausted cannot be imputed to the licensing authority as a contributory cause.

(2) Article 24(2) of Regulation N o 3719/88 must be interpreted as meaning that its applicability is in any case excluded if a licence is to be corrected because the quantity stated in an extract is based on an error in the sugar producer's application and the correction is to take place after actual exhaustion of the total quantity authorised in the head licence.

(3) Consideration of the national court's questions has not revealed any factor which could affect the validity of Article 24 of Regulation N o 3719/88.