JUDGMENT OF THE COURT

delivered on 19 January 1993 (*1)

Mr President,

Members of the Court,

1.Entitlement to a differentiated export refund is conditional on the importation of the goods in question into the country of destination. Can an exception to that condition be made in the case where goods have been destroyed in transit from the Community to the country of importation as a result of <span class="italic">force majeure</span>? That is the central issue in the question which the High Court of Justice, Queen's Bench Division, has referred to the Court for a preliminary ruling.

2.In return for the lodging of a security, the English company Tara Meat Packers (hereinafter ‘TMP’) received advance payment from the competent United Kingdom authority (the Intervention Board for Agricultural Produce) of an export refund in connection with the export of a consignment of beef to Egypt. Such an export conferred entitlement to a differentiated refund, that is to say, a refund which varies according to the country to which the goods are exported. The refund applicable to exports to Egypt was particularly high. The goods were transported by ship. Before importation into Egypt had been completed, fire broke out on the ship while it lay at anchor in the port of Alexandria. The fire totally destroyed the cargo. TMP reimbursed to the Intervention Board the advance refund payments and at the same time obtained release of the security which it had lodged. It is not disputed in this case that the loss of the goods was attributable to <span class="italic">force majeure</span>.

3.TMP brought proceedings before the High Court against the Intervention Board in which it sought a ruling that it was entitled to the export refund applicable in the case of exports to Egypt. TMP argues in particular that it follows from the relevant Community rules that in a case where the loss of goods is attributable to <span class="italic">force majeure</span> during transport from the Community to the country of importation, the refund should be paid as if the goods were in fact imported. The Intervention Board contends that TMP is not entitled to the export refund. (*1)

4. The High Court has referred the following question to the Court: ‘Are Council Regulation (EEC) No 805/68 of 27 June 1968, Council Regulation (EEC) No 885/68 of 28 June 1968, Council Regulation (EEC) No 565/80 of 4 March 1980 and Commission Regulation (EEC) No 3665/87 of 27 November 1987 to be interpreted as (a) entitling the Applicant to an export refund (and, if so, at what rate or rates) or (b) having required the Applicant to make reimbursement of advance payments already received or to forfeit its security in an equivalent amount, in the circumstances of this case where:

— prior to exportation of the products concerned the Applicant received, pursuant to the said regulations, advance payments calculated by reference to the rate of export refund applicable to the declared destination of those products, namely Egypt;

— the Applicant duly provided security in accordance with the said regulations;

— the products concerned left the customs territory of the Community but perished in transit as a result of <span class="italic">force majeure</span>’

5.The first regulation to which the High Court refers is Regulation No 805/68 of the Council of 27 June 1968 on <span class="italic">the common organization of the market</span> in beef and veal. (*2) Article 18 of that regulation lays down the basic principles governing the system of export refunds. It states <span class="italic">inter alia</span> that the export refund is intended to offset the difference between prices within the Community and those on the world market in order to make it possible to export the products in question, and that the refund ‘may be varied according to ... destination’.

The second regulation is Regulation No 885/68 of the Council of 28 June 1968 laying down <span class="italic">general rules for granting export refunds on beef and veal.</span> (*3) Article 6 of that regulation sets out the principal requirements for the receipt of:

(a) <span class="italic">non-differentiated refunds,</span> for which proof must be furnished that ‘the products have been exported from the Community’, and;

(b) <span class="italic">differentiated refunds,</span> for which proof must also be furnished that ‘the product has reached the destination for which the refund was fixed’.

The third regulation is Council Regulation No 565/80 of 4 March 1980 on <span class="italic">the advance payment of export refunds in respect of agricultural products</span> (hereinafter ‘the regulation on advance payment’). (*4) It was on the basis, <span class="italic">inter alia,</span> of this regulation that TMP obtained advance payment of the refund, and it bases its submissions regarding the significance of <span class="italic">force majeure</span> on, <span class="italic">inter alia,</span> a provision in that regulation.

The fourth regulation is Commission Regulation No 3665/87 of 27 November 1987 laying down <span class="italic">common detailed rules for the application of the system of export refunds on agricultural products</span> (hereinafter ‘the Commission's implementing regulation’). (*5)

The problem involved in the case and the main submissions in law

6.It is not disputed that the goods were not imported into Egypt and that the condition governing payment of the differentiated refund was therefore in principle not satisfied. It is at the same time also not disputed that the goods were destroyed in transit from the country of export to the country of destination as a result of <span class="italic">force majeure</span>.

7.TMP's main contention is that in those circumstances it is entitled to a refund, inasmuch as there is no basis for the imposition of a condition for payment of the refund in addition to that generally applicable, namely, export from the Community. TMP bases its view on, <span class="italic">inter alia,</span> a provision in the regulation on advance payment under which the security lodged as a condition of advance payment shall, ‘without prejudice to cases of <span class="italic">force majeure</span>’, be forfeited in the case of failure to comply with the conditions governing refunds. More generally, TMP submits that:

(i) it is not at variance with the objective of the differentiation of refunds for TMP to be entitled to a refund under the present circumstances;

(ii) failure to pay the refund will result in unjustified discrimination between exporters who are entitled to non-differentiated refunds and those who are entitled to differentiated refunds, and;

(iii) failure to pay the refund will also constitute a breach of the principle of proportionality.

TMP concludes by pointing out that the Court has consistently held that there may be grounds in an individual case to interpret a rule <span class="italic">of force majeure</span> as applicable to that case either by way of analogy or in some other manner.

8.The United Kingdom and Ireland, along with the Commission, agree that TMP is not entitled to the full refund even though importation was prevented by the destruction of the goods in transit as a result of <span class="italic">force majeure</span>. They also agree that this result is consistent with the objective served by the export refund system, including the objective underlying the requirement of import into the country of importation in the case of differentiated refunds, that this legal position does not constitute unjustified discrimination and that it is not at variance with the principle of proportionality.

In this regard, they also agree that:

(i) the provision which determines TMP's legal position in a situation such as the present is Article 20 of the Commission's implementing regulation;

(ii) it follows from Article 20(2) of that regulation that where proof has been furnished that the product has left the customs territory of the Community, the exporter is always entitled to a refund

‘at the lowest rate applicable on the date of acceptance of the export declaration, on condition that the rate is applicable for all nonmember countries for the products concerned’;

(iii)Article 20(2) must be interpreted as meaning that TMP is in fact not entitled to a refund under that provision inasmuch as at the material time refunds had not been set for beef and veal exports to a number of nonmember countries. (6)

However, the two Member States and the Commission disagree as to which of the rules in the implementing regulation give rise to the finding that TMP's position in law is ultimately determined by Article 20(2). The United Kingdom and Ireland take the view that the situation in this case is covered by Article 5(3) of the implementing regulation, which provides as follows:

‘If the product, after leaving the customs territory of the Community, has perished in transit as a result of force majeure, the amount paid shall be:

—in the case of a refund which varies according to destination, the part thereof specified in Article 20,

—in the case of a refund which does not so vary, the total amount thereof.’

The United Kingdom and Ireland argue that this is the only provision in the regulation which expressly governs the present case of force majeure.

The Commission, on the other hand, argues that the present situation is governed by the regulation's general rules on differentiated refunds. Article 4 of the regulation provides that:

‘1. Without prejudice to the provisions of Articles 5 and 16, the refund shall be paid only upon proof being furnished that the products for which the export declaration was accepted have ... left the customs territory of the Community in the unaltered state’.

Article 16(1), which is the first provision in a separate section on differentiated refunds, provides that:

‘Where the rate of refund varies according to destination, payment of the refund shall be dependent upon the additional conditions laid down under Articles 17 and 18’.

Articles 17 and 18 provide that the products in question must have been imported in the unaltered state into the nonmember country for which the refund is prescribed and that they shall be considered to have been imported when they have been cleared through customs for release for consumption in the nonmember country concerned. The Commission argues that the Community law rules do not contain any proviso in respect of the situation where, following their export from the Community, goods are destroyed as a result of force majeure.

The Commission points out that Article 20 qualifies the generally applicable requirement of importation in so far as the exporter is entitled immediately after exportation to payment of the refund at the lowest rate applicable for all nonmember countries, irrespective of whether it is subsequently established that the goods were actually imported. Article 5(1) of the regulation sets out a second qualification to the normal arrangements for differentiated refunds under the regulation. This provision, described by the Commission as ‘designed to combat suspected fraud’, makes it possible for the authorities, in cases where there are specified risks that the rules may be abused, to impose on exporters requirements additional to those arising under the ordinary provisions of the regulation. In the Commission's opinion, such provisions, including the special provisions on force majeure contained in Article 5(3), are not relevant to the present case as there was no reason to make use of them.

Examination of the rules referred to

Let me just say at the outset that it seems clear on the face of it that the relevant regulations contain no rules which would entitle TMP to the full differentiated export refund on the ground that importation was prevented because the goods were destroyed in transit to the country of destination by reason of force majeure.

TMP, as I have already mentioned, refers to Article 6 in the regulation on advance payment. The first paragraph of that article imposes an obligation to lodge a security guaranteeing reimbursement of an amount equal to the refund, plus an additional amount. The second paragraph provides that:

‘Without prejudice to cases of force majeure, this security shall be forfeited in whole or in part:

—if there proves to be no right to the export refund ...’

In my opinion, TMP cannot claim entitlement under that provision. The primary objective of the provision is to state that the security lodged shall be forfeited in whole or in part if the conditions governing payment of the export refund are not satisfied. (7) A proviso is included for cases of force majeure. That proviso, however, is not in general inasmuch as the security lodged is retained in all cases where the exporter, as a result of force majeure, is prevented from meeting the conditions governing entitlement to the refund. The proviso can only be understood as a reference to the specific provisions in the refund regulations which exempt exporters from general obligations under the regulations in cases of force majeure. Any other interpretation would render the special force majeure proviso meaningless in cases of advance payment and would also have the peculiar result that exporters who had secured advance payment of the refund would be in a more favourable position than exporters who had not received such advance payment.

The present case must be considered in the light of the fact that Article 6 of Regulation No 885/68 laying down general rules for granting export refunds on beef and veal had already introduced a fundamental distinction between non-differentiated and differentiated refunds. In principle, the sole condition for obtaining the former is, as I have already pointed out, that the goods have been exported from the Community, while the additional requirement in the case of differentiated refunds is that the goods have been imported into the country of destination for which the refund was set. This fundamental distinction is of course taken up again in the Commission's implementing regulation (see above). The general rules governing entitlement to a differentiated refund do not contain any proviso in respect of cases involving force majeure, and in my opinion the Commission's view must be upheld that the rules are to be understood as meaning that the requirement of importation also applies even if such importation is prevented by reason of the destruction of the goods in transit as a result of force majeure, and that this means that the exporter is entitled only to such refund as can be derived from Article 20.

As the United Kingdom and Ireland have correctly pointed out, Article 5(3), according to its wording, appears to apply to a situation such as the present. It is also correct that that provision would have the result in this case that Article 20 would be applicable and that consequently TMP would not be in a better legal position than would be the case if the position in law were to be assessed exclusively on the basis of the provisions concerning differentiated refunds in Articles 16 to 20 of the regulation.

I am inclined directly to uphold the views of the Commission and TMP that the legal position in this case is not covered by Article 5(3). That provision cannot be considered in isolation from the other provisions of Article 5 which enable the authorities, in situations where there is a specific risk of abuse, to depart from the general rules on non-differentiated refunds as well as from those on differentiated refunds. Article 5(3) is presumably applicable only where there has been reason in a particular situation to make use of the powers to request additional proof under Article 5(1).

In my opinion, however, there is no need in this case to express a view as to whether the situation comes under Article 5(3) or whether it is covered by Articles 16 to 18 of the regulation, given that it is clear that TMP's legal position will be the same whether the first or second set of rules is applied (the second set consisting of rules derived from Article 20).

It may in my opinion be assumed that the Community legislature did not necessarily intend to lay down any force majeure proviso in Articles 16 to 20 of the implementing regulation. (8)

Must this interpretation be amended on the ground that it is at variance with the objectives of the refund system and with general principles of law?

Apart from the provision in Article 6 of the regulation on advance payment which, as I have already pointed out, is in my opinion irrelevant in this context, TMP's reading of the law is not based on any more specific rules in the relevant regulations. On the contrary, its arguments are founded on more general submissions to the effect that it would be at variance with the objectives of the refund system and with general principles of law if the rules were not interpreted as meaning that there is entitlement to a full differentiated refund in the case where importation is frustrated through loss of the goods in transit by reason of force majeure.

The Court has consistently held that Community rules should be given the interpretation most consistent with their objectives, and as they should as far as possible be interpreted in accordance with the general principles of Community law, (9) there may be grounds for examining whether there is justification on that basis for interpreting the relevant rules in the manner advocated by TMP.

19.TMP argues in particular that, as a main rule, entitlement to an export refund arises when the goods have been exported from the Community and that the application of the derogating rule (namely, that entitlement to the full refund is conditional on importation of the goods into the country of destination) is justified only where it is clear that the objective behind the requirement of importation so warrants. TMP accepts to that extent that the requirement of importation has a double objective: on the one hand, to prevent abuse, and, on the other, to ensure that the goods actually gain access to the market in question (on this point, see the judgment in Dimex (10)). TMP, however, contends that consideration of abuse is irrelevant in a situation such as the present, where there is simply no risk of abuse, and that, so far as the wish to ensure that goods gain access to the market in question is concerned, there is no reason to draw a distinction between goods entitled to a differentiated refund and those which are entitled to a non-differentiated refund in view of the fact that, in the last analysis, the Community legislature desired both groups of goods to be disposed of on the markets of nonmember countries. In the opinion of TMP, it follows from this that, regardless of whether they are entitled to differentiated or non-differentiated refunds, exporters must be treated identically in the case where their goods have been destroyed in transit as a result of force majeure. TMP thereby contends that there is unjustified discrimination between the two groups of exporters and that the legal consequences of the failure in this case to satisfy the condition of importation are disproportionate vis-à-vis the objective served by that condition.

20.TMP's arguments cannot be dismissed out of hand. The two groups of exporters are in the present case treated differently, and it is not immediately obvious that the objective differences between the two groups justify such discrimination. (11)

21.That, however, is not a decisive factor. The arguments adduced by the Commission and the two Member States in support of the differences in treatment between the two groups of exporters, and which are first and foremost based on the objectives served by the requirement of importation (in particular, the need to ensure that goods reach the market in the country of destination), cannot be dismissed as irrelevant or lacking in substance. There are in these circumstances insufficient grounds for choosing an interpretation of the Community rules different from that which most obviously suggests itself from the content and context of the provision and which is justifiable in the light of the objective behind the special rules on differentiated refunds. That interpretation cannot be ignored for the simple reason that the Community legislature could also have laid down rules which, without being at variance with the objective served by the refund system, could have been worded in such a way as to entitle TMP to a refund. The legal position to which this interpretation gives rise clearly comes within the limits of the discretion enjoyed by the Community legislature when drawing up the refund system and does not imply unjustified or disproportionate discrimination between the traders concerned.

Can a rule on force majeure applicable to the present situation be implied by way of analogy or in any other manner?

22.TMP argues that there are grounds for applying by analogy the force majeure proviso contained in Article 6(2) of the regulation on advance payment to the situation in the present case. It refers in this connection to the Court's judgment in Case 6/78 Union Française de Céréales v Hauptzollamt Hamburg-Jonas. (12) TMP also refers to the Court's judgment in Case 71/87 Greek State v SA Inter-Kom, (13) which demonstrates in its opinion that it may be possible, in a situation such as the present, to read in an implicit force majeure proviso even though it is not expressly set out in the relevant rules of Community law.

23.In my opinion, TMP's arguments in this regard cannot be accepted. Its view is in any event mistaken on the ground that the relevant Community rules must be understood as meaning that the Community legislature made it clear that it was precisely in connection with the provisions in Articles 16 to 20 of the implementing regulation that a force majeure proviso was not to apply.

24.With regard to the judgment in the Inter-Kom case, that judgment was based on specific grounds and the relevant specific circumstances do not occur in the present case.

25.So far as the analogy with the second paragraph of Article 6 of the regulation on advance payment relied on is concerned, the force majeure proviso in that provision must in my opinion, as I have mentioned above, be understood as a general reference to specific force majeure provisos found elsewhere in the rules on advance payment.

26.There is one further reason why TMP's argument cannot find support in the Union Française judgment. Admittedly, the Court in that case decided that there were grounds for applying by analogy an express force majeure provision to a situation in many respects similar to the present. National authorities had refused to pay an accession compensatory amount to a French company which had dispatched a consignment of wheat to the United Kingdom. The consignment did not reach its destination by reason of the sinking of the transporting vessel. The compensatory amount was payable only if it could be established that the goods had been imported into the United Kingdom. The relevant rules (a 1973 Commission regulation) did not contain a proviso on force majeure. However, a rule adopted at a later date did set out such a proviso. This proviso was contained in a 1975 Commission regulation laying down rules for the application of export refunds in respect of agricultural products (that is to say, one of the predecessors of the Commission regulation of relevance to the present case) and concerned a provision which constituted an antecedent for Article 5 in the regulation here relevant. The Court ruled as follows at point 4 of its judgment: ‘It is common ground that if the exporter were refused grant of “accession” compensatory amounts in circumstances such as those in the present case, after goods have perished in transit as a result of force majeure, he would suffer a real loss, as the insurance taken out in favour of the purchaser pursuant to the cif. clause would cover only the value of the goods in terms of the prices prevailing in the importing country, and not in terms of the higher common prices prevailing in the exporting country. If it were accepted that the exporter had to bear the loss, or that he had to insure himself against that risk, he would be in an unfavourable competitive situation in relation to a seller in a third country. Such a result would be incompatible with the principle of Community preference, which the Act of Accession was intended to promote. Therefore there is an omission in Regulation No 269/73 in that it does not provide for the granting of “accession” compensatory amounts in cases of force majeure, and this omission should be made good by applying Article 6(1) of Regulation No 192/75 [the 1975 implementing regulation] by analogy.’ The situations in the two cases are thus parallel, and the Court's arguments for application by analogy also have a certain weight in the present case, even though they cannot be applied to it in full. There is, however, the crucial difference that the relevant article in the Commission's 1975 implementing regulation does not correspond to Article 5(3) of the 1987 implementing regulation — to put it differently, the 1975 regulation did not address the issue of what the exporter's legal position should be in the event of destruction as a result of force majeure. Thus, there are rules in the 1987 implementing regulation which expressly cover the present problem and which provide that, in the case of differentiated refunds, exporters are to be treated in the manner set out in Article 20(2) of that regulation.

The interpretation of Article 20 of the implementing regulation

Article 20(1) and (2) provides as follows:

1.By way of derogation from Article 16 and without prejudice to the provisions of Article 5, a part of the refund shall be paid upon proof being furnished that the product has left the customs territory of the Community.

2.The part of the refund referred to in paragraph 1 shall be calculated:

(a)in the case of exports where the refund has not been fixed in advance: at the lowest rate applicable on the date of acceptance of the export declaration, on condition that the rate is applicable for all nonmember countries for the products concerned;

TMP argues that that provision must be interpreted in the light of the objective of the scheme and that the ‘lowest rate’ in a case such as the present, where there is no suggestion of abuse, must mean the ‘lowest positive rate’. That interpretation cannot be correct, even if the wording of the provision could have been clearer as to its meaning. In cases such as this, where export refunds have not been set for one or more nonmember countries, the ‘lowest rate’ must be zero and the exporter is accordingly not entitled to any refund. Article 20 is a derogation from the requirement that in cases of differentiated refunds the goods must have been imported into the country of destination. Article 20 does not impose a requirement that security must be lodged for the refund payable under the provision as soon as goods have been exported from the Community. The provision cannot therefore be understood as entitling exporters to a larger refund than that to which they would be entitled by virtue of the security lodged, irrespective of the nonmember country into which the goods had to be imported. Article 20 must accordingly be interpreted as meaning that there is an obligation to pay a refund only if a positive rate has been set for all nonmember countries.

28.For the reasons outlined above, I propose that the Court should reply to the question referred in the following terms:

Regulation No 805/68 of the Council of 27 June 1968, Regulation No 885/68 of the Council of 28 June 1968, Council Regulation No 565/80 of 4 March 1980 and Commission Regulation No 3665/87 of 27 November 1987 must be interpreted as meaning that, in the case where goods have not been imported into the country of destination, an exporter is not entitled to a refund (over and above that to which he may be entitled under Article 20 of Regulation No 3665/87) and must therefore either make reimbursement of the advance payment received or forfeit the security lodged in an equivalent amount, even though the goods perished in transit from the State of exportation to the country of destination as a result of force majeure.

* Language of the case: Danish.

TMP, which was insured against loss of the refund, received payment of an insurance sum corresponding to the full amount of the refund and the insurers have assumed TMP's rights in the proceedings pending.

Ireland, which submitted observations in the case, has pointed out that the Irish company Tara Meats (Kilbeggan) Ltd was transporting beef on the same vessel as the English company and that proceedings are pending before the Irish High Court in which the circumstances of fact and law are essentially the same as those in the present case. The Irish High Court has stayed the proceedings brought by the Irish company until the Court of Justice has delivered its ruling in the present case.

* OJ, English Special Edition 1968 (I), p. 187.

* OJ, English Special Edition 1968 (I), p. 237.

* OJ 1980 L 62, p. 5.

* OJ 1987 L 351, p. 1.

* See Regulation No 2978/88 fixing the export refunds on beef and veal (OJ 1988 L 269, p. 37).

* This view is supported by the twenty-fourth recital in the preamble to the Commission's implementing regulation, which states that:

‘... reimbursement of the amount paid in advance of export must be made if there proves to be no right to the export refund or if there was a right to a smaller refund;... the reimbursement must include an additional amount to avoid abuses; ... in cases of force majeure, the additional amount is not reimbursed’.

* This result is confirmed by Article 21(3) of the regulation, in conjunction with Article 21(4), which contains an express rule on force majeure. The proviso applies to situations in which a product is delivered, as a result of force majeure, to a destination other than that intended, and means that the exporter is entitled to the differentiated refund applicable to the altered destination.

* See, inter alia, the judgments in Joined Cases C-90/90 and C-91/90 Neu and Others v Secrétaire d'Etat à l'Agriculture et à la Viticulture [1991] ECR I-3617 and in Case C-314/89 Rauh v Hauptzollamt Nümberg-Fürth [1991] ECR I-1647, at paragraph 17.

* Judgment of the Court in Case 89/83 Hauptzollamt Hamburg-Jonas v Dimex Nahrungsmittel lm-und Export GmbH&Co. KG [1984] ECR 2815, at paragraph 8 of which it ruled that:‘... the system of variable expon refunds is intended to gain and maintain access for Community exports to the markets of the nonmember countries concerned and the variation in the refund is based on the desire to take account of the particular characteristics of each import market in which the Community wishes to play a part.’

* There is thus cogency in the arguments put forward by Advocate General Capotorti in his Opinion in the Union Française case (cited below at point 22) where he reached the conclusion that there was, in a similar situation, no basis for requiring that the condition of importation must be satisfied. Advocate General Capotorti stated inter alia that:

‘... proof of completion of customs formalities in the country of destination serves to counter the danger that the goods will be redirected to countries where the rate of the refund or compensatory amount is lower (and thus the further danger of reimportation into the territory where the goods originated). If, however, the goods have perished in transit there is no risk of such abuse. Accordingly if, in exceptional circumstances such as the sinking of the vessel transporting the goods, the exporter is able to prove that he sold the goods to a purchaser in the country given as the country of destination and that the goods were duly dispatched, it does not appear to me reasonable to apply at the expense of the exporter a rule having a preventive purpose, pursuit of which is rendered pointless by the circumstances of the specific case. Indeed, it is clear that exceptional circumstances are not amenable to regulation on the basis of criteria established for normal situations and conversely that the application of derogative provisions, such as those governing cases of force majeure, to exceptional situations does not hamper or disturb the normal operation of the system.’

It should, however, be noted that Advocate General Capotorti was examining the significance of the condition of importation from the point of view that its sole function was to provide protection against abuse.

* [1978] ECR 1675.

* [1988] ECR 1979.