61979CJ0038_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 38/79
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE FINANZGERICHT HAMBURG ( FINANCE COURT, HAMBURG ) FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
BUTTER- UND EIER-ZENTRALE NORDMARK E.G ., HAMBURG,
AND
HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) HAMBURG-JONAS
Subject of the case
ON THE INTERPRETATION OF ARTICLE 11 ( 2 ) OF REGULATION NO 1380/75 OF THE COMMISSION OF 29 MAY 1975 LAYING DOWN DETAILED RULES FOR THE APPLICATION OF MONETARY COMPENSATORY AMOUNTS ( OFFICIAL JOURNAL 1975, L 139, P . 37 ),
Grounds
1 BY ORDER OF 20 FEBRUARY 1979, WHICH WAS RECEIVED AT THE COURT ON 8 MARCH, THE FINANZGERICHT HAMBURG SUBMITTED FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION CONCERNING THE INTERPRETATION OF ARTICLE 11 ( 2 ) OF REGULATION NO 1380/75 OF THE COMMISSION OF 29 MAY 1975 LAYING DOWN DETAILED RULES FOR THE APPLICATION OF MONETARY COMPENSATORY AMOUNTS ( OFFICIAL JOURNAL, L 139, P . 37 ).
2 THE QUESTION IS PUT IN THE CONTEXT OF LITIGATION BETWEEN, ON THE ONE HAND, AN UNDERTAKING WHICH EXPORTED FROM THE FEDERAL REPUBLIC OF GERMANY 18 160 KG OF BUTTER WHICH, FOLLOWING A SHIPWRECK IN THE NORTH SEA, FAILED TO ARRIVE AT ITS DESTINATION IN THE UNITED KINGDOM AND, ON THE OTHER HAND, THE GERMAN CUSTOMS AUTHORITIES WHO REFUSED TO PAY TO THE EXPORTING COMPANY THE MONETARY COMPENSATORY AMOUNTS IN RESPECT OF IMPORTATION INTO THE UNITED KINGDOM ON THE GROUND THAT THAT COMPANY HAD FAILED TO FURNISH PROOF, AS REQUIRED BY THE ABOVE-MENTIONED PROVISION, THAT CUSTOMS IMPORT FORMALITIES HAD BEEN COMPLETED . AS THE PRICE WHICH WAS TO BE PAID BY THE BRITISH PURCHASER, AND WHICH WAS REIMBURSED BY THE INSURANCE COMPANY, HAD BEEN CALCULATED ON THE BASIS OF THE PRICE LEVEL IN THE UNITED KINGDOM, THE EXPORTING FIRM SUFFERED A LOSS EQUIVALENT TO THOSE AMOUNTS .
3 THE EXPORTING COMPANY, THE PLAINTIFF IN THE MAIN ACTION, PARTICULARLY CONTENDED BEFORE THE FINANZGERICHT THAT, IN ACCORDANCE WITH THE PRINCIPLE LAID DOWN BY THE COURT IN ITS JUDGMENT OF 11 JULY 1978 IN CASE 6/78 UNION FRANCAISE DES CEREALES V HAUPTZOLLAMT HAMBURG-JONAS ( 1978 ) ECR 1675, ARTICLE 6 ( 1 ) OF REGULATION NO 192/75 OF THE COMMISSION OF 17 JANUARY 1975 LAYING DOWN DETAILED RULES FOR THE APPLICATION OF EXPORT REFUNDS IN RESPECT OF AGRICULTURAL PRODUCTS ( OFFICIAL JOURNAL, L 25, P . 1 ) SHOULD BE APPLIED BY ANALOGY IN THE PRESENT CASE . THAT ARTICLE 6 PROVIDES THAT, IN CERTAIN CASES, PAYMENT OF THE REFUND IS SUBJECT TO THE CONDITION THAT THE PRODUCT HAS BEEN IMPORTED INTO A THIRD COUNTRY, AND, WHERE APPROPRIATE, INTO A SPECIFIC THIRD COUNTRY, BUT IT PROVIDES AT THE SAME TIME AN EXCEPTION FOR GOODS WHICH HAVE PERISHED IN TRANSIT AS A RESULT OF FORCE MAJEURE .
4 IN CASE 6/78 THE COURT APPLIED THAT CLAUSE ON FORCE MAJEURE BY WAY OF ANALOGY IN INTERPRETING REGULATION NO 269/73 OF THE COMMISSION OF
31 JANUARY 1973 LAYING DOWN DETAILED RULES FOR THE APPLICATION OF THE SYSTEM OF ' ' ACCESSION ' '
COMPENSATORY AMOUNTS ( OFFICIAL JOURNAL, L 30, P . 73 ), ARTICLE 5 ( 2 ) OF WHICH PROVIDES THAT, IN CERTAIN CASES, PAYMENT OF THE COMPENSATORY AMOUNT IS SUBJECT TO PROOF THAT IMPORT FORMALITIES HAVE BEEN COMPLETED IN THE MEMBER STATE OF DESTINATION . IN ITS JUDGMENT THE COURT PROCEEDED, IN PARTICULAR, ON THE PRINCIPLE OF COMMUNITY PREFERENCE, THE OBSERVANCE OF WHICH PRINCIPLE, IN TRADE BETWEEN THE COMMUNITY AS ORIGINALLY CONSTITUTED AND THE NEW MEMBER STATES BEFORE THE FULL AND COMPLETE INTEGRATION OF THE LATTER INTO THE COMMON ORGANIZATION OF AGRICULTURAL MARKETS, THE TEMPORARY SYSTEM OF ACCESSION COMPENSATORY AMOUNTS WAS INTENDED TO ENSURE .
5 IN THE PRESENT CASE THE FINANZGERICHT CONSIDERS THAT REGULATION NO 1380/75 DISPLAYS THE SAME LACUNA AND HAS THEREFORE INVITED THE COURT TO RULE UPON THE FOLLOWING QUESTION :
' ' IS ARTICLE 11 ( 2 ) OF REGULATION ( EEC ) NO 1380/75 OF THE COMMISSION OF 29 MAY 1975 TO BE INTERPRETED, BY ANALOGY WITH ARTICLE 6 ( 1 ) OF REGULATION ( EEC ) NO 192/75 OF THE COMMISSION OF 17 JANUARY 1975, AS MEANING THAT, IF GOODS EXPORTED FROM A MEMBER STATE PERISH IN TRANSIT AS A RESULT OF FORCE MAJEURE, THE EXPORTER THEREOF, IN THE EVENT OF THE MONETARY COMPENSATION BEING GRANTED BY THE EXPORTING INSTEAD OF THE IMPORTING STATE IN ACCORDANCE WITH ARTICLE 2A OF REGULATION ( EEC ) NO 974/71 OF THE COUNCIL OF 12 MAY 1971, HAS A CLAIM FOR PAYMENT BY THE EXPORTING MEMBER STATE OF THE SAME MONETARY COMPENSATION AS WOULD HAVE BEEN DUE TO HIM IF THE GOODS HAD REACHED THEIR DESTINATION AND IF CUSTOMS IMPORT FORMALITIES HAD BEEN COMPLETED THERE?
' '
6 IN ITS OBSERVATIONS THE COMMISSION HAS CONTENDED IN PARTICULAR THAT ALTHOUGH THERE WAS A MARKED SIMILARITY CAPABLE OF JUSTIFYING AN ANALOGY BETWEEN REFUNDS ON EXPORTS TO NON-MEMBER COUNTRIES AND THE ACCESSION COMPENSATORY AMOUNTS GRANTED DURING THE TRANSITIONAL PERIOD ON EXPORTS TO THE NEW MEMBER STATES, SUCH IS NOT THE CASE IN REGARD TO MONETARY COMPENSATORY AMOUNTS . ABOVE ALL, THE PRINCIPLE OF COMMUNITY PREFERENCE, WHICH WAS THE BASIS BOTH OF ACCESSION COMPENSATORY AMOUNTS AND REFUNDS ON EXPORTS TO THIRD COUNTRIES, DOES NOT PLAY AN ESSENTIAL PART IN THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS .
7 IN FACT, THE SYSTEM OF REFUNDS ON EXPORTS TO NON-MEMBER COUNTRIES WAS INTRODUCED IN ORDER TO ENSURE THAT, SUBJECT TO SPECIAL CONSIDERATIONS RELATING TO THE DIFFERENT PRODUCTS, COMMUNITY EXPORTERS WOULD ENJOY A LEVEL OF PRICES SIMILAR TO THAT WITHIN THE COMMUNITY MARKET AND ACCORDINGLY, FOR CERTAIN PRODUCTS, SIGNIFICANTLY HIGHER THAN THE LEVEL OF PRICES ON THE WORLD MARKET . AS THE COURT STRESSED IN THE JUDGMENT WHICH IT GAVE IN CASE 6/78 IN RELATION TO ACCESSION MONETARY COMPENSATORY AMOUNTS, IT WOULD BE INCOMPATIBLE WITH THE PRINCIPLE OF COMMUNITY PREFERENCE FOR THE EXPORTER IN THE COMMUNITY TO BE REFUSED THE REFUND AFTER THE GOODS HAD PERISHED IN TRANSIT AS A RESULT OF FORCE MAJEURE . WHETHER HE BORE THAT LOSS HIMSELF OR WHETHER HE HAD INSURED AGAINST THAT RISK, THE EXPORTER WOULD BE IN AN UNFAVOURABLE COMPETITIVE POSITION IN RELATION TO A SELLER IN A NON-MEMBER COUNTRY, WHICH IS PRECISELY WHAT THE SYSTEM OF REFUNDS IS INTENDED TO PREVENT .
8 ON THE OTHER HAND, THE FUNCTION OF THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS IS WHOLLY DIFFERENT . THAT SYSTEM WAS INTRODUCTED IN ORDER TO REMEDY, IN A GENERAL MANNER, A MONETARY SITUATION WHICH THREATENS THE EXISTENCE OF THE COMMUNITY SYSTEM OF PRICES FOR AGRICULTURAL PRODUCTS . IT WAS NOT CONCEIVED IN ORDER TO GIVE INDIVIDUAL TRADERS SECURITY AGAINST ALL THE RISKS WHICH FLOW FROM FLUCTUATIONS IN EXCHANGE RATES OR TO INDEMNIFY THEM FOR ANY LOSS SUFFERED AS A RESULT OF THESE FLUCTUATIONS .
9 HAVING REGARD TO THESE DIFFERENCES BETWEEN THE SYSTEM OF REFUNDS ON EXPORTS TO NON-MEMBER COUNTRIES AND THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS, THERE IS NO REASON TO APPLY BY ANALOGY A RULE EXPRESSLY LAID DOWN FOR REFUNDS IN ORDER TO INDEMNIFY THE PLAINTIFF IN THE MAIN ACTION FOR A LOSS WHICH NORMALLY CONSTITUTES ONE OF THE COMMERCIAL RISKS WHICH TRADERS MUST THEMSELVES ASSUME, BY TAKING OUT, WHERE APPROPRIATE, A SUITABLE INSURANCE .
10 THUS THE ANSWER TO THE QUESTION SUBMITTED BY THE FINANZGERICHT HAMBURG SHOULD BE THAT ARTICLE 11 ( 2 ) OF REGULATION NO 1380/75 OF 29 MAY 1975 IS TO BE INTERPRETED AS MEANING THAT WHERE GOODS EXPORTED FROM A MEMBER STATE HAVE PERISHED IN TRANSIT AS A RESULT OF FORCE MAJEURE, THE EXPORTER IS NOT ENTITLED TO THE SAME MONETARY COMPENSATORY AMOUNTS AS WOULD HAVE BEEN DUE TO HIM IF THE GOODS HAD REACHED THEIR DESTINATION AND IF CUSTOMS IMPORT FORMALITIES HAD BEEN COMPLETED THERE .
Decision on costs
11 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS,
THE COURT
IN ANSWER TO THE QUESTION SUBMITTED TO IT BY THE FINANZGERICHT HAMBURG BY ORDER OF 20 FEBRUARY 1979, HEREBY RULES :
ARTICLE 11 ( 2 ) OF REGULATION NO 1380/75 OF THE COMMISSION OF 29 MAY 1975 LAYING DOWN DETAILED RULES FOR THE APPLICATION OF MONETARY COMPENSATORY AMOUNTS IS TO BE INTERPRETED AS MEANING THAT WHERE GOODS EXPORTED FROM A MEMBER STATE HAVE PERISHED IN TRANSIT AS A RESULT OF FORCE MAJEURE, THE EXPORTER IS NOT ENTITLED TO THE SAME MONETARY COMPENSATORY AMOUNTS AS WOULD HAVE BEEN DUE TO HIM IF THE GOODS HAD REACHED THEIR DESTINATION AND IF CUSTOMS IMPORT FORMALITIES HAD BEEN COMPLETED THERE .