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.