5.

Nevertheless, I consider that it is sufficient to find that on a comparison of the two Community systems of subsidies for exports in question the similarities exceed the differences. If this is the case the frequently-mentioned provision contained in Article 6 of Regulation No 192/75 of the Commission can and should be applied by analogy in the context of the arrangements governing ‘accession’ compensatory amounts in order to fill the lacuna constituted by the omission of provision for cases of the fortuitious destruction of goods. At this point it is appropriate to take account also of certain general considerations which together show that the above-mentioned application by analogy is appropriate. I have already had occasion to note that Article 55 (6) of the Act of Accession reinforces by implication the principle of Community preference which certainly constitutes an important element in the rules governing trade between Member States. If it were to be held that the system of ‘accession’ compensatory amounts is not covered by the provision concerning the fortuitous destruction of goods in transit persons engaged in intra-Community trade would obtain less protection than exporters to third countries who benefit from refunds. This would be contrary to the rule (which follows logically from the principle of Community preference) that intra-Community trade must develop in more favourable conditions than trade with third countries. To put this in concrete terms: it would not have been profitable for a Community undertaking to export the goods in question to Great Britain, there to sell them at a price below the Community price (and probably, indeed, lower than the minimum price guaranteed by the Community intervention arrangements) unless it had been able to count on the ‘accession’ compensatory amount; the undertaking would have been prompted to export instead to a third country if it could have foreseen that the conditions for payment of the refunds were more favourable. Another problem of a difference in treatment would arise, if the provision concerning the fortuitous destruction of the goods in transit were considered inapplicable, because of the arrangements for paying the ‘accession’ compensatory amounts, which are governed by Article 5 of the said Regulation No 269/73. In fact where the ‘accession’ compensatory amount is lower than the lowest export refund applicable to the product in question on the day of exportation proof is not required that the import formalities in the Member State of destination have been completed. Accordingly, in a situation of this nature the exporter is entitled to collect the compensatory amount to which he is entitled even if, owing to the destruction of the goods in transit, he is not in a position to establish that they have arrived in the country of destination. Let us take as an example an undertaking in one of the original Member States which, at the time when the events in question occurred, exported a consignment of the same product to Denmark or Ireland; even if the goods had perished in transit, the undertaking would have been able to obtain the compensatory amounts laid down for exports to the countries in question (6 units of account per tonne for Denmark and 4.5 units of account for Ireland) since those amounts were lower than the minimum rate of refund then provided in respect of exports of the same goods to third countries (8 units of account per tonne). In this way expon undertakings operating in the same field within the common market would be treated differently, depending on the country of destination of the goods within the Community. If we now turn to consider the rationale of the provision, which requires proof that the goods have in fact been imponed in order to establish the right to collect the ‘accession’ compensatory amounts, we find that it provides yet another argument in favour of taking account of circumstances of force majeure, as I have frequently explained. I have already pointed out that in the two systems of expon subsidies in question, that provision is intended to avoid abuses in that, where a refund or ‘accession’ compensatory amount has been fixed in advance which does not correspond to the lowest rate of Community aid to exports, 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 exponer 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 exponer 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. Finally, I should like to note that the recourse to application by analogy which is here in point by no means constitutes an innovation in the case-law of the Coun of Justice. I would recall in particular that in its judgment of 20 February 1975 in Case 64/74 Reich v Hauptzollamt Landau ([1975] ECR 261) the Court recognized that it was possible to apply by analogy a provision which provided that delay caused by circumstances of force majeure should constitute an extenuating factor in cases of failure to observe the time-limit provided for in a licence in respect of imports from third countries with advance fixing of the levy. That provision was extended by analogy to cover cases of importations from other Member States provided that (as was the case in the transitional period governed by the EEC Treaty) a levy had been fixed in advance. As I have already had occasion to observe in my Opinion in Case 68/77 IFG, the Court proceeded on the basis that the case before it contained all the essential elements of the situation which the previous Community rules in that field recognized as constituting extenuating circumstances on grounds of force majeure, that is to say, the existence of an import licence with advance fixing of the levy and the obligation to comply with a predetermined time-limit.