Opinion of Mr Advocate General Fennelly delivered on 14 May 1998. - The Queen v Intervention Board for Agricultural Produce, ex parte First City Trading Ltd and Others. - Reference for a preliminary ruling: High Court of Justice, Queen's Bench Division - United Kingdom. - Agriculture - Common organisation of the markets - Beef - Export refunds - Beef of British origin repatriated to the United Kingdom as a result of the announcements and decisions made in relation to 'mad cow disease' - Force majeure. - Case C-263/97.



European Court reports 1998 Page I-05537



Opinion of the Advocate-General

1 This case concerns difficulties encountered by certain exporters of British beef in the period immediately preceding and following the imposition of an export ban on British beef by Commission Decision 96/239/EC of 27 March 1996 on emergency measures to protect against bovine spongiform encephalopathy (1) (hereinafter `the export ban'). The applicants in the main proceedings claim that they are dispensed by virtue of certain general principles of Community law from repaying export refunds paid in advance in respect of beef which was not in fact imported into any third country.

I - Facts and procedural background

2 The validity of the export ban has been examined by the Court in National Farmers' Union and Others and United Kingdom v Commission; (2) the judgments provide ample information on the factual and legal background to the BSE crisis, and the measures taken by the Commission in response to the statement of the Spongiform Encephalopathy Advisory Committee (hereinafter `the SEAC') on 20 March 1996 identifying exposure to BSE as the most probable cause of a strain of Creutzfeldt-Jacob disease.

3 First City Trading Ltd and Meatal Supplies (Wholesale Meats) Ltd (`the applicants') are exporters of beef from the United Kingdom. At the time the export ban came into effect, they were engaged in arranging for the export of 648 200 kg of beef, principally to South Africa and Mauritius. Some 72% of the beef for which First City Trading Ltd was responsible (432 921 kg) and all 33 000 kg of Meatal's beef had already left the United Kingdom and was at that time in transit, while the remaining 28% (182 279 kg) never left the territory of the United Kingdom. Most of the beef was returned to the suppliers in the United Kingdom, and the applicants have been repaid or have received credit notes. Had the beef reached its intended destinations, the applicants would have been entitled to differentiated export refunds, which vary according to the third country of destination. The applicants had accordingly applied for and been granted advance payments in respect of the export refunds. As none of the beef was imported into any third country, the Intervention Board for Agricultural Produce (hereinafter `the defendants') sought repayment of the export refund; when this was refused, the defendants made a decision forfeiting the corresponding securities.

4 In the course of proceedings for judicial review of that decision, the Divisional Court of the Queen's Bench Division of the High Court of Justice, London, referred the following questions to the Court:

`1. Do Articles 23 and 33 of Commission Regulation No 3665/87/EEC as amended apply to the case where by reason of force majeure goods in transit in the course of export to third countries are repatriated to the Member State of export, or are they limited to those cases where the goods were imported into a different third country to that which was originally declared by the exporter to the competent authority?

2. In circumstances where:

(a) By Commission Decision 96/239/EC of 27 March 1996 exports of beef from the United Kingdom to third countries were prohibited;

(b) bans on the importation of beef from the United Kingdom were also imposed by a number of third countries;

(c) exporters of beef were at the time of the said Decision in the process of carrying goods to third countries;

(d) the said exporters were forced to repatriate the beef to the United Kingdom;

(e) the exporters received advance-paid export refunds in accordance with [Council] Regulation No 565/80/EEC and Commission Regulation No 3665/87/EEC as amended in respect of the export transactions in issue; and

(f) the exporters suffered losses as a result of not being able to sell the beef on the export markets in question;

are the exporters entitled to retain all or part of the export refund by reason of the general principles of Community law and in particular force majeure, legitimate expectations, proportionality or equity?

3. If [the] answer to Question 2 is that the exporter is entitled to retain in principle some or all of the export refund in question are the exporters bound to give credit for any revenues derived from the disposal of the beef in the United Kingdom (for example where the original vendor of the beef to the exporter was bound to repossess the beef under a retention of title clause in the original contract of sale and where the vendor repaid all or a portion of the original purchase price)?

4. Are either or both of Commission Decision 96/239/EC or [Commission Regulation] No 773/96/EC unlawful to the extent that they do not provide for exporters in the circumstances referred to in Question 2 above being entitled to retain export refunds, applicable to the exports in question or any portion thereof?'

II - The relevant Community provisions

5 As the relevant provisions of Community legislation are subject to frequent modification, it may be useful to set out those which apply in the present case in some detail. Council Regulation (EEC) No 805/68 of 27 June 1968 on the common organisation of the market in beef and veal (hereinafter `Regulation No 805/68') (3) provides, inter alia, for a system of export refunds which, according to the fifth recital in the preamble, `serves to stabilise the Community market, in particular by preventing price fluctuations on the world market from affecting prices ruling within the Community'. Article 13 of Regulation No 805/68 reads in relevant part:

`[1.] To the extent necessary to enable the products listed in Article 1 to be exported ... the difference between [world market] prices and prices in the Community may be covered by export refunds.

...

[3.] Refunds shall be the same for the whole Community. They may vary according to destination ... .

...

[9.] The refund shall be paid upon proof that: ... - the products have been exported from the Community, and

- in the case of a differentiated refund the products have reached the destination indicated on the licence or another destination for which the refund was fixed ... .'

6 Article 5(1) of Council Regulation (EEC) No 565/80 of 4 March 1980 on the advance payment of export refunds in respect of agricultural products (4) provides that `[an] amount equal to the export refund shall, at the request of the party concerned, be paid as soon as the products or goods have been brought under the customs warehousing or free zone procedure with a view to their being exported within a set time limit'. Article 6 subjects the benefit of the advance payment regime to the lodgment of a security somewhat larger than the amount paid. The security `shall be forfeited, in whole or in part ... where reimbursement has not been made when export has not taken place within the period referred to in Article ... 5(1)', though this rule is `[without] prejudice to cases of force majeure'.

7 The third recital in the preamble to Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products (hereinafter `Regulation No 3665/87') (5) declares that `the general rules laid down by the Council provide for the refund to be paid upon proof being furnished that the products have been exported from the Community'. Article 5(3) reads in relevant part:

`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.'

8 Article 20 of Regulation No 3665/87 in turn allows part-payment of differentiated refunds on proof that the product has left the customs territory of the Community, in derogation from the rule in Article 17 which requires importation into a non-member country within 12 months of the acceptance of the export declaration before such payment can be made. This part `shall be equal to the amount of the refund which the exporter would receive if his product reached a destination for which the lowest rate of refund had been fixed, the non-fixing of a rate being regarded as the lowest rate'.

9 Articles 22 and 23 of Regulation No 3665/87 provide for advances of refunds for direct exports (`advance-paid exports'), while Articles 24 to 33 provide for advances of refunds where goods are processed or stored prior to export (`pre-financed exports'). The security which must be lodged in each case is equal to the advance payment plus a supplementary payment of 15% (advance-paid exports) or 20% (pre-financed exports).

10 In particular, Article 23(1) of that Regulation, which applies to refunds in respect of direct exports, provides as follows:

`Where the amount advanced is greater than the amount actually due in respect of the relevant export operation or an equivalent export operation, the exporter shall repay the difference between the two amounts plus 15% of such difference.

Where, however, by reason of force majeure:

- the proof to be furnished under this Regulation in order to qualify for the refund cannot be produced, or

- the product reaches a destination other than that for which the advance was calculated,

the additional 15% shall not be charged.'

11 Article 33, which applies to refunds where goods are processed or stored prior to export, provides as follows:

`[1.] Where entitlement to a refund and/or monetary compensatory amount is proved in respect of products or goods permitted under the provisions of this chapter, the sum due shall be set off against the amount paid in advance. In cases where the amount due for the exported quantity is higher than that which has been paid in advance, the difference shall be paid to the person concerned.

Where the amount due for the quantity exported is less than that paid in advance, in particular where paragraph 2 is applied, the competent authority shall initiate without delay the procedure laid down in Article 29 of Regulation (EEC) No 2220/85 with a view to payment by the operator of the difference between those two amounts, plus 20%.

...

[4.] Where, following a case of force majeure, the amount due is less than the amount paid in advance, the 20% increase shall not apply.'

12 Commission Regulation (EC) No 773/96 of 26 April 1996 laying down special measures derogating from Regulations (EEC) No 3665/87, (EEC) No 3719/88 and (EEC) No 1964/82 in the beef and veal sector (6) (hereinafter `Regulation No 773/96') seeks to limit the negative consequences both of the export ban and of health measures adopted by a number of third countries following the SEAC announcement of 20 March 1996 by allowing the regularisation of uncompleted export operations in this sector. Article 4(1) provides:

`At the request of the exporter, for products for which by 31 March 1996:

- customs export formalities were completed but which were released back into free circulation in the United Kingdom because of health measures adopted by a third country, the exporter shall repay any refund paid in advance and the securities relating to the operations shall be released,

- customs export formalities were completed in the United Kingdom but which have not yet left the customs territory of the Community, the export declaration and the export licence shall be cancelled, the exporter shall repay any refund paid in advance and the securities relating to the operations shall be released.'

III - The arguments of the parties

13 Written and oral observations were submitted by the United Kingdom of Great Britain and Northern Ireland and the Commission; the applicants submitted oral observations.

14 The United Kingdom and the Commission are ad idem in contending that under the applicable provisions on export refunds, the applicants are not entitled to retain the advance payment. They are both of the view that, as the amount due was zero, the entirety of the advance payment, but no supplementary payment, is due, the United Kingdom on the basis of Regulation No 3665/87, the Commission on the basis of Regulation No 773/96. Both reject the reliance on general principles advanced as an alternative basis for the entitlement to retain the payment, and hence conclude that the third question need not be answered. They also concur in arguing that neither the export ban nor Regulation No 773/96 is invalid because it failed to provide that the exporters could retain export refunds, or any part thereof, in the circumstances of the present case, though, of course, the United Kingdom had challenged the export ban on other grounds. (7)

15 The applicants argue that in adopting Regulation No 773/96 the Commission recognised the necessity for special measures to mitigate some of the effects of the export ban. In their view, the special measures are inadequate, in that they do not sufficiently take account of the position of those such as the applicants, who are unable to comply with the export refund regime because of the export ban, and that the Regulation should have provided proper and reasonable transitional measures. In accordance with the principles of fairness and equity, legitimate expectations and proportionality, they argue that they should be able to retain the advance-paid export refunds, minus any revenues they have received from the disposal of the beef in the United Kingdom.

IV - Analysis

(a) The first question: the application of Articles 23 and 33 of Regulation No 3665/87

16 Articles 23 and 33 of Regulation No 3665/87 lay down respectively two different legal rules, one imposing an obligation to pay the difference between the export refund paid and that which is due, plus the supplementary payment, the other allowing a derogation in two circumstances justified by force majeure. It is clear from the order for reference that the applicants have not been required to make any supplementary payment; the only amounts in dispute in the main proceedings are the advance-paid export refunds, and the question whether the applicants can benefit from the force majeure derogation in order not to be obliged to make the supplementary payment is not in issue.

17 As the United Kingdom has pointed out, the first question reflects an attempt by the applicants to distinguish the present case from Anglo Irish Beef Processors. (8) In that case a consignment of beef destined for Iraq failed to reach its destination because of the trade embargo imposed by the United Nations (9) following that country's invasion of Kuwait. The first question of the national court was formulated by the Court as being `whether Regulation No 3665/87 ... must be interpreted - bearing in mind that, owing to force majeure, the goods were exported to a destination other than that originally intended - as precluding an intervention agency from withholding such proportion of the security lodged as corresponds to the amount that was not payable to the recipient, on account of the disproportionate effect of the forfeiture of the security ... or for any other reason'. (10) The Court continued:

`[t]he system of differentiated export refunds is intended to gain or to maintain access for Community exports to the markets of the non-member countries concerned ... . Since actual access to the market of destination is in principle conditional on the completion of customs formalities for the release of the goods into free circulation in the country of destination, the fact that the consignment did not reach that destination and, owing to force majeure, had to be exported to other countries rules out the possibility of its being regarded, for the purposes of the differentiated refund, as having been imported within the meaning of Article 5(1) of Regulation No 3665/87.' (11)

18 In so far as a parallel can be drawn between Anglo Irish Beef Processors and the present case, the comparison is inimical rather than helpful to the applicant's case. As the Court said, `payment of the differentiated or non-differentiated refund is conditional not only on the product having left the customs territory of the Community but also on its having been imported into a non-member country ...'. (12) The exporter was permitted to retain the export refunds appropriate to the eventual non-member country of destination on the basis of the uncontested existence of force majeure and on proof of export to that country. In the present case, none of the beef was exported to a non-member country and some never left its Member State of origin. There is no legal basis for the payment of export refunds (except for the particular case of goods which qualify for non-differentiated refunds perishing in transit) when there has been no export and, consequently, no basis for retention of such refunds paid in advance. As Advocate General La Pergola said in his Opinion in this case, repayment of the refunds `does not arise by way of a penalty for unlawful conduct but simply entails reimbursement of a sum unduly paid'. (13)

19 The Commission's adoption of Regulation No 773/96 entails no recognition of necessity to mitigate the consequences of the export ban beyond its own terms, which are fully consistent with the existing rules. Relief is granted, by analogy with cases of force majeure, in respect of the penal element of the forfeiture of security - the supplementary amount - but there is no export refund without export. As the Commission pointed out at the hearing, Regulation No 773/96 does not refer to force majeure, but is based on the Commission's power to control the level at which penalties are fixed.

20 The applicants have further argued that allowing them to retain the export refunds would only mitigate the losses they have sustained as a result of the transactions in question. However, as the United Kingdom has pointed out, there is no necessary relationship between any losses incurred through having to divert the products to another market and the amount of the export refund. More fundamentally, the setting off of traders' losses against advance-paid export refunds would be incompatible with the objective of the payment of export refunds which, as noted by Advocate General La Pergola in Anglo Irish Beef Processors, is `intended solely as compensation for any disparity between the Community price and the current price on other markets'. (14)

21 The question whether, in accordance with Articles 23 and 33 of Regulation No 3665/87, the exporter is obliged to repay the advance-paid export refund where beef in transit is repatriated to the Member State of export can therefore be answered briefly and in the affirmative. It is clear from Article 13 of Regulation No 805/68 that the right to an export refund only arises in respect of products which have been exported from the Community. As both the Commission and the United Kingdom have pointed out, the `amount actually due' in respect of the products at issue in the main proceedings for the purpose of Article 23(1) was zero, and hence the difference between this and the amount advanced is equal to the entirety of the export refund. As regards Article 33(1), no entitlement to a refund can be proven, and the amount to be repaid is once again equal to the entirety of the export refund.

(b) The second question: entitlement to retain all or part of the export refunds by virtue of general principles of Community law

22 The answer to the first question having established that the export refund must in the circumstances of the present case be repaid, according to Regulation No 3665/87, the second question asks whether the applicants might be entitled to retain all or part of the advance payments `by reason of general principles of Community law, and in particular force majeure, legitimate expectations, proportionality or equity'.

23 The applicants' arguments were stated thus in the order for reference:

`[the] Applicants submit, inter alia: that the effect of the BSE crisis and the Commission export ban was legally and factually to close off all third countries as markets for the beef in question, that as a result they would suffer substantial losses which would be exacerbated if the export refunds were to be repaid, and that they had a legitimate expectation that the Community would not take measures preventing fulfilment of these export transactions at least without proper transitional or other measures which enabled the exporters to either retain the disputed export refunds or at least avoid a loss on the transactions in question. In this regard the Applicants submit that the Commission export ban includes goods in transit as within the prohibition; that the export bans imposed by third countries were directly related and attributable to the Commission's export ban and that the effect of the ban is, uniquely, to place exporters in a position whereby they cannot export to any third country. As such, the Applicants have become comparable to recipients of non-differentiated export refunds who, in cases of force majeure, are entitled to retain advance-paid export refunds.'

24 At the hearing, the applicants added that in the circumstances of the present case there was no risk of abuse such as re-exportation into the Community, as no third country would accept the importation of the beef in the first place, or of unjust enrichment, as any income accruing from the disposal of the beef in the United Kingdom would be set off against the export refunds.

25 The comparison the applicants seek to make between their situation and that of recipients of non-differentiated export refunds seems to me to be entirely without merit. Indeed, it is wholly erroneous to suggest, as a general proposition, that the latter can retain export refunds in cases of force majeure, (15) when they may only do so in the circumstances outlined in Article 5(3) of Regulation No 3665/87, to wit, when the goods have perished in transit as a result of force majeure, which does not arise in the present case. The situation of the applicants can only therefore be compared, if at all, to that of recipients of non-differentiated export refunds whose goods have not perished, but who have been unable to complete the transaction because of import bans imposed by third countries. In neither case can the exporters benefit from Article 5(3) of Regulation No 3665/87, and the general rule subjecting entitlement to an export refund to importation into a non-member country is therefore fully applicable.

26 The applicants outlined their submission regarding force majeure at the hearing in the following terms: `[if], on the particular facts of a case, the strict rules operate in a manner which is clearly unfair or inequitable then the effect of those rules may be softened by virtue of the principle of equity or fairness or its emanation force majeure. It is clear from [Huygen and Others (16) and Bonapharma (17)] that this general principle can override strict rules and can fill lacunae in those rules ... . The Community has recognised that compliance with the strict rules of the export refund regime would be inequitable and unfair'.

27 Whether or not the cases cited could justify such a broad definition of the notion of force majeure and its effects, it is clear from the judgment in Huygen and Others that this concept `does not have the same scope in the various spheres of application of Community law [and that] its meaning must be determined by reference to the legal context in which it is to operate'. (18) Consideration must therefore be given to force majeure in the context of the export refund system considered as a whole.

28 I do not think the Commission's recognition that the export refund rules should be partly relaxed in the special circumstances of the BSE crisis would justify the applicants' conclusion that the application of the requirement to reimburse export refunds which are not due under the applicable rules would be `inequitable and unfair'. The Commission has merely recognised, in effect, that traders unable to carry out their intended transaction as a result of the action taken by certain third countries following the SEAC announcement of 20 March 1996 should not be required to make a supplementary payment whether or not force majeure existed. The true analogy is with cases covered by Article 23(1) of Regulation No 3665/87 where, by reason of force majeure, either the required proof is lacking or the goods have been diverted to a destination other than that intended. In such cases, there is relief from the supplementary payment. The Commission cannot, by applying that result to the instant case, be taken to have recognised any wider principles of fairness or equity and certainly not one which goes so far as to permit the retention of refunds where there has been no export.

29 Nor do I consider that the enforcement of the requirement to repay the export refunds as against the applicants would in any case be inequitable or unfair. Indeed, as the United Kingdom has pointed out, allowing the applicants to retain all or some of the advance-paid export refunds in the present case would give them an uncovenanted benefit to which other traders who, for whatever reason, did not receive advance payment in respect of their exports to third countries are not entitled. The Court has recently held that the export refund rules regarding cereals do not entitle a trader whose product has been destroyed in transit as a result of force majeure to a differentiated export refund. (19) If it is not possible from such cases to deduce a general principle that export refunds should not be repaid even when goods have perished in transit due to force majeure, it is even more clearly so in the present case where the goods not only survived but were repatriated and re-sold.

30 The applicants' argument regarding their legitimate expectations is expressly predicated on the notion that the imposition of the Community export ban prevented the fulfilment of their export transactions. In this regard, it is convenient to distinguish between the beef in transit at the time of the entry into force of the export ban, and that which never left the territory of the United Kingdom. As the Commission has pointed out, Decision 96/239/EC does not affect beef in transit, and in regard to this category of beef, the applicants' claim of legitimate expectation is therefore unfounded. Nor, in my view, can the applicants claim that the import bans adopted by the intended third countries of destination, whether before or after the adoption of this decision, were imposed as a result of the Community export ban; the Community is not, after all, empowered to order a third country to prohibit imports onto its territory. In any case, it seems highly probable that the third country import bans were imposed as a result of the statement of the SEAC of 20 March 1996 mentioned above, (20) and the applicants have not demonstrated the contrary. That, however, is an issue of fact for the national court.

31 The legal situation regarding the remaining beef which never left the United Kingdom is at least superficially somewhat different; here Commission Decision 96/239/EC could be seen as constituting a direct impediment to the export transactions, whether or not any third country would have been minded to allow the importation into their territory of the beef in question. That does not of course mean that the applicants had any legitimate expectation either that the Community would not adopt the export ban, or that they would be entitled to retain advance-paid export refunds or a part thereof to cover any loss they may sustain on the transaction.

32 It is, in my view, clear beyond argument that traders in agricultural products do not have a legitimate expectation that the Community institutions will refrain from acting to protect human health in regulating the market in these products. On the contrary, as the Commission pointed out at the hearing, such traders choose to operate in a `high-risk environment'. The Court has also observed that the `freedom to pursue a trade or business is not absolute, but must be viewed in relation to its social function'. (21) Restrictions may always be imposed which are not disproportionate. The export ban, in so far as it, rather than restrictions imposed by third countries, is material to this case, has been held not to infringe the principle of proportionality. (22)

33 In the particular area of human and animal health, a number of Community legislative provisions enable, and in some cases oblige, the Member States to take measures which may interfere with the normal activities of traders in agricultural produce. Thus, for example, Article 10 of Council Directive 90/425/EEC of 26 June 1990 concerning veterinary and zootechnical checks applicable in intra-Community trade in certain live animals and products with a view to the completion of the internal market (23) obliges any Member State to notify the other Member States and the Commission `of the outbreak in its territory ... of any zoonoses, diseases or other cause likely to constitute a serious hazard to animals or to human health ...[and to] implement the control or precautionary measures provided for in Community rules, in particular the determination of the buffer zones provided for in those rules, or adopt any other measure which it deems appropriate'. The Commission is also empowered under this provision to take interim protective measures. It follows, in my view, from these and other similar provisions in the area of human and animal health (24) that such expectations as the applicants may enjoy to engage in the export of beef are in any case subject to the obligations of the Community institutions and Member States to protect human and animal health, and that the fulfilment of the latter does not infringe any legitimate expectations of the applicants.

34 The arguments relied upon by the applicants at the hearing in relation to the proportionality of the requirement to repay export refunds which are not due amounted to little more than an affirmation that in the present case `the objectives of the regime would not be undermined by permitting exporters to retain the refunds' and that, as no third country would accept the beef, there was no risk of abuse, for example through re-exportation of the beef from the designated third country of destination.

35 Whether or not these matters go to demonstrating the proportionality or otherwise of applying the reimbursement requirement in the present case, I do not find the applicants' submissions convincing. As noted above, the principal objective of the regime of differentiated export refunds is to encourage the exportation of beef to certain specified third countries; I do not see how allowing traders in the situation of the applicants to retain all or part of the advance-paid export refunds would contribute in any way to the achievement of those objectives.

36 It appears from the order for reference that the applicants' complaint is directed to the question of compensation for any loss they may have suffered as a result of the imposition of the ban. The applicants have not shown how any such claim could affect either the interpretation of the relevant legislative provisions or their validity. I am therefore of the opinion that, in the circumstances described in the second question, the exporters are not entitled to retain all or part of the export refund paid in advance.

(c) The third question: the requirement to take account of revenues derived from the disposal of the beef in the United Kingdom

37 In the light of the negative answer to the second question, the third question does not fall to be answered.

(d) The fourth question: the validity of Commission Decision 96/239/EC and Regulation No 773/96

38 Commission Decision 96/239/EC, including the specific question of whether the Commission was empowered to impose a ban on the exportation of beef from the United Kingdom to third countries, has been examined in some detail by the Court in National Farmers' Union and Others and United Kingdom v Commission, (25) in which the Court upheld the validity of the contested decision. The applicants in the present proceedings, who both intervened in the main proceedings in the former case, have not raised any ground which could call into question the Court's ruling in that case.

39 Regulation No 773/96 was adopted on the basis of Article 13 of Regulation No 805/68, which authorises the Community to cover by export refunds the difference between world market prices and those pertaining in the Community, but only `[to] the extent necessary to enable the products listed in Article 1 to be exported'. Providing compensation for loss, if any, by allowing exporters to retain all or part of the export refunds, would not compensate for the price differences in question and would therefore not advance the objectives of Regulation No 805/68, even if the Commission could derive a power from Article 13 of Regulation No 805/68 to award compensation for trading losses. In any case, the applicants have not raised any ground other than those considered and rejected at section IV(b) above to challenge the validity of Regulation No 773/96.

V - Conclusion

40 In the light of the foregoing, I recommend to the Court that it reply as follows to the questions referred by the Divisional Court:

(1) Articles 23 and 33 of Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products should be interpreted as applying where goods in transit in the course of export to third countries are repatriated to the Member State of export;

(2) In the circumstances described in the second question, the exporters are not entitled to retain all or part of the export refund paid in advance by virtue of general principles of Community law;

(3) In the light of the answer to the second question, the third question does not fall to be answered;

(4) Consideration in the light of the grounds stated in the order for reference of Commission Decision 96/239/EC of 27 March 1996 on emergency measures to protect against bovine spongiform encephalopathy and of Commission Regulation (EC) No 773/96 of 26 April 1996 laying down special measures derogating from Regulations (EEC) No 3665/87, (EEC) No 3719/88 and (EEC) No 1964/82 in the beef and veal sector has disclosed no factor capable of affecting their validity.

(1) - OJ 1996 L 78, p. 47; bovine spongiform encephalopathy is generally referred to as `BSE'.

(2) - Cases C-157/96 and C-180/96 [1998] ECR I-0000 and I-0000.

(3) - OJ, English Special Edition, First Series 1968 (I), p. 187, as amended most recently prior to the imposition of the export ban by Commission Regulation (EC) No 2417/95, OJ 1995 L 248, p. 39.

(4) - OJ 1980 L 62, p. 5, as last amended prior to the imposition of the export ban by Council Regulation (EEC) No 2026/83, OJ 1983 L 199, p. 12.

(5) - OJ 1987 L 351, p. 1, as amended on numerous occasions; for the most recent amendment before the facts giving rise to the present proceedings, see Commission Regulation (EC) No 1384/95, OJ 1995 L 134, p. 14.

(6) - OJ 1996 L 104, p. 19.

(7) - Case C-180/96, cited in footnote 2 above.

(8) - Case C-299/94 Anglo Irish Beef Processors International v MAFF [1996] ECR I-1925, hereinafter `Anglo Irish Beef Processors'.

(9) - Though the embargo had been implemented in Community law, the Court expressly held that the Community measure was not material to the failure of the beef to reach Iraq; ibid., paragraph 35.

(10) - Ibid., paragraph 13.

(11) - Paragraphs 21 and 23.

(12) - Loc. cit., paragraph 16.

(13) - Loc. cit., paragraph 6.

(14) - Opinion, paragraph 5, [1996] ECR I-1925, at I-1930.

(15) - This mistaken view of Article 5 of Regulation No 3665/87 was repeated expressis verbis at the hearing.

(16) - Case C-12/92 Criminal Proceedings against Huygen and Others [1993] ECR I-6381.

(17) - Case C-334/93 Bonapharma [1995] ECR I-319.

(18) - Case C-12/92, cited in footnote 16 above, paragraph 30.

(19) - Case C-109/95 Astir v Greek State [1997] ECR I-1385. See also Case C-321/91 Tara Meat Packers [1993] ECR I-2811.

(20) - Paragraph 2 of the present Opinion.

(21) - Case C-183/95 Affish v Rijksdienst voor de Keuring van Vee en Vlees [1997] ECR I-4315, paragraph 42.

(22) - Case C-180/96 United Kingdom v Commission, cited in footnote 2 above, paragraph 106.

(23) - OJ 1990 L 224, p. 29, as amended, notably by Directive 92/118/EEC of 17 December 1992, OJ 1993 L 62, p. 49.

(24) - The legislative framework of protective measures against BSE is set out in the introductory sections of the judgments in National Farmers' Union and Others and United Kingdom v Commission, cited in footnote 2 above.

(25) - Cases C-157/96 and C-180/96, cited in footnote 2 above.