4.

I now turn to consider the second of the three alternatives indicated above. It involves ascertaining whether there may be applied by analogy to monetary compensatory amounts the provision which, in regard to export refunds for agricultural products, states that the exporter may obtain payment without having to furnish proof of importation into the nonmember country of destination when the goods have perished in transit by reason of force majeure (Article 6 of the abovementioned Regulation No 192/75 of the Commission). In various cases, this Court has considered the possibility of applying by analogy Community rules which prevent a failure to perform certain obligations towards the public administration by reason of force majeure from having prejudicial effects for the defaulting trader. In particular, the judgment of 24 June 1970 in Case 73/69 Oehlmann v Hauptzollamt Münister ([1970] ECR 467) opened the way in principle for this possibility whilst excluding its application in the case in question because of the considerable difference encountered between the two situations which were compared. Thereafter, the judgment of 20 February 1975 in Case 64/74 Reich v Hauptzollamt Landau ([1975] ECR 261) applied to the system of levies, by way of analogy, the provisions on force majeure contained in Article 8 (3) of Regulation No 87/62 of the Commission of 25 July 1962, holding that “the levy fixed in advance under Article 2 (1) and (2) of Regulation No 31/63 of the Council in respect of the importation of maize from a Member State continues to apply to such importation, even if it is not effected during the month indicated in the application for the licence, provided the delay which thus occurred is not due to the conduct of the importer or to circumstances that can normally be foreseen, but to force majeure, as referred to in Article 8 (3) of Regulation No 87/62”. Finally, more recently, the Court has had occasion to apply by way of analogy the provisions of Article 6 (1) of Regulation No 192/75 concerned with export refunds to the subject of “accession” compensatory amounts. The judgment of 11 July 1978 in Case 6/78 Union Française des Céréales v Hauptzollamt Hamburg-Jonas ([1978] ECR 1675) confirmed that Article 5 (2) of Regulation No 269/73 of the Commission, which makes payment of “accession” compensatory amounts subject to proof of completion of the import formalities, must be interpretd, by analogy with Article 6 (1) of Regulation No 192/75, as meaning that where goods exported from an original Member State to a new Member State had perished in transit as a result of force majeure the exporter was entitled to the same compensatory amounts as would have been due to him if the goods had reached their destination and if import formalities had been completed there. The Court reached this conclusion above all on the basis of the principle of Community preference, which had to be observed 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. It held that in the event of the goods perishing in transit as a result of force majeure, the exporter would suffer a genuine loss if the “accession” compensatory amounts were not paid to him, since the insurance taken out in favour of the purchaser pursuant to the cif contract 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. In order to ascertain whether there is any justification for resorting for a second time to Article 6 of Regulation No 192/75 by extending by analogy the exonerating effect of force majeure to the field of monetary compensatory amounts also, it appears to me to be appropriate to begin by comparing the respective purposes of export refunds, “accession” compensatory amount and monetary compensatory amounts. As I had occasion to note in my opinion delivered in the case just cited, Union Française des Céréales ([1978] ECR 1675, at p. 1687) refunds are intended to “cover the difference between quotations and prices for those products within the Community and on the world market” (cf. the first recital of the preamble to Regulation No 139/67 of the Council of 21 June 1967); in order to attain that goal it is thought necessary that “provision must be made for varying the amount of the refund according to the destination of the products, since markets in the countries of destination are at varying distances from Community markets and special conditions apply to imports in certain countries of destination” (cf. the fifth recital of the preamble to the aforementioned Regulation). In short, as Regulation No 87/75 of the Council of 13 January 1975 makes clear in its preamble, “the refund constitutes an instrument for permitting the continuation of exports of cereal products towards third countries”. So far as “accession” compensatory amounts are concerned, these were introduced by the Act concerning the Conditions of Accession and the Adjustments to the Treaties. Articles 51 and 52 of the Act allow the new Member States, during the transitional period, to have a level of prices for agricultural products which is different from that of the common prices. That difference in levels is corrected by means of a system of compensatory amounts which applies in trade between the new Member States and the Community as originally constituted. That mechanism, as the preamble to Regulation No 229/73 explains, has the purpose of ensuring that, despite the difference in price levels, the movement of goods takes place in a satisfactory manner. Monetary compensatory amounts, finally, came to be introduced as a remedy for the imbalances which have occurred in recent years between the currencies of the Member States. The Court is aware that, as from the time of the devaluation of the French franc in 1969, the exchange rates applied in the framework of the Common Agricultural Policy to the uniform prices fixed in national currency no longer correspond to the rates applied to national currencies on the exchange market. The system of monetary compensatory amounts, introduced by Regulation No 974/71, has the purpose of neutralizing the consequences for the agricultural policy of external monetary factors which reduce the degree of correspondence between the exchange rates used in the agricultural policy and the rates in force on the exchange market. In order to attain that goal, a monetary compensatory amount is fixed for the currency of each Member State in such a way as to compensate for the difference between the different exchange rates. The three mechanisms which I have briefly described therefore pursue technically different objectives; and yet, looking beyond those differences — which reflect the specific function of each one of them — they present one common, essential characteristic. All three in fact have the purpose of allowing the free movement of agricultural products (between the Community and third countries, between the original Member States and the new Member States, and between the Member States in general, respectively) by removing the obstacles linked to the differences between prices in force on the various markets expressed in national currency, these being obstacles which would adversely affect trade in those products and therefore jeopardize the working of the Common Agricultural Policy. The presence of this basic common feature is a primary reason for acknowledging the possibility of drawing an analogy, not only between the rules on export refunds and those on “accession” compensatory amounts (as the Court has already done), but also between the former rules and the system of monetary compensatory amounts. But there is more. If regard is had to the specific function of monetary compensatory amounts, a further ground may there be found for applying the exonerating effect of force majeure. It has been noted in fact that those amounts aim to protect intra-Community trade in agricultural products from currency fluctuations. But in cases such as that which we are considering, if the seller could not receive the monetary compensatory amount on importation, he would suffer, without any fault on his part, a loss directly linked, as effect is linked to cause, to currency fluctuations. On that view of matters then, the system of monetary compensatory amounts would not achieve the results for which it was introduced.