SGS Belgium NV v Belgisch Interventie- en Restitutiebureau, Firme Derwa NV, Centraal Beheer Achmea NV and Firme Derwa NV, Centraal Beheer Achmea NV v SGS Belgium NV and Belgisch Interventie- en Restitutiebureau.
Date: 2010-03-18
38. The Court has consistently held that the system of differentiated export refunds is intended to gain and maintain access for Community exports to the markets of the non‑member countries concerned and the differentiation in the refund is based on the desire to take account of the particular characteristics of each import market in which the Community wishes to play a part (see C‑347/93 Boterlux  [1994] ECR I‑3933, paragraph 18 and the case‑law cited).
39. It is clear from that case-law that, if it sufficed, in order to qualify for payment of the refund, for the goods exported in the unaltered state simply to be unloaded in the non-member country, the raison d'être  of the differentiated system would be disregarded (see, to that effect, Boterlux , paragraph 19).
40. That is why the first paragraph of Article 5(1) of Regulation No 3665/87 provides that payment of the refund is to be conditional not only on the product having left the customs territory of the European Union but also on its having been imported into an non‑member country. In that regard, Article 17(3) of that regulation states that a product is to be considered to have been imported when it has been cleared through customs for release for consumption in the non‑member country concerned.
42. Thus, as regards a differentiated refund, Article 20(1) and (2) of Regulation No 3665/87 provides for payment of the basic refund, calculated according to the lowest rate of the refund applicable on the day of export, as soon as the exporter has provided proof that the product has left the customs territory of the Community. Payment of the differentiated part of the refund is itself subject to the additional conditions set out in Articles 17 and 18 of that regulation. The exporter must prove, within 12 months following the date of acceptance of the export declaration, that the product has been imported into the non‑member country or one of the non‑member countries for which the refund is prescribed by providing proof that the product has been cleared through customs for release for consumption in that country (see Case C-77/08 Dachsberger & Söhne  [2009] ECR I‑0000, paragraph 28).
43. However, by way of derogation, Article 5(3) of Regulation No 3665/87 provides that the payment of a refund is none the less assured if the product, after leaving the customs territory of the Community, has perished in transit as a result of force majeure , so that it was not able to be released for consumption in the non‑member country of import.
44. It follows from settled case-law that the concept of force majeure must be understood, in general, in the sense of abnormal and unforeseeable circumstances, outside the control of the party relying thereupon, the consequences of which, in spite of the exercise of all due care, could not have been avoided (see, inter alia, Case 145/85 Denkavit België  [1987] ECR 565, paragraph 11, and Case C‑377/03 Commission  v Belgium  [2006] ECR I‑9733, paragraph 95).
45. As to the provisions of Regulation No 3665/87 concerning force majeure , it is also settled case-law that, since that concept does not have the same scope in the various spheres of application of European Union law, its meaning must be determined by reference to the legal context in which it is to operate (see, in particular, Case C‑12/92 Huygen and Others  [1993] ECR I‑6381, paragraph 30, and Case C‑263/97 First City Trading and Others  [1998] ECR I‑5537, paragraph 41).
46. In that regard, it must be pointed out that Article 5(3) of Regulation No 3665/87 constitutes an exception to the normal export refund procedure and, consequently, that provision must be interpreted strictly. Since the existence of force majeure is an essential condition of being able to claim payment of refunds for exported goods which have not been released for consumption in the non‑member country of import, it follows that that term must be interpreted in such a way that the number of cases capable of benefiting from such payment remains limited (see, by analogy, Case C‑38/07 P Heuschen & Schrouff Oriëntal Foods Trading  v Commission  [2008] ECR I‑8599, paragraph 60).