Eurofit SA v Bureau d'intervention et de restitution belge (BIRB).
Date: 2013-07-18
31. As a preliminary point, it should be noted that, according to the Court’s settled case-law, the concept of force majeure must be understood as referring to unusual and unforeseeable circumstances which were beyond the control of the party by whom it is pleaded and the consequences of which could not have been avoided even if all due care had been exercised (Case 145/85 Denkavit België [1987] ECR 565, paragraph 11; Case C‑377/03 Commission  v Belgium  [2006] ECR I‑9733, paragraph 95; and Case C‑218/09 SGS Belgium and Others [2010] ECR I‑2373, paragraph 44).
32. Since the concept of force majeure  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, inter alia, Case C‑12/92 Huygen and Others  [1993] ECR I‑6381, paragraph 30; Case C‑124/92 An Bord Bainne Co-operative and Compagnie Inter-Agra [1993] ECR I‑5061, paragraph 10; and SGS Belgium and Others , paragraph 45).
34. Those provisions are intended to specify and to limit the effects of force majeure with regard to export refunds (see, to that effect, Case C‑263/97 First City Trading and Others  [1998] ECR I‑5537, paragraph 41).
35. First, as regards the first subparagraph of Article 5(1) of Regulation No 3665/87, the payment of the refund is 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 (see, to that effect, First City Trading and Others , paragraph 27, and SGS Belgium and Others , paragraph 40). The EU rules, in force at the date of the facts in the main proceedings, provide for the granting of export refunds on the sole basis of objective criteria, in particular as to the quantity, nature and characteristics of the product exported, and its geographical destination (Case C‑210/00 Käserei Champignon Hofmeister  [2002] ECR I‑6453, paragraph 40).
36. 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 Union, 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 ( SGS Belgium and Others , paragraph 43).
37. In so far as Article 5(3) of that regulation constitutes an exception to the normal export refund procedure, it 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 ( SGS Belgium and Others , paragraph 46, and, by analogy, Case C‑38/07 P Heuschen & Schrouff Oriëntal Foods Trading  v Commission  [2008] ECR I‑8599, paragraph 60).
38. Secondly, as regards Article 11 of Regulation No 3665/87, it follows from the first and second recitals to Regulation No 2945/94 that, in the light of experience, measures to combat irregularities and notably fraud prejudicial to the Union budget should be intensified and provision should, therefore, be made for the recovery of amounts unduly paid and the sanctions, the subjective aspect of the fault committed having no impact in that regard (see, to that effect, Käserei Champignon Hofmeister , paragraphs 40 and 60). Thus, Article 11 of that regulation makes the exporter responsible, subject to sanctions, for the accuracy of the declaration, taking precise account of the exporter’s role as the last participant in the chain of production, processing and export of agricultural products (see, to that effect, Käserei Champignon Hofmeister , paragraph 62 and 81).
40. Therefore, it is only the level of the sanction which increases if there is an intentional act and the sanction provided for in the first subparagraph of Article 11(1) under (a) is applicable even if the exporter has not committed any fault. In the latter case, the sanction provided for in the first subparagraph of Article 11(1) is applicable, except in the cases listed exhaustively in the third subparagraph of Article 11(1) (Case C‑143/07 AOB Reuter  [2008] ECR I‑3171, paragraph 17).
42. However, it must be pointed out that those provisions release exporters only from the payment of the sanctions, but not from the reimbursement of the refunds paid in advance (see, to that effect, First City Trading and Others , paragraph 46).
43. In this regard, the Court has held that it is not possible to add a new exception, based in particular on the absence of fault on the part of the exporter, to the exhaustive list contained in the third subparagraph of Article 11(1) of Regulation No 3665/87. Even if the fault or error committed by the contracting partner is apt to constitute a circumstance beyond the control of the exporter, they are none the less an ordinary commercial risk and cannot be considered to be unforeseeable in the context of commercial transactions. The exporter is fully at liberty to select his trading partners and it is up to him to take the appropriate precautions, either by including the necessary clauses in the contracts which he concludes with them or by effecting appropriate insurance (see, to that effect, Case C‑210/00 Käserei Champignon Hofmeister , paragraph 80 and the case-law cited, and AOB Reuter , paragraph 36).
48. That conclusion cannot be called in question by the judgment in De Haan . Firstly, the Court considered, at paragraph 32 of that judgment, that the demands of an investigation aimed at identifying and apprehending the persons who have carried out or are planning a fraud, or the accomplices of those persons, may justify a deliberate omission to inform the economic operator concerned about the investigation fully or at all. Secondly, the Court held, at paragraphs 53 and 54 of that judgment, that the demands of such an investigation are, in the absence of any deception or negligence on the part of the person liable and for reasons of equity, might constitute a special situation in the light of the legislation applicable to the facts in this case, namely Article 13(1) of Council Regulation (EEC) No 1430/79 of 2 July 1979 on the repayment or remission of import or export duties (OJ 1979 L 175, p. 1), as amended by Article 1(6) of Council Regulation (EEC) No 3069/86 of 7 October 1986 (OJ 1986 L 286, p. 1).