Anglo-Irish Beef Processors International and others v Minister for Agriculture, Food and Forestry.
Date: 1996-03-28
21. On that point, it should be noted that, as the Court of Justice emphasized in its judgment in  Hauptzollamt Hamburg-Jonas  v  Dimex  (Case 89/83 [1984] ECR 2815, paragraph 8), the 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, the reason for differentiated refunds being the desire to take account of the particular characteristics of each import market in which the Community wishes to play a part.
22. In paragraph 9 of  Dimex , the Court also observed that it would go against the purpose of the system of differentiated refunds, were it sufficient, in order to qualify for payment of the refund at a higher rate, for the goods simply to be unloaded, without reaching the market of the territory of destination.
23. 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 payment of the differentiated refund, as having been imported within the meaning of Article 5(1) of Regulation No 3665/87.
28. As regards the alleged breach of the principle of proportionality, it should be borne in mind that the purpose of the system of differentiated refunds is to gain or to maintain access for Community exports to the markets of the non-member countries concerned, the reason for differentiated refunds being the desire to take account of the particular characteristics of each import market in which the Community wishes to play a part (see the judgment in  Dimex , cited above, paragraph 8).  It is essential for that purpose that products in respect of which a subsidy is granted in the form of a refund actually reach their destination so that they can be marketed there.
29. It follows that forfeiture of a part of the security equal to the difference between the amount of the refund paid in advance and the amount of the refund actually due, without any penalty being imposed, is commensurate with the objective pursued by the legislature.
30. As regards the alleged breach of the principle of the protection of legitimate expectations, it should first of all be noted that Article 33(5) of Regulation No 3665/87 provides that where, as a result of  force majeure , the amount of the refund is smaller than the amount paid in advance, the security forfeited is to be equal to the difference between the amount of the refund advanced and that of the refund actually due.
31. Furthermore, Article 33(2)(b) of Regulation No 3665/87 provides that release in full of the security is to be subject to the production of proof that the products concerned confer entitlement to a refund equal to or higher than the amount determined in accordance with Article 29(3) of the regulation.
32. Moreover, as the Advocate General observed in point 7 of his Opinion, the fifth recital in the preamble to Regulation No 565/80 expressly states that a security is to be lodged in order to guarantee the reimbursement of a sum not less than the amount paid where it is subsequently established that there was no right to the export refund or that the products or goods were not actually exported from the Community within the time-limits laid down.
33. It follows that those provisions cannot give rise to any legitimate expectation other than entitlement to a refund subject to the conditions laid down.
39. Accordingly, the question of the validity of Regulation No 2340/90 bears no relation to the actual facts of the case or to the purpose of the action.  It is established case-law (see, most recently, Case C-415/93  Union Royale Belge des Sociétés de Football Association and Others  v  Bosman and Others  [1995] ECR I-0000, paragraph 61) that in such cases the Court cannot rule on the question submitted by the national court.  Consequently, there is no need to reply to the third question.