1 By an order of 4 November 1991, received at the Court on 11 December 1991, the High Court of Justice of England and Wales, Queen' s Bench Division, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Regulation (EEC) No 805/68 of the Council of 27 June 1968 on the common organization of the market in beef and veal (OJ, English Special Edition 1968 (I), p. 187), Regulation (EEC) No 885/68 of the Council of 28 June 1968 laying down general rules for granting export refunds on beef and veal and criteria for fixing the amount of such refunds (OJ, English Special Edition 1968 (I), p. 237), Council Regulation (EEC) No 565/80 of 4 March 1980 on the advance payment of export refunds in respect of agricultural products (OJ 1980 L 62, p. 5) and 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 (OJ 1987 L 351, p. 1).
2 This question was raised in the course of proceedings between Tara Meat Packers Limited ("TMP") and the Intervention Board for Agricultural Produce ("the Intervention Board") concerning the payment of export refunds to which TMP believes it is entitled.
3 It appears from the documents before the Court that TMP contracted in October 1988 to sell a consignment of beef and to ship it to Alexandria (Egypt). With a view to that sale, TMP received from the Intervention Board, prior to exportation and in accordance with the above regulations, advance payments calculated by reference to the rate of export refund applicable to the declared destination.
4 On 11 November 1988, while the vessel lay at anchor in the port of Alexandria, a fire broke out on board and destroyed the cargo.
5 After reimbursing the advance payments received and obtaining release of the security which it had deposited, TMP instituted proceedings against the Intervention Board before the English courts in which it claimed that the above regulations entitled it to the export refunds since, after leaving the Community' s customs territory for Egypt, the beef had been destroyed as a result of force majeure prior to arrival at its destination.
6 It was in the context of these proceedings that the High Court of Justice referred the following question to the Court for a preliminary ruling: "Are Council Regulation (EEC) No 805/68 of 27 June 1968, Council Regulation (EEC) No 885/68 of 28 June 1968, Council Regulation (EEC) No 565/80 of 4 March 1980 and Commission Regulation (EEC) No 3665/87 of 27 November 1987 to be interpreted as (a) entitling the applicant to an export refund (and, if so, at what rate or rates) or (b) having required the applicant to make reimbursement of advance payments already received or to forfeit its security in an equivalent amount, in the circumstances of this case where: ° prior to exportation of the products concerned the applicant received, pursuant to the said regulations, advance payments calculated by reference to the rate of export refund applicable to the declared destination of those products, namely Egypt; ° the applicant duly provided security in accordance with the said regulations; ° the products concerned left the customs area of the Community but perished in transit as a result of force majeure?"
7 Reference is made to the Report for the Hearing for a fuller account of the facts and relevant legislation in the main proceedings, the course of the proceedings and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.
8 The features of the system of advance payments of export refunds relevant to the main proceedings in the present case are as follows.
9 Under Regulations No 805/68, No 885/68 and No 565/80, Member States are authorized to pay, in full or in part, refunds prior to the export of beef or veal, subject to the lodgment of a security guaranteeing reimbursement of the amount paid if it should transpire that the trader in question is not entitled to the refund.
10 Regulation No 3665/87 lays down the common detailed rules for the application of the system of export refunds on, inter alia, beef and veal. Articles 16 and 17 of that regulation provide that where the rate of refund varies according to the destination of the product in question payment of the refund is to be dependent upon proof that the product was imported in the unaltered state into the non-member country of destination. In the case of a refund which varies according to destination, Article 5(3) states that if the product, after leaving the customs territory of the Community, has perished in transit as a result of force majeure, only part of the refund, as specified in Article 20, is to be payable.
11 Article 20 provides that, by way of derogation from Article 16 and without prejudice to the provisions of Article 5, a part of the refund is to be paid upon proof being furnished that the product has left the customs territory of the Community. In the case of exports for which a compulsory destination has been specified, this part of the refund is calculated at the lowest rate applicable on the date of acceptance of the export declaration, provided that for the products concerned this rate applies to all non-member countries.
12 It is not disputed that at the time of the facts in the main proceedings Commission Regulation (EEC) No 2978/88 of 28 September 1988 fixing the export refunds on beef and veal (OJ 1988 L 269, p. 37) fixed various rates of refund only for certain non-member countries, while no rate was fixed for others.
13 In that connection the provisions of Article 20, which are justified, according to the fourteenth recital in the preamble, by the concern that exports of products attracting a differentiated refund should be put on an equal footing with other exports, allow part of the refund to be paid even before, under the normal rules, proof has been furnished that the goods have actually reached their declared destination.
14 As a corollary of allowing advance payment of part of the refund, Article 20(2) provides, as a precautionary measure designed to ensure that the goods reach their declared destination, that the payment may not exceed the amount of refund calculated at the lowest rate provided for, this being the minimum payment irrespective of the country of actual final destination.
15 It follows that such a system is not applicable in circumstances such as those in the main proceedings where refund rates were not fixed for all destinations.
16 This conclusion is inescapable, even if it is accepted, as TMP argues, that the fact that no rate was fixed is equivalent to the fixing of a zero rate. In such a case, the rate applicable in any event to all countries of export would be the zero rate and traders would consequently not be entitled to any advance payment under Article 20.
17 With regard to the fact that the goods perished in transit as a result of force majeure, it must be pointed out that, in the case of a differentiated refund, Article 5(3) of Regulation No 3665/87 allows payment only of part of the refund, as specified in Article 20.
18 It follows that, in circumstances such as those in the main proceedings, the taking into account of a case of force majeure cannot have any bearing on the payment of a differentiated refund.
19 It follows from all the foregoing that the reply to the question referred by the High Court of Justice must be that Regulation (EEC) No 805/68 of the Council of 27 June 1968 on the common organization of the market in beef and veal, Regulation (EEC) No 885/68 of the Council of 28 June 1968 laying down general rules for granting export refunds on beef and veal and criteria for fixing the amount of such refunds, Council Regulation (EEC) No 565/80 of 4 March 1980 on the advance payment of export refunds in respect of agricultural products and 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 must be interpreted as meaning that, not having fixed a rate valid for all non-member countries for the products concerned, they do not entitle a trader to a differentiated refund for exports of beef to a non-member country in a case where the goods exported were destroyed as a result of force majeure after leaving the customs territory of the Community and prior to importation in the unaltered state into the non-member country of destination.