Opinion of Mr Advocate General Capotorti

Mr President,

Members of the Court,

1. In 1975 the Union Française de Céréales dispatched a consignment of common wheat from Germany to Great Britain after obtaining the advance fixing of the accession compensatory amount, that is the special compensatory amount provided for in Article 55 (1) of the Act concerning the conditions of accession and the adjustments to the Treaties, and subsequently governed by Regulation No 229/73 of the Council of 31 January 1973 and by Regulation No 269/73 of the Commission of the same date. However, the ship which was transporting the goods sank and thus the exporting undertaking was unable to furnish the proof required in Article 5 (2) of the said Regulation No 269/73 that the import formalities had been completed in the country of destination and that the duties and taxes had been paid. In the absence of such proof the German customs authorities refused to pay the accession compensatory amount.

2. In order to verify the presence of the conditions necessary for the application by analogy suggested by the court making the reference an outline must be given of the provisions on which the two systems of aid in question are based.

3. In my view the basic function of the system of accession compensatory amounts, with regard to exports from the original Member Sute to the new Member Sutes, is in substance identical to that of refunds on exports to third countries; in both cases it was intended to overcome, through the grant of aids to exporters, the obstacle to exports constituted by the higher level of prices in the Community area (in the original Community area, in the first case) compared with prices in the country of destination. On the other hand, with regard to imports into the original Member States of agricultural products coming from the new Member States, the accession compensatory amount performs a function reminiscent of that of the levy or customs duty in respect of products imported from third countries. This is the reason for the reference made by Article 4 (2) of the said Regulation No 269/73 to the system of customs duties and levies as far as it concerns the relevant day for the purpose of fixing the rate of the accession compensatory amount where such amount is to be levied on imported goods. However, this aspea of the system of compensatory amounts in question falls outside the scope of my examination, not only because it is irrelevant to the matter in hand but above all because the problem of the relevance of the circumstance of force majeure can arise only in connexion with compensatory amounts paid on exports from an original Member Sute to a new Member Sute. Indeed, that problem cannot in any event concern the compensatory amounts applied to products from new Member States imported into one of the original Member States of the Community, for the simple reason that such amounts are levied when customs clearance is completed in the importing Sute and accordingly could not be levied if the goods perished or disappeared before being imported.

4. It thus seems to me beyond dispute that in maners of substance as well as of procedure the two systems under consideration display noteworthy similarities. Nevertheless the Commission has advanced certain objections to the argument based on those similarities; such objections must be considered.

5. Nevertheless, I consider that it is sufficient to find that on a comparison of the two Community systems of subsidies for exports in question the similarities exceed the differences. If this is the case the frequently-mentioned provision contained in Article 6 of Regulation No 192/75 of the Commission can and should be applied by analogy in the context of the arrangements governing accession compensatory amounts in order to fill the lacuna constituted by the omission of provision for cases of the fortuitious destruction of goods.

6. I think, then, that the first question submitted by the German court should receive an affirmative reply. It remains to consider, in order to reply to the second preliminary question, what criterion is applicable in determining the rate of the compensatory amount to be paid to the exporter whose goods have perished in transit in circumstances of force majeure.

7. On the basis of the considerations which I have set out above I conclude by suggesting that the Court of Justice should give the following reply to the preliminary questions submitted by the Finanzgericht Hamburg by its order of 14 December 1977:

1 Translated from the Italian.