JUDGMENT OF 11. 7. 1978 — CASE 6/78 UNION FRANÇAISE DE CÉRÉALES v HAUPTZOLLAMT HAMBURG-JONAS

In Case 6/78 REFERENCE to the Court under Article 177 of the EEC Treaty by the Finanzgericht (Finance Court) Hamburg, for a preliminary ruling in the action pending before that court between

THE COURT composed of: H. Kutscher, President, M. Sørensen and G. Bosco (Presidents of Chambers), A. M. Donner, J. Mertens de Wilmars, P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe and A. Touffait, Judges, Advocate General: F. Capotorti Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure

II — Submissions and arguments of the parties

III — Oral procedure

Decision

Costs

I —. Facts and procedure

1. Article 55 (I) of the Act concerning the conditions of accession and the adjustments to the Treaties (Official Journal, English Special Edition of 27 March 1972) provides that during the transitional period, in trade between the new Member States themselves and with the Community as originally constituted, compensatory amounts shall be levied by the importing State or granted by the exporting State, in order to compensate the differences in price levels between the Community as originally constituted and the new Member States.

2. In the field of expon refunds, Article 6 (1) of Regulation (EEC) No 192/75 of the Commission of 17 January 1975 laying down detailed rules for the application of export refunds in respect of agricultural products (Official Journal L 25 of 31 January 1975, p. 1), provides that:

3. In 1975 the Union Française de Céréales (hereinafter referred to as U.F.C.), the plaintiff in the main action, exported wheat from the Federal Republic of Germany to the United Kingdom. The ship carrying the wheat sank in the North Sea. U.F.C. then applied to the defendant in the main action for the payment of accession compensatory amounts on the basis of the rate fixed in advance. The defendant refused to make the said payment because U.F.C. had not provided the proof of importation into the United Kingdom required by Article 5 (2) of Regulation No 269/73. U.F.C. brought an action against this refusal before the Finanzgericht (Finance Court) Hamburg.

4. By an order of 14 December 1977, the Finanzgericht stayed the proceedings and referred the following questions to the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty:

5. The order making the reference was registered at the Court on 11 January 1978.

II —. Submissions and arguments of the parties

1. (a) U.F.C. submits that the first question referred for a preliminary ruling should be answered in the affirmative.

1. (b) On the second question, U.F.C. points out first of all that the goods in question were sold, taking the compensatory amount into account, at a price corresponding to the level of prices on the British market (£74.25 less 1/2 % per 1016 kg, c.i.f. Leith). The insurance company with which U.F.C. had concluded a contraa in favour of the British purchaser paid the purchaser as compensation the c.i.f. price plus 2 % estimated profit.

2. The Commission emphasizes that Article 5 of Regulation No 269/73 governs only the way in which the plaintiff in the main action must prove a right when the law treats him as having such a right. As to whether a right could be granted in this case, that issue can be resolved only through an analysis of the wording, the logic and the aim of all the provisions relating to accession compensatory amounts. If it could be granted, then there is need to consider whether and in what way an exception can be made to the requirements as to proof laid down in Article 5 (2) of Regulauon No 269/73.

III —. Oral procedure

1. At the hearing on 30 May 1978, U.F.C, represented by B. Festge and F. Modest, and the Commission, represented by its Legal Adviser, P. Kalbe, acting as Agent, submitted their oral observations.

2. U.F.C. stated in answer to a question asked by the Court that it was possible to insure against the loss of monetary compensatory amounts. However, exporters did not take out such insurance: if they passed the cost of it on in their selling prices, the products would no longer be competitive with those from third countries; and profit margins were too small for the cost to be borne by the exporters themselves.

3. The Advocate General delivered his opinion at the hearing on 21 June 1978.

1. By an order of 14 December 1977 which was received at the Court on 11 January 1978, the Finanzgericht Hamburg submitted two questions under Article 177 of the EEC Treaty concerning the interpretation of Article 5 (2) of Regulation No 269/73 of the Commission of 31 January 1973 laying down detailed rules for the application of the system of accession compensatory amounts (Official Journal L 30, p. 73).

2. Those questions are submitted in connexion with a dispute between, on the one hand, an undertaking which exported from the Federal Republic of Germany a cargo of wheat which failed to reach its destination in the United Kingdom because the ship sank in the North Sea and, on the other hand, the German customs authorities.

3. Title II, Chapter 1, of Part Four of the Act concerning the conditions of accession of the three new Member States (Official Journal, English Special Edition of 27 March 1972; Journal Officiel of 27 March 1972, L 73, p. 26) laid down detailed rules for the alignment of prices of agricultural products in the new Member States with prices fixed within the framework of the common agricultural policy.

4. It is common ground that if the exporter were refused the grant of accession compensatory amounts in circumstances such as those in the present case, after goods have perished in transit as a result of force majeure, he would suffer a real loss, as the insurance taken out in favour of the purchaser pursuant to the c.i.f. clause would cover only the value of the goods in terms of the prices prevailing in the importing country, and not in terms of the higher common prices prevailing in the exporting country.

5. As regards the level of the accession compensatory amounts to be granted in the case under consideration, it follows from the objectives of the system of those amounts, in particular the achievement of Community preference, that the exporter must be able to claim the same amounts as would have been due to him if the goods had reached their destination and if impon formalities had been completed there.

6. Thus the answer to the questions submitted should be that Article 5 (2) of Regulation No 269/73 is to be interpreted as meaning that where goods exported from an old Member State to a new Member State have perished in transit as a result of force majeure, the exporter is entitled to the same compensatory amounts as would have been due to him if the goods had reached their destination and if import formalities had been completed there.

7. The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable.

On those grounds, THE COURT in answer to the questions submitted to it by the Finanzgericht Hamburg by an order of 14 December 1977, hereby rules: