Opinion of mr Advocate General

Mr President,

Members of the Court,

1. The question on which the Court is called upon to deliver a preliminary ruling is concerned with the applicability of the exonerating effect of force majeure in the field of monetary compensatory amounts.

2. Regulation No 1380/75 of the Commission of 29 May 1975, which lays down detailed rules for the application of monetary compensatory amounts, provides in Article 11 (2) that payment of the monetary compensatory amount on importation is conditional on proof that the customs import formalities have been completed. That Regulation does not contemplate the case in which, although exportation has taken place (the customs export formalities having been completed and the product having left the geographical territory of the Member State from which the exportation took place: cf. Article 10 (1)), it has not been possible for importation to take place because the goods have perished in transit by reason of force majeure. It is, therefore, reasonable to inquire how a case of that kind is to be treated.

3. I believe that there cannot be said to exist, in Community law, any general principle which protects the interests of a person subject to a legal obligation by sheltering him from any detrimental consequence of its non-fulfilment by reason oí force majeure.

4. I now turn to consider the second of the three alternatives indicated above. It involves ascertaining whether there may be applied by analogy to monetary compensatory amounts the provision which, in regard to export refunds for agricultural products, states that the exporter may obtain payment without having to furnish proof of importation into the nonmember country of destination when the goods have perished in transit by reason of force majeure (Article 6 of the abovementioned Regulation No 192/75 of the Commission).

5. However, before agreeing that recourse should be made to analogy in the present case, it is necessary to take a further step and to examine the specific situations provided for in Regulations Nos 192/75 and 1380/75 with the object of checking whether, apart from being found in a general framework which has certain common objectives, they present, in addition, sufficient important similarities.

6. Further, it appears to me to be helpful to emphasize the similarity which exists, in regard to the detailed rules for their application, between the system of refunds and that of monetary compensatory amounts. Regulation No 1380/75 of the Commission, which is concerned with the system of compensatory amounts, in fact repeats a whole series of rules which characterize the system of export refunds, namely:

7. Finally, confirmation of the justification for applying by way of analogy the rules on force majeure is to be drawn in this case (as in the case of Union Française des Céréales, decided by the aforementioned judgment of 11 July 1978) from the principle of Community preference. In this regard, it is to be recalled that the Federal Republic of Germany and the United Kingdom have concluded an agreement, pursuant to Article 2a of Regulation No 974/71, according to which the authorities of the exporting State undertake to pay the compensatory amounts, including the amount arising on import. That being so, \f force majeure did not have a dispensing effect in the present case or in similar situations, the authorities of the exporting State would not pay the compensatory amounts on import; with the result that the seller — who, in accordance with commercial practice, had sold on a cif basis — would recover from his insurer only the price of the goods which had been calculated taking account of the additional revenue furnished by the compensatory amount on import. The seller would thus suffer a real loss, in order to avoid which he would in future have to take out an ad boc insurance. From this would flow an increase in costs and a corresponding rise in price. Quite different, however, is the situation of sellers in nonmember countries exporting to the Community. They insure their goods at world market prices, which are lower than those of the Community, and the lower cost of insurance is reflected in the level of prices quoted by them. Accordingly, it appears to me to be sensible to have recourse to analogy in order to avoid similar distortions in competition, detrimental to intra-Community trade.

8. For all the reasons which I have discussed, I conclude by suggesting to the Court that the question submitted by the Finanzgericht Hamburg by order of 20 February 1979 for a preliminary ruling should be answered as follows:

1 Translau-d from the Italian.