Judgment of the Court Gulmann delivered on 19 January 1993

1 Original language: Danish.

2 TMP, which was insured against loss of the refund, received payment of an insurance sum corresponding to the full amount of the refund and the insurers have assumed TMP's rights in the proceedings pending. Ireland, which submitted observations in the case, has pointed out that the Irish company Tara Meats (Kilbeggan) Ltd was transporting beef on the same vessel as the English company and that proceedings are pending before the Irish High Court in which the circumstances of fact and law are essentially the same as those in the present case. The Irish High Court has stayed the proceedings brought by the Irish company until the Court of Justice has delivered its ruling in the present case.

3 OJ, English Special Edition 1968 (I), p. 187.

4 OJ, English Special Edition 1968 (I), p. 237.

5 OJ 1980 L 62, p. 5.

6 OJ 1987 L 351, p. 1.

7 See Regulation No 2978/88 fixing the export refunds on beef and veal (OJ 1988 L 269, p. 37).

8 This view is supported by the twenty-fourth recital in the preamble to the Commission's implementing regulation, which states that: ... reimbursement of the amount paid in advance of export must be made if there proves to be no right to the export refund or if there was a right to a smaller refund;... the reimbursement must include an additional amount to avoid abuses; ... in cases of force majeure, the additional amount is not reimbursed.

9 This result is confirmed by Article 21(3) of the regulation, in conjunction with Article 21(4), which contains an express rule on force majeure. The proviso applies to situations in which a product is delivered, as a result of force majeure, to a destination other than that intended, and means that the exporter is entitled to the differentiated refund applicable to the altered destination.

10 See, inter alia, the judgments in Joined Cases C-90/90 and C-91/90 Neu and Others v Secrétaire d'Etat à l'Agriculture et à la Viticulture [1991] ECR I-3617 and in Case C-314/89 Rauh v Hauptzollamt Nümberg-Fürth [1991] ECR I-1647, at paragraph 17.

11 Judgment of the Court in Case 89/83 Hauptzollamt Hamburg-Jonas v Dimex Nahrungsmittel lm-und Export GmbH&Co. KG [1984] ECR 2815, at paragraph 8 of which it ruled that:... the system of variable expon refunds is intended to gain and maintain access for Community exports to the markets of the nonmember countries concerned and the variation in the refund is based on the desire to take account of the particular characteristics of each import market in which the Community wishes to play a part.

12 There is thus cogency in the arguments put forward by Advocate General Capotorti in his Opinion in the Union Française case (cited below at point 22) where he reached the conclusion that there was, in a similar situation, no basis for requiring that the condition of importation must be satisfied. Advocate General Capotorti stated inter alia that: ... proof of completion of customs formalities in the country of destination serves to counter the danger that the goods will be redirected to countries where the rate of the refund or compensatory amount is lower (and thus the further danger of reimportation into the territory where the goods originated). If, however, the goods have perished in transit there is no risk of such abuse. Accordingly if, in exceptional circumstances such as the sinking of the vessel transporting the goods, the exporter is able to prove that he sold the goods to a purchaser in the country given as the country of destination and that the goods were duly dispatched, it does not appear to me reasonable to apply at the expense of the exporter a rule having a preventive purpose, pursuit of which is rendered pointless by the circumstances of the specific case. Indeed, it is clear that exceptional circumstances are not amenable to regulation on the basis of criteria established for normal situations and conversely that the application of derogative provisions, such as those governing cases of force majeure, to exceptional situations does not hamper or disturb the normal operation of the system. It should, however, be noted that Advocate General Capotorti was examining the significance of the condition of importation from the point of view that its sole function was to provide protection against abuse.

13 [1978] ECR 1675.

14 [1988] ECR 1979.