Opinion of Advocate General Gulmann delivered on 24 March 1994

1 Original language: Danish.

2 Regulation No 1041/67/EEC of the Commission of 21 December 1967 on detailed rules for the application of export refunds on products subject to a single price system (OJ, English Special Edition 1967. p. 323).

3 Regulation (EEC) No 876/68 of the Council of 28 June 1968 laying down general rules for granting export refunds on milk and milk products and criteria for fixing the amount of such refunds (OJ, English Special Edition 1968(1). p. 234).

4 Journal Officiel 1964 34, p. 549 in conjunction in particular with Regulation No 165/64 on refunds applicable to the export of certain dairy products to third countries Ųoiirnal Officiel 1964 173, p. 2744.

5 OJ, English Special Edition 1968(1), p. 176.

6 Case 6/71 Rheinmühlen v Einfuhr- und Vorratsstelle Getreide [1971] ECR 823. The rules at issue in that case were in Regulation No 19 on the progressive establishment of a common organization of the market in cereals {journal Offidel 1962, p. 933). See also Case 250/80 Anklagemyndigheder v Schumacher, Töpfer and Others [1981] ECR 2465 concerning accession compensatory amounts in which it was held that Since in such circumstances [that is where the goods were in the country of importation solely for the purpose of completion of customs formalities] the objective of offsetting prices has not been attained, an essential condition for application of an accession compensatory amount has not been fulfilled (paragraph 16). In Case 254/85 Irish Grain Board v Minister for Agriculture [1986] ECR 3309, concerning monetary compensatory amounts, it was held that since the purpose of the compensatory amounts was to counteract currency instability, it followed that the monetary compensatory amount granted on importation cannot fulfil its function unless the imported product actually enters the importing Member State for home use (paragraph 11). The Court's reasoning in those cases can be transposed without difficulty to the field of export refunds.

7 The proof required in connection with differentiated refunds is, under Article 6(2) of Regulation No 876/68 that the product has reached the destination for which the refund was fixed.

8 That was most recently confirmed by the Court with regard to differentiated refunds in Case C-27/92 Mölltnann-Fleiscb-GmbH [1993] ECRI-1701, in which it was held that the customs certificate was not sufficient evidence of importation into a nonmember country in so far as doubts arose whether the goods had gained actual access to the market.

9 See Case 125/75 Milch-, Fett- und Eier-Kontor GmbH [1976] ECR 771.

10 Boterlux has pointed out that on the occasion of the import into Italy the Italian authorities demanded the import duties applying to third country goods. However that fact cannot alter the interpretation of the rules on export refunds which underlies my proposed answer to the national court's question. Any problems that may arise as a result of the levy of import duties must be resolved independently of these proceedings.

11 Case 125/75 Milch-, Fett- und Eier-Kontor v Hauptzollamt Hamburg-Jonas [1976] ECR 771.

12 Case 6/71 Rheinmühlen v Einfuhr- und Vorratsstelle für Getreide [1971] ECR 823.

13 Case 250/80 Anklagemyndigheden v Topfer [1981] ECR 2465 and Case 254/85 Irish Grain Board v Minister for Agriculture [1986] ECR 3309.

14 As pointed out in the observations submitted by Boterlux, this is presumably a reference to Case 4/68 Schwarzwaldmilch v Einfuhr-und Vorratsstelle [1963] ECR 377.

15 In Case 254/85 Irish Grain Board, cited above, the Court held: The provisions of Community law governing the payment of monetary compensatory amounts ... must de interpreted as meaning that the exporting Member State which has to pay the monetary compensatory amounts that must be granted by the importing Member State is entitled to refuse payment where the product in question has not entered the importing Member State for home use owing to fraud on the part of the purchasers of the said product, even where the customs formalities have been completed, appropriate T 5 forms have been issued and the exporter or person concerned within the meaning of the regulations in question at all times acted in good faith in relation to the said transaction. As stated above, I consider that that case-law may be transposed to export refunds.

16 See in this respect my Opinion in Case C-12/92 Criminal Proceedings against Huygen [1993] ECR I-6381, point 26.

17 Case 109/86 Theodorakis v Greece [1987] ECR 4319.

18 See Case 109/86 Theodorakis [1987] ECR 4319 in which the Court held: Where the failure to export goods as planned is not attributable to any fault on the part of the holder of the export licence but is due solely to nonperformance by the other party to the sales contract under -which the goods were to be exported, it is clear that although such a hindrance to the performance of a contract may be described as a circumstance outside the control of the holder of the licence, it is none the less neither abnormal nor unforeseeable. Such an event is an ordinary commercial risk inherent in commercial transactions and it is for the holder of the licence, who is fully at liberty to select such trading partners as his interests in that respect may dictate, to take the appropriate precautions either by including the requisite clauses in the contract in question or by effecting appropriate insurance (paragraph 8).