61978J0006

1 . AGRICULTURE - TRADE BETWEEN NEW MEMBER STATES AND THE ORIGINAL COMMUNITY - ' ' ACCESSION ' ' COMPENSATORY AMOUNTS - PURPOSE - COMMUNITY PREFERENCE

( ACT OF ACCESSION , ART . 55 )

2 . AGRICULTURE - GOODS EXPORTED FROM ONE OF THE ORIGINAL MEMBER STATES TO A NEW MEMBER STATE - DESTRUCTION IN TRANSIT - FORCE MAJEURE - ' ' ACCESSION ' ' COMPENSATORY AMOUNTS - GRANT - EXPORTER ' S ENTITLEMENT - ANALOGY WITH THE RULE ON EXPORT REFUNDS

( REGULATION NO 269/73 OF THE COMMISSION , ART . 5 ( 2 ); REGULATION NO 192/75 OF THE COMMISSION , ART . 6 ( 1 ))

1 . THE TEMPORARY SYSTEM OF ' ' ACCESSION ' ' COMPENSATORY AMOUNTS WAS INTENDED INTER ALIA TO ENSURE THAT THE PRINCIPLE OF COMMUNITY PREFERENCE WAS OBSERVED IN TRADE BETWEEN THE COMMUNITY AS ORIGINALLY CONSTITUTED AND THE NEW MEMBER STATES BEFORE THE FULL AND COMPLETE INTEGRATION OF THE LATTER INTO THE COMMON ORGANIZATION OF AGRICULTURAL PRODUCTS .

2 . BY ANALOGY WITH ARTICLE 6 ( 1 ) OF REGULATION NO 192/75 , ARTICLE 5 ( 2 ) OF REGULATION NO 269/73 OF THE COMMISSION IS TO BE INTERPRETED AS MEANING THAT WHERE GOODS EXPORTED FROM ONE OF THE ORIGINAL MEMBER STATES OF THE COMMUNITY 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 .

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

UNION FRANCAISE DE CEREALES , PARIS ,

AND

HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) HAMBURG-JONAS , HAMBURG ,

ON THE INTERPRETATION OF ARTICLE 5 ( 2 ) OF REGULATION ( EEC ) 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 OF 1 FEBRUARY 1973 , P . 73 ),

1BY 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 ).

2THOSE 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 .

THE LATTER REFUSED TO GRANT THE EXPORTING UNDERTAKING THE ' ' ACCESSION ' ' COMPENSATORY AMOUNTS WHICH IT CLAIMED , ON THE GROUND THAT IT HAD FAILED TO PROVIDE PROOF , AS REQUIRED BY ARTICLE 5 ( 2 ) OF REGULATION NO 269/73 , OF THE COMPLETION OF IMPORT FORMALITIES IN THE MEMBER STATE OF DESTINATION .

SINCE THAT REGULATION MAKES NO PROVISION FOR FORCE MAJEURE WITHIN THE FRAMEWORK OF THE SYSTEM OF ' ' ACCESSION ' ' COMPENSATORY AMOUNTS , THE QUESTIONS SUBMITTED BY THE FINANZGERICHT CONCERN THE POSSIBILITY OF , AND IF APPROPRIATE THE DETAILED RULES FOR , APPLYING BY ANALOGY THE PROVISIONS OF ARTICLE 6 ( 1 ) OF REGULATION 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 , P . 1 ) ACCORDING TO WHICH , WHEN SUCH A REFUND IS APPLIED FOR , THE PERSON CONCERNED IS EXEMPTED FROM PROVIDING PROOF OF IMPORTATION INTO A THIRD COUNTRY WHERE THE PRODUCT HAS PERISHED IN TRANSIT AS A RESULT OF FORCE MAJEURE .

3TITLE 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 .

IN ORDER TO COMPENSATE FOR SUCH DIFFERENCES IN PRICE LEVELS AS MAY HAVE CONTINUED TO EXIST DURING A TRANSITIONAL PERIOD EXPIRING NOT LATER THAN THE END OF 1977 , ARTICLE 55 OF THE ACT OF ACCESSION PROVIDED FOR THE LEVYING OR GRANTING OF COMPENSATORY AMOUNTS EQUAL TO THE DIFFERENCE BETWEEN THE PRICES FIXED FOR THE NEW MEMBER STATE CONCERNED AND THE COMMON PRICES .

THAT TEMPORARY ARRANGEMENT WAS DESIGNED TO FACILITATE THE TRANSITION OF THE NEW MEMBER STATES FROM THEIR PREVIOUS STATUS AS THIRD COUNTRIES IN RELATION TO THE COMMUNITY SYSTEM OF EXPORT REFUNDS TO THEIR NEW STATUS AS MEMBER STATES .

IT WAS INTENDED INTER ALIA TO ENSURE THAT THE PRINCIPLE OF COMMUNITY PREFERENCE WAS OBSERVED IN TRADE BETWEEN THE COMMUNITY AS ORIGINALLY CONSTITUTED AND THE NEW MEMBER STATES BEFORE THE FULL AND COMPLETE INTEGRATION OF THE LATTER INTO THE COMMON ORGANIZATION OF AGRICULTURAL PRODUCTS .

4IT 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 .

IF IT WERE ACCEPTED THAT THE EXPORTER HAD TO BEAR THAT LOSS , OR THAT HE HAD TO INSURE HIMSELF AGAINST THAT RISK , HE WOULD BE IN AN UNFAVOURABLE COMPETITIVE SITUATION IN RELATION TO A SELLER IN A THIRD COUNTRY .

SUCH A RESULT WOULD BE INCOMPATIBLE WITH THE PRINCIPLE OF COMMUNITY PREFERENCE , WHICH THE ACT OF ACCESSION WAS INTENDED TO PROMOTE .

THEREFORE THERE IS AN OMISSION IN REGULATION NO 269/73 IN THAT IT DOES NOT PROVIDE FOR THE GRANTING OF ' ' ACCESSION ' ' COMPENSATORY AMOUNTS IN CASES OF FORCE MAJEURE , AND THIS OMISSION SHOULD BE MADE GOOD BY APPLYING ARTICLE 6 ( 1 ) OF REGULATION NO 192/75 BY ANALOGY .

SUCH AN APPLICATION BY ANALOGY IS ALSO JUSTIFIED BY THE NUMEROUS PARALLELS WHICH EXIST BETWEEN THE DETAILED RULES FOR THE APPLICATION OF EXPORT REFUNDS , ON THE ONE HAND , AND OF ' ' ACCESSION ' ' COMPENSATORY AMOUNTS , ON THE OTHER .

5AS 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 IMPORT FORMALITIES HAD BEEN COMPLETED THERE .

6THUS 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 .

COSTS

7THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .

AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

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 :

ARTICLE 5 ( 2 ) OF REGULATION NO 269/73 OF THE COMMISSION OF 31 JANUARY 1973 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 .