Court of Justice of the European Communities (including Court of First Instance Decisions)

Agriculture - Common organization of the markets - Export refunds - Variable refund - Conditions for granting - Product exported but destroyed, as a result of force majeure, before being imported into the country of destination - No entitlement to a refund unless a rate of refund valid for all non-member countries has been fixed
(Commission Regulation No 2730/79, Arts 10(4), 20 and 21)

Articles 10(4), 20 and 21 of Regulation No 2730/79 laying down common detailed rules for the application of the system of export refunds on agricultural products must be interpreted as meaning that a trader is not entitled to an export refund where the product concerned has perished in transit as a result of force majeure, after leaving the geographical territory of the Community, and where the same rate of refund has been fixed for all non-member countries, with the exception of one single country, for which no refund has been fixed. The fact that a rate of refund has not been fixed for one country must be treated as tantamount to a variation according to destination, with the consequence that payment of the refund may be made only if the product has been imported into a non-member country for which the refund is prescribed. While Article 21(1) of Regulation No 2730/79 does in this regard authorize payment of part of the refund once the product has left the geographical territory of the Community, that provision, according to Article 21(2), applies only where a refund has been fixed in respect of all non-member countries.

In Case C-109/95,
REFERENCE to the Court under Article 177 of the EC Treaty by the Polimeles Protodikio, Athens, for a preliminary ruling in the proceedings pending before that court between
Astir AE
and
the Greek State
on the interpretation of Articles 10(4), 20 and 21 of Commission Regulation (EEC) No 2730/79 of 29 November 1979 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1979 L 317, p. 1),
THE COURT
(Second Chamber),
composed of: G.F. Mancini, President of the Chamber, G. Hirsch (Rapporteur) and J.L. Murray, Judges,
Advocate General: M.B. Elmer,
Registrar: D. Louterman-Hubeau, Principal Administrator,
after considering the written observations submitted on behalf of:
- Astir AE, by Nikolaos Papazoïs, of the Athens Bar;
- the Greek Government, by Fokion Georgakopoulos, Deputy Legal Adviser to the State Legal Service, acting as Agent;
- the Commission of the European Communities, by Maria Condou-Durande and Klaus-Dieter Borchardt, of its Legal Service, acting as Agents,
having regard to the Report for the Hearing,
after hearing the oral observations of the Greek Government, represented by Fokion Georgakopoulos, and of the Commission, represented by Dimitrios Gouloussis, Legal Adviser, acting as Agent, and Klaus-Dieter Borchardt, at the hearing on 4 July 1996,
after hearing the Opinion of the Advocate General at the sitting on 8 October 1996,
gives the following
Judgment

1 By order of 29 March 1990, received at the Court on 3 April 1995, the Polimeles Protodikio (Court of First Instance consisting of several judges), Athens, referred for a preliminary ruling under Article 177 of the EC Treaty a question on the interpretation of Articles 10(4), 20 and 21 of Commission Regulation (EEC) No 2730/79 of 29 November 1979 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1979 L 317, p. 1).
2 That question arose in proceedings between the Greek insurance company Astir AE (hereinafter `Astir') and the Hellenic Republic concerning the payment of export refunds to which Astir considers that it is entitled following subrogation to the rights of a company which was insured with it.
3 In April 1981 the last-mentioned company sold to a company established in the Socialist Republic of Vietnam 1 900 tonnes of wheat flour, to be delivered by ship.
4 Following completion of customs formalities for the export of the goods, they perished in transit, after leaving Community territory, when the ship sank on 1 July 1983 close to the Egyptian coast.
5 Commission Regulation (EEC) No 229/81 of 29 January 1981 fixing the export refunds on cereals and on wheat or rye flour, groats and meal (OJ 1981 L 26, p. 40) fixed the refunds for wheat flour under tariff heading ex 11.01 A as follows:
- for exports to the USSR -
- for exports to other third countries 72.00 ECU/tonne.
6 Regulation No 2730/79, in force at the material time, laid down common detailed rules for the application of the system of export refunds on agricultural products. In that connection, Article 9 of that regulation sets out the general rule that, without prejudice to the provisions of Articles 10, 20 and 26, the refund is payable only upon proof being furnished that the product in respect of which customs export formalities have been completed has, amongst other things, left the geographical territory of the Community unaltered.
7 Article 10(1) of Regulation No 2730/79 provides that payment of the refund is also conditional - save where it has perished in transit as a result of force majeure - on the product's having been imported into a non-member country and, where appropriate, into a specific non-member country, where there is serious doubt as to the true destination of the product or where it is possible that the product may be reintroduced into the Community.
8 As regards loss of the product by reason of force majeure, Article 10(4) of Regulation No 2730/79 provides:
`If the product, after leaving the geographical territory of the Community, has perished in transit as a result of force majeure, the amount paid shall be:
- in the case of a refund which varies according to destination, the part thereof specified in Article 21,
- in the case of a refund which does not so vary, the total amount thereof.'
9 Article 20(1) of Regulation No 2730/79 states that, where the rate of refund varies according to destination, payment of the refund is, subject to the provisions of Article 21, to be made only if the product has been imported into a non-member country for which the refund is prescribed.
10 Article 21(1) and (2) of Regulation No 2730/79 provides:
`1. By way of derogation from Article 20 and without prejudice to the provisions of Article 10, a part of the refund as specified below shall be paid on proof being furnished that the product has left the geographical territory of the Community:
(a) in the case of exports where the refund has not been fixed in advance, that part equal to the amount of the refund as calculated on the basis of the lowest rate of refund applicable on the day on which customs export formalities were completed;
(b) ...
2. The provisions of paragraph 1 shall apply only where for a given product a refund has been fixed in respect of all non-member countries:
- in the cases specified in (a), on the day on which customs export formalities were completed,
... '.
11 After paying an insurance indemnity to the party insured with it and relying on the fact that it was thereby subrogated to the rights of that party, Astir requested that the competent Greek authorities pay to it the sum of DR 7 351 674 in respect of export refunds.
12 The Greek authorities turned down that request on the ground that Astir's claim had no basis in the provisions of Regulation No 2730/79.
13 Astir thereupon brought proceedings before the Polimeles Protodikio. It submits in particular that it follows from Article 10 of Regulation No 2730/79 that, if an exported product has perished in transit as a result of force majeure, after having left the geographical territory of the Community, a refund will always be payable.
14 Since it took the view that the dispute raised questions of the interpretation of Community law, the Polimeles Protodikio decided to stay proceedings and referred the following question to the Court:
`On a proper construction of Article 10(4) of Commission Regulation (EEC) No 2730/79, in conjunction with the provisions of Articles 20 and 21 thereof, is an exporter of an agricultural product, in this case wheat flour, entitled to a refund where the exported product, after leaving the geographical territory of the Community, has perished in transit as a result of force majeure and where for that product the same amount of refund was fixed for all non-member countries except the Soviet Union, for which, as regards the product mentioned above, no amount of refund was fixed?'
15 It must first be noted that under the general rule set out in the second indent of Article 9(1) and elaborated in the second indent of Article 10(4) of Regulation No 2730/79 a refund is to be granted where the product concerned has, as in the main proceedings in this case, left the geographical territory of the Community, on condition that a non-variable refund has been fixed.
16 It is therefore necessary to consider whether there is a variable refund, within the meaning of Regulation No 2730/79, where an identical rate of refund has been fixed for all non-member countries, with the exception of one single country, for which no rate has been fixed.
17 According to Astir, there is a variable refund only if different rates have been fixed for several countries. Where, as in this case, no rate has been fixed, there is no variation of the rate of refund according to destination, but rather a derogation from the right to a refund for certain destinations. That derogation is not applicable where the product has perished as a result of force majeure, with the result that the refund valid for all countries must be paid.
18 That argument cannot be accepted.
19 The fact that a rate of refund has not been fixed for one non-member country must be treated as tantamount to a variation according to destination. As the Advocate General notes at points 13 and 14 of his Opinion, the rules on entitlement to variable refunds stemmed from a concern to prevent abuse. If there is not an identical rate of refund for all non-member countries, there is a consequent risk that the product may in fact be re-exported to a country other than the one indicated by the exporter and to which a lower rate of refund applies. This risk of abuse exists not only where different rates have been fixed for various countries, but also where no rate has been fixed for one country. For that reason, the provisions relating to variable refunds must be applied in a case such as that in point in the main proceedings.
20 Under Article 20(1) of Regulation No 2730/79, where the refund varies, and subject to the provisions of Article 21 of that regulation, payment of the refund may be made only if the product has been imported into a non-member country for which the refund is prescribed.
21 With regard to the provisions of Article 21 of Regulation No 2730/79, paragraph (1) does admittedly authorize payment of part of the refund calculated on the basis of the lowest rate applicable on the day on which customs export formalities were completed, after the product has left the geographical territory of the Community but before proof has been provided that the product did in fact arrive at its declared destination. However, according to Article 21(2) of Regulation No 2730/79, paragraph (1) of that article applies only where a refund has been fixed in respect of all non-member countries.
22 It follows that, in a case such as that in point in the main proceedings, in which no refund was fixed for one country, Article 20(1) of Regulation No 2730/79 remains applicable and the refund is, accordingly, payable only if the product has been imported into a non-member country for which the refund is prescribed.
23 This conclusion is not undermined by the fact that the goods, after leaving the geographical territory of the Community, perished in transit as a result of force majeure. The first indent of Article 10(4) of Regulation No 2730/79 refers, in the case of a variable refund, to the application of Article 21 of that regulation, with the result that, in such a case, by reason of the wording of Article 21(2), no payment of the refund is made (see, to that effect, Case C-321/91 Tara Meat Packers [1993] ECR I-2811, paragraphs 17 and 18).
24 The answer to the question submitted by the national court must therefore be that Articles 10(4), 20 and 21 of Regulation No 2730/79 must be interpreted as meaning that a trader is not entitled to an export refund where the product concerned has perished in transit as a result of force majeure, after leaving the geographical territory of the Community, and where the same rate of refund has been fixed for all non-member countries, with the exception of one single country, for which no refund has been fixed.

Costs
25 The costs incurred by the Greek Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, 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
(Second Chamber),
in answer to the question referred to it by the Polimeles Protodikio, Athens, by order of 29 March 1990, hereby rules:
Articles 10(4), 20 and 21 of Commission Regulation (EEC) No 2730/79 of 29 November 1979 laying down common detailed rules for the application of the system of export refunds on agricultural products must be interpreted as meaning that a trader is not entitled to an export refund where the product concerned has perished in transit as a result of force majeure, after leaving the geographical territory of the Community, and where the same rate of refund has been fixed for all non-member countries, with the exception of one single country, for which no refund has been fixed.