C-299/94

Anglo Irish Beef Processors International ('Anglo Irish Beef') is a group of Irish under- In accordance with the Community rules in takings engaged in the beef trade. Pursuant force, Anglo Irish Beef had provided a bank to Regulation No 3665/87, 3it had obtained guarantee in the Minister's favour equal to from the competent Irish authority, the Min- the amount of the advance payment, together ister for Agriculture, Food and Forestry ('the with a further 20% of that amount. That guarantee is required as security, since the exporter is paid the amount of the refund in * advance, specifically in order to ensure that Original language: Italian. 1 — OJ 1987 L 351, p. 1. reimbursement of that amount is made to the 2 — OJ 1990 L 213, p. 1. authority concerned if it should later be 3 — The sector in question is governed by the regulation cited found that 'the conditions for granting the above, as last amended by Commission Regulation (EEC) N o 354/90 of 9 February 1990 (OJ 1990 L 38, p. 34), in con- refund are not fulfilled' (see the 22nd recital junction with Council Regulation (EEC) N o 565/80 of 4 March 1980 on the advance payment of export refunds in in the preamble to Regulation No 3665/87) respect of agricultural products (OJ 1980 L 62, p. 5), as last or that 'there was a right to a smaller refund' amended by Council Regulation (EEC) No 2026/83 (OJ 1983 L 199, p. 12). (Article 6, Regulation No 565/80).

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OPINION OF MR LA PERGOLA — CASE C-299/94

— Can Council Regulation (EEC) N o 2340/90 be interpreted as covering 3. Anglo Irish Beef thereupon brought pro- goods in transit to Iraq and if so is it ceedings before the High Court of Ireland, void in whole or in part because of its challenging the Minister's claim for reim- treatment of goods in transit in the bursement and seeking release of the security present circumstances?'

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ANGLO IRISH BEEF PROCESSORS INTERNATIONAL v MAFF

Question 1 which provides: 'Where, as a result of a case of force majeure, the amount of the refund [payable] is smaller than the amount paid in advance, the security forfeited shall be equal to the difference between ... the amount of the refund advanced and ... the amount of the refund actually due'. 4 Where, however, there is no force majeure, the relevant provi- 4. In order to answer the first question, it is sion would be Article 33(3)(a)(iii), in accord- plainly necessary to refer to the findings — ance with which 'the security forfeited shall which must be accepted as definitive for the be equal to the reduction of the refund ... purposes of these proceedings — of which plus 20%'. the national court has apprised the Court in the present case. The first fact to be consid- ered is that the beef in respect of which the export refund was granted did not reach the destination specified in the application, but was sold in other countries, which were sub- ject to a lower refund rate. The exporter therefore received a higher amount than was Thus, in the circumstances described in the due under the regulation. It is also clear from order for reference, the intervention agency the order for reference that the circum- may take steps to retain the guarantee pro- stances which prevented the beef from reach- vided in its favour by the exporter, subject to ing its intended destination indisputably the limits set by Article 33(5) on the amount constitute force majeure. to be forfeited. This being a case of force majeure, however, it may not lay claim to the additional 20%.

fraud. As the Court itself has stated, more- refund paid in advance. If that is the case, I over, traders are not entitled 'to a differenti- am at a loss to identify the disproportionate ated refund for exports ... to a non-member effect. As I pointed out above, the intention country in a case where the goods exported underlying the export refunds — which has were destroyed as a result of force majeure been emphasized by the Court in other judg- after leaving the customs territory of the ments 6 — is to facilitate the sale of Commu- Community and prior to importation ... into nity products on world markets. To that end, the non-member country of destination'. 5 exporters are paid a sum of money which is intended solely as compensation for any dis- parity between the Community price and the current price on other markets. The refund rate is 'differentiated', precisely in that it is calculated by reference to the various prices charged in the country of destination. That is why it is essential that the products in ques- tion actually reach their declared destina- tion: 7 if they were sold on a different mar- ket, where the price is higher and for which the refund rate is accordingly lower, the 5. I now turn to the other aspect of Ques- transaction would result in the unjust enrich- tion 1. It is necessary to ascertain whether, in ment of the trader in question. That is to say, the circumstances described above, Regu- he would profit from the higher selling price lation N o 3665/87 may be interpreted as pre- and, at the same time, retain the higher rate cluding forfeiture of the security by the rel- of refund to which, however, he would not evant authority, in view of the allegedly be entitled. That said, it is plain that the disproportionate effects otherwise foresee- able to the detriment of the exporter. refund scheme, far from contravening the principle of proportionality, actually applies it: the amount paid by the intervention agency is equal to the difference between the Community price for the product exported and the price charged in the country of des- tination. Thus the means adopted — differ- ential payment in advance — is suitably pro- portional to the objective pursued by the Community legislature. When a case of f orce majeure arises, and the trader concerned is compelled to export his products elsewhere According to Anglo Irish Beef, that question than the original destination, his right to the must be answered in the affirmative. I dis- refund remains intact and is not affected by agree. First, as was mentioned in the order any penalty, except that its exercise must for reference, forfeiture of the security is take into account the disparity between the restricted to the amount unduly paid and Community price and the price which is therefore does not cover, as Anglo Irish Beef charged on the market to which the product seems to suggest, the whole amount of the

has actually been exported. That alone is the on account of force majeure. Although the rationale behind the regulation. The rules regulation provides for cases of force laid down seek its comprehensive and logical majeure, it is only to relieve exporters in implementation. those circumstances of the liability which they would incur each time they sold prod- ucts on markets other than that originally specified. Provided the circumstances amount to force majeure, there is no need, as I pointed out above, for the additional 20% to be repaid to the intervention agency. Exporters are accordingly exempted from 6. Anglo Irish Beef also purports to invoke a that requirement, which may also be seen as general principle according to which, if the a penalty measure. However, that does not force majeure which prevented the exports mean that exporters are entitled to retain the from reaching their declared destination was whole amount paid to them in advance. No brought about by Community action, the such right is envisaged by Community law, exporter is entitled to retain the advance nor could it be, given the nature of the sys- payment of the refund in full. That argument tem and the essential purpose of the refund. is not persuasive. In the first place, it is pred- Where the goods are not exported to the icated on the erroneous assumption that the place specified by the exporter, the 'refund' exports failed to reach their destination on can only refer to the difference between the account of the embargo imposed by the Community price and the current price on Community institutions by means of Regu- the market where the goods have actually lation No 2340/90. However, it is clear from been sold. There are therefore no grounds the order for reference that the cargo was for maintaining that, in making provision for detained in Turkey by the Turkish authori- cases of force majeure, the Community rules ties, acting — it must be assumed — in must confer on the exporter the right to observance of the embargo imposed by the retain the entire amount. That would be United Nations and, in any event, not in incompatible with the rationale behind all compliance with the regulation mentioned the legislation under consideration. above. Consequently, it is wrong to conclude that the force majeure involved here was attributable to conduct on the part of the Community institutions. That is not all. Anglo Irish Beef has failed to take into account the true nature of the exporter's obligation to repay the difference between Question 2 the amount received and the amount to which he is lawfully entitled. That obligation does not arise by way of a penalty for unlawful conduct, but simply entails reim- bursement of a sum unduly paid. In other words, it is an obligation whose purpose is merely to bring about restitution; it is not related to any criterion of guilt or responsi- 7. The second question asks whether, since bility on the part of the party so obliged and Regulation No 3665/87 cannot be inter- must therefore be discharged even if the preted as precluding forfeiture of the secu- cargo failed to reach the declared destination rity in the event of force majeure, it should

for that reason be considered invalid. Anglo subject, obviously, to the limits within which Irish Beef adduces two arguments in support that right was conferred. of that view: breach of the principle of pro- portionality and frustration of the exporter's legitimate expectations. I have already explained why the first argument should be dismissed. As regards the frustration of legit- imate expectations, Anglo Irish Beef seeks to Question 3 substantiate that allegation by asserting that exporters rely on being able to retain in any case — and especially in the event of force majeure — the amount of the refund paid in advance. 8 However, I am unable to discern a basis for that point of view. Any moderately prudent trader has only to read the regu- lation to realize that the right to retain the 8. By its third question, the national court full refund paid in advance and consequently asks the Court to ascertain whether Regu- to release of the security is necessarily con- lation (EEC) N o 2340/90, which imposed tingent upon the goods actually reaching the trade embargo, extends to goods which their declared destination. Article 33(2) of have already been dispatched and are in tran- Regulation No 3665/87 provides that 'the sit to Iraq. If the answer is in the affirmative, release in full of the security shall be subject the national court asks whether the regu- to the production of proof that .

goods . . . were not actually exported from the In the pleadings of Anglo Irish Beef, the Community within the time-limits laid claim to retain the full amount of the refund down'. The relevant rules are those set out is based on the assumption that the resolu- above and they cannot arouse any legitimate tion of the United Nations left the Commu- expectation other than the right to a refund, nity free to exempt from the embargo goods already in transit to Iraq. Hence the conclu- sion that Regulation N o 2340/90 is vitiated on grounds of illegality precisely because, in adopting a regulation to implement the sys- tem established by the United Nations, the 8 — Accordine to Anglo Irish Beef, that assertion holds true a Council of the European Communities failed fortiori where it is the Community itself which prevents the goods from reaching their destination. On that point, how- to use its discretion to accommodate by ever, I need only repeat the following observation: the means of its regulation the needs of export- national court makes it clear that the goods were detained in Turkey by the Turkish authorities on account of the United ers. To be more precise, the rules laid down

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These drafted in such a way as to meet the needs of have already been identified: the amount of Anglo Irish Beef and countless other export- the refund is not payable to Anglo Irish Beef ers in the same circumstances, the Minister in full but is differentiated; in order for the would not have any grounds at present for security to be released, the exporter must demanding the reimbursement at issue. pay the intervention agency any difference between the price fixed by reference to the original destination of the goods and the cur- rent price on the market which the goods have actually reached.

What would the the Community and its Member States. practical consequences have been if, by means of that regulation, the Community had derogated from the U N resolution in order to exempt from the embargo, as Anglo Irish Beef advocates, products already exported and still in transit? It would cer- tainly have been impossible to enforce such a It seems to me, however, that there is a sig- system in relation to any non-member coun- nificant aspect to this question which should tries which, in pursuance of the U N resolu- be considered first. I would recall, for the tion or of their own volition, wished never- sake of clarity, that the national court has theless to prevent the movement of products submitted two regulations for review by the

the latter regulation which governs the case which must be drawn is therefore plain to before the national court. Under that regu- see. Verification of the alleged invalidity of lation, recognition of the rights asserted by Regulation No 2340/90 would not affect in

(2) Consideration of Regulation (EEC) N o 3665/87 on the basis of the infor- mation provided in the order for reference has disclosed no factor of such a kind as to affect its legality.

9 — Case C-18/93 Corsica Ferries [1994] ECR 1-1783, para- graph 14, and the case-law cited therein.

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