C-109/95

the Greek State

on the interpretation of Articles 10(4), 20 and 21 of Commission Regulation (EEC) N o 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),

T H E C O U R T (Second Chamber),

composed of: G. F. Mancini, President of the Chamber, G. Hirsch (Rapporteur) and J. L. Murray, Judges,

* Language of the case: Greek.

I-1399

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,

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ASTIR ν GREEK STATE

gives the following

JUDGMENT OF 13. 3. 1997 — CASE C-109/95

5 Commission Regulation (EEC) N o 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 N o 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, with- out 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 N o 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.

9 Article 20(1) of Regulation N o 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 N o 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:

1 3 Astir thereupon brought proceedings before the Polimeles Protodikio. It submits in particular that it follows from Article 10 of Regulation N o 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:

' O n a proper construction of Article 10(4) of Commission Regulation (EEC) N o 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 Com- munity, has perished in transit as a result of force majeure and where for that prod- uct 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?'

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ASTIR ν GREEK STATE

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 N o 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.

but also where no rate has been fixed for one country. For that reason, the provi- sions 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 N o 2730/79, where the refund varies, and sub- ject 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 N o 2730/79, para- graph (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 for- malities 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 N o 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 N o 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 N o 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 pay- ment of the refund is made (see, to that effect, Case C-321/91 Tara Meat Packers [1993] ECR I-2811, paragraphs 17 and 18).

T H E C O U R T (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) N o 2730/79 of 29 November 1979 laying down common detailed rules for the application of

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JUDGMENT OF 13. 3. 1997 — CASE C-109/95

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.