Judgment_paragraph 2. · Union française de Céréales v Hauptzollamt Hamburg-Jonas (6/78)

2.The Commission emphasizes that Article 5 of Regulation No 269/73 governs only the way in which the plaintiff in the main action must prove a right when the law treats him as having such a right. As to whether a right could be granted in this case, that issue can be resolved only through an analysis of the wording, the logic and the aim of all the provisions relating to ‘accession’ compensatory amounts. If it could be granted, then there is need to consider whether and in what way an exception can be made to the requirements as to proof laid down in Article 5 (2) of Regulauon No 269/73.The Commission further points out that the purpose of ‘accession’ compensatory amounts was to ‘promote the satisfactory circulation of products between Member States with different price levels’ (ninth recital in the preamble to Regulation No 229/73). Therefore there is no reason to grant those amounts or levy them in respect of wheat which never reached the market of a Member State other than that from which it originated. The wording and the logic of the legislation on ‘accession’ compensatory amounts reflect that objective. That legislation treats exportation and importation as a necessarily single and indivisible process. In support of its opinion, the Commission refers inter alia to Articles 5 (2) and (3) of the Act of Accession, 3 and 8 (1) to (4) of Regulation No 269/73, 4 of Regulation No 181/73 of the Council (Official Journal L 25, p. 9) and to 2 and 5 of Regulation No 3280/73 of the Commission (Official Journal L 337, p. 11).Having regard to the situation set out above, it is not because of a legal lacuna but rather because of the nature and purpose of compensatory amounts that a right to them cannot be held to exist in the present case. In these circumstances, even a restrictive interpretation of the rules on proof in Article 5 (2) of Regulation No 269/73 is of no advantage to U.F.C.The Commission then considers whether U.F.C. is not entitled to the ‘accession’ compensatory amounts which it is claiming for reasons outside that legislation.In that connexion, it points out that its Regulation No 269/73 was not in contravention either of Article 55 (6) of the Act of Accession or the first paragraph of Article 9 of Regulation No 229/73, whereby detailed rules for granting compensatory amounts were to be such as to avoid any distortion of competition. In fact competition in the market of the Member State of destination is not distorted to the detriment of U.F.C. by the fact that U.F.C. is not granted a right to compensatory amounts in respect of wheat which is not subject to that competition. The Commission is not liable for the financial losses suffered by the undertaking as a result of the loss of the goods. Since the Commission would not have paid ‘accession’ compensatory amounts to the competitors of U.F.C. in similar circumstance, U.F.C. is not therefore the victim of discrimination.On the issue of force majeure the Commission points out that the objective of ‘accession’ compensatory amounts is not to insure the plaintiff in the main action against the risk of purely accidental loss of its goods in transit where the Commission did not bring about and could not have prevented the said loss. Such losses are a normal commercial risk which the undertaking must bear itself. This follows from the judgment of the Court of 14 February 1978 in Case 68/77, IFG v Commission.The Commission cannot admit the existence of a right to ‘accession’ compensatory amounts by way of analogy with the right to expon refunds: they are independent instruments having different legal foundations, objectives and ambit. If analogies have to be accepted in such cases, the freedom of the legislature in the field of economic policy would be unacceptably reduced. That freedom has been confirmed by the Court most recently in its two judgments of 19 October 1977, Joined Cases 117/76 and 16/77, Ruckdeschel and Others v Hauptzollamt Hamburg-St. Annen and Diamalt v Hauptzollamt Itzehoe [1977] ECR 1753 and Joined Cases 124/76 and 20/77, SA. Moulins et Huileries de Pont-à-Mousson v Office National Interprofessionnel des Céréréales and Société Co-operative Providence Agricole de la Champagne v Office National Interprofessionnel des Céréales [1977] ECR 1795. It emerges from these judgments that even if an export refund had to be paid in the present circumstances, that does not mean that the Community is obliged to grant ‘accession’ compensatory amounts to the plaintiff in the main action.Furthermore, sustained analysis of the right to refunds shows that in this instance it is also impossible to base a right to ‘accession’ compensatory amounts on application by analogy of Article 6 of Regulation No 192/75.Since ‘accession’ compensatory amounts were to provide a means of overcoming the obstacles imposed by the common price policy on the entry of products from the exporting Member Sute into the market of the Member Sute of destination, those amounts can only by compared with export refunds varied according to the country of destination, that is to say amounts which are designed in particular to bring the price of Community products in the country of destination to the level of the prices prevailing in that country, and not with amounts which are designed to encourage producers to relieve the Community market of surpluses for which there is no buyer in that market. As with payment of the varied refund, the grant of an ‘accession’ compensatory amount is justified only where the goods concerned are actually brought into the country of destination and put on the market there.In so far as it is possible to extend the refund rules by analogy to the field of ‘accession’ compensatory amounts, in this case reliance can be placed not on the provision of Article 6 but only on that of Article 11 (1) of Regulation No 192/75. However that provision does not establish any right to compensation in respect of goods which perish before reaching the country of destination. Its effen is only what is already stated in the provisions of Regulations No 229/73 and No 269/73: a right to the grant of compensatory amounts arises only when the products concerned have reached the Member State of destination and are put on the market there. The amount claimed can be paid only after proof of such importation.