C-4/68

JUDGMENT OF 11. 7. 1968 — CASE 4/68

ognized by the national authorities in application of the exemption referred to accordance with paragraph (4), but also in Article 6(2). in other specific cases which justify the

In Case 4/68

Reference to the Court under Article 177 of the EEC Treaty by the Verwaltungs­ gericht (Administrative Court), Frankfurt-am-Main, Third Chamber, for a preliminary ruling in the action pending before that court between

FlRMA SCHWARZWALDMILCH GMBH

and

gives the following

JUDGMENT

Issues of fact and of law

I — Facts As this undertaking had not been able to effect this importation before 28 February The facts and procedure may be summa­ 1968, the date on which the term of validity rized as follows: of the import licence expired, the Einfuhr- In accordance with Article 5 of Regulation und Vorratsstelle für Fette (Office for the No 136/64 of the Commission the Schwarz­ importation and storage of fats and oils) waldmilch GmbH of Offenburg had lodged declared this deposit forfeit by virtue of a deposit of DM 6 000 to guarantee the per­ Article 6(1) of the abovementioned regula­ formance of its obligation to import into tion.

Germany 100 000 kg of skimmed milk Schwarzwaldmilch instituted proceedings powder from France. against this decision before the Ver-

SCHWARZWALDMILCH v EINFUHR- UND VORRATSSTELLE

136/64/EEC. After the conclusion of a con ing of paragraph (2) may result from the tract for delivery with the Laiterie Centrale following circumstances: de Strasbourg, an engine failure occurred in (a) war and civil disturbance, the Powdered Milk Division of the latter (b) government ban on exports or im undertaking which, on 20 November 1967, ports, informed the plaintiff that is was unable to (c) restrictions imposed on navigation deliver the goods in question. by acts of sovereignty, The plaintiff maintained that, by reason in (d) shipwreck, particular of the brevity of the period (e) engine failure, damage to vessel or remaining before the term of validity of the damage to cargo, import licence expired it would have been (f) strikes, unable to obtain the goods from another (g) shipping hold-up in periods of icing- French supplier except at a considerably up or low water. higher price and without any guarantee of 4. If Member States recognize as cases of

Verwaltungsgericht, Frankfurt-am-Main, be regarded as the cause of the failure to decided to submit to the Court of Justice of import, since the applicant could have ob the European Communities a series of tained the commodity elsewhere although questions, for which it gave reasons. These on slightly less favourable terms. questions are worded as follows: Article 6 of Regulation No 136/64 of the '1. Does the concept of "engine failure" (Ar Commission reads as follows: ticle 6(3)(e) of Regulation No 136/64/

licence. The amount of deposit to be regulation? forfeited shall be calculated on the differ 3. What interpretation must be given to the ence between the quantity shown on the concept of "force majeure" as defined in licence less 5 % and the quantity actually Article 6(2) to (4) of Regulation No imported. 136/64/EEC? 2. Where importation cannot be effected 4. Does Article 6(2) of Regulation No 136/ during the term of validity of the licence 64/EEC require the existence of a direct owing to force majeure, the Member causal connexion between the circum State shall decide that the obligation to stance invoked as a case of force majeure import is cancelled and that the deposit and the failure to effect the importation?

5. Is it sufficient for the application of Ar Paulin and Peter Kalbe. ticle 6(2) of Regulation No 136/64/EEC The Schwarzwaldmilch undertaking and that, as a result of force majeure, impor the Commission submitted their oral ob tation would involve the importer in servations at the hearing on 27 May 1968. considerable economic difficulties and The Advocate-General delivered his opin could only take place at excessive eco ion at the hearing on 12 June 1968.

Member States. In particular, it emphasizes I. Generally the differences which exist between the German and French systems. Before considering the various questions As regards Question No 4, the national the Commission observes that Article 11 of court observes that the direct cause of the Regulation No 13/64/EEC and the provi failure to effect the importation was not the sions of Regulation No 136/64/EEC pro engine failure but the failure to perform the vide in respect of skimmed milk powder a contract of delivery on the part of the system of import licences which are inten Laiterie Centrale de Strasbourg. ded to give an overall view which is as Finally, in the context of Question No 5, the accurate as possible of the volume of im national court puts forward certain ques ports to be made during a specific period, tions as regards Article 6(2) of Regulation and also of the situation in the market

goods specified. For this reason Article mitted observations. 11(2) of Regulation No 13/64 and Article 5 The Einfuhr- und Vorratsstelle für Fette of Regulation No 136/64 provide for the was represented by Mr Euler, Schwarz lodging of a deposit in order to ensure the waldmilch by Fritz Morstadt and Werner performance of this obligation. Morstadt and the Commission by Bernard During the oral procedure Schwarzwald-

milch questioned the validity of Regulation III. Question No 2: The consideration of No 136/64 of the Commission to the extent other cases of force majeure to which, by means of the lodging of a deposit, it imposes excessive burdens on Schwarzwaldmilch observes that technical importers which are not justified by the or economic development never ceases to need to ensure a precise knowledge of the create new problems, with the result that it market. is impossible to set out a complete catalogue This undertaking suggested that the Court or list of the cases of force majeure.

II. Question No 1: The concept of engine hoc legislative measure, whether a case of failure mentioned in Article 6(3) of force majeure other than those referred to in Regulation No 136/64 Article 6(3) removes the obligation to im port. The Commission considers that, al Schwarzwaldmilch considers that the list of though public interest demands as precise a situations constituting cases of force majeure knowledge as possible of the market, it in Article 6 of Regulation No 136/64 cannot must not be concluded that the exemption be claimed to be complete and must not be from the obligation to import can be limited interpreted restrictively. The concept of to specific cases expressly determined in engine failure is of a general nature and advance, whilst under national law, the thus covers any sort of engine failure, in so person under the obligation can always put far as it is the fundamental reason for the forward this plea without meeting any such failure to perform a contract. limitation. Moreover an obligatory and. On the other hand, the Commission con

On the other 6(3)(c), (d) and (g)) which deals with other hand, the competent administrative author typical obstacles to navigation and, second ities whose action is subject in the ordinary ly, on the text of Article 6(3)(e) which deals course to review by the national courts, have only with damage affecting ships. always informed the Commission when Moreover, this particular case of force ma they acknowledged that a plea of force jeure was referred to in Regulation No 87 of majeure was justified in any specific case on. the Commission concerning the trade in the basis of its particular circumstances. cereal products and referring to obstacles By virtue of Article 6(4) it is not the decision affecting carriage by sea. of the courts themselves, but only the recog-

nition of the plea of force majeure by the context, within the framework of the system administration concerned, which must be of import licences, which is identical for all notified to the Commission. the Member States and which allows them very little scope for making their own de IV. Question No 3: The interpretation of cisions. the concept of force majeure Furthermore, it follows from Article 6 that, while the Commission has allowed Member Schwarzwaldmilch maintains that, in order States to define cases of force majeure ad to interpret this concept, it is first necessary ditional to those expressly provided for to consider the manner in which it is formu therein, it did not intend to give up the

not responsible. On the strength of these able variation. It must be added that the observations, Schwarzwaldmilch concludes Commission has used almost without mod that the term 'force majeure' must be inter ification the wording of Article 6 in other preted to include any reason which cannot regulations applicable in the context of the fairly be imputed to the parties and which common organization of the agricultural prevents them from fulfilling their obliga markets, that is, in an area in which the need tions. for a uniform application throughout the (a) The Commission observes that in order whole of the Community of the system of to settle the question whether the interpreta import licences and, so of the concept of tion of the concept of force majeure shall force majeure, appears even more com follow the provisions of Community law, or pelling. whether national law alone must be re The Commission concludes that the defini garded as applicable, it must be remembered tion of the concept of force majeure, within that Community law constitutes an inde the meaning of Article 6 of Regulation No pendent legal system vis-à-vis the national 136/64 constitutes an independent question law of Member States. It follows, therefore, of interpretation of Community law. that the provisions of Community law must (b) As regards the question of the criteria be applied uniformly throughout the Com by which this concept must be precisely

In fact, this con in each individual case. In particular, the cept is relevant in a specifically Community imprecise nature of any rules of interpreta-

tion which may be drawn up in this matter under the obligation to import is only and their relative force may be taken into exempted from that obligation if the cir account having regard to the special features cumstances which may be considered to of the legal field and of all those questions have given rise to the force majeure, and no which arise in practice and require that other reasons, were in fact the decisive special stress be laid on one or other criteri cause of the failure to import. on according to the circumstances of the It must therefore be established that these

If the party subject to an obligation to import is able from the outset to fulfil its obligation to import. For this reason the decision of not himself responsible for the obstacle to 3 April 1967 declaring forfeit the deposit the importation, it must be determined whether, by taking all the necessary action lodged by the plaintiff was at all events in commercial matters, that party could justified, quite apart from the problems have foreseen and avoided its occurrence raised in the order containing the request and its effects.

It denies that the situation jeure and the failure to effect the impor tation existing in the French market at that period prevented the plantiff from obtaining the Schwarzwaldmilch considers that a direct goods elsewhere on acceptable terms, since causal link existed in this instance. The the market price corresponded approxi temporary failure affecting its supplier's mately to the price referred to in the con tract entered into between the plaintiff and machinery did not terminate the contract, the Laiterie Centrale. but simply delayed its performance.

JUDGMENT OF 11. 7. 1968 — CASE 4/68

conclusion of the contract guaranteeing determine the moment from which the delivery within the period laid down. importer could and should have become In the opinion of the Commission, the aim of aware of the circumstances constituting the all the regulations considered does not force majeure and of their consequences for require the importation to have been ob­ the importation and, therefore, of the pos­ jectively impossible but, on the contrary, sibility of taking measures in order to avoid allows the special position of the person or those consequences. undertaking concerned to be taken into In this instance the plaintiff in the main account. However, such person must be action caused neither the engine failure nor expected to show due diligence and it is not the failure to perform the contract of deliv­ sufficient to consider only his subjective ery, nor could it have been aware of the statement that he was unable to effect the failure before the issue of the import licence importation. In particular, the existence of or the conclusion of the contract of delivery. a case of force majeure may be admitted It is therefore necessary to consider care­ when, in order to be able to effect the im­ fully whether it was unable, before 20 portation, the party subject to the obliga­ February 1967, to realize the difficulties to tion to import has had to bear additional come and to try in good time to find another costs which could not reasonably be ex­ producer on acceptable terms. pected of him. But it is still necessary to

Moreover the provisions in subparagraph (c), (d) and (g) of the same paragraph only concern shipping.

Furthermore, the concept of 'engine failure' already appeared in Article 8(2) of Regulation No 87 of the Commission of 25 July 1962 for the purpose of deter-

SCHWARZWALDMILCH v EINFUHR- UND VORRATSSTELLE

mining the conditions of implementation applicable to import and export licences for cereals and could only refer to the question of carriage and not to the pro­ duction of goods.

This concept is found in Article 6(3) (e) of Regulation No 136/64 in a context which is in substance identical to that of Article 8 of Regulation No 87.

It must therefore be concluded that the concept of 'engine failure' does not include failures occurring in machinery intended for the production of goods.

Article 6(2) provides that the obligation to import is cancelled where the importa­ tion cannot be effected during the term of validity of the licence owing to force majeure.

As the concept of force majeure is not identical in the different branches of law and the various fields of application, the significance of this concept must be determined on the basis of the legal framework within which it is intended to take effect.

Thus, the interpretation of the concept of force majeure used in the regulation in question must take into account the particular nature of the relationships in public law between the importers and the national administration, as well as the objectives of that regulation.

The public interest which requires the most accurate forecast possible of the future development of imports in each Member State and warrants the lodging of a deposit on the issue of an import licence must be reconciled with the need, which

JUDGMENT OF 11. 7. 1968 — CASE 4/68

is also a matter of public interest, for trade between States to remain unhampered by obligations which are too rigid.

This being so, force majeure is established if the importer could only have effected the importation within the period stipulated by replacing the goods at an excessive loss taking into account, where necessary, any remedies available to him.

It must, therefore, be concluded that sufficient causal connexion between the circumstances relied on as a case of force majeure and the failure to effect the im­ portation must in principle be recognized when delivery in due time by the im­ porter's supplier has become impossible within the meaning of the above definition, and when the importer can only obtain the goods elsewhere at an excessive loss.

Finally, it follows from the scheme of Article 6 of the regulation that it is for the importer to prove the existence of the circumstances necessary to constitute a case of force majeure.

SCHWARZWALDMILCH v EINFUHR- UND VORRATSSTELLE

Question No 2

The court requesting the preliminary ruling asks whether Article 6(4) of Regula­ tion No 136/64/EEC empowers the courts of Member States to recognize as cases of force majeure circumstances other than those mentioned in paragraph (3) of that Article.

Costs

The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable and 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 Verwaltungsgericht, Frankfurt-am-Main (Third Chamber), the decision as to costs is a matter for that court.

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the Commission of the European Communities and the parties to the main action ;

JUDGMENT OF 11. 7. 1968 — CASE 4/68

Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Article 177; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community, especially Article 20; Having regard to Regulations Nos 13/64/EEC on the progressive establishment of a common organization of the market in milk and dairy products, and 136/64/EEC on the determination of the conditions for implementation to apply to the import licences referred to in Regulation No 13/64/EEC; Having regard to the Rules of Procedure of the Court of Justice of the European Communities;

and declares:

The decision as to costs is a matter for the Verwaltungsgericht, Frankfurt-am- Main.

Lecourt Donner Strauß

Trabucchi Monaco Mertens de Wilmars Pescatore

Delivered in open court in Luxembourg on 11 July 1968.

A. Van Houtte R. Lecourt