C-36/70

JUDGMENT OF THE COURT 16 DECEMBER 1970<apnote>1</apnote>

Getreide-Import GmbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel (Reference for a preliminary ruling by the Bundesverwaltungsgericht)

Case 36/70

Summary

1. Agriculture — Common organization of the markets — Cereals — Import and export licences — Period of validity — Overrunning — Case of force majeure accepted by the Member States — Incomplete communication to the Commission — Absence of legal effect (Regulation No 102/64 of the Commission, Article 8)

2. Agriculture — Common organization of the markets — Cereals — Import and export licences — Period of validity — Overrunning — Case of force majeure — Cancellation or extension of validity of licence in question — Request for exception to be made — Refusal by the administration — Acceptability (Regulation No 102/64 of the Commission, Article 8)

JUDGMENT OF 16. 12. 1970 — CASE 36/70

Einfuhr- und Vorratsstelle für Getreide und Futtermittel, Frankfurt-am- Main,

on the interpretation of Article 8 of Regulation No 102/64/EEC of the Commission of 28 July 1964

THE COURT

composed of: R. Lecourt, President, A. M. Donner (Rapporteur) and A. Trabucchi, Presidents of Chambers, R. Monaco, J. Mertens de Wilmars, P. Pescatore and H. Kutcher, Judges,

Advocate-General: K. Roemer Registrar: A. Van Houtte

GETREIDE-IMPORT ν EINFUHR- UND VORRATSSTELLE GETREIDE

(h) below, the term of validity of the of destination in the case of exports, is licence shall be extended, for such invoked, such circumstances shall be period as the Member State deems recognized only if the country of origin necessary in view of the circumstances or the country of destination was designated invoked; at the request of the party to the competent administration prior to concerned, however, the Member State the occurrence of the circumstance of force may decide that the obligation to majeure and not later than one month after import or to export shall be cancelled the date of issue of the licence. and the deposit be not forfeited. Where the term of validity of the licence 5. The importer or exporter shall furnish is extended and the amount of the levy evidence, in the form of official documents, or of the refund has been fixed in advance, of the circumstances regarded as being of this amount shall be adjusted in relation force majeure.' to the threshold price in force in the month of actual import or export. The Federal Republic of Germany has accepted the blockage of ports ('Haven- 2. The following circumstances shall be verstopfung') as a case of force majeure regarded as being of force majeure within within the meaning of Article 8(3) and has the meaning of paragraph (1) above: advised the Commission of this. It has not however indicated whether in

JUDGMENT OF 16. 12. 1970 — CASE 36/70

indicate in its communication to the — or the extension of the licence is the rule Commission the classification, in relation and it is only for exceptional reasons to the said subparagraphs (a) and (b), of that the latter may be cancelled. the case of blockage of ports and the Verwaltungsgericht decided that this case By an order of 12 June 1970, the Bundes is not therefore classified. Consequently the verwaltungsgericht consequently decided deposit was wrongly forfeited. to stay the proceedings and, in accordance Giving judgment on appeal, the Verwal with Article 177 of the EEC Treaty, to

visaged in Article 8(2) of which it has tives laid down in Article 8 in case of force advised the Commission without in majeure depends upon the unfettered dicating however whether the pro discretion of the administration. The latter vision applicable is Article 8(l)(a) or moreover has not, in the present case, (b)? exceeded its powers. The plaintiff made an application for (2) Does Article 8(l)(b) of Regulation No 'Revision' to the Bundesverwaltungsgericht 102/64/EEC require that Member State and the latter found that Article 8 of to decide that the obligation to import Regulation No 102/64/EEC raised the or to export is cancelled and that the following problems of interpretation which deposit is not forfeited as soon as the should be submitted to the Court of Justice. person concerned requests it to do so If the notification provided for in paragraph or may it make the benefit of this (3) of the said Article 8 has a constitutive exception conditional upon the person effect, a blockage of ports is not to be concerned providing it with special regarded in so far as Germany is concerned reasons justifying such an exception?' as a case of force majeure within the meaning of paragraph (1) of the article, The order containing the reference was since the Commission was not advised entered at the Court Registry on 23 July of the provision to be applied in this case 1970. (subparagraph (a) or subparagraph (b) of Under Article 20 of the Statute of the Court paragraph (1)). of Justice of the EEC, written observations If on the other hand the notification is were lodged by the plaintiff in the main merely of a declaratory nature, the question action and by the Commission of the of the extent of the discretionary power European Communities. vested in the Member States by virtue of On hearing the report of the Judge-

— that the official notification to the 1 — The first question Commission must have been made by a letter from the German Permanent Representation to the European Com­ (a) Observations of the Commission munities, acting on an instruction to that effect of 10 November 1966 from the By way of introduction the Commission Federal Ministry of Food, Agriculture points out that within the framework of the and Forestry. inevitable distribution of duties which is a feature of the common organization of the — that the German Government is not markets, it devolves upon the Member in a position to submit a copy of that States to issue the import licences envisaged letter from its Permanent Representa­ by Community law, to supervise their tion; use and as in the present case, to decide upon the recognition of a case of force — that without being the subject of a majeure and the legal consequences to be publication measure properly so-called, deduced from it. the decision to accept blockage of ports The effectiveness of the rules concerning as a case of force majeure was by a letter import licences depends essentially on its of 21 July 1965 brought to the knowledge uniform application in all the Member of the Central Association of German States. For this purpose Regulations Nos Traders in Cereals, Fodder and Fer­ 111/63 and 108/64 [sic] endeavoured to link tilizers ; all the rules in Article 8 concerning ex­ ceptions to the narrow concept of force — that the said Association of which the majeure. On the one hand it seemed plaintiff in the present proceedings is a appropriate to define that concept at least member, communicated that decision in respect of its most important and most to its members by its circular No 12/65 frequent applications, as well as of its legal of 27 July 1965. consequences (Articles 8(1) and (2)). On the other hand in view of the possible number Furthermore the German Government of cases of application, that list could not states that the administration has always be complete, and for this reason it is laid in cases of blockage of ports conformed down in Article 8(3) that the Member to the provisions of Article 8(l)(b). States may accept other circumstances also The plaintiff and the Commission of the as force majeure. As regards these cases European Communities presented oral the purpose of the obligation to advise argument at the hearing on 17 November the Commission was to ensure that the 1970. Commission would be informed of the The Advocate-General delivered his opin­ practices followed by the Member States ion at the hearing on 2 December 1970. and that it would be in a position to control The plaintiff was represented by Mr and coordinate these practices either by Redeker of the Bonn Bar. exercising a direct influence or by further The Commission of the European Com- legislative measures.

Within this framework the institution of an of force majeure to the cancellation or obligation of a 'constitutive' nature to extension of the licence, and further that advise the Commission would not have had they restrict the exercise of the discretionary any practical meaning unless the Commis­ power of the competent authorities by sion had been granted a right of direct establishing a 'rule-exception' relationship. innovation in relation to cases of force It asserts that these provisions apply majeure or of determination of the legal equally to the cases of force majeure consequences in such cases, so that the accepted as such by the Member States effectiveness of the decision taken by the under Article 8(3). Any other interpretation Member State in relation to the plaintiff would not only be contrary to the wording would have depended upon the approval of this paragraph (3), but would also permit or the authorization of the Commission. the Member States to create new categories However, such a power on the part of the of force majeure: besides those where they Commission is contradicted by a certain are bound by strict rules, there would be number of facts : others where they could decide quite freely. The following facts militate against the — the wording of Article 8(3) suggests acceptance of such a possibility: rather an independent power of decision of the Member States; — it is of the very essence of Article 8 to have as a foundation a uniform concept — In the absence of express provisions, the of force majeure; presumption of a power of decision by the Commission in the matter is contrary — it is obvious from the provisions of to the principle that the institutions Article 8 that the distinction between of the Community and the Member the cases mentioned in paragraph (2) States each carry out on their own and those mentioned in paragraph (3) responsibility, the duties devolving upon is not based upon fundamental differ­ them under Community law; ences of substance, but that paragraph (2) only gathers together the typical and — such a presumption is also contrary to most frequent cases ; the system of Article 8 under which the Member States and not the Commission — the two different sets of priorities which decide upon the recognition of cases of under subparagraphs (a) and (b) of force majeure. paragraph (1) may be legal consequences of a case of force majeure correspond to Consequently the Commission proposes two distinct groupings, that is to say on that there should be an affirmative reply the one hand cases in which the normal to the first question. course of events justifies the presumption that the import cannot anyhow take (b) Observations of the Plaintiff place in due time (in which event the licence will in principle be cancelled) and The plaintiff also claims that there should on the other hand cases involving be an affirmative reply to this question. merely a certain delay in execution (extension of the licence). It is not difficult to link any case, to which 2 — The second question paragraph (3) of Article 8 applies, to one or other of these groupings.

— that if the contrary were true it would The plaintiff points out that when sub­ have been useless to establish an order paragraph (a) of Article 8(1) provides that of priority to be accepted by the Member in the cases of force majeure which it en­ States; visages, the obligation to import or to export is extinguished with the result that the deposit is not forfeited, it quite properly — that the very wording of subparagraphs satisfies a general principle already laid (a) and (b) implies some measure of down in other agricultural regulations (see discretion on the part of the Member in particular the fourth recital and Article 5 States; of Regulation No 97/63/EEC; Article 6 of Regulation No 136/64/EEC; Article 9 — that only the assumption that the of Regulation No 174/66/EEC). Member States may exercise their The further possibility of extending the discretion in making a decision meets duration of the licence at the request of the aim and the legal objectives of the the importer does not affect this principle rules in question; at all and certainly does not grant the Member States a discretionary power in the — that in fact import licences are not only matter. intended to allow as exact a forecast as If on the other hand Article 8(l)(b) were possible of expected imports to be made to be interpreted as meaning that it (in which case the choice between granted the Member States the power, extending or cancelling the licence according to the circumstances, of en­ would be immaterial, as the import could forcing the extension of the licence, this not in any event be effected within the would represent a departure from the above- period mentioned), but that they also mentioned regulations relative to other determine the rate of levy so that in agricultural sectors. The objective which allowing the importer himself to choose is the basis of all these regulations, that between cancellation and extension of of allowing the competent authorities to the licence, it would be in his power have a general view of the development to choose between various rates of levy, of the markets, is the same for all agricul­ which would go beyond the legal reasons tural sectors including that of cereals. on which Article 8 is based. Consequently it is difficult to understand why it should be necessary in the cereals The Commission submits that the reply to sector to grant the Member States a the question should be that the provisions discretionary power concerning the suita­ of Article 8(l)(b) of Regulation No bility either of cancelling or of extending 102/64/EEC do not require a Member the licence whilst such a power has not State to decide that the requirement to appeared necessary in other sectors. Dis­ import or to export is cancelled and that crimination would follow from this because the deposit is not forfeited as soon as the in the cereals sector traders would be person concerned requests it to do so and subject to supplementary changes vis-à-vis that on the contrary it may require the fellow traders in other agricultural sectors.

3 The question thus has as its purpose the elucidation of the legal nature of the duty to advise the Commission laid down in Article 8 (3) and consequently, of the effect of any omissions occurring during the discharge of that duty upon the legal position of holders of licences.

4 Article 8 (1) governs the consequences arising from the fact that owing to circum­ stances to be regarded as force majeure, the intended import or export could not be effected during the term of the validity of the licence issued.

This paragraph provides the alternatives, either of cancellation óf the obligation to import or to export, or extension of the term of the validity of the licence, both depending upon the nature of the circumstances accepted as force majeure.

Paragraph (2) of the article sets out the, circumstances which 'shall be' regarded as being force majeure.

Lastly, paragraph (3) provides that, if the Member States recognize as force majeure, circumstances other than those set out in paragraph (2), they shall at once advice the Commission thereof and indicate whether the provisions applied are those of subparagraph (a) or of subparagraph (b) of paragraph (1).

5 It follows from the drafting and the general scheme of paragraphs (2) and (3) of Article 8 that the power of recognizing certain circumstances as force majeure is left to the Member States as paragraph (2) confines itself to setting out the circumstan­ ces which they are in any case required to recognize as such.

8 In the second question the Court is asked to rule whether the provisions of Article 8 (1) (b) require the Member State to decide that the licence carrying the obligation to import or to export is cancelled and that the deposit is not forfeited as soon as the person concerned requests it to do so or whether it may make the benefit of this exception to the rule of extension conditional upon the said person's providing it with special reasons justifying such an exception.

9 It appears from Article 8 (1) that the alternatives of cancellation or of extension of the licence do not apply in an arbitrary manner, in accordance with the wishes of the person concerned or the discretion of the administration concerned, but must be applied in accordance with a specific system, cancellation being the rule in certain circumstances and extension the rule in other circumstances recognized as force majeure.

10 The indication given in the article that an exception may nevertheless be made to the rule at the request of the person concerned confirms that the provision is intended to establish in the given circumstances an administrative practice in which either cancellation or extension is the rule, the alternative being applied only exception­ ally.

JUDGMENT OF 16. 12. 1970 — CASE 36/70

11 Both the terms of Article 8 (1) and the duty of the Member States to indicate in their communications to the Commission whether in the circumstances which they have accepted as force majeure the provisions applied are those of paragraph (1) (a) or (b) prove that the system referred to applies not only to the cases of force majeure set out in paragraph (2), but also to all other circumstances which the Member States accept as such.

Costs

16 The costs incurred by the Commission of the European Communities which submitted observations to the Court are not recoverable.

17 The proceedings in so far as the parties to the main action are concerned, are in the nature of a step in the action pending before the Bundesverwaltungsgericht, and the decision as to costs is therefore a matter for that court.

GETREIDE-IMPORT ν EINFUHR- UND VORRATSSTELLE GETREIDE

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the plaintiff in the main action and the Commission of the European Communities; Upon hearing the opinion of the Advocate-General ; Having regard to the Treaty establishing the European Economic Community, especially Articles 177 and 189; Having regard to Regulation No 102/64/EEC of the Commission of 28 July 1964, especially Article 8; Having regard to the Statute of the Court of Justice of the European Economic Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities,

A. Van Houtte R. Lecourt

Registrar President