C-158/73

EINFUHR- UND VORRATSSTELLE FÜR GETREIDE UND FUTTERMITTEL, Frankfurt- on-Main,

on the interpretation of Regulation No 1373/70 of the Commission, dated 10 July 1970, on common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products subject to a single price system (OJ L 158, 20.7.1970, p. 1).

THE COURT

composed of: R. Lecourt, President, M. Sørensen, President of Chamber, R. Monaco, J. Mertens de Wilmars, P. Pescatore, H. Kutscher and C. Ó Dálaigh (Rapporteur), Judges,

Advocate-General: J. P. Warner Registrar: A. Van Houtte

gives the following

firm of importers in Hamburg, received 2. The following are the relevant legal from the defendant in the main action, provisions: in response to their application, an Regulation No 120/67 of the Council, import licence dated 15 June 1972, valid dated 13 June 1967, on the common until 31 October 1972, in respect of organization of the market in cereals, 2 000 metric tons of wheat bran pellets. requires, under Article 12 (1), the The plaintiff firm used the licence in the submission of a licence in respect of all first instance for imports totalling imports of cereals into the Community, 820 960 kg, and then sent it by registered such licence being issued to importers by post on 17 October to the firm of the Member States.

Finally, where importation cannot be for the issue of a duplicate. effected during the period of validity of The defendant, after issuing this the licence as a result of force majeure, duplicate, declared security in the sum of Article 18 (1) provides that, at the 11 408.66 DM deposited by the plaintiffs request of the titular holder, the State to be forfeit, by reason of the imports may decide that the obligation to import falling below the amount fixed to the is cancelled, the security being released.

titular holder. The deposit lodged by the majeure can be relied upon in the event plaintiffs was released pro rata in respect of loss of a licence. of the quantities actually imported, and the amount corresponding to the 3. The plaintiffs appealed to the quantities not imported was declared Verwaltungsgericht of Frankfurt-on- forfeit. Main against the defendant's decision

and that court decided to suspend the II — Written observations proceedings and to refer the following submitted to the questions to the Court of Justice for a Court in accordance preliminary ruling, in accordance with with Article 20 of the Article 177 of the EEC Treaty: Protocol on the Stat­ ute of the Court of I. Is Article 2 (1), first sentence, in Justice of European conjunction with Article 15 (4) of Economic Community Regulation No 1373/70/EEC of the Commission, to be interpreted as [a) On the first question put by the meaning that when an import licence Verwaltungsgericht is lost, not only does the right to import lapse but also the obligation In the Commission's view, the duplicate to do so, with the result that the merely affords the party concerned a security must be released, or that means of proof securing the partial when the import licence is lost the release of the deposit in proportion to right lapses but the obligation the quantities already imported, and remains, with the result that the cannot under any circumstances produce security is forfeit? the same consequences as attached to the original document. II. (a) Is the loss of the licence a case of force majeure within the The Commission does not believe that meaning of Article 18 of the obligation to import is so closely Regulation No 1373/70 of the linked to the right to import that the one Commission? is extinguished with the other, and that therefore the security must be released (b) Does it constitute compliance since no reason or justification remains with the duty of care expected of for it. a reasonably diligent trader in the context of his activity within In fact, as regards the licence holder, the the Community if he sends a loss of the right to import, bound up with the obligation undertaken, in no licence by ordinary post? way entails the extinction of the legal (c) Can a request be made under relation created. An example of this is Article 18 (1) of Regulation No afforded by the fact that, under Article 1373/70 of the Commission even 15 of Regulation No 1373/70, when the after the period of validity of the obligation to import is not fulfilled licence has expired? within the fixed period, the existence of this legal relationship entails the 4. The order of the Verwaltungsgericht forfeiture of the security. of Frankfurt-on-Main was registered at The copy of the licence issued to the the Court of Justice on 7 August 1973. applicant does not in itself constitute or The plaintiffs and the Commission of create a right or an obligation to import the European Communities submitted but is merely a method of proof, the loss written observations in accordance with of which has no direct bearing on the the provisions of Article 20 of the legal situation of the party concerned. Protocol on the Statute of the Court of The theory according to which the Justice of the EEC. licence represents the right and the After hearing the report of the obligation to import, so that their very Judge-Rapporteur and the opinion of the existence depends upon that of the Advocate-General, the Court decided to document, does not allow of the open the oral procedure without any satisfactory solution of the most frequent preparatory enquiry. cases of loss of licence.

For example, where the holder cannot paragraph 4 being limited to providing find the licence although it is certainly that the duplicate does not authorize still in his possession, this theory would importation (its sole function being to entail the extinction of all the rights replace the original as proof of imports deriving from the licence and the already carried out). suppression of the levy fixed therein. The first paragraph of Article 2, under Further, the holder of a licence can which the licence authorizes and requires voluntarily give up the right to import importation, places the importer in an by transferring the document to third impossible position in the event of loss parties; but he does not thereby obtain of a licence: the original does not release from his obligation to import. authorize importation since the importer According to Article 3 of Regulation No no longer has it in his possession, not 1373/70 this obligation still rests with does the duplicate authorize importation the titular holder even though he may no since Article 15 (4) forbids this. longer have the right or the opportunity But the right and the obligation are to use the licence. extinguished simultaneously since they The Commission believes that the are inseparable.

associated therewith; loss is or is not the fault of the importer — the rule under which the security is is a matter for the national court to forfeit in whole or in part if the decide. importation is not effected within the period of validity applies also in the (b) On the other questions of the event of loss of a licence. Verwaltungsgericht The plaintiffs in the main action maintain that the problem of the loss of The Commission first recalls the general a licence is not fully covered by any rule under which the deposit is forfeit in legislative provision. proportion to the quantity of goods which could not be imported within the

from the second sentence of paragraph 4 Force majeure does not in fact apply that the obligation to import survives, except in cases where importation within

JUDGMENT OF 30. 1. 1974 — CASE 158/73

possibility of investigating whether prohibit the application of the cases in which loss of the import exceptional procedure provided for licence has prevented adherence to cases of force majeure, and Article 18 the time limit set for importation can does not expressly preclude the loss of be considered as cases of force the licence being included as a case of majeure, force majeure. However, all the conditions necessary — in the absence of any evidence of for recognizing the existence of force fraud, the request for recognition of majeure must be fulfilled beyond all the existence of a case of force possible doubt, according to the majeure may be submitted after the definition given in the case law of the expiry of the period of validity of the

itself. The Commission is of the opinion that there should not be force majeure unless Article 18 does not give an exhaustive 'abnormal difficulties beyond the list of the various circumstances capable importer's control' have prevented him of constituting force majeure. The case from effecting the importation within the law of the Court has not limited the time limit, and that this circumstance concept of force majeure to absolute could not 'be avoided despite all possible impossibility. If this case law is applied care being taken except at excessive here, the loss of the licence, in so far as cost' (cases cited). no blame attaches to the importer, also constitutes a case of force majeure. Finally the Commission considers that a request for the recognition of In the plaintiffs' view, the contention circumstances of force majeure can be that a trader only complies with the duty submitted even after the period of of care incumbent upon him if he sends validity of the licence has expired. In the licence by registered post can only be fact, the problem is to determine the upheld if this is current practice and if maximum period which may be allowed dispatch by registered post constitutes a

No blame can attach to the plaintiffs' licence, since the request for the issue agent for acting in the same way as the of a duplicate to evidence imports competent national authorities, especial­ already effected serves to inform the authorities of the event which entails the ly since the Court left to the latter the choice of ways and means of dispatch extinction of the obligation to import (Case 61/72, Mij PPW internationaal NV and the release of the deposit. v Hoofdproduktschap voor Akker­ The plaintiffs therefore suggest the bouwprodukten, [1973] E.C.R., 301) following answers to the second question: According to national and international conventions and regulations the purpose — the loss of a licence, if independant and effect of dispatch by registered post of fault, is a case of force majeure is restricted to making available a limited within the meaning of Article 18; right to claim damages or breach of — the importer discharges the duty of warranty against the postal authorities in care expected of a reasonably diligent respect of the loss of any letter so trader in the context of his activity dispatched, and to providing proof for within the Community even in a case those whom it may concern that the where he sends a licence through the letter was sent or received. It follows post by ordinary mail; from this that a registered letter is — the request provided for under treated no differently from an ordinary Article 18 can be submitted even letter in the course of its transit through after the period of validity of the the post. licence has expired. Finally the plaintiffs stress that it suffices The oral procedure was opened on 27 that the authorities be informed of the November 1973. impossibility of effecting importation, so that they may correct their assessments The plaintiffs were represented by of market trends and release the deposit. Barbara Festge, associate of Dr Fritz The law providing that a request for Modest, both advocates of the Hamburg extension may be made even after the bar, and the Commission of the expiry of the period of validity fixed European Communities was represented initially entails as a necessary corollary by its Legal Adviser, Peter Kalbe, acting as agent. that a request for cancellation of the obligation to import can also be The Advocate-General presented his submitted after the expiry of the period opinion at the hearing on 13 December of validity. The request cannot be 1973.

With regard to the first question

3 The first question posed is whether Article 2 (1), first sentence, in conjunction with Article 15 (4) of Regulation No 1373/70/EEC of the Commission must be interpreted as meaning that when an import licence is lost, not only does the right to import lapse but also the obligation to do so, with the result that the security must be released, or as meaning that when the import licence is lost the right lapses but the obligation remains, with the result that the security is forfeit.

4 Article 2 (1) of implementing Regulation No 1373/70 provides that 'an import licence shall authorize and require the importation ..., under that licence, of the net quantity of the specified product during the period of validity of the licence...'

KAMPFFMEYER v EINFUHR- UND VORRATSSTELLE GETREIDE

Article 15 (2) states that 'release of the security shall be subject to production of proof..., as regards imports, of completion of the customs formalities'.

Paragraph 4 of the same Article provides that 'where a licence or extract from a licence is lost, issuing agencies may, exceptionally, supply the party con­ cerned with a duplicate thereof... (which) may not be submitted for pur­ poses of effecting import transactions ...'

6 The answer to the first question therefore should be that Articles 2 (1) and 15 (4) of Regulation (EEC) No 1373/70 of the Commission must not be interpreted as meaning that loss of an import licence automatically entails the lapse of the obligation to import created by its issue.

JUDGMENT OF 30. 1. 1974 — CASE 158/73

With regard to the first part of the second question

7 The first part of the second question asks whether the loss of the licence constitutes a case of force majeure within the meaning of Article 18 of Regu­ lation No 1373/70 of the Commission.

8 Since the concept of force majeure differs in content in different areas of the law and in its various spheres of application, the precise meaning of this concept has to be decided by reference to the legal context in which it is intended to operate.

Any interpretation of the concept of force majeure employed in the Regulation in issue must therefore take account of the special nature of the relationships at public law existing between the importers and the national administration, as well as of the objectives of that Regulation.

despite the fact that the titular holder of the licence has taken all the pre­ cautions which could reasonably be expected of a prudent and diligent trader.

Withregard to the second part of the second question

11 The question is then asked whether a reasonably diligent trader fulfills his duty of care within the context of his activity within the Community if he sends a licence by ordinary post.

12 This question seeks to have established the standard of care that can reasonably be expected of a prudent and diligent trader.

In the absence of any express provision of community law, it is for the national court to say whether such a trader has or has not exercised all reasonable care, bearing in mind the circumstances of the case.

This is not a question of interpretation but one of application, reserved for the national court.

Since the loss of a licence may occur at a date close to the expiry of the period of validity of the licence, the importer might be prevented from submitting his request before the expiry of that period.

Further, the importer may not even have notice of the occurrence until after that date.

16 Thus, in the absence of any provision in the Regulation, such a request may be submitted after the period of validity of the licence has expired.

The answer to the third part of the second question should therefore be in the affirmative.

Costs

17 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, a step in the action pending before the national court, the decision as to costs is a matter for that court.

1. Articles 2 (1) and 15 (4) of Regulation (EEC) No 1373/70 of the Commission must not be interpreted as meaning that the loss of an import licence automatically entails the lapse of the obligation to import created by its issue.

2. The loss of an import licence constitutes a case of force majeure within the meaning of Article 18 of Regulation No 1373/70 when such loss occurs despite the fact that the titular holder of the licence has taken all the precautions which could reasonably be expected of a prudent and diligent trader.

3. It is for the competent national court to decide, after weighing all the factual circumstances in which the trader was placed, whether the titular holder of a licence has acted as a prudent and diligent trader.

4. A request made pursuant to Article 18 (1) of Regulation No 1373/70 may be submitted after the period of validity of the licence has expired.

Lecourt Sørensen Monaco

Mertens de Wilmars Pescatore Kutscher Ó Dálaigh