C-3/74

WILHELM PEÜTZENREUTER, Düsseldorf-Benrath,

on the interpretation of Articles 3, 7 (2) and 8 (2) of Regulation No 102/64 of the Commission of 28 July 1964, on import and export licences for cereals, processed cereal products, rice, broken rice and processed rice products (OJ No L 126 of 6 August 1964, p. 2125),

THE COURT

composed of: R. Lecourt, President, A. M. Donner (Rapporteur) and M. Sørensen, Presidents of Chambers, R. Monaco, J. Mertens de Wilmars, P. Pescatore, H. Kutscher, C. Ó Dalaigh and A. J. Mackenzie Stuart, Judges,

Advocate-General: G. Reischl Registrar: A. Van Houtte

gives the following

This complaint was rejected. The facts and written procedure may be The plaintiff then brought an action summarized as follows: before the Verwaltungsgericht of Frankfurt-on-Main. Its request was 1. On 3 February 1967, the plaintiff in upheld and the decisions in issue as to the main action obtained from the the forfeiture of security were annulled. defendant in the main action two import The defendant appealed and the licences for a total of 500 000 kg of Verwaltungsgerichtshof of Hesse con­ French brewing barley, the licences being firmed the judgment of the court of first valid until 31 May 1967. To ensure that instance on the ground that since, at the such imports were effected, the company time of proceedings the Community furnished security of 10 000 DM. legislature had given no definition of the On the basis of these two licences the concept of importation, the national company imported, up to 24 May 1967, provisions on that subject, in this case 260 464 kg of goods, the formalities German law, must be considered being conducted by the customs offices decisive. According to that law at Andernach and Diisseldorf. importation is completed when the On 31 May 1967 the Company goods have been transferred from a submitted a request for a further 250 000 foreign economic territory to that of the kg of barley, on board ship, at the Federal Republic of Germany. The customs office at Emmerich-Hafen, goods were submitted to the customs which, the same day, duly certified that office at Emmerich-Hafen upon German the goods had crossed the frontier and territory before the expiry of the time-limit set for importation and the placed the cargo under customs bond for security should therefore not have been transportation to the customs office at Diisseldorf, where it was unloaded and declared forfeit, even in part. put in free circulation on 5 June 1967. 2. The defendant brought an appeal on By two decisions of 12 June 1967 the a point of law against this judgment to defendant in the main action declared the Bundesverwaltungsgericht which the security to be partially forfeit in the decided, pursuant to Article 177 of the sum of 2 386.33 DM by reason of the EEC treaty, to stay the proceedings and fact that part of the stated quantities had to refer to the Court of Justice the not been imported before the time limit. following preliminary questions: In its complaint of 22 June 1967 against i. is tne concept ot importation these decisions the plaintiff claimed that contained in Article 7 (2) of the quantity of goods at issue could not Regulation No 102/64/EEC to be be cleared at the customs office at interpreted: Emmerich-Hafen because the necessary (a) according to national law? documents, which had been required by the customs offices at Andernach and (b) if question (a) is answered in the Diisseldorf for the customs clearence of negative: when is an obligation to the previous amounts and which had import fulfilled, where the been returned by post, did not reach the importer has declared the

Given that the provisions of Regulation 2. Is the national court competent to recognize the existence of a case of No 102/64 do not expressly empower the Member States to establish their own force majeure in circumstances which are different from those listed in rules of interpretation, it is clear that the Article 8 (2) of Regulation No concept of importation contained in Article 7 (2) of that Regulation cannot 102/64/EEC and those recognized by the Member States pursuant to Article be interpreted according to national law. This conclusion can be based upon the 8 (3)? Are requests for the consideration of circumstances of Judgments of the Court of 18 June 1970 in Case 74/69 (Krohn), Rec. p. 451, 17 force majeure subject to a time limit, December 1970, in Case 25/70 and if so, within what period must they be submitted? (Koster-Berodt), Rec. p. 1161 and 27 October 1971, in Case 6/71 3. The order of the Bundesverwal­ (Rheinmiüblen), Rec. p. 823. tungsgericht was registered at the Court However, the question remains that of on 11 January 1974. knowing whether the concept of Pursuant to Article 20 of the Protocol on importation contained in Article 7 (2) of the Statute of the Court of Justice of the Regulation No 102/64 corresponds to EEC the plaintiff in the main action and the interpretation traditionally put upon the Commission of the European that concept by the Member States. In Communities submitted written obser­ this connexion the plaintiff in the main vations. action notes that Regulation No 102/64 The plaintiff in the main action was forms part of the rules laid down for the represented by P. Wendt of the transitional period. During this period Hamburg Bar and the Commission was national market organizations remained in force. At the time the Council and represented by its Legal Adviser, P. Gilsdorf. the Commission did not judge it necessary to define the concept of Having heard the report or the importation. It would in fact have been Judge-Rapporteur and the opinion of the Advocate-General the Court decided to impossible to give a uniform Community definition, in view of the open the oral procedure without any differences arising from the existence of preparatory enquiry. separate national market organizations. It was only when the rules laid down for the final stage of the common II — Written observations agricultural policy came into force that submitted to the Community rules for imports were Court pursuant to established. Reference is made here to Article 20 of the Regulations Nos 1496/68 of the Council Protocol on the Stat­ of 25 September 1968 on the definition ute of the Court of of the customs territory of the Justice of the EEC Community (OJ of 28 September 1968, L 238/1) and 542/69 of the Council of 1. The plaintiff in the main action 18 May 1969 on Community transit (OJ notes that the Member States are not of 29 March 1969, L 77/1). empowered to promulgate rules of The case law of the Bundesfinanzhof interpretation of concepts relating to shows that the latter has taken account Community law. Nor are they of the details of the system laid down for competent to give a prescriptive the transitional period when applying

integration of the national agricultural (Schleswig-Holsteinische landwirtschaft- policies and markets during the liche Hauptgenossenschaft), Rec. 1083. transitional period. Under the system The last-mentioned Judgment was laid down in the basic Regulation No concerned with the interpretation of 19/62 of the Council of 4 April 1962 (OJ Article 15 (1) of Regulation No 120/67 1962, p. 965) the integration of markets of the Council of 13 June 1967 (OJ No principally concerned the unification and 117, p. 2269). The expression 'day of harmonization of customs duties, levies, importation' contained in that provision Quantitative restrictions etc. The was interpreted with regard to the unification of customs procedures objective of the levy system instituted by assumed a secondary importance. Regulation No 120/67. Accordingly, the principle of the uniform The concept of importation contained in application of Community law is of Article 7 (2) of Regulation No 102/64 significance only for the interpretation of must be approached in the same fashion concepts such as levies or quantitative if a correct interpretation is to be restrictions. Viewed in this way, even the obtained. In the words of the seventh concept of discrimination as contained at recital of the preamble to that Article 40 (3) has only a limited sphere Regulation it is the purpose of the of application during the transitional security 'to avoid licences being put into period. Finally, the objective of the circulation which are not then followed licence system, instituted by Regulation by import and export' and, accordingly, No 102/64, does not require that the could give 'a mistaken view of the concept of importation in Article 7 (2) of market situation'. the Regulation should be interpreted The plaintiff concludes from this that uniformly in all Member States. The the objectivesof the levy system as laid objective of the Regulation is to make down by Regulation No 120/67 on the possible accurate forecasts as to future one hand and those of the import-licence trade in agricultural products so that the system on the other are not identical. A competent authority should be able to solution must therefore be found which plan such intervention as may prove takes account both of the particular necessary. Since, during the transitional objective of Regulation No 102/64 and period, trade forecasts could relate only of the legitimate interests of importers. to the various national markets, there The plaintiff refers to Article 41 of the was nothing to prevent the Member Customs Law (Zollgesetz) and to the States applying national criteria for the German doctrine of transport under definition of concepts relating to imports customs bond and concludes that the and exports. The plaintiff in the main declaration of imported goods with a action here refers to the Judgment of the view to their transport under customs Court of 11 July 1968 in Case 4/68 bond constitutes an importation within (Schwarzwaldmilch), Rec. 549. It the meaning of Article 7 (2) of concludes that the concept of Regulation No 102/64, provided that the

goods are not re-exported before being 102/64 can function only if the fact of put into free circulation. putting goods into free circulation is As to the second question, the plaintiff included within the concept of claims that the Court, in its Judgment of importation. Any concept of importation which does not fulfil this condition is 11 July 1968 (Case 4/68) expressly laid down that the enumeration of cases of inadequate for the correct application of the licence system. In particular, the

Transportation under that the wording of Article 8 (2) and (3) customs bond does not in any way predetermine the final destination of the of Regulation No 102/64 is almost identical to that of Article 6 (3) and (4) goods. The importer remains completely of Regulation No 136/64, it may free to re-export the goods without justifiably be concluded that the case law previously putting them into circulation. of the Court cited above is equally valid The very existence of that possibility

followed. At least insofar as concerns for the consideration of circumstances of imports, the rules contained in force majeure may be submitted after the period of validity of the licence has Regulation No 19 are complete and detailed, and the Member States are expired. Although that case was concerned with the interpretation of given no discretionary power in their Article 18 of Regulation No 1373/70, implementation. Accordingly, any inter there is nothing to prevent this case law vention by the national legislature could being applied by analogy here. prejudice the effect of Community provisions, in this case in particular Article 8 of Regulation No 102/64 lays those of Regulation No 102/64. down no time limit for the submission of Moreover, the fact that after the coming the request. It follows from this that the into force of the definitive organization submission of a request for consideration of the market in cereals no definition of of circumstances of force majeure is not the concept of importation was subject to any time limit, apart from the necessary for the purpose of the general limits applicable to the unlawful implementation of the licence system exercise of a right. clearly shows that the Member States no

EINFUHR- UND VORRATSSTELLE GETREIDE v PEÜTZENREUTER

Grounds of judgment

1 By order of 16 November 1973, registered at the Court on 11 January 1974, the Bundesverwaltungsgericht referred to the Court, pursuant to Article 177 of the EEC Treaty, two questions on the interpretation of Regulation No 102/64 of the Commission, of 28 July 1964, on import and export licences for cereals, processed cereal products, rice, broken rice and processed rice products (OJ No 126, p. 2125).

2 According to the order for reference, the main action is essentially concerned with the questions whether certain imports of brewing barley,

JUDGMENT OF 28. 5. 1974 — CASE 3/74

effected in 1967, were completed during the period of validity of the import licences upon which they were entered and if, accordingly, the security furnished pursuant to Article 7 of the Regulation should be released.

3 In this case the importer, the plaintiff in the main action, submitted the amount in question, loaded on board ship, to the customs office at Emmerich-Hafen on 31 May 1967, the final day of the period of validity of the licences in question. On the same day the customs office certified that the goods had crossed the frontier and placed the cargo under customs bond for the purpose of its transportation to the customs office in Diisseldorf where it was given customs clearance, unloaded and put into free circulation on 5 June 1967.

declared the imported goods to the customs for the purpose of its transportation under customs bond.

8 Both the issue of import and export licences and the making of such issue conditional upon the furnishing of security corresponded to the competent authorities' need to be in possession of precise information on the state of the market and projected intra-Community imports and exports.

9 With this in mind, the provisions at issue must be interpreted and applied uniformly in all the Member States so as to avoid certain patterns of trade being treated more favourably than others as a result of differing practices.

10 In fact the development of the rules in relation to agricultural policy is characterized by an effort to define and elucidate the major concepts, such as that of importation, which are intended to facilitate the replacement of differing customs practices within the Member States by a uniform Community practice.

1 In the matter at issue this development was concluded — passing through Regulations Nos 120/67 (OJ 1967, No 117, p. 2269) and 473/67 (OJ 1967, No 204/16), which, in the framework of a more definitive common organization of the market, abolished the issuing of licences for intra-Community trade — in the provisions of Regulation No 1373/70 of the Commission of 10 July 1970, on common detailed rules for the application of the system for import and export licences and advance fixing certificates for agricultural products subject to a single price system.

12 As regards the period of validity of the licences, Article 15 of that Regulation lays down that 'the obligation to import shall be considered to have been fulfilled and the right to import pursuant to the licence or certificate shall be considered to have been exercised on the day when the customs [import] formalities ... are completed'.

18 It must therefore be concluded, in the absence of any more precise requirements on this point, that Article 7 of Regulation No 102/64 does not prevent an importation within the meaning of that Article being defined as the crossing of the frontier of the importing country, duly recorded by the competent customs authorities, provided that it is also established that the goods were subsequently given customs clearance and put into free circulation.

As to the second question

19 Article 8 of Regulation No 102/64 lays down that 'where the import or export cannot be effected during the period of validity of the licence owing to circumstances to be regarded as of force majeure, and there is a request that these circumstances be taken into consideration the obligation to import or export is cancelled or extended in the cases enumerated in paragraphs (2) and (3) of that Article.

20 The second question asks, firstly, if the national court is empowered to recognize the existence of a case of force majeure in circumstances different

EINFUHR- UND VORRATSSTELLE GETREIDE v PFÜTZENREUTER

from those listed in Article 8 (2) of Regulation No 102/64 or from those recognized by the Member States pursuant to Article 8 (3).

26 However, the case in point which has given rise to this reference clearly shows that it would be impossible to establish any strict and absolute rule in this matter, in view of the fact that a case of force majeure might possibly be invoked merely as a subsidiary point, if the party concerned considers that in the circumstances the conditions contained in the Regulation have been fulfilled.

27 It must be concluded that although Article 8 of Regulation No 102/64 does not lay down any specified period for the introduction of a request for the consideration of circumstances of force majeure, it nevertheless requires the

JUDGMENT OF 28 .5. 1974 — CASE 3/74

importers or exporters concerned to substantiate their claims in the fullest possible manner.

Costs

28 The costs incurred by the State of Belgium and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable.

Lecourt Donner Sørensen Monaco Mertens de Wilmars

Pescatore Kutscher Ó Dalaigh Mackenzie Stuart

Delivered in open court in Luxembourg on 28 May 1974.

A. Van Houtte R. Lecourt

Registrar President