C-64/74

While the concept of force majeure in a exceptional circumstances, and is in case such as the present implies that the particular not due to negligence of which failure to observe a time limit provided a prudent importer would not be guilty, for in the licence does not involve the either when entering into a contract to loss of the entitlement to a levy fixed in buy or to carry, or in asserting his rights advance, this is nevertheless on condition against the carrier. that the delay in importation is due to

In Case 64/74,

Reference to the Court under Article 177 of the EEC Treaty by the Finanz- gericht, Rheinland-Pfalz, for a preliminary ruling in the action pending before that court between

FIRMA ADOLF REICH, Stuttgart,

and

HAUPTZOLLAMT LANDAU,

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

gives the following

JUDGMENT

Facts

The order making the reference and the applicable to imports of maize during written observations submitted under September. The licences further stated Article 20 of the Protocol on the Statute that in respect of imports during of the Court of Justice of the EEC may October to December 1963, the daily be summarized as follows: rate of levy for the date of importation would apply. On 3 October 1963, upon clearing the goods for import, the customs office fixed the rate of levy on a I — Facts and written pro- provisional basis. Once it had been cedure notified of the final rate, the office demanded, by way of corrective 1. On 3 October 1963, Firma Adolf assessment dated 6 December 1963, the Reich imported into the Federal Republic final amount applicable. Firma Adolf of Germany two consignments of fodder Reich objected against this assessment to maize from France and cleared them the head office at Landau. When this

through the customs for free circulation. objection was rejected, it appealed to the It submitted on this occasion two import Finanzgericht Rheinland-Pfalz. licences dated 5 and 13 September 1963, Basing itself essentially on Regulation on which the Einfuhr- und Vorratsstelle No 54/62 of the Council and on fur Getreide und Futtermittel (EVSE) Regulation No 87/62 of the had fixed in advance the rate of levy Commission, Firma Reich argues, inter

ought to have been that fixed in advance in the two import licences. A — Observations submitted by Firma The Finanzgericht Rheinland-Pfalz Adolf Reich considered that on this point the suit gives rise to a question of interpretation The plaintiff in the national proceedings of Community law and by order of 29 submits that in the present case the national court considered that in the August 1974 decided to suspend the absence of a decision to this effect on the proceedings and to refer the following question to the Court of Justice for a part of the Court of Justice, it is unable preliminary ruling, in accordance with to apply the provisions of Regulations Article 177 of the EEC Treaty: Nos 87/62 and 54/62 which are involved in these proceedings, on the grounds that 'Are Article 7 (a) of Regulation No 54 of these provisions apply to trade with the Council of 30 June 1962 (OJ 1962, third countries. This hesitation is not p. 1581) and Article 9 of Regulation No however justified. Consequent upon the 87 of the Commission of 25 July 1962 coming into force of Regulation No OJ 1962, p. 1895) to be interpreted as 31/63 of the Council of 2 April 1963 (OJ meaning that the rate of levy fixed in 1963, No 59) the regulations as to the advance upon the import of maize from advance fixing of levies applied in trade a Member State, fixed pursuant to Ar- with third countries, were extended to ticle 2 (1) and (2) of Regulation No 31 of intra-Community trade. the Council of 2 April 1963 (OJ 1963, p. 1225) is also to be applied where the In this connexion, the Community import was not effected in the month legislator did not merely refer to certain indicated in the application for a reason general principles of these regulations which under Article 8 (3) of Regulation but, as emerges from the preamble to the No 87 justifies an exception being made? Regulation and in particular its fourth recital, intended to repeat by implication 2. An office copy of the order referring all the detailed provisions arising therefrom. the matter reached the Court of Justice on 6 September 1974. Amongst these provisions are those Firma Adolf Reich, represented by relating to case of force majeure. On the Jürgen Gündisch, and the Commission contrary hypothesis — which, it may be of the European Communities, added, is not supported by the relevant represented by its legal adviser, Peter legislation — imports from Member Gilsdorf, acting as agent, submitted States would be at a disadvantage when written observations in accordance with compared with those originating in third the provisions of Article 20 of the countries, and the fundamental principle Protocol on the Statute of the Court. of Community preference laid down in the Treaty would thus be violated. After hearing the report of the Judge-Rapporteur and the opinion of the In tact, at the root of Article 8 (1) of Advocate-General, the Court decided to Regulation No 87/63 lies the

fundamental and formally recognized As is shown by the first paragraph, this legal principle that failure to observe a provision assumes that the import time-limit for reasons not attributable to licence states the 'expected month' of the citizen cannot be used against him. import. This requirement was subse- After having referred to the case-law of quently expressly formulated by the Court in Cases 4/68 and 11/70, the Regulation No 87/62 of the Commission plaintiff in the national proceedings of 25 July 1962 (OJ 1962, No 66), concludes by suggesting that the Article 5 (3) of which provides: following answer ought to be given to 'Where the amount of the levy is fixed in the question referred: advance, the import licence shall contain The levy fixed in advance in details as to: accordance with Article 2 (1) and (2) of (a) The expected month of import; Regulation No 31 of the Council of 2 April 1963 (OJ 1963, p. 1225) applies equally to imports which could not be Since the importer does not always effected during the month provided for observe the time-limit laid down, the this purpose by reason of circumstances Community legislator had to deal with outside the importer's control and which the case where importation takes place for that reason are of a kind that would at a date later than that expected. justify an exception being made.' Instead of adjusting the levy in relation to the 'expected month', it was by Article 7 of Regulation No 54/62 of the B — Observations submitted by the Council of 30 June 1962 (OJ 1962, No Commission of the European

countries. According to Article 17 (2) of countries, the Commission provided by the aforementioned Regulation: Article 7 of Regulation No 87/62 that the issue of import or export licences '. . . the levy applicable on the date of shall be subject to the giving of security submission of the application for a which shall be forfeit in whole or in part licence, adjusted according to the where the obligation to import or to threshold price in force at the date of export has not been carried out.

REICH v HAUPTZOLLAMT LANDAU

fixed in advance upon application 4. Bearing all this in mind, the made by the party involved when Commission's attitude on the question applying for the licence, in the case raised is that the problem raised by the of an importation to be effected present case cannot be decided on the during the period of validity of that basis of provisions dealing with trade licence. with third countries. Those provisions 2. In that event the amount of the levy relate to situations other than that which

shall be that applicable on the date of is involved here. Article 9 of Regulation submission of the application for the No 87/62, when considered in licence, adjusted where necessary conjunction with Article 7 of Regulation according to No 54/62, involves a case where for reasons of force majeure the importer (a) the threshold price ... in force in was unable to adhere to the period laid the importing Member State down during the currency of the licence, during the month of importa- a crucial factor in that case. In the tion .. .' present case, the importations in Having thus recapitulated the Com- question in fact took place at a time munity legislation which might be of when the right to import subject to a

JUDGMENT OF 20. 2. 1975 — CASE 64/74

advance. The two rights and, it follows, Although it came into force on 1 the two aspects of the licence, normally November 1963, that is to say after the have the same duration, except in certain date of the importations in question, one cases — such as the present one — must ask oneself whether exceptionally where the period of entitlement to a levy it could not retrospectively be applied to fixed in advance was limited to 30 these imports, so as to ensure equality of September 1963. treatment between importers. Since the rules as to the fixing in The Commission invites the Court to advance of the levy in trade within the examine this suggestion, based not only Community do not provide for the on grounds of equity but also on legal obligation on the part of the importer to principles such as that of 'proportion- indicate the 'expected month of import' ality' and that of equality of burdens'. the system established by these rules is The Commission concludes by suggest- quite different, so that it is not possible ing that the question might be answered to apply Article 9 of Regulation No as follows:

Where this is the the time-limit for reasons of force case, it is nevertheless in accordance with majeure. principles of equity to grant, at the In the light of the applicable provisions, request of the interested party, an the reply can only be in the negative. As extension of the aforementioned period long as Community law does not and consequently to apply the rate of provide that the duration of the licence levy fixed in advance, adjusted according might be extended for reasons of force to the threshold price in force during the majeure, the importer has only one month when the goods were in fact possibility open to him: to renounce imported.' importation, at the same time benefiting from the release of his security.

REICH v HAUPTZOLLAMT LANDAU

European Communities were made at compared with those submitted in the the hearing on 15 January 1975. course of the written procedure. The arguments developed at this hearing The Advocate-General delivered his

did not give rise to any new elements as opinion on 4 February 1975.

Law

1 By order dated 29 August 1974, filed at the Court of Justice on 6 September 1974, the Finanzgericht Rheinland-Pfalz referred under Article 177 of the EEC Treaty a question on the interpretation of certain provisions of Regulation No 54/62 of the Council of 30 June 1962 (OJ 1962, No 54) and of Regulation No 87/62 of the Commission of 25 July 1962 (OJ 1962, No 66).

The Court is asked to decide whether the rate of levy fixed in advance pursuant to Article 2 (1) and (2) of Regulation No 31/63 of the Council of 2 April 1963 (OJ 1963, No 59) on the import of maize from a Member State is also to be applied where the import was not effected in the month indicated in the application for an import licence on a ground which, under Article 8 (3) of Regulation No 87/62, justifies an exception being made.

This possibility was under similar conditions extended to imports of cereals from Member States, by Regulation No 130/62 of the Council of 23 October 1962 (OJ 1962, p. 2555) and as from 1 July 1963 by Regulation No 31/63 of the Council.

Since the benefit provided by these provisions is only granted where the import takes place within the time-limit laid down in the licence, the non-observance of the time-limit normally involves the application of the levy calculated according to the general rule of Article 17 (1) aforementioned.

As regards the importation of cereals from third countries, Regulation No 54 of the Council of 30 June 1962 has expressly in its Article 7 (a) laid down that in the event of the time-limit not being observed 'the levy applicable on the date of submission of the application for a licence shall be adjusted according to the threshold price at the date of importation'.

Having in its sixth recital found that 'it is nevertheless proper to provide special rules to meet exceptional circumstances', Regulation No 87/62 of the Commission excludes by Article 9 thereof the application of Article 7 aforementioned, 'for reasons which justify the case being treated as exceptional under Article 8 (2) and (3) of the present Regulation'.

Nevertheless, since Article 7 of Regulation No 54/62 refers solely to imports of cereals from third countries, the derogation which is made therefrom by Article 9 of Regulation No 87/62 only applied to these imports and could not therefore regulate the case of imports from Member States which were delaved.

5 It must therefore be concluded that the levy fixed in advance under Article 2 (1) and (2) of Regulation No 31/63 of the Council in respect of the importation, even if it is not effected during the month indicated in the importation of maize from a Member State continues to apply to such application for the licence, provided the delay which thus occurred is not due to the conduct of the importer or to circumstances that can normally be foreseen, but to force majeure, as referred to in Article 8 (3) of Regulation No 87/62.

Costs

6 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, costs are a matter for that court.

On those grounds,

OPINION OF MR WARNER — CASE 64/74

THE COURT

Registrar President

OPINION OF MR ADVOCATE-GENERAL WARNER

DELIVERED ON 4 FEBRUARY 1975

My Lords, created by Regulation No 19 of the Council, of 4 April 1962, was in force. This case comes to the Court by way of Your Lordships will also remember that, a reference for a preliminary ruling by under that system, Member States were the Finanzgericht of the Rhineland-Pala- permitted to charge levies on imports tinate. It concerns two importations of from other Member States. The question maize from France into the Federal in this case is as to the amount of the Republic of Germany effected by the levy that the Federal Republic was Plaintiff on 3 October 1963. Your entitled to require the Plaintiff to pay on Lordships will remember that, at that those two importations. time, the common organization of the market in cereals had not yet been The question arises because the Plaintiff established; the transitional system had obtained from the competent