C-71/82

In so far as the narrowly-defined ex- that the period of validity of an export ceptions, which are restricted to cases o í licence for which the refund has been force majeure, do not in principle affeci t fixed in advance may be extended for a the reliability of the licensing system, the: period of time which has expired — that effects of a decision to extend the perioc1 is to say, retroactively — where the of validity of an export licence taker competent authority has wrongly refused because of the existence of a case of forae to grant in due time an extension majeure must come into play regardles! ; justified by a case of force majeure and of whether such extension occurs before: where as a result it has been necessary or after the expiry of the period oiF for the export to be effected on the basis validity of the licence. of a fresh licence relating to the same transaction; in such a case, the fresh Article 9 (1) of Regulation No 473/6/' licence has no legal effect and must be must therefore be interpreted as meaning; formally cancelled.

In Case 71/82

REFERENCE to the Court under Article 177 of the EEC Treaty by the Bundesverwaltungsgericht [Federal Administrative Court], for a preliminary ruling in the proceedings pending before that court between

BUNDESANSTALT FÜR LANDWIRTSCHAFTLICHE MARKTORDNUNG [Federal Office for the Organization of Agricultural Markets], Frankfurt am Main,

I — Language of the Case: German.

JUDGMENT OF 16. 12. 1982 — CASE 71/12

gives the following

JUDGMENT

Facts and Issues

The faas of the case, the course of the EEC, a licence for the export to Peru of procedure and the written observations 595 920 kg of groats, valid unul 31 May submitted pursuant to Article 20 of the 1970. The groats were to be produced Protocol on the Statute of the Court of from oats imported from the German Justice of the EEC may be summarized Democratic Republic. The refund had as follows: been fixed in advance in accordance with Regulation No 120/67/EEC of the Council of 13 June 1967 on the common organization of the market in cereals I — Facts and written procedure (Official Journal, English Special Edition 1967, p. 33). The undertaking H. and J. Brüggen had requested and on 27 November 1969 obtained from the appellant, in However, a suspension of shipping in the accordance with Regulation No 473/67/ German Democratic Republic because

BALM v BRUGGEN

question. However, in view of Brilggen's interest Its request dated 13 May 1970 for an in obtaining recognition of its right to extension of the validity of the licence make the export at the rate of refund was refused by the appellant on the fixed by the first licence and the fact that ground that there was no case of force it is impossible to institute proceedings majeure to justify such extension. for damages against the national administration in the absence of manifest Bruggen was therefore compelled in June error on its part, the Bundesverwal 1970 to apply for a new Učence, which tungsgericht decided by order of was issued to it, for the export of the 17 December 1981 to refer the following remaining quantity. However, the rate of question to the Court of Justice for a refund applicable in June 1970, DM preliminary ruling under Article 177 of 288.96 per tonne, was lower than the the EEC Treaty: rate fixed in advance, DM 307.05 per tonne, paid on the basis of the original "Does Article 9 (1) of Regulation licence; Bruggen thus suffered a loss of No 473/67/EEC of the Commissison of DM 5 388.67. 21 August 1967 (Amtsblatt L 204, 24. 8. 1967, p. 16) permit the validity of Nevertheless, Bruggen pursued its an export licence in which the amount of request for an extension of the first the refund is fixed in advance to be licence before the German administrative extended for a period already past, thus court, which found in its favour at first giving it retroactive effect, in order to

However, In accordance with Article 20 of the before the Bundesverwaltungsgericht it Protocol on the Statute of the Coun of repeated in the alternative the claim Justice of the European Economic made at first instance. Community, written observations were lodged by the Commission of the The Bundesverwaltungsgericht accepts European Communities, represented for that Bruggen is entitled to an extension that purpose by J. Sack, acting as Agent, on the ground of force majeure but and by H. und J. Bruggen, represented doubts whether it is possible after the by Mrs Festge.

Upon hearing the repon of the Judge- virtually, and in certain cases wholly, Rapporteur and the views of the impossible to enable him to exercise his Advocate General, the Court decided to rights in any other way. The Commission open the oral procedure without any states that national law will generally preparatory inquiry. make it possible to bring claims for damages against national authorities only in cases where the defective decision may be attributed to the national authority. II — Written observations sub- That will not often be possible in cases mitted under Article 20 of of force majeure which are difficult to the Protocol on the Statute zssess under Community law.

On majeure, the Commission contends that it the other hand, it would be impossible is possible under Article 9 of Regulation also to grant to it the refund fixed in No 473/67 when the application for advance, because there would clearly be such extension has wrongly been refused no legal basis for so doing, since the and the goods have for that reason been goods were not exported on the basis of exported on the basis of another export the licence in question. However, in this licence. regard it is also important that the respondent should be able to enforce his In support of that view, it puts forward right, which is possible only by means of the following arguments: the retroactive extension of the licence. It is almost inconceivable that in an action on the existence of a case oí force Consequently, the Commission considers majeure, it could be definitivelv decided that only very serious grounds affecting in the short time available whether or not the public interest can justify prevent- there is a right to the extension of the ing the respondent from effectively period of validity of the export licence. exercising the rights which are conferred upon him by a legal provision.

BALM v BRUGGEN

of national law. This case does not relate within the meaning of the applicable to the application of rules of national law provisions of Community law. intended to supplement those of Community law, but the complete According to the Commission from the implementation of rights conferred by premise that legitimate applications for Community law itself. In this case it annulment or extensions of the period of should therefore be considered that validity of licences are not very frequent restrictions other than those expressly and therefore the adverse effects on the provided for by Community law may be functioning of the licensing system are applied only in wholly exceptional cases. felt only within narrow limits, the conclusion is reached that it does not The Commission adds that the retro- appear justifiable in this context to active extension of an export licence is restrict the full exercise by the person inevitably coupled with the annulment of concerned of the rights which are a second licence and that it cannot be conferred upon him by Community denied that the amendments to be made legislation. to the two licences adversely affect the reliability of the system of import and The Commission states that on the other export licences which applies to agri- hand another problem arises in this cultural products in the framework of connection which is much more difficult the common organization of the market. to solve, in relation to the legal basis for That is all the more so in the the annulment of the second licence, by Commission's view when the amend- virtue of which the goods were exported. ments are made — as in this case — Regulation No 473/67 does not provide more than 12 years after the transactions for annulment in such a case.

In that case the authority concerned have no influence. In cases of would be required to annul the second force majeure which may be objectively licence as a result of the right to the proved, the danger is therefore elimination of the consequences arising considerably less. out of an illegal act (Folgenbeseitigungs- anspruch) developed by German case- Indeed, the Commission observes that if law. However, in this case a question it is to be accepted that genuine cases of arises which can be setded only on the force majeure are to remain the exception basis of Community law alone.

In the absence of express rules of Bruggen also considers first that the Community law on this point and having retroactive extension of the validity of a regard to the fact that a solution of the licence for a period already past is problem is necessary in order to ensure possible by virtue of existing legislation. the effective protection of those In support of that argument it cites concerned, the Commission considers Article 36 (2) of Commission Regulation that there is nothing to prevent the No 3183/80 which provides that the Court of Justice from introducing, in request to extend the period validity of a order to complete Community law by licence may be made up to 30 days after way of judicial pronouncement, an the expiry of such period of validity, that obligation on the part of the authority to is to say that the administrative decision annul an export licence which has had to sought is made even later.

which was unlawfully refused and In conclusion, the Commission proposes therefore of necessity on the basis of a that the Court should reply to the fresh licence. question put to it by the Bundesverwal- tungsgericht as follows: In that regard it refers to the judgment 'The period of validity of an expon of the Court of 20 February 1975 in licence issued in accordance with Article Case 64/74, Reich v HauptzoUamt 12 of Regulation No 120/67/EEC of the Landau, [1975] ECR 261, in which the Council of 13 June 1967 on the common Court stated that the rate of levy fixed in organization of the market in cereals, for advance continues to apply in the case of which the refund was fixed in advance in delayed importation provided that the accordance with Article 16 (4) of that delay is due to a case of force majeure.

BALM v BRUGGEN

Furthermore, Bruggen maintains that the At the sitting on 7 October 1982, oral application for the grant of a higher rate argument was presented by the follow- of refund fixed in advance for the goods ing: Barbara Festge, Rechtsanwäliin, exported here by virtue of a new licence Hamburg, for H. und J. Bruggen; is based on the principle of proportion- Albrecht Stockburger, Rechtsanwalt, ality, inasmuch as Community law must Hamburg, for the Bundesanstalt für not impose any charge which is not landwirtschaftliche Marktordnung; and necessary to achieve the objectives of the Jörn Sack, acting as Agent, for the Treaty. It stresses that, in particular, Commission of the European Com- according to the Opinion of Mr munities.

JUDGMENT OF 16. 12. IM2 — CASE 71/82

The Advocate General delivered his death of Judge Chloros, its President, to Opinion at the sitting on 11 November re-open the oral procedure before the 1982. newly-composed Chamber.

At the sitting on 7 October 1982, the The parties to the action informed the Court (Second Chamber) was composed Second Chamber that they would not of A. Chloros, President, and O. Due participate in the sitting on 2 December and K. Bahlmann, Judges. 1982 and referred to the submissions and arguments set out in their oral arguments According to Article 27 (2) of the Rules at the sitting on 7 October 1982. of Procedure only those judges who were present at the oral proceedings may take part in the deliberations. The At the same sitting the Advocate General Second Chamber, by order of 17 confirmed the Opinion delivered at the November 1982, decided, owing to the sitting on 11 November 1982.

4 That request for an extension was refused by the predecessor of the Bundes- anstalt für landwirtschaftliche Marktordnung on the ground that, although Article 9 (2) of Regulation No 473/67/EEC does in fact include among cases of force majeure the suspension of inland shipping owing to the formation of ice, the undertaking concerned could not rely upon that provision, because the situation constituting a case of force majeure had prevented only the import of the raw material to be used for the manufacture of the goods not the export of the goods actually covered by the licence.

5 The plaintiff was therefore compelled to apply for a new licence, after the grant of which it was able to export the remaining quantity of 297 881 kg of groats after 31 May 1970. However, the rate of refund paid on the basis of the new licence was DM 288.96 per tonne as against the rate of refund paid on the basis of the first licence, DM 307.05 per tonne, which resulted in a loss to Bruggen of DM 5 388.67.

6 At first instance and on appeal, the national courts recognized in substance that the plaintiff ought to have obtained the extension of the period of validity of the first export licence and that it should therefore be placed in the situation in which it would have been if its original application had been granted.

7 The Bundesverwaltungsgericht, before which the matter was brought, agrees with the lower courts that the defendant ought to have granted to Bruggen the extension of the period of validity of the licence. On the other hand, it expresses reservations as to the possibility of a retroactive extension of the validity of the expired licence, which would be the only means of placing the undertaking concerned in the position in which it would have been if the export had been effected under the first licence but would be incompatible with national law, which does not permit the plaintiff to bring a Folgenbeseitigungsanspruch [an application to remedy the consequences of administrative action] on the basis of a wrong decision by the administration.

12 It must first be stated that it is clear from the provisions and general scheme of Anicie 9(1) and (2) of Regulation No 473/67/EEC that the existence of a case of force majeure is a condition which is both necessary and sufficient for the extension of the period of validity of a licence for the import or export of cereals.

1 3 Consequently, if in the view of the national authorities, which in such a matter are subject to the jurisdiction of the competent courts, the existence of a case oí force majeure cannot or can no longer be disputed, the importers and exporters concerned are entitled on demand to an extension of the period of validity of the licences.

BALM v BRUGGEN

1 4 In relation to the question of the retroactive extension of the period of validity of the export licence, it must be stated that the plaintiffs right to such an extension is intended to enable it to effect the export transaction at the rate of refund fixed in advance in that licence in spite of the obstacles arising out of the events which have constituted force majeure; its right must therefore be such as to produce all the effects necessary for that purpose.

15 In so far as the narrowly-defined exceptions, which are restricted to cases of force majeure, do not in principle affect the reliability of the licensing system, the effects of a decision to extend the period of validity of an export licence taken because of the existence of a case oí force majeure must come into play regardless of whether such extension occurs before or after the expiry of the period of validity of the licence.

JUDGMENT OF 16. 12. 1982 — CASE 71/82

8 It therefore follows that, on grounds relating to the legal protection of the licence holder, a retroactive extension which does not have an appreciable effect on the reliability of the licensing system must be considered valid under Article 9 (1) of Regulation No 473/67.

9 It should also be stated that the recognition of the validity of such retroactive extension raises the question of the validity of the second licence which was issued to the plaintiff in the main action in this case.

io It follows from the considerations set out above that in so far as the first licence, the period of validity of which has been extended, takes full effect, the second, which relates to the same export transaction, automatically ceases to have effe« and must be formally cancelled.

2i The answer to the question submitted to the Court must therefore be that Article 9 (1) of Regulation No 473/67 must be interpreted as meaning that the period of validity of an export licence for which the refund has been fixed in advance may be extended for a period of time which has expired — that is to say, retroactively — where the competent authority has wrongly refused to grant in due time an extension justified by a case of force majeure and where as a result it has been necessary for the export to be effected on the basis of a fresh licence relating to the same transaction; in such a case, the fresh licence has no legal effect and must be formally cancelled.

Costs 22 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable.

Pescatore Due Bahlmann

Delivered in open court in Luxembourg on 16 December 1982.

The Registrar by order P. Pescatore H. A. Rühl Principal Administrator President of the Second Chamber

OPINION OF MR ADVOCATE GENERAL REISCHL DELIVERED ON 2 DECEMBER 1982 »

Mr President, mittel [Import and Storage Agency for Members of the Court, Cereals and Feeding-stuffs] with a licence for the export to Peru of 595 920 kg of groats in which the refund was The facts of the reference for a pre­ fixed in advance and which was valid liminary ruling on which I give my until 31 May 1970. The groažs were to be manufactured from oats which should opinion today may be summarized as have been delivered to Lübeck by inland follows: waterways from the German Democratic Firma H. und J. Bruggen, the plaintiff Republic in two consignments, one in the first and the other in the second half of and respondent in the appeal on a point April 1970. However, owing to the of law in the main action, carries on a exceptionally severe winter which cereal processing business in Lübeck. On resulted in the lengthy blockage by ice of payment of a desposit it was issued by the inland shipping routes in the German what was then the Einfuhr- und Democratic Republic, delivery of the Vorraisstelle für Getreide and Futter­

1 — Translated from the German.