C-145/85

DENKAVIT v BELGIUM

OPINION OF MR ADVOCATE GENERAL MISCHO delivered on 23 September 1986*

Mr President, 1. The starting point for the two-month Members of the Court, payment period

* Translated from the French.

OPINION OF MR MISCHO —CASE 145/85

Article 17 and its purpose. No 343/74 of 11 February 1974 (Official Journal 1974, L 40, p. 4), which introduced In the first place, its wording is clear: the the notion of a time-limit for payment of period runs 'from the day of deposit of monetary compensatory amounts into sufficient supporting documents'. Clearly the regulations on the application of that deposit is the responsibility of the compensatory amounts, makes it clear that claimant and cannot depend on the conduct the aim of that provision is 'to avoid of the authority with which he lodges his distortion of competition between those in request. the trades concerned in the Member States'. The same reasoning is given in the 14th The relevant authority may indeed verify recital in the preamble to Commission whether the documentation is complete — Regulation (EEC) No 1380/75 of 29 May that is, whether all the required documents 1975 (Official Journal 1975, L 139, p. 37), are joined to the request — but the claimant the section of which relating to the rules for must in any event be in a position to know the administrative application of monetary the exact date on which the period begins to compensatory amounts was the predecessor

If that document had not been submitted the request would have been sent back and Finally, it is only natural and equitable for the two-month period would not have the two-month time-limit to be as commenced. mandatory and objective as the time-limit imposed on claimants by Article 17 (2) of Otherwise the request would have been the same regulation. Except in cases of force registered without delay and the date of majeure, entitlement to the grant of

It is quite a different matter if the relevant authority finds that the claimant's entit­ '2. May force majeure within the meaning of lement to monetary compensatory amounts Article 17 (3) (a) of Commission Regu­ is open to doubt. In such a case Article 17 lation (EEC) No 1371/81 be pleaded if (3) (b) empowers it to open administrative the complexity of the rules on the grant inquiries lasting until entitlement to of monetary compensatory amounts for compensatory amounts is finally established, a particular agricultural sector, and the which may delay payment beyond the two- resulting difficulty in checking the month time-limit. In that case, however, the documents deposited and computing the administration is obliged to inform the amounts applicable, make it impossible claimant that inquiries have been opened for the competent national authority of and that as a result it may not be possible to a Member State to comply with the comply with the time-limit. two-month time-limit laid down in Article 17 (3), even by using all the staff 1 — That judgment deals with Regulation No 1380/75, of available, owing to a sudden great which Articles 14, 15 and 16 correspond, with slight differences in wording, to Article 17 (1), (2) and (3) of increase in the number of requests for Regulation No 1371/81. monetary compensatory amounts?

OPINION OF MR MISCHO — CASE 145/85

(a) the sudden sharp increase in requests for It is true that almost all the cases of force monetary compensatory amounts, which majeure pleaded before the Court were was due to the fact that between 22 pleaded by undertakings or individuals. February 1982, when the Belgian/ Luxembourg franc was devalued, and 23 May 1983 monetary compensatory In the only three cases in which, to my amounts had to be extended for the first knowledge, force majeure was pleaded by a time to imports into Belgium of agri­ Member State, the Member State was cultural products from the Netherlands, seeking to justify its failure to fulfil an obli­ Belgium's largest trading partner for gation in proceedings under Article 169 of imported agricultural products; the EEC Treaty. In the first two cases (judgment of 5 May 1970, Case 77/69 Commission v Belgium [1970] ECR 237 and (b) insufficient staff at the Central judgment of 18 November 1970, Case 8/70 Department, which could not be Commission v Italy [1970] ECR 961), the remedied owing to the budgetary Court rejected pleas of force majeure based restrictions imposed by law; 2 — On a number of identical occasions in the recent past the Court has used two other substantially identical formu- lations to define the concept of force majeure: '... apart from the special features of the specific areas in which it is (c) the complexity of the system of used, the concept of force majeure essentially covers unusual circumstances which make it impossible for the relevant monetary compensatory amounts in the action to be carried out. Even though it does not pre- animal feedingstuffs sector, which is apt suppose absolute impossibility, it nevertheless requires abnormal difficulties, independent of the will of the person to produce delays in the administrative concerned and apparently inevitable even if all due care is taken' (see judgments of 9 February 1984, Case 284/82 procedure for determining entitlement Busseniv Commission [1984] ECR 557; 30 May 1984, Case to compensatory amounts and for 224/83 Ferriera Vittoria v Commission [1984] ECR 2349; 12 July/ 1984, Case 209/83 Ferriera Valsabbia v Commission paying them. [1984] ECR 3089). The other formulation is: ' ... recognition of circumstances of force majeure presupposes that the external cause relied on by individuals has consequences which are inexorable and inevitable to the point of making it objectively For their part, Denkavit and the Commission impossible for the persons concerned to comply with their are of the view that none of those circum­ obligations' (judgments of 18 March 1980, Joined Cases 154/78 et al Valsabbia and Others v Commission [1980] stances satisfies the criteria which must be ECR 907; 13 November 1984, Joined Cases 98 and 230/83 satisfied, according to the judgments of the Van Cend & Loos v Commission [1984] ECR 3763).

on the dilatoriness of the parliamentary It follows that the competent authorities procedure on the ground that 'the liability must show the greatest diligence in the of a Member State under Article 169 arises application of that provision. whatever the agency of the State whose action or inaction is the cause of the failure to fulfil its obligations, even in the case of a constitutionally independent institution'. The only cases in which the time-limit may be exceeded are the exceptional cases speci­ fically mentioned, namely force majeure and where administrative inquiries are opened. In a more recent case (judgment of 11 July 1985, Case 101/84 Commission v Italy [1985] ECR 2629), the Court acknowledged that a bomb attack which had destroyed (a) Is the difficulty in calculating monetary equipment at a statistical data bank 'may compensatory amounts in the animal feed- have constituted a case of force majeure and ingstuffs sector capable of constituting a created insurmountable difficulties' but did case of force majeure or one of the ingre­ not in the event uphold the plea because 'its dients of force majeure} effect could only have lasted a certain time, namely the time which would in fact be necessary for an administration showing a On this point I share the view of the normal degree of diligence to replace the Commission that 'it is extremely unlikely equipment destroyed and to collect and that the author of the Community legis­ prepare the data' (paragraph 16 of the lation intended to lay down a time-limit for Decision). payment with which it was objectively impossible to comply, even in normal circumstances, in a given agricultural sector. It is still less probable that [it] intended that That said, I do not think that those objective impossibility to be covered by the judgments can be taken to indicate that the exception provided for in "cases of force Court draws a distinction according to majeure" by Article 17 (3) (a)'. whether the plea of force majeure is put forward by an individual or an undertaking or by a Member State. On the contrary, it seems to me that the judgments I have If it had taken the view that the animal referred to must be applicable to anyone feedingstuffs sector might create special and that consideration of whether there has difficulties, the author of the Community been force majeure cannot be affected merely legislation would surely have fixed a period by differences in the legal context in which longer than two months for that sector at that concept is to have effect. least.

Indeed it would scarcely seem possible to It must therefore have been assumed that regard the complexity of Community legis the Member States would take the necessary lation which a Member State has taken part measures in order to ensure that, if in drafting as constituting an unusual and monetary compensatory amounts were unforeseeable difficulty which has proved introduced or extended in their trade with insurmountable for that State's staff despite other countries, the relevant authorities all possible diligence in overcoming it. would be equipped to deal with the contingency.

the products'. Finally, it is clear from the way in which the Thus Belgium, too, should have taken national court formulated Question 2 that certain precautions in that regard. it, too, does not accept that the complexity of the calculations can in itself constitute a The possibility that negative compensatory case of force majeure, for it cites that factor amounts would be introduced on imports of only in conjunction with 'a sudden great agricultural products from Belgium's main increase in the number of requests'. trading partner for such products, namely the Netherlands, could certainly no longer (b) That point calls for the following obser be regarded as an unforeseeable event after

countries. Regulation No 1371/81 by Commission Regulation No 2898/81 of 7 October 1981, Thus an absence of monetary compensatory Official Journal 1981, L 287, p. 1). amounts suddenly gives way to an avalanche of requests. (c) As for the lack of sufficient staff due to It is clear that that represents a shock for budgetary restrictions imposed by law, that any administration even if it is well staffed too is something that cannot be regarded as Yet the Community legislature did not an ingredient of force majeure because it is provide for a transitional period (for an element attributable to the Belgian State example, by laying down a provisionally and is therefore hardly outside its control. longer payment period) to deal with the case where a Member State has to introduce Moreover, the relevant authorities might monetary compensatory amounts for the have been able to keep to the two-month first time. time-limit even with their existing staff by

2. Force majeure within the meaning of Article 17 (3) (a) of Commission Regu­ lation (EEC) No 1371/81 may not be pleaded when the complexity of the rules on the grant of monetary compensatory amounts for a particular agricultural sector, and the resulting difficulty in checking the documents deposited and computing the amounts applicable, make it impossible for the competent national authority of a Member State to comply with the two-month time-limit laid down in Article 17 (3), even by using all the staff available, owing to a sudden great increase in the number of requests for monetary compensatory amounts.

3. The competent national authority may not plead force majeure within the meaning of Article 17 (3) (a) of Commission Regulation (EEC) No 1371/81 when, as a result of national legislation imposing budgetary restrictions, its staff cannot be increased to meet a sudden sharp increase in the number of requests for the grant of monetary compensatory amounts.

The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the proceedings before the national court, costs are a matter for that court.