C-296/86
ECLI:EU:C:1988:16
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MCNICHOLL AND OTHERS v MINISTER FOR AGRICULTURE
O P I N I O N OF MR ADVOCATE GENERAL M I S C H O delivered on 19 January 1988 *
Mr President, July 1982 and 15 September 1982 Members of the Court, respectively. 1
1. The three questions submitted by the 5. Those two regulations provided that the High Court of Ireland arise from a dispute meat was to be 'sold for export' and that the about the legality of a decision taken by the sale should take place in accordance with Irish authorities to forfeit part of the the provisions of Commission Regulation security lodged by the plaintiff companies in (EEC) No 985/81 of 9 April 1981 laying the main proceedings upon the sale to them down detailed rules on the sale of frozen of boneless beef held in storage by the Irish beef and veal for export from intervention intervention agency and intended for export stocks and amending Regulation (EEC) N o outside the Community. 1687/76 (Official Journal L 99 of 10 April 1981, p. 38).
2. 20 tonnes of the 166 tonnes purchased by the plaintiffs could not be exported because they were stolen in the United Kingdom 6. Article 1 (2) of Regulation (EEC) N o whilst in the custody of a road-haulage 985/81 provides that: 'Subject to the company. provisions of this regulation, sales shall take place pursuant to the provisions of Regu- lation (EEC) No 2173/79, and in particular Articles 2 to 5 thereof, and of Regulation 3. The first question submitted for a (EEC) No 1687/76.' preliminary ruling is, in essence, whether Article 16 (3) of Commission Regulation No 2173/79 of 4 October 1979 on detailed rules of application for the disposal of beef 7. According to Article 3 (2) of Regulation bought in by intervention agencies (Official (EEC) No 985/81, the security lodged to Journal L 251 of 5 October 1979, p. 12) guarantee exportation may be released only should be interpreted as including the if proof is furnished in accordance with exception in cases of force majeure contained Article 12 of Commission Regulation (EEC) in Article 16 (2) of the same regulation. No 1687/76 of 30 June 1976 laying down common detailed rules for verifying the use and/or destination of products from inter- vention (Official Journal L 190 of 14 July 4. However, it appears from the obser- 1976, p. 1). vations submitted by the Commission that the sales of meat in question were probably 1 — Commission Regulation (EEC) N o 1929/82 of 13 July 1982 on the sale at a price fixed at a standard rate in effected under Commission Regulations advance of boned beef held by the French and Irish inter- (EEC) Nos 1929/82 and 2534/82, of 13 vention agencies and intendeer for export (Official Journal L 209 of 17 July 1982, p. 34), and Commission Regulation (EEC) N o 2534/82 of 15 September 1982 having the same * Translated from the French. title (Official Journal L 271 of 21 September 1982, p. 6).
OPINION OF MR MISCHO — CASE 296/86
8. It follows from that article, read in (a) that the time-limit prescribed for conjunction with Article 2 (1) and Article transaction shall be extended for 3 (1) (a) (as amended by Regulation (EEC) such period as may be considered N o 2675/80) 2, that that proof must show necessary in view of the circum- that the products to be exponed have stances invoked, actually left the geographical territory of the Community.
or 9. If that condition is fulfilled, Article 13 (4) of Regulation (EEC) N o 1687/76 provides, and Article 3 (2) of Regulation (b) if the products have been irre- (EEC) No 985/81 confirms, that the trievably lost, that control shall be security must be released. Article 13 (5) of deemed to have been carried out. the first named regulation further provides: ' O n application by the person concerned, Member States may release the security by instalments in proportion to the quantities However, in those cases of force of products in respect of which the proofs majeure where the measures referred to referred to in paragraph 4 have been in (a) and (b) are not appropriate, the provided'. competent authorities shall inform the Commission, which may provide for the necessary measures under the 10. The case of products which, as a result procedure laid down in Article 38 of of force majeure, have not been put to their Regulation No 136/66/EEC and in the intended use or reached their intended corresponding rticles of the other regu- destination is expressly governed by Article lations on the common organization of 11 of Regulation (EEC) N o 1687/76. markets. '
11. Article 11 (1) provides as follows: 12. There is therefore no doubt that a clear Community provision allows cases of force majeure to be taken into consideration when '(1) Where the prescribed provisions on the meat purchased from an intervention agency use and/or destination cannot be for exportation outside the Community has complied with as a result of force failed to reach its destination within the majeure, the authorities of the Member period allowed. State in which the security has been lodged or, if no security has been lodged, the authorities in the Member State in which the removal from inter- 13. Recognition of force majeure does not, vention stock took place, shall, at the however, lead automatically to the release request of the person concerned, of a security. Depending on the circum- decide: stances, other measures may be adopted (for example, an extension of the period allowed for the operation), or proof may be 2 — Commission Regulation (EEC) No 2675/80 of 17 October 1980 amending Regulation (EEC) No 1687/76 laying furnished that a further condition has been down common detailed rules for verifying the use and/or fulfilled, namely that the goods have been destination of products from intervention (Official Journal L 274 of 18 October 1980, p. 14). irretrievably lost.
MCNICHOLL AND OTHERS v MINISTER FOR AGRICULTURE
14. In view of the foregoing observations, made in order to set the point raised by the first preliminary question in the precise legislative context indicated by all the evidence supplied by the High Court in its judgment, I propose that the Court should reply to that question as follows:
'The situation of a trader who, pursuant to a sale governed by Commission Regu- lations (EEC) Nos 2173/79 and 985/81, has purchased beef or veal from inter- vention stocks but has failed to comply with the obligation to export the meat outside the territory of the Community must be appraised in the light of Commission Regulation (EEC) N o 1687/76. Under Article 11 of that regulation, the existence of a case of force majeure constitutes in such a case a necessary but not a sufficient condition for the release of the security lodged as a guarantee of exportation.'
15. Turning to the second question cultural intervention agency, all the risks submitted for a preliminary ruling, which is which a diligent trader can and should whether the circumstances of this case, as reasonably foresee in the context of that set forth by the High Court of Ireland, transaction, including that of misappro- constitute such a case of force majeure for priation of the butter through the fraudulent the purpose of Article 11 of Regulation conduct of a duly authorized agent of the (EEC) No 1687/76, I would first like to subsequent purchaser. The possibility of refer, as the Irish Government and the such conduct was not a risk which could in Commission have done, to the judgment of no way have been foreseen by the reseller, the Court of 13 December 1979 in Case 42/79 (Milch-, Fett- und Eierkontor v BALM especially in the circumstances described by [1979] ECR 3703), the facts of which were the national court. Consequently, the fact quite similar to the facts of the present case. that, as a result of the said misappro- In Case 42/79 the plaintiff in the main priation, the reseller was unable to ensure proceedings bought butter at a reduced that the goods were actually exported price from intervention stocks on condition cannot be considered as an exceptional and that it was exported outside the Community abnormal circumstance fulfilling the within 30 days but resold it to a third party conditions for a case of force majeure . . .' who in the end did not export it. (paragraph 10).
16. The Court held that: 17. Admittedly, the Court has consistently held (see most recently its judgment of 27 October 1987 in Case 109/86 (Theodorakis 'If, in spite of the background of those v Greece [1987] ECR 4319), that 'the precise provisions, the first purchaser of the butter meaning of this concept [of force majeure] from storage decides to resell it to a third must be determined by reference to the legal party for the purposes of exportation he context in which it is intended to operate' thereby undertakes,'with regard to the agri- (paragraph 6).
OPINION OF MR MISCHO — CASE 296/86
18. However, in the case now before the bility is not entirely unforeseeable nor Court, as in Case 42/79, the legal position wholly unpreventable. was characterized precisely by the obli- gation which the relevant Community regu- lations impose on the purchaser of the agricultural products to export them outside the Community. As in Case 42/79, the 22. Furthermore, an event which could not performance of that obligation is guaranteed constitute a case of force majeure if it had by the lodging of a security which may not happened to the purchaser of the meat be released, except in a case of force himself cannot be treated as an abnormal majeure, unless the products have actually and unforeseeable circumstance, whose been exported. consequences could not have been avoided despite all the care taken, if it happens to a haulage contractor, even if the contractor is not associated with the purchaser and the transportation was subcontracted to him without the purchaser's knowledge. 19. In my opinion, therefore, it may reasonably be concluded in the present case that, if the purchaser of the beef in question, instead of carrying out the required exportation himself, instructs a 23. According to the judgment in Reich v third party to do so, he is not thereby Hauptzollamt Landau, 3 the trader must also released from his obligation to export; he display vigilance in his dealings with the continues to bear, with regard to the inter- carrier, for there are acts of: vention agency, all the risks which a diligent trader can and should reasonably foresee and consequently he must be responsible for any misconduct or negligence on the part of that third party. 'negligence of which a prudent importer would not be guilty, either when entering into a contract to buy or to carry, or in asserting his rights against the carrier' (paragraph 4).
20. I would go so far as to say that the above principle is all the more valid in this case in which the purchaser has not resold the products in question but has merely In that connection the Commission is right instructed a transport undertaking to take to point out that 'if Terrytrans (the carrier charge of their exportation. engaged directly by the plaintiffs) acted within its authority in concluding the subcontract, then the plaintiffs must bear indirect liability for the acts of Mr Charles Ward and his "partner". If, on the other hand, Terrytrans exceeded its authority by 21. It can hardly be doubted that, if the subcontracting the work, then the plaintiffs meat had been misappropriated by an probably have a remedy against that employee of the plaintiff companies while it company". was in the warehouses or on a lorry belonging to them, there would have been 3 — Judgment of 20 February 1975 in Case 64/74 Reich v no question of force majeure. Such a possi- HauptzoUaml Landau [1975] ECR 261, at p. 267.
MCNICHOLL AND OTHERS v MINISTER FOR AGRICULTURE
24. I therefore p r o p o s e that the C o u r t should answer the second question in t h e negative a n d rule as follows:
'An inability o n the p a r t of a purchaser of beef from intervention stocks for exportation t o fulfil his obligation to export the beef o n account of the fraud a n d / o r negligence of an i n d e p e n d e n t haulage contractor, t o w h o m the task of carrying the g o o d s was subcontracted w i t h o u t the purchaser's k n o w l e d g e , d o e s n o t constitute a case of force majeure for the purposes of Article 11 of C o m m i s s i o n Regulation N o 1 6 8 7 / 7 6 . '
25. In its third preliminary question the what is appropriate and necessary to attain national court asks in substance whether the the objective sought. principle of proportionality, as a general principle of Community law, simply requires the intervention agency to determine the amount of the security to be forfeited solely 28. In this instance, as is shown by the on the basis of the tonnage which has not second recital of the preambles to been exported or whether, on the other Commission Regulations (EEC) Nos hand, that principle requires it to take 1929/82 and 2534/82, the objective sought account of other factors as well, such as was to dispose of meat held in substantial those set out in paragraph (c) of the quantities by the French and Irish inter- question. vention agencies in certain non-member countries where outlets existed in order to avoid extending the period of its storage on account of the ensuing high costs. The meat 26. According to consistent case-law, offered for sale for that purpose was referred to most recently in the judgment of expressly intended for exportation, and it 30 June 1987 in Case 47/86 (Roquette frères was precisely in order to ensure compliance v Office national interprofessionnel des with the obligation to export that provision céréales [1987] ECR 2889), was made for the furnishing of a security.
'In order to establish whether a provision of Community law is in conformity with the 29. As the Irish Government rightly points principle of proportionality it is necessary to out, if a quantity of such meat — purchased ascertain whether the means which it at a favourable price — is not exported, it employs are suitable for attaining the usually finds its way back on to the objective sought, and whether they do not Community market where it displaces an exceed what is necessary for achieving it' equivalent quantity of meat which must in (paragraph 19). turn find its way into intervention.
27. That principle therefore requires that 30. However, it is also settled case-law, to the penalty for failure to comply with a which the Court referred in its judgment of Community obligation should not exceed 27 November 1986 in Case 21/85 (Maas v
OPINION OF MR MISCHO —CASE 296/86
BALM [1986] ECR 3537), that '[if] the obli- 32. Indeed, Article 13 (5) of Regulation gations at issue . . . must be regarded as (EEC) No 1687/76 expressly envisaged that principal obligations whose observance is of possibility. fundamental importance to the proper func- tioning of a Community system..., infringement [of them] may be punished by 33. On the other hand, given the funda- total forfeiture of the security, without there mental importance of the obligation to being any breach of the principle of propor- export, the principle of proportionality does tionality . . . ' (paragraph 15). not require other considerations to be taken into account, except of course cases of force 31. In the context of the regulations at issue majeure involving the irretrievable loss of the in this case, forfeiture of the security in goods in which, strictly speaking, no proportion to the quantity not exported is question of proportionality arises since the therefore by no means disproportionate to entire security should be released in any the objective sought. case.
34. In view of the foregoing I propose that the Court should give the following reply to the third preliminary question:
'Where a trader has undertaken to export a given quantity of beef or veal but fails to export part of it, the principle of proportionality is properly applied if the security is released in proportion to the quantity exported. In the absence of force majeure, the remainder of the security should not be released, regardless of any other consideration.'