C-208/01
ECLI:EU:C:2002:310
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PARRAS MEDINA
OPINION OF ADVOCATE GENERAL STIX-HACKL delivered on 28 May 2002 1
I — Introduction wine shall each year declare the quantities produced from the last harvest. It also requires producers of must and wine, and merchants other than retailers, to declare 1. In the present case the Court is essen- their stocks of must and wine. tially asked to clarify whether the death of the director of an agricultural undertaking is to be taken to fall within the scope of the concept of force majeure for the purposes of Article 12 of Regulation (EC) No 1294/96, 2in such a way that infringe- ment of the obligation to make a declar- ation does not engender the legal con- sequences provided for in that regulation. B — Commission Regulation (EC) No 1294/96 of 4 July 1996 laying down detailed rules for the application of Council Regulation (EEC) No 822/87 as regards harvest, production and stock declarations relating to wine-sector products 4
I I — Legal framework
A — Council Regulation (EEC) No 822/87 of 16 March 1987 on the common organi- 3. Under Article 6(1) of the above imple- sation of the market in wine 3 menting regulation, the economic agents concerned are required, in accordance with the provisions of the basic regulation, to '... declare... the stocks of concentrated grape 2. Article 3 of Regulation No 822/87 pro- must, rectified concentrated grape must vides inter alia that producers of must and and wine held by them on 31 August.' Under Article 11(2) the declarations con- cerned '... shall be made not later than 1 — Original language: German. 7 September in respect of quantities held on 2 — Commission Regulation (EC) No 1294/96 of 4 July 1996 31 August.' laying down detailed rules for the application of Council Regulation (EEC) No 822/87 as regards harvest, production and stock declarations relating to wine-sector products (OJ 1996 L 166, p. 14). 3 — OJ 1987 L 84. o. 1. 4 — OJ 1996 L 166, p. 14.
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4. Article 12 lays down the penalties to be the questions concerned for a preliminary applied in the event of failure to submit ruling '... on the assumption that the declarations by the specified dates, as account of the facts given by the appellants follows: is correct.' Subject to that, the facts of the case are as follows:
'Persons required to submit harvest, production, stock, treatment or marketing declarations who do not submit such 6. The company Herederos Damián Parras declarations by the dates specified in C.B. is a family business in the form of a Article 11 shall not benefit, except in cases community of property whose sole director of force majeure, from the measures pro- was Antonio Moreno López, the spouse of vided for in Articles 32, 38, 41, 45 and 46 Adelina Parras Medina. of Regulation (EEC) No 822/87 for the wine year in question or the following wine year.
7. He died unexpectedly on 28 July 1997 while on holiday. However, exceeding the time-limits spec- ified in the first subparagraph by not more than five working days shall entail only a 15% reduction in the amounts payable for the wine year in question. The reduction in the amounts payable shall be 30% if the said time-limits are exceeded by not more 8. The declaration of stocks that should, in than 10 working days.' accordance with Article 11(2) of Regu- lation No 1294/96, have been made by 7 September 1997 was not in fact made until 17 September.
III — Facts of the case and questions referred 9. By a decision of 27 October 1997 the authorities, in the shape of the Delegación Provincial de Ciudad Real, relying on Article 12 of Regulation No 1294/96, 5. It can be seen from the order for ordered a 30% reduction in the amounts reference that the referring court submits payable, under the measures provided for
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in Regulation No 822/87, for the current the observance of the time-limit in wine year. question is not regarded as such? •
(2) Are the consequences provided for in Article 12 in the nature of a sanction or penalty and, if that is the case, does 10. By a decision of 23 March 1998, the that fact bear out the need for a broad Consejería de Agricultura y Medio interpretation of the abovementioned Ambiente de la Junta de Comunidades de concept of force majeure (this question Castilla-La Mancha dismissed the objection being asked only if it is considered lodged against that decision by the sisters necessary in order to answer the first Isabel and Adelina Parras Medina who now question)?' formed the community of property (here- inafter 'the appellants').
IV — Legal assessment
11. The court before which an appeal was lodged, the Tribunal Superior de Justicia de Castilla-La Mancha, expressed doubts as to the interpretation of the relevant provision 12. The common market organisation for of Community law and therefore, by order wine, introduced in stages since 1962, seeks of 3 April 2001, referred the following primarily to establish and maintain a bal- questions for a preliminary ruling: ance between demand and production. 5In pursuing this aim, it relies on a range of market interventions and controlled man- agement of wine-growing potential.
'(1) Must the concept oí force majeure used 13. Market interventions include aid in in Article 12 of Regulation (EC) favour of private storage, aid for distil- No 1294/96 be interpreted broadly so as to include unforeseen and compel- ling circumstances, as described in this 5 — For a discussion of the common market organisation for wine in 1987 (at issue here), see Gottsmann, Der Gemein- order, of such a kind that negligence in same Agrarmarkt, III A 13a, p. 4.
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lation and aid to support the use of grape A — Case-law of the Court on the concept must for purposes other than wine produc- of force majeure tion.
17. A first point is that in case of force majeure the legal consequences that would 14. Such intervention requires, in particu- otherwise arise out of non-compliance with lar, that harvest, production and stock an obligation or failure to meet a condition declarations be made. According to the do not ensue. This suspension of particular fourth recital in the preamble to Regulation legal consequences is justified by the excep- No 1294/96 a time-limit is to be laid down tional nature of the circumstances that for submitting declarations in order to constitute the case of force majeure. This facilitate market management operations. points clearly to the proximity of the force The time-limit for submitting stock declar- majeure clause to the principle of reason- ations is specified in Article 11(2) of that ableness, in so far as that clause allows a regulation. particular rule not to be applied in cases where such application could be regarded as unreasonable. 6
15. Late submission of such declarations produces, except in cases of force majeure, the legal consequences provided for in Article 12 of Regulation No 1294/96, those 18. The Commission submits that the consequences being graduated in accord- exceptional nature of the force majeure ance with the seriousness of the breach of clause requires it to be given a restrictive obligations. The referring court seeks essen- interpretation. 7The referring court, how- tially to establish how the concept of force majeure is to be interpreted in this context. 6 — See also Case 25/70 Einfuhr- und Vorratsstelle v Köster [1970] ECR 1161, paragraphs 31 and 40: '... in assessing this burden, account cannot be taken of forfeiture of the deposit itself, since traders are adequately protected by the provisions of the regulation relating to circumstances recognised as constituting force majeure,' and 'it therefore appears that by limiting the cancellation of the undertaking to export and the release of the deposit to cases of force majeure the Community legislature adopted a provision which, without imposing an undue burden on importers or exporters, is appropriate for ensuring the normal function- ing of the organisation of the market in cereals, in the general interest...'. 16. It is therefore advisable to begin by 7 —This is the line taken as early as 19S8 in Commission considering the case-law of the Court on Communication C (88) 1696 concerning the concept of force majeure in the agricultural law of the European the concept of force majeure. Communities (OJ 1988 C 259, p. 10).
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ever, has recognised that the Court has not 20. It can be seen from these general yet given a ruling to that effect. remarks concerning the concept of force majeure that the Court has consistently interpreted the concept as encompassing both an objective and a subjective element. The objective element consists of unusual and unforeseeable circumstances, 'beyond the trader's control'. 10 It is clear from individual language versions that the latter clause seeks precisely to bring out the external nature of the event concerned. 11 The subjective element consists of the assessment of the conduct of the party relying on force majeure: 'The subjective element entails the obligation to guard against the consequences of the abnormal occurrence by taking all appropriate meas- ures (with the exception of those involving 19. It is settled case-law that '... since the excessive sacrifices). 12 concept of force majeure does not have the same scope in various spheres of appli- cation of Community law, its meaning must be determined by reference to the legal context in which it is to operate'. 8 The Court has concluded from this relative nature of the concept of force majeure that it cannot be limited to cases of absolute impossibility: '... the concept of force majeure is not limited to absolute impossi- bility but must be understood in the sense of unusual circumstances, outside the con- trol of the importer or exporter, the con- sequences of which, in spite of the exercise of all due care, could not have been avoided except at the cost of excessive sacrifice. This concept implies a sufficient flexibility regarding not only the nature of the occurrence relied upon but also the care which the exporter should have exercised in order to meet it and the extent of the 21. This definition of force majeure as a sacrifices which he should have accepted to combination of an objective and a sub- that end.' 9
10 — See for example Case 266/84 Denkavit France |1986| 8 — See, for example, Case C-263/97 First City Trading and ECR 149, paragraph 27. Others 11998] ECR I-5537, paragraph 41, which refers to 11 — Judgment cited in footnote 10, French version: '... de Case C-12/92 Huygen and Others [1993] ECR I-6381, circonstances étrangères à l'adjudicataire...'; Italian ver- paragraph 30. This line of authority on the relative nature of sion: '... circonstanze estranee a colui che la fa valere...'. the concept of force majeure was initiated by the judgment in Case 4/68 Schwarzwaldimlcb |1968] ECR 377. 12 — Commission Communication C (88} 1696 (cited in footnote 7; p. 11). This definition goes back to the 9 — Judgment cited in footnote 6, paragraph 38. Schwarzwaidmtlch judgment (cited in footnote 8}.
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jective element has remained essentially by definition death represents a highly unchanged since the judgments of 17 De- personal event, one that cannot therefore cember 1970. 13 be regarded as 'external' in the narrow sense;15 a decease can nevertheless gen- erally be qualified as independent of the will of the person concerned and can usually, in view of its suddenness, be regarded as unforeseeable.
B — Application to the main proceedings
24. Whether or not force majeure can be 22. The concept of force majeure within taken to apply in the main proceedings thus the meaning of Article 12 of Regulation turns on the subjective element and hence No 1294/96 should thus be interpreted for on an assessment of the obligees' conduct the purposes of the main proceedings with and of the extent to which they were in a reference to the legal framework described position to deal appropriately with the above. In this connection I have already event. referred to the importance of timely sub- mission of the required declarations.14 I therefore consider it appropriate generally to apply strict criteria in considering whether to accept that there is a case of force majeure within the meaning of Article 12 of Regulation No 1294/96.
25. The Commission rightly points out that it falls to the referring court to examine whether the relevant circumstances of the individual case render the concept of force majeure applicable. Assuming the deceased 23. Proceeding on the premiss established was indeed sole director of the agricultural by the referring court that the deceased was undertaking concerned (an assumption sole director of the agricultural undertak- apparently disputed by the defendant ing, it is clear that as regards the objective administration), the national court will element of force majeure, the unexpected have therefore to determine whether, in death of such a director constitutes an the circumstances, his death could be unusual and, in principle, unforeseeable regarded as unexpected and hence, for the event over which the obligees had, in the heirs, unforeseeable, as lack of foreseeabil- nature of things, no control. It is true that ity would also imply an inability on the
13 —In Case 11/70 Internationale Handelsgesellschaft [1970] 15 — In this sense the referring court describes the death in ECR 1125 and Case 25/70 (cited in footnote 6). graphic terms as an event occurring 'within the undertak- 14 — See point 14 above. ing'.
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part of the heirs to make appropriate ever from the above considerations that the preparations for taking over the business. legal status of the provision in Article 12 of Regulation No 1294/96 does not affect its interpretation; the second question does not therefore appear necessary in order to answer the first.
26. If unforeseeability is established, the national court will also have to consider whether, in the period between the death of Mr Moreno López and the time-limit, his heirs exercised due care. On this point account would need to be taken of the time which elapsed between the death, the time- limit for submitting the declaration and the actual date of submission. Force majeure would for example appear out of the question if the national court were to acquire the conviction that the state of mind engendered by the family ties with the deceased person and the need to settle various items of business in relation to administration of the estate did not suffice, bearing in mind that the death occurred less than two months previously, to explain the 10-day delay in submitting the declaration.
28. It should be added that there does not in principle seem to be any doubt that the prescribed legal consequences of a failure to comply or comply fully with the obli- gations in respect of the declaration con- cerned are independent of fault as such. 16 The point should also be made that the provisions in Article 12 of Regulation C — The second question No 1294/96 do not concern farmers in their capacity as such but rather in their capacity as recipients of aid. The authority responsible for granting such aid should in principle, however, be in a position to make the grant of advantages conditional upon observance of certain conditions. 27. The second question was asked only in case it was considered necessary in order to 16 — See my observations in the Opinion in Case C-210/00 answer the first question. It follows how- Käserei Champignon [2002] ECR I-6453.
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V — Conclusion
29. In the light of the foregoing, I propose that the questions referred by the Tribunal Superior de Justicia de Castilla-La Mancha for a preliminary ruling be answered as follows:
The concept of force majeure used in Article 12 of Regulation (EC) No 1294/96 should be interpreted as encompassing unforeseeable and unusual circumstances that are outside the control of the person concerned and whose consequences, despite the exercise of all due care, could not have been avoided except at the cost of excessive sacrifice. A death is in principle an unusual circumstance that is outside the control of those concerned. It is incumbent upon the national judge to consider whether the other conditions obtain in the particular case. Provided that the deceased person can be shown to have been the sole director of the agricultural undertaking concerned, the national judge must consider, in cases such as the main action, whether the death can be regarded as having been ¡unexpected for the heirs and whether the heirs who assumed management of the undertaking can be regarded, in view of the specific circumstances and more particularly of their family and professional situation and of the time-lapse between the death, the time-limit for submitting the declaration and the actual date of submission, as having exercised all due care.
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