In Case 4/68
Reference to the Court under Article 177 of the EEC Treaty by the Verwaltungsgericht (Administrative Court), Frankfurt-am-Main, Third Chamber, for a preliminary ruling in the action pending before that court between
FIRMA SCHWARZWALDMILCH GMBH
EINFUHR- UND VORRATSSTELLE FÜR FETTE
on the interpretation of Regulation No 136/64 adopted on
THE COURT
composed of: R. Lecourt, President, A. M. Donner and W. Strauß, Presidents of Chambers, A. Trabucchi (Rapporteur), R. Monaco, J. Mertens de Wilmars and P. Pescatore, Judges,
Advocate-General: J. Gand
Registrar: A. Van Houtte
gives the following
The facts and procedure may be summarized as follows:
In accordance with Article 5 of Regulation No 136/64 of the Commission the Schwarzwaldmilch GmbH of Offenburg had lodged a deposit of DM
As this undertaking had not been able to effect this importation before
Schwarzwaldmilch instituted proceedings against this decision before the Verwaltungsgericht (Administrative Court), Frankfurt-am-Main.
In the course of the proceedings before the German court the plaintiff maintained that it had been unable to effect the importation for reasons of
The plaintiff maintained that, by reason in particular of the brevity of the period remaining before the term of validity of the import licence expired it would have been unable to obtain the goods from another French supplier except at a considerably higher price and without any guarantee of quality. It would thus have suffered damage amounting to DM
On the other hand, the defendant maintained that it was doubtful whether the engine failure and the failure on the part of the Laiterie Centrale de Strasbourg to perform the contract of delivery constituted cases of
Article 6 of Regulation No 136/64 of the Commission reads as follows:
By order of
On Question No 1, the Verwaltungsgericht observes that the context in which the concept of
As regards Question No 2, the German court raises the question whether, in order to accept circumstances other than those set out in Article 6(3), an
As regards Question No 3, the abovementioned court observes that the concept of
As regards Question No 4, the national court observes that the direct cause of the failure to effect the importation was not the engine failure but the failure to perform the contract of delivery on the part of the Laiterie Centrale de Strasbourg.
Finally, in the context of Question No 5, the national court puts forward certain questions as regards Article 6(2) of Regulation No 136/64. Is it necessary, for the purposes of this provision, for the importation to have become absolutely impossible for any importer, or is it sufficient that the particular importer was unable to effect it?
The reference for a preliminary ruling was lodged at the Court Registry on
In accordance with Article 20 of the Statute of the Court, the Einfuhr- und Vorratsstelle für Fette, Schwarzwaldmilch and the Commission of the European Communities submitted observations.
The Einfuhr- und Vorratsstelle für Fette was represented by Mr Euler, Schwarzwaldmilch by Fritz Morstadt and Werner Morstadt and the Commission by Bernard Paulin and Peter Kalbe.
The Schwarzwaldmilch undertaking and the Commission submitted their oral observations at the hearing on
The Advocate-General delivered his opinion at the hearing on
The observations submitted under Article 20 of the Statute of the Court may be summarized as follows:
The
Before considering the various questions the
This information was necessary to enable Member States and the Commission to take any necessary protective measures in good time in accordance with Article 16 of Regulation No 13/64. By reason of this duty to protect the public interest, the issue of an import licence not only permits but actually requires the importation during its term of validity of the indicated quantity of the goods specified. For this reason Article 11(2) of Regulation No 13/64 and Article 5 of Regulation No 136/64 provide for the lodging of a deposit in order to ensure the performance of this obligation.
During the oral procedure
This undertaking suggested that the Court might also consider this point which is linked to the questions submitted by the court making the reference.
In addition, the undertaking emphasized the need to coordinate the action of the State bodies responsible for receiving the security and the contractual relations between the importer and his supplier under the national law applicable. In the absence of such coordination there is a danger that, after the occurrence of the event which has temporarily prevented the imports being made, the importer may lose his deposit although he is still bound by the contract concluded with his supplier.
On the other hand, the
Moreover, this particular case of
The
The purpose of the question submitted by the national court is, however, to clarify whether the administrative authorities or the courts to which application has been made may, in each individual case, decide for themselves, without the need for an
So far, none of the Member States has. amplified the list appearing in Article 6(3) by an exhaustive list of its own. On the other hand, the competent administrative authorities whose action is subject in the ordinary course to review by the national courts, have always informed the Commission when they acknowledged that a plea of
By virtue of Article 6(4) it is not the decision of the courts themselves, but only the recognition of the plea of
In the present case, it is true that the provision in Article 6(4) makes reference to a definition based on national law alone.
The Commission considers, however, that the question whether
Furthermore, it follows from Article 6 that, while the Commission has allowed Member States to define cases of
The Commission concludes that the definition of the concept of
The authorities and courts of Member States must be left a wide area of discretion in each individual case. In particular, the imprecise nature of any rules of interpretation which may be drawn up in this matter and their relative force may be taken into account having regard to the special features of the legal field and of all those questions which arise in practice and require that special stress be laid on one or other criterion according to the circumstances of the case.
The Commission refers to the plaintiff's statements to the effect that German law does not allow any penalty to be imposed in the absence of a wrongful act and observes that, according to the Bundesverfassungsgericht (German Federal Constitution Court), this principles applies only to punishment for crimes or to similar penalties, but not to all the means of coercion intended to induce a party who is under an obligation to adopt a certain course of conduct. The fact that the deposit concerned in this instance is declared forfeit does not impute unlawful conduct to the party who is obliged to effect the importation. If the party subject to an obligation to import is not himself responsible for the obstacle to the importation, it must be determined whether, by taking all the necessary action in commercial matters, that party could have foreseen and avoided its occurrence and its effects. Disturbances such as, for example, delays in the manufacture or carriage of goods cannot as a general rule be regarded as unforeseeable circumstances, as provision should always be made for such delays.
The Commission observes that where a combination of reasons exists, the person under the obligation to import is only exempted from that obligation if the circumstances which may be considered to have given rise to the
It must therefore be established that these factors constitute a condition
As regards this latter point, the
The
In this instance the plaintiff in the main action caused neither the engine failure nor the failure to perform the contract of delivery, nor could it have been aware of the failure before the issue of the import licence or the conclusion of the contract of delivery. It is therefore necessary to consider carefully whether it was unable, before
By an order dated
The action before the court referring the matter to the Court of Justice concerns the deposit required on the issue of an import licence for dairy products which could not be utilized within the period laid down; the importer claims that the deposit must be refunded on the ground of force majeure.
In the first question the Verwaltungsgericht, Frankfurt-am-Main, asks whether the concept of
Although, from the syntactical point of view, this text does not necessarily relate the term
Moreover the provisions in subparagraph (c), (d) and (g) of the same paragraph only concern shipping.
Furthermore, the concept of
This concept is found in Article 6(3) (e) of Regulation No 136/64 in a context which is in substance identical to that of Article 8 of Regulation No 87.
It must therefore be concluded that the concept of
The Verwaltungsgericht asks how the concept of
It further asks whether Article 6(2) of Regulation No 136/64/EEC requires the existence of a direct causal connexion between the circumstances relied on as a case of
Finally it asks whether it is sufficient for the application of the abovementioned Article 6(2) that
It is appropriate to consider these various questions together.
Article 6(2) provides that the obligation to import is cancelled where the importation cannot be effected during the term of validity of the licence owing to
As the concept of
Thus, the interpretation of the concept of
The public interest which requires the most accurate forecast possible of the future development of imports in each Member State and warrants the lodging of a deposit on the issue of an import licence must be reconciled with the need, which is also a matter of public interest, for trade between States to remain unhampered by obligations which are too rigid.
The treat of the loss of the deposit is intended to encourage the importers to whom a licence has been issued to fulfil the obligation to import and thus to ensure the accuracy of the forecast of the future development of imports in the general interest.
It follows therefore that an importer who has shown the necessary diligence is in principle released from the obligation to import within the meaning of Article 6 of Regulation No 136/64/EEC when circumstances outside his control make it impossible for him to effect the importation within the required period.
Such is the case when the event which renders impossible the performance in due time of a contract which, under normal circumstances, ought to have enabled the importer to fulfil his obligation to import, is so unusual that it would have had to be considered as improbable by a prudent businessman exercising all due care.
Some of the cases enumerated in Article 6(3) appear to be based on this criterion, as they do not refer to situations corresponding to a concept of
However, recognition of a case of
In this respect, too, the importer must be expected to show all due diligence.
This being so,
It must, therefore, be concluded that sufficient causal connexion between the circumstances relied on as a case of
Finally, it follows from the scheme of Article 6 of the regulation that it is for the importer to prove the existence of the circumstances necessary to constitute a case of
The court requesting the preliminary ruling asks whether Article 6(4) of Regulation No 136/64/EEC empowers the courts of Member States to recognize as cases of
Article 6(3) of the regulation in dispute lists a number of circumstances from which cases of
Paragraph (4) of the same Article implies that it is possible for the Member States to recognize as
The spirit of these provisions is explained in the sixth Recital in the preamble to the regulation in dispute which reads
It follows from the general scheme of Article 6(2), (3) and (4) that exemption on the grounds of
Within the limits of their own jurisdiction, therefore, national courts may recognize the existence of a case of
The effect of Article 6(4), which makes a general reference to the powers of the Member States, is not to limit the powers of the national courts in this respect.
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, in the nature of a step in the action pending before the Verwaltungsgericht, Frankfurt-am-Main (Third Chamber), the decision as to costs is a matter for that court.
On those grounds,
THE COURT
in answer to the questions referred to it by the Verwaltungsgericht, Frankfurt-am-Main (Third Chamber), by order of that court dated
hereby rules:
and declares:
The decision as to costs is a matter for the Verwaltungsgericht, Frankfurt-am-Main.
Lecourt
Donner
Strauß
Trabucchi
Monaco
Mertens de Wilmars
Pescatore
Delivered in open court in Luxembourg on
A. Van Houtte
Registrar
R. Lecourt
President