In the Commission's view, the duplicate merely affords the party concerned a means of proof securing the partial release of the deposit in proportion to the quantities already imported, and cannot under any circumstances produce the same consequences as attached to the original document.

The Commission does not believe that the obligation to import is so closely linked to the right to import that the one is extinguished with the other, and that therefore the security must be released since no reason or justification remains for it.

In fact, as regards the licence holder, the loss of the right to import, bound up with the obligation undertaken, in no way entails the extinction of the legal relation created. An example of this is afforded by the fact that, under Article 15 of Regulation No 1373/70, when the obligation to import is not fulfilled within the fixed period, the existence of this legal relationship entails the forfeiture of the security.

The copy of the licence issued to the applicant does not in itself constitute or create a right or an obligation to import but is merely a method of proof, the loss of which has no direct bearing on the legal situation of the party concerned.

The theory according to which the licence represents the right and the obligation to import, so that their very existence depends upon that of the document, does not allow of the satisfactory solution of the most frequent cases of loss of licence.

For example, where the holder cannot find the licence although it is certainly still in his possession, this theory would entail the extinction of all the rights deriving from the licence and the suppression of the levy fixed therein.

Further, the holder of a licence can voluntarily give up the right to import by transferring the document to third parties; but he does not thereby obtain release from his obligation to import. According to Article 3 of Regulation No 1373/70 this obligation still rests with the titular holder even though he may no longer have the right or the opportunity to use the licence.

The Commission believes that the position cannot be any different in a case of loss.

The real question is in fact to determine whether the deposit should be released or forfeit. The licence holder who has lost his licence is in the same position as the holder who still possesses the licence but no longer has any goods, because, for example, these have been destroyed.

The Commission therefore suggests the following reply:

The plaintiffs in the main action maintain that the problem of the loss of a licence is not fully covered by any legislative provision.

Article 15 of Regulation No 1373/70 is silent as to the actual legal consequences of the loss of a licence. This article merely provides implementing rules. It cannot therefore be inferred a contrario from the second sentence of paragraph 4 that the obligation to import survives, paragraph 4 being limited to providing that the duplicate does not authorize importation (its sole function being to replace the original as proof of imports already carried out).

The first paragraph of Article 2, under which the licence authorizes and requires importation, places the importer in an impossible position in the event of loss of a licence: the original does not authorize importation since the importer no longer has it in his possession, not does the duplicate authorize importation since Article 15 (4) forbids this.

But the right and the obligation are extinguished simultaneously since they are inseparable. The security is consequently released since its sole purpose is to guarantee the undertaking, that is to say the fulfillment of the obligation.

The plaintiffs are of the opinion, however, that the principle of release of the deposit applies only in cases where the loss of the licence is not due to any fault on the part of the importer.

The plaintiffs accordingly submit that, a least in cases where the importer is not responsible for the loss, the loss of an import licence entails the cancellation not only of the right to import but also of the obligation to do so, with the result that the deposit must be released. The question of determining whether the loss is or is not the fault of the importer is a matter for the national court to decide.

The Commission first recalls the general rule under which the deposit is forfeit in proportion to the quantity of goods which could not be imported within the time limit.

There are several objections to applying the exceptional procedure provided under Article 18.

Force majeure does not in fact apply except in cases where importation within the time limit has been rendered impossible because, for example, the goods have-deteriorated. Article 15, by allowing the interested party to obtain a duplicate but not a second licence equivalent to the original, disposes of the matter conclusively without leaving room for any exception. Otherwise the door would be open to serious speculation as to levies fixed in advance, or even to the loss of a licence by a titular holder wishing to avail himself of a circumstance of force majeure.

Nevertheless the Commission concedes that the present text of Regulation No 1373/70 is equally open to a less strict interpretation, according to which Article 15 (4) does not absolutely prohibit the application of the exceptional procedure provided for cases of force majeure, and Article 18 does not expressly preclude the loss of the licence being included as a case of force majeure.

However, all the conditions necessary for recognizing the existence of force majeure must be fulfilled beyond all possible doubt, according to the definition given in the case law of the Court (Cases 4/68, Firma Schwarzwaldmilch GmbH v Einfuhr und Vorratsstelle für Fette, Rec. 1968, p. 549, and 11/70, Internationale Handelsgesellschaft mbH v Einfuhr und Vorratsstelle für Getreide und Futtermittel, Rec. 1970, p. 1125).

The Commission is of the opinion that there should not be force majeure unless abnormal difficulties beyond the importer's control have prevented him from effecting the importation within the time limit, and that this circumstance could not be avoided despite all possible care being taken except at excessive cost (cases cited).

Finally the Commission considers that a request for the recognition of circumstances of force majeure can be submitted even after the period of validity of the licence has expired. In fact, the problem is to determine the maximum period which may be allowed to intervene between the time the obstacle to importation arises and the time the request is submitted, once the titular holder definitely knows he will no longer be able to adhere to the original time limit. This period should be very brief, so that the competent authority can make decisions based on information as recent and as easily verifiable as possible and so that there may be no doubt as to the impossiblity of adhering to the original time limit in order to avoid any speculative action.

The Commission suggests the following reply:

The plaintiffs emphasize that up to the present, within the framework of Article 18, the Court has only had to decide cases in which the inability to effect importation derived from the product itself.

Article 18 does not give an exhaustive list of the various circumstances capable of constituting force majeure. The case law of the Court has not limited the concept of force majeure to absolute impossibility. If this case law is applied here, the loss of the licence, in so far as no blame attaches to the importer, also constitutes a case of force majeure.

In the plaintiffs' view, the contention that a trader only complies with the duty of care incumbent upon him if he sends the licence by registered post can only be upheld if this is current practice and if dispatch by registered post constitutes a complete safeguard against the loss of the letter.

No blame can attach to the plaintiffs' agent for acting in the same way as the competent national authorities, especially since the Court left to the latter the choice of ways and means of dispatch (Case 61/72, Mij PPW internationaal NV v Hoofdproduktschap voor Akkerbouwprodukten, [1973] E.C.R., 301)

According to national and international conventions and regulations the purpose and effect of dispatch by registered post is restricted to making available a limited right to claim damages or breach of warranty against the postal authorities in respect of the loss of any letter so dispatched, and to providing proof for those whom it may concern that the letter was sent or received. It follows from this that a registered letter is treated no differently from an ordinary letter in the course of its transit through the post.

Finally the plaintiffs stress that it suffices that the authorities be informed of the impossibility of effecting importation, so that they may correct their assessments of market trends and release the deposit. The law providing that a request for extension may be made even after the expiry of the period of validity fixed initially entails as a necessary corollary that a request for cancellation of the obligation to import can also be submitted after the expiry of the period of validity. The request cannot be postponed indefinitely, but this can never be so in a case of loss of the licence, since the request for the issue of a duplicate to evidence imports already effected serves to inform the authorities of the event which entails the extinction of the obligation to import and the release of the deposit.

The plaintiffs therefore suggest the following answers to the second question:

The oral procedure was opened on 27 November 1973.

The plaintiffs were represented by Barbara Festge, associate of Dr Fritz Modest, both advocates of the Hamburg bar, and the Commission of the European Communities was represented by its Legal Adviser, Peter Kalbe, acting as agent.

The Advocate-General presented his opinion at the hearing on 13 December 1973.