61977J0068

1 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKET - BEEF AND VEAL - IMPORTS FROM THIRD COUNTRIES - PROTECTIVE MEASURES - DISCRETIONARY POWER OF THE COMMISSION - LIMITS

( REGULATION NO 805/68 OF THE COUNCIL ; REGULATION NO 2033/75 OF THE COMMISSION )

2 . COMMUNITY LAW - PRINCIPLE OF FORCE MAJEURE - APPLICATION - CONDITION

1 . IN ADOPTING REGULATION NO 2033/75 THE COMMISSION DID NOT EXCEED THE LIMITS OF ITS DISCRETIONARY POWER UNDER REGULATION NO 805/68 .

2 . THE APPLICATION OF THE PRINCIPLE OF FORCE MAJEURE IN THE RELATIONSHIP BETWEEN AN INDIVIDUAL AND THE PUBLIC ADMINISTRATION PRESUPPOSES THE NON- PERFORMANCE OF AN OBLIGATION UPON THE INDIVIDUAL WITH RESPECT TO THE ADMINISTRATION . NO GENERAL LEGAL PRINCIPLE OF FORCE MAJEURE IS TO BE DISCERNED IN THE NATIONAL LEGAL SYSTEMS WHERE THERE IS NO SUCH OBLIGATION .

IN CASE 68/77

IFG-INTERCONTINENTALE FLEISCHHANDELSGESELLSCHAFT MBH & CO . KG , GROSS-GERAU ( GERMANY ), REPRESENTED BY COUNSEL IN PARTNERSHIP DR DIETRICH EHLE , ULRICH C . FELDMANN AND DR ULRICH WIEMANN , COLOGNE , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG C/O MADAME JEANNE HOUSSE , 21 , RUE ALDRINGEN , APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , DR PETER KALBE , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION FOR DAMAGES UNDER THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY ,

1BY APPLICATION LODGED ON 2 JUNE 1977 AGAINST THE COMMISSION UNDER ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY , IFG- INTERCONTINENTALE FLEISCHHANDELSGESELLSCHAFT SOUGHT FROM THE COURT , FIRST , A DECLARATION ' THAT THE DEFENDANT IS BOUND BY WAY OF DAMAGES TO GUARANTEE PERFORMANCE ' OF A CONTRACT CONCLUDED BY THE APPLICANT ON 14 MAY 1975 WITH THE ROMANIAN STATE CORPORATION FOR FOREIGN TRADE , PRODEXPORT , FOR THE DELIVERY OF SEASONED BEEF AND VEAL PREPARATIONS AND , IN THE ALTERNATIVE , AN ORDER THAT THE COMMISSION IS TO PAY IT BY WAY OF DAMAGES THE PROFIT WHICH IT FAILED TO MAKE THROUGH THE NON-PERFORMANCE OF THE CONTRACT .

2THE CONTRACT IN QUESTION WAS CONCLUDED AT A TIME WHEN BEEF AND VEAL IMPORTS INTO THE COMMUNIY FROM THIRD COUNTRIES WERE REGULATED BY THE PROVISIONS OF REGULATION ( EEC ) NO 1090/75 OF THE COMMISSION OF 23 APRIL 1975 ( OFFICIAL JOURNAL L 108 OF 26 APRIL 1975 , P . 1 ), ADOPTED IN PURSUANCE OF THE PROTECTIVE CLAUSE CONTAINED IN ARTICLE 21 OF REGULATION ( EEC ) NO 805/68 OF THE COUNCIL OF 27 JUNE 1968 ON THE COMMON ORGANIZATION OF THE MARKET IN BEEF AND VEAL ( OFFICIAL JOURNAL L 148 OF 28 JUNE 1968 , P . 24 ).

UNDER THE TERMS OF THAT REGULATION THE ISSUE OF IMPORT LICENCES WAS SUBJECT TO THE PRIOR EXPORTATION OF AN EQUIVALENT QUANTITY OF BEEF AND VEAL ( THE SO- CALLED EXIM SYSTEM ), EXCEPT IN THE CASE OF PREPARATIONS OR PRESERVES OF MEAT PROVIDED THAT THEY WERE PUT UP IN HERMETICALLY SEALED CONTAINERS WEIGHING NOT MORE THAN 5 KG .

THE CONTRACT OF 14 MAY 1975 CONCERNED SEASONED MEAT OF A KIND WHICH WAS COVERED BY THAT EXCEPTION .

3AS A RESULT OF FLOODS IN ROMANIA IN JUNE 1975 , THE DELIVERY OF CERTAIN CONSIGNMENTS OF MEAT WHICH SHOULD HAVE TAKEN PLACE BEFORE 1 SEPTEMBER 1975 WAS DELAYED UNTIL AFTER THAT DATE .

THAT WAS THE DATE OF THE ENTRY INTO FORCE OF REGULATION ( EEC ) NO 2033/75 OF THE COMMISSION OF 5 AUGUST 1975 ( OFFICIAL JOURNAL L 207 OF 6 AUGUST 1975 , P . 8 ), THE EFFECT OF WHICH WAS THAT SEASONED MEAT WAS NO LONGER EXEMPT FROM THE SYSTEM PROVIDED FOR UNDER REGULATION NO 1090/75 .

THE SUBJECT MATTER OF THE PRESENT ACTION IS THE DAMAGE WHICH THE APPLICANT CLAIMS TO HAVE SUFFERED AS THE RESULT OF THE APPLICATION OF REGULATION NO 2033/75 TO THE DELIVERIES IN QUESTION .

4WHILE THE COMMISSION RAISES NO OBJECTION AS TO THE ADMISSIBILITY OF THE ALTERNATIVE APPLICATION FOR FINANCIAL COMPENSATION , IT HAS RAISED AN OBJECTION OF INADMISSIBILITY REGARDING THE MAIN APPLICATION , ARGUING IN EFFECT THAT AN APPLICATION OF THIS KIND CANNOT BE ENTERTAINED IN THE FORM OF AN ACTION FOR DAMAGES BASED ON ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE TREATY .

THE MAIN AND ALTERNATIVE CLAIMS HAVE , HOWEVER , A COMMON BASIS IN THAT THEY ASSUME THAT THE COMMUNITY IS LIABLE BECAUSE OF AN UNLAWFUL ACT OR ATTITUDE ON THE PART OF THE COMMISSION .

CONSIDERATION MUST THEREFORE BE GIVEN TO THIS QUESTION OF SUBSTANCE BEFORE ANY RULING IS GIVEN ON THE ADMISSIBILITY OF THE MAIN APPLICATION .

5AMONG THE SUBMISSIONS RELIED UPON BY THE APPLICANT TO ESTABLISH THE LIABILITY OF THE COMMUNITY , CONSIDERATION MUST FIRST BE GIVEN TO THAT RELATING TO THE ALLEGED ILLEGALITY OF THE SERIES OF REGULATIONS IN QUESTION , IN PARTICULAR OF REGULATION NO 2033/75 .

IN THIS CONNEXION THE APPLICANT CLAIMS THAT , IN ADOPTING THAT REGULATION , THE COMMISSION IGNORED THE CONDITIONS ARISING FROM ARTICLES 21 AND 31 OF THE BASIC REGULATION , NO 805/68 , RESPECTING THE EXISTENCE OR THE THREAT OF SERIOUS DISTURBANCES ON THE MARKET AND THE PURSUIT OF THE OBJECTIVES SET OUT IN ARTICLES 39 AND 110 OF THE TREATY .

6HOWEVER , AS THE THIRD AND FOURTH RECITALS OF THE PREAMBLE TO REGULATION NO 2033/75 MAKE CLEAR , THE COMMISSION FOUND THAT ' THE COMMUNITY MARKET IN BEEF AND VEAL CONTINUES TO BE THREATENED AS A RESULT OF IMPORTS BY SERIOUS DISTURBANCES WHICH ARE LIKELY TO JEOPARDIZE THE OBJECTIVES OF ARTICLE 39 OF THE TREATY ' AND THAT IMPORTATION OF SEASONED MEATS EXEMPTED FROM THE PROTECTIVE MEASURES HAD ' REACHED A LEVEL INCOMPATIBLE WITH SOUND MANAGEMENT OF THE MARKET ' .

NOTHING WARRANTS THE CONCLUSION THAT , IN THUS DESCRIBING THE SITUATION ON THE MARKET , THE COMMISSION EXCEEDED THE LIMITS OF ITS DISCRETIONARY POWERS UNDER REGULATION NO 805/68 .

THIS SUBMISSION CANNOT THEREFORE BE UPHELD .

7THE APPLICANT FURTHER CLAIMS THAT THE COMMISSION INFRINGED THE PRINCIPLE OF RESPECT FOR LEGITIMATE EXPECTATION BY NOT ADOPTING A TRANSITIONAL MEASURE WHICH , EVEN AFTER THE ENTRY INTO FORCE OF THE REGULATION OF 1 SEPTEMBER 1975 , WOULD HAVE ENABLED CONTRACTS CONCLUDED BEFORE 6 AUGUST 1975 , THE DATE OF PUBLICATION OF THE REGULATION , TO RECEIVE THE BENEFIT OF THE CONDITIONS FOR IMPORTATION ARISING UNDER THE PREVIOUS REGULATIONS .

HOWEVER , THE IMPORT SYSTEM AT ISSUE REQUIRED NO PREVIOUS AUTHORIZATION OR ANY FIRM COMMITMENT ON THE PART OF THE PERSON CONCERNED WITH RESPECT TO THE AUTHORITIES RESPONSIBLE FOR THE MANAGEMENT OF THE ORGANIZATION OF THE MARKETS IN QUESTION AND THE COMMISSION CONVEYED NOTHING TO IMPORTERS WHICH COULD HAVE JUSTIFIED THE EXPECTATION THAT , REGARDLESS OF THE DEVELOPMENT OF CONDITIONS ON THE MARKET , THE PREVIOUS RULES WOULD BE MAINTAINED WITHOUT ALTERATION DURING THE TIME WHEN PRIOR CONTRACTS WERE TO BE PERFORMED .

THIS SUBMISSION MUST , ACCORDINGLY , ALSO BE REJECTED .

9FINALLY , THE APPLICANT CLAIMS THAT THE COMMUNITY INCURS LIABILITY BECAUSE THE COMMISSION REFUSED TO TAKE ACCOUNT OF FORCE MAJEURE , WHICH PREVENTED THE PERFORMANCE OF THE CONTRACT BEFORE THE ENTRY INTO FORCE OF REGULATION NO 2033/75 .

THE APPLICANT CLAIMS , FIRST , THAT THE CONDITIONS ARE SATISFIED FOR THE APPLICATION BY ANALOGY OF ARTICLE 20 OF REGULATION NO 193/75 OF THE COMMISSION OF 17 JANUARY 1975 LAYING DOWN COMMON DETAILED RULES FOR THE APPLICATION OF THE SYSTEM OF IMPORT AND EXPORT LICENCES AND ADVANCE FIXING CERTIFICATES FOR AGRICULTURAL PRODUCTS ( OFFICIAL JOURNAL L 25 OF 31 JANUARY 1975 , P . 10 ) AND , SECONDLY , THAT THE TAKING INTO ACCOUNT OF FORCE MAJEURE IS GOVERNED BY A GENERAL LEGAL PRINCIPLE WHICH BINDS THE COMMISSION EVEN IN THE ABSENCE OF EXPRESS AUTHORIZATION .

10ARTICLE 20 OF REGULATION NO 193/75 PROVIDES THAT WHERE AS A RESULT OF FORCE MAJEURE IMPORTATION OR EXPORTATION CANNOT BE EFFECTED DURING THE PERIOD OF VALIDITY OF THE LICENCE OR CERTIFICATE , THE COMPETENT AGENCY SHALL EITHER CANCEL THE OBLIGATION TO IMPORT OR EXPORT , THE SECURITY BEING RELEASED , OR EXTEND THE PERIOD OF VALIDITY OF THE LICENCE OR CERTIFICATE .

IT IS CLEAR FROM THE WORDING OF THAT PROVISION THAT IT COVERS A SITUATION WHERE THE PERSON CONCERNED HAS UNDERTAKEN A SPECIFIC COMMITMENT WITH RESPECT TO A COMPETENT AGENCY AND WILL , IF THAT COMMITMENT IS BREACHED , BE LIABLE TO A PENALTY IN THE FORM OF LOSS OF A SECURITY UNLESS HE IS RELEASED FROM THE OBLIGATION ENTERED INTO UNDER A FORCE MAJEURE CLAUSE .

THE SITUATION IS QUITE DIFFERENT WHERE THE PERSON CONCERNED HAS NOT COMMITTED HIMSELF WITH RESPECT TO A COMPETENT AGENCY AND THE EXPIRY OF A TIME-LIMIT DOES NOT IN CONSEQUENCE OCCASION ANY PENALTY IN THIS CONNEXION FROM WHICH HE SHOULD BE EXEMPTED IN THE EVENT OF FORCE MAJEURE .

BECAUSE OF THIS MATERIAL DIFFERENCE THE CONDITIONS GOVERNING AN APPLICATION BY ANALOGY OF THE PROVISIONS CITED TO THE PRESENT CASE ARE WANTING .

11WITH REGARD TO THE REFERENCE TO THE EXISTENCE OF A GENERAL LEGAL PRINCIPLE GOVERNING CASES OF FORCE MAJEURE , IT IS TRUE THAT THE LEGAL SYSTEMS OF THE MEMBER STATES PROVIDE , IN CERTAIN CONTEXTS AND LEGAL RELATIONSHIPS , FOR THE POSSIBILITY OF DEROGATION FROM THE STRICT REQUIREMENTS OF THE LAW , ESPECIALLY FROM THE LEGAL CONSEQUENCES RESULTING FROM THE NON-FULFILMENT OF AN OBLIGATION , ON ACCOUNT OF FORCE MAJEURE .

NEVERTHELESS , IN THE RELATIONSHIP BETWEEN AN INDIVIDUAL AND THE PUBLIC ADMINISTRATION , AS IN THE PRESENT CASE , WHERE TO EXCEED THE MATERIAL DATE DOES NOT INVOLVE THE NON-FULFILMENT OF ANY OBLIGATION BINDING THE INDIVIDUAL BUT MERELY RENDERS THE IMPORTATIONS IN QUESTION SUBJECT TO A SYSTEM LESS FAVOURABLE THAN THAT IN FORCE BEFORE THAT DATE , THE EXISTENCE OF A GENERAL LEGAL PRINCIPLE TO THE EFFECT ALLEGED IS NOT TO BE DISCERNED IN THE NATIONAL LEGAL SYSTEMS .

IF AN IMPORTER FINDS THAT THE PERFORMANCE OF THE CONTRACT UNDER THE NEW SYSTEM IS DETRIMENTAL TO HIS INTERESTS HE MUST SEEK THE APPROPRIATE REMEDY ON THE BASIS OF HIS LEGAL RELATIONSHIP WITH HIS CO- CONTRACTOR , RELYING AS NECESARY ON THE OCCURRENCE OF FORCE MAJEURE .

ACCORDINGLY , THE CONDUCT OF THE COMMISSION CANNOT BE CONSIDERED UNLAWFUL AND IS NOT THEREFORE SUCH AS TO RENDER THE COMMUNITY LIABLE .

12SINCE , IN THE CIRCUMSTANCES , THE PRINCIPAL AND ALTERNATIVE CLAIMS MUST , ON THE SAME GROUND , BE DISMISSED AS UNFOUNDED , NO CONSIDERATION NEED BE GIVEN TO THE PARTICULAR QUESTION OF THE ADMISSIBILITY OF THE PRINCIPAL CLAIM .

COSTS

13UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

AS THE APPLICANT HAS FAILED IN ITS APPLICATION , IT MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE APPLICANT TO PAY THE COSTS .