61968J0004

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1 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - MILK - IMPORTS SUBJECT TO THE PRODUCTION OF A LICENCE - IMPORTATION IMPOSSIBLE DURING THE TERM OF VALIDITY OF SUCH LICENCE - CASE OF FORCE MAJEURE - ' ENGINE FAILURE ' WITHIN THE MEANING OF ARTICLE 6(3 ) OF REGULATION NO 136/64/EEC OF THE COMMISSION - CONCEPT

2 . FORCE MAJEURE - CONCEPT

3 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - MILK - IMPORTATION SUBJECT TO THE PRODUCTION OF A LICENCE - IMPORTATION IMPOSSIBLE DURING THE TERM OF VALIDITY OF SUCH LICENCE - CASE OF FORCE MAJEURE RELIED ON BY THE IMPORTER - EVIDENCE TO BE ADDUCED

( REGULATION NO 136/64/EEC, ARTICLE 6(2 ))

4 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - MILK - IMPORTATION SUBJECT TO THE PRODUCTION OF A LICENCE - IMPORTATION IMPOSSIBLE DURING THE TERM OF VALIDITY OF SUCH LICENCE - CASE OF FORCE MAJEURE - NATIONAL COURTS - JURISDICTION IN CASES NOT REFERRED TO IN ARTICLE 6(3 ) OR NOT RECOGNIZED BY THE NATIONAL AUTHORITIES IN ACCORDANCE WITH ARTICLE 6(4 ) OF REGULATION NO 136/64/EEC

1 . THE CONCEPT OF ' ENGINE FAILURE ' REFERRED TO IN ARTICLE 6(3 ) OF REGULATION NO 136/64/EEC DOES NOT INCLUDE FAILURES WHICH OCCUR IN MACHINERY INTENDED FOR THE PRODUCTION OF GOODS .

2 . AS THE CONCEPT OF FORCE MAJEURE IS NOT IDENTICAL IN THE DIFFERENT BRANCHES OF LAW AND THE VARIOUS FIELDS OF APPLICATION, THE SIGNIFICANCE OF THIS CONCEPT MUST BE DETERMINED ON THE BASIS OF THE LEGAL FRAMEWORK WITHIN WHICH IT IS INTENDED TO TAKE EFFECT .

RECOGNITION OF A CASE OF FORCE MAJEURE PRESUPPOSES THAT THE CONSEQUENCES OF THE UNUSUAL EVENT TO WHICH THIS CONCEPT RELATES CANNOT BE AVOIDED .

3 . WITHIN THE MEANING OF REGULATION NO 136/64/EEC, WHEN AN IMPORTER RELIES ON FORCE MAJEURE HE MUST SHOW THAT HE WAS UNABLE TO EFFECT THE IMPORTATION WITHIN THE PERIOD LAID DOWN AS A RESULT OF UNUSUAL CIRCUMSTANCES OUTSIDE HIS CONTROL, THE CONSEQUENCES OF WHICH, IN SPITE OF THE EXERCISE OF ALL DUE CARE ON HIS PART, HE COULD NOT HAVE AVOIDED EXCEPT AT THE COST OF EXCESSIVE SACRIFICE .

4 . THE COURTS OF MEMBER STATES MAY, WITHIN THE LIMITS OF THEIR OWN JURISDICTION, RECOGNIZE THE EXISTENCE OF A CASE OF FORCE MAJEURE NOT ONLY WHEN THE SITUATION RELIED ON IS INCLUDED IN THOSE ENUMERATED IN ARTICLE 6(3 ) OR WHEN IT HAS BEEN RECOGNIZED BY THE NATIONAL AUTHORITIES IN ACCORDANCE WITH PARAGRAPH ( 4 ), BUT ALSO IN OTHER SPECIFIC CASES WHICH JUSTIFY THE APPLICATION OF THE EXEMPTION REFERRED TO IN ARTICLE 6(2 ).

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

AND

EINFUHR - UND VORRATSSTELLE FUER FETTE

ON THE INTERPRETATION OF REGULATION NO 136/64 ADOPTED ON 12 OCTOBER 1964 BY THE COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY ( OFFICIAL JOURNAL, P.2601/64 ),

P . 384

BY AN ORDER DATED 17 JANUARY 1968, RECEIVED AT THE COURT REGISTRY ON 13 FEBRUARY 1968, THE VERWALTUNGSGERICHT, FRANKFURT-AM-MAIN, SUBMITTED CERTAIN QUESTIONS IN ACCORDANCE WITH ARTICLE 177 OF THE TREATY ESTABLISHING THE EEC ON THE INTERPRETATION OF ARTICLE 6 OF REGULATION NO 136/64/EEC .

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 .

ON QUESTION NO 1

IN THE FIRST QUESTION THE VERWALTUNGSGERICHT, FRANKFURT-AM-MAIN, ASKS WHETHER THE CONCEPT OF ' ENGINE FAILURE ' REFERRED TO IN ARTICLE 6(3)(E ) OF REGULATION NO 136/64/EEC ALSO APPLIES TO ENGINE FAILURES OCCURRING IN DAIRY MACHINERY .

ALTHOUGH, FROM THE SYNTACTICAL POINT OF VIEW, THIS TEXT DOES NOT NECESSARILY RELATE THE TERM ' ENGINE FAILURE ' TO THE DIFFICULTIES CONCERNING SHIPPING REFERRED TO IN ARTICLE 6(3)(E ), IT NEVERTHELESS JUXTAPOSES THESE WORDS AND THOSE DESCRIBING THE DIFFICULTIES .

MOREOVER THE PROVISIONS IN SUBPARAGRAPH ( C ), ( D ) AND ( G ) OF THE SAME PARAGRAPH ONLY CONCERN SHIPPING .

FURTHERMORE, THE CONCEPT OF ' ENGINE FAILURE ' ALREADY APPEARED IN ARTICLE 8(2 ) OF REGULATION NO 87 OF THE COMMISSION OF 25 JULY 1962 FOR THE PURPOSE OF DETERMINING THE CONDITIONS OF IMPLEMENTATION APPLICABLE TO IMPORT AND EXPORT LICENCES FOR CEREALS AND COULD ONLY REFER TO THE QUESTION OF CARRIAGE AND NOT TO THE PRODUCTION OF GOODS .

P . 385

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 ' ENGINE FAILURE ' DOES NOT INCLUDE FAILURES OCCURRING IN MACHINERY INTENDED FOR THE PRODUCTION OF GOODS .

QUESTIONS NOS 3, 4 AND 5

THE VERWALTUNGSGERICHT ASKS HOW THE CONCEPT OF FORCE MAJEURE REFERRED TO IN ARTICLE 6(2 ) TO ( 4 ) OF REGULATION NO 136/64/EEC IS TO BE INTERPRETED .

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 FORCE MAJEURE AND THE FAILURE TO EFFECT THE IMPORTATION AND WHETHER, IF A DIRECT CAUSAL CONNEXION IS NECESSARY, THE NON-PERFORMANCE OF THE CONTRACT BY THE IMPORTER'S SUPPLIER MIGHT BE REGARDED AS A CASE OF FORCE MAJEURE .

FINALLY, IT ASKS WHETHER IT IS SUFFICIENT FOR THE APPLICATION OF THE ABOVEMENTIONED ARTICLE 6(2 ) THAT ' AS A RESULT OF FORCE MAJEURE, IMPORTATION WOULD INVOLVE THE IMPORTER IN CONSIDERABLE ECONOMIC DIFFICULTIES AND COULD ONLY TAKE PLACE AT EXCESSIVE ECONOMIC SACRIFICE '.

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 FORCE MAJEURE .

AS THE CONCEPT OF FORCE MAJEURE IS NOT IDENTICAL IN THE DIFFERENT BRANCHES OF LAW AND THE VARIOUS FIELDS OF APPLICATION, THE SIGNIFICANCE OF THIS CONCEPT MUST BE DETERMINED ON THE BASIS OF THE LEGAL FRAMEWORK WITHIN WHICH IT IS INTENDED TO TAKE EFFECT .

THUS, THE INTERPRETATION OF THE CONCEPT OF FORCE MAJEURE USED IN THE REGULATION IN QUESTION MUST TAKE INTO ACCOUNT THE PARTICULAR NATURE OF THE RELATIONSHIPS IN PUBLIC LAW BETWEEN THE IMPORTERS AND THE NATIONAL ADMINISTRATION, AS WELL AS THE OBJECTIVES OF THAT REGULATION .

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 .

P . 386

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 FORCE MAJEURE IN THE SENSE OF ABSOLUTE IMPOSSIBILITY, BUT TO UNUSUAL DIFFICULTIES WHICH ARE INDEPENDENT OF THE WILL OF IMPORTERS AND WHICH ARISE DURING THE PERFORMANCE OF THE CONTRACTS .

HOWEVER, RECOGNITION OF A CASE OF FORCE MAJEURE PRESUPPOSES NOT ONLY THE OCCURRENCE OF AN UNUSUAL EVENT BUT ALSO THAT THE CONSEQUENCES OF THAT EVENT COULD NOT BE AVOIDED, AS FOR EXAMPLE WHERE AN IMPORTER COULD HAVE OBTAINED THE GOODS ELSEWHERE WITHIN THE PERIOD STIPULATED .

IN THIS RESPECT, TOO, THE IMPORTER MUST BE EXPECTED TO SHOW ALL DUE DILIGENCE .

THIS BEING SO, FORCE MAJEURE IS ESTABLISHED IF THE IMPORTER COULD ONLY HAVE EFFECTED THE IMPORTATION WITHIN THE PERIOD STIPULATED BY REPLACING THE GOODS AT AN EXCESSIVE LOSS TAKING INTO ACCOUNT, WHERE NECESSARY, ANY REMEDIES AVAILABLE TO HIM .

IT MUST, THEREFORE, BE CONCLUDED THAT SUFFICIENT CAUSAL CONNEXION BETWEEN THE CIRCUMSTANCES RELIED ON AS A CASE OF FORCE MAJEURE AND THE FAILURE TO EFFECT THE IMPORTATION MUST IN PRINCIPLE BE RECOGNIZED WHEN DELIVERY IN DUE TIME BY THE IMPORTER'S SUPPLIER HAS BECOME IMPOSSIBLE WITHIN THE MEANING OF THE ABOVE DEFINITION, AND WHEN THE IMPORTER CAN ONLY OBTAIN THE GOODS ELSEWHERE AT AN EXCESSIVE LOSS .

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 FORCE MAJEURE .

P . 387

QUESTION NO 2

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 FORCE MAJEURE CIRCUMSTANCES OTHER THAN THOSE MENTIONED IN PARAGRAPH ( 3 ) OF THAT ARTICLE .

ARTICLE 6(3 ) OF THE REGULATION IN DISPUTE LISTS A NUMBER OF CIRCUMSTANCES FROM WHICH CASES OF FORCE MAJEURE ' MAY ' RESULT .

PARAGRAPH ( 4 ) OF THE SAME ARTICLE IMPLIES THAT IT IS POSSIBLE FOR THE MEMBER STATES TO RECOGNIZE AS FORCE MAJEURE CASES RESULTING FROM CIRCUMSTANCES OTHER THAN THOSE SET OUT IN PARAGRAPH ( 3 ).

THE SPIRIT OF THESE PROVISIONS IS EXPLAINED IN THE SIXTH RECITAL IN THE PREAMBLE TO THE REGULATION IN DISPUTE WHICH READS ' ...MENTION NEEDS TO BE MADE OF CERTAIN CIRCUMSTANCES WHICH MAY BE CONSIDERED AS CONSTITUTING CASES OF FORCE MAJEURE WITHOUT THEREBY EXCLUDING OTHER CIRCUMSTANCES FROM CONSIDERATION '.

IT FOLLOWS FROM THE GENERAL SCHEME OF ARTICLE 6(2 ), ( 3 ) AND ( 4 ) THAT EXEMPTION ON THE GROUNDS OF FORCE MAJEURE MAY APPLY EVEN OUTSIDE THE CASES EXPRESSLY PROVIDED FOR IN PARAGRAPH ( 3 ), AS THIS LIST IS NOT EXHAUSTIVE .

WITHIN THE LIMITS OF THEIR OWN JURISDICTION, THEREFORE, NATIONAL COURTS MAY RECOGNIZE THE EXISTENCE OF A CASE OF FORCE MAJEURE NOT ONLY WHEN THE SITUATION RELIED ON IS INCLUDED IN THOSE ENUMERATED IN ARTICLE 6(3 ), OR WHEN IT HAS BEEN RECOGNIZED BY THE NATIONAL AUTHORITIES IN ACCORDANCE WITH ARTICLE 6(4 ), BUT ALSO IN OTHER SPECIFIC CASES IN WHICH FORCE MAJEURE, WITHIN THE ABOVEMENTIONED EXPOSITION OF THE CONCEPT, JUSTIFIES THE APPLICATION OF THE EXEMPTION REFERRED TO IN ARTICLE 6(2 ).

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 .

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE VERWALTUNGSGERICHT, FRANKFURT-AM-MAIN ( THIRD CHAMBER ), BY ORDER OF THAT COURT DATED 17 JANUARY 1968,

HEREBY RULES :

1 . THE CONCEPT OF ' ENGINE FAILURE ' REFERRED TO IN ARTICLE 6(3 ) OF REGULATION NO 136/64/EEC DOES NOT INCLUDE FAILURES WHICH OCCUR IN MACHINERY INTENDED FOR THE PRODUCTION OF GOODS;

2 . THE COURTS OF MEMBER STATES MAY RECOGNIZE AS CASES OF FORCE MAJEURE WITHIN THE MEANING OF ARTICLE 6(2 ) OF REGULATION NO 136/64/EEC CIRCUMSTANCES OTHER THAN THOSE REFERRED TO IN PARAGRAPH ( 3 ) OF THAT ARTICLE;

3 . IN ORDER TO RELY ON FORCE MAJEURE WITHIN THE MEANING OF THIS REGULATION, THE IMPORTER MUST SHOW THAT HE WAS UNABLE TO EFFECT THE IMPORTATION WITHIN THE PERIOD LAID DOWN AS A RESULT OF UNUSUAL CIRCUMSTANCES OUTSIDE HIS CONTROL, THE CONSEQUENCES OF WHICH, IN SPITE OF THE EXERCISE OF ALL DUE CARE ON HIS PART, HE COULD NOT HAVE AVOIDED EXCEPT AT THE COST OF EXCESSIVE SACRIFICE;

AND DECLARES :

THE DECISION AS TO COSTS IS A MATTER FOR THE VERWALTUNGSGERICHT, FRANKFURT-AM-MAIN .