61974J0064

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AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - CEREALS - MAIZE - IMPORTATION FROM A MEMBER STATE - LEVY FIXED IN ADVANCE - PERIOD LAID DOWN FOR IMPORTATION - NOT OBSERVED - FORCE MAJEURE

( REGULATION NO 31 OF THE COUNCIL - ARTICLE 2 ( 1 ) AND ( 2 ))

REGULATION NO 87/62 OF THE COMMISSION, ARTICLE 8 ( 3 ))

WHILE THE CONCEPT OF FORCE MAJEURE IN A CASE SUCH AS THE PRESENT IMPLIES THAT THE FAILURE TO OBSERVE A TIME LIMIT PROVIDED FOR IN THE LICENCE DOES NOT INVOLVE THE LOSS OF THE ENTITLEMENT TO A LEVY FIXED IN ADVANCE, THIS IS NEVERTHELESS ON CONDITION THAT THE DELAY IN IMPORTATION IS DUE TO EXCEPTIONAL CIRCUMSTANCES, AND IS IN PARTICULAR NOT DUE TO NEGLIGENCE OF WHICH A PRUDENT IMPORTER WOULD NOT BE GUILTY, EITHER WHEN ENTERING INTO A CONTRACT TO BUY OR TO CARRY, OR IN ASSERTING HIS RIGHTS AGAINST THE CARRIER .

IN CASE 64/74,

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE FINANZGERICHT, RHEINLAND-PFALZ, FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

FIRMA ADOLF REICH, STUTTGART,

AND

HAUPTZOLLAMT LANDAU,

PARTY JOINED : EINFUHR - UND VORRATSSTELLE FUER GETREIDE UND FUTTERMITTEL, FRANKFURT-ON-MAIN,

ON THE INTERPRETATION OF CERTAIN PROVISIONS OF REGULATION NO 54/62 OF THE COUNCIL OF 30 JUNE 1962 ( OJ 1962, NO 54, P . 1581 ) AND OF REGULATION NO 87/62 OF THE COMMISSION OF 25 JULY 1962 ( OJ 1962, NO 66, P . 1895 ) ON THE APPLICATION OF THE LEVY FIXED IN ADVANCE ON THE IMPORTATION OF MAIZE FROM A MEMBER STATE,

1 BY ORDER DATED 29 AUGUST 1974, FILED AT THE COURT OF JUSTICE ON 6 SEPTEMBER 1974, THE FINANZGERICHT RHEINLAND-PFALZ REFERRED UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF CERTAIN PROVISIONS OF REGULATION NO 54/62 OF THE COUNCIL OF 30 JUNE 1962 ( OJ 1962, NO 54 ) AND OF REGULATION NO 87/62 OF THE COMMISSION OF 25 JULY 1962 ( OJ 1962, NO 66 ).

THE COURT IS ASKED TO DECIDE WHETHER THE RATE OF LEVY FIXED IN ADVANCE PURSUANT TO ARTICLE 2 ( 1 ) AND ( 2 ) OF REGULATION NO 31/63 OF THE COUNCIL OF 2 APRIL 1963 ( OJ 1963, NO 59 ) ON THE IMPORT OF MAIZE FROM A MEMBER STATE IS ALSO TO BE APPLIED WHERE THE IMPORT WAS NOT EFFECTED IN THE MONTH INDICATED IN THE APPLICATION FOR AN IMPORT LICENCE ON A GROUND WHICH, UNDER ARTICLE 8 ( 3 ) OF REGULATION NO 87/62, JUSTIFIES AN EXCEPTION BEING MADE .

THIS QUESTION WAS REFERRED IN THE COURSE OF PROCEEDINGS CONCERNING A REFUSAL OF THE GERMAN CUSTOMS AUTHORITIES TO APPLY THE LEVY FIXED IN ADVANCE UPON AN IMPORT OF MAIZE FROM FRANCE ON 3 OCTOBER 1963, THE TIME-LIMIT LAID DOWN IN THE LICENCE HAVING EXPIRED ON 30 SEPTEMBER 1963 .

THE PARTY IN QUESTION CLAIMS THAT THIS REFUSAL IS UNJUSTIFIED, ON THE GROUNDS THAT THE DELAY WHICH OCCURRED IN IMPORTATION WAS THE FAULT OF THE RAILWAY AUTHORITY AND NOT OF THE IMPORTER .

2 UNDER THE GENERAL RULE IN ARTICLE 17 ( 1 ) OF REGULATION NO 19/62 OF THE COUNCIL OF 4 APRIL 1962 ( OJ 1962, P . 933 ) THE AMOUNT OF THE LEVY, WITHIN THE COMMUNITY AS WELL AS VIS-A-VIS THIRD COUNTRIES, IS THAT 'APPLICABLE ON THE DATE OF IMPORTATION '.

HOWEVER, AS REGARDS THE IMPORTATION OF CEREALS FROM THIRD COUNTRIES, PARAGRAPH ( 2 ) OF THAT ARTICLE PROVIDES THE POSSIBILITY FOR THE IMPORTER TO REQUEST THE FIXING IN ADVANCE OF THE LEVY, BY VIRTUE OF WHICH 'THE LEVY APPLICABLE ON THE DATE OF SUBMISSION OF THE APPLICATION FOR A LICENCE, ADJUSTED ACCORDING TO THE THRESHOLD PRICE IN FORCE AT THE DATE OF IMPORTATION, SHALL BE APPLIED ... TO AN IMPORTATION TO TAKE PLACE DURING THE PERIOD OF VALIDITY OF THAT LICENCE '.

THIS POSSIBILITY WAS UNDER SIMILAR CONDITIONS EXTENDED TO IMPORTS OF CEREALS FROM MEMBER STATES, BY REGULATION NO 130/62 OF THE COUNCIL OF 23 OCTOBER 1962 ( OJ 1962, P . 2555 ) AND AS FROM 1 JULY 1963 BY REGULATION NO 31/63 OF THE COUNCIL .

SINCE THE BENEFIT PROVIDED BY THESE PROVISIONS IS ONLY GRANTED WHERE THE IMPORT TAKES PLACE WITHIN THE TIME-LIMIT LAID DOWN IN THE LICENCE, THE NON-OBSERVANCE OF THE TIME-LIMIT NORMALLY INVOLVES THE APPLICATION OF THE LEVY CALCULATED ACCORDING TO THE GENERAL RULE OF ARTICLE 17 ( 1 ) AFOREMENTIONED .

AS REGARDS THE IMPORTATION OF CEREALS FROM THIRD COUNTRIES, REGULATION NO 54 OF THE COUNCIL OF 30 JUNE 1962 HAS EXPRESSLY IN ITS ARTICLE 7 ( A ) LAID DOWN THAT IN THE EVENT OF THE TIME-LIMIT NOT BEING OBSERVED 'THE LEVY APPLICABLE ON THE DATE OF SUBMISSION OF THE APPLICATION FOR A LICENCE SHALL BE ADJUSTED ACCORDING TO THE THRESHOLD PRICE AT THE DATE OF IMPORTATION '.

HAVING IN ITS SIXTH RECITAL FOUND THAT 'IT IS NEVERTHELESS PROPER TO PROVIDE SPECIAL RULES TO MEET EXCEPTIONAL CIRCUMSTANCES', REGULATION NO 87/62 OF THE COMMISSION EXCLUDES BY ARTICLE 9 THEREOF THE APPLICATION OF ARTICLE 7 AFOREMENTIONED, 'FOR REASONS WHICH JUSTIFY THE CASE BEING TREATED AS EXCEPTIONAL UNDER ARTICLE 8 ( 2 ) AND ( 3 ) OF THE PRESENT REGULATION '.

NEVERTHELESS, SINCE ARTICLE 7 OF REGULATION NO 54/62 REFERS SOLELY TO IMPORTS OF CEREALS FROM THIRD COUNTRIES, THE DEROGATION WHICH IS MADE THEREFROM BY ARTICLE 9 OF REGULATION NO 87/62 ONLY APPLIED TO THESE IMPORTS AND COULD NOT THEREFORE REGULATE THE CASE OF IMPORTS FROM MEMBER STATES WHICH WERE DELAYED .

ACCORDINGLY, IT IS IN THE PRESENT CASE NECESSARY TO EXAMINE WHETHER AND TO WHAT EXTENT THE EXCEPTION OF FORCE MAJEURE, ALLOWED FOR BY REGULATION NO 87/62 IN THE FIELD OF TRADE WITH THIRD COUNTRIES, MAY EQUALLY APPLY TO TRADE WITH MEMBER STATES .

3 IT FOLLOWS FROM THE SIXTH AND SEVENTH RECITALS OF REGULATION NO 87/62 THAT TO MAKE, IN RESPECT OF IMPORTS OF CEREALS FROM THIRD COUNTRIES, SPECIAL REGULATIONS THAT PROVIDE FOR THE CASE OF FORCE MAJEURE, IS JUSTIFIED BY REASONS OF EQUITY .

IT DOES NOT APPEAR THAT THIS JUSTIFICATION IS LACKING IN THE CASE OF IMPORTS OF CEREALS FROM MEMBER STATES .

ON THE CONTRARY, REGULATION NO 111/63 OF THE COUNCIL OF 1 OCTOBER 1963 ( OJ 1963, P . 2490 ), BUT WHICH CAME INTO FORCE ON 1 NOVEMBER 1963, SHOWS THAT THERE IS NO REASON WHY THE PROBLEMS WHICH, DURING THE PERIOD IN QUESTION, AROSE FROM DELAYS DUE TO EXCEPTIONAL CIRCUMSTANCES, SHOULD NOT BE RESOLVED IN AN ANALOGOUS MANNER IN RELATION TO TRADE BETWEEN MEMBER STATES .

4 WHILE THE CONCEPT OF FORCE MAJEURE IN A CASE SUCH AS THE PRESENT IMPLIES THAT THE FAILURE TO OBSERVE A TIME-LIMIT PROVIDED FOR IN A LICENCE DOES NOT INVOLVE THE LOSS OF THE ENTITLEMENT TO A LEVY FIXED IN ADVANCE, THIS IS NEVERTHELESS ON CONDITION THAT THE DELAY IN IMPORTATION IS DUE TO EXCEPTIONAL CIRCUMSTANCES, AND IS IN PARTICULAR NOT DUE TO NEGLIGENCE OF WHICH A PRUDENT IMPORTER WOULD NOT BE GUILTY, EITHER WHEN ENTERING INTO A CONTRACT TO BUY OR TO CARRY, OR IN ASSERTING HIS RIGHTS AGAINST THE CARRIER .

5 IT MUST THEREFORE BE CONCLUDED THAT THE LEVY FIXED IN ADVANCE UNDER ARTICLE 2 ( 1 ) AND ( 2 ) OF REGULATION NO 31/63 OF THE COUNCIL IN RESPECT OF THE IMPORTATION, EVEN IF IT IS NOT EFFECTED DURING THE MONTH INDICATED IN THE IMPORTATION OF MAIZE FROM A MEMBER STATE CONTINUES TO APPLY TO SUCH APPLICATION FOR THE LICENCE, PROVIDED THE DELAY WHICH THUS OCCURRED IS NOT DUE TO THE CONDUCT OF THE IMPORTER OR TO CIRCUMSTANCES THAT CAN NORMALLY BE FORESEEN, BUT TO FORCE MAJEURE, AS REFERRED TO IN ARTICLE 8 ( 3 ) OF REGULATION NO 87/62 .

6 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, A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, COSTS ARE A MATTER FOR THAT COURT .

THE COURT

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE FINANZGERICHT RHEINLAND-PFALZ BY ORDER DATED 29 AUGUST 1974, HEREBY RULES :

THE LEVY FIXED IN ADVANCE UNDER ARTICLE 2 ( 1 ) AND ( 2 ) OF REGULATION NO 31 OF THE COUNCIL OF 2 APRIL 1963 IN RESPECT OF THE IMPORTATION OF MAIZE FROM A MEMBER STATE CONTINUES TO APPLY TO SUCH IMPORTATION, EVEN IF IT IS NOT EFFECTED DURING THE MONTH INDICATED IN THE APPLICATION FOR THE LICENCE, PROVIDED THE DELAY WHICH THUS OCCURRED IS NOT DUE TO THE CONDUCT OF THE IMPORTER OR TO CIRCUMSTANCES THAT CAN NORMALLY BE FORESEEN, BUT TO FORCE MAJEURE, AS REFERRED TO IN ARTICLE 8 ( 3 ) OF REGULATION NO 87 OF THE COMMISSION OF 25 JULY 1962 .