61982J0071

AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - CEREALS - IMPORT OR EXPORT LICENCES - EXTENSION OF THE PERIOD OF VALIDITY ON THE GROUND OF FORCE MAJEURE - RETROACTIVE EXTENSION - PERMISSIBILITY - CONDITIONS - EFFECTS

( REGULATION NO 473/67/EEC OF THE COMMISSION , ART . 9 ( 1 ))

IN SO FAR AS THE NARROWLY-DEFINED EXCEPTIONS , WHICH ARE RESTRICTED TO CASES OF FORCE MAJEURE , DO NOT IN PRINCIPLE AFFECT THE RELIABILITY OF THE LICENSING SYSTEM , THE EFFECTS OF A DECISION TO EXTEND THE PERIOD OF VALIDITY OF AN EXPORT LICENCE TAKEN BECAUSE OF THE EXISTANCE OF A CASE OF FORCE MAJEURE MUST COME INTO PLAY REGARDLESS OF WHETHER SUCH EXTENSION OCCURS BEFORE OR AFTER THE EXPIRY OF THE PERIOD OF VALIDITY OF THE LICENCE .

ARTICLE 9 ( 1 ) OF REGULATION NO 473/67 MUST THEREFORE BE INTERPRETED AS MEANING THAT THE PERIOD OF VALIDITY OF AN EXPORT LICENCE FOR WHICH THE REFUND HAS BEEN FIXED IN ADVANCE MAY BE EXTENDED FOR A PERIOD OF TIME WHICH HAS EXPIRED - THAT IS TO SAY , RETROACTIVELY - WHERE THE COMPETENT AUTHORITY HAS WRONGLY REFUSED TO GRANT IN DUE TIME AN EXTENSION JUSTIFIED BY A CASE OF FORCE MAJEURE AND WHERE AS A RESULT IT HAS BEEN NECESSARY FOR THE EXPORT TO BE EFFECTED ON THE BASIS OF A FRESH LICENCE RELATING TO THE SAME TRANSACTION ; IN SUCH A CASE , THE FRESH LICENCE HAS NO LEGAL EFFECT AND MUST BE FORMALLY CANCELLED .

IN CASE 71/82

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE BUNDESVERWALTUNGSGERICHT ( FEDERAL ADMINISTRATIVE COURT ), FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

BUNDESANSTALT FUR LANDWIRTSCHAFTLICHE MARKTORDNUNG ( FEDERAL OFFICE FOR THE ORGANIZATION OF AGRICULTURAL MARKETS ), FRANKFURT AM MAIN ,

AND

FIRMA H . UND J . BRUGGEN , LUBECK ,

ON THE INTERPRETATION OF ARTICLE 9 ( 1 ) OF REGULATION NO 473/67/EEC OF THE COMMISSION OF 21 AUGUST 1967 ( AMTSBLATT L 204 , 24 . 8 . 1967 , P . 16 ) ON IMPORT AND EXPORT LICENCES FOR CEREALS ,

1 BY AN ORDER OF 17 DECEMBER 1981 , WHICH WAS RECEIVED AT THE COURT ON 18 FEBRUARY 1982 , THE BUNDESVERWALTUNGSGERICHT ( FEDERAL ADMINISTRATIVE COURT ) REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF ARTICLE 9 ( 1 ) OF REGULATION NO 473/67/EEC OF THE COMMISSION OF 21 AUGUST 1967 ON IMPORT AND EXPORT LICENCES FOR CEREALS ( AMTSBLATT L 204 , 24 . 8 . 1967 , P . 16 ).

2 THAT QUESTION WAS RAISED IN THE COURSE OF A DISPUTE BETWEEN FIRMA H . UND J . BRUGGEN , LUBECK , ( HEREINAFTER REFERRED TO AS ' ' BRUGGEN ' ' ), THE PLAINTIFF IN THE MAIN ACTION , AND THE BUNDESANSTALT FUR LANDWIRTSCHAFTLICHE MARKTORDNUNG ( FEDERAL OFFICE FOR THE ORGANIZATION OF AGRICULTURAL MARKETS ), FRANKFURT AM MAIN , OVER THE QUESTION WHETHER THE PERIOD OF VALIDITY OF AN EXPORT LICENCE IN WHICH THE AMOUNT OF THE REFUND IS FIXED IN ADVANCE MAY BE EXTENDED RETROACTIVELY .

3 IT APPEARS FROM THE ORDER MAKING THE REFERENCE THAT BRUGGEN HAD ON 27 NOVEMBER 1969 OBTAINED A LICENCE FOR THE EXPORT TO PERU OF 595 920 KG OF GROATS , VALID UNTIL 31 MAY 1970 . ON 13 MAY 1970 THE UNDERTAKING REQUESTED AN EXTENSION OF THE PERIOD OF VALIDITY OF THE LICENCE , STATING THAT IT HAD BEEN UNABLE TO TAKE DELIVERY FROM THE GERMAN DEMOCRATIC REPUBLIC OF THE ENTIRE QUANTITY OF OATS TO BE USED FOR THE PRODUCTION OF THE GROATS TO BE EXPORTED , BECAUSE THE WATERWAYS BETWEEN FRANKFURT AN DER ODER AND LUBECK HAD REMAINED ICE-BOUND FOR LONGER THAN USUAL , FROM DECEMBER 1969 TO APRIL 1970 . IN FACT , BY 31 MAY 1970 BRUGGEN HAD EXPORTED ONLY 298 039 KG OF GROATS UNDER THE LICENCE WHICH HAD BEEN ISSUED TO IT .

4 THAT REQUEST FOR AN EXTENSION WAS REFUSED BY THE PREDECESSOR OF THE BUNDESANSTALT FUR LANDWIRTSCHAFTLICHE MARKTORDNUNG ON THE GROUND THAT , ALTHOUGH ARTICLE 9 ( 2 ) OF REGULATION NO 473/67/EEC DOES IN FACT INCLUDE AMONG CASES OF FORCE MAJEURE THE SUSPENSION OF INLAND SHIPPING OWING TO THE FORMATION OF ICE , THE UNDERTAKING CONCERNED COULD NOT RELY UPON THAT PROVISION , BECAUSE THE SITUATION CONSTITUTING A CASE OF FORCE MAJEURE HAD PREVENTED ONLY THE IMPORT OF THE RAW MATERIAL TO BE USED FOR THE MANUFACTURE OF THE GOODS NOT THE EXPORT OF THE GOODS ACTUALLY COVERED BY THE LICENCE .

5 THE PLAINTIFF WAS THEREFORE COMPELLED TO APPLY FOR A NEW LICENCE , AFTER THE GRANT OF WHICH IT WAS ABLE TO EXPORT THE REMAINING QUANTITY OF 297 881 KG OF GROATS AFTER 31 MAY 1970 . HOWEVER , THE RATE OF REFUND PAID ON THE BASIS OF THE NEW LICENCE WAS DM 288.96 PER TONNE AS AGAINST THE RATE OF REFUND PAID ON THE BASIS OF THE FIRST LICENCE , DM 307.05 PER TONNE , WHICH RESULTED IN A LOSS TO BRUGGEN OF DM 5 388.67 .

6 AT FIRST INSTANCE AND ON APPEAL , THE NATIONAL COURTS RECOGNIZED IN SUBSTANCE THAT THE PLAINTIFF OUGHT TO HAVE OBTAINED THE EXTENSION OF THE PERIOD OF VALIDITY OF THE FIRST EXPORT LICENCE AND THAT IT SHOULD THEREFORE BE PLACED IN THE SITUATION IN WHICH IT WOULD HAVE BEEN IF ITS ORIGINAL APPLICATION HAD BEEN GRANTED .

7 THE BUNDESVERWALTUNGSGERICHT , BEFORE WHICH THE MATTER WAS BROUGHT , AGREES WITH THE LOWER COURTS THAT THE DEFENDANT OUGHT TO HAVE GRANTED TO BRUGGEN THE EXTENSION OF THE PERIOD OF VALIDITY OF THE LICENCE . ON THE OTHER HAND , IT EXPRESSES RESERVATIONS AS TO THE POSSIBILITY OF A RETROACTIVE EXTENSION OF THE VALIDITY OF THE EXPIRED LICENCE , WHICH WOULD BE THE ONLY MEANS OF PLACING THE UNDERTAKING CONCERNED IN THE POSITION IN WHICH IT WOULD HAVE BEEN IF THE EXPORT HAD BEEN EFFECTED UNDER THE FIRST LICENCE BUT WOULD BE INCOMPATIBLE WITH NATIONAL LAW , WHICH DOES NOT PERMIT THE PLAINTIFF TO BRING A FOLGENBESEITIGUNGSANSPRUCH ( AN APPLICATION TO REMEDY THE CONSEQUENCES OF ADMINISTRATIVE ACTION ) ON THE BASIS OF A WRONG DECISION BY THE ADMINISTRATION .

8 MOREOVER , THE BUNDESVERWALTUNGSGERICHT CONSIDERS THAT SUCH A RETROACTIVE EXTENSION WOULD BE LIKELY TO JEOPARDIZE THE PROPER FUNCTIONING OF THE SYSTEM OF EXPORT LICENCES BECAUSE THE SECOND LICENCE WOULD SERVE ONLY AS A TEMPORARY SUBSTITUTE , SO THAT , ON THE ONE HAND , THE RELIABILITY OF THE SYSTEM AS AN INDICATOR OF MARKET TRENDS WOULD BE IMPAIRED , AND , ON THE OTHER HAND , THE HOLDER OF A LICENCE COULD THUS HIMSELF IN A MANNER OF SPEAKING EXTEND THE PERIOD OF VALIDITY OF HIS LICENCE .

9 ON THE OTHER HAND , IT WOULD SCARCELY BE SATISFACTORY FROM THE POINT OF VIEW OF THE LEGAL PROTECTION OF TRADERS WITHIN THE COMMUNITY IF , IN THE EVENT OF A CASE OF FORCE MAJEURE , IT WERE IMPOSSIBLE TO OBTAIN A RETROACTIVE EXTENSION OF THE PERIOD OF VALIDITY OF AN EXPORT LICENCE .

10 UNDER THOSE CIRCUMSTANCES , THE BUNDESVERWALTUNGSGERICHT REFERRED TO THE COURT OF JUSTICE THE FOLLOWING QUESTION :

' ' DOES ARTICLE 9 ( 1 ) OF REGULATION NO 473/67/EEC OF THE COMMISSION OF 21 AUGUST 1967 ( AMTSBLATT L 204 , 24 . 8 . 1967 , P . 16 ) PERMIT THE VALIDITY OF AN EXPORT LICENCE IN WHICH THE AMOUNT OF THE REFUND IS FIXED IN ADVANCE TO BE EXTENDED FOR A PERIOD ALREADY PAST , THUS GIVING IT RETROACTIVE EFFECT , IN ORDER TO ENABLE AN EXPORTER THE VALIDITY OF WHOSE LICENCE WAS NOT EXTENDED IN DUE TIME AND WHO THEREFORE EFFECTED THE EXPORT ON THE BASIS OF A FRESH LICENCE TO BENEFIT IN RESPECT OF THAT EXPORT FROM THE RATE OF REFUND WHICH HAD BEEN FIXED IN ADVANCE?

' '

11 BY THAT QUESTION , THE NATIONAL COURT IN SUBSTANCE IS ASKING WHETHER ARTICLE 9 ( 1 ) OF REGULATION NO 473/67/EEC PERMITS THE RETROACTIVE EXTENSION OF THE PERIOD OF VALIDITY OF AN EXPORT LICENCE , WHERE THE COMPETENT AUTHORITY HAS WRONGLY REFUSED TO GRANT IN DUE TIME AN EXTENSION JUSTIFIED BY A CASE OF FORCE MAJEURE AND THE EXPORT HAS THEREFORE HAD TO BE EFFECTED ON THE BASIS OF A FRESH EXPORT LICENCE RELATING TO THE SAME TRANSACTION . THE QUESTION ALSO RAISES THE PROBLEM OF THE VALIDITY OF THE SECOND LICENCE .

12 IT MUST FIRST BE STATED THAT IT IS CLEAR FROM THE PROVISIONS AND GENERAL SCHEME OF ARTICLE 9 ( 1 ) AND ( 2 ) OF REGULATION NO 473/67/EEC THAT THE EXISTENCE OF A CASE OF FORCE MAJEURE IS A CONDITION WHICH IS BOTH NECESSARY AND SUFFICIENT FOR THE EXTENSION OF THE PERIOD OF VALIDITY OF A LICENCE FOR THE IMPORT OR EXPORT OF CEREALS .

13 CONSEQUENTLY , IF IN THE VIEW OF THE NATIONAL AUTHORITIES , WHICH IN SUCH A MATTER ARE SUBJECT TO THE JURISDICTION OF THE COMPETENT COURTS , THE EXISTENCE OF A CASE OF FORCE MAJEURE CANNOT OR CAN NO LONGER BE DISPUTED , THE IMPORTERS AND EXPORTERS CONCERNED ARE ENTITLED ON DEMAND TO AN EXTENSION OF THE PERIOD OF VALIDITY OF THE LICENCES .

14 IN RELATION TO THE QUESTION OF THE RETROACTIVE EXTENSION OF THE PERIOD OF VALIDITY OF THE EXPORT LICENCE , IT MUST BE STATED THAT THE PLAINTIFF ' S RIGHT TO SUCH AN EXTENSION IS INTENDED TO ENABLE IT TO EFFECT THE EXPORT TRANSACTION AT THE RATE OF REFUND FIXED IN ADVANCE IN THAT LICENCE IN SPITE OF THE OBSTACLES ARISING OUT OF THE EVENTS WHICH HAVE CONSTITUTED FORCE MAJEURE ; ITS RIGHT MUST THEREFORE BE SUCH AS TO PRODUCE ALL THE EFFECTS NECESSARY FOR THAT PURPOSE .

15 IN SO FAR AS THE NARROWLY-DEFINED EXCEPTIONS , WHICH ARE RESTRICTED TO CASES OF FORCE MAJEURE , DO NOT IN PRINCIPLE AFFECT THE RELIABILITY OF THE LICENSING SYSTEM , THE EFFECTS OF A DECISION TO EXTEND THE PERIOD OF VALIDITY OF AN EXPORT LICENCE TAKEN BECAUSE OF THE EXISTENCE OF A CASE OF FORCE MAJEURE MUST COME INTO PLAY REGARDLESS OF WHETHER SUCH EXTENSION OCCURS BEFORE OR AFTER THE EXPIRY OF THE PERIOD OF VALIDITY OF THE LICENCE .

16 THAT SOLUTION IS ALSO DESIRABLE ON GROUNDS CONNECTED WITH THE LEGAL PROTECTION OF THE LICENCE HOLDER , SINCE IF THERE IS NO POSSIBILITY OF RETROACTIVE EXTENSION HE CANNOT ENJOY THE RIGHTS CONFERRED UPON HIM BY ARTICLE 9 OF REGULATION NO 473/67/EEC .

17 IT MUST ALSO BE BORNE IN MIND THAT THE COURT HAS ACCEPTED THAT IT IS PERMISSIBLE , IN THE EVENT OF THE LOSS OF A LICENCE WHICH CONSTITUTES A CASE OF FORCE MAJEURE FOR A REQUEST TO BE MADE PURSUANT TO ARTICLE 18 ( 1 ) OF REGULATION NO 1373/70/EEC OF THE COMMISSION ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1970 ( II ), P . 439 ) AFTER THE PERIOD OF VALIDITY OF THE LICENCE HAS EXPIRED ( JUDGMENT OF 30 JANUARY 1974 IN CASE 158/73 , KAMPFFMEYER V EINFUHR- UND VORRATSSTELLE FUR GETREIDE UND FUTTERMITTEL ( 1974 ) ECR 101 ). IN ADDITION , THE VALIDITY OF SUCH RETROACTIVE EXTENSION MAY BE INFERRED FROM A PROVISION WHICH WAS LAID DOWN AFTER THE MATERIAL EVENTS IN THIS CASE , NAMELY ARTICLE 36 ( 2 ) OF COMMISSION REGULATION ( EEC ) NO 3183/80 OF 3 DECEMBER 1980 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 1980 , L 338 , P . 1 ), WHICH PROVIDES THAT , IN A CASE OF FORCE MAJEURE , A REQUEST TO EXTEND THE PERIOD OF VALIDITY OF A LICENCE OR CERTIFICATE MAY BE RECEIVED NOT MORE THAN 30 DAYS AFTER THE EXPIRY OF SUCH PERIOD OF VALIDITY . IN THOSE CONDITIONS , IT IS CLEAR THAT THE DECISION WHICH FOLLOWS THAT REQUEST MAY ALSO BE MADE RETROACTIVELY , WITH THE RESULT THAT THE EXTENSION APPLIES RETROACTIVELY TO THE PERIOD BETWEEN THE EXPIRY OF THE PERIOD OF VALIDITY OF THE LICENCE OR CERTIFICATE AND THE DECISION ON THE REQUEST FOR AN EXTENSION .

18 IT THEREFORE FOLLOWS THAT , ON GROUNDS RELATING TO THE LEGAL PROTECTION OF THE LICENCE HOLDER , A RETROACTIVE EXTENSION WHICH DOES NOT HAVE AN APPRECIABLE EFFECT ON THE RELIABILITY OF THE LICENSING SYSTEM MUST BE CONSIDERED VALID UNDER ARTICLE 9 ( 1 ) OF REGULATION NO 473/67 .

19 IT SHOULD ALSO BE STATED THAT THE RECOGNITION OF THE VALIDITY OF SUCH RETROACTIVE EXTENSION RAISES THE QUESTION OF THE VALIDITY OF THE SECOND LICENCE WHICH WAS ISSUED TO THE PLAINTIFF IN THE MAIN ACTION IN THIS CASE .

20 IT FOLLOWS FROM THE CONSIDERATIONS SET OUT ABOVE THAT IN SO FAR AS THE FIRST LICENCE , THE PERIOD OF VALIDITY OF WHICH HAS BEEN EXTENDED , TAKES FULL EFFECT , THE SECOND , WHICH RELATES TO THE SAME EXPORT TRANSACTION , AUTOMATICALLY CEASES TO HAVE EFFECT AND MUST BE FORMALLY CANCELLED .

21 THE ANSWER TO THE QUESTION SUBMITTED TO THE COURT MUST THEREFORE BE THAT ARTICLE 9 ( 1 ) OF REGULATION NO 473/67 MUST BE INTERPRETED AS MEANING THAT THE PERIOD OF VALIDITY OF AN EXPORT LICENCE FOR WHICH THE REFUND HAS BEEN FIXED IN ADVANCE MAY BE EXTENDED FOR A PERIOD OF TIME WHICH HAS EXPIRED - THAT IS TO SAY , RETROACTIVELY - WHERE THE COMPETENT AUTHORITY HAS WRONGLY REFUSED TO GRANT IN DUE TIME AN EXTENSION JUSTIFIED BY A CASE OF FORCE MAJEURE AND WHERE AS A RESULT IT HAS BEEN NECESSARY FOR THE EXPORT TO BE EFFECTED ON THE BASIS OF A FRESH LICENCE RELATING TO THE SAME TRANSACTION ; IN SUCH A CASE , THE FRESH LICENCE HAS NO LEGAL EFFECT AND MUST BE FORMALLY CANCELLED .

COSTS

22 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .

23 AS THERE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE PROCEEDINGS BEFORE THE BUNDESVERWALTUNGSGERICHT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER ),

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE BUNDESVERWALTUNGSGERICHT BY ORDER OF 17 DECEMBER 1981 , HEREBY RULES :

ARTICLE 9 ( 1 ) OF REGULATION NO 473/67 OF THE COMMISSION MUST BE INTERPRETED AS MEANING THAT THE PERIOD OF VALIDITY OF AN EXPORT LICENCE FOR WHICH THE REFUND HAS BEEN FIXED IN ADVANCE MAY BE EXTENDED FOR A PERIOD OF TIME WHICH HAS EXPIRED - THAT IS TO SAY , RETROACTIVELY - WHERE THE COMPETENT AUTHORITY HAS WRONGLY REFUSED TO GRANT IN DUE TIME AN EXTENSION JUSTIFIED BY A CASE OF FORCE MAJEURE AND WHERE AS A RESULT IT HAS BEEN NECESSARY FOR THE EXPORT TO BE EFFECTED ON THE BASIS OF A FRESH LICENCE RELATING TO THE SAME TRANSACTION ; IN SUCH A CASE , THE FRESH LICENCE HAS NO LEGAL EFFECT AND MUST BE FORMALLY CANCELLED .