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Agriculture ° Common organization of the markets ° Rules on lodging security ° Force majeure ° Concept ° Amendment in a State-trading country of the quality requirements for imported products ° No longer possible to carry out an export operation in respect of which security has been lodged ° Not force majeure
(Commission Regulation No 765/86)
In the context of agricultural relations, the concept of force majeure takes into account the particular nature of the public-law relationships between traders and the national administration, as well as the objectives of those regulations. It is not limited to absolute impossibility but must be understood in the sense of abnormal and unforeseeable circumstances, outside the control of the trader concerned, the consequences of which, in spite of the exercise of all due care, could not have been avoided except at the cost of excessive sacrifice.
The amendment of the legislation of a non-member country governing the quality of imported products, in consequence of which it is impossible to carry out an export to that non-member country, planned by a trader and entailing commitments on his part ° such as the lodging of a security under the rules on tenders in Regulation No 765/86 laying down detailed rules for the sale of butter from intervention stock for export to certain destinations ° must be regarded as a circumstance outside the control of the trader concerned.
However, in the case of exports to a State-trading country, such an occurrence cannot be regarded as abnormal and unforeseeable. On the contrary, it constitutes a usual commercial risk in commercial transactions with an organization of such a country which is directly subject to the public authority of that State. Traders who engage in such transactions run the risk that the legislation governing the import of products sold to that State-trading organization will subsequently be altered by sovereign act of the State in question, even after a very long period of stability.
A prudent trader, who cannot be unaware of that risk and who is at liberty to choose his trading partners, must take appropriate precautions, either by inserting a suitable clause in the contract or by taking out specific insurance. If that is not possible and he still enters the contract, he accepts that risk and must bear the consequences.