(a)

It is indeed true that the Community licensing system enables the Community agencies responsible for the common organization of the market to predict the development of the market and the rules on deposits which are used to enforce the obligation to import and export are intended to ensure that such predictions are as reliable as possible. To this extent, contrary to the plaintiffs submission, it can scarcely be dented that to some extent the ex post facto amendment of two licences jeopardizes the reliability of the system of import and export licences for agricultural products in the framework of the common organization of the market. Both the defendant and the Commission have rightly pointed out in this connection that, in order to obtain a view of future developments of the market, the Community authorities must in principle be able at the beginning of the period of validity of a licence to rely on the fact that applicants will comply with their obligations to import or export, and it will not always be possible, for technical and administrative reasons, for that to be directly checked. In this regard two import or export transactions are covered by the issue of a double licence, while, if the first licence is extended and the second annulled, only one import or export transaction actually takes place.

However, contrary to the contention of the defendant in the main action, such a “double entry” cannot in itself jeopardize the evidential value of the licensing system. For the purpose of a comprehensive market forecast, absolutely precise knowledge of import and expon transactions is not required but it must be sufficient if their order of magnitude may be ascertained as accurately as possible. The public interest, which requires as accurate a survey as possible of import and export trends in the individual Member States, must at the same time, as the Court of Justice has stressed inter alia in the Case of Kampffmeyer, ( 2 ) be reconciled with the necessity, which also derives from the public interest, that trade between Member Sutes should not be hampered by too rigid obligations. That is why the regulation in question, No 473/67, also lays down special rules for those cases in which, as a result of force majeure, it is not possible to effect the import or export within the period of validity of the licence. As the court making the reference correctly observes, a case of force majeure is, according to the wellestablished case-law of the Court of Justice (for example, see Cases 158/73, ( 2 ) 3/74 ( 3 ); 11/70 ( 4 ) and 4/68 ( 5 )), only to be accepted if the circumstance which prevents the import or export arises from an unusual event, outside the control of the exporter, the occurrence and consequences of which could not have been avoided in spite of the exercise of all the care which might reasonably be expected of a prudent and diligent trader. From that definition it follows that cases of force majeure must always be based on objective factual circumstances which may easily be checked and which are beyond the control of the person concerned. However, that relatively stria criterion, which must be applied by the authorities and courts in determining whether there is in fact a case of force majeure, ensures that wellfounded applications for annulment or extension of the period of validity of licences will not be very common and that the negative effects on the functioning of the licensing system will therefore also be very limited.

This case is also to that extent different from the facts which related to the judgment of the Court of Justice in the Hirsch ( 6 ) Case, to which the Bundesverwaltungsgericht refers. That case concerned the question whether and to what extent declarations of intent to be made under Community law may be cancelled on the ground of error in accordance with the rules of national law. However, an error, unlike cases of force majeure, is based on subjective failure and originates in an area in which the - person concerned is himself responsible. As there is to this extent a danger of fraudulent dealings, the Coun of Justice ruled in that judgment inter alia that an application for the grant of an import licence could not be cancelled on the ground of error.

If it must therefore be accepted that the exceptions, narrowly-defined and limited to cases of force majeure, do not in principle jeopardize the reliability of the licensing system, it is to that extent unimportant whether the period of validity of licences is extended before or after its expiry. Moreover, as the plaintiff rightly points out, it may also be deduced that such an ex post facto extension is permissible, from Article 36 (2) of Commission Regulation No 3183/83 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 is now in force; that provision provides that a request to extend the period of validity of a licence may be made up to 30 days after the expiry of the licence. If however even the request for an extension may be made after the expiry of the licence, then the subsequent decision on that request may also be adopted ex post facto, with the result that the extension then applies retroactively to the period between the expiry of the licence and the decision on the request for an extension.

(b)

Moreover, if an ex post facto extension of the period of validity of the export licence were to be rejected, the legal protection of the licence-holder concerned would be totally inadequate. In that case, as the court making the reference, the plaintiff in the initial action and the Commission all tightly stress, the claims by licence holders under Article 9 of the regulation in question for an extension of the period of validity of a licence could not in practice succeed in the face of a refusal on the part of the competent administrative authority because they, unlike claims for release of a deposit, are normally extinguished by lapse of time before it is possible for the issue to be determined by the courts. In such a case interim measures are also of little assistance as in practice they would anticipate the decision on the main issue, and furthermore the exporter would run the risk of effecting the export on a very uncertain legal basis since the final decision on legality is not taken until later.

Finally, the remedy of damages would also not always enable the persons concerned to obtain their rights, as under national law claims for damages are to some extent available against national authorities only in so far as they have acted wrongfully. However, in cases of force majeure such wrongful conduct would be difficult to prove.

In addition, against a reference of the persons concerned to the possibility of claiming damages under national law it must be remembered that damages would then be payable out of the national budget or by the official concerned, whereas the forfeiture of the security and the reduction in the amount of the export refund would benefit Community finances.

Finally, a purely declaratory judgment to the effect that the authority was bound to extend the licence at the time at which the request was made would no doubt result in the release of the wronglyforfeited deposit but would not mean that the refund fixed in advance would also be paid to the person concerned since the goods were exported under the substitute licence.

Therefore, since the grounds relating to the legal protection of the licence-holder are of such importance and an ex post facto extension will not appreciably affect the reliability of the licensing system, an extension of the licence under Article 9 (1) of Regulation No 473/67 even retroactively should be regarded as permissible.