(a)

Before this examination I must first mention a finding which is in my opinon important.

The main action does not concern just any error (for example, a Motivirrtum (mistaken intention), but a so-called Erklärungsirrtum (mistaken declaration): this is a case in which the applicant applied for something which it did not want, in which, in other words, it did not express clearly its true intention. The existence of such an error, which must be proved, and this is not easy, was found by the last court with power to decide on the facts, the Hessisches Verwaltungsgerichtshof, and this finding binds us. We must adhere to it. On the other hand a state of affairs, and I say this in view of certain statements made by the Commission, in which an applicant later discovers that his expectations were incorrect as regards the development of the rates of the levy and that an advance fixing of the levy would have been more advantageous for him, is not at present of interest. Nor for example are they cases, and here it would in fact be necessary to speak of the danger of manipulation, in which an importer would like to alter his arrangements for commercial reasons and would therefore like to repudiate an import licence and the obligation to import. In attempting to find a solution to the problem of interest in this case one must not be influenced by such considerations.

(b)

Since ultimately the lawfulness of the forfeiture of the security is at issue it must be obvious to look for the answer to the question of interest to us in this case in the relevant rules, at that time, Article 8 of Regulation No 87. It is therefore necessary to consider whether this provision, which I quoted at the beginning, also covers a case in which an error arose when an application for a licence was lodged and whether the application should for that reason be annulled.

In this respect I share the Commission's view that such an argument can hardly be justified. It is true that Article 8 (1) contains very general statements in so far as it states that as regards the question of the forfeiture of the security ‘account shall be taken of circumstances which justify the case being treated as exceptional’. In addition it is necessary to bear in mind that in accordance with Article 8 (3) Member States may allow an exception within the meaning of paragraph 1 for other reasons too. It is however clear from the fundamental structure of the provision that it is aimed only at forfeiture of the security on the basis of a valid licence but not at cases involving the annulment of the licence and the obligation to import connected with it. In particular the examples listed in Article 8 (2), which are those of force majeure, make it quite clear that situations are meant in which circumstances which subsequently occur prevent the performance of a valid obligation to import.

(c)

Subsequently it is necessary to consider furthermore whether Article 8 of Regulation No 87 which I have just discussed constitutes in the eyes of the Community legislature a definitive regulation which precludes other considerations, in particular those relating to cancellation on the ground of error, or whether it is necessary to speak of a lacuna in Community law in relation to cancellation on the ground of error, a lacuna which must if necessary be made good by reference to legal precedents in the national law, in other words to general legal principles.

As you know, the Commission and the Bundesanstalt fur landwirtschaftliche Marktordnung adopt the former point of view. In this respect they refer to the meaning and purpose of the system of licences and securities: it is intended to enable the Community institutions for the administration of the common organization of the market to forecast the development of the market situation, and in this connexion the system of securities in particular, which serves to enforce the obligation to export and import, ensures that the above-mentioned forecast is as reliable as possible. Accordingly, any exceptions must be kept within narrow limits, in other words restricted to cases of force majeure as in the regulation. Last but not least, in this connexion, another interesting fact is that Article 8 of Regulation No 87 provides for a discretionary decision with regard to the annulment of a licence. This system would however be undermined if unilateral repudiation of the obligation to import were permitted, as in the case of cancellation on the ground of error.

However this extremely restrictive viewpoint does not seem to me to be quite convincing.

In this connexion it is of interest, even if this does not constitute a decisive argument, that subsequent regulations (Regulation No 1373/70 and Regulation No 193/75, Official Journal No L 158 of 20 July 1970, p. 1 and No L 25 of 31 January 1975, p. 10) have permitted the retroactive annulment and revocation of an application for a licence, even if this is restricted to the date of lodging the application (16.00 hours under Regulation No 1373/70 and 13.00 hours under Regulation No 193/75).

Nor can I see that the meaning and purpose of the system of licences and securities, as may be deduced from the recitals of the preambles to the various relevant regulations and as has also been repeatedly made clear in the case-law of this Court, permits such a restrictive view to appear irrefutable. It is certainly incontestable that a precise forecast of the development of the market situation is involved, a forecast which is intended to enable, in the interest of the proper functioning of the common price system, timely and appropriate use of the means provided for in the Community regulations. I find it however of interest that the Commission itself has acknowledged that in this respect absolutely precise knowledge is not important; it is sufficient to be able to see the scale of the transactions. If this assumption is made, it is however impossible quite to appreciate that this concern might be affected if in specific and certainly very rare cases it is necessary to make an amendment in view of errors which have arisen, particularly if we take into consideration the fact that relatively narrow limits are drawn as regards a cancellation on the ground of error in view of the requirements of the Community system.

Nor in addition, does in seem to me compelling that it must be inferred from the judgment in Case 11/70 (Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel, judgment of 17 December 1970 [1970] ECR 1125) that the rules adopted with regard to the forfeiture of the deposit must be considered, in accordance with the opinion adopted by the Commission and the Bundesanstalt für landwirtschaftliche Marktordnung, to be definitive. As the Court will remember, that case was concerned with the question whether the system of licences and securities in the law on the common organization of the market is compatible with principles which may be deduced from common concepts of fundamental rights. In this connexion it was found that the traders concerned are sufficiently protected against forfeiture of the security by the provisions on force majeure. In this connexion that concept was flexibly defined (as defined already in Case 4/68 (Schwarzwaldmilch GmbH v Einfuhr- und Vorratsstelle für Fette, judgment of 11 July 1968 [1968] ECR 377); subsequent definitions in Case 25/70 (Einfuhr- und Vorratsstelle fur Getreide und Futtermittel v Koster, Berodt & Co., judgment of 17 December 1970 [1970] ECR 1161), Case 158/73 (E. Kampffmeyer v Einfuhr- und Vorratsstelle für Getreide und Futtermittel, judgment of 30 January 1974 [1974] ECR 101) and Case 3/74 (Einfuhr- und Vorratsstelle für Getreide und Futtermittel v Firma Wilhelm Pfützenreuter, judgment of 28 May 1974 [1974] ECR 589) correspond thereto) to the effect that the important factor is not only the absolute impossibility of carrying out a foreign trade transaction; the decisive factor is, rather, the existence of unusual circumstances which are independent of the will of the trader. Although it was emphasized in relation to this problem, in other words the question of the subsequent annulment of an obligation to import or export, that the circumstances involved must not be such that the goods are not exported either through the exporter's own fault or as a result of an error on his part or for purely commercial considerations, it is obvious that in this connexion cases such as the present one, in which a circumstance which lies with the person of the applicant may result in the retroactive lapse of the obligation to import, were not envisaged.

I therefore take the view that the scope of Article 8 of Regulation No 87 is misunderstood if it is regarded as regulating definitively all cases in which the security is forfeited — which would actually not preclude constitutional objections as to its validity which have not yet been discussed in decided cases. It is necessary, rather, to assume that it concerns only the forfeiture of a security where there is a valid licence and that there is a lacuna in Community law as regards the question whether the grant of the licence and the creation of an obligation to import may be made null and void through the annulment of the application on the ground of an error made when it was lodged.

(d)

The problem which thus arises, and in my eyes it is the central problem in the case, in other words the problem of how to fill this lacuna appropriately, certainly presents no difficulties in principle. It is necessary to refer to the rules with regard to such circumstances contained in the law of the Member States and in this respect it is not absolutely necessary for the purpose of acknowledgement as a common principle — this has already-been shown in another connexion, for example in connexion with claims for damages against the authorities on the ground of legislative injustice — that a legal concept should exist universally in the legal systems of all the Member States. On the other hand it is naturally necessary to take into consideration, and this may result in departures from the national law, the fact that the subject covered by Community law which necessitates filling a lacuna must satisfy special requirements.

The details or the examination of comparative law necessary however entail several problems, which is not surprising in the case of the subject-matter of interest in this case. It must start with the question how the phenomenon of error in civil law is usually overcome. In this connexion various possibilities of covering the problem by legal means arise: there is the power unilaterally to avoid transactions thus affected, or even judgments to the effect — and they seem to be obvious under French as well as under Netherlands law in a case such as the present, in which a declaration did not correspond to the actual intention — that annulment of the transaction on the ground of a ‘lack of consent’ (défaut de consentement) should be accepted. It also quickly becomes clear that the requirements for such legal consequences are vary in strictness; this must be viewed in connexion with the question whether in the case of the annulment of a declaration of intent it is necessary to pay damages and according to which rules. As regards moreover the application of such legal principles from civil law to the field of public law, where they are only of importance in a small part of a sector, in other words where declarations of intent by individuals play a part, it is difficult to reach reliable findings because the corresponding development is still embryonic, in other words there is no extensive practice, with the result that much in the case-law has not yet been clarified and many points are contested by learned authors.

In the present case it is true that the difficulties thus identified can be kept within limits. This is so on the one hand because we can restrict ourselves to the legal systems of the six original Member States because the important factor is the legal situation in 1963 In this connexion I should however like to observe that a survey of the Danish and Anglo-Saxon legal system does not result in completely divergent judgments, if such a general judgment does not seem presumptuous given the multiplicity of the possible solutions under English law, which must arouse a feeling of uncertainty in lawyers from Continental Europe. On the other hand, it is certain that the necessity of enforcing the special features of the subject-matter covered by Community law concerned in this case enables the matter to be simplified somewhat since some questions of detail from national law should in fact accordingly no longer be of importance.

The first important finding in the examination which must be carried out is that it is nowhere possible to state that the error is completely irrelevant. We note, as regards Italian law, that a subjective error is of importance, in the declaration or in its transmission (Article 1433 of the Codice Civile). The situation is similar under German law, where an error as to the contents of a declaration of intent and the fact that the person making the declaration did not wish to give a declaration to that effect is considered as determining (Article 119 of the Bürgerliches Gesetzbuch). In the French legal spehre, which in this connexion at least is similar to Netherlands law, cases of error are covered by the legal concept — disregarding the above-mentioned classification — of ‘vice du consentement’ (absence of assent).

The situation however with regard to the kind of error and the circumstances accompanying it is rather different. Although under German law it is irrelevant whether the error was the fault of the person making the declaration or obvious to the other party — which must be considered in connexion with the obligation to pay for the damage caused by relying on the declaration, which of course would probably be unimportant or only of minor importance in public law — in other legal systems there are restrictions according to the gravity of the error or to whether it could have been avoided. As far as Netherlands and Belgian law is concerned for example, the important factor is that the error is excusable (De Waal, Les Vices du Consentement dans le Contrat, Pays-Bas, edited by the Institut de Droit Compare de Paris, pp. 89 and 92; judgment of the Belgian Cour de Cassation of 6 January 1944, Pasicrisie 1944 I, p. 133), under French law gross errors are excluded (Mazeaud, Leçons de Droit Civil, Volume II, Part I, No 175) and under Italian law the important factor is whether an error is ‘essenziale’ (fundamental) (Article 1428 of the Codice Civile). In addition, in some cases the view of the other party to the contract is also relevant. This applies in the case of Italian law where the error must be obvious to the other party to the contract (Article 1428 of the Codice Civile); the same seems to be the case in Netherlands law according to which it is also important whether the other party had to acknowledge the decisive importance of the factor to which the error relates (De Waal loc. cit., p. 94).

So far as the application of such established principles of civil law to the field of public law is concerned, the additional important finding that such application is not in principle excluded in any legal system emerges.

So far as German law is concerned, this was stated in the order for reference itself by reference to the relevant case-law for example on social security law and on the law relating to the public service. It was however also stressed that the requirements of public law might necessitate restrictions. Thus the approach whereby the interests are balanced might have the result that the interests of the person making the declaration in the correction of an error have to give way to the interests of the general public in the maintenance of a measure. In addition learned authors (Krause, Die Willenserklarungen des Burgers im Bereich des öffentlichen Rechts (Declarations of Intent by Citizens in the Field of Public Law), Verwaltungsarchiv 1970, p. 297) make a distinction according to whether or not the error is the fault of the person making the declaration. With regard to Netherlands law a case from the law relating to the public service is of interest in this connexion, a case which involved the termination of employment on the basis of incorrect information (Ambtenarengerecht d'Amsterdam, 26 August 1949, Administratieve en Recht, Beslissingen 1949, p. 803). From Belgian law it is possible to quote a decision of the Conseil d'Etat in a case in which an important factor in relation to an administrative measure was that the person concerned had been coerced (Conseil d'Etat, 27 June 1952, Recueil 1952, p. 630). So far as Italian law is concerned there is a clear relevant bodv of doctrine (Alessi, Principi di Diritto Amministrativo 1974, Volume II, p. 551; Zanobini, Corso di Diritto Amministrativo 1958, Volume I, p. 230), and reference may for example be made to a decision of the Consiglio di Stato in a case involving the resignation of a public official in which an error as to his situation under the regulations governing the public service was relevant (Consiglio di Stato, 6 July 1956, Foro Amministrativo 1957, I, p. 42). Finally, cases from French law may be quoted in this connexion in which an important factor in relation to administrative measures requiring a consensus was that they came into existence under coercion, under the influence of a nervous breakdown, because the person concerned was not in a position to appreciate the scope of the decision which had been taken or where an error as to the subject-matter of the measure could be ascertained (Conseil d'Etat, 15 January 1931, Recueil Lebon 1931, p. 49; Conseil d'Etat, 10 November 1961, Recueil Lebon 1971, p. 667; Conseil d'Etat, 22 May 1968, Recueil Lebon 1968, p. 991; Conseil d'Etat, 6 June 1958, Recueil Lebon 1958, p. 323).

If in addition the examination is also extended to the question of the legal consequences of an error — the invalidity of a measure by virtue of a unilateral declaration made by the person concerned or the annulment of the administrative measure in question on the ground of cancellation in time by the court — it becomes clear that the latter is necessary in Italy and in France if the administrative authority does not revoke the measure (Consiglio di Stato, 12 July 1958, Foro Amministrativo 1958, I, 2, p. 610; Conseil d'Etat, 3 November 1922, Recueil Lebon 1922, p. 790). So far as German law is concerned this does not seem to be settled yet; there are however opinions in legal writings which also consider that annulment of the measure in question by the court after cancellation in time is necessary (Krause, loc. cit.).

Finally, if we consider what conclusion seems appropriate in the present case — it is of course unnecessary to develop in full detail a comprehensive theory as to the meaning of error in Community law — it will hardly be possible to preclude an error from being pleaded in connexion with an application for an import licence; it will, rather, be necessary to accept this possibility as the product of a general legal principle.

On the other hand, as I have already indicated, it is impossible to refer to the above-mentioned purpose of the system of licences and securities. Its limited value is in fact already shown by the fact that the forecast of market development on the basis of goods which have already been imported and in respect of which day licences may be applied for at short notice must continually be amended, by the fact that it was possible to act on the licences from 95 % to 105 %, and by the fact that cases of force majeure also necessitate continuous amendments. A system which is beset with shortcomings of that kind certainly does not make it necessary to preclude, in reliance upon the general interest in the uninterrupted functioning of that system, any correction by way of cancellation on the ground of error.

On the other hand, those requirements should not be completely ignored, in other words care should be taken to keep the disturbances to the system which might arise from cancellation on the ground of error within as narrow limits as possible. It follows, in my opinion, that the right of annulment must be strictly limited in time. It includes the duty of the licensee immediately to check licences which have been issued and to put forward objections directly thereafter so that any amendments may be made within a very short time. This corresponds to the principle laid down in the judgment in Case 3/74 that claims based on force majeure must be put forward without delay. For reasons of legal certainty there should also be no departure from this principle where the error is manifest since in such situations the administration has of course an interest in knowing quickly whether in fact conclusions are drawn from this. In the same way I consider it inappropriate to make a distinction according to whether a fresh application for advance fixing of the levy is lodged at the same time as the cancellation since, on the one hand, there are no indications in national law in favour of such combinations and, on the other, under the system of the common organization of the market it is important to know not only the volume of the imports expected but also the burdens attached thereto. If however this opinion is considered to be correct other viewpoints put forward in Community law also quoted above lose all importance. In this respect I refer in particular to the question whether only excusable errors can be relevant or whether gross errors must be left out of consideration.

Accordingly it is only necessary further to deal with one point — which was also touched upon in the examination of comparative law, in other words the method of pleading the error — by means of a simple declaration to the authorities or by annulment by the court of the licence granted. In this respect it has become clear that a number of legal systems provide for the latter course which might suggest that a corresponding principle should also be adopted as the basis with regard to Community law. In addition, the fact that — at any rate if the administration does not acknowledge the existence of an error — the matter would thereby be settled immediately and not first in connexion with the forfeiture of the security, which is sometimes only declared months later, tells in favour of this. On the other hand it is impossible to deny that exaggerated hopes should not be ateched to the above-mentioned requirement since even where proceedings for annulment are commenced immediately the situation can hardly be settled definitively by a date which enables the forecast of the development of the market to be amended in time. In addition it is also necessary to accept that the question how a measure may be annulled which should be invalid under Community law may also be readily included in the sphere of forms and procedures within the meaning of the judgment in Case 39/70. For that reason I am inclined to consider that an answer to this question is not necessary from the point of view of Community law. It may satisfactorily be left to the national law in reliance upon the above-mentioned case-law and without any danger to the system laid down under Community law.

(a)

The question whether an application for the grant of an import licence under the first sentence of Article 16 (1) of Regulation No 19/62/EEC can be cancelled and what the effects of such cancellation are must in principle be decided according to Community law.

(b)

Community law does not preclude the cancellation of such an application on the ground of an error in the declaration made by the applicant. In view of the system of the rules relating to the licences and securities, the functioning of which should be affected as little as possible, it is however necessary for the applicant to check the contents of the licence immediately after receiving it and to declare its cancellation immediately thereafter. In view of this restriction which is necessary under the system of those rules it is unimportant whether or not the error is the fault of the applicant.

(c)

The question whether, where there is an error in the declaration made by the applicant, a simple declaration of cancellation to the competent authorities is sufficient or whether it is necessary for the court to annul the licence which has been granted must be decided according to national law.

(d)

The valid cancellation of an application for a licence, if necessary by the court, entails the annulment of the import licence and with it the obligation to import, for the guarantee of which a security had to be lodged. The security cannot accordingly be forfeited.