CELEX: 61973CJ0158
E. Kampffmeyer v Einfuhr
und Vorratsstelle für Getreide und Futtermittel

1 BY ORDER DATED 27 JUNE 1973, REGISTERED AT THE COURT ON 7 AUGUST 1973, THE VERWALTUNGSGERICHT OF FRANKFURT-ON-MAIN REFERRED SEVERAL QUESTIONS PURSUANT TO ARTICLE 177 OF THE EEC TREATY ON THE INTERPRETATION OF REGULATION NO 1373 OF THE COMMISSION, DATED 10 JULY 1970, ON COMMON DETAILED RULES FOR THE APPLICATION OF THE SYSTEM OF IMPORT AND EXPORT LICENCES AND ADVANCE FIXING CERTIFICATES FOR AGRICULTURAL PRODUCTS SUBJECT TO A SINGLE PRICE SYSTEM ( OJ L 158, OF 20 JULY 1970, PAGE 1 ).
THE MAIN ACTION IS AN APPEAL AGAINST A DECLARATION OF FORFEITURE OF DEPOSIT IN AN AMOUNT CORRESPONDING TO THE QUANTITY OF BRAN NOT IMPORTED BY THE PLAINTIFFS, MADE ON THE GROUND THAT THE LOSS OF AN IMPORT LICENCE FOLLOWING DISPATCH BY NON-REGISTERED LETTER DOES NOT CONSTITUTE A CASE OF FORCE MAJEURE, THE RISK OF SUCH LOSS FALLING UPON THE HOLDER OF THE LICENCE .
2 REGULATION NO 120/67 OF THE COUNCIL, DATED 13 JUNE 1967 ( OJ NO 117 OF 19 JUNE 1967, P . 2269 ), WHICH IS THE BASIC REGULATION ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS, STATES IN THE 13TH RECITAL OF ITS PREAMBLE THAT 'THE COMPETENT AUTHORITIES MUST BE IN A POSITION CONSTANTLY TO FOLLOW TRADE MOVEMENTS IN ORDER TO ASSESS MARKET TRENDS AND TO APPLY THE MEASURES LAID DOWN IN THIS REGULATION AS NECESSARY '.
ARTICLE 12 OF THE SAME REGULATION PROVIDES THAT 'IMPORTS INTO THE COMMUNITY OR EXPORTS THEREFROM ... SHALL BE SUBJECT TO THE SUBMISSION OF AN IMPORT OR EXPORT LICENCE ... THE ISSUE OF SUCH LICENCES SHALL BE CONDITIONAL ON THE LODGING OF A DEPOSIT GUARANTEEING THAT IMPORTATION OR EXPORTATION IS EFFECTED DURING THE PERIOD OF VALIDITY OF THE LICENCE; THE DEPOSIT SHALL BE FORFEITED IN WHOLE OR IN PART IF THE TRANSACTION IS NOT EFFECTED, OR IS ONLY PARTIALLY EFFECTED, WITHIN THAT PERIOD '.
WITH REGARD TO THE FIRST QUESTION
3 THE FIRST QUESTION POSED IS WHETHER ARTICLE 2 ( 1 ), FIRST SENTENCE, IN CONJUNCTION WITH ARTICLE 15 ( 4 ) OF REGULATION NO 1373/70/EEC OF THE COMMISSION MUST BE INTERPRETED AS MEANING THAT WHEN AN IMPORT LICENCE IS LOST, NOT ONLY DOES THE RIGHT TO IMPORT LAPSE BUT ALSO THE OBLIGATION TO DO SO, WITH THE RESULT THAT THE SECURITY MUST BE RELEASED, OR AS MEANING THAT WHEN THE IMPORT LICENCE IS LOST THE RIGHT LAPSES BUT THE OBLIGATION REMAINS, WITH THE RESULT THAT THE SECURITY IS FORFEIT .
4 ARTICLE 2 ( 1 ) OF IMPLEMENTING REGULATION NO 1373/70 PROVIDES THAT 'AN IMPORT LICENCE SHALL AUTHORIZE AND REQUIRE THE IMPORTATION ..., UNDER THAT LICENCE, OF THE NET QUANTITY OF THE SPECIFIED PRODUCT DURING THE PERIOD OF VALIDITY OF THE LICENCE ...'
ARTICLE 15 ( 2 ) STATES THAT 'RELEASE OF THE SECURITY SHALL BE SUBJECT TO PRODUCTION OF PROOF ..., AS REGARDS IMPORTS, OF COMPLETION OF THE CUSTOMS FORMALITIES '.
PARAGRAPH 4 OF THE SAME ARTICLE PROVIDES THAT 'WHERE A LICENCE OR EXTRACT FROM A LICENCE IS LOST, ISSUING AGENCIES MAY, EXCEPTIONALLY, SUPPLY THE PARTY CONCERNED WITH A DUPLICATE THEREOF ... ( WHICH ) MAY NOT BE SUBMITTED FOR PURPOSES OF EFFECTING IMPORT TRANSACTIONS ...'
ACCORDING TO THE TERMS OF ARTICLE 16 ( 2 ) 'WHERE THE OBLIGATION TO IMPORT OR EXPORT HAS NOT BEEN FULFILLED THE SECURITY SHALL BE FORFEIT '.
ARTICLE 18 ( 1 ), HOWEVER, PROVIDES THAT 'WHERE, AS A RESULT OF FORCE MAJEURE, IMPORT OR EXPORT CANNOT BE EFFECTED DURING THE PERIOD OF VALIDITY OF THE LICENCE OR CERTIFICATE, THE MEMBER STATE ISSUING THE LICENCE OR CERTIFICATE SHALL DECIDE, AT THE REQUEST OF THE TITULAR HOLDER, EITHER THAT THE OBLIGATION TO IMPORT OR EXPORT IS CANCELLED, THE SECURITY BEING RELEASED, OR THAT THE PERIOD OF VALIDITY OF THE LICENCE OR CERTIFICATE IS EXTENDED FOR SUCH PERIOD AS MAY BE CONSIDERED TO BE NECESSARY IN VIEW OF THE CIRCUMSTANCES INVOKED ...'
5 IT IS APPARENT FROM THESE PROVISIONS THAT THE SYSTEM OF LODGING DEPOSITS IS INTENDED TO ENSURE COMPLETION OF THE IMPORTS AND EXPORTS FOR WHICH LICENCES OR CERTIFICATES ARE REQUESTED, SO THAT BOTH THE COMMUNITY AND THE MEMBER STATES MAY BE CERTAIN OF KNOWING EXACTLY WHAT TRANSACTIONS ARE INTENDED .
IN VIEW OF THE OBLIGATION IMPOSED ON MEMBER STATES BY ARTICLE 12 OF THE BASIC REGULATION NO 120/67 TO ISSUE IMPORT AND EXPORT LICENCES TO ANY APPLICANT, ANY FORECAST WOULD BE MEANINGLESS IF THE LICENCES DID NOT IMPOSE ON RECIPIENTS AN OBLIGATION TO ACT IN ACCORDANCE THEREWITH .
THE SYSTEM ESTABLISHED PURSUANT TO THE PRINCIPLES CONTAINED IN THE BASIC REGULATION NO 120/67 BY THE IMPLEMENTING REGULATION NO 1373/70 RELEASES TRADERS FROM THEIR UNDERTAKING ONLY IN CASES WHERE THE IMPORT OR EXPORT TRANSACTION CANNOT BE CARRIED OUT DURING THE PERIOD OF VALIDITY OF THE LICENCE AS A RESULT OF A CASE OF FORCE MAJEURE .
6 THE ANSWER TO THE FIRST QUESTION THEREFORE SHOULD BE THAT ARTICLES 2 ( 1 ) AND 15 ( 4 ) OF REGULATION ( EEC ) NO 1373/70 OF THE COMMISSION MUST NOT BE INTERPRETED AS MEANING THAT LOSS OF AN IMPORT LICENCE AUTOMATICALLY ENTAILS THE LAPSE OF THE OBLIGATION TO IMPORT CREATED BY ITS ISSUE .
WITH REGARD TO THE FIRST PART OF THE SECOND QUESTION
7 THE FIRST PART OF THE SECOND QUESTION ASKS WHETHER THE LOSS OF THE LICENCE CONSTITUTES A CASE OF FORCE MAJEURE WITHIN THE MEANING OF ARTICLE 18 OF REGULATION NO 1373/70 OF THE COMMISSION .
8 SINCE THE CONCEPT OF FORCE MAJEURE DIFFERS IN CONTENT IN DIFFERENT AREAS OF THE LAW AND IN ITS VARIOUS SPHERES OF APPLICATION, THE PRECISE MEANING OF THIS CONCEPT HAS TO BE DECIDED BY REFERENCE TO THE LEGAL CONTEXT IN WHICH IT IS INTENDED TO OPERATE .
ANY INTERPRETATION OF THE CONCEPT OF FORCE MAJEURE EMPLOYED IN THE REGULATION IN ISSUE MUST THEREFORE TAKE ACCOUNT OF THE SPECIAL NATURE OF THE RELATIONSHIPS AT PUBLIC LAW EXISTING BETWEEN THE IMPORTERS AND THE NATIONAL ADMINISTRATION, AS WELL AS OF THE OBJECTIVES OF THAT REGULATION .
IT IS APPARENT FROM THESE OBJECTIVES, AS WELL AS FROM THE ACTUAL PROVISIONS OF THE REGULATIONS IN QUESTION, THAT THE CONCEPT OF FORCE MAJEURE IS NOT LIMITED TO CASES OF ABSOLUTE IMPOSSIBILITY .
9 THE PUBLIC INTEREST, WHICH REQUIRES AS ACCURATE A FORECASE AS POSSIBLE OF IMPORT TRENDS IN EACH MEMBER STATE AND JUSTIFIES THE DEPOSIT OF SECURITY AGAINST THE GRANT OF AUTHORIZATION TO IMPORT, MUST BE RECONCILED TO THE NECESSITY OF NOT HAMPERING TRADE BETWEEN STATES BY TOO RIGID OBLIGATIONS, A NECESSITY WHICH ALSO DERIVES FROM THE PUBLIC INTEREST .
THE THREAT OF FORFEITURE OF SECURITY IS INTENDED TO ENCOURAGE THE FULFILLMENT OF THE OBLIGATION TO IMPORT BY IMPORTERS ENJOYING THE AUTHORIZATION AND THUS TO ENSURE THE ACCURATE FORECASTING OF IMPORT TRENDS REQUIRED BY THE GENERAL INTEREST MENTIONED ABOVE .
IT FOLLOWS THAT, IN PRINCIPLE, AN IMPORTER WHO HAS EXERCISED ALL REASONABLE CARE IS RELEASED FROM THE OBLIGATION TO IMPORT WHEN EXTERNAL CIRCUMSTANCES RENDER IT IMPOSSIBLE FOR HIM TO COMPLETE THE IMPORTATION WITHIN THE PERIOD OF VALIDITY .
10 THE ANSWER TO THE FIRST PART OF THE SECOND QUESTION SHOULD THEREFORE BE THAT THE LOSS OF SUCH AN IMPORT LICENCE CONSTITUTES A CASE OF FORCE MAJEURE WITHIN THE MEANING OF ARTICLE 18 OF REGULATION NO 1373/70 WHEN SUCH LOSS OCCURS DESPITE THE FACT THAT THE TITULAR HOLDER OF THE LICENCE HAS TAKEN ALL THE PRECAUTIONS WHICH COULD REASONABLY BE EXPECTED OF A PRUDENT AND DILIGENT TRADER .
WITH REGARD TO THE SECOND PART OF THE SECOND QUESTION
11 THE QUESTION IS THEN ASKED WHETHER A REASONABLY DILIGENT TRADER FULFILLS HIS DUTY OF CARE WITHIN THE CONTEXT OF HIS ACTIVITY WITHIN THE COMMUNITY IF HE SENDS A LICENCE BY ORDINARY POST .
12 THIS QUESTION SEEKS TO HAVE ESTABLISHED THE STANDARD OF CARE THAT CAN REASONABLY BE EXPECTED OF A PRUDENT AND DILIGENT TRADER .
IN THE ABSENCE OF ANY EXPRESS PROVISION OF COMMUNITY LAW, IT IS FOR THE NATIONAL COURT TO SAY WHETHER SUCH A TRADER HAS OR HAS NOT EXERCISED ALL REASONABLE CARE, BEARING IN MIND THE CIRCUMSTANCES OF THE CASE .
THIS IS NOT A QUESTION OF INTERPRETATION BUT ONE OF APPLICATION, RESERVED FOR THE NATIONAL COURT .
13 THE ANSWER SHOULD THEREFORE BE THAT IT IS FOR THE COMPETENT NATIONAL COURT TO DECIDE, AFTER WEIGHING ALL THE FACTUAL CIRCUMSTANCES IN WHICH THE TRADER WAS PLACED, WHETHER THE TITULAR HOLDER OF A LICENCE HAS ACTED AS A PRUDENT AND DILIGENT TRADER .
WITH REGARD TO THE THIRD PART OF THE SECOND QUESTION
14 FINALLY, THE QUESTION IS ASKED WHETHER A REQUEST MADE PURSUANT TO ARTICLE 18 ( 1 ) OF REGULATION NO 1373/70 MAY BE SUBMITTED AFTER THE PERIOD OF VALIDITY OF THE LICENCE HAS EXPIRED .
15 THE PROVISIONS OF ARTICLE 18 ( 1 ) CONCERN REQUESTS FOR EXTENSION OF THE PERIOD OF VALIDITY OF THE LICENCE AS WELL AS REQUESTS FOR CANCELLATION OF THE OBLIGATION TO IMPORT OR EXPORT AND FOR RELEASE OF THE SECURITY .
THE SAID PARAGRAPH EXPRESSLY PROVIDES THAT SUCH EXTENSION MAY BE GRANTED AFTER THE EXPIRY OF THE PERIOD OF VALIDITY OF THE LICENCE, BUT REMAINS SILENT WITH REGARD TO REQUESTS FOR CANCELLATION AND RELEASE OF SECURITY .
SINCE THE LOSS OF A LICENCE MAY OCCUR AT A DATE CLOSE TO THE EXPIRY OF THE PERIOD OF VALIDITY OF THE LICENCE, THE IMPORTER MIGHT BE PREVENTED FROM SUBMITTING HIS REQUEST BEFORE THE EXPIRY OF THAT PERIOD .
FURTHER, THE IMPORTER MAY NOT EVEN HAVE NOTICE OF THE OCCURRENCE UNTIL AFTER THAT DATE .
16 THUS, IN THE ABSENCE OF ANY PROVISION IN THE REGULATION, SUCH A REQUEST MAY BE SUBMITTED AFTER THE PERIOD OF VALIDITY OF THE LICENCE HAS EXPIRED .
THE ANSWER TO THE THIRD PART OF THE SECOND QUESTION SHOULD THEREFORE BE IN THE AFFIRMATIVE .
Decision on costs
17 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, THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .
Operative part
THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE VERWALTUNGSGERICHT OF FRANKFURT-ON-MAIN BY ORDER OF THAT COURT DATED 27 JUNE 1973, HEREBY RULES :
1 . ARTICLES 2 ( 1 ) AND 15 ( 4 ) OF REGULATION ( EEC ) NO 1373/70 OF THE COMMISSION MUST NOT BE INTERPRETED AS MEANING THAT THE LOSS OF AN IMPORT LICENCE AUTOMATICALLY ENTAILS THE LAPSE OF THE OBLIGATION TO IMPORT CREATED BY ITS ISSUE .
2 . THE LOSS OF AN IMPORT LICENCE CONSTITUTES A CASE OF FORCE MAJEURE WITHIN THE MEANING OF ARTICLE 18 OF REGULATION NO 1373/70 WHEN SUCH LOSS OCCURS DESPITE THE FACT THAT THE TITULAR HOLDER OF THE LICENCE HAS TAKEN ALL THE PRECAUTIONS WHICH COULD REASONABLY BE EXPECTED OF A PRUDENT AND DILIGENT TRADER .
3 . IT IS FOR THE COMPETENT NATIONAL COURT TO DECIDE, AFTER WEIGHING ALL THE FACTUAL CIRCUMSTANCES IN WHICH THE TRADER WAS PLACED, WHETHER THE TITULAR HOLDER OF A LICENCE HAS ACTED AS A PRUDENT AND DILIGENT TRADER .
4 . A REQUEST MADE PURSUANT TO ARTICLE 18 ( 1 ) OF REGULATION NO 1373/70 MAY BE SUBMITTED AFTER THE PERIOD OF VALIDITY OF THE LICENCE HAS EXPIRED .