61992C0124
OPINION OF ADVOCATE GENERAL
GULMANN
delivered on 10 June 1993 (
*1
)
Mr President,
Members of the Court,
1.
The High Court of Justice, Queen's Bench Division (Commercial Court), has referred to the Court for a preliminary ruling two questions on the interpretation of the concept oí force majeure, relevant to its decision in a case brought by An Bord Bainne Cooperative Ltd (‘An Bord Bainne’) and Compagnie Inter-Agra SA (‘Inter-Agra’) against the Intervention Board for Agricultural Produce (‘the Intervention Board’).
2.
It is apparent from the information before the Court in this case that:
—
the French company Inter-Agra had in September 1985 contracted with the Soviet trading organization Prodintorg to supply a large quantity of butteroil of a specified quality (first or superior grade, as defined in the applicable Soviet rules);
—
Inter-Agra subsequently contracted with the Irish cooperative organization An Bord Bainne for the purchase of butter to be processed by Inter-Agra into butteroil for the purpose of fulfilling its contract with Prodintorg;
—
on 8 April 1986 An Bord Bainne, pursuant to the standing tendering procedure under Regulation No 765/86, (
1
) submitted a tender to the United Kingdom Intervention Board for the purchase of 11000 tonnes of salted butter;
—
Regulation No 765/86 expressly made the sale of intervention butter conditional on its being exported to the Soviet Union, Mongolia, India or Pakistan;
—
in accordance with Article 5(3)(b) of that regulation, An Bord Bainne's tender was accompanied by a written undertaking that the butter would be exported to the Soviet Union after being processed into butteroil;
—
pursuant to Article 6(1) of the regulation, An Bord Bainne lodged a tendering security of 25 ECU per tonne, totalling some UK £170000; (
2
)
—
on 14 April 1986 the Intervention Board informed An Bord Bainne that it had been awarded the 11000 tonnes of salted butter;
—
on 5 May 1986 and without giving advance notice, the Soviet authorities, with immediate effect and without regard to contracts already entered into, changed the quality requirements in force since 1955, with the result that only superior grade butteroil could thenceforth be imported;
—
despite its best efforts, Inter-Agra was unable to process the salted butter into superior grade butteroil and therefore could not supply the butteroil to Prodintorg as agreed;
—
on 26 November 1986 An Bord Bainne informed the Intervention Board that it was unable to remove the 11000 tonnes of salted butter in view of the fact that, by reason of force majeure, it could not be processed into butteroil for export to the Soviet Union, and at the same time An Bord Bainne requested release of the tendering security which it had lodged;
—
after referring the matter to the Commission, the Intervention Board refused to release the security on the ground that there was no force majeure;
—
An Bord Bainne and Inter-Agra brought proceedings before the High Court against the Intervention Board for a ruling that the security lodged should be released;
—
in reply, the Intervention Board argues primarily that the case is not one of force majeure and, in the alternative, that the security is in any case forfeit on the ground that the relevant provision in the regulation does not contain an express proviso for force majeure.
3.
The High Court has referred the following questions for a preliminary ruling:
‘1.
Is there force majeure within the meaning of Community law and for the purposes of Commission Regulation (EEC) No 765/86 when:
(a)
a tender by a Community undertaking for the purchase of butter pursuant to Regulation (EEC) No 765/86 was accompanied by a written undertaking in accordance with the said regulation that the butter would be converted into butteroil and exported from the Community to a specified third country;
(b)
the tender was accepted by the national intervention agency;
(c)
the competent authorities of the third country, pursuant to the relevant legislation of that country, then changed the quality requirements for imported butteroil in such a way as to render it impossible (despite the best efforts of the intending exporter) for acceptable butteroil to be produced from the butter which was the subject of the tender so as to enable export to be made to that country in accordance with the written undertaking;
(d)
the change in the quality requirements was not published or communicated to the tenderer or intending exporter in advance, and was totally unexpected by them?
2.
If the answer to question 1 is yes, does force majeure in the circumstances of this case operate to prevent the forfeiture of securities provided pursuant to Commission Regulation (EEC) No 765/86, and in particular a tendering security provided pursuant to Article 6(1) thereof?’
4.
It is appropriate to answer those two questions together and I shall first of all examine:
Whether Regulation No 765/86 can be interpreted as meaning that force majeure can be relied on in order to avoid forfeiture of the tendering security
5.
In order to answer that question it is necessary to consider the provisions in the regulation which deal with the lodging of the security.
Article 6(1) provides for the lodging of a security to ensure fulfilment of, inter alia, the following principal requirements: ‘the maintenance of the tender after the expiry of the deadline for the submission of tenders, ... the removal of the butter and the payment of the price within the time-limit referred to in the first subparagraph of Article 10(2)’. Article 6(1) also states that ‘where the above requirements are not met, the entire tendering security shall be forfeit.’
Article 7(2) provides that the security is to be lodged in order to ‘guarantee the fulfilment of the principal requirements concerning export of the butter ... within the period laid down in Article 15, and its arrival in the country of destination shown in the tender’. The article also states that the security lodged is to be forfeit if these requirements are not satisfied.
6.
Neither of the two provisions contains an express proviso for force majeure. Such a proviso, however, is to be found in Article 10(1) and (2) and Article 16(1).
Article 10(1) requires the successful tenderer to remove the butter sold to him before 1 December 1986 and provides that ‘except in cases of force majeure, where the butter is not removed within the period referred to ..., storage shall be at the expense of the successful tenderer ...’.
Article 10(2) requires the successful tenderer to pay the intervention agency within three months, calculated from the date of removal of the butter. Payment results in the release of the tendering security referred to in Article 6(1). In the event that payment is not made on time, the third subparagraph of Article 10(2) provides that ‘except in cases of force majeure, where the successful tenderer has failed to make the payment ... within the prescribed period, in addition to the loss of the security referred to in Article 6(1), the sale shall be cancelled for the remaining quantities.’
Article 16(1) provides that the security which must be lodged under Article 7(2) as a guarantee that the goods in question will actually be exported is to be forfeit unless force majeure can be proved.
7.
Thus, while there is a general force majeure proviso under Article 16 in so far as forfeiture of the security under Article 7(2) is concerned, the force majeure provisos in Article 10(1) and (2) must, as the Commission has pointed out, be understood as not covering all situations in which the requirements under Article 6 have not been satisfied.
8.
The Commission argues that the position in the present case, in which removal of the butter was not simply delayed but the purchaser altogether refused to accept the butter, most closely corresponds to the position dealt with in Article 10(2). However, the Commission takes the view that this case is not directly covered by Article 10(2) and for that reason considers it necessary to address the issue whether the absence of an express force majeure proviso precludes An Bord Bainne and Inter-Agra from relying on such a proviso. The Commission concludes that it is both possible and proper to recognize an implied force majeure proviso in the circumstances of the present case.
9.
That is a result with which I would con cur. But consideration might perhaps also be given to whether it is possible to interpret Article 10(2) in such a way as to cover directly the situation in this case.
10.
Article 10(2) deals with failure to pay within the prescribed period. It would seem logical for failure to pay to embrace both cases where either payment is late or it is completely absent. The provision mentions two legal consequences of failure to pay: first, loss of the security, and second, cancellation of the sale. In the Danish version of the provision, which places the two legal consequences on an equal footing, the most obvious interpretation is to read the provision as meaning that the express force majeure proviso covers both of those legal consequences. The outcome is not so clearcut in the English, French or German versions, which may be construed as meaning that the reference to the forfeiture of the security is included merely for the sake of completeness, that is to say, to remind the reader of the legal consequences which already follow from Article 6. If that construction is correct, it is possible that the force majeure proviso affects only the legal consequences arising from the cancellation of the sale. (
3
) In view of the Commission's correct contention that in all the circumstances it is consistent with the scheme and purpose of the regulation to recognize a force majeure proviso in this case, it seems most natural to choose the interpretation of Article 10(2) that makes it possible to rely directly on force majeure on the basis of that provision in cases where the security is forfeited by reason of failure to pay.
11.
Even if the Court were not to share this interpretation and even though it has never recognized the force majeure proviso as constituting a general legal principle in Community law, (
4
) it is in my view appropriate to agree with the Commission — and also with the others which have submitted observations in this case — that force majeure can at any rate be relied on as an implied condition even in the present case.
There is in my opinion no reason why the Court should adopt a restrictive approach with regard to the recognition of a force majeure proviso in areas where none is expressly provided for. There may be grounds for recognizing such a proviso where it can be ascertained that it is not contrary to the purpose of the rules in question. The present case involves rules whose purpose is to reduce surplus stocks of butter by selling it at reduced prices, which restrict the purchaser's opportunities for disposal to certain countries, and which were laid down by the Community in order to comply with international obligations.
The Commission rightly points out that acceptance of force majeure is in accordance with the legislative intention and is also reinforced by the scheme of the regulation and by general considerations of equity. I would refer on this point to the Commission's arguments as set out in the Report for the Hearing, with which I am in full agreement.
12.
The Court ought therefore to rule that undertakings which, contrary to their obligation under Article 6(1), fail to remove the butter which they have purchased may rely on force majeure for the purpose of avoiding forfeiture of the security lodged.
Introductory remarks on the interpretation of the concept of force majeure in a case such as this
13.
There can be no doubt (and this is a point on which those who have submitted observations agree) that the concept of f orce majeure applicable in this case is not limited to absolute impossibility but contains a requirement that the nonperformance of the act in question must be due to altogether abnormal and unforeseeable circumstances beyond the control of the person invoking force majeure whose consequences could not have been avoided in spite of the exercise of all due care. (
5
)
14.
It is not disputed that the event which An Bord Bainne and Inter-Agra claim constitutes force majeure is the change in the Soviet Union's quality requirements, which rendered impossible the export of butteroil to Prodintorg as agreed. The United Kingdom has formulated the issue in this case in terms of the question whether a change in a State's legislation intervening between the making of a contract and its performance, which amounts in effect to an import ban and renders the contract incapable of performance, constitutes force majeure.
15.
On the basis of the questions referred, it may be assumed that:
—
the change in the quality requirements laid down by public authorities was an event over which An Bord Bainne and Inter-Agra had no control;
—
the change was totally unexpected by An Bord Bainne and Inter-Agra;
—
the export of butteroil as agreed was rendered impossible; and
—
following the change, Inter-Agra did all within its power, despite the amended quality requirements, to carry out the export transaction.
16.
An Bord Bainne and Inter-Agra take the view that the remaining conditions for reliance on force majeure have also been satisfied. The Italian Government takes the same view. The Commission, in contrast, argues that those conditions have not been satisfied. The United Kingdom agrees at least to a certain extent with the Commission on this point.
Do changes in quality requirements laid down under public law constitute an altogether ‘abnormal and unforeseeable’ event?
17.
Surprisingly, the Court has not hitherto had an opportunity to address the question whether changes to rules introduced by national legislatures or other national authorities can constitute force majeure.
It is to my mind beyond doubt that the possibility cannot in general be excluded that changes to rules which preclude the performance of Community law obligations may constitute force majeure. According to the information before the Court, it is accepted in the national law of all the Member States that — as the Commission also stated in its oral observations — the actions of authorities may, at least in certain instances, constitute force majeure.
This view is also reinforced by the fact that, in a number of earlier regulations which specified the events which might constitute force majeure, the Community legislature expressly referred to import bans imposed by public authorities. (
6
)
18.
The view of the Commission, however, is that a change in the requirements governing the quality of products laid down by national authorities must be regarded as an event which is so normal that traders, when they enter into a contract, must proceed on the basis that such an event may occur and must arrange the content of the contract accordingly. According to the Commission, such changes are normal commercial risks.
19.
The question whether the Commission's view on this matter should be accepted is one of fundamental importance.
It is a truism that the quality requirements for goods are subject to change in every society. It is also presumably the case that such changes take place with ever increasing frequency. There is a steadily increasing appreciation of the need to protect the health and safety of consumers and our existing knowledge of the health and safety risks associated with goods is being constantly extended.
It is therefore not unreasonable to argue that such changes cannot be treated as ‘abnormal’, as that term has been defined by the Court, that is to say, with respect to an event which must be regarded as unforeseeable or at least as so unusual that a prudent trader exercising all due care would have considered the risk to be minimal. (
7
)
There would accordingly appear to be some basis for the Court to rule that changes in national quality requirements can never constitute force majeure.
20.
After some consideration of the matter, however, that result seems to me to be incorrect.
21.
As I have already pointed out, it may be assumed that changes in rules laid down under public law may in principle be capable of being relied on as force majeure and I doubt whether there is sufficient justification for derogation from that assumption in so far as public law requirements governing the quality of goods are concerned. One ought not to discount in advance the possibility that situations may arise in which it would be unreasonable to make traders bear the risk that changes may occur in the quality requirements of the country of importation. In that connection, it must none the less be borne in mind that traders will often, if not as a matter of course, receive appropriate notice, or at least that transitional rules will be introduced which take account of traders' legitimate expectations. In addition, there may undoubtedly be areas in which the risk of such changes must be regarded as so small that traders should not be obliged to take it into account as a generally applicable risk.
22.
It might also be appropriate in this connection to mention that the Court has accepted that strikes called without the prior notice required by law, (
8
) power failures and bad weather (
9
) may constitute force majeure, even though it may also correctly be argued in such cases that events of this kind, strictly speaking, are in general not abnormal occurrences. In any case, I find it difficult to see why changes in quality requirements for goods should never be abnormal events, whereas strikes, power failures and bad weather may be so qualified, and why it should be more reasonable to require traders always and in general to bear the risk of changes in quality requirements imposed under public law while this is not the case with regard to strikes and so forth.
23.
The only cases in which the Court, so far as I have been able to ascertain, has generally ruled that a trader cannot rely on force majeure are those in which it is the conduct of the other contracting party which had prevented the trader from complying with the requirements imposed by Community law (on this point, sec the Court's judgment in the Theodorakis case). (
10
) But the Court, rightly in my opinion, attached importance to the fact that traders enjoy complete freedom in the choice of their trading partners.
24.
Against this background, the Court ought not to exclude in general the possibility that changes in quality requirements resulting in import bans may be relied on as constituting force majeure. The Court should (as it normally docs) confine itself to emphasizing that force majeure may be invoked only if it can be assumed that the change in quality requirements in the case at issue was so abnormal that a prudent trader would have been entitled to take the view that the risk of such a change was insignificant.
25.
If the Court should not agree that changes in quality requirements can never constitute force majeure, the Commission argues that, in any event, reliance on force majeure must be excluded in the case of exports to the former Soviet Union. In this connection, the Commission contends that: ‘a trader dealing with a State such as the former Soviet Union, with its extreme central and often arbitrary regulation of all aspects of society, including trade, must expect such changes and even that they will occur without any prior notice or the provision of transitional measures or of a period of notice before the application of the new rules’.
26.
It would be wrong for the Court to accept the Commission's view and thus decide that changes in quality requirements in States with a particular type of social system can in general never be relied on as constituting force majeure.
27.
In principle I consider that, in cases involving the interpretation of the concept of force majeure in Community law, the Court must confine itself to laying down more general guidelines for the interpretation of that concept and leave it to national courts to resolve on that basis the specific disputes in cases which they have referred.
28.
I therefore consider that the Commission's view that precisely with regard to the former Soviet Union undertakings ought to have reckoned with sudden changes in rules should not lead to the Court's deciding generally that the concept of force majeure can never be relied on in cases such as the present. Admittedly, it is not entirely impossible that the Commission's view may be correct. However, the Commission has made no attempt whatever to substantiate this view and there is, furthermore, nothing in this case to support the Commission's opinion on this issue. On the contrary, we were informed that the quality requirements in question had remained in force unchanged for more than 30 years. I, for my part, am not prepared on the basis of what is before us to propose to the national court that it proceed on the assumption that undertakings ought in general to have foreseen changes in the relevant rules in the Soviet Union and that consequently such changes can never constitute force majeure.
29.
The Court ought therefore in my opinion to rule that a change in quality requirements laid down under public law can be relied on as constituting force majeure, provided that a prudent and cautious trader would not, in the circumstances, have considered the possibility that a legislative amendment might change the quality requirements, and provided that the trader in question could not have avoided the consequences of that change despite the exercise of all due care.
Had An Bord Bainne and Inter-Agra in fact foreseen the change in the rules?
30.
Both the Commission and the United Kingdom argue in their observations that the undertakings had in fact foreseen the change in the rules.
They point out in this regard that clauses in the contracts between the undertakings involved bear out this assumption. They refer first to the fact that, in its contractual dealings with An Bord Bainne, Inter-Agra expressly assumed the risk that An Bord Bainne might forfeit the security, and, secondly, to the fact that the contract between Inter-Agra and Prodintorg contained a force majeure clause which included an import ban in the list of events constituting force majeure.
31.
There are several reasons why the Court ought not to accept the views of the Commission and the United Kingdom on this point.
32.
The first is that the order for reference points out that the parties to the main proceedings agreed that it could be assumed that An Bord Bainne and Inter-Agra had not foreseen that changes might occur in the Soviet rules. Secondly, it must in all circumstances be left to the national court to decide on the inferences to be drawn from such contractual provisions for the purpose of determining whether the parties had foreseen the change.
33.
With regard, however, to the weight attached by the Commission and the United Kingdom to those contractual provisions, it may be appropriate to mention that it is to my mind more than doubtful that those provisions can have the meaning which the Commission and the United Kingdom attribute to them.
It seems reasonably clear to me that the provision in the contract between An Bord Bainnc and Inter-Agra cannot be understood otherwise than as meaning that Inter-Agra assumes the risk which An Bord Bainne bears in its legal relationship with the United Kingdom intervention agency, that is to say, the risk of forfeiture of the security unless noncompliance with the conditions laid down by the regulation was attributable to force majeure. It is certainly not evident that Inter-Agra, through the clause in question, intended to assume the risk even in the case that An Bord Bainne's noncompliance was due to force majeure.
Furthermore, the clause in the contract between An Bord Bainnc and Inter-Agra covers quite generally noncompliance with the conditions under the regulation and can therefore scarcely be understood as meaning that the two undertakings had in fact foreseen that compliance with the conditions imposed by the Community rules would be frustrated through a Soviet import ban resulting from changes in quality requirements.
34.
Similarly, it would be stretching the point to attach to the force majeure clause in the contract between Inter-Agra and Prodintorg the meaning advocated by the Commission and the United Kingdom. At any rate, the Commission and the United Kingdom have altogether failed to substantiate the view that that clause (which presumably is a perfectly standard contractual provision) was included precisely because the parties had specific reasons to apprehend a change in the quality requirements.
35.
There is thus in my view nothing in the observations of the Commission or the United Kingdom to show that the changes in the quality requirements were in fact foreseen. In addition, I hardly need mention that a drastic and scarcely comprehensible restriction on the application of the force majeure clause would result if a trader were to be precluded from relying on force majeure under the Community rules merely because the other contracting party or the other party to the contract with the latter had reserved the right to invoke force majeure in their mutual legal relationship.
36.
On the whole, I find it extremely difficult to follow the reasoning of the Commission and the United Kingdom when they seek to attach significance to the fact that the present case concerns contractual relations among three undertakings of such a kind that the ultimate fulfilment of An Bord Bainne's obligation vis-à-vis the United Kingdom intervention agency to ensure that the butter was exported to the Soviet Union presupposes the intermediate role of Inter-Agra. The determinant question must be whether An Bord Bainne's noncompliance with its obligations can be taken to have been caused by events over which none of the undertakings involved had any control, which none could have foreseen and which they could not have avoided despite the exercise of all due care.
Could the consequences of the event have been avoided?
37.
The Commission and the United Kingdom argue that a prudent and careful trader might have been expected to take appropriate precautions in order to avoid the effects of the bar to carrying out the export which stemmed from the change in the quality requirements. More particularly, they point out that the consequences of the import ban and of the resultant rescission of the contract with Prodintorg could and ought to have been avoided through the inclusion of appropriate clauses in the relevant contracts or by effecting appropriate insurance.
38.
It is true that the Court, in its judgment in the Theodorakis case, cited above, mentioned that the undertaking in question could have taken precautions against a failure on the part of its contractual partner to perform the contract either by including appropriate clauses in the contract in question or by taking out insurance. My understanding of the judgment, however, is that it did not provide a basis for precluding the undertaking in question from relying on force majeure but merely indicated that the result decided on by the Court would not entail unreasonable consequences for traders who had had an opportunity to take the precautions indicated. If traders can never rely on force majeure in connection with the failure by their contractual partners to perform obligations, they also know that they must take precautions against the consequences of such failure, if necessary through one of the methods mentioned by the Court.
39.
However, the possibility of taking precautions against the risk of forfeiture of the security through using one of the methods mentioned cannot generally preclude the person having obligations under the Community rules from relying on force majeure.
It is in my opinion unreasonable to suggest that the possibility which always exists in theory of taking precautions against forfeiture of the security, even in cases of force majeure, should be able to preclude reliance being placed on force majeure. Should such a view be accepted, force majeure clauses in Community rules will to a large extent be deprived of their practical significance.
40.
Accordingly, as I have understood them, the Commission and the United Kingdom limited their views on this point during the oral procedure to cover cases in which there were one or more specific reasons for the trader to foresee that his obligations under Community rules could not be fulfilled. In such a case, however, it is not the fact that the trader has omitted to take precautions, through contractual provisions or insurance, against the consequences of an event giving rise to force majeure that results in his being unable to rely on force majeure but the fact that he had specific cause to foresee the event giving rise to force majeure that prevents him from relying on it.
41.
For the sake of completeness, it should also be pointed out that in the real world it may be impossible or at any rate very difficult for a trader to persuade the other contracting party to agree to assume the risk of events constituting force majeure. Likewise, it will undoubtedly also be difficult for traders to take out insurance cover for loss resulting from events constituting force majeure and normally such cover will presumably be expensive.
42.
I shall refrain from examining in greater detail the economic consequences that might ensue if the view of the Commission and the United Kingdom on this point were accepted. Let me just say that I am inclined to agree with An Bord Bainne and Inter-Agra that the ‘expenses’ which the purchaser of the intervention butter would directly or indirectly incur through taking out insurance against the consequences of events constituting force majeure would ultimately be passed on to the seller of the intervention butter inasmuch as the purchaser of that butter would have to submit a lower tender to the national intervention agency for the purchase of that butter.
43.
I therefore consider that the Court should decline to attach any significance to the views expressed by the Commission and the United Kingdom on this point with regard to the application of the force majeure proviso in the present case.
The causal connection between the event allegedly constituting force majeure and An Bord Bainne's failure to fulfil its obligation to remove from store and pay for the purchased butter
44.
The United Kingdom and the Commission maintain in their written observations that the Soviet import ban resulting from the changes in the quality requirements did not prevent An Bord Bainne from removing and paying for the purchased butter and that there is consequently no causal connection between the event allegedly constituting force majeure and An Bord Bainne's failure to comply with its obligations under Article 6(1) of the regulation.
45.
The United Kingdom abandoned that argument during the oral procedure, whereas the Commission maintained it.
46.
The Commission points out that An Bord Bainne was able both in law and fact to take the butter. There was also nothing to prevent An Bord Bainne from paying for it. If that had happened, the security lodged under Article 6 would have been released and the undertaking would have been obliged to lodge the (higher) security referred to in Article 7 for carrying out the export to the Soviet Union. The Commission also maintains that this would not have been unreasonable since An Bord Bainne, in purchasing the butter, was indeed obliged to export it to the Soviet Union but, on the other hand, was not obliged to sell it as butteroil. The butter could have been sold in an unprocessed form. (
11
) An Bord Bainne was thus free to seek another Soviet purchaser for the butter it had bought. The Commission has not stated its position on the question whether An Bord Bainne could have relied on force majeure in respect of the security lodged under Article 7 if it could in fact have established that the butter which it had purchased could not find a market in the Soviet Union.
On the basis of the Commission's view, An Bord Bainne would in any event have been obliged to remove the butter and pay for it. It should then have done everything which might be expected of a prudent trader to secure its sale in the Soviet Union. An Bord Bainne would in that situation have paid for the butter and for that reason indeed have to be regarded as owner of the butter. The Commission has not explained more specifically the use to which An Bord Bainne could have put the butter under the regulation if it was unable to secure its sale in the Soviet Union.
It seems to me that the Commission's main view, which may be correct in strictly formal terms, ought not to be accepted. It might lead to unreasonable results in practice. In a situation such as that in the present case, traders should not be placed under an obligation to remove and pay for the butter which they have purchased unless there are specific grounds for believing that they had in fact a reasonable prospect of finding buyers in the Soviet Union for salted butter within the time-limits for export under the regulation.
Without being contradicted by the Commission, An Bord Bainne and Inter-Agra strongly disputed that such a possibility existed, inasmuch as neither salted butter nor butteroil processed from such butter was capable of being sold in the Soviet Union. The national court must decide whether or not An Bord Bainne and Inter-Agra are correct in this contention.
47.
As the Court has consistently held, traders who wish to rely on force majeure must demonstrate a large degree of foresight and prudence.
It is necessary to ensure that traders do everything which may reasonably be required of them to secure compliance with their obligations under the rules of Community law. The security which they must lodge is to be forfeited if they do not comply with those requirements. The purpose of the security is that traders should do everything in their power to comply with their obligations under Community law. (
12
)
48.
The function of the Court of Justice is to lay down general guidelines as to what can be required of traders. It is the task of the national courts to decide, on the basis of evidence adduced in specific cases, whether traders have complied with the obligations incumbent on them according to the Court's interpretation of the force majeure concept.
49.
It will have become evident from the foregoing that the Commission and, to a certain extent, the United Kingdom have, in my view, adopted an unduly strict interpretation of the concept of force majeure in relation to traders and that that interpretation would impose a heavy burden on commercial activity which has not been shown to be necessary in order to ensure compliance with the objective of the relevant Community rules. My view is that there are no general circumstances in a case such as this which preclude An Bord Bainne and Inter-Agra from invoking force majeure. It is for the national court to decide whether they have in fact satisfied the strict requirements regarding foresight and care which the Court's interpretation requires of prudent and careful traders.
Conclusion
50.
I accordingly propose that the Court should give the following answer to the questions before it:
Article 6(1) of Commission Regulation No 765/86 of 14 March 1986 must be interpreted as meaning that the tendering security lodged under that provision is not to be forfeit if it can be established that the failure to comply with the tendering conditions set out in that provision was due to a change in the quality requirements for the goods in question which had previously been applicable in the country of importation, provided that a prudent and careful trader and any party to a contract with that trader had not foreseen, and had no reason to foresee, that change, and also provided that the effects of the change could not in fact have been avoided despite the exercise of all due care.
It is for the national court to determine whether those conditions have been satisfied in this case.
(
*1
)	Original language: Danish.
(
1
)	Commission Regulation (EEC) No 765/86 of 14 March 1986 laying down detailed rules for the sale of butter from intervention stock for export to certain destinations, OJ 1986 L 72, p. 11.
(
2
)	Similar proceedings arc pending before the Irish courts between An Bord Bainne and Inter-agra, on the one hand, and the Irish Intervention Board, on the other, in which the security lodged is some IR £169000. Those proceedings have been stayed pending the Court's ruling in this case.
(
3
)	In support of its contention that the situation in this case is not covered by Article 10(2), the Commission points to the reference to the sale being cancelled ‘for the remaining quan titles’ The reference to ‘the remaining quantities’, however, must be considered in the light of the second subparagraph of Article 10(2), and it strikes me as beyond question that it cannot mean that the provision is not also applicable in cases where none of the quantities purchased has been removed.
(
4
)	In its judgments in Case 64/74 Firma Adolf Reich v HauptZollamt Landau [1975] ECR 261 and in Case 6/78 Union Française de Céréales v Hauptzollamt Hamburg-Jonas [1978] ECR 1675, the Court upheld the application by analogy of express force majeure clauses, while in its judgment in Case 71/87 Greek State v Inter-Kom [1988] ECR 1979 the Court recognized an implied force majeure clause in a case where the Community law provisions in question did not expressly contain such a clause.
(
5
)	See, most recently, the Court's judgment of 18 March 1993 in Case C-50/92 Molkerei-Zentrale Süd v Bundesanstalt für landwirtschaftliche Marktordnung [1993] ECR I-1035. See also the following judgments, which are of particular relevance to the present case: Case 109/86 Theodorakis v Greece [1987] ECR 4319, Case C-338/89 Organisationen Danske Slagterier v Landbrugsministeriet [1991] ECR I-2315 and Case 71/87 Greek State v Inter-Kom [1988] ECR 1979. For further references, see point 15 of Advocate General Lenz's Opinion in Molkerei-Zentrale Süd, cited above.
(
6
)	See, for example, Article 6 of Regulation No 136/64, which the Court interpreted in its judgment in Case 4/68 Virma Schuarzwaldmilch v Emfuhr- und Vorrittsstelle fur Fette [1968] ECR 377, and Article 8 of Regulation No 102/64, interpreted by the Court in its judgment in Case 36/70 Getreide Import v Emfuhr- und Vorratsstelle fur Getreide und Futtenuttel [1970] ECR 1107.
(
7
)	See the Court's judgment in the Schwarzwaldmilch case (footnote 6 above).
(
8
)	Sec the Court's judgment in Case C 338/89 Organisationen Danske Slagterier v Landbrugs-mmisteriet, cited above.
(
9
)	Sec the Court's judgment in Case 71/87 Greek State v Inter Kom, cited above
(
10
)	Cited above at footnote 5.
(
11
)	It is not certain that the Commission on this point is correet in its interpretation of the relevant provisions in the regulation. Article 5(3)(b) provides that the tender is to be accompanied by ‘a written undertaking by the tenderer to export the butter allocated to him unprocessed or after processing within the period laid down in Article 15 to the destination specified in the tender’. If that provision is read in conjunction with Article 5(2)(c), which provides that tenders must contain ‘the intended destination of the butter, with details of the quantities which arc to be exported unprocessed and those which arc to be exported after processing’, it is in any case possible to interpret the provision as meaning that the undertaking mentioned in Article 5(3)(b) also imposes an obligation on the traders in question to export the butter to the specified destination in the form indicated in the tender. This question was not examined in greater detail during the proceedings in the case. However, since it is the natural course to interpret provisions in the Commission regulation in the manner advocated by that institution (at least where that interpretation leads to a result which will in normal conditions be advantageous to traders), and in view of the purpose of the regulation itself, which must primarily be to ensure that butter sold from intervention stocks reaches the country of destination specified in the regulation, I am inclined to regard the Commission's intcrpreta-tion as correct.
(
12
)	Sec the Court's judgment in Case 158/73 Kampffmeyer v Einfuhr-und Vorratssteiie fitr Getreide und Futtermittel [1974] ECR 101, in which it stated that ‘the threat of forfeiture of security is intended to encourage the fulfilment of the obligation [under Community law] to import by importers enjoying the authorization ... it follows that, in principle, an importer who has exercised all reasonable care is released from the [Community law] obligation to import when external circumstances render it impossible for him to complete the importation within the period of validity’ (sec paragraph 9).