61973CJ0186_EN
Parties
Subject of the case
Grounds
Decision on costs
Endorsements
Operative part
Parties
IN CASE 186/73
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE VERWALTUNGSGERICHT ( ADMINISTRATIVE COURT ) OF FRANKFURT-ON-MAIN, FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
NORDDEUTSCHES VIEH - UND FLEICHKONTOR GMBH OF HAMBURG
AND
EINFUHR - UND VORRATSSTELLE FUER SCHLACHTVIEH, FLEISCH UND FLEISCHERZEUGNISSE, OF FRANKFURT-ON-MAIN,
Subject of the case
ON THE INTERPRETATION OF ARTICLE 15 ( 5 ) ( A ) OF EEC REGULATION NO 1373/70 OF THE COMMISSION OF 10 JULY 1974 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 158/1 OF 20 JULY 1970 ),
Grounds
1 BY ORDER OF 20 NOVEMBER 1973, RECEIVED AT THE COURT ON 5 DECEMBER, THE VERWALTUNGSGERICHT OF FRANKFURT-ON-MAIN REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY FOR A PRELIMINARY RULING ON THE INTERPRETATION OF THE WORD 'ACCEPT' AS IT APPEARS IN ARTICLE 15 ( 5 ) ( A ) OF REGULATION NO 1373/70 OF THE EEC COMMISSION OF 10 JULY 1970 ( OJ L 158, P . 1 ) 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 .
2 THE QUESTION ARISES OUT OF A DISPUTE BETWEEN AN IMPORTER OF FROZEN BEEF AND VEAL AND THE GERMAN AUTHORITIES OVER RELEASE OF THE SECURITY GIVEN TO GUARANTEE THE IMPORTATION AUTHORIZED BY AN IMPORT LICENCE VALID FOR A GIVEN PERIOD .
BEFORE THE VALIDITY OF THE CERTIFICATE EXPIRED, THE IMPORTER SUBMITTED A QUANTITY OF MEAT COMING FROM ABROAD FOR MEDICAL INSPECTION BUT IMPORTATION COULD NOT BE EFFECTED BECAUSE OF FAILURE TO SATISFY THE REQUIREMENTS OF GERMAN LEGISLATION GOVERNING VETERINARY EXAMINATION OF MEAT OF FOREIGN ORIGIN .
3 ARTICLE 15 ( 2 ) OF REGULATION NO 1373/70 PROVIDES THAT RELEASE OF THE SECURITY SHALL BE SUBJECT TO PRODUCTION OF PROOF 'AS REGARDS IMPORTS, OF COMPLETION OF THE CUSTOMS FORMALITIES REFERRED TO IN ( A ) OF THE SECOND SUBPARAGRAPH OF ARTICLE 8 ( 2 )'.
AS REGARDS THE PERIOD OF VALIDITY OF THE LICENCES, ARTICLE 15 ( 1 ) PROVIDES THAT 'THE OBLIGATION TO IMPORT SHALL BE CONSIDERED TO HAVE BEEN FULFILLED AND THE RIGHT TO IMPORT PURSUANT TO THE LICENCE OR CERTIFICATE SHALL BE CONSIDERED TO HAVE BEEN EXERCISED ON THE DAY WHEN THE CUSTOMS FORMALITIES ... ARE COMPLETED '.
ARTICLE 15 ( 5 ) PROVIDES THAT 'THE DAY ON WHICH THE CUSTOMS AUTHORITIES ACCEPT THE DOCUMENT BY WHICH THE DECLARANT STATES HIS INTENTION TO PUT THE GOODS IN QUESTION IN FREE CIRCULATION' SHALL BE CONSIDERED TO BE THE DAY WHEN THE CUSTOMS FORMALITIES ARE COMPLETED .
4 THE SYSTEM OF LODGING SECURITY IS DESIGNED TO ENSURE THAT IMPORTS OR EXPORTS FOR WHICH LICENCES ARE APPLIED FOR ARE EFFECTED SO THAT BOTH THE COMMUNITY AND THE MEMBER STATES MAY BE CERTAIN OF KNOWING EXACTLY WHAT TRANSACTIONS ARE INTENDED .
ACCORDINGLY, THE DECIDING FACTOR IN DETERMINING WHETHER THE SECURITY MAY BE RELEASED IS DERIVED FROM A COMMUNITY CONCEPT WHOSE SIGNIFICANCE AND SCOPE MUST BE INDEPENDENT OF NATIONAL CUSTOMS PROCEDURES WHICH HAVE NOT YET BEEN HARMONIZED .
IT FOLLOWS FROM THIS THAT, AS THE ORDER BY WHICH THE CUSTOMS AUTHORITIES CONCLUDE THE CLEARANCE PROCEDURE AND AUTHORIZE RELEASE OF THE GOODS FOR FREE CIRCULATION MAY BE SUBJECT TO CONSIDERATIONS WHICH VARY FROM ONE MEMBER STATE TO THE OTHER, SUCH AS, FOR EXAMPLE, THOSE ARISING FROM DIFFERENT PATTERNS OF LEGISLATION GOVERNING MEDICAL INSPECTION OF MEAT, THIS CANNOT BE TREATED AS THE SOLE DECIDING FACTOR .
5 THE AIM OF THE PROVISIONS OF ARTICLE 15 ( 1 ) AND 15 ( 5 ) IS TO DEFINE THE DATE FROM WHICH THE TITULAR HOLDER OF AN IMPORT LICENCE SHALL BE DEEMED TO HAVE FULFILLED HIS OBLIGATION TO MAKE USE OF THE LICENCE DURING THE PERIOD OF ITS VALIDITY AND THUS TO HAVE SATISFIED THE ESSENTIAL CONDITION FOR RELEASE OF THE SECURITY .
THE GUARANTEE WHICH THE SYSTEM OF LODGING SECURITY SEEKS TO ACHIEVE DOES NOT REQUIRE THE CUSTOMS PROCEDURE TO HAVE BEEN CONCLUDED IN FAVOUR OF THE DECLARANT BUT ENABLES THE OBLIGATION TO BE CONSIDERED AS HAVING BEEN FULFILLED AT AN EARLIER DATE, SUCH AS THE DATE ON WHICH THE CUSTOMS AUTHORITIES RECEIVED THE DOCUMENT BY WHICH THE DECLARANT STATES HIS INTENTION TO PUT THE PRODUCTS IN QUESTION INTO FREE CIRCULATION, SUBJECT, HOWEVER, TO THE CONDITION THAT THE GOODS ARE ACTUALLY PUT INTO FREE CIRCULATION, EVEN THOUGH THIS MAY BE AT A LATER DATE .
ARTICLE 15 ( 3 ) IN FACT PROVIDES THAT THE PROOF ON WHICH RELEASE OF THE SECURITY DEPENDS SHALL BE FURNISHED BY PRODUCTION OF COPY NO 1 OF THE LICENCE ON WHICH THE QUANTITY OF GOODS ACTUALLY IMPORTED HAS BEEN ATTRIBUTED .
6 IT SHOULD BE BORNE IN MIND, HOWEVER, THAT 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 WITH THE NECESSITY OF NOT HAMPERING TRADE BETWEEN STATES BY TOO RIGID OBLIGATIONS, A NECESSITY WHICH ALSO DERIVES FROM THE PUBLIC INTEREST .
WHERE, AS A RESULT OF FORCE MAJEURE, IMPORTATION CANNOT BE EFFECTED DURING THE PERIOD OF VALIDITY OF THE LICENCE, THE MEMBER STATES CAN, UNDER ARTICLE 18 OF REGULATION NO 1373/70, EITHER CANCEL THE OBLIGATION TO IMPORT AND RELEASE THE SECURITY, OR EXTEND THE PERIOD OF VALIDITY OF THE LICENCE .
THE CONCEPT OF FORCE MAJEURE EMBODIED IN THE REGULATION MUST TAKE ACCOUNT OF THE SPECIAL NATURE OF THE RELATIONSHIPS, IN PUBLIC LAW, BETWEEN THE ECONOMIC OPERATORS AND THE NATIONAL ADMINISTRATION, AS WELL AS OF THE OBJECTIVES OF THE RULES WHICH APPLY .
7 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 CONFINED TO THAT OF ABSOLUTE IMPOSSIBILITY BUT MUST BE EXTENDED TO INCLUDE ABNORMAL CIRCUMSTANCES, OUTSIDE THE CONTROL OF THE IMPORTER, AND WHICH HAVE ARISEN IN SPITE OF 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 .
Decision on costs
8 THE COSTS INCURRED BY THE COMMISSION, WHICH SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE .
9 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 ON COSTS IS A MATTER FOR THAT COURT .
Endorsements
ON THOSE GROUNDS,
Operative part
THE COURT
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE VERWALTUNGSGERICHT OF FRANKFURT-ON-MAIN BY ORDER OF THAT COURT DATED 20 NOVEMBER 1973 HEREBY RULES :
1 . FOR THE PURPOSES OF DETERMINING THE DATE ON WHICH THE OBLIGATION TO IMPORT PURSUANT TO THE LICENCE IS DEEMED TO HAVE BEEN FULFILLED, WITHIN THE MEANING OF ARTICLE 15 ( 1 ) ( A ) OF REGULATION NO 1373/70, ACCEPTANCE BY THE CUSTOMS AUTHORITIES, WITHIN THE MEANING OF ARTICLE 15 ( 5 ) ( A ), OF THE DOCUMENT BY WHICH THE DECLARANT STATES HIS INTENTION TO PUT THE GOODS INTO FREE CIRCULATION DOES NOT REQUIRE THAT THE CUSTOMS PROCEDURE SHOULD BE FINALLY CONCLUDED IN FAVOUR OF THE DECLARANT .
2 . BEFORE ARTICLE 15 ( 1 ) CAN APPLY, IT IS ESSENTIAL THAT THE GOODS WHICH, PURSUANT TO THE PROVISIONS OF THE SECOND SUBPARAGRAPH OF ARTICLE 8 ( 2 ), HAVE BEEN ATTRIBUTED ON THE LICENCE, SHALL HAVE, IN FACT, BEEN PUT INTO FREE CIRCULATION .