61983CJ0125_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 125/83
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE TRIBUNAL DE COMMERCE ( COMMERCIAL COURT ), BRUSSELS, FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN
OFFICE BELGE DE L ' ECONOMIE ET DE L ' AGRICULTURE
AND
NICOLAS CORMAN ET FILS SA
Subject of the case
ON THE INTERPRETATION OF ARTICLES 6, 18 AND 19 OF COMMISSION REGULATION NO 232/75 OF 30 JANUARY 1975 ON THE SALE OF BUTTER AT REDUCED PRICES FOR USE IN THE MANUFACTURE OF PASTRY PRODUCTS AND ICE-CREAM ( OFFICIAL JOURNAL 1975, L 24, P . 45 ),
Grounds
1 BY A JUDGMENT DATED 24 JUNE 1983, WHICH WAS RECEIVED AT THE COURT ON 6 JULY 1983, THE TRIBUNAL DE COMMERCE, BRUSSELS, REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY THREE QUESTIONS ON THE INTERPRETATION OF CERTAIN PROVISIONS OF REGULATION NO 232/75 OF THE COMMISSION OF 30 JANUARY 1975 ON THE SALE OF BUTTER AT REDUCED PRICES FOR USE IN THE MANUFACTURE OF PASTRY PRODUCTS AND ICE-CREAM .
2 THE QUESTIONS WERE RAISED IN THE COURSE OF PROCEEDINGS BETWEEN THE OFFICE BELGE DE L ' ECONOMIE ET DE L ' AGRICULTURE ( HEREINAFTER REFERRED TO AS ' THE OFFICE BELGE ' ) AND THE CORMAN COMPANY WHICH TOOK ADVANTAGE OF THE POSSIBILITY OFFERED BY REGULATION NO 232/75 TO PURCHASE BUTTER BY TENDER AT A REDUCED PRICE FROM THE FRENCH INTERVENTION AGENCY, INTERLAIT .
3 UNDER ARTICLE 6 OF REGULATION NO 232/75 AN UNDERTAKING MAY PARTICIPATE IN THE SCHEME FOR SELLING BUTTER AT REDUCED PRICES ONLY ON THE CONDITION THAT IT GIVES CERTAIN UNDERTAKINGS, WHICH ARE ESSENTIALLY TO HAVE THE BUTTER PROCESSED INTO CONCENTRATED BUTTER ( ARTICLE 6 ( 1 ) ( A )), TO INCORPORATE CERTAIN SUBSTANCES IN THE CONCENTRATED BUTTER ( ARTICLE 6 ( 1 ) ( B )), TO HAVE THE BUTTER PROCESSED ONLY INTO CERTAIN SPECIFIED PRODUCTS ( ARTICLE 6 ( 1 ) ( C )) WITHIN A PERIOD OF SIX MONTHS ( ARTICLE 6 ( 1 ) ( D )), TO KEEP STOCK RECORDS ( ARTICLES 6 ( 1 ) ( E )) AND TO INCLUDE IN THE CONTRACT OF SALE, IN THE CASE OF ANY SUBSEQUENT RESALE OF THE CONCENTRATED BUTTER, THE REQUIREMENTS LAID DOWN IN SUBPARAGRAPHAS ( C ) AND ( D ) ( ARTICLE 6 ( 1 ) ( F )).
4 IN ORDER TO PREVENT THE BUTTER FROM BEING USED OTHERWISE THAN AS INTENDED THE REGULATION PROVIDES FOR THE DEPOSIT OF A ' PROCESSING '
SECURITY AND ESTABLISHES A SYSTEM FOR CHECKING THE BUTTER FROM THE TIME WHEN IT IS TAKEN OUT OF STOCK UNTIL IT IS FINALLY PROCESSED . ARTICLE 18 ( 2 ) PROVIDES THAT, EXCEPT IN CASES OF FORCE MAJEURE, THE SECURITY IS TO BE RELEASED ONLY FOR QUANTITIES IN RESPECT OF WHICH THE SUCCESSFUL TENDERER HAS FURNISHED PROOF THAT THE CONDITIONS LAID DOWN IN ARTICLE 6 HAVE BEEN FULFILLED, IN PARTICULAR THAT THE BUTTER WAS PROCESSED WITHIN SIX MONTHS OF THE DATE ON WHICH IT WAS TAKEN OVER . THE FORM OF PROOF IS PRINCIPALLY THE SO-CALLED T5 DOCUMENT PROVIDED FOR BY REGULATION NO 2315/69 .
5 ARTICLE 19 ( 2 ) OF THE SAME REGULATION PROVIDES THAT : ' IN ALL CASES WHICH CANNOT BE REGARDED AS CASES OF FORCE MAJEURE WHERE ... THE PERIOD . . . HAS BEEN EXCEEDED BY NO MORE THAN 30 DAYS AND ( THIS WAS ) FOR REASONS OTHER THAN SERIOUS NEGLIGENCE ON THE PART OF THE PERSON CONCERNED, THE AMOUNT OF THE PROCESSING SECURITY TO BE RETAINED SHALL . . . BE ONLY TWO UNITS OF ACCOUNT PER METRIC TONNE FOR EACH DAY BY WHICH THE PRESCRIBED PERIOD OR PERIODS HAVE BEEN EXCEEDED '
ON CONDITION, HOWEVER, THAT AN APPLICATION TO THAT EFFECT IS ' LODGED WITH THE INTERVENTION AGENCY CONCERNED WITHIN 30 DAYS OF THE DAY ON WHICH THE PERIOD OR PERIODS IN QUESTION EXPIRE ' .
6 IN THE PRESENT CASE, A QUANTITY OF BUTTER, PURCHASED AFTER IT HAD BEEN PROCESSED INTO CONCENTRATED BUTTER IN BELGIUM, WAS SOLD TO THE ENGLISH COMPANY ERNEST GEORGE LIMITED WHICH RESOLD IT TO THE ENGLISH GROUP J . LYONS, WHICH IN ITS TURN SOLD IT TO ITS SUBSIDIARY, LYONS MAID .
7 THE SECOND T5 DOCUMENT ISSUED BY THE BELGIAN CUSTOMS FOLLOWING THE EXPORTATION OF THE BUTTER TO THE UNITED KINGDOM ON 22 OCTOBER 1975 HAD BEEN ENDORSED BY THE UNITED KINGDOM CUSTOMS AUTHORITIES WHICH CERTIFIED THAT THE BUTTER HAD BEEN USED FOR ITS PRESCRIBED PURPOSE ON 8 APRIL 1976 . ON 31 MAY 1976 THE OFFICE BELGE THEREFORE RELEASED THE CORRESPONDING PORTION OF THE SECURITY .
8 FOLLOWING AN INSPECTION CARRIED OUT AT THE OFFICE BELGE BY OFFICERS OF THE EUROPEAN AGRICULTURAL GUIDANCE AND GUARANTEE FUND, THE OFFICE BELGE, BY A LETTER DATED 13 OCTOBER 1977 SOUGHT TO RECOVER THE SECURITY ON THE GROUND THAT THE BUTTER HAD NOT BEEN USED UNTIL THREE WEEKS AFTER THE EXPIRY OF THE SIX-MONTH PERIOD .
9 CORMAN REPLIED TO THE OFFICE BELGE THAT ITS BRITISH CONTRACTING PARTNERS HAD ASSURED IT THAT AN EXTENSION OF THE PERIOD HAD BEEN GRANTED ORALLY BY THE COMPETENT BRITISH CUSTOMS OFFICER . IT ALSO CONTENDED THAT THE BUTTER HAD BEEN USED SEVERAL DAYS BEFORE 8 APRIL 1976 AND IN ANY EVENT WITHIN THE SIX-MONTH PERIOD LAID DOWN IN ARTICLE 6 .
10 BY A LETTER DATED 26 DECEMBER 1977 CORMAN ALSO REQUESTED THE OFFICE BELGE TO APPLY ARTICLE 19 ( 2 ) OF REGULATION NO 232/75 . THE OFFICE BELGE REFUSED THAT REQUEST BY LETTER OF 10 JANUARY 1978 . FINALLY, ON 18 JUNE 1979 IT SUED CORMAN IN THE TRIBUNAL DE COMMERCE DE BRUXELLES FOR PAYMENT OF THE AMOUNT OF THE SECURITY TOGETHER WITH INTEREST .
11 CORMAN SUBMITTED TO THE NATIONAL COURT THAT IT HAD TAKEN OVER THE BUTTER ON 10 OCTOBER 1975, THAT IT WAS THEREFORE FROM THAT DATE THAT THE SIX-MONTH PERIOD BEGAN TO RUN AND THAT CONSEQUENTLY THE BUTTER WAS IN ANY EVENT USED BEFORE THAT PERIOD EXPIRED ; IT ALSO CONTENDED THAT AN EXTENSION OF THAT PERIOD HAD BEEN GRANTED BY THE COMPETENT BRITISH CUSTOMS OFFICER AND THAT IT HAD SHOWN ALL DUE DILIGENCE SINCE IT HAD TAKEN THE PRECAUTION OF STIPULATING IN ITS SALE CONTRACT THAT 23 FEBRUARY 1976 WAS THE LATEST DATE FOR USE, THAT DATE BEING WELL BEFORE THE DATE ON WHICH THE SIX-MONTH PERIOD EXPIRED .
12 IN THOSE CIRCUMSTANCES THE TRIBUNAL DE COMMERCE DE BRUXELLES STAYED THE PROCEEDINGS AND REFERRED THE FOLLOWING QUESTIONS TO THE COURT FOR A PRELIMINARY RULING :
' ( 1 ) HOW IS THE PHRASE ' ' THE DAY ON WHICH THE BUTTER WAS TAKEN OVER ' '
IN ARTICLE 6 ( 1 ) ( D ) OF REGULATION NO 232/75 TO BE INTERPRETED? DOES IT REFER TO THE ACTUAL DATE ON WHICH THE GOODS ARE TAKEN OVER, AS INDICATED BY THE EXPEDITING CUSTOMS AUTHORITIES ON THE T5 IMPORT FORM, IN ACCORDANCE WITH THE PROVISIONS OF ANNEX III ( I ) ( BB)?
( 2)IS IT POSSIBLE TO REGARD AS FORCE MAJEURE WITHIN THE MEANING OF ARTICLES 18 AND 19 ( 1 ) OF REGULATION NO 232/75 A CASE IN WHICH PERMISSION TO EXTEND THE TIME-LIMIT IS GIVEN TO THE FINAL PROCESSOR BY THE CUSTOMS OFFICER RESPONSIBLE FOR CHECKING ON THE FINAL PROCESSING OF THE BUTTER AND FOR ENTERING THE FINAL DATE OF USE ON THE T5 EXPORT FORM? IN ANSWERING THIS QUESTION REGARD SHOULD BE HAD TO THE PARTICULAR CIRCUMSTANCES OF THE PRESENT CASE, NAMELY :
( I ) THE SUCCESSFUL TENDERER HAD REQUIRED HIS CONTRACTING PARTNERS TO COMPLY WITH A DATE PRIOR TO THE LATEST PERMISSIBLE DATE FOR PROCESSING UNDER THE REGULATION, IN ORDER TO ENSURE THAT FINAL PROCESSING WAS CARRIED OUT WITHIN THE PRESCRIBED PERIOD ;
( II)THE FINAL PROCESSOR OF THE BUTTER WOULD HAVE AMENDED HIS PRODUCTION PROGRAMME IF THE RESPONSIBLE CUSTOMS OFFICER IN CHARGE HAD NOT STATED TO HIM THAT HE WAS EMPOWERED TO AUTHORIZE AN EXTENSION OF THE TIME-LIMIT ORALLY .
( 3)IS THE SECOND SUBPARAGRAPH OF ARTICLE 19 ( 2 ) OF REGULATION NO 232/75 VALID IN THE LIGHT OF THE PRINCIPLE OF PROPORTIONALITY INASMUCH AS ITS APPLICATION IS CONDITIONAL ON THE LODGING WITHIN 30 DAYS OF THE REQUEST FOR AN EXTENSION OF THE PERIOD PERMITTED FOR PROCESSING?
'
THE FIRST QUESTION
13 THE FIRST QUESTION RAISES TWO POINTS : HOW MUST THE PHRASE ' THE DAY ON WHICH THE BUTTER WAS TAKEN OVER '
BE INTERPRETED AND WHAT ARE THE MEANS BY WHICH THAT DATE MUST BE PROVED?
14 AS REGARDS THE FIRST POINT IT IS NECESSARY FIRST OF ALL TO SET FORTH THE PROCEDURE FOR SELLING BUTTER UNDER REGULATION NO 232/75 .
15 ACCORDING TO THE PROVISIONS OF THAT REGULATION, EVERY TENDERER MUST IMMEDIATELY BE NOTIFIED OF THE RESULT OF HIS PARTICIPATION IN THE INVITATION TO TENDER ( ARTICLE 11 ( 1 )); HE MUST THEN PAY AN AMOUNT CORRESPONDING TO HIS TENDER FOR THE QUANTITY WHICH HE INTENDS TO REMOVE FROM STORE ( ARTICLE 11 ( 2 )) AND LODGE THE PROCESSING SECURITY ( ARTICLE 12 ( 1 )) THE AMOUNT OF WHICH, ACCORDING TO ARTICLE 9 ( 2 ), IS FIXED BY REFERENCE TO THE DIFFERENCE BETWEEN THE MARKET PRICE OF BUTTER AND THE MINIMUM SELLING PRICES UNDER THE INVITATION TO TENDER .
16 ARTICLE 13 ( 1 ) PROVIDES THAT AFTER THE AMOUNT OF THE TENDER HAS BEEN PAID AND THE SECURITY LODGED ' THE INTERVENTION AGENCY SHALL ISSUE A REMOVAL ORDER INDICATING : ( A ) . . . ; ( C ) THE FINAL DATE FOR TAKING OVER THE BUTTER . . . ' . ARTICLE 13 ( 2 ) IS WORDED AS FOLLOWS : ' THE SUCCESSFUL TENDERER SHALL TAKE OVER THE BUTTER AWARDED TO HIM WITHIN 30 DAYS OF RECEIVING THE NOTIFICATION PROVIDED FOR IN ARTICLE 11 ( 1 ). THE BUTTER MAY BE TAKEN OVER IN STAGES . EXCEPT IN CASES OF FORCE MAJEURE, IF THE SUCCESSFUL TENDERER HAS NOT TAKEN OVER THE BUTTER WITHIN THE PERIOD PRESCRIBED THE SALE SHALL BE CANCELLED IN RESPECT OF THE REMAINING QUANTITIES ' .
17 IN THE OBSERVATIONS WHICH IT HAS SUBMITTED TO THE COURT CORMAN MAINTAINS THAT IN ORDER TO COMPLY WITH THE SPIRIT OF THE COMMUNITY REGULATION AND GIVE IT PROPER EFFECT, ONLY THE DATE OF ACTUAL TAKING-OVER MUST BE TAKEN INTO CONSIDERATION, THAT IS TO SAY THE DATE ON WHICH THE GOODS ARE ACTUALLY REMOVED FROM THE INTERVENTION STORE AND ENTER INTO THE SUCCESSFUL TENDERER ' S POSSESSION, AS INDICATED IN THIS CASE ON THE T5 IMPORT FORM BY THE EXPEDITING CUSTOMS AUTHORITIES .
18 THE COMMISSION, ON THE OTHER HAND, CONTENDS THAT THE DATE ON WHICH THE BUTTER IS TAKEN OVER IS THE DATE INDICATED IN THE REMOVAL ORDER AND NOT A LATER DATE . IF CORMAN ' S VIEW THAT THE DATE ON WHICH THE BUTTER WAS TAKEN OVER IN THE PRESENT CASE WAS 10 OCTOBER 1975 - THE DATE MARKED ON THE T5 DOCUMENT AS THE ' DATE OF DEPARTURE '
- WERE ACCEPTED, THE SALE WOULD HAVE TO HAVE BEEN CANCELLED ON THE GROUND THAT THE SUCCESSFUL TENDERER HAD NOT TAKEN OVER THE BUTTER WITHIN 30 DAYS OF BEING NOTIFIED OF THE RESULT OF THE TENDER, AS REQUIRED BY ARTICLE 13, AND CONSEQUENTLY THE FRENCH CUSTOMS AUTHORITIES OUGHT NOT TO HAVE ISSUED THE RELEVANT T5 DOCUMENTS . IN ANY CASE, THE FACT THAT A ' DATE OF DEPARTURE '
IS GIVEN IN THE T5 DOCUMENT DOES NOT DEPRIVE THE OTHER DOCUMENTS, SOME OF WHICH WERE SIGNED BY CORMAN AND WHICH GIVE 19 SEPTEMBER 1975 AS THE DATE ON WHICH THE BUTTER WAS TAKEN OVER, OF THEIR EVIDENTIAL VALUE .
19 IN ITS ORAL SUBMISSIONS THE OFFICE BELGE MAINTAINED, WITHOUT ARGUMENT, THAT THE DATE ON WHICH THE BUTTER IS TAKEN OVER IS THE DATE ON WHICH THE PROPERTY IN THE BUTTER PASSES . IT SUBMITTED THAT IN ANY EVENT THAT QUESTION HAD NO PRACTICAL IMPORTANCE IN THIS CASE BECAUSE ARTICLE 13 OF REGULATION NO 232/75 REQUIRES THE BUTTER TO BE TAKEN OVER WITHIN 30 DAYS OF NOTIFICATION OF THE RESULT OF THE TENDER, WHICH OCCURRED ON 19 AUGUST 1975 ; HENCE THE RELEVANT PERIOD BEGAN TO RUN ON 19 SEPTEMBER 1975 AND EXPIRED ON 19 MARCH . THE BUTTER WAS THEREFORE PROCESSED AFTER THE TIME-LIMIT IN ANY CASE .
20 IT IS CLEAR FROM THE PROVISIONS SET OUT ABOVE THAT, IN THE NORMAL COURSE OF THE PROCEDURE, THE DATE ON WHICH THE BUTTER IS TAKEN OVER IS THE DATE ON WHICH THE RELEVANT QUANTITY OF BUTTER IS ACTUALLY REMOVED AND THAT IT MUST BE REMOVED BEFORE THE FINAL DATE INDICATED IN THE REMOVAL ORDER . THE LATEST PERMITTED DATE IS, MOREOVER, LAID DOWN BY THOSE PROVISIONS : 30 DAYS AT THE MOST FOLLOWING RECEIPT BY THE SUCCESSFUL TENDERER OF NOTIFICATION OF THE RESULT OF HIS TENDER . AFTER THE FINAL DATE OR THE LATEST PERMITTED DATE HAS PASSED THE SALE IS CANCELLED AS FAR AS THE REMAINING QUANTITIES ARE CONCERNED .
21 NEVERTHELESS, IT APPEARS THAT IN THIS CASE THE COMPETENT AUTHORITY DID NOT CANCEL THE SALE ; INSTEAD IT ALLOWED THE SUCCESSFUL TENDERER TO REMOVE CERTAIN QUANTITIES OF THE BUTTER SOLD AFTER THE FINAL DATE OR THE LATEST PERMITTED DATE HAD PASSED . THE QUESTION THEREFORE ARISES WHETHER, IN SUCH CASES, THE SIX-MONTH PERIOD PROVIDED FOR IN ARTICLE 6 ( 1 ) ( D ) MUST START TO RUN, NOT FROM THE DATE ON WHICH THE BUTTER IS ACTUALLY REMOVED, BUT FROM THE FINAL DATE OR THE LATEST DATE BY WHICH THE BUTTER HAD TO BE REMOVED .
22 THE ANSWER TO THAT QUESTION MUST BE IN THE NEGATIVE . THE AIM OF ARTICLE 6 ( 1 ) ( D ) IS TO GIVE THE SUCCESSFUL TENDERER A SHORT BUT ADEQUATE PERIOD OF TIME IN WHICH TO PROCESS THE BUTTER . THAT SIX-MONTH PERIOD, DURING WHICH CHECKS ARE CARRIED OUT TO ENSURE THAT THE BUTTER IS USED FOR ITS PRESCRIBED PURPOSE, MUST CONSEQUENTLY START TO RUN IN ALL CASES FROM THE DATE ON WHICH THE BUTTER IS ACTUALLY REMOVED FROM STORE .
23 AS REGARDS THE PROOF OF THAT DATE, THE PRINCIPAL EVIDENCE TO BE RELIED UPON IN CASES SUCH AS THIS IS, ACCORDING TO ARTICLE 18 ( 2 ) ( D ) OF REGULATION NO 232/75, THE T5 DOCUMENT . HOWEVER, IF THE DATE IS NOT GIVEN IN THAT DOCUMENT OR IF IT IS NOT CLEAR, THE NATIONAL COURT MAY LOOK AT OTHER DOCUMENTS CONTAINED IN THE CASE-FILE .
24 CONSEQUENTLY, THE ANSWER TO BE GIVEN TO THE FIRST QUESTION MUST BE THAT THE DATE ON WHICH THE BUTTER IS TAKEN OVER, FROM WHICH THE SIX-MONTH PERIOD PROVIDED FOR IN ARTICLE 6 OF REGULATION NO 232/75 STARTS TO RUN, IS THE DATE ON WHICH THE PURCHASED BUTTER IS ACTUALLY REMOVED . FOR THE PURPOSES OF ARTICLE 18 ( 2 ) ( D ) OF REGULATION NO 232/75, THAT DATE IS THE DATE INDICATED IN THE T5 DOCUMENT OR, FAILING ANY SUCH INDICATION OR IN THE EVENT OF DOUBT, THAT WHICH APPEARS IN OTHER DOCUMENTS CONTAINED INTHE FILE ON EACH CASE .
THE SECOND QUESTION
25 IN ITS OBSERVATIONS CORMAN POINTS OUT THAT, ACCORDING TO THE CASE-LAW OF THE COURT, FORCE MAJEURE IN COMMUNITY LAW RELATING TO AGRICULTURE IS NOT CONFINED TO ABSOLUTE IMPOSSIBILITY BUT IS ALSO UNDERSTOOD AS MEANING ABNORMAL CIRCUMSTANCES BEYOND THE TRADER ' S CONTROL WHICH OCCURRED DESPITE THE FACT THAT HE TOOK ALL THE PRECAUTIONS WHICH A PRUDENT TRADER MAY BE EXPECTED TO TAKE . IN THE PRESENT CASE CORMAN DREW ATTENTION IN ITS CONTRACTS TO THE OBLIGATION TO COMPLY WITH REGULATION NO 232/75, TOOK THE PRECAUTION OF INDICATING AN EARLIER DATE, 23 FEBRUARY 1976, IN ITS INVOICES AS THE LATEST DATE BY WHICH THE BUTTER HAD TO BE PROCESSED AND ALSO KEPT TRACK OF THE GOODS DAY BY DAY BY TELEPHONING ITS BRITISH BUYER, ERNEST GEORGE LTD . IN CORMAN ' S VIEW, A TRADER MAY ALSO LEGITIMATELY RELY ON THE ADVICE OF THE CUSTOMS AUTHORITIES SINCE THE ENTIRE SCHEME DEPENDS ON THEIR CONTRIBUTION . THEREFORE, RELIANCE ON THE INTERPRETATION OF THE RELEVANT REGULATIONS GIVEN BY THOSE COMPETENT AUTHORITIES CONSTITUTES A CASE OF FORCE MAJEURE FOR A PRUDENT TRADER .
26 IN THE COMMISSION ' S VIEW, THE CIRCUMSTANCES REFERRED TO BY CORMAN DO NOT CONSTITUTE A CASE OF FORCE MAJEURE AS INTERPRETED BY THE COURT IN ITS DECISIONS, IN PARTICULAR ITS JUDGMENT OF 13 FEBRUARY 1979 IN CASE 42/79 ( MILCH- FETT- UND EIERKONTOR GMBH V BUNDESANSTALT FUR LANDWIRTSCHAFTLICHE MARKTORDNUNG ( 1979 ) ECR 3703, P . 3716 ). IT ARGUES THAT THE CONDUCT OF A TRADER OTHER THAN THE SUCCESSFUL TENDERER WHO PARTICIPATED IN THE PROCESSING OF THE BUTTER CANNOT CONSTITUTE A CASE OF FORCE MAJEURE DISCHARGING THE SUCCESSFUL TENDERER FROM HIS OBLIGATIONS . BESIDES, CORMAN OUGHT TO HAVE KNOWN THAT, BY VIRTUE OF ARTICLE 19 ( 2 ), ONLY THE BELGIAN INTERVENTION AGENCY COULD GRANT A REQUEST FOR AN EXTENSION OF THE TIME-LIMIT .
27 THE OFFICE BELGE SUBMITTED ORAL OBSERVATIONS TO THE SAME EFFECT . IT TAKES THE VIEW THAT, EVEN DISREGARDING THE FACT THAT CORMAN ' S ASSERTION IS NOT CORROBORATED BY ANY AVAILABLE EVIDENCE, A PRUDENT TRADER WOULD NOT BE SATISFIED WITH ORAL AUTHORIZATION FROM A CUSTOMS OFFICER .
28 IN THIS REGARD THE COURT MUST POINT OUT, AS IT STATED IN THE JUDGMENT CITED ABOVE, WHICH CONCERNED LEGISLATION WHOSE AIMS AND PROVISIONS BEAR SOME RESEMBLANCE TO THOSE OF REGULATION NO 232/75, THAT FORCE MAJEURE MUST BE UNDERSTOOD AS MEANING ABSOLUTE IMPOSSIBILITY CAUSED BY ABNORMAL CIRCUMSTANCES BEYOND THE CONTROL OF THE PURCHASER OF THE BUTTER, THE CONSEQUENCES OF WHICHCOULD NOT HAVE BEEN AVOIDED WITHOUT UNREASONABLE SACRIFICE, DESPITE THE EXERCISE OF ALL DUE CARE .
29 IN VIEW OF THAT DEFINITION, IT MUST BE HELD THAT THE FACT THAT A SUBSEQUENT BUYER OR FINAL USER OF BUTTER PURCHASES FROM STORAGE EXCEEDED THE TIME-LIMIT BECAUSE HE RELIED ON A CUSTOMS OFFICER WHO PURPORTED TO HAVE AUTHORITY TO GRANT AN EXTENSION AND FOR THAT REASON DID NOT ALTER HIS PRODUCTION PROGRAMME IN ORDER TO COMPLY WITH THE TIME-LIMIT IS A CIRCUMSTANCE BEYOND THE CONTROL OF THE SUCCESSFUL TENDERER BUT DOES NOT PRESENT FOR HIM AN ABSOLUTE IMPOSSIBILITY ' THE CONSEQUENCES OF WHICH COULD NOT HAVE BEEN AVOIDED WITHOUT UNREASONABLE SACRIFICE, DESPITE THE EXERCISE OF ALL DUE CARE ' . IN FACT THERE ARE SEVERAL MEANS A PRUDENT TENDERER MAY USE, SUCH AS REQUIRING A SECURITY OR INSERTING AN INDEMNITY CLAUSE IN THE SALE CONTRACT, TO PREVENT SUBSEQUENT BUYERS FROM DISREGARDING THEIR OBLIGATIONS .
30 IT MUST BE POINTED OUT IN THIS REGARD THAT A CLAUSE SUCH AS THAT MENTIONED BY THE NATIONAL COURT IN ITS QUESTION, INSERTED INTO THE SALE CONTRACT BY THE SUCCESSFUL TENDERER AS A PRECAUTION, DOES NOT EXHAUST ALL THE POSSIBLE MEASURES FOR GUARDING AGAINST THE POSSIBILITY THAT SUBSEQUENT BUYERS MIGHT NOT COMPLY WITH THEIR OBLIGATIONS .
31 THE ANSWER TO THE SECOND QUESTION MUST THEREFORE BE THAT THE FACT THAT A SUBSEQUENT BUYER RELIED ONTHE CUSTOMS OFFICER WHO WAS RESPONSIBLE FOR CHECKING ON THE FINAL PROCESSING OF THE BUTTER AND FOR ENTERING THE FINAL DATE OF USE ON THE T5 EXPORT FORM AND WHO HAD GRANTED THAT BUYER AN EXTENSION OF THE PERIOD PERMITTED FOR PROCESSING DOES NOT CONSTITUTE A CASE OF FORCE MAJEURE, WITHIN THE MEANING OF ARTICLE 18 AND 19 ( 1 ) OF REGULATION NO 232/75, AS FAR AS THE SUCCESSFUL TENDERER IS CONCERNED .
THE THIRD QUESTION
32 CORMAN ASSUMES THAT THE SECOND SUBPARAGRAPH OF ARTICLE 19 ( 2 ) LAYS DOWN TWO PERIODS : AN INITIAL 30-DAY PERIOD SUPPLEMENTARY TO THE SIX-MONTH PERIOD WITHIN WHICH THE BUTTER MUST BE PROCESSED AND A SECOND 30-DAY PERIOD, WITHIN WHICH THE REQUEST MUST BE SUBMITTED, RUNNING FROM THE DATE OF EXPIRY OF THE FIRST PERIOD . IT SUBMITS THAT, CONSIDERED IN THE LIGHT OF THE PRINCIPLE OF PROPORTIONALITY, THE SECOND SUBPARAGRAPH OF ARTICLE 19 ( 2 ) OF THE REGULATION IS NOT VALID BECAUSE THE SECOND PERIOD, THE PERIOD WITHIN WHICH THE REQUEST FOR AN EXTENSION OF THE PROCESSING PERIOD MUST BE SUBMITTED, IS EXTREMELY SHORT IN VIEW OF ITS PURPOSE WHICH IS PURELY ADMINISTRATIVE AND THE VERY SERIOUS CONSEQUENCES WHICH ARISE IF IT IS EXCEEDED . IT TAKES THE VIEW THAT IN ITS JUDGMENT OF 23 FEBRUARY 1983 IN CASE 66/82 ( FROMANCAIS SA V FORMA ( 1983 ) ECR 395 ), IN WHICH THE COURT HELD THAT PROVISION VALID, THE COURT DID NOT RULE ON THIS POINT ; ITS RULING CONCERNED ONLY THE FAILURE TO COMPLY WITH THE FIRST PERIOD OF 30 DAYS .
33 THE COMMISSION, ON THE OTHER HAND, ASSUMES THAT THAT PROVISION PROVIDES FOR ONLY ONE 30-DAY PERIOD WHICH IS BOTH AN EXTRA PERIOD WITHIN WHICH THE BUTTER MAY BE PROCESSED AND A PERIOD WITHIN WHICH THE REQUEST MUST BE SUBMITTED . IT TAKES THE VIEW THAT THE COURT HAS ALREADY RULED ON THE QUESTION RAISED BY THE NATIONAL COURT WHEN IT HELD THE PROVISION IN QUESTION VALID IN FROMANCAIS . IN ANY CASE, THE CONSIDERATIONS ON WHICH THE COURT BASED ITS ANSWER IN THAT CASE ARE JUST AS VALID IN THIS CASE SINCE THE PURPOSE OF ALL THE PROVISIONS OF ARTICLE 19 IS TO PREVENT TENDERERS WHO ACQUIRE BUTTER AT A REDUCED PRICE FROM ACCUMULATING STOCKS FOR SPECULATIVE PURPOSES . THE COMMISSION ALSO CONTENDS THAT, IRRESPECTIVE OF THE PURELY ADMINISTRATIVE INTEREST IN KEEPING THE BURDEN OF SUPERVISION WITHIN CERTAIN LIMITS, THE LOSS OF THE SECURITY WHERE THE SUPPLEMENTARY PERIOD OF 30 DAYS HAS BEEN EXCEEDED MUST BE REGARDED AS AN INSEPARABLE ELEMENT OF THE PROCESSING OBLIGATION .
34 IN ITS ORAL OBSERVATIONS THE OFFICE BELGE ALSO SUBMITS THAT THE PROVISION IN QUESTION IS VALID . IT CONSIDERS THAT CORMAN ' S ARGUMENTS ON THIS POINT CONFLICT IN PARTICULAR WITH ARTICLE 10 OF REGULATION NO 232/75 WHICH, BY PROVIDING THAT THE SUCCESSFUL TENDERER ' S OBLIGATIONS ARE NOT TRANSFERABLE, OBLIGES HIM TO ENDEAVOUR TO KEEP HIMSELF INFORMED ABOUT THE PROCESSING OF THE BUTTER AND MAKE SURE THAT IT IS DULY PROCESSED BY THE SUBSEQUENT BUYERS WITHIN THE PRESCRIBED PERIOD . IT ALSO CONSIDERS THAT THAT PERIOD CANNOT BE REGARDED AS SERVICING PURELY ADMINISTRATIVE PURPOSES ; IT IS LAID DOWN FOR THE PERFORMANCE OF THE OPERATION IN THE INTERESTS OF BOTH THE SUCCESSFUL TENDERER AND THE ADMINISTRATION .
35 IT MUST BE POINTED OUT FIRST OF ALL THAT THE ARTICLE IN QUESTION LAYS DOWN ONY ONE 30-DAY PERIOD WHICH CONSTITUTES AN EXTENSION OF THE SIX-MONTH PERIOD WITHIN WHICH THE BUTTER MUST BE PROCESSED . IT PROVIDES THAT AN APPLICATION FOR A REDUCTION IN THE AMOUNT OF THE PROCESSING SECURITY TO BE RATAINED MUST BE SUBMITTED WITHIN THAT SAME PERIOD . THE COURT HAS NOT RULED ON THE QUESTION WHETHER THAT PERIOD IS COMPATIBLE WITH THE PRINCIPLE OF PROPORTIONALITY .
36 NEXT, IT MUST BE POINTED OUT THAT, IN ORDER TO ASCERTAIN WHETHER A PROVISION OF COMMUNITY LAW IS CONSISTENT WITH THE PRINCIPLE OF PROPORTIONALITY, IT MUST FIRST BE DETERMINED WHETHER THE MEANS APPLIED TO ACHIEVE ITS AIM CORRESPOND TO THE IMPORTANCE OF THAT AIM AND, SECONDLY, WHETHER THEY ARE NECESSARY IN ORDER TO ACHIEVE IT .
37 THE SECOND SUBPARAGRAPH OF ARTICLE 19 ( 2 ), WHICH ALLOWS THE PENALTY FOR EXCEEDING THE SIX-MONTH PERIOD TO BE REDUCED IN PROPORTION TO THE LENGTH OF TIME BY WHICH THE PERIOD IS EXCEEDED, MAKES SUCH A REDUCTION CONDITIONAL ON THE SUBMISSION OF AN APPLICATION TO THAT EFFECT WITHIN THE PERIOD IN QUESTION . THE PURPOSE OF THAT CONDITION IS TWOFOLD : TO ENABLE THE TIME BY WHICH THE SIX-MONTH PERIOD HAS BEEN EXCEEDED TO BE ASCERTAINED AND TO STABILIZE THE POSITION FROM THE ADMINISTRATIVE POINT OF VIEW, ALWAYS HAVING REGARD TO THE PROPER FUNCTIONING OF THE SCHEME ESTABLISHED BY REGULATION NO 232/75 .
38 IN VIEW OF THAT AIM, THE PERIOD IN QUESTION CANNOT BE CONSIDERED EXCESSIVELY SHORT . IT IS NOT IN FACT UNREASONABLE TO REQUIRE A PERSON WHO HAPPENS TO HAVE EXCEEDED THE SIX-MONTH PERIOD TO SUBMIT HIS APPLICATION WITHIN A PERIOD NOT EXCEEDING 30 DAYS .
39 IT FOLLOWS THAT THE PERIOD IN QUESTION CANNOT BE CONSIDERED EXCESSIVELY SHORT IN RELATION TO THE AIM UNDERLYING THE SECOND SUBPARAGRAPH OF ARTICLE 19 ( 2 ).
40 THE ANSWER TO BE GIVEN MUST THEREFORE BE THAT CONSIDERATION OF THE THIRD QUESTION HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF THE SECOND SUBPARAGRAPH OF ARTICLE 19 ( 2 ) OF REGULATION NO 232/75 .
Decision on costs
COSTS
41 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . SINCE THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS,
THE COURT,
IN ANSWER TO THE QUESTIONS SUBMITTED TO IT BY THE TRIBUNAL DE COMMERCE, BRUSSELS, BY JUDGMENT OF 24 JUNE 1983, HEREBY RULES :
( 1 ) THE DATE ON WHICH THE BUTTER IS TAKEN OVER, FROM WHICH THE SIX-MONTH PERIOD PROVIDED FOR IN ARTICLE 6 OF REGULATION NO 232/75 OF THE COMMISSION STARTS TO RUN, IS THE DATE ON WHICH THE PURCHASED BUTTER IS ACTUALLY REMOVED . FOR THE PURPOSES OF ARTICLE 18 ( 2 ) ( D ) OF REGULATION NO 232/75 THAT DATE IS THE DATE INDICATED INTHE T5 DOCUMENT OR, FAILING ANY SUCH INDICATION OR IN THE EVENT OF DOUBT, THAT WHICH APPEARS IN THE DOCUMENTS CONTAINED IN THE FILE ON EACH CASE .
( 2)THE FACT THAT A SUBSEQUENT BUYER RELIED ON THE CUSTOMS OFFICER WHO WAS RESPONSIBLE FOR CHECKING ON THE FINAL PROCESSING OF THE BUTTER AND FOR ENTERING THE FINAL DATE OF USE ON THE T5 EXPORT FORM AND WHO HAD GRANTED THAT BUYER AN EXTENSION OF THE PERIOD PERMITTED FOR PROCESSING DOES NOT CONSTITUTE A CASE OF FORCE MAJEURE, WITHIN THE MEANING OF ARTICLES 18 AND 19 ( 1 ) OF REGULATION NO 232/75, AS FAR AS THE SUCCESSFUL TENDERER FOR STORED BUTTER IS CONCERNED .
( 3)CONSIDERATION OF THE THIRD QUESTION HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF THE SECOND SUBPARAGRAPH OF ARTICLE 19 ( 2 ) OF REGULATION NO 232/75 .