Keywords

Summary



Keywords

1. Community law — Principles — Force majeure — Scope — EAGGF financial assistance — Whether applicable as a result of administrative practice, even where no legislation requires that it be taken into account

2. Community law — Principles — Force majeure — Failure to implement planned aid for the processing and marketing of agricultural products — Lack of significant economic activity as a result of circumstances which cannot be regarded as beyond control, unusual or unforeseeable — Conditions for application not satisfied — (Council Regulation No 355/77)

3. Agriculture — Common agricultural policy — Structural reform — Common measures — Improvement of the conditions under which agricultural products are processed and marketed — EAGGF financial assistance discontinued for breach of fundamental obligations — Principle of proportionality — Breach — None — (Council Regulation No 355/77)

Summary

1. The existence of an administrative practice, even one that is not based on any legislation, under which the Commission considers whether there is a case of force majeure which should cause it to refrain from discontinuing EAGGF financial assistance may bind the Commission each time a case of force majeure is pleaded before it.

see para. 72

2. The concept of force majeure , even if it does not assume absolute impossibility, requires none the less that the failure to complete the act in question must be due to unusual and unforeseeable circumstances beyond the control of the party by whom it is pleaded and the consequences of which could not have been avoided even if all due care had been exercised.

Force majeure cannot be relied on for the purpose of contesting the merits of a decision to discontinue assistance granted under Regulation No 355/77 to a project designed to a project designed to improve the processing and marketing of certain products, on the ground that there is no significant economic activity, in the case of:

─ disturbances of the activity of an establishment as a result of judicial problems attributable to the administrator of the management company to which the trader concerned has entrusted the management of that activity; by setting up that management company in order to perform its obligations, the trader concerned assumes all the risks which a diligent trader can and should reasonably foresee in the context of that agreement, including fraudulent or negligent conduct on the part of the administrator of that management company;

─ theft, which is a normal and foreseeable risk in the context of day-to-day trade;

─ market trends, which must be regarded as being inherent in the normal commercial risks which any reasonably well-informed trader should have been able to foresee;

─ fraudulent practices if they were perpetrated by criminal elements which infiltrated the trader;

─ the conduct of the national administration if it is not established that such conduct made it impossible for the trader to perform his obligations under the Community rules.

see paras 74-75, 77, 79-81

3. The infringement of obligations whose observance is of fundamental importance to the proper functioning of a Community system may be penalised by forfeiture of a right conferred by Community legislation.

By supplying the Commission with incorrect information on the number of storage and packaging facilities in existence when it submitted its application for aid under Regulation No 355/77 on common measures to improve the conditions under which agricultural products are processed and marketed, which is liable to mislead the Commission regarding the economic basis of the project envisaged, a trader breaches a fundamental obligation. In those circumstances, discontinuance of the EAGGF financial aid is in accordance with the principle of proportionality.

Neither a trader ' s financial situation, nor the possibility of the Community assistance being discontinued concurrently with any administrative fines being imposed by the national authorities which contributed to the assistance, is such as to cast doubt on the proportionate nature of the decision to discontinue that assistance.

The possibility of the Community penalty being applied concurrently with national administrative fines is purely hypothetical and in any event is not sufficient in itself to justify a finding that the decision to discontinue the assistance is disproportionate. It will be for the trader concerned to seek relief before the national courts, should the need to do so arise, on the grounds that concurrent application of Community and national penalties constitutes a breach of the principle of proportionality.

see paras 96, 120-122