2.

We still have to inquire whether, if the goods imported cannot be brought to the place specified by the customs because it is not available for reasons not ascribable to the importer, the day of importation may be reckoned to be the date on which the customs administration has delivered the general declaration according to which the goods are to be regarded as imported under a customs procedure and has also accepted the import declaration and the other import papers. We therefore have to consider whether circumstances which may be regarded as force majeure or comparable phenomena can influence the definition obtained of the concept of ‘day of importation’. In this connexion one is tempted at first sight to start from the observation made in connexion with the first question, namely that, as regards the determination of the time of importation, Community law leaves the national customs administrations a certain scope. This certainly makes it possible to a certain extent to take into account also circumstances such as those referred to in the second question. Thus it is conceivable that in such a situation the customs might, deviating from their normal practice, which requires final berthing of the ship at the place at which it is to be unloaded, with corresponding customs supervision, regard it as sufficient if the goods are present in the customs area and a certain customs check is possible. This might perhaps be accepted from the time at which the ship with the imported goods on board has entered the harbour of importation and has on board customs officers who, even if they are not competent to carry out the customs inspection and to undertake clearance into free circulation, are nevertheless authorized to accept the general customs declaration with which the goods become subject to customs control and are put under a customs procedure. In my opinion it would be hard to accept that the customs would be overstretched in taking into consideration unusual situations such as those in the main action. Actually the issue does not involve — at least according to the way in which the questions have been put — situations lying a considerable way back in the past, a check on which might also be rendered more difficult for reasons of distance in space, quite apart from the fact that the authorities in the country of importation, in connexion with the forfeiture of the deposit, also have to take into consideration all possible circumstances of force majeure which also do not fully exclude the risk of an abuse. Furthermore according to the explanations which have been made during the proceedings it has also been made clear that from the point of view of Community law there is no ground for supplementing or amending the concept of ‘day of importation’, as already determined, with reference to cases of force majeure. In contrast to Case 6/78 (Union Française de Céréales v Hauptzollamt Hamburg-Jonas, judgment of 11 July 1978, [1978] ECR 1675), which dealt with accession compensatory amounts for goods lost in transport which were to have been exported to one of the new Member States and a guarantee of Community preference for this purpose, it is not possible in the present case actually to speak of a lacuna in Community law which should be filled by the application by analogy of provisions regarding force majeure. One's thoughts go rather to the judgment in Case 68/77 (JFG-Interkontinentale Fleischhandelsgesellschaft mbH & Co. KG v Commission of the European Communities, judgment of 14 February 1978, [1978] ECR 354) and what it has to say with regard to the application by analogy of Article 20 of Regulation No 193/75 (Official Journal 1975, L 25 of 31 January 1975, p. 10) — a provision dealing with the taking into consideration of force majeure. According to that judgment the important point is whether given obligations, the breach of which entails the sanction of forfeiture of the deposit, were entered into vis-à-vis a competent authority or whether the failure to observe a given time-limit has as its consequence only the application of less favourable rules for import. Obviously we have here an example of the last type of case. In the case of imports there is in general no obligation to act by given dates and if an importation cannot be undertaken by reason of force majeure within the period of validity of a licence then according to Article 20 of Regulation No 193/75 this may be prolonged. But, as the Commission rightly stressed, an importer can guard against the risk of a higher levy as a result of later importation by an advance fixing of levy as is provided in Article 15 (2) of Regulation No 120/67. These considerations actually make it possible to state that there is no ground for having recourse to different or supplementary criteria in relation to the concept of ‘day of importation’ in the even of unusual circumstances such as are present in the main action.