WHERE AN IMPORTER COULD HAVE OBTAINED THE GOODS ELSEWHERE WITHIN THE PERIOD STIPULATED .
IN THIS RESPECT, TOO, THE IMPORTER MUST BE EXPECTED TO SHOW ALL DUE DILIGENCE .
THIS BEING SO, FORCE MAJEURE IS ESTABLISHED IF THE IMPORTER COULD ONLY HAVE EFFECTED THE IMPORTATION WITHIN THE PERIOD STIPULATED BY REPLACING THE GOODS AT AN EXCESSIVE LOSS TAKING INTO ACCOUNT, WHERE NECESSARY, ANY REMEDIES AVAILABLE TO HIM .
IT MUST, THEREFORE, BE CONCLUDED THAT SUFFICIENT CAUSAL CONNEXION BETWEEN THE CIRCUMSTANCES RELIED ON AS A CASE OF FORCE MAJEURE AND THE FAILURE TO EFFECT THE IMPORTATION MUST IN PRINCIPLE BE RECOGNIZED WHEN DELIVERY IN DUE TIME BY THE IMPORTER'S SUPPLIER HAS BECOME IMPOSSIBLE WITHIN THE MEANING OF THE ABOVE DEFINITION, AND WHEN THE IMPORTER CAN ONLY OBTAIN THE GOODS ELSEWHERE AT AN EXCESSIVE LOSS .
FINALLY, IT FOLLOWS FROM THE SCHEME OF ARTICLE 6 OF THE REGULATION THAT IT IS FOR THE IMPORTER TO PROVE THE EXISTENCE OF THE CIRCUMSTANCES NECESSARY TO CONSTITUTE A CASE OF FORCE MAJEURE .
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QUESTION NO 2
THE COURT REQUESTING THE PRELIMINARY RULING ASKS WHETHER ARTICLE 6(4 ) OF REGULATION NO 136/64/EEC EMPOWERS THE COURTS OF MEMBER STATES TO RECOGNIZE AS CASES OF FORCE MAJEURE CIRCUMSTANCES OTHER THAN THOSE MENTIONED IN PARAGRAPH ( 3 ) OF THAT ARTICLE .
ARTICLE 6(3 ) OF THE REGULATION IN DISPUTE LISTS A NUMBER OF CIRCUMSTANCES FROM WHICH CASES OF FORCE MAJEURE ' MAY ' RESULT .
PARAGRAPH ( 4 ) OF THE SAME ARTICLE IMPLIES THAT IT IS POSSIBLE FOR THE MEMBER STATES TO RECOGNIZE AS FORCE MAJEURE CASES RESULTING FROM CIRCUMSTANCES OTHER THAN THOSE SET OUT IN PARAGRAPH ( 3 ).
THE SPIRIT OF THESE PROVISIONS IS EXPLAINED IN THE SIXTH RECITAL IN THE PREAMBLE TO THE REGULATION IN DISPUTE WHICH READS ' ...MENTION NEEDS TO BE MADE OF CERTAIN CIRCUMSTANCES WHICH MAY BE CONSIDERED AS CONSTITUTING CASES OF FORCE MAJEURE WITHOUT THEREBY EXCLUDING OTHER CIRCUMSTANCES FROM CONSIDERATION '.
IT FOLLOWS FROM THE GENERAL SCHEME OF ARTICLE 6(2 ), ( 3 ) AND ( 4 ) THAT EXEMPTION ON THE GROUNDS OF FORCE MAJEURE MAY APPLY EVEN OUTSIDE THE CASES EXPRESSLY PROVIDED FOR IN PARAGRAPH ( 3 ), AS THIS LIST IS NOT EXHAUSTIVE .
WITHIN THE LIMITS OF THEIR OWN JURISDICTION, THEREFORE, NATIONAL COURTS MAY RECOGNIZE THE EXISTENCE OF A CASE OF FORCE MAJEURE NOT ONLY WHEN THE SITUATION RELIED ON IS INCLUDED IN THOSE ENUMERATED IN ARTICLE 6(3 ), OR WHEN IT HAS BEEN RECOGNIZED BY THE NATIONAL AUTHORITIES IN ACCORDANCE WITH ARTICLE 6(4 ), BUT ALSO IN OTHER SPECIFIC CASES IN WHICH FORCE MAJEURE, WITHIN THE ABOVEMENTIONED EXPOSITION OF THE CONCEPT, JUSTIFIES THE APPLICATION OF THE EXEMPTION REFERRED TO IN ARTICLE 6(2 ).
THE EFFECT OF ARTICLE 6(4 ), WHICH MAKES A GENERAL REFERENCE TO THE POWERS OF THE MEMBER STATES, IS NOT TO LIMIT THE POWERS OF THE NATIONAL COURTS IN THIS RESPECT .
Decision on costs
THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS