LICENCES INVOLVING AN UNDERTAKING, BY THOSE WHO APPLY FOR THEM, TO IMPORT OR EXPORT, GUARANTEED BY A DEPOSIT, DOES NOT VIOLATE ANY RIGHT OF A FUNDAMENTAL NATURE . THE MACHINERY OF DEPOSITS CONSTITUTES AN APPROPRIATE METHOD, FOR THE PURPOSES OF ARTICLE 40 ( 3 ) OF THE TREATY, FOR CARRYING OUT THE COMMON ORGANIZATION OF THE AGRICULTURAL MARKETS AND ALSO CONFORMS TO THE REQUIREMENTS OF ARTICLE 43 .
THE SECOND QUESTION ( CONCEPT OF " FORCE MAJEURE " )
21 BY THE SECOND QUESTION THE VERWALTUNGSGERICHT ASKS WHETHER, IN THE EVENT OF THE COURT' S CONFIRMING THE VALIDITY OF THE DISPUTED PROVISION OF REGULATION NO 120/67, ARTICLE 9 OF REGULATION NO 473/67 OF THE COMMISSION, ADOPTED IN IMPLEMENTATION OF THE FIRST REGULATION, IS IN CONFORMITY WITH THE LAW, IN THAT IT ONLY EXCLUDES FORFEITURE OF THE DEPOSIT IN CASES OF FORCE MAJEURE .
22 IT APPEARS FROM THE GROUNDS OF THE ORDER REFERRING THE MATTER THAT THE COURT CONSIDERS EXCESSIVE AND CONTRARY TO THE ABOVEMENTIONED PRINCIPLES THE PROVISION IN ARTICLE 1 ( SIC ) OF REGULATION NO 473/67, THE EFFECT OF WHICH IS TO LIMIT THE CANCELLATION OF THE OBLIGATION TO IMPORT OR EXPORT AND RELEASE OF THE DEPOSIT ONLY TO " CIRCUMSTANCES WHICH MAY BE CONSIDERED TO BE A CASE OF FORCE MAJEURE " . IN THE LIGHT OF ITS EXPERIENCE, THE VERWALTUNGSGERICHT CONSIDERS THAT PROVISION TO BE TOO NARROW, LEAVING EXPORTERS OPEN TO FORFEITURE OF THE DEPOSIT IN CIRCUMSTANCES IN WHICH EXPORTATION WOULD NOT HAVE TAKEN PLACE FOR REASONS WHICH WERE JUSTIFIABLE BUT NOT ASSIMILABLE TO A CASE OF FORCE MAJEURE IN THE STRICT MEANING OF THE TERM . FOR ITS PART, THE PLAINTIFF IN THE MAIN ACTION CONSIDERS THIS PROVISION TO BE TOO SEVERE BECAUSE IT LIMITS THE RELEASE OF THE DEPOSIT TO CASES OF FORCE MAJEURE WITHOUT TAKING INTO ACCOUNT THE ARRANGEMENTS OF IMPORTERS OR EXPORTERS WHICH ARE JUSTIFIED BY CONSIDERATIONS OF A COMMERCIAL NATURE .
23 THE CONCEPT OF FORCE MAJEURE ADOPTED BY THE AGRICULTURAL REGULATIONS TAKES INTO ACCOUNT THE PARTICULAR NATURE OF THE RELATIONSHIPS IN PUBLIC LAW BETWEEN TRADERS AND THE NATIONAL ADMINISTRATION, AS WELL AS THE OBJECTIVES OF THOSE REGULATIONS . IT FOLLOWS FROM THOSE OBJECTIVES AS WELL AS FROM THE POSITIVE PROVISIONS OF THE REGULATIONS IN QUESTION THAT THE CONCEPT OF FORCE MAJEURE IS NOT LIMITED TO ABSOLUTE IMPOSSIBILITY BUT MUST BE UNDERSTOOD IN THE SENSE OF UNUSUAL CIRCUMSTANCES, OUTSIDE THE CONTROL OF THE IMPORTER OR EXPORTER, THE CONSEQUENCES OF WHICH, IN SPITE OF THE EXERCISE OF ALL DUE CARE, COULD NOT HAVE BEEN AVOIDED EXCEPT AT THE COST OF EXCESSIVE SACRIFICE . THIS CONCEPT IMPLIES A SUFFICIENT FLEXIBILITY REGARDING NOT ONLY THE NATURE OF THE OCCURRENCE RELIED UPON BUT ALSO THE CARE WHICH THE EXPORTER SHOULD HAVE EXERCISED IN ORDER TO MEET IT AND THE EXTENT OF THE SACRIFICES WHICH HE SHOULD HAVE ACCEPTED TO THAT END .
24 THE CASES OF FORFEITURE CITED BY THE COURT AS IMPOSING AN UNJUSTIFIED AND EXCESSIVE BURDEN ON THE EXPORTER APPEAR TO CONCERN SITUATIONS