1 BY ORDER OF 16 NOVEMBER 1973, REGISTERED AT THE COURT ON 11 JANUARY 1974, THE BUNDESVERWALTUNGSGERICHT REFERRED TO THE COURT, PURSUANT TO ARTICLE 177 OF THE EEC TREATY, TWO QUESTIONS ON THE INTERPRETATION OF REGULATION NO 102/64 OF THE COMMISSION, OF 28 JULY 1964, ON IMPORT AND EXPORT LICENCES FOR CEREALS, PROCESSED CEREAL PRODUCTS, RICE, BROKEN RICE AND PROCESSED RICE PRODUCTS ( OJ NO 126, P . 2125 ).
2 ACCORDING TO THE ORDER FOR REFERENCE, THE MAIN ACTION IS ESSENTIALLY CONCERNED WITH THE QUESTIONS WHETHER CERTAIN IMPORTS OF BREWING BARLEY, EFFECTED IN 1967, WERE COMPLETED DURING THE PERIOD OF VALIDITY OF THE IMPORT LICENCES UPON WHICH THEY WERE ENTERED AND IF, ACCORDINGLY, THE SECURITY FURNISHED PURSUANT TO ARTICLE 7 OF THE REGULATION SHOULD BE RELEASED .
3 IN THIS CASE THE IMPORTER, THE PLAINTIFF IN THE MAIN ACTION, SUBMITTED THE AMOUNT IN QUESTION, LOADED ON BOARD SHIP, TO THE CUSTOMS OFFICE AT EMMERICH-HAFEN ON 31 MAY 1967, THE FINAL DAY OF THE PERIOD OF VALIDITY OF THE LICENCES IN QUESTION . ON THE SAME DAY THE CUSTOMS OFFICE CERTIFIED THAT THE GOODS HAD CROSSED THE FRONTIER AND PLACED THE CARGO UNDER CUSTOMS BOND FOR THE PURPOSE OF ITS TRANSPORTATION TO THE CUSTOMS OFFICE IN DUESSELDORF WHERE IT WAS GIVEN CUSTOMS CLEARANCE, UNLOADED AND PUT INTO FREE CIRCULATION ON 5 JUNE 1967 .
4 THIS PROCEDURE IS EXPLAINED BY THE FACT THAT THE DOCUMENTS NECESSARY FOR CUSTOMS CLEARANCE, NOTABLY THE IMPORT LICENCES, COULD NOT BE SUBMITTED IN GOOD TIME TO THE AUTHORITIES AT EMMERICH-HAFEN BECAUSE THE IMPORTER HAD REQUIRED THEM, ON 24 MAY 1967, FOR THE CUSTOMS CLEARANCE OF A PREVIOUS QUANTITY BY THE CUSTOMS OFFICES AT ANDERNACH AND DUESSELDORF . THE LICENCES HAD BEEN RETURNED BY POST AND HAD NOT YET REACHED EMMERICH-HAFEN AT THAT TIME . AS TO THE FIRST QUESTION
5 ARTICLE 7 ( 2 ) OF REGULATION NO 102/64 LAYS DOWN : 'SUBJECT TO THE PROVISIONS OF ARTICLE 8, WHERE THE OBLIGATION TO IMPORT OR EXPORT HAS NOT BEEN FULFILLED DURING THE PERIOD OF VALIDITY OF THE LICENCE, THE SECURITY SHALL BE FORFEIT ...
6 AS REGARDS THE MARKET IN CEREALS, THIS PROVISION IS BASED UPON ARTICLE 16 OF REGULATION NO 19/62 OF THE COUNCIL, OF 4 APRIL 1962, ON THE GRADUAL ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKET IN CEREALS ( OJ NO 30, P . 933 ), ACCORDING TO WHICH 'ISSUE OF THE LICENCE SHALL BE CONDITIONAL UPON THE FURNISHING OF SECURITY GUARANTEEING THE OBLIGATION TO IMPORT DURING THE PERIOD OF VALIDITY OF THE LICENCE, WHICH SHALL BE FORFEIT IN THE EVENT OF THE IMPORT NOT BEING CARRIED OUT DURING THAT PERIOD '.
7 THE FIRST QUESTION ASKS IF THE CONCEPT OF IMPORTATION CONTAINED IN ARTICLE 7 OF REGULATION NO 102/64 IS TO BE INTERPRETED ACCORDING TO NATIONAL LAW AND, IF NOT, WHEN THE OBLIGATION TO IMPORT IS FULFILLED WHERE THE IMPORTER HAS DECLARED THE IMPORTED GOODS TO THE CUSTOMS FOR THE PURPOSE OF ITS TRANSPORTATION UNDER CUSTOMS BOND .
8 BOTH THE ISSUE OF IMPOT AND EXPORT LICENCES AND THE MAKING OF SUCH ISSUE CONDITIONAL UPON THE FURNISHING OF SECURITY CORRESPONDED TO THE COMPETENT AUTHORITIES' NEED TO BE IN POSSESSION OF PRECISE INFORMATION ON THE STATE OF THE MARKET AND PROJECTED INTRA-COMMUNITY IMPORTS AND EXPORTS .
9 WITH THIS IN MIND, THE PROVISIONS AT ISSUE MUST BE INTERPRETED AND APPLIED UNIFORMLY IN ALL THE MEMBER STATES SO AS TO AVOID CERTAIN PATTERNS OF TRADE BEING TREATED MORE FAVOURABLY THAN OTHERS AS A RESULT OF DIFFERING PRACTICES .
10 IN FACT THE DEVELOPMENT OF THE RULES IN RELATION TO AGRICULTURAL POLICY IS CHARACTERIZED BY AN EFFORT TO DEFINE AND ELUCIDATE THE MAJOR CONCEPTS, SUCH AS THAT OF IMPORTATION, WHICH ARE INTENDED TO FACILITATE THE REPLACEMENT OF DIFFERING CUSTOMS PRACTICES WITHIN THE MEMBER STATES BY A UNIFORM COMMUNITY PRACTICE .
11 IN THE MATTER AT ISSUE THIS DEVELOPMENT WAS CONCLUDED - PASSING THROUGH REGULATIONS NOS 120/67 ( OJ 1967, NO 117, P . 2269 ) AND 473/67 ( OJ 1967, NO 204/16 ), WHICH, IN THE FRAMEWORK OF A MORE DEFINITIVE COMMON ORGANIZATION OF THE MARKET, ABOLISHED THE ISSUING OF LICENCES FOR INTRA-COMMUNITY TRADE - IN THE PROVISIONS OF REGULATION NO 1373/70 OF THE COMMISSION OF 10 JULY 1970, ON COMMON DETAILED RULES FOR THE APPLICATION OF THE SYSTEM FOR IMPORT AND EXPORT LICENCES AND ADVANCE FIXING CERTIFICATES FOR AGRICULTURAL PRODUCTS SUBJECT TO A SINGLE PRICE SYSTEM .
12 AS REGARDS THE PERIOD OF VALIDITY OF THE LICENCES, ARTICLE 15 OF THAT REGULATION LAYS DOWN THAT 'THE OBLIGATION TO IMPORT SHALL BE CONSIDERED TO HAVE BEEN FULFILLED AND THE RIGHT TO IMPORT PURSUANT TO THE LICENCE OR CERTIFICATE SHALL BE CONSIDERED TO HAVE BEEN EXERCISED ON THE DAY WHEN THE CUSTOMS ( IMPORT ) FORMALITIES ... ARE COMPLETED '.
13 ALTHOUGH THE CONCLUSION MUST BE DRAWN FROM THE OBJECTIVES OF THE SYSTEM ADOPTED THAT ONLY AN IMPORT OPERATION WHICH RESULTS IN THE GOODS IN QUESTION BEING PUT INTO FREE CIRCULATION CORRESPONDS TO THE CONCEPT OF IMPORTATION CONTAINED IN ARTICLE 7 OF REGULATION NO 102/64 AND THE PROVISIONS WHICH HAVE REPLACED IT, THAT PROVISION DID NOT PRECISELY DEFINE THE MOMENT AT WHICH THE IMPORT OPERATION SHOULD BE CONSIDERED TO HAVE BEEN ACCOMPLISHED AND LEGALLY ESTABLISHED .
14 THE MERE FACT THAT THE GOODS IN QUESTION HAVE DULY CROSSED THE FRONTIER OF THE MEMBER STATE OF DESTINATION CANNOT BE SUFFICIENT, SINCE IN THIS CASE THE POSSIBILITY OF RE-EXPORTATION REMAINS .
15 FOR SIMILAR REASONS THE IMPORTER'S DECLARATION TO THE CUSTOMS AUTHORITIES THAT THE GOODS ARE INTENDED TO BE IMPORTED AND PUT INTO FREE CIRCULATION CANNOT FULFIL THE REQUIREMENTS OF THE SAID ARTICLE .
16 IN FACT ANY INTERPRETATION OF ARTICLE 7 WHICH WOULD REVERSE THE BURDEN OF PROOF, BY REQUIRING THE COMPETENT AUTHORITY TO ESTABLISH THAT THE GOODS HAD NOT BEEN PUT INTO FREE CIRCULATION AS HAD APPARENTLY BEEN INTENDED, WOULD BE INADMISSIBLE AS BEING PREJUDICIAL TO THE EFFICIENCY OF THE SYSTEM IN QUESTION .
17 ON THE OTHER HAND, HAVING REGARD TO THE LACK OF PRECISION OF THAT PROVISION, THE VIEW COULD BE HELD THAT THE REQUIREMENTS OF ARTICLE 7 WERE FULFILLED WHEN THE IMPORTER HAD PRODUCED DOCUMENTS ESTABLISHING, ON THE ONE HAND, THAT THE RELEVANT GOODS HAD BEEN SUBMITTED TO THE CUSTOMS AUTHORITIES OF THE IMPORTING COUNTRY DURING THE PERIOD OF VALIDITY OF THE LICENCE AND PLACED BY THOSE AUTHORITIES UNDER CUSTOMS BOND AND, ON THE OTHER HAND, THAT THE GOODS HAD SUBSEQUENTLY BEEN GIVEN CUSTOMS CLEARANCE AND BEEN PUT INTO FREE CIRCULATION .
18 IT MUST THEREFORE BE CONCLUDED, IN THE ABSENCE OF ANY MORE PRECISE REQUIREMENTS ON THIS POINT, THAT ARTICLE 7 OF REGULATION NO 102/64 DOES NOT PREVENT AN IMPORTATION WITHIN THE MEANING OF THAT ARTICLE BEING DEFINED AS THE CROSSING OF THE FRONTIER OF THE IMPORTING COUNTRY, DULY RECORDED BY THE COMPETENT CUSTOMS AUTHORITIES, PROVIDED THAT IT IS ALSO ESTABLISHED THAT THE GOODS WERE SUBSEQUENTLY GIVEN CUSTOMS CLEARANCE AND PUT INTO FREE CIRCULATION . AS TO THE SECOND QUESTION
19 ARTICLE 8 OF REGULATION NO 102/64 LAYS DOWN THAT 'WHERE THE IMPORT OR EXPORT CANNOT BE EFFECTED DURING THE PERIOD OF VALIDITY OF THE LICENCE OWING TO CIRCUMSTANCES TO BE REGARDED AS OF FORCE MAJEURE, AND THERE IS A REQUEST THAT THESE CIRCUMSTANCES BE TAKEN INTO CONSIDERATION ...', THE OBLIGATION TO IMPORT OR EXPORT IS CANCELLED OR EXTENDED IN THE CASES ENUMERATED IN PARAGRAPHS ( 2 ) AND ( 3 ) OF THAT ARTICLE .
20 THE SECOND QUESTION ASKS, FIRSTLY, IF THE NATIONAL COURT IS EMPOWERED TO RECOGNIZE THE EXISTENCE OF A CASE OF FORCE MAJEURE IN CIRCUMSTANCES DIFFERENT FROM THOSE LISTED IN ARTICLE 8 ( 2 ) OF REGULATION NO 102/64 OR FROM THOSE RECOGNIZED BY THE MEMBER STATES PURSUANT TO ARTICLE 8 ( 3 ).
21 THE CONCEPT OF FORCE MAJEURE EMPLOYED IN THAT REGULATION MUST TAKE ACCOUNT OF THE SPECIAL NATURE OF THE RELATIONSHIPS AT PUBLIC LAW EXISTING BETWEEN COMMERCIAL OPERATORS AND THE NATIONAL ADMINISTRATION, AS WELL AS OF THE OBJECTIVES OF THE RULES .
22 IT IS APPARENT FROM THESE OBJECTIVES, AS WELL AS FROM THE ACTUAL PROVISIONS OF THE REGULATIONS IN QUESTION, THAT THE CONCEPT OF FORCE MAJEURE IS NOT LIMITED TO CASES OF ABSOLUTE IMPOSSIBILITY, BUT MUST BE UNDERSTOOD IN THE SENSE OF UNUSUAL CIRCUMSTANCES, BEYOND THE IMPORTER'S CONTROL AND WHICH HAVE ARISEN DESPITE THE FACT THAT THE TITULAR HOLDER OF THE LICENCE HAS TAKEN ALL THE PRECAUTIONS WHICH COULD REASONABLY BE EXPECTED OF A PRUDENT AND DILIGENT TRADER .
23 WITHIN THE LIMITS OF THEIR OWN COMPETENCE, NATIONAL COURTS CAN THEREFORE RECOGNIZE THE EXISTENCE OF A CASE OF FORCE MAJEURE NOT ONLY WHERE THE SITUATION IN QUESTION IS COVERED BY THE ENUMERATION IN PARAGRAPH ( 2 ) OR WHERE IT HAS BEEN RCOGNIZED BY THE MEMBER STATES PURSUANT TO PARAGRAPH ( 3 ), BUT ALSO IN OTHER CASES .
24 THE SECOND QUESTION FURTHER ASKS WHETHER REQUESTS FOR THE CONSIDERATION OF CIRCUMSTANCES OF FORCE MAJEURE MUST BE SUBMITTED WITHIN A GIVEN PERIOD AND, IF SO, WITHIN WHAT PERIOD .
25 ALTHOUGH, UNLIKE SUBSEQUENT REGULATIONS, ARTICLE 8 DOES NOT LAY DOWN A SPECIFIC PERIOD WITHIN WHICH A CASE OF FORCE MAJEURE MUST BE INVOKED, IT IS CLEAR BOTH FROM THE WORDING OF THE ARTICLE AND FROM THE GENERAL SCHEME OF THE SYSTEM INITIATED BY THE REGULATION THAT THE REQUEST MUST BE MADE AS SOON AS POSSIBLE, PREFERABLY DURING THE PERIOD OF VALIDITY OF THE LICENCE IN QUESTION .
26 HOWEVER, THE CASE IN POINT WHICH HAS GIVEN RISE TO THIS REFERENCE CLEARLY SHOWS THAT IT WOULD BE IMPOSSIBLE TO ESTABLISH ANY STRICT AND ABSOLUTE RULE IN THIS MATTER, IN VIEW OF THE FACT THAT A CASE OF FORCE MAJEURE MIGHT POSSIBLY BE INVOKED MERELY AS A SUBSIDIARY POINT, IF THE PARTY CONCERNED CONSIDERS THAT IN THE CIRCUMSTANCES THE CONDITIONS CONTAINED IN THE REGULATION HAVE BEEN FULFILLED .
27 IT MUST BE CONCLUDED THAT ALTHOUGH ARTICLE 8 OF REGULATION NO 102/64 DOES NOT LAY DOWN ANY SPECIFIED PERIOD FOR THE INTRODUCTION OF A REQUEST FOR THE CONSIDERATION OF CIRCUMSTANCES OF FORCE MAJEURE, IT NEVERTHELESS REQUIRES THE IMPORTERS OR EXPORTERS CONCERNED TO SUBSTANTIATE THEIR CLAIMS IN THE FULLEST POSSIBLE MANNER .