Opinion of Mr advocate-general Gand

Mr President,

Members of the Court,

Article 11 of Regulation No 13/64 of the Council on the progressive establishment of a common organization of the market in milk subjects the issue by a Member State of the licence necessary for any importation to a deposit guaranteeing the obligation to import during the term of validity of the licence. The purpose of this system, which is found generally in the common organization of the markets is to give as precise a picture as possible of the imports to be expected during a given period, as well as of the probable development of the market. It must enable the customary protective measures to be taken in time if serious disturbances occur. However, in order to be effective, the quantities stated in the licence must in fact be imported and the deposit is intended to ensure that this transaction is properly carried out. The deposit is forfeit if the importation is not effected within the time-limit, except in cases of force majeure which are to be laid down in a regulation of the Commission.

This is the subject of Article 6 of Regulation No 136/64, the outline of which is as follows:

These are the various provisions which the Verwaltungsgericht, Frankfurt, is asking you to interpret for the purposes of an action before it between an importer and the Einfuhr- und Vorratsstelle fur Fette (Office for the importation and storage of fats and oils) which arose in the following circumstances: the deposit lodged by the Schwarzwaldmilch undertaking for the issue of an import licence for 100000 kg of skimmed milk powder from France was declared forfeit on the ground that the importation had not been effected before the term of validity of the licence expired on 28 February 1967. This company maintained that it had ordered the goods in good time from the Laiterie Centrale de Strasbourg, which had only informed it on 20 February 1967 that it was unable to effect delivery by reason of a serious engine failure in a machine in its production plant; at that date it was no longer possible for the importer to obtain the goods in France on acceptable terms. Since the failure to fulfil its obligation was not the result of any fault on the part of the importing company, it contended that the said failure had to be considered as a case of force majeure within the meaning of Article 6(2). This argument was contested by the Einfuhr- und Vorratsstelle which refused to acknowledge the existence of a causal connexion between the facts alleged and the failure to import.

The Verwaltungsgericht considered that in the circumstances it was unable to choose between these two points of view. It therefore submits five questions on the inter pretation of Article 6 of Regulation No 136/64, some of which may appear extremely difficult.

A —. It appears that the first question may be resolved without difficulty.

B —. The Verwaltungsgericht then refers to paragraph (4) of the same Article and asks you whether it empowers the courts of the Member States to recognize as cases of force majeure circumstances other than those referred to in paragraph (3).

2. On what criteria must this definition be based?

C —. Aswe shall see, the other three questions call for consideration together. First, the German court asks you how the concept of force majeure appearing in Article 6(2) to (4) of Regulation No 136/64 is to be interpreted, secondly, whether this Article requires a direct causal connexion to exist between the circumstances relied on as a case of force majeure and the failure to effect the importation and, finally, whether in view of these circumstances, the fact that the performance of the transaction involves the importer in considerable economic difficulties and can only take place at excessive loss is sufficient to make Article 6(2) applicable.

1. The Commission rightly points out that these questions only fall within your jurisdiction if the concept of force majeure, as provided for in the regulation, constitutes an independent concept of Community law which must be interpreted and applied uniformly throughout the six Member States; it is really only in this event that Article 177 of the Treaty gives you jurisdiction to interpret this concept. To put it more precisely, if this were not so, your role would be limited to confirming, without going any further, that the concept belongs exclusively to national law, and to leaving the German court to resolve the questions referred according to its own legal system.

2. On what criteria must this definition be based?

The Commission starts with the assumption that this concept, borrowed from the legal systems of the Member States, could not have, in Community law, any significance other than that contained in those systems. Its definition must therefore be based on principles which can be borrowed as common principles from these various legal systems, in view of the fact that it is only the scope of application of the concept of force majeure which is generally fixed by the national legislature, while the rules by which to interpret and give effect to the concept are worked out by practitioners.

On this basis the Commission believes it possible to contend that the national legal systems agree in generally recognizing as force majeure only cases in which the impossibility of performance arises from an extraordinary, unforeseen event, outside the control of the person who is under the obligation, an event, not brought about by his own default, which he could neither foresee nor avoid. While accepting that these principles have been the subject of precise interpretation according to the concepts peculiar to the various legal systems, the Commission considers it necessary to begin with these common points in order to trace out the scope of Article 6 having regard to the purpose of Regulation No 136/64. I must point out here that, in support of its theory concerning the identical nature of the concept of force majeure in the legal systems of the Member States, the-Commission refers to both academic legal opinion and to case-law in the six States.

However, in my opinion, this argument gives cause for serious reservations.

In the first place, this is not a case in which the provision obliges you — as in Article 215 of the Treaty — to refer to the general principles common to the laws of the Member States. Secondly, while admitting that I have not undertaken an exhaustive study of the comparative law of force majeure in the six States of the Community, it seems to me at present impossible to find any really common accord on this concept; if there are no differences on fundamental principles there certainly are differences in the modes of its application from one State to another and even within the same country according to the branch of law to which it is applied.

To take only a few examples, the court which referred the questions to you has already pointed out that the definitions are different in the French and the German legal systems. In the former the concept of force majeure is frequently given an objective interpretation and it does not exist unless the act or event which has caused the damage lies outside the sphere of activity of the undertaking. On the other hand, a subjective criterion is applied in other areas, which looks rather at the person concerned and the actual position in which he found himself, without going into the question whether the event did or did not lie within his sphere of activity (Coing, in Staudinger's Kommentar zum Burgerlichen Gesetzbuch, Vol. I, pp. 1134 to 1137). As regards French law, to remain in the field of contract, although the same concept applies in both civil and administrative law and although force majeure always results from events of an uncontrollable and unforeseeable nature which are unconnected with the activities of the person under the obligation, the administrative courts in applying it are generally more reluctant to admit that these conditions have been fulfilled (Repertoire de droit administratif, V. Force majeure— de Laubadère — Traité des contrats administratifs).

Finally, whilst 1 do not wish to go into the details of the arguments by which the Commission replies to the various points raised by the German court, its observations appear at times to consider the concept of force majeure with a certain flexibility within the framework of the facts of the case. This is undoubtedly because, as the Commission itself states, the general principles which it quotes as authority must be applied in accordance with the aim pursued by import licences in general and by the deposit in particular. But is not this to deprive a concept which would logically be valid throughout Community law of a large part of its significance?

i. Indeed, in my opinion, in order to interpret the concept of force majeure used in Article 6(2) of Regulation No 136/64 we must resort less to general principles than to the spirit of this regulation, to the reasons justifying the requirement of import licenses and deposits and to the balance which must be maintained between the public interest and the interests of the importers. Perhaps in this way we shall arrive at solutions which are very close to those put forward by the Commission but which will be pragmatic in character and limited to the regulation in question.

4. First, the circumstances which have prevented the import's being made must not of course be attributable to the importer himself. As we know, the applicant in the main action has contended that the refund of the security could only be conditional on there being no default on the part of the importer and it has based this argument on the German constitutional provisions relating to the imposition of penalties, but its argument is invalid as the rules invoked only relate in German law to penalties and sanctions im posed for breaches of the criminal law.

Finally I consider that the decision as to costs incurred before this Court is a matter for the Verwaltungsgericht, Frankfurt-am-Main.

1 Translated from the French.