JUDGMENT OF 11. 7. 1968 — CASE 4/68 SCHWARZWALDMILCH v EINFUHR- UND VORRATSSTELLE

In Case 4/68 Reference to the Court under Article 177 of the EEC Treaty by the Verwaltungsgericht (Administrative Court), Frankfurt-am-Main, Third Chamber, for a preliminary ruling in the action pending before that court between

THE COURT composed of: R. Lecourt, President, A. M. Donner and W. Strauß, Presidents of Chambers, A. Trabucchi (Rapporteur), R. Monaco, J. Mertens de Wilmars and P. Pescatore, Judges, Advocate-General: J. Gand Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts

II — Observations submitted under Article 20 of the Statute of the Court

A — Admissibility

B — The questions submitted to the Court

I. Generally

II. Question No 1: The concept of engine failure mentioned in Article 6(3) of Regulation No 136/64

III. Question No 2: The consideration of other cases of force majeure

IV. Question No 3: The interpretation of the concept of force majeure

V. Question No 4: The need for a direct causal connexion between the force majeure and the failure to effect the importation

VI. Question No 5: The inability to import

Grounds of judgment

On Question No 1

Questions Nos 3, 4 and 5

Question No 2

Costs

I —. Facts

1. The deposit shall be forfeit in its entirety where the obligation to import has not been fulfilled during the term of validity of the licence referred to in Article 2(1). The deposit shall be partially forfeit if the quantity imported is more than 5 % less than the quantity shown on the licence. The amount of deposit to be forfeited shall be calculated on the difference between the quantity shown on the licence less 5 % and the quantity actually imported.

2. Where importation cannot be effected during the term of validity of the licence owing to force majeure, the Member State shall decide that the obligation to import is cancelled and that the deposit is not forfeit. On application by the party concerned, however, the Member State may extend the term of validity of the licence for such period as it considers necessary by reason of the circumstance invoked.

3. Cases of force majeure within the meaning of paragraph (2) may result from the following circumstances:

4. If Member States recognize as cases of force majeure within the meaning of paragraph (2) cases resulting from circumstances other than those set out in the foregoing paragraph, they shall immediately notify the Commission there- of.

1. Does the concept of engine failure (Article 6(3)(e) of Regulation No 136/64/EEC) also cover failures occurring in dairy machinery?

2. Does Article 6(4) of Regulation No 136/64/EEC empower the courts of Member States to recognize as cases of force majeure circumstances other than those referred to in paragraph (3) of this same regulation?

3. What interpretation must be given to the concept of force majeure as defined in Article 6(2) to (4) of Regulation No 136/64/EEC?

4. Does Article 6(2) of Regulation No 136/64/EEC require the existence of a direct causal connexion between the circumstance invoked as a case of force majeure and the failure to effect the importation?

5. Is it sufficient for the application of Article 6(2) of Regulation No 136/64/EEC that, as a result of force majeure, importation would involve the importer in considerable economic difficulties and could only take place at excessive economic sacrifice?

II —. Observations submitted under Article 20 of the Statute of the Court

A —. Admissibility

B —. The questions submitted to the Court

I. Generally

II. Question No 1: The concept of engine failure mentioned in Article 6(3) of Regulation No 136/64

III. Question No 2: The consideration of other cases of force majeure

IV. Question No 3: The interpretation of the concept of force majeure

(a). The Commission observes that in order to settle the question whether the interpretation of the concept of force majeure shall follow the provisions of Community law, or whether national law alone must be regarded as applicable, it must be remembered that Community law constitutes an independent legal system vis-à-vis the national law of Member States. It follows, therefore, that the provisions of Community law must be applied uniformly throughout the Community. As the application of the national law alone to the interpretation of concepts of Community law is contrary to this requirement of uniformity, it can only constitute an exceptional procedure and must always be clear from the text.

(b). As regards the question of the criteria by which this concept must be precisely defined the Commission observes that, in spite of their differences, national laws are generally at one in admitting as cases of force majeure only those in which impossibility of performance of an obligation must be attributed to an exceptional and unforeseen event, for which the person under the obligation is not responsible, that is to say, an event which he has not brought about by his own default and which he could neither have foreseen nor avoided.

V. Question No 4: The need for a direct causal connexion between the force majeure and the failure to effect the importation

VI. Question No 5: The inability to import

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the Commission of the European Communities and the parties to the main action ; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Article 177; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community, especially Article 20; Having regard to Regulations Nos 13/64/EEC on the progressive establishment of a common organization of the market in milk and dairy products, and 136/64/EEC on the determination of the conditions for implementation to apply to the import licences referred to in Regulation No 13/64/EEC; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT in answer to the questions referred to it by the Verwaltungsgericht, Frankfurt-am-Main (Third Chamber), by order of that court dated 17 January 1968, hereby rules:

1 The concept of engine failure referred to in Article 6(3) of Regulation No 136/64/EEC does not include failures which occur in machinery intended for the production of goods;

2 The courts of Member States may recognize as cases of force majeure within the meaning of Article 6(2) of Regulation No 136/64/EEC circumstances other than those referred to in paragraph (3) of that Article;

3 In order to rely on force majeure within the meaning of this regulation, the importer must show that he was unable to effect the importation within the period laid down as a result of unusual circumstances outside his control, the consequences of which, in spite of the exercise of all due care on his part, he could not have avoided except at the cost of excessive sacrifice;