JUDGMENT OF 15. 5. 1974 — CASE 186/73 FLEISCHKONTOR v EINFUHR-UND VORRATSSTELLE SCHLACHTVIEH

In Case 186/73 Reference to the Court under Article 177 of the EEC Treaty by the Verwaltungsgericht (Administrative Court) of Frankfurt-on-Main, for a preliminary ruling in the action pending before that Court between

THE COURT composed of: R. Lecourt, President, A. M. Donner and M. Sørensen (Rapporteur), Presidents of Chambers, R. Monaco, J. Mertens de Wilmars, P. Pescatore, H. Kutscher, C. Ó Dálaigh and A. J. Mackenzie Stuart, Judges, Advocate-General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

I — Facts and procedure

II — Written observations submitted before the Court

A — Observations by the Firm of Norddeutsches Vieh- und Fleiscb-kontor

B — Observations of the Commission

Law

Costs

I —. Facts and procedure

1. On 21 April 1971, the defendant in the main action issued the plaintiff in the main action with an import licence expiring on 21 July 1971. The licence authorized and obliged the applicant to import 400000 kg of beef and veal within the stated time-limit. A bank offered itself as security for a sum of 146400 DM to guarantee importation.

2. The applicant, pointing out that, as the goods had been submitted to the customs authorities before expiry of the time-limit contained in the licence, it had fulfilled its obligation to import under the terms of Regulation No 1373/70, brought an action against the Einfuhr- und Vorratsstelle before the Verwal-tungsgericht (Administrative Court) of Frankfurt-on-Main.

3. The Verwaltungsgericht stayed proceedings and referred to the Court of Justice under Article 177 of the EEC Treaty for a preliminary ruling on the following question:

4. The Order of the Verwaltungsgericht of 20 November 1973 was registered at the Court on 5 December 1973.

II —. Written observations submitted before the Court

A —. Observations by the Firm of Norddeutsches Vieh- und Fleiscb-kontor

1. The company points out that the refusal of the application for customs clearance was based exclusively on the rules relating to veterinary inspection. Compared with those of other Member States, these rules imposed the most stringent conditions on importation of fresh meat from third countries. The company emphasizes that it cannot, at present, be said that all importers in the Community can put fresh meat into free circulation on the same conditions in every Member State.

2. The company explains that the Verwaltungsgericht wants to know whether, within the meaning of Article 15 (5) (a), the word acceptance must be taken to mean a physical action (eine Tathandlung) or some sort of legal act in the sense of a binding approval of the customs application by the customs office putting the product into free circulation.

3. (a) The company maintains that, even if the statement of intention within the meaning of Article 15 (5) (a) were required to be made in due form, physical receipt of a customs application in due form would suffice. It takes the view that, if this interpretation is upheld, the Court should, in its decision, also lay down the conditions to be satisfied before the customs application is considered to be in order. In the company s opinion, it is inconceivable that the question whether the application had been duly made should, as far as carrying out the obligation to import is concerned, be answered in terms of national law. The company also refers to the Judgment of the Court of 6 June 1972 (Schlüter/Hauptzollamt Hamburg (Rec. 1972, p. 307)) from which it believes the conclusion can be drawn that the customs application is in due form so long as it is lodged in writing and contains the necessary information to make the customs office aware that it concerns an application for customs clearance of the product covered by the licence. There are no other requirements under Community law. The company states that, as Community law does not make provision for any quantitative restrictions to prevent risk to life or health, it is not possible on the basis of Community law to make the right and the obligation to import which are the legal outcome of an import licence subject to compliance with such quantitative restrictions. Nor, consequently, can the fulfilment of the obligation to import be affected by the fact that a national quantitative restriction, which is not prohibited under Article 36 of the EEC Treaty, makes the importation impossible. (b) If the Court has to interpret Article 15 (5) (a) as meaning that the product may not be challenged by the customs office, the company asks the Court to declare that careful consideration must be given to the question whether in this case the obligation to import has been extinguished by force majeure. In the company s view, there must be a presumption of force majeure in circumstances where, as in the present case, the product meets the conditions laid down for the licence and the other conditions required under Community law.

B —. Observations of the Commission

1. The Commission maintains that, in interpreting the provisions of Regulation No 1373/70, account must be taken, first, of the basic rules laid down in Regulations on the organization of the market — the present Regulation cannot change the basic concepts of importation and exportation — and, second, of the general principles of the law on customs procedure.

2. The Commission bases its case on the contention that neither of the two alternatives advanced by the Verwal-tungsgericht accord with the objects of Article 15 (5) (a) any more than they do with the general principles of the law on customs procedure. The Commission takes the view that, in principle, it would be better to choose the first alternative but without the consequences which the Verwaltungsgericht regards as arising from it. The concept of acceptance within the meaning of Article 15 (5) (a) must be given its formal meaning i.e., that receipt of the customs application determines when the obligation arising from the licence is fulfilled. This does not mean, however, that the obligation imposed by the licence has been fulfilled regardless of the fact that the procedure has not been concluded and that consequently, the goods have not actually been imported.

3. Despite the arguments advanced by the Verwaltungsgericht and by the company, the Commission maintains that its interpretation would ensure that the various national rules laying down the way in which goods are cleared through customs would not, for nationals operating in the market, produce different answers according to which Member State was importing.

4. To ascertain whether its contention fits in with the general pattern of the system of customs procedure, the Commission tries to identify the principles which are used to establish the date to be used as a point of reference for other constituent elements of customs control. It goes into the question which dates are, under Community legislation, to be used in establishing customs dues, the levy, the export refund and value for customs purposes. It draws special attention to a proposal for a Council Directive on the harmonization of procedures for the release of goods for free circulation (OJ C 14 of 15 February 1974).

5. Finally, the Commission goes into the concept of receipt of the customs declaration. It maintains that this does not mean mere physical receipt of the declaration by the customs official. Use of the term acceptance of the document is intended to indicate a process which extends beyond mere physical receipt. Acceptance of the document by which the declarant states his intention implies that the customs authorities acknowledge the application to be in order, i.e., indicate by an act of acceptance that, as far as they are concerned, the conditions laid down for the actual lodging of the application have been satisfied. In practice, this acceptance is indicated by adding the acceptance date (by means of a stamp). This is clearly set out in Articles 7 and 8 of the proposal for a Council Directive, mentioned above, which also indicates that acceptance takes place in the form prescribed in each Member State (Article 8 (1)). Again, in no country do the existing provisions of the law governing customs procedure treat mere physical receipt as sufficient. In any case, all the formalities prescribed for lodging the declaration must have been completed: the application must be correctly filled in; it must be lodged with a competent customs office; it must be accompanied by all the requisite documents for importation. Moreover, once the application has been lodged, there is nothing to prevent consideration being given to the question whether there are prohibitions or restrictions against importation of the goods listed on the declaration and, if there are, to prevent the application being refused on that ground alone.

1. By order of 20 November 1973, received at the Court on 5 December, the Verwaltungsgericht of Frankfurt-on-Main referred to the Court under Article 177 of the EEC Treaty for a preliminary ruling on the interpretation of the word accept as it appears in Article 15 (5) (a) of Regulation No 1373/70 of the EEC Commission of 10 July 1970 (OJ L 158, p. 1) on common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products subject to a single price system.

2. The question arises out of a dispute between an importer of frozen beef and veal and the German authorities over release of the security given to guarantee the importation authorized by an import licence valid for a given period.

3. Article 15 (2) of Regulation No 1373/70 provides that release of the security shall be subject to production of proof as regards imports, of completion of the customs formalities referred to in (a) of the second subparagraph of Article 8 (2).

4. The system of lodging security is designed to ensure that imports or exports for which licences are applied for are effected so that both the Community and the Member States may be certain of knowing exactly what transactions are intended.

5. The aim of the provisions of Article 15 (1) and 15 (5) is to define the date from which the titular holder of an import licence shall be deemed to have fulfilled his obligation to make use of the licence during the period of its validity and thus to have satisfied the essential condition for release of the security.

6. It should be borne in mind, however, that the public interest, which requires as accurate a forecast as possible of import trends in each Member State and justifies the deposit of security against the grant of authorization to import, must be reconciled with the necessity of not hampering trade between States by too rigid obligations, a necessity which also derives from the public interest.

7. It is apparent from these objectives, as well as from the actual provisions of the Regulations in question, that the concept of fore majeure is not confined to that of absolute impossibility but must be extended to include abnormal circumstances, outside the control of the importer, and which have arisen in spite of 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.

8. The costs incurred by the Commission, which submitted observations to the Court, are not recoverable.

9. As these proceedings are, in so far as the parties to the main action are concerned, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds, THE COURT in answer to the question referred to it by the Verwaltungsgericht of Frankfurt-on-Main by order of that court dated 20 November 1973 hereby rules:

1 For the purposes of determining the date on which the obligation to import pursuant to the licence is deemed to have been fulfilled, within the meaning of Article 15 (1) (a) of Regulation No 1373/70, acceptance by the customs authorities, within the meaning of Article 15 (5) (a), of the document by which the declarant states his intention to put the goods into free circulation does not require that the customs procedure should be finally concluded in favour of the declarant.

2 Before Article 15 (1) can apply, it is essential that the goods which, pursuant to the provisions of the second subparagraph of Article 8 (2), have been attributed on the licence, shall have, in fact, been put into free circulation.