JUDGMENT OF 20. 2. 1975 — CASE 64/74 REICH v HAUPTZOLLAMT LANDAU

In Case 64/74, Reference to the Court under Article 177 of the EEC Treaty by the Finanzgericht, Rheinland-Pfalz, for a preliminary ruling in the action pending before that court between

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

gives the following

JUDGMENT

Facts

I — Facts and written procedure

II — Written observations submitted to the Court in Accordance with Article 20 of the Protocol on the Statute of the Court

A — Observations submitted by Firma Adolf Reich

B — Observations submitted by the Commission of the European Communities

III — Oral procedure

Law

Costs

I —. Facts and written procedure

1. On 3 October 1963, Firma Adolf Reich imported into the Federal Republic of Germany two consignments of fodder maize from France and cleared them through the customs for free circulation. It submitted on this occasion two import licences dated 5 and 13 September 1963, on which the Einfuhr- und Vorratsstelle fur Getreide und Futtermittel (EVSE) had fixed in advance the rate of levy applicable to imports of maize during September. The licences further stated that in respect of imports during October to December 1963, the daily rate of levy for the date of importation would apply. On 3 October 1963, upon clearing the goods for import, the customs office fixed the rate of levy on a provisional basis. Once it had been notified of the final rate, the office demanded, by way of corrective assessment dated 6 December 1963, the final amount applicable. Firma Adolf Reich objected against this assessment to the head office at Landau. When this objection was rejected, it appealed to the Finanzgericht Rheinland-Pfalz.

2. An office copy of the order referring the matter reached the Court of Justice on 6 September 1974.

II —. Written observations submitted to the Court in Accordance with Article 20 of the Protocol on the Statute of the Court

A —. Observations submitted by Firma Adolf Reich

B —. Observations submitted by the Commission of the European Communities

1. The Commission recalls that at the time of the imports in question common prices within the Community did not exist, so that Regulation No 19 of the Council of 30 April 1962 (OJ 1962, No 30) in Article 1 introduced a levy to apply also in the relationships between Member States. This levy, equal to the difference between the threshold price and the free-at-frontier price of the importing State, was under Article 17 (1) that in force on the date of importation.

2. Besides, in order to be informed on the real movement of trade within the Community, as well as with third countries, the Commission provided by Article 7 of Regulation No 87/62 that the issue of import or export licences shall be subject to the giving of security which shall be forfeit in whole or in part where the obligation to import or to export has not been carried out. Article 8 of this Regulation provides in its first paragraph that:

3. The possibility provided by the aforementioned Regulations of fixing the levy in advance was subsequently, by Regulation No 130/62 of the Council of 23 October 1962 (OJ 1962, No 106), which as from 1 July 1963 was in this field replaced by Regulation No 31/63 of the Council of 2 April 1963 (OJ 1963, No 59), extended to intra-Community trade; Article 2 (1) and (2) of the latter Regulation provides that:

4. Bearing all this in mind, the Commission's attitude on the question raised is that the problem raised by the present case cannot be decided on the basis of provisions dealing with trade with third countries. Those provisions relate to situations other than that which is involved here. Article 9 of Regulation No 87/62, when considered in conjunction with Article 7 of Regulation No 54/62, involves a case where for reasons of force majeure the importer was unable to adhere to the period laid down during the currency of the licence, a crucial factor in that case. In the present case, the importations in question in fact took place at a time when the right to import subject to a levy fixed in advance had expired. Admittedly, the import licence was valid until December 1963. But one must not confuse two distinct aspects which one finds in any import licence: on the one hand, the right and the obligation to import during a prescribed period, and on the other hand the right during a specified period to a levy fixed in advance. The two rights and, it follows, the two aspects of the licence, normally have the same duration, except in certain cases — such as the present one — where the period of entitlement to a levy fixed in advance was limited to 30 September 1963.

III —. Oral procedure

1. By order dated 29 August 1974, filed at the Court of Justice on 6 September 1974, the Finanzgericht Rheinland-Pfalz referred under Article 177 of the EEC Treaty a question on the interpretation of certain provisions of Regulation No 54/62 of the Council of 30 June 1962 (OJ 1962, No 54) and of Regulation No 87/62 of the Commission of 25 July 1962 (OJ 1962, No 66).

2. Under the general rule in Article 17 (1) of Regulation No 19/62 of the Council of 4 April 1962 (OJ 1962, p. 933) the amount of the levy, within the Community as well as vis-à-vis third countries, is that applicable on the date of importation.

3. It follows from the sixth and seventh recitals of Regulation No 87/62 that to make, in respect of imports of cereals from third countries, special regulations that provide for the case of force majeure, is justified by reasons of equity.

4. While the concept of force majeure in a case such as the present implies that the failure to observe a time-limit provided for in a licence does not involve the loss of the entitlement to a levy fixed in advance, this is nevertheless on condition that the delay in importation is due to exceptional circumstances, and is in particular not due to negligence of which a prudent importer would not be guilty, either when entering into a contract to buy or to carry, or in asserting his rights against the carrier.

5. It must therefore be concluded that the levy fixed in advance under Article 2 (1) and (2) of Regulation No 31/63 of the Council in respect of the importation, even if it is not effected during the month indicated in the importation of maize from a Member State continues to apply to such application for the licence, provided the delay which thus occurred is not due to the conduct of the importer or to circumstances that can normally be foreseen, but to force majeure, as referred to in Article 8 (3) of Regulation No 87/62.

6. The costs incurred by the Commission of the European Communities which has submitted observations to the Court, are not recoverable, and 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, costs are a matter for that court.

On those grounds, THE COURT in answer to the question referred to it by the Finanzgericht Rheinland-Pfalz by order dated 29 August 1974, hereby rules: