C-68/77

JUDGMENT OF 14. 2. 1978 — CASE 68/77 IFG v COMMISSION

CELEX: 61977CJ0068
Datum: 1978-02-14
Källa: eur-lex.europa.eu

THE COURT composed of: H. Kutscher, President, M. Sørensen and G. Bosco, Presidents of Chambers, A. M. Donner, P. Pescatore, A. O'Keeffe and A. Touffait, Judges, Advocate General: F. Capotorti Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and issues

I — Facts and procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

A — Admissibility of the action

B — Substance

IV — Oral procedure

Decision

Costs

I —. Facts and procedure

1. On 14 May 1975 the applicant concluded with Prodexport, the Romanian State corporation for foreign trade, a contraa for the delivery of 6000 tonnes of seasoned bovine meat preparations coming under subheading 16.02 B III (b) I of the Common Customs Tariff (CCT), 3000 tonnes of which were to be delivered during June, July and August 1975 and the remaining 3000 tonnes during the last quarter of 1975 and the first quarter of 1976.

2. Article 21 of Regulation (EEC) No 805/68 of the Council of 27 June 1968 on the common organization of the market in beef and veal (Official Journal, English Special Edition 1968 (I), p. 187) provides inter alia as follows:

3. As a result of floods in Romania in June 1975 the machinery installed for the performance of the contract which the applicant had concluded with Prodexport suffered serious damage. In consequence, the applicant was able to import before the entry into force of Regulation No 2033/75 on 1 September 1975 only about 1100 tonnes out of the 3000 tonnes of meat, the delivery of which was due to have taken place during June, July and August 1975. The Prodexport company nevertheless insisted that the contraa be performed.

4. Regulation (EEC) No 193/75 of the Commission of 17 January 1975 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products (Official Journal L 25 of 31 January 1975, p. 10) contains a provision relating to force majeure. This is Article 20, which reads as follows:

5. The present action is brought in relation to the rejection of the request described under 3 above.

II —. Conclusions of the parties

1. Declare that the Commission is bound by way of damages to guarantee performance of the applicant's contraa of 14 May 1975;

2. In the alternative, order the Commission to pay the applicant by way of damages the profit which it failed to make through the non-performance of the contract concluded on 14 May 1975.

3. Order the Commission to pay the costs.

1. Dismiss the main application under 1 as inadmissible;

2. Dismiss the alternative application under 2 as in part inadmissible and as wholly unfounded;

3. Order the applicant to pay the costs.

III —. Submissions and arguments of the parties

A —. Admissibility of the action

1. The applicant contends in its application that the latter is admissible under Article 178 and the second paragraph of Article 215 of the Treaty and also in so far as the applicant claims that the Commission did not ensure that the competent German authority applied the principles of force majeure. The action was not one to be brought against the Federal Republic of Germany. The complaint is concerned with the question whether the Einfuhr- und Vorratsstelle was, in the circumstances of the case, competent to apply Article 20 of Regulation (EEC) No 193/75. This question was answered in the negative not only by the German authority but in particular by the Commission, which is itself competent to decide whether a case of force majeure exists. The action for damages must therefore be brought exclusively against the Commission. Thus the loss was due to the Community's failure to act: see the judgments of the Court of 26 November 1975 in Case 99/74, Grands Moulins v Commission [1975] ECR 1531, of 21 May 1976 in Case 26/74, Roquette v Commission [1976] ECR 677 and of 27 January 1976 in Case 46/75, IBC v Commission [1976] ECR 65.

2. The Commission states that the application for a declaration that it is bound by way of damages to guarantee performance of the applicant's contraa of 14 May 1975 is inadmissible. The damages claimed are not cash damages but compensation in kind.

3. The applicant replies by emphasizing that it has demanded compensation for damage pursuant to the second paragraph of Article 215 of the Treaty. The enforcement of its right to compensation means that the Commission must inform the competent authorities in the Federal Republic of Germany that the applicant is entided to impon the goods in question under the conditions in force before 1 September 1975. To do this, no formal amendment of the regulations involved is necessary.

4. In its rejoinder the Commission states that, being an application for a declaration, the applicant's main claim is admissible under the second paragraph of Article 215 of the Treaty only if the claimant has suffered manifest damage and is prevented from immediately submitting an application for enforcement only because he is not yet in a position to put an accurate figure on the amount of loss; see, in this connexion, the judgment of the Court of 2 June 1976 in Joined Cases 56 to 60/74, Kampffmeyer and Others v Commission and Council [1976] ECR 711. Those conditions do not obtain in this case.

B —. Substance

1. The applicant claims in the first place that by virtue of the principles of protection of legitimate expectations, of proportionality and of equality of treatment, the Commission ought, in addition to the transitional period provided for under Article 2 of Regulation No 2033/75, to have provided rules to make it possible for, inter alia, any contraa concluded before 1 June 1975 to be performed. This claim is based on the following considerations:

2. Secondly, the applicant states that the Commission acted illegally in refusing to authorize the Federal Republic of Germany to permit it to import, under the conditions which apply to cases of force majeure, the 1900 tonnes of meat affected by the machines being put out of action. It is for the Commission to assess the scope of the concept of force majeure. In the circumstances of the case the Commission could by various means have made the competent German institution apply that principle, in particular by extending the application of Article 2 of Regulation No 2033/75 to cases of force majeure by giving the Federal Republic of Germany internal authorization to apply Article 20 of Regulation No 193/75, at least by analogy, due regard being paid as necessary to considerations of natural justice, or by recognizing force majeure as having the force of a general principle of law.

3. Thirdly, the applicant contends that in the light of the principle of the protection of legitimate expectations and in view of the circumstances of force majeure the Commission ought, at least in the context of the relaxation of the measures prohibiting imports, to have permitted performance of the contraa of 14 May 1975 under the conditions applicable until 1 September 1975. This view of the applicant is based on a precedent. In fact, in the third recital of the preamble to Regulation No 819/75 of 25 March 1975 concerning the issue of import licences for beef and veal on production of contracts of sale concluded in accordance with Regulation (EEC) No 1790/74 (Official Journal L 78 of 27 March 1975, p. 93), the Commission provided that, with a view to increased flexibility of the protective measures, account should first be taken of contracts of sale of meat held by intervention agencies concluded under the linking system before the suspension of the issue of import licences and in respect of which it has not been possible to issue licences.

5. According to the Commission it is not true that the contraa which the applicant concluded with its Romanian associates could not be performed because of the Community import systems promulgated on 1 September 1975. Under the contraa the applicant undertook only to take away and pay for the seasoned meat produced. It was at no time impossible for it to discharge this obligation.

6. In any case it was not any action on the part of the Commission which prevented the applicant from effecting the importations in time. The inclusion, under Regulation No 2033/75, of seasoned meats in the arrangements involving the protective clause applicable to beef and veal was published in the Official Journal of 6 August 1975 and came into force only on 1 September 1975. If the applicant was unable to make use of the opportunity which was thus offered him to import the remaining 1900 tonnes of seasoned meats, it is not the Commission which is to blame for this but only the fan that the applicant's Romanian producers did not deliver in accordance with the conditions agreed. In any case, the Commission doubts whether the Romanian producer can still deliver or has any intention of doing so. It concludes that if the producer's delivery problems prevented the contested contraa from being performed, the action loses its purpose.

7. The Commission has not infringed the principle of the protection of legitimate expectation. The applicant concluded the delivery contraa at a time when the market in beef and veal had long been passing through a period of considerable and lasting crisis, during which protective measures appeared one after the other and imports of seasoned beef and veal were rightly subject to restrictions. At that time, therefore, the Commission gave the applicant no reason for believing that those seasoned meats would in future never again be subject to restrictions on imports. The Commission adds that it granted a more than adequate transitional period.

8. As regards the alleged discrimination against the applicant the Commission states that there were other undertakings who were unable to effect in time the whole of the seasoned beef and veal imports which they had bargained for. The Commission did not grant any exempting arrangements to any of those undertakings. The fact that the Commission treats the applicant in the same way as all the other undertakings concerned in the same situation and that it refuses to grant it special privileges denied to those other undertakings cannot amount to discrimination against the applicant.

9. The Commission further states that in all cases in which the Community agricultural regulations provide for exceptions on the ground of force majeure these are cases where the person concerned is himself bound to perform a specific act in relation to the Community or the authorities of the Member States acting on its behalf: for example to import or export the product during the period of validity of the licence (Article 2 of Regulation No 193/75, Official Journal L 25, p. 10), or not to put on the market milk products produced by himself during the period of the contraa (Article 3 of Regulation No 1353/73, Official Journal L 141, p. 18).

10. In reply, the applicant states that even before the Commission brought seasoned meat preparations within the scope of the stricter protective measure it ought, generally speaking, to have excluded contracts concluded earlier or at least granted them a longer transitional period.

11. The applicant has not benefited from the transitional arrangements in the same way as other importers because, as the result of force majeure, the delivery of its goods was delayed. The fact that the existing linked-sales system can be used in different ways constitutes a further discrimination.

12. On the question of force majeure the Commission gives an incorrect account of the point of view contended for by the applicant. There is no question in this case of any exemption from the obligation to produce a licence or from the obligation to pay a levy. The applicant's only wish is to secure the application by analogy of Article 20 of Regulation No 193/75.

13. Finally, the applicant claims that Article 1 (4) of Regulation No 1090/75 as amended by Regulation No 2033/75 is invalid as far as meat preparations are concerned.

14. In its rejoinder, the Commission emphasizes that its actions are governed by the principle of the legality of administrative measures. It is bound to observe the provisions adopted by the Council on the subject of levies and can allow exceptions only in so far as the levy system in force expressly recognizes its power to do so. That situation does not obtain in this case: none of the provisions of the levy system applicable under the common organization of the market in beef and veal as established by Regulation No 425/77 authorizes any special exemption to be accorded to the applicant.

15. It is not necessary to consider whether the protective measures contained in Regulation No 1090/75 infringe general legal principles. If they were found to do so, this would at most involve the annulment or withdrawal of the regulation, which has already been repealed by Regulation No 76/76 and today no longer constitutes any hindrance to the importations contemplated by the applicant.

16. With regard to the applicant's alternative claim, the Commission points out that since it is neither bound nor empowered to declare inapplicable the obligation to impose the levy on seasoned meats, it is not infringing a higher rule of law for the protection of the applicant's rights by refusing to concede this claim and is not therefore bound to compensate.

17. Nor can any such obligation to compensate be founded on any legal irregularities in Regulation No 2033/75.

18. Finally, the Commission notes that in its statement of 10 October 1977, lodged 14 days after the rejoinder, the applicant touches for the first time on the question of the calculation of its loss of profit and that of the amount which it is claiming as damages.

IV —. Oral procedure

1. By application lodged on 2 June 1977 against the Commission under Article 178 and the second paragraph of Article 215 of the EEC Treaty, IFG-Intercontinentale Fleischhandelsgesellschaft sought from the Court, first, a declaration that the defendant is bound by way of damages to guarantee performance of a contract concluded by the applicant on 14 May 1975 with the Romanian Sute corporation for foreign trade, Prodexport, for the delivery of seasoned beef and veal preparations and, in the alternative, an order that the Commission is to pay it by way of damages the profit which it failed to make through the non-performance of the contraa.

2. The contract in question was concluded at a time when beef and veal imports into the Communiy from third countries were regulated by the provisions of Regulation (EEC) No 1090/75 of the Commission of 23 April 1975 (Official Journal L 108 of 26 April 1975, p. 1), adopted in pursuance of the protective clause contained in Article 21 of Regulation (EEC) No 805/68 of the Council of 27 June 1968 on the common organization of the market in beef and veal (Official Journal L 148 of 28 June 1968, p. 24).

3. As a result of floods in Romania in June 1975, the delivery of certain consignments of meat which should have taken place before 1 September 1975 was delayed until after that date.

4. While the Commission raises no objection as to the admissibility of the alternative application for financial compensation, it has raised an objection of inadmissibility regarding the main application, arguing in effect that an application of this kind cannot be entertained in the form of an action for damages based on Article 178 and the second paragraph of Article 215 of the Treaty.

5. Among the submissions relied upon bythe applicant to establish the liability of the Community, consideration must first be given to that relating to the alleged illegality of the series of regulations in question, in particular of Regulation No 2033/75.

6. However, as the third and fourth recitals of the preamble to Regulation No 2033/75 make clear, the Commission found that the Community market in beef and veal continues to be threatened as a result of imports by serious disturbances which are likely to jeopardize the objectives of Article 39 of the Treaty and that importation of seasoned meats exempted from the protective measures had reached a level incompatible with sound management of the market.

7. The applicant further claims that the Commission infringed the principle of respect for legitimate expectation by not adopting a transitional measure which, even after the entry into force of the regulation of 1 September 1975, would have enabled contracts concluded before 6 August 1975, the date of publication of the regulation, to receive the benefit of the conditions for importation arising under the previous regulations.

9. Finally, the applicant claims that the Community incurs liability because the Commission refused to take account of force majeure, which prevented the performance of the contract before the entry into force of Regulation No 2033/75.

10. Article 20 of Regulation No 193/75 provides that where as a result of force majeure importation or exportation cannot be effected during the period of validity of the licence or certificate, the competent agency shall either cancel the obligation to import or export, the security being released, or extend the period of validity of the licence or certificate.

11. With regard to the reference to the existence of a general legal principle governing cases of force majeure, it is true that the legal systems of the Member States provide, in certain contexts and legal relationships, for the possibility of derogation from the stria requirements of the law, especially from the legal consequences resulting from the non-fulfilment of an obligation, on account of force majeure.

12. Since, in the circumstances, the principal and alternative claims must, on the same ground, be dismissed as unfounded, no consideration need be given to the particular question of the admissibility of the principal claim.

13. Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.

On those grounds, THE COURT hereby:

1 Dismisses the application;

2 Orders the applicant to pay the costs.