Opinion of Mr Advocate General Lenz

Mr President,

Members of the Court,

A.1. The reference for a preliminary ruling in regard to which I am today delivering my Opinion turns on the amendment of the rules for the importation of manioc and the question of whether it was necessary, in view of that amendment, to provide for transitional measures in favour of traders affected by it.

2. Krohn GmbH & Co. KG, the plaintiff in the main proceedings, is a cereals and feedingstuffs importer and wholesaler. On 21 May 1982, the Bundesanstalt für landwirtschaftliche Marktordnung [Federal Office for the Organization of Agricultural Markets], the defendant in the main proceedings, granted the plaintiff's application for 20 import licences each in respect of 10000 tonnes of manioc falling under subheading 07.06 A to be imported from Thailand. Under the fourth paragraph of Article 12 (1) of Regulation No 2727/75, deposits were to be lodged in respect of those simple import licences. The licences were valid for the period from 21 May to 30 September 1982.

3. On 19 July 1982, the Council adopted the following three decisions:

4. By 30 September 1982 the plaintiff in the main proceedings had only partially made use of the licences issued to it. By letter dated 4 October 1982 the plaintiff returned the licences to the defendant in the main proceedings and requested the release of the securities. By a decision of 8 October 1982 the defendant declared the securities forfeit pro rata, namely in the amount of DM 173190. By letter dated 13 December 1982 the plaintiff lodged an objection against that decision and, referring to the rules contained in Regulation No 2655/82, expressly requested the cancellation of the import licences as far as concerned the unused portions. By decision of 28 December 1982 the defendant refused to cancel the licences on the ground that, in view of its wording, Article 3 (6) of Regulation No 2655/82 had to be applied strictly and an application by analogy was thus excluded. The plaintiff could also not plead force majeure. It had no right to expect that the possibility of importing unlimited quantities of goods at a rate of levy of 6% ad valorem would remain in existence. Moreover, the amendment to the rules did not entirely prevent imports of manioc from Thailand. Such imports were not completely impossible, all that had happened was that the plaintiff was no longer able to import at the low rate of levy of 6%.

5. The Verwaltungsgericht [Administrative Court] Frankfurt, before which an appeal against that rejection was brought, stayed the proceedings and referred the following three questions to the Court of Justice for a preliminary ruling:

6. The plaintiff in the main proceedings and the Commission of the European Communities have submitted observations on the above questions to the Court.

1. There have been many decisions of the Court on the concept of force majeure. In its judgment of 11 July 1968 in Case 4/68, the Court decided that that concept was not altogether identical in the different branches and fields of application of the law and that the significance of it had to be determined on the basis of the legal framework within which it was intended to take effect. In that decision, the Court held that in regard to agriculture, an importer who had shown the necessary diligence was in principle released from the obligation to import when circumstances outside his control made it impossible for him to effect the importation within the required period. Such was the case when the event which rendered impossible the performance in due time of a contract which, under normal circumstances, ought to have enabled the importer to fulfil his obligation to impon, was so unusual that it would have had to be considered as improbable by a prudent businessman exercising all due care. The concept of force majeure was not to be understood in the sense of referring to an absolute impossibility, but to unusual difficulties which were independent of the will of importers and which arose during the performance of the contracts. Furthermore, recognition of a case of force majeure presupposed not only the occurrence of an unusual event but also that the consequences of that event could not be avoided.

2. Let me now turn my attention to the question of whether the legal principle of equal treatment or the prohibition of arbitrary acts requires that the transitional rules concerning import licences for manioc from countries other than Thailand contained in Article 3 (6) of Regulation No 2655/82 be applied by analogy to import licences for manioc from Thailand.

3. I can deal fairly briefly with the question concerning the procedural rules and time-limits. The plaintiff has put forward convincing arguments on that point and the Commission, during the oral procedure, has stated that if an application by analogy of Article 3 (6) of Regulation No 2655/82 is held to be appropriate, it agrees with that submission.

1 Translated from the German.

2 Article 1 of the Cooperation Agreement between the European Economic Community and Indonesia, Malysia, the Philippines, Singapore and Thailand — member countries of the Association of South-East Asian Nations (OJ 1980, L 144, p. 2).

3 OJ 1981, L 335, p. 1.

4 Paragraph 413, p. 184.

5 OJ 1975, L 281, p. 1.

6 OJ 1982, L 132, p. 52; that period was later extended by Regulation Nos. 1390/82 (OJ 1982, L 155, p. 31) and 1500/82 (OJ 1982, L 181, p. 13).

7 Ol 1982. L 141. d. 69.

8 OJ 1982, L 219, p. 52.

9 OJ 1982, L 219, p. 66.

10 OJ 1982, L 219, p. 58.

11 OJ 1982, L 218, p. 8.

12 OJ 1982, L 280, p. 14.

13 OJ 1982, L 260, p. 5.

14 OJ 1982, L 279, p. 81.

15 OJ 1980, L 338, p. 1.

16 Judgment of 11 July 1968 in Case 4/68 Sckwarzwaldmilch GmbH v Einfuhr- und Vorratsslelle für Fette [1968] ECR 377, at p. 386 et seq.

17 Opinion of 5 December 1979 in Joined Cases 154, 205, 206, 226 to 228, 263 and 264/78 and 39, 31, 83 and 85/79 Ferriera Valsabbia SpA and Others v Commission [1980] ECR 1035, at p. 1067 et seq.

18 Opinion of 17 November 1983 in Case 284/82 Acciaierie e Ferriere Busseni SpA v Commission [1984] ECR 568, at p. 571.

19 Judgment of 9 February 1984 in Case 284/82 Acciaierie e Ferriere Busseni SpA v Commission [1984] ECR 557, at p. 566.

20 Regulation No 3300/81, OJ 1981, L 335, p. 1.

21 Page64-165.

22 OJ 1982, L 132, p. 52.

23 Case 64/74 Firma Adolf Reich v Hauptzollami Landau [1975] ECR 261.

24 Article 8 of Regulation No 87 of the Commission laying down implementing measures in regard to import and export licences for cereals and cereal products (Oj 1962, p. 1894).

25 Regulation No 31/63 of the Council 1963 of 2 April laying down rules derogating from Article 17 of Regulation No 19 of the Council in regard to the advance fixing of the levy in respect of certain products (OJ 1963, p. 1225).

26 Case 6/78 Union Française des Céréales v Hauptzollamt Hamburg-fonás [1978] ECR 1675.

27 Regulation No 269/73 of the Commission of 31 January 1973 laying down detailed rules for the application of the system of accesion compensatory amounts, OJ 1973, L 30, p. 73.

28 Article 6 (1) of Regulation No 192/75 of the Commission of 17 January 1975 laying down detailed rules for the application of expon refunds in respect of agricultural products, OJ 1975, L 25, p. 1.

29 Annex to Council Regulation No 1440/80 of 30 May 1980, Official Journal 1980, L 144, p. 1.

30 Judgment of 21 June 1958 in Case 8/57 Groupement des Hauts Fourneaux et Aciéries Beiges v High Authority of the ECSC [1958] ECR 245, at p. 256.

31 Judgment of 19 October 1977 in Joined Cases 117/76 and 16/77 A. Ruckdeschel & Co. and Another v Hauptzollami Hamburg-St. Annen; Diamalt AG v Hauptzollamt Itzehoe [19771 ECR 1753, at p. 1769 seq.