Opinion of Mr Advocate General Lenz
Mr President,
Members of the Court,
The case in which I am today giving my Opinion concerns essentially the provisions of Commission Regulation No 1380/75 of 29 May 1975 which traders must observe if they wish to claim monetary compensatory amounts on agricultural products in trade within the Community.
1. On 19 January 1977 the plaintiff in the main proceedings, Denkavit France, exported animal feed described as Finisher C2 from France to the United Kingdom. The amount invoiced was FF 48000 plus £200 in freight charges.
2. At this point, I think it useful to cite the wording of the provisions of the regulation which are relevant in these proceedings.
3. Denkavit, the plaintiff in the main proceedings, has made the following observations on those questions:
4. The Fund, the defendant in the main proceedings, suggests that the questions submitted for a preliminary ruling should be answered in the negative.
In my Opinion on this reference for a preliminary ruling I shall first discuss the question whether, and if so in what circumstances, the failure to return Control Copy T5 constitutes a case of force majeure within the meaning of Article 15 of Regulation No 1380/75. Only when it is clear in which cases the rule in that provision which bars claims submitted out of time does not apply and, conversely, in which cases it does apply, will it be possible to consider whether the provision is in conformity with superior principles of law of a general nature.
1. As I have already said in my Opinion of 10 October 1985 in Case 165/84, 8 there is an extensive body of case-law on the concept of force majeure. As far back as 11 July 1968 the Court stated in its judgment in Case 4/68 that as the concept of force majeure is not identical in the different branches of law and the various fields of application, its significance must be determined on the basis of the legal framework within which it is intended to take effect. As regards the agricultural sector, the Court held in its judgment that an importer who has shown the necessary diligence is in principle released from the obligation to import when circumstances outside his control make it impossible for him to effect the importation within the required period. Such is the case when the event which renders 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, is 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 is not to be interpreted as implying absolute impossibility, but unusual difficulties which are independent of the will of the importer and which arise during the performance of the contract. Further, recognition of a case of force majeure presupposes that the consequences of the event could not have been avoided.
2. Before I turn to the question whether Article 15 of Regulation No 1380/75 is compatible with the general principles of Community law and, in particular, with the principle of proportionality, I think two preliminary observations are called for.
I therefore suggest that the questions submitted for a preliminary ruling by the Tribunal administratif, Rouen, should be answered as follows:
Article 15 of Commission Regulation (EEC) No 1380/75 of 29 May 1975 laying down detailed rules for the application of monetary compensatory amounts is invalid in so far as it sets, except in cases of force majeure, a time-limit for the submission of documents with a view to obtaining payment of monetary compensatory amounts, even in cases where such documents are submitted out of time for reasons which are beyond the control of the trader concerned.
1 Translated from the German.
2 Commission Regulation (EEC) No 1380/75 laying down detailed rules for the application of monetary compensatory amounts (Official Journal 1975, L 139, p. 37).
3 Council Regulation (EEC) No 974/71 of 12 May 1971 on certain measures of conjunctural policy to be taken in agriculture following the temporary widening of the margins of fluctuation for the currencies of certain Member Sutes (Official Journal, English Special Edition 1971 (I), p. 2S7), as amended by Council Regulation (EEC) No 1112/73 of 30 April 1973 (Official Journal 1973, L 114, p. 4).
4 Commission Regulation (EEC) No 2315/69 of 19 November 1969 on the use of Community transit documents for the purpose of applying Community measures for verifying the use and/or destination of goods (Official Journal, English Special Edition 1969 (II), p. 515).
5 Commission Regulation (EEC) No 1498/76 of 20 June 1976 amending Regulation (EEC) No 1380/75 laying down detailed rules for the application of monetary compensatory amounts (Official Journal 1976, L 167, p. 28).
6 SA Buitoni v Fonds d'orientation et de régularisation des marchés agricoles [1979] ECR 677.
7 Alfred Eggen & Co v Hauptzolaamt Kassel [1982] ECR 3443.
8 Commission Reguladon (EEC) No 1371/81 of 19 May 1981 laying down detailed rules for the administrative application of monetary compensatory amounts (Official Journal 1981, L 138, p. 1).
9 John Friedrieh Krohn v Bundetanstalt für landwirtschaftliche Marktordnung [1985] ECR 3997.
10 Schwarzvoaldmilch GmbH v Einfuhr- und Vorratiltellt für Fette [1968] ECR 377 at p. 385.
11 SpA Ferriera Valsabbia and Othert v Commission [1980] ECR p. 1035 at p. 1067.
12 Acciaierie e Ferriere Bussent SpA v Commission [1984] ECR 568 at p. 571.
13 Acciaierie e Ferriere Bussent SpA v Commission [1984] ECR 557 at p. 566.
14 Surcouf and Vidou v European Community, represented by the Council and the Commission [1985] ECR 2926.
15 Official Journal 1973, L 114, p. 4.
16 Judgment of 23 February 1983 in Case 66/82, Fromancais SA v Fonds d'orientation et de régularisation des marchés agricoles (FORMA), [1983] ECR 395, at p. 404.
17 Emphasis added.
18 Official Journal, English Special Edition 1972 (28-30 December), p. 64.
19 Official Journal 1981, L 138, p. 1.
20 SA Buitoni v Fonds d'orientation et de régularisation des marchés agricoles [1979] ECR 677, at p. 685.