Opinion of Advocate General Gulmann delivered on 10 June 1993

1 Original language: Danish.

2 Commission Regulation (EEC) No 765/86 of 14 March 1986 laying down detailed rules for the sale of butter from intervention stock for export to certain destinations, OJ 1986 L 72, p. 11.

3 Similar proceedings arc pending before the Irish courts between An Bord Bainne and Inter-agra, on the one hand, and the Irish Intervention Board, on the other, in which the security lodged is some IR £169000. Those proceedings have been stayed pending the Court's ruling in this case.

4 In support of its contention that the situation in this case is not covered by Article 10(2), the Commission points to the reference to the sale being cancelled for the remaining quan titles The reference to the remaining quantities, however, must be considered in the light of the second subparagraph of Article 10(2), and it strikes me as beyond question that it cannot mean that the provision is not also applicable in cases where none of the quantities purchased has been removed.

5 In its judgments in Case 64/74 Firma Adolf Reich v HauptZollamt Landau [1975] ECR 261 and in Case 6/78 Union Française de Céréales v Hauptzollamt Hamburg-Jonas [1978] ECR 1675, the Court upheld the application by analogy of express force majeure clauses, while in its judgment in Case 71/87 Greek State v Inter-Kom [1988] ECR 1979 the Court recognized an implied force majeure clause in a case where the Community law provisions in question did not expressly contain such a clause.

6 See, most recently, the Court's judgment of 18 March 1993 in Case C-50/92 Molkerei-Zentrale Süd v Bundesanstalt für landwirtschaftliche Marktordnung [1993] ECR I-1035. See also the following judgments, which are of particular relevance to the present case: Case 109/86 Theodorakis v Greece [1987] ECR 4319, Case C-338/89 Organisationen Danske Slagterier v Landbrugsministeriet [1991] ECR I-2315 and Case 71/87 Greek State v Inter-Kom [1988] ECR 1979. For further references, see point 15 of Advocate General Lenz's Opinion in Molkerei-Zentrale Süd, cited above.

7 See, for example, Article 6 of Regulation No 136/64, which the Court interpreted in its judgment in Case 4/68 Virma Schuarzwaldmilch v Emfuhr- und Vorrittsstelle fur Fette [1968] ECR 377, and Article 8 of Regulation No 102/64, interpreted by the Court in its judgment in Case 36/70 Getreide Import v Emfuhr- und Vorratsstelle fur Getreide und Futtenuttel [1970] ECR 1107.

8 See the Court's judgment in the Schwarzwaldmilch case (footnote 6 above).

9 Sec the Court's judgment in Case C 338/89 Organisationen Danske Slagterier v Landbrugs-mmisteriet, cited above.

10 Sec the Court's judgment in Case 71/87 Greek State v Inter Kom, cited above

11 Cited above at footnote 5.

12 It is not certain that the Commission on this point is correet in its interpretation of the relevant provisions in the regulation. Article 5(3)(b) provides that the tender is to be accompanied by a written undertaking by the tenderer to export the butter allocated to him unprocessed or after processing within the period laid down in Article 15 to the destination specified in the tender. If that provision is read in conjunction with Article 5(2)(c), which provides that tenders must contain the intended destination of the butter, with details of the quantities which arc to be exported unprocessed and those which arc to be exported after processing, it is in any case possible to interpret the provision as meaning that the undertaking mentioned in Article 5(3)(b) also imposes an obligation on the traders in question to export the butter to the specified destination in the form indicated in the tender. This question was not examined in greater detail during the proceedings in the case. However, since it is the natural course to interpret provisions in the Commission regulation in the manner advocated by that institution (at least where that interpretation leads to a result which will in normal conditions be advantageous to traders), and in view of the purpose of the regulation itself, which must primarily be to ensure that butter sold from intervention stocks reaches the country of destination specified in the regulation, I am inclined to regard the Commission's intcrpreta-tion as correct.

13 Sec the Court's judgment in Case 158/73 Kampffmeyer v Einfuhr-und Vorratssteiie fitr Getreide und Futtermittel [1974] ECR 101, in which it stated that the threat of forfeiture of security is intended to encourage the fulfilment of the obligation [under Community law] to import by importers enjoying the authorization ... it follows that, in principle, an importer who has exercised all reasonable care is released from the [Community law] obligation to import when external circumstances render it impossible for him to complete the importation within the period of validity (sec paragraph 9).