1 BY AN ORDER OF 12 JUNE 1970, RECEIVED AT THE COURT ON 23 JULY 1970, THE BUNDESVERWALTUNGSGERICHT OF THE FEDERAL REPUBLIC OF GERMANY PUT TO THE COURT UNDER ARTICLE 177 OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY TWO QUESTIONS FOR THE PURPOSE OF OBTAINING AN INTERPRETATION OF ARTICLE 8 OF REGULATION NO 102/64/EEC OF THE COMMISSION OF 28 JULY 1964 CONCERNING IMPORT AND EXPORT LICENCES FOR CEREALS, PROCESSED PRODUCTS DERIVED FROM CEREALS, RICE, BROKEN AND PROCESSED PRODUCTS DERIVED FROM RICE;
THE FIRST QUESTION
2 IN THE FIRST QUESTION THE COURT IS ASKED TO RULE WHETHER UNDER ARTICLE 8 ( 3 ) OF THE SAID REGULATION A MEMBER STATE MAY ACCEPT AS A CASE OF FORCE MAJEURE A CIRCUMSTANCE OTHER THAN THOSE MENTIONED IN PARAGRAPH ( 2 ) OF THAT ARTICLE, WHEN IN THE COMMUNICATION PROVIDED FOR IN PARAGRAPH ( 3 ), IT HAS OMITTED TO INDICATE WHETHER THE PROVISIONS OF SUBPARAGRAPH ( A ) OR THOSE OF SUBPARAGRAPH ( B ) OF PARAGRAPH 1 OF THE ARTICLE ARE APPLICABLE TO THE CASE .
3 THE QUESTION THUS HAS AS ITS PURPOSE THE ELUCIDATION OF THE LEGAL NATURE OF THE DUTY TO ADVISE THE COMMISSION LAID DOWN IN ARTICLE 8 ( 3 ) AND CONSEQUENTLY, OF THE EFFECT OF ANY OMISSIONS OCCURRING DURING THE DISCHARGE OF THAT DUTY UPON THE LEGAL POSITION OF HOLDERS OF LICENCES .
4 ARTICLE 8 ( 1 ) GOVERNS THE CONSEQUENCES ARISING FROM THE FACT THAT OWING TO CIRCUMSTANCES TO BE REGARDED AS FORCE MAJEURE, THE INTENDED IMPORT OR EXPORT COULD NOT BE EFFECTED DURING THE TERM OF THE VALIDITY OF THE LICENCE ISSUED .
THIS PARAGRAPH PROVIDES THE ALTERNATIVES, EITHER OF CANCELLATION OF THE OBLIGATION TO IMPORT OR TO EXPORT, OR EXTENSION OF THE TERM OF THE VALIDITY OF THE LICENCE, BOTH DEPENDING UPON THE NATURE OF THE CIRCUMSTANCES ACCEPTED AS FORCE MAJEURE .
PARAGRAPH ( 2 ) OF THE ARTICLE SETS OUT THE CIRCUMSTANCES WHICH " SHALL BE " REGARDED AS BEING FORCE MAJEURE .
LASTLY, PARAGRAPH ( 3 ) PROVIDES THAT, IF THE MEMBER STATES RECOGNIZE AS FORCE MAJEURE, CIRCUMSTANCES OTHER THAN THOSE SET OUT IN PARAGRAPH ( 2 ), THEY SHALL AT ONCE ADVICE THE COMMISSION THEREOF AND INDICATE WHETHER THE PROVISIONS APPLIED ARE THOSE OF SUBPARAGRAPH ( A ) OR OF SUBPARAGRAPH ( B ) OF PARAGRAPH ( 1 ).
5 IT FOLLOWS FROM THE DRAFTING AND THE GENERAL SCHEME OF PARAGRAPHS ( 2 ) AND ( 3 ) OF ARTICLE 8 THAT THE POWER OF RECOGNIZING CERTAIN CIRCUMSTANCES AS FORCE MAJEURE IS LEFT TO THE MEMBER STATES AS PARAGRAPH ( 2 ) CONFINES ITSELF TO SETTING OUT THE CIRCUMSTANCES WHICH THEY ARE IN ANY CASE REQUIRED TO RECOGNIZE AS SUCH .
THUS THE COMMUNICATION PROVIDED FOR IN PARAGRAPH ( 3 ) DEALS WITH A DECISION OF THE MEMBER STATE CONCERNED WHICH DOES NOT REQUIRE THE INTERVENTION OF THE COMMUNITY AUTHORITIES TO BE COMPLETE AND TAKE EFFECT .
THE COMMUNICATION IS THEREFORE OF A DECLARATORY NATURE .
6 CONSEQUENTLY OMISSIONS IN THE COMMUNICATION CANNOT AFFECT ITS VALIDITY AS REGARDS PERSONS AFFECTED BY THE ACT BY WHICH THE STATE MADE USE OF THE SAID POWER . NOR CAN SUCH OMISSIONS BE RELIED ON BY PERSONS AFFECTED AGAINST AN ACT OF THE NATIONAL AUTHORITIES CONSEQUENT UPON THE ACCEPTANCE OF A CIRCUMSTANCES AS FORCE MAJEURE .
7 IT IS THEREFORE APPROPRIATE TO REPLY THAT THE OMISSIONS IN THE COMMUNICATION PROVIDED FOR IN ARTICLE 8 ( 3 ) OF REGULATION NO 102/64/EEC HAVE NO LEGAL EFFECT IN RESPECT OF INDIVIDUALS CONCERNED .
THE SECOND QUESTION
8 IN THE SECOND QUESTION THE COURT IS ASKED TO RULE WHETHER THE PROVISIONS OF ARTICLE 8 ( 1 ) ( B ) REQUIRE THE MEMBER STATE TO DECIDE THAT THE LICENCE CARRYING THE OBLIGATION TO IMPORT OR TO EXPORT IS CANCELLED AND THAT THE DEPOSIT IS NOT FORFEITED AS SOON AS THE PERSON CONCERNED REQUESTS IT TO DO SO OR WHETHER IT MAY MAKE THE BENEFIT OF THIS EXCEPTION TO THE RULE OF EXTENSION CONDITIONAL UPON THE SAID PERSON' S PROVIDING IT WITH SPECIAL REASONS JUSTIFYING SUCH AN EXCEPTION .
9 IT APPEARS FROM ARTICLE 8 ( 1 ) THAT THE ALTERNATIVES OF CANCELLATION OR OF EXTENSION OF THE LICENCE DO NOT APPLY IN AN ARBITRARY MANNER, IN ACCORDANCE WITH THE WISHES OF THE PERSON CONCERNED OR THE DISCRETION OF THE ADMINISTRATION CONCERNED, BUT MUST BE APPLIED IN ACCORDANCE WITH A SPECIFIC SYSTEM, CANCELLATION BEING THE RULE IN CERTAIN CIRCUMSTANCES AND EXTENSION THE RULE IN OTHER CIRCUMSTANCES RECOGNIZED AS FORCE MAJEURE .
10 THE INDICATION GIVEN IN THE ARTICLE THAT AN EXCEPTION MAY NEVERTHELESS BE MADE TO THE RULE AT THE REQUEST OF THE PERSON CONCERNED CONFIRMS THAT THE PROVISION IS INTENDED TO ESTABLISH IN THE GIVEN CIRCUMSTANCES AN ADMINISTRATIVE PRACTICE IN WHICH EITHER CANCELLATION OR EXTENSION IS THE RULE, THE ALTERNATIVE BEING APPLIED ONLY EXCEPTIONALLY .
11 BOTH THE TERMS OF ARTICLE 8 ( 1 ) AND THE DUTY OF THE MEMBER STATES TO INDICATE IN THEIR COMMUNICATIONS TO THE COMMISSION WHETHER IN THE CIRCUMSTANCES WHICH THEY HAVE ACCEPTED AS FORCE MAJEURE THE PROVISIONS APPLIED ARE THOSE OF PARAGRAPH ( 1 ) ( A ) OR ( B ) PROVE THAT THE SYSTEM REFERRED TO APPLIES NOT ONLY TO THE CASES OF FORCE MAJEURE SET OUT IN PARAGRAPH ( 2 ), BUT ALSO TO ALL OTHER CIRCUMSTANCES WHICH THE MEMBER STATES ACCEPT AS SUCH .
12 IN THE SYSTEM THUS ESTABLISHED EXCEPTIONS ARE ALLOWED UNDER PARAGRAPH ( 1 ) ONLY AT THE EXPRESS REQUEST OF THE PERSON CONCERNED AND UNDER AN EXPRESS EXCEPTION WHICH THE ADMINISTRATION OF THE MEMBER STATE CONCERNED " MAY " ADOPT .
13 THE EXCEPTION DOES NOT THEREFORE AUTOMATICALLY TAKE EFFECT AS SOON AS THE PERSON CONCERNED REQUESTS IT .
IN FACT SINCE THE POSSIBILITIES IN ARTICLE 8 ARE INTENDED ONLY TO RESOLVE DIFFICULTIES WHICH IMPORTERS OR EXPORTERS EXPERIENCE IN MEETING THEIR OBLIGATION TO IMPORT OR TO EXPORT WITHIN A FIXED PERIOD, IT WOULD BE CONTRARY TO THIS OBJECTIVE TO ALLOW THE PERSON CONCERNED TO BENEFIT ON THE PRETEXT OF THESE DIFFICULTIES BY PUTTING HIM IN A POSITION MORE FAVOURABLE THAN THAT OF HIS COMPETITORS WHO HAVE NOT EXPERIENCED COMPARABLE DIFFICULTIES .
14 CONSEQUENTLY NATIONAL ADMINISTRATIONS MAY REFUSE TO MAKE THE EXCEPTION REQUESTED WHEN THE GRANT OF THIS WOULD BE CONTRARY TO THE LEGITIMATE OBJECTIVES OR TO THE PROPER FUNCTIONING OF THE ORGANIZATION OF THE MARKET IN QUESTION .
THEY MAY THEREFORE, SUBJECT TO REVIEW BY THE JUDICIAL AUTHORITIES HAVING JURISDICTION, REQUIRE THAT REASONS SHOULD BE GIVEN FOR THE REQUEST FOR THE GRANT OF AN EXCEPTION AND THAT IT SHOULD BE JUSTIFIED .
15 IT IS APPROPRIATE TO REPLY IN THIS SENSE TO THE SECOND QUESTION .
16 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE .
17 THE PROCEEDINGS IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED ARE IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE BUNDESVERWALTUNGSGERICHT, AND THE DECISION AS TO COSTS IS THEREFORE A MATTER FOR THAT COURT .
THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE BUNDESVERWALTUNGSGERICHT OF THE FEDERAL REPUBLIC OF GERMANY IN ACCORDANCE WITH THE ORDER MADE BY THAT COURT ON 12 JUNE 1970, HEREBY RULES :
1 . OMISSIONS IN THE COMMUNICATION PROVIDED FOR IN ARTICLE 8 ( 3 ) OF REGULATION NO 102/64/EEC OF THE COMMISSION OF 28 JULY 1964 HAVE NO LEGAL EFFECT IN RESPECT OF INDIVIDUALS CONCERNED;
2 . SUBJECT TO REVIEW BY THE JUDICIAL AUTHORITIES HAVING JURISDICTION, NATIONAL ADMINISTRATIONS MAY REFUSE TO MAKE AN EXCEPTION TO THE RULE CONCERNING CANCELLATION OR EXTENSION LAID DOWN IN ARTICLE 8 ( 1 ) ( A ) AND ( B ) UNLESS REASONS ARE GIVEN FOR THE REQUEST AND IT IS JUSTIFIED .
