Avis juridique important

Judgment of the Court (Second Chamber) of 5 February 1987. - Denkavit België NV v Belgian State. - Reference for a preliminary ruling: Rechtbank van eerste aanleg Brussel - Belgium. - Payment of monetary compensatory amounts - Force majeure. - Case 145/85. European Court reports 1987 Page 00565

Summary Parties Grounds Decision on costs Operative part

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1 . AGRICULTURE - MONETARY COMPENSATORY AMOUNTS - PAYMENT - PRESCRIBED PERIOD - STARTING DATE - DATE OF DEPOSIT OF REQUEST TOGETHER WITH SUFFICIENT SUPPORTING DOCUMENTS

( COMMISSION REGULATION NO 1371/81, ART . 17 ( 3 ) )

2 . COMMUNITY LAW - PRINCIPLES - FORCE MAJEURE - CONCEPT - TO BE APPRAISED IN RELATION TO THE PROVISIONS OF THE REGULATION IN WHICH THE TERM APPEARS .

3 . AGRICULTURE - MONETARY COMPENSATORY AMOUNTS - PAYMENT - PRESCRIBED PERIOD - FAILURE TO COMPLY - ADMINISTRATIVE DIFFICULTIES - FORCE MAJEURE MAY NOT BE RELIED UPON .

( COMMISSION REGULATION NO 1371/81, ART . 17 ( 3)(A ) )

1 . ARTICLE 17 ( 3 ) OF COMMISSION REGULATION NO 1371/81 MUST BE INTERPRETED AS MEANING THAT THE TWO-MONTH PERIOD PRESCRIBED FOR THE PAYMENT OF MONETARY COMPENSATORY AMOUNTS STARTS TO RUN ON THE DAY FOLLOWING THAT ON WHICH THE REQUEST FOR PAYMENT, TOGETHER WITH THE OTHER REQUISITE DOCUMENTS, IS DEPOSITED WITH THE COMPETENT NATIONAL AUTHORITY .

2 . THE CONCEPT OF FORCE MAJEURE MUST BE UNDERSTOOD AS REFERRING TO UNUSUAL AND UNFORESEEABLE CIRCUMSTANCES, BEYOND THE CONTROL OF THE PARTY BY WHOM IT IS PLEADED, THE CONSEQUENCES OF WHICH COULD NOT HAVE BEEN AVOIDED EVEN IF ALL DUE CARE HAD BEEN EXERCISED . THAT CONCEPT MUST BE CONSIDERED IN RELATION TO THE PROVISIONS OF EACH REGULATION IN WHICH THE TERM APPEARS .

3 . THE NATIONAL AUTHORITY RESPONSIBLE FOR PAYING MONETARY COMPENSATORY AMOUNTS MAY NOT PLEAD FORCE MAJEURE UNDER ARTICLE 17 ( 3 ) ( A ) OF REGULATION NO 1371/81 ON THE GROUND THAT IT HAD INSUFFICIENT STAFF AVAILABLE, NOTWITHSTANDING A SUDDEN SHARP INCREASE IN THE NUMBER OF REQUESTS FOR PAYMENT OF MONETARY COMPENSATORY AMOUNTS AND THE ALLEGED SPECIAL CHARACTERISTICS OF THE AGRICULTURAL SECTOR IN QUESTION .

IN CASE 145/85

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE RECHTBANK VAN EERSTE AANLEG (( COURT OF FIRST INSTANCE )), BRUSSELS, FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

DENKAVIT BELGIE NV, ANTWERP

AND

BELGIAN STATE

ON THE INTERPRETATION OF ARTICLE 17 ( 3 ) OF COMMISSION REGULATION 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,

THE COURT ( SECOND CHAMBER )

COMPOSED OF : T.F . O' HIGGINS, PRESIDENT OF THE CHAMBER, O.*DUE AND K.*BAHLMANN, JUDGES

ADVOCATE GENERAL : J . MISCHO

REGISTRAR : K . RIECHENBERG, ACTING AS ADMINISTRATOR,

AFTER CONSIDERING THE OBSERVATIONS SUBMITTED ON BEHALF OF

DENKAVIT BELGIE NV, THE PLAINTIFF IN THE MAIN PROCEEDINGS, BY

M . GHEYSEN, OF THE ANTWERP BAR,

THE BELGIAN STATE, THE DEFENDANT IN THE MAIN PROCEEDINGS BY L . DELWAIDE, OF THE ANTWERP BAR,

THE COMMISSION OF THE EUROPEAN COMMUNITIES, BY R.C . FISCHER, LEGAL ADVISER,

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 10 JUNE 1986,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 23 SEPTEMBER 1986,

GIVES THE FOLLOWING

JUDGMENT

1 BY AN ORDER DATED 8 MAY 1985, WHICH WAS RECEIVED AT THE COURT ON 15 MAY 1985, THE RECHTBANK VAN EERSTE AANLEG, BRUSSELS, SUBMITTED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY THREE QUESTIONS ON THE INTERPRETATION OF ARTICLE 17 ( 3 ) OF COMMISSION REGULATION NO 1371/81 OF 19 MAY 1981 LAYING DOWN DETAILED RULES FOR THE ADMINISTRATIVE APPLICATION OF MONETARY COMPENSATORY AMOUNTS .

2 THE QUESTIONS AROSE IN PROCEEDINGS BETWEEN DENKAVIT BELGIE ( HEREINAFTER REFERRED TO AS "DENKAVIT ") AND THE BELGIAN STATE RELATING ESSENTIALLY TO THE PERIOD WITHIN WHICH THE BELGIAN STATE SHOULD PAY MONETARY COMPENSATORY AMOUNTS PAYABLE TO DENKAVIT ON ITS IMPORTATION OF CATTLEFEED FROM THE NETHERLANDS INTO BELGIUM .

3 ARTICLE 17 ( 3 ) OF REGULATION NO 1371/81 PROVIDES THAT "PAYMENT OF MONETARY COMPENSATORY AMOUNTS SHALL BE MADE BY THE COMPETENT AUTHORITIES WITHIN TWO MONTHS FROM THE DAY OF DEPOSIT OF SUFFICIENT SUPPORTING DOCUMENTS EXCEPT IN CASES : ( A ) OF FORCE MAJEURE; OR ( B ) WHERE ADMINISTRATIVE INQUIRIES HAVE BEEN COMMENCED ...". BEFORE THE NATIONAL COURT DENKAVIT CLAIMED THAT THE BELGIAN STATE DID NOT PAY THE MONETARY COMPENSATORY AMOUNTS IN QUESTION UNTIL FOUR TO FIVE MONTHS AFTER THE DOCUMENTS WERE DEPOSITED . THE BELGIAN STATE JUSTIFIES ITS FAILURE TO COMPLY WITH THE TWO-MONTH TIME-LIMIT LAID DOWN IN ARTICLE 17 ( 3 ) OF THE CONTESTED REGULATION BY RELYING UPON THE EXCEPTION LAID DOWN IN THAT PROVISION FOR CASES OF FORCE MAJEURE AND, IN THE ALTERNATIVE, BY CLAIMING THAT ADMINISTRATIVE INQUIRIES WERE MADE CONCERNING THE ENTITLEMENT TO THE MONETARY COMPENSATORY AMOUNTS . DENKAVIT DISPUTES THOSE SUBMISSIONS AND THE INTERPRETATION OF ARTICLE 17 ( 3 ) ON WHICH THEY ARE BASED .

4 THE RECHTBANK VAN EERSTE AAANLEG, BEFORE WHICH AN ACTION WAS BROUGHT, THEREFORE SUBMITTED TO THE COURT THE FOLLOWING QUESTIONS :

"1 . MUST ARTICLE 17 ( 3 ) OF COMMISSION REGULATION ( EEC ) NO 1371/81 BE INTERPRETED AS MEANING THAT THE TWO-MONTH PERIOD PRESCRIBED BY IT FOR THE PAYMENT OF MONETARY COMPENSATORY AMOUNTS STARTS TO RUN ON THE DAY FOLLOWING THAT ON WHICH THE REQUEST FOR PAYMENT OF MONETARY COMPENSATORY AMOUNTS, TOGETHER WITH THE OTHER REQUISITE DOCUMENTS, IS DEPOSITED WITH THE COMPETENT NATIONAL AUTHORITY, OR DOES THAT PERIOD NOT START TO RUN UNTIL IT IS ESTABLISHED, ON THE BASIS OF AN EXAMINATION BY THE COMPETENT NATIONAL AUTHORITIES OF THE DOCUMENTS SUBMITTED, THAT SUFFICIENT SUPPORTING DOCUMENTS HAVE BEEN DEPOSITED AND THAT THE MONETARY COMPENSATORY AMOUNTS ARE DUE?

2 . MAY FORCE MAJEURE WITHIN THE MEANING OF ARTICLE 17 ( 3 ) ( A ) OF COMMISSION REGULATION ( EEC ) NO 1371/81 BE PLEADED IF THE COMPLEXITY OF THE RULES ON THE GRANT OF MONETARY COMPENSATORY AMOUNTS FOR A PARTICULAR AGRICULTURAL SECTOR, AND THE RESULTING DIFFICULTY IN CHECKING THE DOCUMENTS DEPOSITED AND COMPUTING THE AMOUNTS APPLICABLE, MAKE IT IMPOSSIBLE FOR THE COMPETENT NATIONAL AUTHORITY OF A MEMBER STATE TO COMPLY WITH THE TWO-MONTH TIME-LIMIT LAID DOWN IN ARTICLE 17 ( 3 ), EVEN BY USING ALL THE STAFF AVAILABLE, OWING TO A SUDDEN GREAT INCREASE IN THE NUMBER OF REQUESTS FOR MONETARY COMPENSATORY AMOUNTS?

3 . MAY THE COMPETENT NATIONAL AUTHORITY PLEAD FORCE MAJEURE WITHIN THE MEANING OF ARTICLE 17 ( 3 ) ( A ) OF REGULATION NO 1371/81 IF, AS A RESULT OF NATIONAL LEGISLATION IMPOSING BUDGETARY RESTRICTIONS, ITS STAFF CANNOT BE INCREASED TO MEET A SUDDEN SHARP INCREASE IN THE NUMBER OF REQUESTS FOR THE GRANT OF MONETARY COMPENSATORY AMOUNTS?"

5 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR THE PROVISIONS OF COMMUNITY LAW IN QUESTION AND THE ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .

THE STARTING POINT FOR THE TWO-MONTH PAYMENT PERIOD ( FIRST QUESTION )

6 IN THE FIRST PLACE IT MUST BE STATED THAT IT IS IMPOSSIBLE TO ACCEPT THE BELGIAN STATE' S ARGUMENT THAT THE TWO-MONTH PERIOD PRESCRIBED BY ARTICLE 17 ( 3 ) OF THE CONTESTED REGULATION DOES NOT START TO RUN UNTIL THE COMPETENT NATIONAL AUTHORITY, IN THIS INSTANCE THE CENTRAL DEPARTMENT FOR QUOTAS AND LICENCES, HAS CONCLUDED THE ADMINISTRATIVE PROCEDURE DESIGNED TO ESTABLISH WHETHER SUFFICIENT SUPPORTING DOCUMENTS HAVE BEEN DEPOSITED . IT IS CLEAR FROM THE WORDING OF ARTICLE 17 ( 3 ) THAT THE PERIOD STARTS TO RUN "FROM THE DAY OF DEPOSIT OF SUFFICIENT SUPPORTING DOCUMENTS ". THE PERIOD IN QUESTION THEREFORE RUNS FROM THE DATE ON WHICH THE REQUEST AND THE SUPPORTING DOCUMENTS ARE DEPOSITED WITH THE COMPETENT AUTHORITY . IT SHOULD BE STRESSED THAT AS REGARDS IMPORTS FROM THE NETHERLANDS THERE WAS IN FACT ONLY ONE DOCUMENT TO BE ATTACHED TO THE REQUEST, NAMELY A COPY OF THE X-10 IMPORT ENTRY . IF THAT DOCUMENT HAD BEEN MISSING, THE REQUEST WOULD HAVE BEEN RETURNED AND THE PERIOD WOULD NOT HAVE STARTED TO RUN .

7 IN THIS CASE, THE PURPOSE OF THE TIME-LIMIT IS SET OUT IN THE SECOND RECITAL IN THE PREAMBLE TO COMMISSION REGULATION ( EEC ) NO 343/74 OF 11 FEBRUARY 1974 ( OFFICIAL JOURNAL 1974, L 40, P . 4 ), WHICH STATES THAT THE AIM OF THAT PROVISION IS "TO AVOID DISTORTION OF COMPETITION BETWEEN THOSE IN THE TRADES CONCERNED IN THE MEMBER STATES", WHILST EXCEPTIONS TO THE TIME-LIMIT WERE ALLOWED IN ORDER TO TAKE ACCOUNT OF EXCEPTIONAL CASES IN WHICH IT MIGHT NOT BE POSSIBLE TO COMPLY WITH IT . THE SAME STATEMENT OF REASONS APPEARED IN THE 14TH RECITAL IN THE PREAMBLE TO COMMISSION REGULATION ( EEC ) NO 1380/75 OF 29 MARCH 1975 ( OFFICIAL JOURNAL 1975, L 139, P . 37 ), THE SECTION OF WHICH RELATING TO THE RULES FOR THE ADMINISTRATIVE APPLICATION OF MONETARY COMPENSATORY AMOUNTS WAS REPLACED BY THE CONTESTED REGULATION . THAT AIM WOULD BE JEOPARDIZED IF THE TIME FROM WHICH THE PERIOD BEGAN TO RUN VARIED FROM ONE MEMBER STATE TO ANOTHER . FOR THAT REASON ARTICLE 17 ( 3 ) PROVIDES THAT IN ALL THE MEMBER STATES THE PERIOD IN QUESTION IS TO START TO RUN FROM THE TIME AT WHICH THE PERSON CONCERNED DEPOSITS SUFFICIENT SUPPORTING DOCUMENTS WITH THE COMPETENT AUTHORITY .

8 IT SHOULD ALSO BE NOTED THAT ARTICLE 17 ( 2 ) OF THE CONTESTED REGULATION REQUIRES APPLICANTS TO SUBMIT THE DOCUMENTS RELATING TO THE GRANT OF MONETARY COMPENSATORY AMOUNTS "WITHIN THE 12 MONTHS FOLLOWING THE DAY ON WHICH THE CUSTOMS AUTHORITIES ACCEPTED THE IMPORT ENTRY OR THE EXPORT DECLARATION", FAILING WHICH ENTITLEMENT TO THE GRANT OF MONETARY COMPENSATORY AMOUNTS SHALL BE LOST . AS THE COURT HELD IN ITS JUDGMENT OF 22 JANUARY 1986 IN CASE 266/84 ( DENKAVIT FRANCE V FORMA (( 1986 )) ECR 149 ), THE SETTING OF A MANDATORY TIME-LIMIT FOR THE SUBMISSION OF APPLICATIONS IS A NECESSARY MEASURE . SINCE ARTICLE 17 ( 3 ) COMPLETES THE SYSTEM BY REQUIRING THAT MONETARY COMPENSATORY AMOUNTS SHOULD IN PRINCIPLE BE PAID WITHIN TWO MONTHS OF THE DAY OF DEPOSIT OF SUFFICIENT SUPPORTING DOCUMENTS, IT IS CLEAR THAT THIS TIME-LIMIT SHOULD BE AS MANDATORY AND OBJECTIVE AS THAT IN ARTICLE 17 ( 2 ).

9 THE ANSWER TO BE GIVEN TO THE NATIONAL COURT SHOULD THEREFORE BE THAT ARTICLE 17 ( 3 ) OF COMMISSION REGULATION ( EEC ) NO 1371/81 MUST BE INTERPRETED AS MEANING THAT THE TWO-MONTH PERIOD PRESCRIBED FOR THE PAYMENT OF MONETARY COMPENSATORY AMOUNTS STARTS TO RUN ON THE DAY FOLLOWING THAT ON WHICH THE REQUEST FOR PAYMENT, TOGETHER WITH THE OTHER REQUISITE DOCUMENTS, IS DEPOSITED WITH THE COMPETENT NATIONAL AUTHORITY .

THE CONCEPT OF FORCE MAJEURE ( SECOND AND THIRD QUESTIONS )

10 ACCORDING TO THE BELGIAN STATE, THE COMBINATION OF THREE EXCEPTIONAL CIRCUMSTANCES - THE COMPLEXITY OF THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS IN THE ANIMAL FEEDINGSTUFFS SECTOR, THE SUDDEN SHARP INCREASE IN REQUESTS FOR MONETARY COMPENSATORY AMOUNTS AND THE EXISTENCE OF MANDATORY RULES RESTRICTING RECRUITMENT OF STAFF - MUST BE REGARDED AS A CASE OF FORCE MAJEURE WITHIN THE MEANING OF ARTICLE 17 ( 3 ) ( A ) OF REGULATION NO 1371/81 . 11 IT SHOULD BE NOTED THAT, ACCORDING TO A CONSISTENT LINE OF DECISIONS OF THE COURT, THE CONCEPT OF FORCE MAJEURE MUST BE UNDERSTOOD AS REFERRING TO UNUSUAL AND UNFORESEEABLE CIRCUMSTANCES, BEYOND THE CONTROL OF THE PARTY BY WHOM IT IS PLEADED, THE CONSEQUENCES OF WHICH COULD NOT HAVE BEEN AVOIDED EVEN IF ALL DUE CARE HAD BEEN EXERCISED . THAT CONCEPT MUST BE CONSIDERED IN RELATION TO THE PROVISIONS OF EACH REGULATION IN WHICH THE TERM "FORCE MAJEURE" APPEARS .

12 IT FOLLOWS FROM THE AIM OF ARTICLE 17 ( 3 ) OF REGULATION NO 1371/81, WHICH IS TO PREVENT DISTORTION OF COMPETITION BETWEEN TRADERS IN DIFFERENT MEMBER STATES, THAT THE COMPETENT NATIONAL AUTHORITIES MUST TAKE THE GREATEST POSSIBLE CARE IN APPLYING THAT PROVISION .

13 IT SHOULD FIRST BE NOTED THAT THE COMPLEXITY OF COMMUNITY LEGISLATION WHICH A MEMBER STATE HAS TAKEN PART IN DRAFTING CANNOT BE CONSIDERED AN UNUSUAL AND UNFORESEEABLE DIFFICULTY WHICH THE AUTHORITIES IN THAT STATE COULD NOT HAVE OVERCOME EVEN BY EXERCISING ALL DUE CARE . IN THAT CONNECTION IT SHOULD BE NOTED THAT, IN ORDER TO FACILITATE THE TASK OF THE COMPETENT AUTHORITIES, ARTICLE 6 OF THE CONTESTED REGULATION PROVIDES THAT "THE PERSON CONCERNED SHALL DECLARE ... ALL SUCH PARTICULARS AS ARE NECESSARY FOR DETERMINING THE MONETARY COMPENSATORY AMOUNT" AND, IN PARTICULAR, "IN SO FAR AS IT IS NECESSARY FOR DETERMINING THE MONETARY COMPENSATORY AMOUNT, PARTICULARS OF THE COMPOSITION OF THE PRODUCTS ".

14 ARTICLE 17 ( 3 ) PRESCRIBES A UNIFORM PERIOD OF TWO MONTHS FOR ALL PRODUCTS . AS THE COMMISSION AND DENKAVIT HAVE STRESSED, THE COMMUNITY LEGISLATURE THEREFORE DID NOT CONSIDER IT NECESSARY TO FIX DIFFERENT PERIODS ACCORDING TO THE CHARACTERISTICS OF THE DIFFERENT SECTOR . FURTHERMORE, IT IS CLEAR FROM THE LAST RECITAL IN THE PREAMBLE TO THE CONTESTED REGULATION THAT IT WAS ADOPTED AFTER OBTAINING THE ASSENT OF ALL THE RELEVANT MANAGEMENT COMMITTEES, AND CONSEQUENTLY THE MAJORITY OF MEMBER STATES, AT LEAST, TOOK THE VIEW THAT A TWO-MONTH TIME-LIMIT COULD BE COMPLIED WITH EVEN IN THE ANIMAL FEEDINGSTUFFS SECTOR .

15 AS REGARDS THE ARGUMENT BASED ON THE SUDDEN SHARP INCREASE IN THE NUMBER OF REQUESTS FOR PAYMENT OF MONETARY COMPENSATORY AMOUNTS, IT MUST FIRST BE POINTED OUT THAT THE REINTRODUCTION IN BELGIUM OF THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS IS THE FORESEEABLE CONSEQUENCE OF THE DEVALUATION OF THE BELGIAN FRANC ON 22 FEBRUARY 1982 . AN INCREASE IN THE NUMBER OF REQUESTS FOR MONETARY COMPENSATORY AMOUNTS IS IN ITS TURN THE NORMAL AND FORESEEABLE CONSEQUENCE OF THE REINTRODUCTION OF THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS . IN THAT CONNECTION IT SHOULD BE POINTED OUT THAT IF THERE ARE SERIOUS GROUNDS FOR SUSPECTING THE EXISTENCE OF FRAUDULENT TRANSACTIONS INVOLVING MONETARY COMPENSATORY AMOUNTS, MEMBER STATES MAY COMMENCE ADMINISTRATIVE INQUIRIES CONCERNING THE ENTITLEMENT TO THE MONETARY COMPENSATORY AMOUNTS REQUESTED PURSUANT TO ARTICLE 17 ( 3 ) ( B ), IN WHICH CASE THEY DO NOT HAVE TO COMPLY WITH THE TWO-MONTH TIME-LIMIT .

17 THE ANSWER TO THE SECOND AND THIRD QUESTIONS MUST THEREFORE BE THAT THE COMPETENT NATIONAL AUTHORITY MAY NOT PLEAD FORCE MAJEURE UNDER ARTICLE 17 ( 3 ) ( A ) OF REGULATION NO 1371/81 ON THE GROUND THAT IT HAD INSUFFICIENT STAFF AVAILABLE, NOTWITHSTANDING A SUDDEN SHARP INCREASE IN THE NUMBER OF REQUESTS FOR PAYMENT OF MONETARY COMPENSATORY AMOUNTS AND THE ALLEGED SPECIAL CHARACTERISTICS OF THE AGRICULTURAL SECTOR IN QUESTION .

COSTS

18 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

On those grounds,

THE COURT ( Second Chamber )

in answer to the questions submitted to it by the Rechtbank van Eerste Aanleg, Brussels, by an order of 8 May 1985, hereby rules :

( 1 ) Article 17 ( 3 ) of Commission Regulation No 1371/81 must be interpreted as meaning that the two-month period prescribed for the payment of monetary compensatory amounts starts to run on the day following that on which the request for payment, together with the other requisite documents, is deposited with the competent national authority .

( 2 ) The competent national authority may not plead force majeure under Article 17 ( 3 ) ( a ) of Regulation No 1371/81 on the ground that it had insufficient staff available, notwithstanding a sudden sharp increase in the number of requests for payment of monetary compensatory amounts and the alleged special characteristics of the agricultural sector in question .