by José Ricardo Sousa, student of the Master's degree in EU Law of UMinho

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Keywords: Deposit, Export licence, force majeure

Court: CJEU| Date: December 12nd 1970 | Case: 11/70 | Applicants: Internationale Handelsgesellschaft mbH vs Einfuhr- und Vorratsstelle für Getreide und Futtermittel

Summary:  Internationale Handelsgesellschaft is an import-export undertaking. The company obtained 20 000 metric tons of maize meal with validity until 31st December 1967. According to article 12 of Regulation No 120/67 in what concerns to market of cereals. When the licence expired and the company delivered approximately 11 000 metric tons of cereal. After, Einfuhrund Vorratsstelle für Getreide und Futtermittel declared the deposit forfeited according to Regulation No 473/67/EEC. The undertaking brought an action to court against this decision. The Court suspended the action and sent to CJEU the following questions:

Are the obligation to export, laid down in the third subparagraph of Article 12 (1) of Regulation No 120/67/EEC of the Council of 13 June 1967, the lodging of a deposit, upon which such obligation is made conditional, and forfeiture of the deposit, where exportation is not effected during the period of validity of the export licence, legal?

According to the Recital 13 of the preamble of Regulation No 120/67 the competent authorities must follow trade movements in order to assess market trends and to apply the measures. CJEU considered that the system of licences involving an undertaking doesn’t violate any right of a fundamental nature.

In the event of the Court’s confirming the legal validity of the said provision, is Article 9 of Regulation No 473/67/EEC of the Commission of 21 August 1967, adopted in implementation of Regulation No 120/67, legal in that it excludes forfeiture of the deposit only in cases of force majeure?

CJEU began to argue that the concept of force majeure follows the particular nature of the relationships between traders and national administration as also wants to pretend that the mentioned concept isn’t limited to absolute impossibility but must be understood in the sense of unusual circumstances. CJEU concluded that limiting the cancellation of the undertaking to export and to release deposits to cases of force majeure the Community adopted a provision that is appropriate for ensuring the normal functioning of the organization of the market in cereals.

The decision can be accessed  here and the opinions of AG here.