1 BY AN ORDER OF 22 FEBRUARY 1979 WHICH WAS RECEIVED AT THE COURT ON 12 MARCH 1979 THE VERWALTUNGSGERICHT FRANKFURT AM MAIN REFERRED TO THE COURT OF JUSTICE , UNDER ARTICLE 177 OF THE EEC TREATY , TWO QUESTIONS ON THE INTERPRETATION OF REGULATION NO 1308/68 OF THE COMMISSION OF 28 AUGUST 1968 ON THE SALE OF BUTTER FROM PUBLIC STORAGE FOR EXPORTATION ( JOURNAL OFFICIEL , L 214 , 1968 P . 10 ).
2 THE QUESTIONS WERE RAISED IN THE COURSE OF AN ACTION BETWEEN THE BUNDESANSTALT FUR LANDWIRTSCHAFTLICHE MARKTORDNUNG , IN ITS CAPACITY AS THE GERMAN AGRICULTURAL INTERVENTION AGENCY IN THE MARKET IN MILK AND MILK PRODUCTS , AND THE PLAINTIFF IN THE MAIN ACTION WHICH , IN THE PERIOD BETWEEN 21 JULY AND 4 OCTOBER 1970 , PURCHASED FROM THAT INTERVENTION AGENCY CERTAIN QUANTITIES OF BUTTER FROM PUBLIC STORAGE AT A REDUCED PRICE PURSUANT TO REGULATION NO 1308/68 OF THE COMMISSION . IN ACCORDANCE WITH ARTICLE 3 OF THAT REGULATION THE BUTTER SHOULD HAVE BEEN EXPORTED WITHIN A PERIOD OF 30 DAYS AFTER ITS SALE BY THE INTERVENTION AGENCY . THE PURCHASER RESOLD THE BUTTER IN QUESTION TO AN UNDERTAKING WHICH , HOWEVER , FAILED TO EXPORT IT . IN VIEW OF THAT THE BUNDESANSTALT DECIDED THAT THE SECURITIES WHICH HAD BEEN PROVIDED BY THE FIRST PURCHASER IN ACCORDANCE WITH ARTICLE 4 OF THE SAID REGULATION NO 1308/68 SHOULD BE FORFEIT AND IT ALSO CLAIMED THE REIMBURSEMENT OF THE SECURITIES ALREADY RELEASED . THE PURCHASER CHALLENGED THAT DECISION ON THE GROUND THAT THE BUTTER FROM STORAGE HAD BEEN DIVERTED FROM ITS LAWFUL DESTINATION BY THE DULY AUTHORIZED AGENT OF THE UNDERTAKING TO WHICH THE BUTTER HAD BEEN RESOLD AND THAT , CONSEQUENTLY , ITS DIVERSION CONSTITUTES A CASE OF FORCE MAJEURE WHICH , PURSUANT TO ARTICLE 4 ( 3 ) OF REGULATION NO 1308/68 , MEANS THAT THE SECURITIES LODGED MUST BE RELEASED .
3 THE NATIONAL COURT FOUND THAT ECONOMIC LINKS EXISTED BETWEEN THE PURCHASER AND THE SAID UNDERTAKING AND THAT THE DULY AUTHORIZED AGENT OF THE LATTER UNDERTAKING HAD FROM 1 OCTOBER 1968 TO 31 MAY 1969 BEEN AN EMPLOYEE OF THE PURCHASER AND HAD CRIMINAL CONVICTIONS , A NUMBER OF WHICH ANTEDATED THE LAST SALE OF THE BUTTER IN QUESTION , AND SUBMITTED TO THE COURT THE FOLLOWING TWO QUESTIONS :
' ' 1 . DOES A CASE OF FORCE MAJEURE WITHIN THE MEANING OF ARTICLE 4 ( 3 ) OF REGULATION ( EEC ) NO 1308/68 OF THE COMMISSION OF 28 AUGUST 1968 AND THE RELEVANT CASE-LAW OF THE COURT OF JUSTICE ALSO ARISE IF A DULY AUTHORIZED AGENT ACTING WITHOUT PERMISSION AND TO THE DETRIMENT OF THE EXPORTING UNDERTAKING MAKES THE EXPORTS IMPOSSIBLE THROUGH CRIMINAL OFFENCES AND , IF THE ANSWER TO THIS QUESTION IS IN THE AFFIRMATIVE , IS THE KNOWLEDGE OF THE PERSONS ACTING FOR AND RESPONSIBLE FOR THE ACTIONS OF THE PLAINTIFF ( DIRECTORS AND SHAREHOLDERS ) OF THE PREVIOUS CONVICTIONS OF THAT DULY AUTHORIZED AGENT AT TIME OF HIS APPOINTMENT AS SUCH OR AFTERWARDS RELEVANT AS REGARDS THE DUTY TO TAKE CARE?
2 . MUST THE PRINCIPLES LAID DOWN IN THE JUDGMENT OF THE COURT OF JUSTICE OF 11 MAY 1977 IN JOINED CASES 99 AND 100/76 ALSO BE APPLIED , IN ADDITION TO THEIR APPLICATION TO REGULATION NO 1259/72 WHICH IS THE BASIS OF THAT CASE , TO THE REGULATION MENTIONED IN ( 1 ) ABOVE IN SUCH A WAY THAT THE PLAINTIFF MUST BE LIABLE FOR A WRONGFUL ACT ON THE PART OF THE UNDERTAKING WITH WHICH IT HAS ENTERED INTO AN AGREEMENT?
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4 THOSE QUESTIONS , TAKEN TOGETHER BASICALLY RAISE TWO PROBLEMS : THE FIRST PRELIMINARY POINT IS WHETHER REGULATION NO 1308/68 OF THE COMMISSION OF 28 AUGUST 1968 MUST BE INTERPRETED TO MEAN THAT A PURCHASER OF BUTTER FROM PUBLIC STORAGE AT A REDUCED PRICE CAN , WHEN RESELLING THAT BUTTER TO A THIRD PARTY FOR EXPORTATION , TRANSFER TO THE THIRD PARTY THE OBLIGATIONS ENTERED INTO BY THE PURCHASER VIS-A-VIS THE AGRICULTURAL INTERVENTION AGENCY OR IF ON THE OTHER HAND THE PURCHASER REMAINS RESPONSIBLE TO THAT AGENCY WITH REGARD TO THE PRESCRIBED USE OF THE GOODS AND IS ACCORDINGLY LIABLE FOR ANY WRONGFUL CONDUCT ON THE PART OF THE UNDERTAKING WITH WHICH HE HAS ENTERED INTO AN AGREEMENT . THE SECOND PROBLEM IS , MORE PARTICULARLY , WHETHER , WHERE THE EXPORTATION OF THE BUTTER RESOLD TO A THIRD PARTY IS RENDERED IMPOSSIBLE BY CRIMINAL OFFENCES COMMITTED BY A DULY AUTHORIZED AGENT OF THAT THIRD PARTY IN THE CIRCUMSTANCES SET OUT BY THE NATIONAL COURT , THE FIRST PURCHASER OF THE BUTTER CAN RELY ON THE PRINCIPLE OF FORCE MAJEURE EMBODIED IN REGULATION NO 1308/68 RECOVER HIS SECURITY .
THE FIRST PROBLEM
5 THE COURT OF JUSTICE , IN ITS JUDGMENT OF 11 MAY 1977 ( JOINED CASES 99 AND 100/76 ' ' DE BESTE BOTER ' ' AND HOCHE ( 1977 ) ECR 861 ) CONCERNING THE INTERPRETATION OF REGULATION ( EEC ) NO 1259/72 OF THE COMMISSION OF 16 JUNE 1972 ON THE DISPOSAL OF BUTTER AT A REDUCED PRICE TO CERTAIN COMMUNITY PROCESSING UNDERTAKINGS ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( II ), P . 559 ) RULED THAT THE EFFECTIVENESS OF THE ARRANGEMENTS ESTABLISHED BY THAT REGULATION , WHICH PROVIDES FOR THE SALE OF BUTTER FROM STORAGE AT A REDUCED PRICE TO CERTAIN UNDERTAKINGS ON CONDITION THAT THEY GIVE AN UNDERTAKING GUARANTEED BY A SECURITY THAT THEY WILL PROCESS THAT BUTTER OR HAVE IT PROCESSED INTO CERTAIN FOODSTUFFS , WOULD BE ' ' SERIOUSLY COMPROMISED IF THE ACCEPTANCE OF AN OBLIGATION TO PROCESS BY A SUBSEQUENT PURCHASER WHO WAS NOT HIMSELF UNDER ANY LEGAL OBLIGATION TO THE COMPETENT AUTHORITY WERE REGARDED AS SUFFICIENTLY DISCHARGING AN UNDERTAKING ENTERED INTO BY THE SUCCESSFUL TENDERER AGAINST A DEPOSIT ' ' . THE COURT ACCORDINGLY CONCLUDED THAT ' ' EVEN WHERE THE SUCCESSFUL TENDERER DOES NOT HIMSELF CARRY OUT PROCESSING IT IS NECESSARY TO ESTABLISH THAT THE PROCESSED PRODUCTS COMPLY WITH THE CONDITIONS LAID DOWN IN ARTICLE 6 ( 1 ) ( C ) OF THE REGULATION AND THAT THEY HAVE BEEN PRODUCED WITHIN THE PERIOD THEREIN PRESCRIBED BEFORE THE DEPOSIT MAY BE RELEASED ' ' .
6 REGULATION NO 1308/68 OF THE COMMISSION CLOSELY RESEMBLES THE SAID REGULATION NO 1259/72 BOTH WITH REGARD TO ITS OBJECTIVES AND THE ESSENTIAL CONTENT OF ITS PROVISIONS . REGULATION NO 1308/68 IN FACT IS ALSO INTENDED TO PROVIDE A REMEDY FOR THE LARGE QUANTITIES OF BUTTER HELD IN PUBLIC STORAGE BY THE AGRICULTURAL INTERVENTION AGENCIES AND FOR THAT PURPOSE MAKES SPECIAL ARRANGEMENTS FOR THE SALE BY SUCH AGENCIES OF SURPLUS BUTTER AT A REDUCED PRICE TO PERSONS WHO UNDERTAKE TO EXPORT IT TO NON-MEMBER COUNTRIES WITHIN A SPECIFIED PERIOD . LIKE REGULATION NO 1259/72 REGULATION NO 1308/68 FURTHER PROVIDES IN ARTICLE 4 , IN ORDER TO ENSURE THAT THE GOODS REACH THEIR PROPER DESTINATION , THAT A PURCHASER MUST LODGE A SECURITY WHICH , SAVE IN CASES OF FORCE MAJEURE , IS FORFEIT , IF THE BUTTER IS NOT EXPORTED WITHIN THE SAID PERIOD AND IS RELEASED ONLY FOR QUANTITIES PROVED TO HAVE BEEN EXPORTED . THE DIFFERENCES BETWEEN THE TWO REGULATIONS WITH REGARD TO THE PROPER DESTINATION OF THE BUTTER FROM STORAGE - DISPOSAL ON THE WORLD MARKET IN THE CASE OF REGULATION NO 1308/68 AND DISTRIBUTION TO THE FOOD-MANUFACTURING INDUSTRY IN THE CASE OF REGULATION NO 1259/72 - RELATE ONLY TO THE CHOICE OF THE MOST APPROPRIATE METHOD FOR CREATING FRESH OPPORTUNITIES FOR DISPOSING OF THE SURPLUS BUTTER AND DO NOT CONCERN THE STRUCTURAL ASPECTS OF THE TWO REGULATIONS WHICH REMAIN ESSENTIALLY SIMILAR .
7 IN VIEW OF THAT BASIC SIMILARITY IT FOLLOWS THAT THE PRINCIPLES LAID DOWN BY THE COURT OF JUSTICE IN THE CONTEXT OF REGULATION NO 1259/72 CONCERNING THE OBLIGATION OF THE PURCHASER OF BUTTER FROM STORAGE TO ENSURE THAT IT REACHES ITS PROPER DESTINATION ALSO APPLY IN THE CONTEXT OF REGULATION NO 1308/68 . THE FACT THAT THE LATTER REGULATION DOES NOT EXPRESSLY CONTAIN A PROVISION ANALAGOUS TO ARTICLE 10 ( 5 ) OF REGULATION NO 1259/72 IN ACCORDANCE WITH WHICH ' ' RIGHTS AND OBLIGATIONS ARISING OUT OF THE INVITATION TO TENDER SHALL NOT BE TRANSFERABLE ' ' DOES NOT MEAN THAT REGULATION NO 1308/68 INTENDED TO ENABLE THE PURCHASER TO FREE HIMSELF OF THE OBLIGATION TO ENSURE THAT THE BUTTER IS ACTUALLY EXPORTED WITHIN THE PERIOD PRESCRIBED BY THE REGULATION BY RESELLING THE BUTTER . FOR THE REASONS SET OUT ABOVE SUCH A RIGHT WOULD IN FACT OPEN A LOOPHOLE IN THE SYSTEM LAID DOWN BY REGULATION NO 1308/68 TO SUCH AN EXTENT AS TO JEOPARDIZE ITS OBJECTIVES AND OPERATION . FURTHERMORE THE PROVISIONS OF ARTICLE 4 ( 3 ) OF THE SAID REGULATION , WHICH RENDER RELEASE OF THE SECURITY DEPENDENT ON THE ACTUAL EXPORTATION OF THE BUTTER , LAY DOWN CLEARLY THE CONDITION THAT , SO LONG AS THE BUTTER HAS NOT BEEN EXPORTED , THE FIRST PURCHASER OF THE BUTTER FROM STORAGE , WHO HAS IN THE MEANTIME RESOLD IT , MAY NOT RECOVER HIS SECURITY BUT , SAVE IN CASES OF FORCE MAJEURE , IS LIABLE FOR THE ACTS OF THE PERSON WITH WHOM HE HAS ENTERED INTO AN AGREEMENT .
8 FOR THOSE REASONS IT IS NECESSARY TO REPLY THAT REGULATION NO 1308/68 OF THE COMMISSION MUST BE INTERPRETED TO MEAN THAT WHERE THE PURCHASER OF BUTTER FROM STORAGE DOES NOT HIMSELF EXPORT THE BUTTER BUT RESELLS IT TO A THIRD PARTY FOR EXPORT HE IS LIABLE FOR ANY WRONGFUL ACT ON THE PART OF THE OTHER CONTRACTING PARTY AND CAN RECOVER HIS SECURITY ONLY IF THE BUTTER IS ACTUALLY EXPORTED WITHIN THE PERIOD PRESCRIBED BY THE REGULATION .
THE SECOND PROBLEM
9 THE QUESTIONS SUBMITTED ALSO RAISE THE PROBLEM WHETHER A PURCHASER OF BUTTER FROM STORAGE WHO HAS TRANSFERRED IT TO A THIRD PARTY IN ORDER TO HAVE IT EXPORTED CAN , IF SUCH EXPORTATION BECOMES IMPOSSIBLE AS A RESULT OF CRIMINAL CONDUCT ON THE PART OF A DULY AUTHORIZED AGENT OF THAT THIRD PARTY AND TO ITS DETRIMENT , FREE HIMSELF OF HIS OBLIGATION TO THE INTERVENTION AGENCY REGARDING THE PRESCRIBED DESTINATION OF THE GOODS AND RECOVER HIS SECURITY IN RELIANCE ON THE PRINCIPLE OF FORCE MAJEURE EMBODIED IN THE FIRST SUBPARAGRAPH OF ARTICLE 4 ( 3 ) OF REGULATION NO 1308/68 .
10 THE OBJECTIVES AND THE PROVISIONS OF THE RELEVANT AGRICULTURAL LEGISLATION SHOW THAT THE CONCEPT OF FORCE MAJEURE WITHIN THE MEANING OF THE SAID FIRST SUBPARAGRAPH OF ARTICLE 4 ( 3 ) MUST BE UNDERSTOOD AS REFERRING TO ABSOLUTE IMPOSSIBILITY CAUSED BY ABNORMAL CIRCUMSTANCES UNRELATED TO THE PURCHASER OF THE BUTTER FROM STORAGE , THE CONSEQUENCES OF WHICH COULD NOT HAVE BEEN AVOIDED EXCEPT AT THE COST OF EXCESSIVE SACRIFICES , DESPITE THE EXERCISE OF ALL DUE CARE . WHILST REGULATION NO 1308/68 DOES NOT CONTAIN ANY PROVISIONS FORMALLY PROHIBITING THE RESALE OF BUTTER FROM STORAGE THE FACT NONE THE LESS REMAINS THAT THE NATURE OF THE OPERATIONS NECESSARY FOR THE EXPORTATION OF THE PRODUCT AS PRESCRIBED , WHICH DO NOT CALL FOR THE INTERVENTION OF SPECIALIZED UNDERTAKINGS , AND THE SHORTNESS OF THE PERIOD ALLOWED FOR THE EXPORTATION SHOW THAT UNDER THE SYSTEM SET UP BY REGULATION NO 1308/68 THE BUTTER SOLD BY THE INTERVENTION AGENCY WAS NOT NORMALLY INTENDED TO FORM THE SUBJECT-MATTER OF SUBSEQUENT COMMERCIAL TRANSACTIONS WITHIN THE COMMUNITY . IF , IN SPITE OF THE BACKGROUND OF THOSE PROVISIONS , THE FIRST PURCHASER OF THE BUTTER FROM STORAGE DECIDES TO RESELL IT TO A THIRD PARTY FOR THE PURPOSES OF EXPORTATION HE THEREBY UNDERTAKES , WITH REGARD TO THE AGRICULTURAL INTERVENTION AGENCY , ALL THE RISKS WHICH A DILIGENT TRADER CAN AND SHOULD REASONABLY FORESEE IN THE CONTEXT OF THAT TRANSACTION , INCLUDING THAT OF MISAPPROPRIATION OF THE BUTTER THROUGH THE FRAUDULENT CONDUCT OF A DULY AUTHORIZED AGENT OF THE SUBSEQUENT PURCHASER . THE POSSIBILITY OF SUCH CONDUCT WAS NOT A RISK WHICH COULD IN NO WAY HAVE BEEN FORESEEN BY THE RESELLER , ESPECIALLY IN THE CIRCUMSTANCES DESCRIBED BY THE NATIONAL COURT . CONSEQUENTLY , THE FACT THAT , AS A RESULT OF THE SAID MISAPPROPRIATION , THE RESELLER WAS UNABLE TO ENSURE THAT THE GOODS WERE ACTUALLY EXPORTED CANNOT BE CONSIDERED AS AN EXCEPTIONAL AND ABNORMAL CIRCUMSTANCE FULFILLING THE CONDITIONS FOR A CASE OF FORCE MAJEURE WITHIN THE MEANING OF THE FIRST SUBPARAGRAPH OF ARTICLE 4 ( 3 ) OF REGULATION NO 1308/68 IN SUCH A WAY AS TO RELEASE THE INITIAL PURCHASER OF THE BUTTER FROM STORAGE FROM HIS OBLIGATION TO THE INTERVENTION AGENCY TO ENSURE THAT THE BUTTER REACHES THE PROPER DESTINATION .
11 FOR THOSE REASONS IT IS THEREFORE APPROPRIATE TO GIVE THE REPLY TO THE NATIONAL COURT THAT WHERE THE PURCHASER OF THE BUTTER FROM STORAGE REFERRED TO IN REGULATION NO 1308/68 OF THE COMMISSION OF 28 AUGUST 1968 RESELLS IT TO A THIRD PARTY FOR EXPORT IN ACCORDANCE WITH THAT REGULATION , THE FACT THAT IT IS IMPOSSIBLE TO EXPORT THE BUTTER BECAUSE IT HAS BEEN DIVERTED FROM ITS PROPER DESTINATION BY THE CRIMINAL ACTS OF A DULY AUTHORIZED AGENT OF THAT THIRD PARTY TO THE DETRIMENT OF THE LATTER DOES NOT CONSTITUTE A CASE OF FORCE MAJEURE WITHIN THE MEANING OF THE FIRST SUBPARAGRAPH OF ARTICLE 4 ( 3 ) OF THE SAID REGULATION AND CONSEQUENTLY DOES NOT LEAD TO THE RELEASE OF THE SECURITY PROVIDED IN ACCORDANCE WITH ARTICLE 4 ( 1 ) OF THAT REGULATION IN RESPECT OF CONSIGNMENTS OF BUTTER WHICH HAVE NOT BEEN EXPORTED .
COSTS
12 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 ACTION ARE CONCERNED , A STEP IN THE PROCEEDINGS BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
ON THOSE GROUNDS ,
THE COURT ( FIRST CHAMBER ),
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE VERWALTUNGSGERICHT FRANKFURT AM MAIN , BY AN ORDER OF 22 FEBRUARY 1979 , HEREBY RULES :
1 . REGULATION ( EEC ) NO 1308/68 OF THE COMMISSION MUST BE INTERPRETED TO MEAN THAT WHERE THE PURCHASER OF BUTTER FROM STORAGE DOES NOT HIMSELF EXPORT THE BUTTER BUT RESELLS IT TO A THIRD PARTY FOR EXPORT HE IS LIABLE FOR ANY WRONGFUL ACT ON THE PART OF THE OTHER CONTRACTING PARTY AND CAN RECOVER HIS SECURITY ONLY IF THE BUTTER IS ACTUALLY EXPORTED WITHIN THE PERIOD PRESCRIBED BY THE REGULATION .
2 . WHERE THE PURCHASER OF THE BUTTER FROM STORAGE REFERRED TO IN REGULATION NO 1308/68 OF THE COMMISSION OF 28 AUGUST 1968 RESELLS IT TO A THIRD PARTY FOR EXPORT IN ACCORDANCE WITH THAT REGULATION , THE FACT THAT IT IS IMPOSSIBLE TO EXPORT THE BUTTER BECAUSE IT HAS BEEN DIVERTED FROM ITS PROPER DESTINATION BY THE CRIMINAL ACTS OF A DULY AUTHORIZED AGENT OF THAT THIRD PARTY TO THE DETRIMENT OF THE LATTER DOES NOT CONSTITUTE A CASE OF FORCE MAJEURE WITHIN THE MEANING OF THE FIRST SUBPARAGRAPH OF ARTICLE 4 ( 3 ) OF THE SAID REGULATION AND CONSEQUENTLY DOES NOT LEAD TO THE RELEASE OF THE SECURITY PROVIDED IN ACCORDANCE WITH ARTICLE 4 ( 1 ) OF THAT REGULATION IN RESPECT OF CONSIGNMENTS OF BUTTER WHICH HAVE NOT BEEN EXPORTED .
