ECJ Whilst the concept of force majeure does not presuppose absolute impossibility, it nevertheless requires the non-performance of the act in question to be due to circumstances beyond the control of the person claiming force majeure, which are abnormal and unforeseeable and of which the consequences could not have been avoided despite the exercise of all due care.
The failure of a purchaser of beef held in intervention storage and intended for exportation to fulfil his obligations to export it, as a result of fraud or negligence or a combination of fraud and negligence on the part of an independent carrier to whom the transport of the goods was subcontracted, does not constitute a case of force majeure within the meaning of article 11 of commission regulation (eec) no 1687/76 laying down common detailed rules for verifying the use and/or destination of products from intervention.
Where the fulfilment of an obligation to export a quantity of beef purchased from an intervention agency is guaranteed by the security referred to in regulation no 1687/76, the principle of proportionality is properly applied in the case of a failure to observe this principal obligation if the intervention agency determines the amount of the security to be declared forfeit by reference to the tonnage which was not exported. Except in the case of force majeure, that principle does not require the intervention agency to take into consideration other circumstances such as the moral blame attaching to the exporter, the loss suffered by community funds or the profit which might have been made on a resale within the community.
Citations:
R-296/86, [1988] EUECJ R-296/86
Links:
European, Contract
Updated: 21 June 2022; Ref: scu.215572