58As the question whether the failure to fulfil obligations alleged against the applicant in the main proceedings is caused by force majeure, and whether, therefore, the applicant could avoid the penalty laid down in the third paragraph of Article 23(1) of Regulation No 1122/2009 entails an assessment of facts, it is for the referring court to determine whether that failure to fulfil obligations is the result of abnormal and unforeseeable circumstances, outside the control of the operator concerned, the consequences of which, in spite of the exercise of all due care, could not have been avoided (see, to that effect, judgment in Parras Medina, C‑208/01, EU:C:2002:593, paragraph 19 and the case-law cited).
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