Opinion of Mr advocate general Capotorti

Mr President,

Members of the Court,

1. The proceedings for a preliminary ruling to which my opinion relates concern the interpretation of Article 4 (3) of Regulation (EEC) No 1308/68 of the Commission of 28 August 1968 on the sale of butter from public storage for exportation and relates in particular to the definition of the concept of force majeure embodied in that article. Clarification was also requested of the scope of principles laid down in the judgment of the Court of 11 May 1977 in Joined Cases 99 and 100/76 concerning the extent of the obligations and liability of persons acquiring butter at a reduced price from national intervention agencies.

2. I concur in the view expressed by all the parties to the present proceedings that it is appropriate and reasonable to reverse the order of the questions submitted to the Court of Justice. In fact Question (2) is intended to establish if the first purchaser of the butter from the intervention agency is liable for failure to fulfil the conditions for the use of the butter even when the butter has been delivered to a third party whose fault caused the breach of the said conditions. It appears to me clear that that point should be considered first since, if the answer to that is no, it will be unnecessary to reply to Question (1) concerning the defence of force majeure; the first purchaser can rely on that defence only if it is held that he was in principle responsible for the acts of the subsequent purchaser.

3. We have seen that the national court formulated Question (2) on the basis of the judgment of the Court of Justice of 11 May 1977 in Joined Cases 99 and 100/76 ([1977] 1 ECR 861) on the interpretation of Article 18 of Regulation No 1259/72 concerning release of the deposit paid to the national intervention agency immediately after the butter is taken over at a reduced price by the successful tenderer (cf. Article 13 of the said regulation). In that case too the successful tenderer for intervention butter transferred the butter to a third party without himself using the butter in accordance with the regulation; the Court of Justice held that, save in exceptional circumstances, the successful tenderer cannot escape his obligations by relying on the undertaking entered into by the purchaser under the terms of the contract of sale (paragraph 7 of the decision). The Court arrived at that view not only on the basis of the wording of Regulation No 1259/72, Article 10 (5) of which provided that rights and obligations arising out of the invitation to tender shall not be transferable but also in consideration of the scope and purpose of the provision. The Court pointed out in that connexion that the system established by Regulation No 1259/72 was a special measure intended to dispose of surplus butter to the food industry on particularly favourable conditions; it was therefore necessary to take appropriate precautions to ensure that the butter sold on those conditions did not reach the normal market but was in fact processed within a period allowing the regularity of the operation to be checked; on that basis the Court concluded that the effectiveness of the system of checking 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. Thus, according to the view upheld in that judgment, the duty imposed on the successful tenderer for the butter by Article 18 of the said Regulation No 1259/72 (to ensure the fulfilment of the conditions laid down concerning the processing) continues to have effect even where the successful tenderer does not himself produce the processed products but transfers the butter, in an unprocessed or only partially processed state, to a third party.

4. Let us now consider the question concerning the concept of force majeure. As we have seen the point to be established is whether there is a case of force majeure, for the purposes of Article 4 (3) of Regulation No 1308/68 and of the case-law of the Court of Justice, where the legal representative of an undertaking, by his criminal conduct, renders impossible the fulfilment of an obligation by the undertaking he represents.

5. In conclusion I am of the opinion that the Court of Justice should give the following reply to the questions referred to it by the Verwaltungsgericht Frankfurt am Main by order of 22 February 1979:

1 Translated from the Italian.