Opinion of Mr Advocate General Lenz

Mr President,

Members of the Court,

In these proceedings for a preliminary ruling, it is the task of the Court of Justice to interpret the Community provisions regarding food aid in order to clarify the relationships between the Community, the national intervention agencies and traders in carrying out a food-aid programme.

A — The facts may be summarized as follows :

In the early part of 1976, the Council of the European Communities declared that it proposed, by way of Community action, to grant 3750 tonnes of husked long-grain rice to the Republic of the Niger under its 1975/76 food-aid programme.

On 10 September 1976, the Commission therefore adopted Decision 76/748/EEC, addressed to the Italian Republic, relating to the urgent supply of husked long-grain rice as food aid to the Republic of the Niger (Official Journal 1976, L 259, p. 22). In view of the need to provide aid rapidly, the Commission considered it necessary to have recourse to contracts by mutual agreements and provided therefore, in Article 1 of the aforementioned decision, that the Italian intervention agency, the Ente Nazionale Risi (hereinafter referred to as ENR, should conclude a private contract for the purchase on the Community market of 3750 metric tonnes of husked long-grain rice for delivery to the Republic of the Niger.

The ENR concluded a contract with Eurico srl covering purchase and delivery of the rice in accordance with the terms of the decision.

The authorities in the country of destination criticized the quality of the product, and the ENR, on the Commission's instructions, initially suspended payment of the entire sum due (LIT 1770000000) and later made only a part-payment of LIT 1500000000.

Eurico then brought an action before the Tribunale di Milano [District Court, Milan] against the ENR for payment of the difference of-LIT 270000000- plus compensation for monetary depreciation and interest.

By judgment of 19 June 1980, the action was dismissed on the ground that the ENR was not a proper defendant. The reason for the Tribunale's decision was that it considered that the ENR had acted as a duly authorized representative of the Commission. Because it had attached the Commission decision of 10 September 1976 to the public invitation to tender, the ENR had acted in the name of the Commission. Furthermore, the Commission had been involved in the performance of the contract at every stage and gave orders to the ENR, which were always complied with.

Eurico appealed against that judgment to the Corte d'Appello [Court of Appeal], Milan, and at the same time instituted proceedings against the Commission before the Tribunale di Milano for payment of LIT 283000000 plus compensation for monetary depreciation and interest.

In those proceedings, which gave rise to this reference for a preliminary ruling, the Commission objected that it was not a proper defendant. It maintained that the Italian State and the ENR, as contractual parties, were the only proper defendants, since Community law entrusts to the Member States the task of carrying out all operations connected with implementation of the food-aid programme of the EEC.

The national Courtis of the opinion that the Commission, and therefore, pursuant to Article 211 of the EEC Treaty, the European Economic Community, is bound to fulfil its contractual obligations in the capacity of party to the contract only if the ENR, when entering into the contract in question, acted as a duly authorized representative of the Commission.

Since, in the view of the Tribunale di Milano, it is not clear whether or not the ENR is a duly authorized representative of the EEC, that court, by order of 24 March 1983, stayed the proceedings and referred the following question to the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty:

B — My opinion on that question is as follows :

1. The court making the reference correctly takes the view that in principle it has jurisdiction in regard to the contractual liability of the Community pursuant to the first paragraph of'Article 215, Article 183 and Article 211 of the EEC Treaty.

2. In the view both of the national court and of the plaintiff in the main proceedings, an affirmative answer to the question is suggested essentially by the fact that the food aid was granted in fulfilment of an international convention binding on the Community. The reason for the inclusion of food aid in the Community policy regarding the market in rice is, in the opinion of the court, principally that mobilization of substantial quantities of rice might have an effect on the common market in that product. Accordingly it is necessary to proceed on the basis that, in the case of food aid, national intervention agencies cooperate directly with the EEC regarding the mobilization of products and do not, as in the case of Community intervention in agriculture, act on behalf and in the interests of the Member States. Finally, it is not clear from the regulations on Community financing of expenditure in respect of food aid that the intervention agencies did not act as agents for the Community in such cases.

3. In assessing that argument, it must first be stated that the division of powers between the Community and the Member States is exclusively regulated by Community law and not by the private law of the Member States. The division of contractual liability between the organs of the Community and the Member States corresponds to the division of powers laid down in Community law, which will now be examined.

4. Those provisions show clearly that it is primarily the Member States which are responsible for the proper use of the funds made available by the Community for financing Community food aid. Essentially therefore it is the responsibility of the Member States, represented, where appropriate, by their intervention agencies, to reduce the purchase price in accordance with national law in cases of unsatisfactory performance of the contract. The proper legal remedy where such measures are involved is, as this Court has consistently held — albeit in the context of the activity of intervention agencies as independent bodies (see in particular Cases 99/74, 101/78 and 133/79) — an action before the national courts against the Member States or their intervention agencies. If the Commission were to be regarded as a proper defendant in such proceedings, it would mean that, contrary to the terms, meaning and purpose of the mobilization and financing system laid down in Community law, the Community, rather than the competent authorities of the Member State concerned, might have to pay the amounts alleged to be due under the contracts.

5. Finally, it is necessary briefly to consider whether, as the plaintiff in the main action contends, the behaviour of the Commission during the performance of the contract was of such a nature as to influence the apportionment of liability between the organs of the Community and the Member States.

C — In conclusion, I propose that the Court of Justice reply to the question referred to it as follows :

The law to be applied to the legal relationships between the Commission and the ENR with regard to the conclusion of the contract for the purchase of 3750 tonnes of husked long-grain rice for delivery to the Republic of the Niger pursuant to Commission Decision 76/748/EEC of 10 September 1976 is not the national — in this case Italian — private law of agency, but rather the rules of Community law on the division of powers between the organs and authorities of the Community and those of the Member States. Under Community law, the ENR was acting on its own behalf.

1 Translated from the German.

2 Judgment of 12. 12. 1979 in Case 12/79 Hans Otto Wagner GmbH Agrarhandel KG v Commission of the European Communities [1979] ECR 3657; Judgment of 10. 6. 1982 in Case 217/81 Compagnie Interagra SA v Commission of the European Communities [1982] ECR 2233.

3 Judgment of 26. 11. 1975 in Case 99/74 Société des Grands Moulins des Antilles v Commission of the European Communities [1975] ECR 1531; Judgment of 13. 2. 1979 in Case 101/78 Granaria BVv Hoofdproduktschap voor Akkerbouwprodukten [19791 ECR 623; Judgment of 27. 3. 1980 in Case 133/79 Sucrimex SA and Westzucker GmbH v Commission of the European Communities [1980] ECR 1299.

4 Judgment of 14. 1. 1981 in Case 819/79 Federal Republic of Germany v Commission of the European Communlies [1981] ECR 21.

5 Judgment of 26. 11. 1975 in Case 99/74 Société äes Grands Moulins des Antilles v Commission of the European Communities [1975] ECR 1531; Judgment of 13. 2. 1979 in Case 101/78 Granaria BVv Hoofdproduktschap voor Akkerhouwprodukten [1979] ECR 623; Judgment of 27. 3. 1980 in Case 133/79 Sucrimex SA and Westzucker GmbH v Commission of the European Communities [1980] ECR 1299.

6 Judgment of 12. 12. 1979 in Case 12/79 Hans Otto Wagner GmbH Agrarhandel KG v Commission of the European Communties [1979] ECR 3657; Judgment of 10. 6. 1982 in Case 217/81 Compagnie Interagra SA v Commission of the European Communities [1982] ECR 2233.