Opinion of Mr Advocate General Darmon

Mr President,

Members of the Court,

1. This dispute is exceptional inasmuch as it does not fall within the general scope of the Court's task of interpreting Community law. The case is not concerned with the provisions of the EEC Treaty at all, except for Article 181, which confers jurisdiction on the Court to give judgment pursuant to any arbitration clause contained in a private law contract such as that concluded between the applicant, Fadex NV, and the Commission.

2. The facts are not in dispute. On 4 December 1979, Fadex NV sent to the competent department of the Commission a tender for the supply and the laying of a floor-covering (Dex-o-tex) for a television studio in Brussels. The tender set a price of BFR 150480; there was an additional charge of BFR 13230 for finishing work, which is not at issue in these proceedings.

3. The fact that the covering was not sufficiently level, which is the only complaint relied on by the Commission against the applicant, is not seriously denied by Fadex, which claims, however, that that defect is not attributable to it. In order to rule on its claim for the payment of BFR 150480 plus interest the Court must consider whether, under the agreements binding the parties, Fadex was required to level the surface prior to laying the covering or, at least, to warn the defendant of the risk it was running by failing first to prepare the surface in question itself.

The claim for the payment of BFR 150480

4. The Commission contends that the Court should dismiss that claim, arguing that Fadex was fully aware that mobile television cameras require a sufficiently level surface in order to operate normally, that its attention had been specially drawn to that point in the course of previous discussions and that it had, moreover, referred to work completed by it on behalf of Radio-Télévision Belge in Brussels. In its rejoinder it laid particular emphasis on a letter dated 3 March 1980 addressed to it by Fadex. It maintains that in that letter the company made no attempt to deny that it had been aware of the specific requirements concerning the work in question and that it admitted that it had simply laid the covering without verifying the condition of the base, which clearly constitutes serious negligence.

5. By an internal memorandum dated 8 November 1979, the department for which the television studio was intended informed Mr Gibbels that the new covering should be level and without joins and sufficiently strong to bear the weight of cameras and their dollies. The Commission was therefore aware that it was necessary for the surface to be flat.

The penalty clause

6. Fadex's claim in this connection is based on Article 13 of its own General Conditions of Sale. The Commission is therefore well founded in its contention that the Court should dismiss that claim since by virtue of an express condition in the order of 14 December 1979 the disputed transaction was subject to the provisions of the Commission's General Terms and Conditions (Reference 10.070/IX/69), Article 2 (1) of which provides that

Accordingly I propose that the Court should

1 Translated from lhe French.