Report for the Hearing delivered in Case 71/87

I — Legal framework

In the 14th recital in the preamble to Regulation No 2960/77, the Commission states that:

Consequently, Article 13 (1) of the same regulation, as amended by Regulation No 2041/83, provides that:

The said Article 10, as amended by Commission Regulation No 883/79 of 3 May 1979 amending Regulation No 2960/77 (Official Journal L 111, p. 16) provides that:

Article 15 of Commission Regulation No 2960/77 reads as follows:

Finally, Article 9 of Commission Regulation No 1000/83 of 27 April 1983 opening a standing invitation to tender for the sale of olive oil held by the Greek intervention agency (Official Journal L 112, p. 14) provides that:

II — Facts and procedure

In May 1983 the Greek intervention agency opened an invitation to tender under Regulation Nos 1000/83 and 2960/77 for the sale of approximately 65000 tonnes of olive oil. The company Inter-Kom Emboriki kai Biomichaniki Epicheirisis Elaion, Liparon kai Trofimon AE was awarded approximately 8000 tonnes among which was a consignment of 2423 tonnes of lampante grade olive oil awarded to it by a decision dated 7 September 1983. Subsequently, the intervention agency called upon the applicant to withdraw the said consignment before 6 December 1983.

After paying the provisional amount of the sale price, the applicant sent a ship to Eleusis to withdraw the goods at issue, which were stored in warehouses belonging to a cooperative (called Elaiourgiki), which acted as agent for the intervention agency. Loading began on Friday, 2 December 1983. Because of bad weather and a power failure in the warehouse, loading was interrupted several times and for that reason could not be completed before 6 December. A quantity of 882642 kg was not withdrawn until the following day, 7 December.

Consequently, on the basis of Article 15 of Regulation No 2960/77 and having regard to Article 9 of Regulation No 1000/83, the intervention agency retained an amount of DR 1371620 by way of storage charges for one day's delay.

That measure was the subject of an action brought by the applicant against the Greek State (hereinafter referred to as the defendant) before the Polymeles Protodikeio (Court of First Instance), Athens, which ordered the defendant to repay the abovementioned amount. The defendant lodged an appeal against the judgment at first instance and the Court of Appeal, Athens, before which the case was heard, considered that the dispute raised a question of Community law. Therefore, by a judgment of 10 November 1986, it referred the following questions to the Court of Justice for a preliminary ruling:

The order for reference was received at the Court Registry on 6 March 1987. în accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted by the applicant, represented by Mr Lambropoulos, lawyer, Athens, by the defendant, represented by Mr Stavropoulos, Mr Laïos and Mr Tsotsanis, acting as Agents, and by the Commission of the European Communities, represented by Mr Yataganas, a member of its Legal Department, acting as Agent.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory enquiry. However, it called upon the Commission to reply in writing to a question. By decision of 30 September 1987 adopted under Article 95 (1) and (2) of the Rules of Procedure, the Court assigned the case to the Second Chamber.

III — Written observations submitted to the Court

Both the applicant and the defendant lodged, as an annex to their written observations, a certificate issued by the Greek Public Electricity Service stating that the supply of electricity was cut on 5 December 1983 between 4 and 8 p. m. at the Elaiourgiki cooperative's substation owing to annual plant maintenance and that the management of the cooperative had been informed of the cut and agreed to it on 29 November 1983.

The applicant states that the cooperative which acted as agent for the defendant in the performance of its obligations had been aware of the power cut. Notwithstanding that fact, it took no steps to inform the applicant so that the latter could make an additional effort to withdraw the goods. Once the goods awarded have been completely paid for, the defendant is obliged to deliver them but did not do so within the time-limit laid down. Consequently, it has delayed in the performance of its obligations, since there was no fault on the pan of the applicant in its capacity as the person entitled to the benefit of those obligations.

The time-limit of 90 days laid down for the withdrawal of the goods allocated does not take account of events beyond the control of the purchaser. Consequently, any circumstance which is not within the scope of acts concerning the purchaser and of such a nature as to prevent him taking possession of the goods within the time-limit laid down increases that time-limit by a period equal to the length of time during which the circumstance continues. The fact that the applicant began loading the goods only four days before the end of the 90-day period is of no importance because four days was quite sufficient if the withdrawal had taken place under normal conditions.

A period of very bad weather and a power cut are fortuitous and unforeseeable events outside the control of the purchaser, do not come within his sphere of business and he is in no position to avoid them, even by exercising exceptional care and prudence. The burden of such events must be borne by the economically stronger party, that is to say, in this case, the defendant.

The defendant contends, in regard to the first question, that the time-limits laid down for withdrawal of the goods awarded are preclusive, like all time-limits laid down by law for the exercise by citizens of their rights in general, and responsibility for failure to comply with them must be borne exclusively by the purchaser, who is not entitled to rely on force majeure. There is no exception for exceptional circumstances in the relevant provisions, which must be regarded as having already taken account of such circumstances. If the Community legislature had envisaged an extension of the time-limit in cases of force majeure, it would have so provided, as it did, for example, in Article 18 of Regulation No 2960/77.

Thus, where the goods in storage are totally lost, the purchaser is entitled only to a refund of the amount which he lodged for the purchase and where they have deteriorated, he is entitled only to a refund of a part of that amount representing the loss of quality.

In this case, even if the relevant provisions offered the possibility of extending the time-limits in a case of force majeure or in other exceptional circumstances, the power cut and the bad weather pleaded by the applicant by way of justification are in no way unusual or unforeseeable events during winter months such as the month of December in Greece.

The applicant let 84 days pass without using them and arrived only on Friday, 2 December, to begin loading the goods. Thus, it had only three working days before the end of the time-limit in which to complete the withdrawal. By doing so, it hoped to benefit from good weather conditions even though bad weather may be regarded as normal at any time, particularly in the month of December.

Even if, from the legal point of view, the purchaser cannot be regarded in this case as being guilty of delay, it failed to withdraw the goods during the prescribed time-limit and for that reason it is required to run any risk involved in regard to the goods. Furthermore, it will be required to pay the cost of storage, as is provided in Article 15 (b) of Commission Regulation No 2960/77.

In conclusion, the defendant proposes that the Court reply to the questions referred to it as follows:

The Commission emphasizes first that decisive importance must be accorded to a fact which does not emerge clearly from the documents in the case, namely the day on which the decision allocating the goods was notified to the purchaser, which is the date from which the three-month time-limit is calculated, in accordance with the second subparagraph of Article 13 (1) of Regulation 2960/77, as amended by Regulation No 2041/83. Since that provision requires that the successful tenderer be informed of the decision awarding goods to him and that, in this case, that decision was adopted on 7 September 1983, it maybe logically supposed that the applicant was informed thereof on the following day at the very earliest, that is to say, 8 September 1983. Even supposing that the decision was notified on the very day it was adopted and that time began to run the following day, the time-limit expired on 7 December 1983, which means that withdrawal of the goods took place within the time-limit. Under those circumstances, the entire case has no purpose and the retention of the contested amount was in fact carried out on the basis of an error in the calculation of the time-limit.

However, in case the time-limit expired on 6 December 1983, the Commission submits the following observations.

A literal interpretation of the expression own risk contained in Article 15 of Regulation No 2960/77 could lead to the conclusion that the purchaser is to bear all the consequences, regardless of the reason for which the goods were not withdrawn in time. However, account must be taken of cases of force majeure, even if no force majeure clause is contained in the measure, on condition that it does not conflict with the purpose of the provisions at issue.

The ratio legis of Article 15 is clearly the normal disposal of the goods in storage in order to avoid the overfilling of the warehouses. A delay of one day does not endanger that objective. Consequently, it is in principle possible to rely on force majeure.

A violent atmospheric disturbance accompanied by a power cut could in fact be regarded as a case of force majeure, due to facts totally outside the control of the purchaser, which it was impossible to foresee or avoid, whatever the care exercised by the purchaser. Furthermore, as is shown by the completion of the loading in this case, four days was perfectly adequate for that operation under normal circumstances. Consequently, it cannot be argued that by waiting until the last four days of the time-limit, the applicant failed to exercise the necessary care. After all, time-limits are fixed in order to be used to the full and traders might have legitimate reasons for fulfilling their obligations shortly before the expiry thereof.

Finally, the retention of an amount of DR 1371620 in respect of storage charges for one day's delay could be regarded in the above circumstances as a disproportionate measure compared to the applicant's actual responsibility and the objectives which Article 15 seeks to achieve.

In conclusion, the Commission proposes that the Court should reply as follows to the questions referred to it for a preliminary ruling by the Efeteio Athinon:

IV — Reply to a question put by the Court

In reply to the question whether the storage charge referred to in Article 15 (b) of Regulation No 2960/77 and fixed at DR 150 per 100 kilograms by Article 9 of Regulation No 1000/83 represents the real cost of storage or also contains a penalty element for the purchaser's delay, the Commission stated that the storage charge did in fact contain a penalty element because it is higher than the the storage charges normally applied in the Member State concerned. That situation does not affect the conclusions which it draws in its observations and the content of the replies which it proposes that the Court should give to the national court.

1 Language of the Case: Greek.