Opinion of Mr Advocate General Tesauro delivered on 3 October 1990

1 Original language: Italian.

2 Judgment in Case 191/84 Raralla v Commission [1986] ECR 1541. Similarly, see the judgments in Case 232/78 Commission v Frame [1979] ECR 2729, Case 152/78 GEMA v Commission [1979] 3173 and Case 124/81 Commissioni United Kingdom [1983] ECR 203.

3 Judgment in Joined Cases 56-60/74 Kampffmeyer v Commission and Council [1976] ECR 711.

4 OJ L 356, p. 1.

5 Law No 2248 of 20 March 1865, Annex F.

6 Article 1659(1) and (2) provides that the successful tenderer may not change the arrangements agreed for the work without authorization from the orderer. Such authorization shall be evidenced in writing

7 Article 2722 reads as follows: The testimony of witnesses shall not be admitted as evidence if it concerns additional agreements or agreements that conflict with the content of a document, and which are alleged to have been concluded earlier or contemporaneously.

8 Under Article 2723, When it is alleged that, after the creation of a document, an additional agreement or one that conflicts with the content of the document was concluded, the court may allow evidence to be given by witnesses only if, having regard to the status of the parties, to the nature of the contract and to any other circumstance, it appears likely that oral additions or amendments were made.

9 Article 2725 provides that When, by law or in accordance with the wishes of the parties, a contract must be evidenced in writing, the evidence of witnesses is accepted only in the case stipulated by paragraph 3 of the preceding article. The same rule applies in cases in which the written form is required on penalty of nullify. Under the aforementioned Article 2724(3), The evidence of witnesses is accepted in any case: ... 3) when the contracting party has at no fault of his own lost the document which served him as evidence

10 In this regard, see the judgment in Case 318/81 Commission v CO.DE.MI. [1985] ECR 3706, in particular 3713, and the Opinion of Mr Advocate General Slynn, ibid., p. 3693, in particular p. 3698 et seq.

11 Article 54 of Royal Decree No 350 of 25 May 1895.