Opinion of Mr Advocate General Van Gerven delivered on 14 November 1990

1 Original language: Dutch.

2 Latent defects must be distinguished from visible defects, which are defects which are visible and which a normally prudent purchaser could have delected (sec Article 1642 of the Civil Code).

3 See page 14, third paragraph from the end of the order for reference.

4 See page 15 of the order for reference, at the top.

5 Ibidem.

6 Judgment in Case 338/85 Pardini v Ministero del Commercio con l'Estero [1988] ECR 2041.

7 See paragraph 9 of the judgment.

8 See paragraph 10 of the judgment. In the judgment in Pardini douhts had arisen regarding the jurisdiction of the Court since the questions submitted had been raised by an Italian magistrate's court in interlocutory proceedings, although there was evidence that the answer to those questions could only be useful for the purposes of the main proceedings which would have to be instituted before another court (see paragraphs 7, 12 and 13 of the decision).

9 See, for instance, the judgment in Case 6/72 Europemballage and Continental Can v Commission [1973] ECR 215 (concerning the interpretation of Article 86 of the Treaty), and the judgments in Case 15/81 Schul [1982] ECR 1409 and Case 299/86 Drexl [1988] ECR 1213 (concerning the interpretation of Article 95 of the Treaty).

10 See the judgment in Case 58/80 Dansk Supermarked v /merco [1981] ECR 181, in which that principle was upheld in connection with the application of Antele 30 of the Treaty.

11 Judgment in Case 15/79 Groenveld v Prodiiktschap voor Vee en Vlees [1979] ECR 3409

12 This passage in Groenveld has been repeatedly upheld by the Court. Sec, for instance, the judgment in Case 237/82 Jongeneel Kaas v Netherlands [1984] ECR 483, at paragraph 22. Contrary to the view expressed by Sulzer and IMP at the hearing, the rule in Groenveld was also upheld by the Court in its judgment in Case 173/83 Commission v France [1985] ECR 491. That case was concerned with a prohibition on the export of waste oil implicitly (but indisputably) laid down in the French legislation.

13 See, in the case of Belgium, the judgment of the Belgian Court of Cassation of 13 November 1959, Pasicnsie I960, 1, p. 313 and the judgment of 6 May 1977, Pasicnsie 1977, I, p. 907; and in the case of Luxembourg, P. Hammelman and G. Ravarani, La responsabilité civile du fait des produits défectueux, in Mélanges dédiés à Michel Delvaux, Luxembourg, 1990, p. 51, atpp 83-88

14 For more deuils in that connection the following may be consulted: C. J. Miller, Comparative product liability, in UK Comparative Law Series, Vol. 6, London 1986, J. Schmidt-Salzcr and H. Hollmann, Kommentar EG-Produkthaftung, Vol. 2, Heidelberg 1990; F. F. Stone, Liability for damage caused by things, in International Encyclopedia of Comparative Law, Vol. XI, Tons, Tubingen 1983; and C. Jocrges et al., Die Sicherheit von Konsumgütern und die Entwicklung der Europaischen Gemeinschaft, Baden-Baden 1988.

15 The Commission thus detects a convergence between the aims of that case-law and those of Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (OJ 1985 L 210, p. 29). However, that directive had not yet entered into force at the time of the events which gave rise to this case.

16 In that regard it makes no difference whether the legal rule in question has to be applied to the legal relationship in question or, in the case of international contracts, is selected by the contracting parties as the rule applicable to the legal relationship between them.

17 See the judgment in Case 231/83 Cullet Ledere [1985] ECR 305, al paragraphs 15 and 16.

18 See, for instance, the judgment in Case 311/85 Vereniging van Vlaamse Reisbureaus v Sociale Dienst van de Plaatselijke en Gewestelijke Overheidsdiensten [1987] ECR 3801, in particular at paragraphs 9 and 10.