Opinion of Mr Advocate General

Mr President,

Members of the Court,

1. The Tribunal de commerce, Paris, has submitted a question to the Court for a preliminary ruling on the compatibility with certain provisions of the EEC Treaty of French case-law according to which a manufacturer or trader is not entitled to limit his liability as regards latent defects in goods which he has supplied.

Background

2. To ensure a proper understanding of the question raised, it is necessary, in my view, to begin with a brief outline of the facts of the case and the issues it raises.

3. Let us now turn to the case-law forming the subject-matter of the questions raised. That case-law concerns Articles 1641 to 1643 of the French Civil Code, which deal with the vendor's obligation to provide a guarantee in respect of any latent defects in the goods sold by him. Article 1643 allows the vendor to escape liability for latent defects, at least where he was unaware of them. According to well-established French case-law, that possibility of escaping liability is not available to manufacturers or persons selling goods by way of trade. The French case-law raises an irrebuttable presumption that such persons are aware of any defects in the goods supplied by them. For that reason any clauses limiting liability are considered null and void, unless they are incorporated in a contract between two undertakings operating in the same specialized field.

4. Before answering the questions submitted, there is a further point I wish to make. The national court points out that its decision to refer a question to the court for a preliminary ruling also stems from the fact that since the dispute between Alsthom and the Netherlands purchaser has been submitted to arbitration, Alsthom cannot in its own defence ask the arbitration tribunal to submit a reference for a preliminary ruling since an arbitration tribunal is not qualified to bring a matter before the Court of Justice. In that connection the national court considers that Sulzer, on the other hand, is able to make such a request in the proceedings pending before it. The order for reference further states that Alsthom has expressly declared that it supports Sulzer's request. In the same passage the national court also takes formal note of Sulzer's assertion that it and Alsthom are undertakings engaged in the same specialized field, in which case, as stated above, a clause limiting liability stipulated between them is valid.

5. In its observations on the question submitted, the Commission deals with the interpretation of Article 2 of the Treaty separately. I do not propose to follow that approach since it is apparent from the wording of the question that the national court does not seek a ruling on Articles 2 and 3 read separately, but in conjunction with Articles 34 and 85 of the Treaty. It is apparent from the Court's case-law, moreover, that Articles 2 and 3 of the Treaty contain a number of objectives — couched in general terms — which are set out in concrete terms in the other provisions of the Treaty. The objectives referred to in Articles 2 and 3 may contain important pointers relevant to the interpretation of those other Treaty provisions and are therefore best discussed together with those provisions.

Interpretation of Article 34 of the EEC Treaty

6. Article 34 of the EEC Treaty prohibits quantitative restrictions on exports and all measures having equivalent effect. Article 34 must, like all the rules in the Treaty, be observed by all the authorities of the Member States, including their judicial authorities. Hence a rule laid down by the courts may also fall within the prohibition contained in Article 34.

7. It is worth noting that the national court as well as Alsthom and Sulzer seem to start from the premise that the permissibility of clauses limiting liability is restricted only in France to the detriment of manufacturers or traders. That is far from certain: a similar presumption has long since been applied by the Belgian and Luxembourg courts in their case-law (although in Belgium it may be rebutted in exceptional cases), and it is not unlikely that comparable restrictions may exist in other Member States as well, based on considerations relating to the protection of consumers.

8. The object of the case-law is not in any way to establish a difference of treatment between a State's export trade and its domestic trade. Rather, that case-law seems to be based, as the Commission rightly points out, on the concern to afford greater protection to consumers in connection with the purchase of defective products, by precluding the stipulation of clauses limiting liability for the benefit of manufacturers or traders.

The interpretation of Articles 3(f), 5 and 85 of the Treaty

9. As stated above, the national court wishes to ascertain whether the case-law in question leads to a distortion of competition between French undertakings and other Community undertakings. However, Articles 3(f) and 85 are not concerned with such a distortion of competition. Although they relate to the maintenance of competition within the Common Market, those provisions impose a prohibition on agreements and concerted practices which distort competition between undertakings. There is no question of any such agreements or concerted practices in the situation before the national court.

Conclusion

10. On the basis of the foregoing considerations, I propose that the Court answer the question submitted for a preliminary ruling as follows:

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.