C-71/87

GREEK STATE v INTER-KOM

OPINION OF MR ADVOCATE GENERAL MISCHO delivered o n 11 February 1 9 8 8 *

Mr President, (a) the oil remaining in storage shall be Members of the Court, held at the purchaser's own risk;

1. In a standing invitation to tender for the sale of olive oil held by the Greek inter- (b) the purchaser shall pay to the inter- vention agency, the Inter-Kom company vention agency a storage charge was awarded some 8 000 tonnes of oil. A calculated by reference to the quantity consignment of 2 423 tonnes of lampante oil to be withdrawn plus an amount to be was awarded to it by decision of 7 determined for each period of 30 days September 1983. The intervention agency of additional storage or part thereof'. called upon the applicant to withdraw the consignment by no later than 6 December 1983, in accordance with Article 13 (1), as amended, ' of Regulation No 2960/77 on detailed rules for the sale of olive oil held by intervention agencies, 2 which provides 3. Loading of the consignment of 2 423 that where the purchaser has been awarded tonnes began on Friday, 2 December 1983. a quantity in excess of 3 000 tonnes, with- It was stopped on the same day at 3.30 p. m. drawal is to be completed not later than the because of 'an unforeseen deterioration in 90th day following receipt of the infor- the weather'. No work was done on mation concerning the result of his partici- Saturday, 3 December, and Sunday, 4 pation in the tender. December 1983. On Monday, 5 December, between 4 and 8 p. m., delivery was suspended because of a power cut. Both the electricity company and the undertaking on whose premises the oil was stored are 2. Article 15 of the same regulation controlled by the Greek State. There was a provides as follows: further power cut lasting four hours on 6 December 1983. Thus, 882 642 tonnes of oil were withdrawn only on the following day, 7 December 1983, that is to say, after the expiry of the prescribed time-limit. 'If the withdrawal of the oil is not completed by the date stipulated in Article 13(1):

5. An action was brought against that Thus, in so far as the Greek language decision before the national courts. At first version differs from the text as published in instance, the Greek State was ordered to 1971 and since then maintained in the other release the amount retained on the ground languages, it can only be a translation error. that the delay in the loading and acceptance of the goods was due to unforeseeable events beyond the control of Inter-Kom and because the Greek State was unable to deliver the goods sold to the purchaser First question through the company appointed to execute the contract. On appeal against that decision, the First Chamber of the Efeteio Athinon (Court of Appeal, Athens) referred 7. First of all the Efeteio Athinon asks the four questions to the Court of Justice the Court what is the meaning of the expression wording of which I will recall as and when I 'at the purchaser's own risk' in Article 15 consider them. (a) of Regulation No 2960/77.

GREEK STATE v INTER-KOM

purchaser will still be required to pay the be placed at the purchaser's disposal and the full agreed price'. final date for completion of the withdrawal of the oil should be laid down; . . . it should also be provided that any consequences of delay in withdrawal should be borne by the 11. The question whether the rule laid purchaser;' down in Article 15 (a) could apply even if the purchaser is not liable at all for the late withdrawal of the goods concerns the inter- pretation of the introductory sentence of 14. The purpose therefore is to induce Article 15 ('If the withdrawal of the oil is successful tenderers, by means of the not completed by the date stipulated . . . ') sanctions provided for in Article 15, to and not of paragraph (a). That problem is withdraw the oil within the prescribed time- the subject of the second and fourth limit. However, at the same time and for the questions, which I would like to consider same purpose, the Community legislature now. wanted to fix the time at which the oil must be made available to the purchaser. T o that end, the second sentence of Article 13 (1) provides that 'withdrawal may begin as soon as the provisional amount referred to in Second and fourth questions Article 12 (1) has been paid'. From that moment, the body in charge of the sale must therefore be in a position to deliver the goods. 12. The national court asks secondly whether the purchaser is 'liable even if events occur for which he is not responsible, such as, in this case, bad weather or a 15. It follows that in so far as delivery can power failure at the premises of the agent be made only by means of technical instal- designated to carry out the "Eleouryiki" lations such as pumps, the body in charge of contract'. In its fourth question, it seeks to the sale must be able to make such instal- ascertain to which of the two parties delay lations work in order that the purchaser can must be attributed under those circum- effectively exercise his right to withdraw the stances and what are the consequences of goods. that default.

the electricity cuts and consented to them 22. In my view, the Commission is right but failed to inform Inter-Kom of them. when it states that in this case, the ratio legis of the provision at issue is to ensure the normal disposal of goods in storage in order to avoid the overfilling of warehouses. An exceptional delay on the part of one 18. With regard to the cessation of loading successful tenderer among many is not of due to bad weather, I suppose, in the such a nature as to seriously endanger that absence of more precise information, that objective. In principle, therefore, it must be that incident did not give rise to an elec- possible for account to be taken of force tricity cut, but that the sea became so rough majeure. It would certainly not have been that the resultant movements of the ship possible to refuse to take it into account if made loading impossible. the ship which was to take delivery of the goods had been destroyed by fire after its arrival in the port of Elefsis.

GREEK STATE v INTER-KOM

year, so that it would be unreasonable to Third question require a trader to allow for such a possi- bility? 29. The national court also asks 'what are the consequences for the purchaser under those provisions of the fact that he began to load the goods only four days before the expiry of the time-limit of 90 days.' 26. Obviously it is not for the Court of Justice of the European Communities to decide that question but for the Efetio Athinon, which has jurisdiction to rule on 30. In that regard, the Commission is the substance of the case. undoubtedly right when it says that 'time- limits are laid down in order to be used to the full and traders may have legitimate reasons for fulfilling their obligations very shortly before the expiry of the time-limits granted to them'.

OPINION OF MR MISCHO—CASE 71/87

say, 7 December 1983. Technically, it thus main proceedings, I propose that it should was possible in any event to withdraw 882 reply as follows to the third question: tonnes of oil per day. It follows that a quantity of 2 423 tonnes could be loaded in 'For the purposes of Article 13 (1) of Regu- a little less than three days. lation No 2960/77, it is sufficient for the purchaser to begin withdrawal of the oil at a 34. However, since the Court, in the time when loading may, under normal context of a reference for a preliminary conditions, be completed before the expiry ruling, cannot rule on a specific point of the of the time-limit.'

Conclusion

35. T o recapitulate, I would propose that the Court reply as follows to the Efeteio Athinon :

'(1) The expression "at the purchaser's own risk" in Article 15 (a) and Regulation N o 2960/77 means that even if the goods perish or deteriorate after the expiry of the time-limit laid down for their withdrawal, the purchaser will still be required to pay the whole of the agreed price.

(2) The purchaser does not have to bear the consequences of a delay in the with- drawal of the goods where that delay was due to a power failure which temporarily prevented the seller from delivering the goods to him, or to a period of bad weather which may be regarded as a case of force majeure.