C-113/90
ECLI:EU:C:1991:236
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SCHULTE A N D REINERT
O P I N I O N OF MR A D V O C A T E GENERAL M I S C H O delivered on 4 June 1991 *
Mr President, First question Members of the Court,
3. Since the defendants rely on the applicable Community law, the national court submits first of all the following 1. This Opinion concerns preliminary question: questions which have been referred to the Court in an action brought by two German meat-processing undertakings which, in an operation for the disposal of meat held by the Belgian intervention agency which was ' 1 . May it be inferred from Article 2(2)(d) sold at a price fixed at a standard rate in of Commission Regulation (EEC) No advance according to the detailed rules laid 2173/79 of 4 October 1979 that the down by Regulation (EEC) No 1431/87," declaration made by the applicant prevents purchased meat which, on being thawed, him from making a claim on the basis of the revealed mould and part of which, after non-compliance of the goods supplied or on being declared by the German veterinary the basis of latent defects when the goods inspection authorities to be unfit for human are sold in the form of deep-frozen consumption, had to be destroyed. That products and those goods show signs of meat, which the aforementioned regulation mould only after thawing at their place of required to be processed, had been destination and cannot therefore be purchased in order to be processed into considered for processing, or does the meat-based preparations intended for "declaration" in question cover the human consumption. externally ascertainable commercial charac- teristics of the product?'
2. The undertakings concerned ask the 4. Let me state first of all that, since the Brussels court to establish the liability of the sale was made pursuant to Regulation No Belgian State, the intervention agency and 1431/87, it is, in accordance with the third the veterinary inspection authority and also recital of the preamble thereto, subject to of the undertaking through whose stores the the rules laid down by Regulations No products passed before being sent to 2173/79 2 and 2182/77, 3 to which I shall Germany (hereinafter referred to as 'the refer later. defendants'). 2 — Commission Regulation (EEC) N o 2173/79 of 4 October 1979 on detailed rules of application for the disposal of * Original language: French. beef bought in by intervention agencies and repealing 1 — Commission Regulation (EEC) N o 1436/87 of 25 May Regulation (EEC) N o 216/69 (OJ 1979 L 251, p. 12). 1987 on the sale at prices fixed at a standard rate in 3 — Commission Regulation (EEC) N o 2182/77 of 30 advance of certain beef from intervention stocks for September 1977 laying down detailed rules for the sale of processing in the Community, repealing Regulation (EEC) frozen beef from intervention stocks for processing within No 786/87 and amending Regulation (EEC) N o 2182/77 the Community and amending Regulation (EEC) N o (OJ 1987 L 136, p. 26). 168/76 (OJ 1977 L 251, p. 60).
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5. Article 2(2) of Regulation N o 2173/79 9. For my part, I consider that the problem sets out the conditions which a purchase cannot be resolved on the basis of the application to an intervention agency must wording of the relevant provision alone and fulfil in order to be deemed valid for that it is necessary also to examine the consideration. It provides in particular that purpose and the general scheme of the rules the application must: of which it forms part.
c 10. T h e defendants argue that a wide inter- pretation of the waiver clause is indis- pensable in order to facilitate the rapid procedure of operations for the disposal of (d) include a declaration whereby the stocks which would otherwise be unduly applicant waives all claims as to the slowed down by incessant disputes quality and characteristics of the regarding the product delivered. The product which may be assigned to him'. Belgian and United Kingdom Governments also stress that the products in question are sold at prices which are much lower than market prices and that purchasers should 6. It is on the scope of that waiver that the therefore be aware that they are exposing national court is asking the Court to give a themselves to a certain risk. ruling.
11. However, the answer to that may be 7. The United Kingdom argues that the that such an interpretation would be likely literal interpretation of that provision neces- to dissuade undertakings from taking an sarily leads to the exclusion of all claims, interest in the products offered by the inter- whatever they may be. The ordinary vention agencies, which, on all the evidence, meaning of the words requires that to be so. would prejudice the disposal of the stocks. It may indeed be accepted that, taking account of the price offered, purchasers cannot expect to obtain products of the 8. However, the Commission also relies on highest grade. They know, in particular, a literal interpretation to support the that, in time, meat is susceptible of contrary argument, invoking the specific oxidizing even if it has been frozen meaning which is to be given to the terms of according to the rules of the trade. That that provision in the context of the regu- chemical phenomenon, which occurs lation in question. It argues in that respect inevitably, must not, however, be confused that the word 'quality' is to be found in with the mould found to exist in the main Article 1(3) of Regulation N o 1431/87, proceedings, which is the result of biological where reference is made to Annex I, which degradation caused by the appearance of lists meats of a specified category corre- germs, which is clearly less foreseeable. It sponding to a specified quality. As for the should not be forgotten that this case is not word 'characteristics', it refers to the state concerned with refrigerated meat, such as of the product as characterized by certain we can all keep in our refrigerators for factors such as, for example, its presen- several days at a temperature of about tation. + 4 ° C , but with frozen meat, which,
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according to Council Directive 8 3 / 9 0 / products will be processed shall be lodged E E C , 4 must be stored and transported at a with the competent authority of the temperature of -12° C or colder (see Annex Member State where the processing is to I to the directive, Chapter XIII, paragraph take place . . . '. 65).
14. The United Kingdom and the defendants in the main proceedings also rely 12. Oxidization reduces the quality of the on the link between the waiver clause meat, but mould renders it inedible, so that imposed on the purchaser and the possibility it ceases to be meat fit for human of carrying out a prior inspection of the consumption; that represents a change in goods offered which is provided for in the nature of the product rather than a mere Article 13 of Regulation No 2173/79, deterioration in its condition. T o my mind, according to which: it is difficult to accept that the concept of 'characteristics' appearing in the declaration of waiver can cover such a profound change. The risk taken by purchasers should 'Intervention agencies shall make all not include the risk of receiving a product necessary arrangements to enable pros- which has become unfit for the use laid pective tenderers to inspect the products for down by the regulation, namely processing sale before making their applications or into preserved meat intended for human submitting their tenders.' consumption.
15. It is common ground between the parties that the waiver of possible claims by 13. It cannot reasonably be supposed that the applicant is linked to his right to carry the regulations were intended to expose out that prior inspection. That link is purchasers to the risk of incurring a confirmed, moreover, by the eighth recital threefold loss. They will have had to pay a of the preamble to Regulation No 2173/79, price in return for which they will have which states that: obtained nothing and, furthermore, they must finance the destruction of the meat purchased. Finally, they also lose the ' . . . the submission of an application or a amount of the security which the regulation tender is facilitated if prospective purchasers requires them to supply especially to are permitted to inspect the products; . . . it guarantee the performance of their obli- should consequently be provided that the gation to process the meat. Article 3 of parties concerned waive in advance their Regulation N o 1431/87 expressly refers to right to lodge any complaint in respect of Article 4 of Regulation No 2182/77 which the quality and characteristics of the provides that: product which may be assigned to them'.
'Before the contract of sale is concluded, a 16. The waiver must thus be understood as security calculated to guarantee that the the counterpart of the possibility of inspection. It cannot therefore be given a 4 — Council Directive 83/90/EEC of 7 February 1983 subject-matter or a scope which exceeds the amending Directive 64/433/EEC on health problems content of that inspection. The Commission affecting intra-Community trade in fresh meat (OJ 1983 L 59, p. 10). states that, in practice, the purchaser's right
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to carry out that inspection can be exercised 20. The purchaser thus no longer even has only with difficulty, because he does not the option of expressing any preference know from which store the meat which will whatsoever. The fact that it is impossible for be assigned to him will come. him to know, at the time when he is able to carry out his prior inspection, the origin of the lot which will be assigned to him also results from Article 18(2) of Regulation No 2173/79, which specifies that: 17. Several provisions of Regulation No 2173/79 clearly indicate that the purchaser cannot know with certainty the exact source of the lot which he may receive. 'Delivery shall be taken of the goods in accordance with intervention agency rules for release from storage and no claims to any particular lots shall be allowed.' 18. Thus the second subparagraph of Article 2(2) provides that:
21. It is thus clear that the purchaser does not know from which cold store the lot 'The application may also name, in order of which he will obtain comes. He is thus not preference, the cold store or stores where the in a position to carry out inspections of such products applied for are stored.'5 a kind as to guarantee the state of the meat which will be assigned to him. He may, of course, make inquiries regarding the commercial characteristics of the whole of the lot offered. He can also, as the 19. As a result, the purchaser is uncertain as defendants and the United Kingdom stress, to the cold store from which the product take samples in order to thaw them out and which he receives comes. This situation is examine them. All that he can achieve by accentuated under Regulation No 1431/87 doing so, however, is to obtain an idea of applicable to the sales in question. In that the state of the piece analysed, but not of respect, the Commission quotes Article 1(5) the state of the meat which will be specifi- of that Regulation, which specifies that: cally assigned to him.
'Notwithstanding the second subparagraph 22. The total quantity of meat put up for of Article 2(2) of Regulation (EEC) No sale in Belgium under Regulation No 2173/79, purchase applications shall not 1431/87 was 1 500 tonnes. As pointed out name the coldstore or stores where the in particular by the United Kingdom, that products applied for are stored.' meat was necessarily of a non-homogeneous quality. The possibility of inspection 5 — Ii may, moreover, be pointed out that it was the difficulties available to the purchasers was therefore of experienced in applying this rule that ted to its being abandoned in Regulation No 1431/87 (see the sixth recital scarcely any real significance and it cannot of the preamble to that regulation). That confirms the Commission's observations regarding the practice of exer- tip the balance in favour of a wide interpret- cising the purchaser's right of inspection. ation of the waiver clause.
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23. For the same reasons, it is not necessary in by intervention agencies and repealing to address the question whether, by Regulation (EEC) N o 216/69 must be inter- apparently not proceeding to examine the preted as meaning that the declaration goods offered, the plaintiffs in the main referred to therein does not cover any latent proceedings have failed to show diligence in defects.' the exercise of their right of inspection, since they could not in any event thereby derive any certainty regarding the state of the meat which would be finally assigned to Second question them.
27. The national court also seeks a reply to 24. Under Regulation No 1431/79 the the following question: waiver cannot, therefore, owing to the practical impossibility of carrying out an inspection with any real significance, be interpreted other than restrictively. It 'Does not the extension of this cannot, accordingly, include claims relating "declaration" to cover hygiene charac- to possible latent defects in the product teristics which make the product unsuitable assigned. for processing but which are not immediately ascertainable on the spot, conflict:
25. With regard to the question of what claims are excluded as a result of the waiver clause, the Commission explains that such is (a) with the purpose of Commission Regu- the case with claims concerning the presen- lation (EEC) N o 1431/87 of 25 May tation and defects which can be detected by 1987, in so far as it concerns sales of the naked eye. However, I do not consider stocks "for processing"; it necessary to take a position on that point, since the main proceedings concern latent defects. (b) with the purpose of Directive 64/433/EEC in so far as it makes the exporting State responsible for carrying out the health controls on the meat to 26. In the light of the foregoing consider- be exported?' ations, I suggest that the following reply should be given to the first question referred : 28. Clearly, taking account of the fact that I have just suggested that the first question should be answered by giving a narrow 'In the application of Regulation N o interpretation of the 'declaration' of waiver, 1431/87, Article 2(2)(d) of Commission the second question has become devoid of Regulation (EEC) No 2173/79 of 4 purpose. It is only in the alternative, October 1979 on detailed rules of therefore, that I will now go on to examine application for the disposal of beef bought that question.
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OPINION OF MR MISCHO —CASE C-l 13/90
Question 2(a) 5 of the Directive.7 That responsibility must be capable of being enforced in the national courts, in accordance with the rules 29. In my examination of the first question I have already indicated that a wide inter- applicable to the non-contractual liability of pretation of the waiver clause would be the public authorities. As regards both the incompatible with the purpose of Regulation conditions to which it is subject and the No 1431/87, which concerns sale for results to which it can give rise, such an processing. I would add that if the framers action would be different from that in of the regulation had actually foreseen that which the selling authority is sued for purchasers would have to assume the risk of defects in the meat delivered and which is obtaining meat which was unfit for based on the contractual obligations of that processing, they should have provided for authority. the release of the security where the meat had been processed or destroyed.
Question 2(b) 31. It follows that even a broad interpret- ation of the waiver clause cannot prevent a purchaser who has imported meat into 30. There is no direct relationship between another Member State and found that the Directive 64/433/EEC 6 and Article 2(2) of Member State of origin has not fulfilled its Regulation No 2173/79. Whatever interpret- obligations regarding inspections on export ation may be given of the waiver clause, the from having that Member State declared Member State remains responsible for the liable in law and, where appropriate, from health inspection to be carried out on obtaining compensation for the damage exported meat, pursuant to Articles 3, 4 and which he has suffered.
32. Taking account of all the foregoing, I suggest that the Court should answer the questions referred by the national court as follows:
'In the application of Regulation (EEC) N o 1431/87, Article 2(2)(d) of Commission Regulation (EEC) No 2173/79 of 4 October 1979 on detailed rules of application for the disposal of beef bought in by intervention agencies and repealing Regulation (EEC) N o 216/69 must be interpreted as meaning that the declaration referred to therein does not cover any latent defects.
In view of the reply to the first question, it is not necessary to answer the second question.'
7 — As amended by Council Directive S3/807EEC of 7 6 — Directive 64/433/EEC of lhe Council of 26 June 1964 on February 1983 amending Directive 64/433/EEC on health health problems affecting intra-Community trade in fresh meat problems affecting intra-Community trade in fresh meat (OJ English Special Edition 1963-64, p. 185). (OJ 1983 L 59, p. 10).
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