1 BY A JUDGMENT OF 10 NOVEMBER 1986, WHICH WAS RECEIVED AT THE COURT ON 6 MARCH 1987, THE EFETIO ATHINON REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY FOUR QUESTIONS ON THE INTERPRETATION OF CERTAIN PROVISIONS OF COMMISSION REGULATION NO 2960/77 OF 23 DECEMBER 1977 ON DETAILED RULES FOR THE SALE OF OLIVE OIL HELD BY INTERVENTION AGENCIES ( OFFICIAL JOURNAL L 348, P . 46 ).
2 THOSE QUESTIONS WERE RAISED IN PROCEEDINGS BETWEEN INTER-KOM EMBORIKI KAI VIOMIKHANIKI EPIKHIRISIS ELEON, LIPARON KAI TROFIMON AE, A COMPANY INCORPORATED IN GREEK LAW, ( HEREINAFTER REFERRED TO AS "THE PLAINTIFF ") AND THE GREEK STATE CONCERNING THE QUESTION WHO MUST BEAR THE STORAGE COSTS OCCASIONED IN A SALE BY TENDER BY A FAILURE TO COMPLY WITH THE TIME-LIMIT LAID DOWN FOR THE WITHDRAWAL OF THE GOODS AWARDED .
3 IN A TENDERING PROCEDURE ORGANIZED UNDER COMMISSION REGULATION NO 2960/77, CITED ABOVE, AND NO 1000/83 OF 27 APRIL 1983 OPENING A STANDING INVITATION TO TENDER FOR THE SALE OF OLIVE OIL HELD BY THE GREEK INTERVENTION AGENCY ( OFFICIAL JOURNAL L 112, P . 14 ), THE GREEK INTERVENTION AGENCY, BY A DECISION OF 7 SEPTEMBER 1983, AWARDED THE PLAINTIFF INTER ALIA A LOT OF 2 423 TONNES OF LAMPANTE OLIVE OIL . SUBSEQUENTLY, THE INTERVENTION AGENCY CALLED UPON THE PLAINTIFF TO WITHDRAW THE SAID LOT BY NOT LATER THAN 6 DECEMBER 1983 IN ACCORDANCE WITH ARTICLE 13 ( 1 ) OF REGULATION NO 2960/77, AS AMENDED BY COMMISSION REGULATION NO 2041/83 OF 22 JULY 1983 AMENDING FOR THE SIXTH TIME REGULATION NO 2960/77 ( OFFICIAL JOURNAL L 200, P . 25 ), THAT TIME-LIMIT BEING CALCULATED IN THE LIGHT OF THE FACT THAT THE TOTAL AMOUNT OF THE LOTS AWARDED TO THE PLAINTIFF WAS GREATER THAN 3 000 TONNES .
4 AFTER PAYING THE PROVISIONAL AMOUNT OF THE SELLING PRICE, THE PLAINTIFF CHARTERED A SHIP IN ORDER TO WITHDRAW THE LOT AWARDED, WHICH WAS STORED AT ELEFSIS IN THE WAREHOUSES OF A COOPERATIVE KNOWN AS ELEOURYIKI, WHICH WAS ACTING ON BEHALF OF THE INTERVENTION AGENCY . LOADING COMMENCED ON FRIDAY, 2 DECEMBER 1983 . BECAUSE OF BAD WEATHER AND POWER CUTS IN THE WAREHOUSES, LOADING COULD NOT BE COMPLETED BEFORE 6 DECEMBER . IN FACT, A QUANTITY OF APPROXIMATELY 882 TONNES WAS WITHDRAWN ONLY ON THE FOLLOWING DAY .
5 CONSEQUENTLY, THE INTERVENTION AGENCY WITHHELD AN AMOUNT OF DR 1 371 620 BY WAY OF ADDITIONAL STORAGE CHARGES FOR ONE DAY' S DELAY UNDER ARTICLE 15 OF REGULATION NO 2960/77 AND ARTICLE 9 OF REGULATION NO 1000/83 . THAT MEASURE WAS THE SUBJECT OF AN ACTION BROUGHT BY THE PLAINTIFF AGAINST THE GREEK STATE . THE EFETIO ETHINON, BEFORE WHICH THE CASE CAME ON APPEAL, REFERRED THE FOLLOWING QUESTIONS TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING :
"1 . WHAT IS THE MEANING OF THE EXPRESSION "AT THE PURCHASER' S OWN RISK" CONTAINED IN THE RELEVANT PROVISIONS OF COMMISSION REGULATION NO 2690/77, AS AMENDED BY COMMISSION REGULATION NO 2041/83?
2 . IN PARTICULAR, IS THE PURCHASER LIABLE EVEN IF EVENTS OCCUR FOR WHICH HE IS NOT RESPONSIBLE, SUCH AS, IN THIS CASE, BAD WEATHER OR A POWER CUT AT THE PREMISES OF THE AGENT DESIGNATED TO CARRY OUT THE "ELEOURYIKI" CONTRACT?
3 . 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?
4 . WHICH OF THE TWO PARTIES IS IN DEFAULT UNDER THOSE PROVISIONS AND ACCORDING TO THE FACTS OF THE CASE AND WHAT ARE THE CONSEQUENCES OF THE DEFAULT?"
6 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE LEGAL FRAMEWORK OF THE CASE, THE FACTS OF THE MAIN PROCEEDINGS AND THE OBSERVATIONS SUBMITTED TO THE COURT, WHICH ARE MENTIONED ARE DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .
FIRST, SECOND AND FOURTH QUESTIONS
7 AS CAN BE SEEN FROM THE STATEMENT OF THE REASONS ON WHICH THE JUDGMENT MAKING THE REFERENCE IS BASED, THE NATIONAL COURT' S FIRST, SECOND AND FOURTH QUESTIONS ARE ESSENTIALLY DESIGNED TO ASCERTAIN WHETHER ARTICLE 15 OF REGULATION NO 2960/77 MUST BE INTERPRETED AS MEANING THAT IF THE TIME-LIMIT LAID DOWN FOR THE WITHDRAWAL OF THE GOODS AWARDED IS EXCEEDED, THE PURCHASER IS TO BEAR THE ADDITIONAL STORAGE COSTS EVEN IF THE DELAY IS DUE TO CIRCUMSTANCES OUTSIDE HIS CONTROL SUCH AS A DETERIORATION IN THE WEATHER OR A POWER FAILURE IN A WAREHOUSE BELONGING TO AN AGENT OF THE INTERVENTION AGENCY .
8 THE SAID ARTICLE 15 READS AS FOLLOWS :
"IF THE WITHDRAWAL OF THE OIL IS NOT COMPLETED BY THE DATE STIPULATED IN ARTICLE 13 ( 1 ):
( A ) THE OIL REMAINING IN STORAGE SHALL BE HELD AT THE PURCHASER' S OWN RISK;
( B ) THE PURCHASER SHALL PAY TO THE INTERVENTION AGENCY A STORAGE CHARGE CALCULATED BY REFERENCE TO THE QUANTITY TO BE WITHDRAWN PLUS AN AMOUNT TO BE DETERMINED FOR EACH PERIOD OF 30 DAYS OF ADDITIONAL STORAGE OR PART THEREOF ."
9 IN THAT REGARD, THE GREEK STATE CONTENDS THAT THE TIME-LIMIT AT ISSUE IS PRECLUSIVE AND FAILURE TO COMPLY WITH IT IS ATTRIBUTABLE ONLY TO THE PURCHASER SINCE NO DEROGATION IS PROVIDED FOR IN THE APPLICABLE RULES . THE COMMISSION, HOWEVER, CONSIDERS THAT, IN A SITUATION SUCH AS THAT UNDERLYING THE MAIN PROCEEDINGS, THE PURCHASER MAY RELY ON THE CONCEPT OF FORCE MAJEURE EVEN THOUGH THAT CONCEPT IS NOT LAID DOWN IN THE RELEVANT PROVISIONS . IN THE SPECIAL CIRCUMSTANCES OF THE PRESENT CASE, RECOGNITION OF A CASE OF FORCE MAJEURE WOULD NOT BE CONTRARY TO THE PURPOSE OF THE RELEVANT RULES, WHICH ARE INTENDED TO ENSURE THE NORMAL DISPOSAL OF GOODS KEPT IN STORAGE IN ORDER TO AVOID THE OVERFILLING OF WAREHOUSES .
10 ALTHOUGH THE COMMUNITY PROVISION CITED ABOVE CONTAINS NO EXPRESS REFERENCE TO FORCE MAJEURE, IT SHOULD BE STATED AT THE OUTSET THAT RECOGNITION OF THE EXISTENCE OF SUCH AN IMPLIED CLAUSE IS NOT PRECLUDED BY THE EXPRESSION "AT THE PURCHASER' S OWN RISK" TO BE FOUND IN ARTICLE 15 ( A ). THAT EXPRESSION MEANS ONLY THAT THE PURCHASER ALONE MUST BEAR THE PRICE RISK IF THE GOODS DETERIORATE OR PERISH AFTER THE EXPIRY OF THE TIME-LIMIT FOR THEIR WITHDRAWAL .
11 IT MUST THEREFORE BE CONSIDERED, IN THE LIGHT OF THE STRUCTURE AND PURPOSES OF THE PROVISION AT ISSUE, WHETHER THE EXISTENCE OF AN IMPLIED FORCE MAJEURE CLAUSE MAY BE RECOGNIZED . TO THAT END, IT IS NECESSARY FIRST OF ALL TO PLACE THE SAID PROVISION IN THE CONTEXT OF THE RULES OF WHICH IT IS A PART, NAMELY REGULATION NO 2960/77, WHICH, BY LAYING DOWN DETAILED RULES FOR THE SALE OF OLIVE OIL HELD BY THE INTERVENTION AGENCIES, GOVERNS THE LEGAL RELATIONS BETWEEN THE PURCHASER AND THE INTERVENTION AGENCY .
12 WITH REGARD, MORE PARTICULARLY, TO THE DETAILED RULES FOR THE WITHDRAWAL OF THE GOODS, ARTICLE 12 OF THE SAID REGULATION, AS AMENDED BY COMMISSION REGULATION NO 883/79 OF 3 MAY 1979 ( OFFICIAL JOURNAL L 111, P . 16 ), PROVIDES THAT THE PURCHASER MUST, BEFORE WITHDRAWING THE OIL, PAY TO THE INTERVENTION AGENCY THE PROVISIONAL AMOUNT OF THE SELLING PRICE AND IF THAT AMOUNT IS NOT PAID WITHIN THE PERIOD LAID DOWN FOR THE WITHDRAWAL OF THE OIL, THE SALE IS CANCELLED AUTOMATICALLY ( PARAGRAPHS ( 1 ) AND ( 2 )). ACCORDING TO ARTICLE 13 ( 1 ), AS AMENDED BY REGULATION NO 2041/83, WITHDRAWAL MAY BEGIN AS SOON AS THE SAID PROVISIONAL AMOUNT HAS BEEN PAID AND MUST BE COMPLETED NOT LATER THAN THE 90TH DAY FOLLOWING RECEIPT OF THE RESULT OF THE TENDERING PROCEDURE IF THE TENDERER HAS BEEN AWARDED A QUANTITY IN EXCESS OF 3 000 TONNES .
13 CONSEQUENTLY, THE PURCHASER MUST DO EVERYTHING IN HIS POWER TO WITHDRAW THE GOODS AWARDED TO HIM WITHIN THE TIME-LIMIT LAID DOWN, THAT AIM OF THE ABOVEMENTIONED RULES BEING CONFIRMED BY THE 14TH RECITAL IN THE PREAMBLE TO REGULATION NO 2960/77, WHICH STATES THAT "IN ORDER TO ENSURE THE RAPID DISPOSAL OF THE OIL SOLD ... THE 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 PURCHASER ".
14 IT SHOULD ALSO BE OBSERVED THAT WHERE THE TIME-LIMIT IS EXCEEDED, THE PURCHASER MUST, IN ACCORDANCE WITH ARTICLE 15 ( B ) OF THE ABOVEMENTIONED REGULATION, PAY A STORAGE CHARGE CALCULATED "FOR EACH PERIOD OF 30 DAYS OF ADDITIONAL STORAGE OR PART THEREOF", REGARDLESS OF THE REASONS FOR WHICH THE TIME-LIMIT WAS EXCEEDED AND EVEN IF IT WAS EXCEEDED BY ONLY ONE DAY, ARTICLE 9 OF REGULATION NO 1000/83 FIXING THE STORAGE CHARGE AT DR 150 PER 100 KG .
15 AS THE COMMISSION ITSELF CONFIRMED IN REPLY TO A QUESTION PUT BY THE COURT, THE LATTER RULES CONTAIN AN IMPLIED SANCTION, IN PARTICULAR BECAUSE THEY ARE NOT CONFINED TO IMPOSING ON THE PURCHASER ONLY THE ACTUAL ADDITIONAL STORAGE COSTS BUT INDUCE HIM TO COMPLY WITH THE TIME-LIMIT LAID DOWN IN ORDER TO AVOID HAVING TO PAY A FLAT-RATE CHARGE WHOSE EFFECT AS PENALTY PAYMENT IS ALL THE GREATER WHEN THE PERIOD BY WHICH THE TIME-LIMIT IS EXCEEDED IS MINIMAL . HOWEVER, HAVING REGARD TO THAT SPECIFIC CHARACTER OF THE MEASURE AT ISSUE, AND WITHOUT THERE BEING ANY NECESSITY TO RULE ON THE MORE GENERAL QUESTION WHETHER RULES SUCH AS THOSE AT ISSUE MUST BE INTERPRETED AS CONTAINING AN IMPLIED FORCE MAJEURE CLAUSE, IT MUST BE ACCEPTED THAT, IN THE PARTICULAR CIRCUMSTANCES OF THE INSTANT CASE, THE PURCHASER MAY, IN PRINCIPLE, RELY ON THE CONCEPT OF FORCE MAJEURE .
16 CONSEQUENTLY, A DELAY IN THE WITHDRAWAL OF THE GOODS AWARDED CANNOT BE ATTRIBUTED TO THE PURCHASER IF IT IS DUE TO EVENTS WHICH CONSTITUTE A CASE OF FORCE MAJEURE, THAT IS TO SAY, ABNORMAL AND UNFORESEEABLE CIRCUMSTANCES BEYOND THE CONTROL OF THE PERSON CLAIMING FORCE MAJEURE THE CONSEQUENCES OF WHICH COULD NOT BE AVOIDED DESPITE THE EXERCISE OF ALL DUE CARE ( JUDGMENT OF 27 OCTOBER 1987 IN CASE 109/86 THEODORAKIS V GREEK STATE (( 1987 )) ECR 4319 ).
17 WITH REGARD TO THE PARTICULAR CIRCUMSTANCES OF THE INSTANT CASE, IT MUST BE OBSERVED THAT THE INTERRUPTION IN THE SUPPLY OF ELECTRICITY NECESSARY FOR THE FUNCTIONING OF THE LOADING EQUIPMENT IN THE WAREHOUSE OF THE INTERVENTION AGENCY' S AGENT, WHETHER DUE TO BAD WEATHER OR TO THE FAULT OF THE ELECTRICITY COMPANY OR OF THE INTERVENTION AGENCY, MAY WELL CONSTITUTE A CASE OF FORCE MAJEURE FOR THE PURCHASER . THE SAME IS TRUE WITH REGARD TO THE DETERIORATION IN THE WEATHER CONDITIONS SINCE SUCH AN EVENT MAY, HAVING REGARD INTER ALIA TO THE SEASON AND TO THE PLACE OF LOADING, BE REGARDED AS ABNORMAL AND UNFORESEEABLE, A POSSIBILITY WHICH ONLY THE NATIONAL COURT SHOULD EXAMINE .
18 THE REPLY TO THE FIRST, SECOND AND FOURTH QUESTIONS OF THE EFETIO ATHINON MUST THEREFORE BE THAT ARTICLE 15 OF REGULATION NO 2960/77 MUST BE INTERPRETED AS MEANING THAT WHERE THE TIME-LIMIT LAID DOWN FOR THE WITHDRAWAL OF THE GOODS AWARDED HAS BEEN EXCEEDED, THE PURCHASER IS NOT LIABLE FOR THE ADDITIONAL STORAGE COSTS IF THE DELAY IS DUE TO CIRCUMSTANCES CONSTITUTING FORCE MAJEURE .
THIRD QUESTION
19 IN THIS QUESTION THE NATIONAL COURT ESSENTIALLY ASKS WHETHER THE FACT THAT THE PURCHASER COMMENCED THE LOADING OF THE GOODS AWARDED ONLY A FEW DAYS BEFORE THE EXPIRY OF THE 90-DAY TIME-LIMIT LAID DOWN IN ARTICLE 13 ( 1 ) OF REGULATION NO 2960/77, AS AMENDED BY REGULATION NO 2041/83, MAY HAVE ADVERSE CONSEQUENCES FOR THE PURCHASER UNDER ARTICLE 15 OF REGULATION NO 2960/77 .
20 IN THAT REGARD, IT MUST BE RECOGNIZED, AS THE COMMISSION HAS RIGHTLY POINTED OUT, THAT TIME-LIMITS ARE, IN PRINCIPLE, LAID DOWN IN ORDER TO BE USED TO THE FULL . IT MUST BE ADDED THAT THIS IS TRUE, IN PARTICULAR, IN REGARD TO THE 90-DAY TIME-LIMIT WHICH WAS INTRODUCED SOLELY IN THE PURCHASER' S INTERESTS BECAUSE, AS IS INDICATED IN THE SECOND RECITAL IN THE PREAMBLE TO REGULATION NO 2041/83, EXPERIENCE HAS SHOWN THAT "FOR QUANTITIES IN EXCESS OF 3 000 TONNES OPERATORS ARE ENCOUNTERING REAL DIFFICULTIES IN OBSERVING THE TIME-LIMITS" AND THAT THEREFORE, "THE TIME-LIMIT FOR WITHDRAWING THE OIL IN SUCH A CASE SHOULD BE EXTENDED UNDER CERTAIN CONDITIONS IN ORDER TO ENABLE INTERVENTION SALES TO BE CONDUCTED PROPERLY ".
21 IT MUST THEREFORE BE CONCLUDED THAT THE PURCHASER IS, IN PRINCIPLE, FREE TO MAKE USE OF THE TIME-LIMITS GRANTED TO HIM IN A MANNER SUITED TO HIS OWN ECONOMIC INTEREST AND ON HIS OWN RESPONSIBILITY .
22 CONSEQUENTLY, IT IS FOR THE PURCHASER, ACTING AS A PRUDENT TRADER, TO ASSESS WHETHER THE PERIOD IN WHICH HE INTENDS TO LOAD THE GOODS AWARDED MAY BE REGARDED AS SUFFICIENT IN THE PARTICULAR CIRCUMSTANCES OF THE CASE . IN SO DOING, HE IS NOT REQUIRED, IF ESTIMATING AN ADDITIONAL PERIOD OF TIME AS A SAFETY MARGIN, TO TAKE ACCOUNT OF EVENTS WHICH COULD CONSTITUTE FORCE MAJEURE . ON THE OTHER HAND, HE IS REQUIRED TO TAKE ACCOUNT OF ALL CIRCUMSTANCES WHICH ARE TO BE REGARDED AS NORMAL AND FORESEEABLE, SUCH AS THE LOCATION OF THE PORT, THE QUANTITIES TO BE WITHDRAWN, LOADING CAPACITY AND THE USUAL WEATHER CONDITIONS PREVAILING AT THE PLACE OF LOADING DURING THE SEASON AT WHICH IT TAKES PLACE .
23 THE REPLY TO THE THIRD QUESTION MUST THEREFORE BE THAT THE FACT THAT THE PURCHASER COMMENCED THE LOADING OF THE GOODS AWARDED ONLY A FEW DAYS BEFORE THE EXPIRY OF THE 90-DAY TIME-LIMIT LAID DOWN IN ARTICLE 13 ( 1 ) OF REGULATION NO 2690/77, AS AMENDED BY REGULATION NO 2041/83, CANNOT HAVE ADVERSE CONSEQUENCES FOR THE PURCHASER UNDER ARTICLE 15 OF REGULATION NO 2960/77 IF HE COULD REASONABLY HAVE EXPECTED, IN THE PARTICULAR CIRCUMSTANCES OF THE CASE, THAT THAT PERIOD WOULD BE SUFFICIENT; IN THIS REGARD HE IS NOT REQUIRED TO TAKE ACCOUNT OF THE POSSIBILITY OF THE OCCURRENCE OF EVENTS WHICH MAY CONSTITUTE FORCE MAJEURE .
COSTS
24 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED, A STEP IN THE PROCEEDINGS PENDING BEFORE THE NATIONAL COURT, THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER )
IN ANSWER TO THE QUESTIONS SUBMITTED TO IT BY THE EFETIO ATHINON, BY JUDGMENT OF 10 NOVEMBER 1986, HEREBY RULES :
( 1 ) ARTICLE 15 OF COMMISSION REGULATION NO 2960/77 OF 23 DECEMBER 1977 ON DETAILED RULES FOR THE SALE OF OLIVE OIL HELD BY INTERVENTION AGENCIES MUST BE INTERPRETED AS MEANING THAT WHERE THE TIME-LIMIT LAID DOWN FOR THE WITHDRAWAL OF THE GOODS AWARDED HAS BEEN EXCEEDED, THE PURCHASER IS NOT LIABLE FOR THE ADDITIONAL STORAGE COSTS IF THE DELAY IS DUE TO CIRCUMSTANCES CONSTITUTING FORCE MAJEURE .
( 2 ) THE FACT THAT THE PURCHASER COMMENCED THE LOADING OF THE GOODS AWARDED ONLY A FEW DAYS BEFORE THE EXPIRY OF THE 90-DAY TIME-LIMIT LAID DOWN IN ARTICLE 13 ( 1 ) OF REGULATION NO 2960/77, AS AMENDED BY REGULATION NO 2041/83, CANNOT HAVE ADVERSE CONSEQUENCES FOR THE PURCHASER UNDER ARTICLE 15 OF THAT REGULATION IF HE COULD REASONABLY HAVE EXPECTED, IN THE PARTICULAR CIRCUMSTANCES OF THE CASE, THAT THAT PERIOD WOULD BE SUFFICIENT; IN THIS REGARD HE IS NOT REQUIRED TO TAKE ACCOUNT OF THE POSSIBILITY OF THE OCCURRENCE OF EVENTS WHICH MAY CONSTITUTE FORCE MAJEURE .
