Court of Justice of the European Communities (including Court of First Instance Decisions)

1 . COMMUNITY LAW - PRINCIPLES - PROPORTIONALITY - PRINCIPAL OBLIGATION AND SECONDARY OBLIGATION - SAME PENALTY - NOT PERMISSIBLE
2 . AGRICULTURE - COMMON AGRICULTURAL POLICY - FOOD AID - IMPLEMENTATION - CONTRACT TERMS - CONDITIONS FOR CARRIAGE BY SEA - OBLIGATIONS OF SUCCESSFUL TENDERER REGARDING SHIPMENT PERIOD AND CHOICE OF VESSEL - SCOPE - CONDITIONS REGARDING SECURITY - USE OF A VESSEL NOT CONFORMING EXACTLY TO THE PRESCRIBED CONDITIONS - TOTAL FORFEITURE - PRINCIPLE OF PROPORTIONALITY - BREACH
( COMMISSION REGULATIONS NOS 1974/80 , ARTS 4 ( 4 ) ( D ), 5 ( 1 ) AND 20 ( 1 ), AND 588/81 , ANNEX A , POINT 16 )

1 . IN ORDER TO DETERMINE WHETHER A PROVISION OF COMMUNITY LAW CONTEMPLATING FORFEITURE OF A SECURITY IN ITS ENTIRETY IS COMPATIBLE WITH THE PRINCIPLE OF PROPORTIONALITY , IT IS NECESSARY TO ESTABLISH WHETHER THE OBLIGATIONS WHOSE FULFILMENT IT IS INTENDED TO ENSURE MUST BE REGARDED AS PRINCIPAL OBLIGATIONS WHICH ARE OF FUNDAMENTAL IMPORTANCE TO THE PROPER FUNCTIONING OF THE COMMUNITY SYSTEM IN QUESTION AND WHOSE INFRINGEMENT MAY BE PUNISHED BY FORFEITURE OF THE ENTIRE SECURITY , WITHOUT THERE BEING ANY BREACH OF THE PRINCIPLE OF PROPORTIONALITY , OR WHETHER THEY ARE SECONDARY OBLIGATIONS WHOSE INFRINGEMENT SHOULD NOT BE PUNISHED WITH THE SAME RIGOUR AS IS APPLIED TO THE FAILURE TO FULFIL A PRINCIPAL OBLIGATION .

2 . WHERE A SUCCESSFUL TENDERER VERY SLIGHTLY EXCEEDS THE SHIPMENT PERIOD OR USES SHIPS ENGAGED IN LINER TRADING WHICH ARE MORE THAN 15 YEARS OLD BUT ARE SUBSTANTIALLY AS RELIABLE AS SHIPS LESS THAN 15 YEARS OLD , HE DOES NOT THEREBY INFRINGE HIS OBLIGATIONS UNDER POINT 16 OF ANNEX A TO REGULATION NO 588/81 AND ARTICLE 4 ( 4 ) ( D ) OF REGULATION NO 1974/80 ON THE IMPLEMENTATION OF FOOD AID .

MOREOVER , THE SECOND INDENT OF ARTICLE 20 ( 1 ) OF REGULATION NO 1974/80 INFRINGES THE PRINCIPLE OF PROPORTIONALITY IN SO FAR AS ITS EFFECT IS THAT THE SECURITY FURNISHED PURSUANT TO ARTICLE 5 OF THE REGULATION IS TO BE DECLARED WHOLLY FORFEIT WHERE THE GOODS IN QUESTION ARE TRANSPORTED IN VESSELS WHICH ARE MORE THAN 15 YEARS OLD AND NOT ENGAGED IN LINER TRADING BUT WHICH ARE LISTED IN THE TOP CLASS IN RECOGNIZED SHIPPING CLASSIFICATION REGISTERS .

IN CASE 21/85
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE VERWALTUNGSGERICHT ( ADMINISTRATIVE COURT ) FRANKFURT AM MAIN FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN
A . MAAS & CO . NV , ANTWERP ,
AND
BUNDESANSTALT FUR LANDWIRTSCHAFTLICHE MARKTORDNUNG ( FEDERAL OFFICE FOR THE ORGANIZATION OF AGRICULTURAL MARKETS ), FRANKFURT AM MAIN ,

ON THE VALIDITY OF ARTICLE 20 ( 1 ) OF COMMISSION REGULATION ( EEC ) NO 1974/80 OF 22 JULY 1980 LAYING DOWN GENERAL IMPLEMENTING RULES IN RESPECT OF CERTAIN FOOD-AID OPERATIONS INVOLVING CEREALS AND RICE ( OFFICIAL JOURNAL 1980 , L 192 , P . 11 ),

1 BY ORDER DATED 15 NOVEMBER 1984 , WHICH WAS RECEIVED AT THE COURT ON 24 JANUARY 1985 , THE VERWALTUNGSGERICHT ( ADMINISTRATIVE COURT ) FRANKFURT AM MAIN REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION AS TO THE VALIDITY OF THE SECOND INDENT OF ARTICLE 20 ( 1 ) OF COMMISSION REGULATION NO 1974/80 OF 22 JULY 1980 LAYING DOWN GENERAL IMPLEMENTING RULES IN RESPECT OF CERTAIN FOOD-AID OPERATIONS INVOLVING CEREALS AND RICE ( OFFICIAL JOURNAL 1980 , L 192 , P . 11 ).

2 THE QUESTION WAS RAISED IN PROCEEDINGS BROUGHT BEFORE THE ABOVEMENTIONED COURT BY A . MAAS & CO . NV , ANTWERP ( HEREINAFTER REFERRED TO AS ' MAAS ' ), AGAINST THE GERMAN INTERVENTION AGENCY , THE BUNDESANSTALT FUR LANDWIRTSCHAFTLICHE MARKTORDNUNG ( FEDERAL OFFICE FOR THE ORGANIZATION OF AGRICULTURAL MARKETS ), FRANKFURT AM MAIN .

3 MAAS , WHICH HAD BEEN DECLARED SUCCESSFUL TENDERER UNDER COMMISSION REGULATION NO 588/81 OF 4 MARCH 1981 ON THE SUPPLY OF COMMON WHEAT TO ETHIOPIA AS FOOD AID ( OFFICIAL JOURNAL 1981 , L 60 , P . 19 ) FOR THE TRANSPORT OF 5 000 TONNES OF COMMON WHEAT FROM THE INTERVENTION AGENCY ' S STOCKS , SHIPPED THE GOODS IN TWO CONSIGNMENTS ON 5 MAY 1981 AND 6 MAY 1981 , USING TWO VESSELS LISTED IN THE TOP CLASSES OF THE RECOGNIZED CLASSIFICATION REGISTERS - ALTHOUGH BOTH OF THEM WERE MORE THAN 15 YEARS OLD . THE GOODS WERE TRANSPORTED WITHOUT INCIDENT TO THE INTENDED DESTINATION .

4 THE INTERVENTION AGENCY NEVERTHELESS DECLARED THE SECURITY FURNISHED BY MAAS UNDER ARTICLE 5 ( 1 ) OF REGULATION NO 1974/80 FORFEIT ON THE GROUND THAT MAAS HAD NOT SHIPPED THE GOODS WITHIN THE PERIOD LAID DOWN IN POINT 16 OF ANNEX A TO REGULATION NO 588/81 ( 1 TO 30 APRIL 1981 ) AND THAT IT HAD ALSO USED VESSELS MORE THAN 15 YEARS OLD , CONTRARY TO ARTICLE 4 ( 4 ) ( D ) OF REGULATION NO 1974/80 .
5 THE INTERVENTION AGENCY TOOK THE VIEW THAT THE SUCCESSFUL TENDERER , IN BREACH OF ARTICLE 11 ( 1 ) OF REGULATION NO 1974/80 , HAD NOT FULFILLED ITS OBLIGATIONS IN ACCORDANCE WITH THE CONDITIONS LAID DOWN IN THE REGULATION OPENING THE TENDERING PROCEDURE OR IN COMPLIANCE WITH THE UNDERTAKINGS REFERRED TO IN ARTICLE 4 ( 4 ) ( B ), ( C ), ( D ) AND ( E ) OF REGULATION NO 1974/80 AND THAT IT WAS NOT THEREFORE APPROPRIATE TO APPLY THE SECOND INDENT OF ARTICLE 20 ( 1 ) OF THAT REGULATION , WHICH PROVIDES FOR RELEASE OF THE SECURITY IN RESPECT OF THE QUANTITIES DELIVERED ' IN ACCORDANCE WITH THE PROVISIONS GOVERNING THIS DELIVERY ' .

6 THE VERWALTUNGSGERICHT FRANKFURT AM MAIN , BEFORE WHICH MAAS BROUGHT PROCEEDINGS AGAINST THE INTERVENTION AGENCY ' S DECISION , STAYED THE PROCEEDINGS AND , BY ORDER OF 15 NOVEMBER 1984 , SUBMITTED THE FOLLOWING QUESTION TO THE COURT :
' IS THE SECOND INDENT OF ARTICLE 20 ( 1 ) OF COMMISSION REGULATION ( EEC ) NO 1974/80 OF 22 JULY 1980 , LAYING DOWN GENERAL IMPLEMENTING RULES IN RESPECT OF CERTAIN FOOD-AID OPERATIONS INVOLVING CEREALS AND RICE ( OFFICIAL JOURNAL L 192 OF 26 . 7 . 1980 ), COMPATIBLE WITH THE PRINCIPLE OF PROPORTIONALITY , IN SO FAR AS ITS EFFECT IS THAT THE SECURITY FURNISHED PURSUANT TO ARTICLE 5 OF THE REGULATION IS TO BE WHOLLY FORFEIT WHERE :
( 1 ) THE SUCCESSFUL TENDERER BREAKS HIS UNDERTAKING UNDER ARTICLE 4 ( 4 ) ( D ) BY TRANSPORTING THE GOODS IN QUESTION IN VESSELS WHICH , ALTHOUGH LISTED IN THE TOP CLASSES IN RECOGNIZED CLASSIFICATION REGISTERS , ARE MORE THAN 15 YEARS OLD ; OR
( 2 ) THE SUCCESSFUL TENDERER BREAKS HIS UNDERTAKING TO SHIP THE GOODS WITHIN A SPECIFIED PERIOD ( LAID DOWN IN THIS CASE IN POINT 16 OF ANNEX A TO COMMISSION REGULATION ( EEC ) NO 588/81 OF 4 MARCH 1981 ; OFFICIAL JOURNAL L 60 OF 6 . 3 . 1981 BY SHIPPING THE GOODS FIVE OR SIX DAYS AFTER THE EXPIRY OF THAT PERIOD?
'
7 MAAS , THE PLAINTIFF IN THE MAIN PROCEEDINGS , CLAIMED AT THE HEARING THAT THE SLIGHT DELAY IN SHIPPING THE PRODUCTS - WHICH , IN ANY CASE , IT ATTRIBUTES TO A CASE OF FORCE MAJEURE - CANNOT CONSTITUTE A SERIOUS BREACH OF THE SUCCESSFUL TENDERER ' S OBLIGATIONS AND THAT THE USE OF VESSELS MORE THAN 15 YEARS OLD , BUT LISTED IN THE TOP CLASS IN SHIPPING CLASSIFICATION REGISTERS , CANNOT GIVE RISE TO INCREASED TRANSPORT RISKS .

8 THE GOVERNMENT OF THE ITALIAN REPUBLIC , WHICH HAS SUBMITTED OBSERVATIONS , CONSIDERS THAT IT IS UNREASONABLE TO INTERPRET THE TENDERING CONDITIONS IN SUCH AN INFLEXIBLE MANNER THAT ANY INFRINGEMENT , HOWEVER SLIGHT , OF THE OBLIGATIONS IMPOSED UPON THE SUCCESSFUL TENDERER IS REGARDED AS SUFFICIENT TO JUSTIFY REFUSAL BY THE OTHER PARTY TO PERFORM ITS CONTRACTUAL OBLIGATIONS . IN PARTICULAR , SUCH CONDITIONS ARE INCOMPATIBLE WITH THE PRINCIPLE LAID DOWN IN ARTICLE 4 ( 4 ) OF REGULATION ( EEC ) NO 2750/75 OF THE COUNCIL OF 29 OCTOBER 1975 FIXING CRITERIA FOR THE MOBILIZATION OF CEREALS INTENDED AS FOOD AID ( OFFICIAL JOURNAL 1975 , L 281 , P . 89 ), WHEREBY ' THE TERMS OF THE INVITATION TO TENDER MUST ENSURE EQUAL ACCESS AND TREATMENT FOR ALL PERSONS CONCERNED IRRESPECTIVE OF THEIR PLACE OF ESTABLISHMENT WITHIN THE COMMUNITY ' . IN THAT CONNECTION , IT IS WELL KNOWN THAT THE MEDITERRANEAN PORTS CANNOT OFFER THE SAME RANGE OF TRANSPORT AND LOADING TIMES AS THE PORTS OF NORTHERN EUROPE .

9 THE COMMISSION MAINTAINS THAT THE OBLIGATIONS INFRINGED BY THE SUCCESSFUL TENDERER ARE PRINCIPAL OBLIGATIONS , COMPLIANCE WITH WHICH IS OF FUNDAMENTAL IMPORTANCE TO THE PROPER FUNCTIONING OF THE FOOD-AID SYSTEM , AND THAT TOTAL FORFEITURE OF THE SECURITY IS NOT THEREFORE CONTRARY TO THE PRINCIPLE OF PROPORTIONALITY . FAILURE TO FORFEIT THE SECURITY IN SUCH CASES WOULD , MOREOVER , CONSTITUTE A BREACH OF THE PRINCIPLE THAT ALL TENDERERS SHOULD RECEIVE EQUAL TREATMENT , SINCE THOSE WHO AT THE OUTSET INTENDED NOT TO OBSERVE THE SHIPMENT PERIOD OR INTENDED TO USE VESSELS MORE THAN 15 YEARS OLD WOULD BE ABLE TO SUBMIT MORE ATTRACTIVE TENDERS THAN THE OTHERS .

10 IT MUST BE STATED THAT , BY VIRTUE OF THE SECOND INDENT OF ARTICLE 20 ( 1 ) OF REGULATION NO 1974/80 , THE SECURITY IS RELEASED TO ' THE SUCCESSFUL TENDERER IN RESPECT OF THE QUANTITIES DELIVERED , HAVING REGARD TO THE 2% TOLERANCE SPECIFIED IN THE SECOND SUBPARAGRAPH OF ARTICLE 15 ( 2 ) IN ACCORDANCE WITH THE PROVISIONS GOVERNING THIS DELIVERY AND ON PRESENTATION OF THE ORIGINAL OF THE TAKING-OVER CERTIFICATE REFERRED TO IN ARTICLE 16 OR A CERTIFIED TRUE COPY OR , WHERE APPROPRIATE , THE CERTIFICATE AND SUPPORTING DOCUMENTS REFERRED TO IN ARTICLE 16 ( 2 ) ' .

11 THIS CASE INVOLVED A CIF DELIVERY , AS INDICATED IN ANNEX A TO REGULATION NO 588/81 , AND THE SECURITY WAS THEREFORE TO BE RELEASED IN ACCORDANCE WITH REGULATION NO 1974/80 UPON PRESENTATION OF THE DOCUMENTS SPECIFIED IN ARTICLE 16 ( 2 ) THEREOF , WHICH ARE THE SAME DOCUMENTS AS THOSE AGAINST PRESENTATION OF WHICH THE AMOUNT OF THE TENDER REFERRED TO IN THE SECOND PARAGRAPH OF ARTICLE 17 ( 3 ) BECOMES PAYABLE . ON THE BASIS OF THOSE DOCUMENTS , THE AMOUNT OF THE TENDER WAS PAID TO MAAS BY THE INTERVENTION AGENCY , WHICH THUS RECOGNIZED THAT THE CONTRACT HAD BEEN PROPERLY PERFORMED .

12 HOWEVER , THE INTERVENTION AGENCY DECLARED THE SECURITY FURNISHED BY MAAS FORFEIT ON THE GROUND THAT THE DELIVERY HAD NOT BEEN CARRIED OUT IN CONFORMITY WITH REGULATION NO 1974/80 AND THE CONDITIONS LAID DOWN IN THE ANNEX TO REGULATION NO 588/81 .
13 THERE IS NO DOUBT THAT THE OBLIGATIONS AT ISSUE MUST BE RESPECTED BY THE SUCCESSFUL TENDERER IN SO FAR AS THEY HELP - TOGETHER WITH THE OTHER OBLIGATIONS LAID DOWN BY THE REGULATION CONCERNING THE GENERAL TENDERING CONDITIONS AND THE REGULATION OPENING THE TENDERING PROCEDURE - TO ENSURE PROPER PERFORMANCE OF THE CONTRACT , BY MAKING CERTAIN THAT THE GOODS ARE TRANSPORTED TO THE STATE OF DESTINATION IN THE BEST CIRCUMSTANCES POSSIBLE .

14 HOWEVER , IN ITS ORDER FOR REFERENCE , THE VERWALTUNGSGERICHT FRANKFURT ASKS WHETHER THE SECOND INDENT OF ARTICLE 20 ( 1 ) OF REGULATION NO 1974/80 IS COMPATIBLE WITH THE PRINCIPLE OF PROPORTIONALITY , IN SO FAR AS IT DOES NOT ALLOW THE PENALTY OF FORFEITURE OF THE SECURITY TO BE MADE COMMENSURATE WITH THE DEGREE OF NON-PERFORMANCE OF THE ABOVEMENTIONED OBLIGATIONS OR WITH THE GRAVITY OF THE INFRINGEMENT THEREOF AND CONSEQUENTLY ENTAILS FORFEITURE OF THE WHOLE SECURITY WHERE A SUCCESSFUL TENDERER HAS DELIVERED THE FULL QUANTITY COVERED BY THE TENDER BUT HAS TRANSPORTED IT ON VESSELS MORE THAN 15 YEARS OLD OR HAS FAILED TO KEEP WITHIN THE SHIPMENT PERIOD , WHEREAS , BY CONTRAST , A SUCCESSFUL TENDERER WHO , WHILST COMPLYING WITH THE OTHER DELIVERY CONDITIONS , DELIVERS ONLY HALF THE GOODS WOULD LOSE ONLY HALF THE SECURITY .

15 IN ORDER TO ANSWER THE QUESTION SUBMITTED BY THE NATIONAL COURT , IT IS NECESSARY TO ESTABLISH , IN ACCORDANCE WITH WELL-ESTABLISHED CASE-LAW ( JUDGMENTS OF 20 FEBRUARY 1979 IN CASE 122/78 BUITONI ( 1979 ) ECR 677 ; OF 21 JUNE 1979 IN CASE 240/78 ATALANTA ( 1979 ) ECR 2137 ; OF 2 DECEMBER 1982 IN CASE 272/81 RU-MI ( 1982 ) ECR 4167 ; OF 23 FEBRUARY 1983 IN CASE 66/82 FROMANCAIS ( 1983 ) ECR 395 ; OF 17 MAY 1984 IN CASE 15/83 DENKAVIT ( 1984 ) ECR 2171 ), WHETHER THE OBLIGATIONS AT ISSUE IN THIS CASE MUST BE REGARDED AS PRINCIPAL OBLIGATIONS WHOSE OBSERVANCE IS OF FUNDAMENTAL IMPORTANCE TO THE PROPER FUNCTIONING OF A COMMUNITY SYSTEM AND WHOSE INFRINGEMENT MAY BE PUNISHED BY TOTAL FORFEITURE OF THE SECURITY , WITHOUT THERE BEING ANY BREACH OF THE PRINCIPLE OF PROPORTIONALITY , OR WHETHER THEY ARE SECONDARY OBLIGATIONS WHOSE INFRINGEMENT SHOULD NOT BE PUNISHED WITH THE SAME RIGOUR AS IS APPLIED TO THE FAILURE TO FULFIL A PRINCIPAL OBLIGATION .

16 AS REGARDS THE OBLIGATION TO SHIP THE GOODS WITHIN A SPECIFIED PERIOD , THERE CAN BE NO QUESTION THAT THAT IS A PRINCIPAL OBLIGATION , SINCE FAILURE TO OBSERVE THE SHIPMENT PERIOD COULD TO A GREATER OR LESSER EXTENT DETRACT FROM THE EFFECTIVENESS OF THE FOOD AID , EITHER AS A RESULT OF THE PERISHABLE NATURE OF THE FOODSTUFFS BEING TRANSPORTED OR AS A RESULT OF SUCH EVENTS AS MIGHT OCCUR AFTER THE EXPIRY OF THAT PERIOD .

17 IT MUST NEVERTHELESS BE CONSIDERED THAT , IN THE CASE OF GOODS CARRIED BY SEA , THAT OBLIGATION IS NOT INFRINGED WHERE THE GOODS ARE SHIPPED AND THE VESSEL PUTS OUT TO SEA A FEW DAYS BEHIND SCHEDULE .

18 IN THIS CASE , IT IS NOT DISPUTED THAT THE VESSEL ARRIVED AT THE PORT OF DESTINATION BY THE PRESCRIBED DATE . ACCORDINGLY , IT MUST BE CONCLUDED THAT WHERE THE SHIPMENT PERIOD IS EXCEEDED BY ONLY A SHORT TIME , FORFEITURE OF THE SECURITY IS NOT JUSTIFIED PROVIDED THAT THE PROPER FUNCTIONING OF THE FOOD-AID SYSTEM IS NOT THEREBY IMPAIRED .

19 AS REGARDS THE OBLIGATION TO USE VESSELS LESS THAN 15 YEARS OLD FOR THE TRANSPORT OPERATION , THE COMMISSION , BY RELYING UPON THE SCALES OF PREMIUMS CHARGED BY INSURANCE COMPANIES , WHICH DIFFER ACCORDING TO THE DATE ON WHICH THE INSURED VESSELS WERE BUILT , MAINTAINS THAT THE TRANSPORT OPERATION CARRIED OUT IN THIS CASE USING VESSELS MORE THAN 15 YEARS OLD CONSTITUTES A SERIOUS INFRINGEMENT OF THE TERMS OF THE CONTRACT WHICH , BY ITSELF , JUSTIFIES TOTAL FORFEITURE OF THE SECURITY . IN THAT CONNECTION , THE COMMISSION HAS PRODUCED , AT THE REQUEST OF THE COURT , THE GENERAL INSURANCE CONDITIONS APPLIED BY UNDERWRITERS ESTABLISHED IN THE MEMBER STATES .

20 THOSE DOCUMENTS SHOW THAT THE PREMIUMS PAYABLE IN RESPECT OF VESSELS FROM 15 TO 25 YEARS OLD LISTED IN THE TOP CLASS IN RECOGNIZED SHIPPING CLASSIFICATION REGISTERS , WHERE THEY HAVE ' ESTABLISHED AND MAINTAINED REGULAR TRADE , IN ACCORDANCE WITH A PUBLISHED TIME-TABLE FOR LOADING AND UNLOADING AT SPECIFIED PORTS , EXCLUDING , HOWEVER , CHARTERED VESSELS ' , THAT IS TO SAY WHERE THE VESSELS ARE ENGAGED IN LINER TRADING , ARE THE SAME AS THE PREMIUMS FOR VESSELS LESS THAN 15 YEARS OLD .

21 FROM THIS IT MUST BE DEDUCED THAT , IN THE CASE OF VESSELS ENGAGED IN LINER TRADING , THERE IS DEEMED TO BE NO GREATER RISK SINCE THOSE VESSELS ARE THE SUBJECT OF MORE REGULAR AND MORE CAREFUL MAINTENANCE . IT FOLLOWS THAT THE USE OF SUCH VESSELS CANNOT BE REGARDED AS CONSTITUTING AN INFRINGEMENT OF AN OBLIGATION IMPOSED UPON THE SUCCESSFUL TENDERER AND , CONSEQUENTLY , DOES NOT JUSTIFY FORFEITURE OF THE SECURITY .

22 ON THE OTHER HAND , INSURANCE FOR TRANSPORT OPERATIONS USING VESSELS MORE THAN 15 YEARS OLD WHICH DO NOT COMPLY WITH THE ABOVEMENTIONED CONDITIONS IS PROVIDED BY UNDERWRITERS ONLY ON THE BASIS OF INDIVIDUALLY AGREED PREMIUMS . IT MUST THEREFORE BE CONCLUDED THAT THE INSURANCE CONDITIONS ARE STRICTER FOR SUCH VESSELS BECAUSE THEY ARE EXPOSED TO GREATER RISKS OF ACCIDENT THAN VESSELS BUILT MORE RECENTLY OR VESSELS ENGAGED IN LINER TRADING . IF THE NATIONAL COURT WERE TO FIND IN THIS CASE THAT THE TRANSPORT OPERATION WAS CARRIED OUT BY A VESSEL WHICH DID NOT SATISFY THE CONDITIONS IMPOSED BY UNDERWRITERS FOR VESSELS MORE THAN 15 YEARS OLD TO BE INSURED ON THE SAME TERMS AS THOSE BUILT MORE RECENTLY , IT WOULD BE APPROPRIATE TO ADJUDGE THAT THE SUCCESSFUL TENDERER HAD INFRINGED AN OBLIGATION IMPOSED UPON IT BY THE RULES GOVERNING THE AWARD OF THE CONTRACT .

23 HOWEVER , THE SERIOUSNESS OF THE INFRINGEMENT MUST BE APPRAISED IN THE LIGHT OF ALL THE IMPLEMENTING RULES IN RESPECT OF FOOD-AID OPERATIONS , IN PARTICULAR ARTICLE 14 ( B ) OF REGULATION NO 1974/80 , ACCORDING TO WHICH THE SUCCESSFUL TENDERER IS REQUIRED AS SOON AS POSSIBLE TO NOTIFY THE INTERVENTION AGENCY RESPONSIBLE FOR PAYMENT OF ' THE NAME OF THE VESSEL AND ITS FLAG , THE LOADING DATE , THE DEPARTURE DATE OF THE VESSEL , THE PROPOSED ARRIVAL DATE AND THE ACTUAL DATE OF ARRIVAL AT DESTINATION ' .

24 IN THE PRESENT CASE , IT IS APPARENT FROM THE DOCUMENTS BEFORE THE COURT THAT THE SUCCESSFUL TENDERER FULFILLED THE ABOVEMENTIONED OBLIGATIONS AND THAT THE INTERVENTION AGENCY WOULD THEREFORE HAVE BEEN IN A POSITION TO AVERT THE INFRINGEMENT OF THE OBLIGATION IN QUESTION BY OBJECTING IN DUE TIME THAT THE VESSELS TO BE USED BY MAAS DID NOT MEET THE REQUIRED STANDARD .

25 IN ORDER TO ASSESS THE SERIOUSNESS OF THE INFRINGEMENT OF WHICH MAAS IS ACCUSED , ACCOUNT MUST ALSO BE TAKEN OF THE FACT THAT THE SUCCESSFUL TENDERER ' S OBLIGATION TO LOAD THE GOODS ON TO VESSELS LESS THAN 15 YEARS OLD IS NOT REPRODUCED IN COMMISSION REGULATION NO 75/84 OF 12 JANUARY 1984 AMENDING REGULATION NO 3406/83 ON DELIVERY OF COMMON WHEAT AS FOOD AID TO THE KINGDOM OF LESOTHO ( OFFICIAL JOURNAL 1984 , L 10 , P . 37 ).

26 IT MAY THEREFORE BE INFERRED THAT THE OBLIGATION TO CARRY THE GOODS INTENDED FOR FOOD AID ON VESSELS LESS THAN 15 YEARS OLD WHICH APPEARED IN THE EARLIER REGULATIONS WAS NOT VIEWED BY THE COMMISSION AS BEING OF FUNDAMENTAL IMPORTANCE TO THE PROPER ACCOMPLISHMENT OF THE TRANSPORT OPERATION .

27 THE ARGUMENT PUT FORWARD BY THE COMMISSION TO THE EFFECT THAT IT HAD TO ABANDON THAT REQUIREMENT BECAUSE NO TRADER WOULD HAVE AGREED TO TRANSPORT COMMON WHEAT TO LESOTHO ON THE CONDITIONS WHICH APPLIED PREVIOUSLY , IN VIEW OF THE DIFFICULT NATURE OF THE VOYAGE , IS NOT SUPPORTED BY ANYTHING IN THE PREAMBLE TO REGULATION NO 75/84 , WHICH MERELY STATES IN THAT CONNECTION THAT IT IS NECESSARY ' TO SPECIFY THE REQUIREMENTS CONCERNING TRANSPORT BY SEA ' .

28 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT , EVEN IF THE NATIONAL COURT WERE TO FIND THAT THE VESSELS USED BY MAAS FOR THE TRANSPORT OPERATION DID NOT FALL WITHIN THE CATEGORY OF VESSELS WHICH , BY VIRTUE OF BEING LISTED IN THE TOP CLASS AND ENGAGED IN LINER TRADING , ARE ASSIMILATED , AS FAR AS THE RISK OF ACCIDENT IS CONCERNED , TO VESSELS LESS THAN 15 YEARS OLD , THE TOTAL FORFEITURE OF THE SECURITY SHOULD IN ANY EVENT BE REGARDED AS A PENALTY DISPROPORTIONATE TO THE INFRINGEMENT OF AN OBLIGATION WHICH NEITHER THE INTERVENTION AGENCY NOR THE COMMISSION ITSELF REALLY APPEAR TO CONSIDER IMPORTANT .

29 IN VIEW OF THE FOREGOING CONSIDERATIONS , IT MUST BE STATED ON THE ONE HAND THAT A SUCCESSFUL TENDERER DOES NOT INFRINGE HIS OBLIGATIONS WHERE HE VERY SLIGHTLY EXCEEDS THE SHIPMENT PERIOD OR USES SHIPS ENGAGED IN LINER TRADING WHICH ARE MORE THAN 15 YEARS OLD BUT ARE SUBSTANTIALLY AS RELIABLE AS SHIPS LESS THAN 15 YEARS OLD AND , ON THE OTHER HAND , THAT THE SECOND INDENT OF ARTICLE 20 ( 1 ) OF REGULATION NO 1974/80 INFRINGES THE PRINCIPLE OF PROPORTIONALITY IN SO FAR AS ITS EFFECT IS THAT THE SECURITY FURNISHED PURSUANT TO ARTICLE 5 OF THE REGULATION IS TO BE DECLARED WHOLLY FORFEIT WHERE THE GOODS IN QUESTION ARE TRANSPORTED IN VESSELS WHICH ARE MORE THAN 15 YEARS OLD AND NOT ENGAGED IN LINER TRADING , BUT WHICH ARE LISTED IN THE TOP CLASSES IN RECOGNIZED SHIPPING CLASSIFICATION REGISTERS .

COSTS
30 THE COSTS INCURRED BY THE GOVERNMENT OF THE ITALIAN REPUBLIC AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS
THE COURT ( FIRST CHAMBER ),
IN ANSWER TO THE QUESTION SUBMITTED TO IT BY THE VERWALTUNGSGERICHT FRANKFURT AM MAIN BY ORDER OF 15 NOVEMBER 1984 , HEREBY RULES :
( 1 ) A SUCCESSFUL TENDERER DOES NOT INFRINGE HIS OBLIGATIONS WHERE HE VERY SLIGHTLY EXCEEDS THE SHIPMENT PERIOD OR USES SHIPS ENGAGED IN LINER TRADING WHICH ARE MORE THAN 15 YEARS OLD BUT WHICH ARE SUBSTANTIALLY AS RELIABLE AS SHIPS LESS THAN 15 YEARS OLD .

( 2)THE SECOND INDENT OF ARTICLE 20 ( 1 ) OF REGULATION NO 1974/80 INFRINGES THE PRINCIPLE OF PROPORTIONALITY IN SO FAR AS ITS EFFECT IS THAT THE SECURITY FURNISHED PURSUANT TO ARTICLE 5 OF THE REGULATION IS TO BE DECLARED WHOLLY FORFEIT WHERE THE GOODS IN QUESTION ARE TRANSPORTED IN VESSELS WHICH ARE MORE THAN 15 YEARS OLD AND NOT ENGAGED IN LINER TRADING BUT WHICH ARE LISTED IN THE TOP CLASS IN RECOGNIZED SHIPPING CLASSIFICATION REGISTERS .