3.

We have seen that the national court formulated Question (2) on the basis of the judgment of the Court of Justice of 11 May 1977 in Joined Cases 99 and 100/76 ([1977] 1 ECR 861) on the interpretation of Article 18 of Regulation No 1259/72 concerning release of the deposit paid to the national intervention agency immediately after the butter is taken over at a reduced price by the successful tenderer (cf. Article 13 of the said regulation). In that case too the successful tenderer for intervention butter transferred the butter to a third party without himself using the butter in accordance with the regulation; the Court of Justice held that, save in exceptional circumstances, ‘the successful tenderer cannot escape his obligations by relying on the undertaking entered into by the purchaser under the terms of the contract of sale’ (paragraph 7 of the decision). The Court arrived at that view not only on the basis of the wording of Regulation No 1259/72, Article 10 (5) of which provided that ‘rights and obligations arising out of the invitation to tender shall not be transferable’ but also in consideration of the scope and purpose of the provision. The Court pointed out in that connexion that the system established by Regulation No 1259/72 was a special measure intended to dispose of surplus butter to the food industry on particularly favourable conditions; it was therefore necessary to take appropriate precautions to ensure that the butter sold on those conditions did not reach the normal market but was in fact processed within a period allowing the regularity of the operation to be checked; on that basis the Court concluded that ‘the effectiveness of the system of checking would be seriously compromised if the acceptance of an obligation to process by a subsequent purchaser who was not himself under any legal obligation to the competent authority were regarded as sufficiently discharging an undertaking entered into by the successful tenderer against a deposit’. Thus, according to the view upheld in that judgment, the duty imposed on the successful tenderer for the butter by Article 18 of the said Regulation No 1259/72 (to ensure the fulfilment of the conditions laid down concerning the processing) continues to have effect even where the successful tenderer does not himself produce the processed products but transfers the butter, in an unprocessed or only partially processed state, to a third party. I consider that the principle laid down in the judgment of 11 May 1977 on the interpretation of Regulation No 1259/72 also applies to Regulation No 1308/68: the two regulations in fact pursue aims which are closely connected and the detailed rules for their application are very similar. When Regulation No 1308/68 was adopted considerable public stocks were held in the Community as a result of intervention on the market in fresh butter and it was therefore necessary, in order to take advantage of the possibilities of disposing of it on the world market, to enact measures to promote the exportation of such stocks (cf. the first recital in the preamble to Regulation No 1308/68). With these objectives in view the Commission required the national intervention agencies to sell the butter at a relatively low price on condition that the purchasers undertook to export it to markets outside the Community; at the same time, in order to ensure that the butter was in fact exported, the Commission laid down a short period (30 days) within which it had to be exponed (Article 3) and required the purchaser to provide a deposit as security for the fulfilment of the obligation entered into (cf. Article 4 and the fourth recital of the preamble). It was a condition of the release of the security that the butter should actually have been exported. Regulation No 1259/72 is also based on the finding that large stocks of butter are held in the Community as a result of intervention on the market (first recital in the preamble) and, like Regulation No 1308/68, it contains proposals to promote the disposal of such stocks by sale at a reduced price (second and third recitals in the preamble); the sole difference is that provision is made for making such sales to processors — and no longer to exporters — so that the requirement imposed on purchasers becomes that of processing the butter awarded into concentrated butter with the incorporation of additives (Article 6). Furthermore under the later regulation too a ‘processing’ deposit must be provided as security (Article 9 (2) and Article 12) which is released only when the successful tenderer has furnished proof that the condition has been met (Article 18 (2)). It is clear that if these arrangements to prevent frauds had left a loop-hole whereby it would have been possible in certain cases to recover the deposit without in the meantime ensuring that the butter was in fact used in accordance with the requirements of the Community rules these arrangements could not have attained the objectives for which they were established. A malfunctioning of this nature would occur if the transfer of products to a third party who takes over the obligation to export (under Regulation No 1308/68) or the obligation to process (under Regulation No 1259/72) were held to constitute sufficient grounds for releasing the security. It is thus essential that, even in the case of sale to third parties, the security should be released to the first purchaser only on condition that the butter acquired from the intervention agency has in fact been used in the prescribed manner. Such was the ratio decidendi of the judgment of the Court of 12 May 1977 and I consider that it is fully applicable to the present case. It is true that Regulation No 1308/68, unlike the later Regulation No 1259/72, contains no provision expressly laying down that obligations arising out of the tender shall not be transferable (cf. the said Article 10 (5) of Regulation No 1259/72). This is however understandable because, having prescribed a very short period within which the exports had to be effected (merely 30 days), the authors of Regulation No 1308/68 probably considered it superfluous to make provision for cases of intervening assignment before exportation. Regard must also be had for the fact that Regulation No 1308/68 was adopted shortly after Regulation No 804/68 of the Council on the common organization of the market in milk and milk products and was affected by the fact that at the time of its adoption the matter had not yet been adequately worked out. It is scarcely necessary to add that the absence of any provision for sales to third parties before exportation cannot be understood as a prohibition of such transactions: there is indeed nothing to support such an interpretation. That point of view is confirmed by the general principles common to the legal systems of the Member States in the field of obligations. In accordance with, those principles a contractual obligation cannot be assigned without the consent of the obligee, that is in the present action, without the consent of the intervention agency. This means that there is a prohibition on the assignment to subsequent purchasers of the goods of the obligations undertaken by the successful tenderer to the intervention agency even though it is not expressly laid down: in other words the successful tenderer remains liable to the agency even though he has sold the goods. Further support for this view is derived from the fact that the obligation to export which is entered into by the purchaser in the document whereby he takes over the goods pursuant to Article 3 of Regulation No 1308/68, although only a part of individual contracts, undoubtedly displays characteristics of public law both because it is prescribed in a regulation which allows of no derogation and because it regards relations between private operators and agencies engaged in functions of general interest. Another observation may also be made concerning the general principles governing obligations. As the Court is aware any obligor — subject to contrary agreement and unless the obligations in question are of a strictly personal nature — may employ representatives to fulfil contractual obligations. If the obligation to export the butter undertaken by the first purchaser is viewed in this light it may indeed be held that the subsequent purchaser assumes the status of representative of the former in fulfilling that obligation. On that basis the problem of the liability of the first purchaser for non-fulfilment of the obligation caused by the subsequent purchaser presents no difficulties. It must in fact be held that the same rules apply to the behaviour of the representative of the obligor (in the present action Norden) as to that of the principal obligor who is directly involved in fulfilling his own contractual obligations; this is not however because the export obligation has passed to the subsequent purchaser but rather by virtue of the capacity assumed by the latter of representative of the first purchaser.