3.

In. so far as the question submitted to the Court is concerned with the maximum age-limit of the vessel to be employed and the question whether Regulation No 1974/80 lays down an excessively strict requirement, the Italian Government maintains that, when the condition of a vessel is such that it is placed in the top class in recognized classification registers, no greater risk is involved where the vessel is more than 15 years old. Consequently, it maintains, it is sufficient to have regard to the objective suitability of a vessel, which, if the need should arise, can be proved by a special certificate. In that connection the Italian Government also refers to the fact that in Mediterranean ports there is little choice as regards carriers who can comply with the strict conditions imposed; it also mentions the principle of equal access and equal treatment which applies here (Article 4 (4) of Regulation No 2750/75) and argues that the principle is endangered by the imposition of excessively strict conditions, to the detriment of interested parties in the Mediterranean area. The Commission puts forward the opposing view that the criteria laid down in Regulation No 1974/80 are essential to ensure safe and prompt deliveries. According to the previous decisions of the Court, the obligations involved are principal (and not secondary, incidental) obligations and it is therefore appropriate to ensure that they are fulfilled by imposing strict penalties. The Commission also refers in that connection to the expression ‘proper functioning of the system’ used in the case-law. It observes that the requirement of equal treatment in Article 4 of Regulation No 2750/75 is indeed important here; however, in the interests of complying with that requirement, specific objective criteria cannot be dispensed with, and that is so not because — as the Italian Government considers — the intention is to make certain that all the participants in a call for tenders enjoy the same insurance conditions but rather because those participants who use older — and therefore cheaper — vessels would otherwise be placed in an advantageous position. In my opinion the Commission's view should be upheld in so far as it places particular stress on the need to concentrate on proper fulfilment of the commitments entered into vis-à-vis the recipient countries and to ensure the safe and reliable transportation of the foodstuff which — if the purpose of the action is to be achieved — must reach its destination quickly and in perfectly fresh condition. I also find convincing the answer given to the question whether vessels which have been in service for more than 15 years may be regarded as being subject to greater risk. Experience clearly shows that they are more frequently involved in accidents and cases of fraud. It may also be said that, in view of their low purchase prices, they are often to be found in the possession of owners whose capital is not particularly substantial and who are inclined to resort to the cheapest options when repairs have to be carried out. As a result, the age criterion — as has been shown by the Commission, which referred to the legal position in several Member States (United Kingdom, Kingdom of the Netherlands and the Federal Republic of Germany) — also plays a role with respect to the determination of insurance conditions and premiums; in other words a greater risk is assumed when old ships are used (except in the case of vessels engaged in liner trading, which of course would not normally be used for bulk transport operations of the kind involved here). In addition, it is — as the Commission has stated, without being contradicted — also a fact that certain countries in the Middle East (such as Saudi Arabia and Jordan) subject ships which have been in service for more than 15 years to rigorous inspections, and that this may discourage their use in that area and prevent the prompt completion of transport operations. Although on the other hand the Italian Government is right in its view that there certainly are vessels more than 15 years old which have been maintained in such good condition that their use entails no increased risk, that fact can hardly be taken into account within the framework of a general rule. This could scarcely be achieved by carrying out a reliability test in each individual case (since this would entail additional and avoidable — and therefore unjustifiable — administrative expenditure), or by requiring that participants in a tendering procedure should provide on each occasion a certificate as to the condition of the vessels to be employed (it is difficult to see how such certificates could be obtained without great difficulty, and moreover problems might arise regarding appraisal of them). In drafting a general rule it is surely more appropriate to adopt general criteria based on the results of long experience, not least because — and it seems to me that the Commission is also correct here — that is the easiest way to ensure that the principle of equal treatment is observed in the tendering procedure. Abandonment of the criterion of a maximum age would be tantamount to preferential treatment for the successful tenderer and discrimination against all the other interested parties, who might possibly, if the criterion of age had been waived earlier, have been able to offer more favourable terms than the successful tenderer. In view of that consideration, there can be no question of making concessions to the successful tenderer after the event. Consequently, the age criterion laid down for ships by the Commission is in no way arbitrary, but indeed is appropriate and reasonable for the purposes of the principle of proportionality, and that view cannot be undermined by two further considerations to which attention was drawn during the proceedings, in particular the reference made by the Italian Government to the special circumstances obtaining in the Mediterranean ports (where vessels meeting the prescribed age criterion are not readily available) and the reference to Commission Regulation No 75/84 (Official Journal 1984, L 10, p. 37), according to which the only condition imposed for the delivery of common wheat as food aid to the Kingdom of Lesotho was the requirement ‘to ship in vessels listed in the larger classes in recognized classification registers’ (whereas no age criterion was laid down). If, as the Commission stated without being contradicted, it is true that the proportion of vessels over 15 years old in the world as a whole is only 28% of the total and if it is to be concluded therefore that the same (or even better) circumstances prevail in the Mediterranean area, it is not apparent how the exclusion of vessels of that age by the regulation under consideration could significantly reduce the opportunity to participate available to interested parties in the Mediterranean region, contrary to the principle of equal treatment. On the other hand, as far as the rules laid down for deliveries to the Kingdom of Lesotho are concerned, the Commission has given the plausible explanation that in that case a departure from the age criterion applicable to ships (which was nevertheless contained in the original regulation, Regulation No 3406/83, Official Journal 1983, L 337, p. 28) was inevitable since otherwise it would have been impossible to find anyone to undertake the difficult transport operation by sea and overland in the African interior. It should also be noted that in that case the delivery was not on cif terms of the kind to which Article 4 (4) (d) of Regulation No 1974/80 applies. Provision had to be made for transport as far as the ultimate destination. In that case, it was quite conceivable that the requirements regarding the choice of the vessel should be less strict than in the case of deliveries on cif terms (where all that is important is that the sea transport operation should be proprerly completed), since it can be assumed that, as the successful tenderer is responsible for ensuring that the goods reach their final destination, it is in his own interest to ensure that an unreliable vessel is not selected. It must therefore be stated in reply to the first part of the question submitted that the conditions laid down in Article 4 (4) (d) of Regulation No 1974/80 concerning the vessels to be used appear to be appropriate in so far as they constitute an obligation which is essential for ensuring the success of the action concerned, and accordingly a substantial penalty for failure to fulfil that obligation is properly provided for in the form of forfeiture of the entire security.