3.

In assessing that argument, it must first be stated that the division of powers between the Community and the Member States is exclusively regulated by Community law and not by the private law of the Member States. The division of contractual liability between the organs of the Community and the Member States corresponds to the division of powers laid down in Community law, which will now be examined. (a) The EEC Treaty contains no express provision dealing with the powers of the Community in regard to food-aid policy. However, a series of factors, such as the powers of the Community in relation to agricultural policy, trade policy and the association of the overseas countries and territories (Part IV of the EEC Treaty), which is a matter of development policy, and the accords which have been entered into on the basis of that association suggest that the Community, as well as the Member States, has powers in relation to food aid. To this end, the original regulation, Regulation No 359/67/EEC of the Council of 25 July 1967 on the common organization of the market in rice (Official Journal, English Special Edition 1967, p. 193), as amended by Regulation No 668/75 (Official Journal 1975, L 72, p. 18), contained a provision on the mobilization of rice for food aid. Similarly, Article 25 of the regulation now in force, namely Council Regulation No 1418/76 of 21 June 1976 on the common organization of the market in rice (Official Journal 1976, L 166, p. 1, hereinafter referred to as the “rice market regulation”) provides, inter alia, that rice may be made available for food-aid programmes, being either purchased on the Community market or obtained from stocks held in store by the intervention agencies. According to Article 25 (2), the conditions under which products may be made available and, in particular, under which they may be bought on the Community market or obtained from the stocks of the in-, tervention agencies is to be determined by the Council, acting on a proposal from the Commission. The Council availed itself of this possibility and adopted Regulation No 2750/75 of 29 October 1975 fixing criteria for the mobilization of cereals intended as food aid (Official Journal 1975, L 281, p. 89). The sense and purpose of this regulation is, inter alia, as the second recital states, to avoid disturbance of the market in cereals caused by withdrawals of cereals intended as food aid. To that end, Article 4 provides that the buying-in operations referred to in the regulation are to be carried' out, in Community territory, by the intervention agencies by inviting tenders for the supply of the product. Finally, Article 6 of the aforementioned regulation provides that for a Community action, the Commission is to determine the conditions governing mobilization after considering the market situation and in accordance with the procedure laid down in the rice market regulation. Article 7 (4) empowers the Commission, as soon as the principle of an emergency Community action has been adopted, to decide which Member State is to be responsible for carrying out the action. Since, in the opinion of the Council, use of the tendering procedure provided for in the aforementioned regulation did not always permit the objectives of flexibility and speed to be met, it made provision, by means of Regulation No 696/76 (of 25. 3. 1976, derogating from Regulation No 2750/75 in respect of mobilization procedures for cereals to be supplied as food aid, Official Journal L 83, p. 8) for another procedure to be used in certain exceptional cases. The Commission made use of that possibility in the decision of 12 September 1976 which is now before the Court. The aforementioned legislation, pursuant to which that decision was adopted and which is based solely on the provisions of the Treaty regarding agriculture, in itself shows clearly, in my opinion, that Community food aid, at least as regards mobilization of cereals, was, at the material time, part of the common agricultural policy. It also indicates that the Community, having no executive agencies of its own, has relied on the cooperation of the State intervention agencies for the implementation of its food-aid policy, just as it does for the agricultural policy. Even if those intervention agencies implement Community law, autonomously and directly, that is, without the instrumentality of the Member States, they continue to be executive agencies of the State, acting not as agents of the Commission but as representatives of their respective Member States. That fact is also apparent from the Italian legislative provisions conferring the status of intervention agency on the ENR (Ministerial Decree of 22. 10. 1964 and Ministerial Decree of 27. 10. 1967) by virtue of which the ENR, when discharging the functions provided for in the rice market regulation as an intervention agency, acts on behalf, in the interests and under the control of the Italian State. Finally, the case-law of the Court of Justice concerning the non-contractual liability of the Community in relation to the agricultural policy, which is applicable mutatis mutandis to this case, takes account of that division of powers. As the Court has clearly stated in a consistent line of decisions (see in particular Cases 12/79 and 217/81 ( 2 )), the purpose of the action for damages provided for in Articles 178 and 215 of the EEC Treaty is not to enable the Court to examine the validity of decisions taken by national intervention agencies responsible for the implementation of certain measures within the framework of the common agricultural policy. This Court, in applying Community law, has thus always regarded the activity of the intervention agencies within the framework of the common agricultural policy as an administrative activity of the Member States, judicial review of which is a matter for the national courts. The situation cannot, however, be any different where the national intervention agencies, in implementation of the tasks entrusted to them in connection with the Community food-aid policy, conclude contracts with traders. In such cases, they likewise do not act as agents of the Commission but rather as representatives of the Member State of which they are public authorities. (b) Finally, the division of powers between the Community and the Member States in the area of food aid also takes account of the way in which the Community is financed. That system, which is closely related to the financing system for the Common Agricultural Policy, also shows clearly that the ENR, when implementing the Commission decision in question, is not, under Community law, to be regarded as the agent of the Commission. Community expenditure on food aid has been financed, since 1 January 1975, on the basis of Regulation No 2681/74 of the Council of 21 October 1974 (Official Journal L 288, p. 1, hereinafter referred to as “the Financing Regulation”). The resources made available by the Community for financing food aid are transferred to the Member States and, as is apparent from Article 2 of the regulation, are charged partly to the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) and partly to Title 9 (chapter on food aid expenditure) of the Community budget. According to Article 3 (1) of the regulation, the Member States to designate the departments and bodies empowered to make payments in respect of the expenditure referred to in the regulation. According to paragraph (2) of the same article, the Commission is to grant advances to the Member States concerned periodically and at their request and is to audit the accounts of the Member States after consulting the committee referred to in Article 11 of Regulation No 729/70 of the Council on the financing of the common agricultural policy (Official Journal, English Special Edition 1970 (I), p. 218). As is apparent from Article 3 (3) of Commission Regulation No 249/77 of 2 February 1977 laying down detailed rules for the implementation of Regulation No 2681/74 (Official Journal 1977, L 34, p. 21), payment for the services of the successful tenderer or operator is then to be made by the Member State which has applied for the advance. According to Article 4 of the Financing Regulation, Articles 8 and 9 of Regulation No 729/70 on the financing of the common agricultural policy are applicable by analogy to expenditure in respect of food aid. Consequently, the Member States are to take the measures necessary, in accordance with national provisions laid down by law, regulation or administrative action, (1) to satisfy themselves that transactions financed by the Fund are actually carried out and are executed correctly, (2). to prevent and deal with irregularities; and (3) to recover sums lost as a result of irregularities or negligence. The Member States are to inform the Commission of the measures taken for those purposes and in particular of the state of the administrative and judicial procedures, Article 8 (2) of Regulation No 729/70 provides that in the absence of total recovery, the financial consequences of irregularities or negligence are to be borne by the Community, with the exception of the consequences of irregularities or negligence attributable to administrative authorities or other bodies of the Member States. (c) In the light of that division of powers, it was, finally, no more than logical that the Commission decision of 10 September 1976, which provided for the food aid in question, was, according to Article 6, addressed to the Italian Republic and not the the ENR. It follows from that fact, as the national court has correctly noted, that, pursuant to the fourth paragraph of Article 189 of the EEC Treaty, the decision was binding only upon the Italian Republic and not upon the ENR, which was also named in it. The reference to the national intervention agency which was to be responsible for implementation of the decision was appropriate because that agency, both under Community law and, as the national court has stated (order for reference, p. 5), under Italian law, had the power to purchase the goods in question on behalf of the Italian State and also because, in view of the urgency, the measure had to be taken quickly.