Case T-26/00

Lecureur SA

v

Commission of the European Communities

‛Commission Regulation No 2519/97 — Food aid — Arbitration clause — Contractual nature of the dispute — Nonconformity of the goods delivered — Thefts from warehouses — Transfer of the burden of risk — Deductions from payments’

Judgment of the Court of First Instance (Second Chamber), 19 September 2001   II-2625

Summary of the Judgment

Agriculture — Common agricultural policy — Food aid — Implementation — Delivery of products — Legal effect — Transfer of the burden of risk from supplier to beneficiary — Means of proof — Final certificate of conformity — Other means of proof — Whether permissible — Nature of reservation — Not relevant

(Commission Regulation No 2519/97, Arts IS and 16(4))

Article 15 of Regulation No 2519/97 laying down general rules for the mobilisation of products to be supplied under Regulation No 1292/96 as Community food aid cannot be interpreted as meaning that the legal effect of delivery, namely the transfer of the burden of risk from supplier to beneficiary, is necessarily dependent on the time at which the final certificate of conformity — the sole means of proving delivery expressly provided for in the Regulation — is drawn up. Such an interpretation would risk jeopardising the performance in good faith of the contractual obligations in question, by making the time at which the burden of risk is transferred dependent on the good will of the monitor appointed by the Commission and by making the supplier continue to bear the risks to which the goods may be subject even when it no longer has control over them.

In those circumstances, although the agreement protocol concluded between the Commission and the beneficiary before

the taking-over certificate is issued by the beneficiary cannot on its own fix the moment at which the burden of risk was transferred from the supplier to the beneficiary, the factual information formally stated and approved by the Commission in that document may nevertheless serve to establish the relevant facts in respect of the relations between the supplier and the institution.

On the other hand, the interpretation to be placed on Article 16(4) of the Regulation concerning notices of reservation is not such as to influence the determination of the time at which the burden of risk passed from the supplier to the beneficiary. That provision is concerned solely with the matter of the nonconformity of the goods with the applicable contractual conditions.

(see paras 63-65, 71)