C-21/72

JUDGMENT OF 12. 12. 1972 — JOINED CASES 21 TO 24/72

4. Article XI of the General Agreement on Consequently, the validity of Regula­ Tariffs and Trade (GATT) is not capable tions Nos 459/70, 565/70 and 686/70 of conferring rights on citizens of the of the Commission (JO L 57, p. 20, L 69, Community which they can invoke p. 33 and L 84, p. 21 respectively) before the courts. cannot be affected by that article.

In Joined Cases 21 to 24/72

Reference to the Court under Article 177 of the EEC Treaty by the College van Beroep voor het Bedrijfsleven, The Hague, for a preliminary ruling in the action pending before that court between

International Fruit Company NV, Rotterdam (Case 21/72),

Kooy Rotterdam NV, Rotterdam (Case 22/72),

Advocate-General: H. Mayras Registrar: A. Van Houtte

gives the following

INTERNATIONAL FRUIT COMPANY v PRODUKTSCHAP VOOR GROENTEN EN FRUIT

JUDGMENT

Issues of fact and of law

I — Facts and procedure 3. ...'

market in fruit and vegetables (OJ, Article 1(1) of that regulation 'With English Special Edition 1959-1962, p. 97), effect from 1 April 1970 and until 30 June on 9 December 1969 the Council adopted 1970, all imports into the Community of Regulation No 2513/69 on the coordina apples other than cider apples . . . shall be tion and standardization of the treatment subject to the presentation of an import accorded by each Member State to im licence'.

apples. Article 2 of the same regulation fact that 'a crisis situation . . . was found to provides: exist in Belgium, France, Italy and Luxem bourg' and that the situation was proving '1. If the Community market in one or difficult in the Netherlands and in Ger several of the products referred to in many; the 'significant' amount of recent Article 1 suffers from, or is threatened imports of apples into the Community with, serious disturbance capable of and the risk that the liberalization of jeopardizing the objectives of Article imports enacted by Regulation No 2513/69 39 of the Treaty, as a result of imports would lead to an increase in the quantities or exports, appropriate measures may imported; the 'conclusion that the Com be taken in regard to trade with third munity market is threatened, because of countries until the disturbance or imports, with serious disturbance capable threat of disturbance has disappeared. of jeopardizing the objectives of Article 39 of the Treaty' and 'that it is necessary,

JUDGMENT OF 12. 12. 1972 — JOINED CASES 21 TO 24/72

munity market situation.' to the PGF and that certain provisions of On 25 March 1970 the Commission Netherlands law, applied by the said adopted Regulation No 565/70 on the decisions, were contrary to Community operation of the system of transport rules. The national court then referred the certificates for eating apples, amending matter to the Court under Article 177 of Regulation No 459/70 (JO L 69 p. 33). the EEC Treaty which delivered its judg­ Under Article 1 of that regulation 'applica­ ment on 15 December 1971 (Joined Cases tions for import certificates submitted up 51 to 54/71, Rec. 1971, p. 1108 et seq.) to 20 March 1970 shall be accepted, in accordance with the provisions of Article 1 of Regulation No 459/70, for the quantity 4. Still in the same main action, the Col­ indicated in the application and up to a lege van Beroep, basing its decision largely maximum of 80% of a reference quantity. on the aforementioned judgments in rela­ The date of 20 March 1970 was postponed tion to other questions and having noted on several occasions, in particular by that the plaintiffs were also alleging that Article 1 of Regulation No 686/70 of the Regulations Nos 459/70, 565/70 and 686/70 Commission of 15 April 1970 (JO L 84, p. are incompatible with Article XI of GATT, 21) and by Article 1 of Regulation No. decided on 5 May 1972 to submit the 983/70 of the Commission of 28 May 1970 following questions to the Court: (JO L 116, p. 35). According to Article 1(2) of Regulation '1. Does the validity of measures adopted No 565/70, 'the reference quantity shall by the institutions of the Community, be equal to the sum of the quantities of which is one of the matters dealt with apples ... which the applicant has imported in Article 177 of the EEC Treaty, also into the Community in 1969 during the cover the validity of these measures month corresponding to that indicated in under an international law other than the application'. Community law?

had decided to reject it'. 'General Elimination of Quantitative Re­ In proceedings brought on 5 August 1970 strictions (Joined Cases 41 to 44/70) those firms made applications to the Court for the 1. No prohibitions or restrictions other annulment of the Community measures than duties, taxes or other charges, which formed the basis of the rejection by whether made effective through quotas, the PGF. By judgment of 13 May 1971 import or export licences or other meas­ ([1971] ECR p. 411 et seq.) the Court dis­ ures, shall be instituted or maintained missed those applications as unfounded. by any contracting party on the im­ In addition, on 30 June 1970 the plaintiffs portation of any product of the territory instituted proceedings in the College van of any other contracting party or on the Beroep voor het Bedrijfsleven for the exportation or sale for export of any annulment of the decisions of rejection of product destined for the territory of any the PGF, contending in particular that the other contracting party. Netherlands State had, contrary to Regula­ tion No 459/70, transferred powers and 2. The provisions of paragraph 1 of this obligations deriving from that regulation article shall not extend to the following:

INTERNATIONAL FRUIT COMPANY v PRODUKTSCHAP VOOR GROENTEN EN FRUIT

like product, of a domestic col on the Statute of the Court of Justice product for which the imported of the European Economic Community, product can be directly sub­ written observations were submitted by stituted, by making the surplus the plaintiff firms, the Government of the available to certain groups of Kingdom of the Netherlands and the Com­ domestic consumers free of mission of the European Communities. charge or at prices below the Alter hearing the report or the Judge- current market level; or Rapporteur and the views of the Advocate- General the Court decided there was no (iii) to restrict the quantities per­ need for any preparatory inquity. The oral mitted to be produced of any observations of the plaintiffs in the main animal product the production actions and of the Commission of the of which is directly dependent, European Communities were presented at wholly or mainly, on the im­ the hearing on 5 October 1972. ported commodity, if the do­ The plaintiff firms were represented by mestic production of that com­ B. H. ter Kuile, advocate of the Hoge modity is relatively negligible. Raad of the Netherlands, the Netherlands Government by E.L.C. Schiff, Secretary- Any contracting party applying restric­ General of the Ministry for Foreign Af­ tions on the importation of any product fairs, and the Commission by its Legal pursuant to subparagraph (c) of this Adviser, R. C. Fischer.

JUDGMENT OF 12. 12. 1972 — JOINED CASES 21 TO 24/72

The Advocate-General delivered his obligations. The reply to the first question opinion at the hearing on 25 October 1972. is thus in the affirmative. In accordance with Articles 65 and 66 of

The may be summarized as follows: Court has jurisdiction to give a ruling when, in such a case, the national court has The first question referred to it the problem of the validity of the Community measure. If it were The plaintifffirms submit that this question otherwise, the courts of the different should be viewed from an angle different Member States might deliver differing from that adopted by the national court. judgments on the validity or scope of GATT comes under the first paragraph of Community law. Article 234, under the terms of which 'The The Commission begins by retracing the rights and obligations arising from argu history of relations between the Com ments concluded before the entry into munity and Member States, on the one force of this Treaty between one or more hand, and GATT, on the other, and by Member States on the one hand, and one analysing the essential components of that or more third countries on the other, shall agreement. To this end it states the follow not be affected by the provisions of this ing: Treaty.' It is clear from this that the Com GATT was concluded by all the Member munity institutions do not have the power States with a large number of third coun to take measures capable of affecting the tries before the entry into force of the rights and obligations arising under GATT.

Treaty. That provision must be interpreted the rights and carried out the obligations of as meaning that the said institutions are Member States in so far as those rights and powerless to affect the rights and obliga obligations fall within its compass, which, tions deriving from international agree at least since the end of the transitional ments. When two legal rules, contained in period, is practically the case in respect of both a Community measure and an inter all the areas governed by GATT. It is true

INTERNATIONAL FRUIT COMPANY v PRODUKTSCHAP VOOR GROENTEN EN FRUIT

concerning matters of commercial policy, sufficiently clear and complete to be applied it is exclusively the Community, as re­ by the courts. presented by the Commission, which Finally, paragraph 2 of that article lays intervenes, while in voting the Member down a certain number of exceptions to the States always adopt the same position in prohibition stated in paragraph 1, among accordance with the predetermined Com­ which those in subparagraph C are of munity position. Third countries which are special interest in this case. It is also for members of GATT accept that the Com­ this reason that paragraph 1 cannot be munity in fact acts like a contracting party relied on in contesting the validity of to this agreement. All these considerations secondary Community law. amount to acceptance that GATT binds the Community on the same basis as the The second question agreements concluded by it under Article 228 of the Treaty. However, that does not mean that in­ According to the plaintiff firms, the re­ fringement of GATT by a measure adopted strictions laid down in Regulations Nos by a Community institution can be a 459/70, 565/70 and 686/70 are contrary to ground in law for having the measure set the obligations imposed on Member aside. On the contrary, such an effect States by Article XI of GATT, as para­ would not accord with the system of graph 2 of that article is not applicable in GATT. If the Court were to declare a this case. Furthermore, the system of im­ disputed measure invalid as being in­ port limits, enacted by the last two of those compatible with GATT, it would be regulations, conflicts with Article XIII interfering with the procedures set up of GATT. It is therefore necessary for the under GATT to settle such disputes, which Court to rule that the three regulations in are of a diplomatic and not a judicial question are null and void since they are nature. It cannot be ignored, moreover, incompatible with Article 234 of the EEC that the concessions and benefits provided Treaty and that their enactment was ultra in that agreement are limited by numerous vires.

2 The first question invites the Court to rule whether the validity of measures adopted by the institutions of the Community also refers, within the meaning of Article 177 of the EEC Treaty, to their validity under international law.

3 The second question, which is raised should the reply to the first question be in the affirmative, asks whether Regulations Nos 459/70, 565/70 and 686/70 of the Com­ mission — which laid down, by way of protective measures, restrictions on the importation of apples from third countries — are 'invalid as being contrary to Article XI of the General Agreement on Tariffs and Trade (GATT)', hereinafter called 'the General Agreement'.

4 According to the first paragraph of Article 177 of the EEC Treaty 'The Court of justice shall have jurisdiction to give preliminary rulings concerning ... the validity ... of acts of the institutions of the Community'.

5 Under that formulation, the jurisdiction of the Court cannot be limited by the grounds on which the validity of those measures may be contested.

6 Since such jurisdiction extends to all grounds capable of invalidating those meas­ ures, the Court is obliged to examine whether their validity may be affected by reason of the fact that they are contrary to a rule of international law.

7 Before the incompatibility of a Community measure with a provision of inter­ national law can affect the validity of that measure, the Community must first of all be bound by that provision.

13 That intention was made clear in particular by Article 110 of the EEC Treaty, which seeks the adherence of the Community to the same aims as those sought by the General Agreement, as well as by the first paragraph of Article 234 which provides that the rights and obligations arising from agreements concluded before the entry into force of the Treaty, and in particular multilateral agreements concluded with the participation of Member States, are not affected by the provi­ sions of the Treaty.

14 The Community has assumed the functions inherent in the tariff and trade policy, progressively during the transitional period and in their entirety on the expiry of that period, by virtue of Articles 111 and 113 of the Treaty.

15 By conferring those powers on the Community, the Member States showed their wish to bind it by the obligations entered into under the General Agreement.

16 Since the entry into force of the EEC Treaty and more particularly, since the setting up of the common external tariff, the transfer of powers which has occurred in the relations between Member States and the Community has been put into concrete form in different ways within the framework of the General Agreement and has been recognized by the other contracting parties.

17 In particular, since that time, the Community, acting through its own institutions, has appeared as a partner in the tariff negotiations and as a party to the agreements of all types concluded within the framework of the General Agreement, in accord­ ance with the provisions of Article 114 of the EEC Treaty which provides that the tariff and trade agreements 'shall be concluded ... on behalf of the Community'.

23 According to the second paragraph of the same article, 'the contracting parties' — this name designating 'the contracting parties acting jointly' as is stated in the first paragraph of Article XXV — 'may consult with one or more contracting parties on any question to which a satisfactory solution cannot be found through the consulta­ tions provided under paragraph (1)'.

24 If any contracting party should consider 'that any benefit accruing to it directly or indirectly under this Agreement is being nullified or impaired or that the attain­ ment of any objective of the Agreement is being impeded as a result of, inter alia, 'the failure of another contracting party to carry out its obligations under this Agreement', Article XXIII lays down in detail the measures which the parties concerned, or the contracting parties acting jointly, may or must take in regard to such a situation.

25 Those measures include, for the settlement of conflicts, written recommendations or proposals which are to be 'given sympathetic consideration', investigations possibly followed by recommendations, consultations between or decisions of the contracting parties, including that of authorizing certain contracting parties to suspend the application to any others of any obligations or concessions under the General Agreement and, finally, in the event of such suspension, the power of the party concerned to withdraw from that agreement.

26 Finally, where by reason of an obligation assumed under the General Agreement or of a concession relating to a benefit, some producers suffer or are threatened with serious damage, Article XIX gives a contracting party power unilaterally to suspend the obligation and to withdraw or modify the concession, either after consulting the contracting parties jointly and failing agreement between the contracting parties concerned, or even, if the matter is urgent and on a temporary basis, without prior consultation.

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the plaintiffs in the main actions and the Commission of the European Communities; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Articles 110, 113, 177 and 234; Having regard to the General Agreement on Tariffs and Trade, especially Articles XI, XIX, XXII, XXIII and XXV; Having regard to Regulation No 459/70 of the Commission of 11 March 1970 (JO L 57, p. 20); Having regard to Regulation No 565/70 of the Commission of 25 March 1970 (JO L 69, p. 33); Having regard to Regulation No 686/70 of the Commission of 15 April 1970 (JO L 84, p. 21); Having regard to the Protocol on the Statute of the Court of Justice of the EEC, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities,

THE COURT,

in reply to the question referred to it by the College van Beroep voor het Bedrijfsleven in accordance with the decision delivered by that court on 5 May 1972, hereby rules:

1. The validity, within the meaning of Article 177 of the EEC Treaty, of measures taken by the institutions may be judged with reference to a provision of international law when that provision binds the Community and is capable of conferring on individuals rights which they can invoke before the courts;

2. Since Article XI of the General Agreement does not have such an effect, the validity of Regulations Nos 459/70, 565/70 and 686/70 of the Commission (JO L 57, p. 20; L 69, p. 33; L 84, p. 21 respectively) cannot be affected by that provision.

OPINION OF MR ADVOCATE-GENERAL MAYRAS DELIVERED ON 25 OCTOBER 1972 1

1. Translated from the French