C-147/73

In Case 147/73

Reference to the Court under Article 177 of the EEC Treaty by the Berlin Finanzgericht for a preliminary ruling in the action pending before that court between

CARLHEINZ LENSING KAFFEE-TEE-IMPORT KG, Berlin,

and

HAUPTZOLLAMT BERLIN-PACKHOF,

on the interpretation of Article 131 EEC Treaty, in conjunction with Annex IV and the Convention of Association of 29 July 1969 between the EEC and the African and Malagasy States associated with the Community (OJ L 282, 28. 12. 1970, p. 1),

JUDGMENT

Issues of fact and of law

The facts of the case, the subject matter concerning certificates of origin had not of the request and the views of the been observed if the coffee was in fact of parties may be summarized as follows: Cameroon origin).

2. The plaintiff disputed this decision, I — Facts and procedure which was confirmed by the Hauptzollamt Berlin-Packhof, and took 1. In May 1971 the plaintiff in the the matter to the Finanzgericht Berlin. By main action imported 100 sacks of raw order dated 4 June 1973, the latter coffee from Africa. The plaintiff claimed decided to stay the proceedings and to exemption from customs duty under the request the Court under Article 177 of Common Customs Tariff, stating that the EEC Treaty to give a preliminary the coffee came from the Republic of ruling on the following question: Guinea and by reason of this fact came 'Is Article 131 EEC Treaty, in under the scheme provided for by the conjunction with Annex IV and the Convention of Association with the Convention of Association of 29 July African and Malagasy States. It produced 1969 between the European Economic a certificate certifying that the coffee Community and the African and came from Guinea and referred to a Malagasy States associated with the decree of the Federal Minister of Finance Community, to be interpreted to mean of 28 December 1966 which reads as that imports of coffee from Guinea into follows: 'In the case of imports from the the Federal Republic of Germany Republic of Guinea the preferences including West Berlin were still to be under the EEC Treaty are to be granted treated in 1971 as imports originating in for the time being ...'. the Associated States, i.e. as free of duty The customs office, having at first in appropriate cases?' acceeded to the request, claimed, some It appears from the grounds of the order months later, the payment of 1 391 DM for a preliminary ruling by the customs duty on the ground that the Finanzgericht that the latter considered it coffee did not come from Guinea but necessary to submit this question for the probably from Cameroon (and the rules Court's decision because the outcome of

the proceedings could depend on the None of the preferential schemes applied question whether Guinean coffee can as from 1 January 1971 is applicable in still be imported duty free into the respect of Guinea. Such schemes include Federal Republic of Germany after in particular the preferential scheme Guinea's declaration of independence of provided by the Convention of 2 October 1958 or whether the grant of Association between the European freedom from duty after the declaration Economic Community and the African of independence is to be regarded as an and Malagasy States associated with the infringement of Community law. Community (hereinafter called 'Conven tion of Association (1969)') and by the The Finanzgericht further declares: Council Decision of 29 September 1970 'The propositions of the parties, to be relating to the Association of the Overseas deduced from their pleadings, that it Countries and Territories with the EEC should simply be assumed that the (OJ L 282, 28. 12. 1970, p. 83) continuing freedom from duty for such (hereinafter called 'Association Decision coffee imports from Guinea in 1971 was (1970)'). granted in infringement of Community As to the evolution of the association of law is not a justifiable interpretation of countries and territories referred to in

Countries and Territories (hereinafter The Commission of the European called OSCT) listed in Annex IV to this Communities, represented by its Legal Treaty', and that Guinea is included in Adviser Friedrich Wilhelm Albrecht, and Annex IV among the OSCT. It sets out the plaintiff in the main action represented the rules concerning the OSCT by Gabrielle Rauschning of the contained in Part Four of the Treaty and Hamburg Bar, submitted their written in the Implementing Convention on the observations in accordance with the Association of the OSCT with the provisions of Article 20 of the Protocol Community, provided for by Article 136 on the Statute of the Court of Justice of of the Treaty and annexed to the Treaty. the EEC on 13 September 1973 and 12 It states that, since the Implementing September 1973 respectively. Convention was applicable only for an initial period of 5 years, it was necessary After hearing the report of the to replace it on the expiration of this Judge-Rapporteur and the opinion of the period by new provisions.

For countries in so far as Community legislation does which did not become independent the not provide special preferential rights. Council fixed, by Decision dated 25

February 1964, new provisions of association tie involving a preferential association. As from 1 January 1971 this scheme. Part Four — uncompleted by an Convention and Decision had been Implementing Convention — could not replaced by the Convention of be regarded as an enforceable system of Association (1969) and the Association association. Decision (1970) mentioned above. One might be tempted to claim that the In the Commission's opinion the fact transitional provisions of Article 14 of that Guinea is not a contracting party to the Implementing Convention are still the Convention of Association (1969) applicable to Guinea to complete Part and does not come within the terms of Four of the Treaty.

Since on the contrary, to enquire whether, and independence Guinea has no longer in to what extent, the provisions of Part any way participated in the life of the Four of the Treaty are still applicable. It association which has its origin in Part points out that, as regards the States Four. It follows in the opinion of the which have become independent, Commission that the association opinions vary. In its opinion, it is connexion existing in 1958 has been irrelevant to discuss these various broken or at least that its application has opinions because even if Part Four been suspended. continues to be applicable in whole or in part after independence this would not It considers lastly that even the rules imply that Guinea had any status of relating to State succession, in particular association with the Community in 1971. in the context of decolonization, do not It could be conceded that Part Four permit any other conclusion.

By not ratifying the Treaty was applicable to Guinea after French constitution of 14 October 1959, the coming into force of the Convention thus putting an end to its privileged of Association of 1963, it would not relationship with France, Guinea has lost however follow that there would be any the advantage of the preferential scheme

2 Article 131 provides that the Member States agree to associate with the Community the non-European countries and territories which have special relations with certain of them.

These countries and territories are listed in Annex IV to the Treaty.

This list, in the version which dates from the signing of the Treaty on 25 March 1957, refers, inter alia, to 'Guinea' as belonging to 'French West Africa'.

JUDGMENT OF 11. 12. 1973 — CASE 147/73

Guinea became independent in 1958.

The Implementing Convention on the Association, annexed to the EEC Treaty, as provided in Article 136, expired at the end of 1962.

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the observations of the Commission of the European Communities; Upon hearing the opinion of the Advocate-General;

LENSING v HAUPTZOLLAMT BERLIN-PACKHOF

Having regard to the Treaty establishing the European Economic Community, especially Articles 131, 136 and 177; Having regard to the Implementing Convention on the Association of the Overseas Countries and Territories with the Community, annexed to the EEC Treaty; Having regard to the Convention of Association between the European Economic Community and the African and Malagasy States associated with the Community signed at Yaoundé on 20 July 1963 and renewed by the Convention of 29 July 1969; Having regard to the Council Decisions of 25 February 1964 and 29 September 1970 concerning the Association of the Overseas Countries and Territories with the EEC; Having regard to the Protocol on the Statute on the Court of Justice of the European Economic Community, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities,

THE COURT

in answer to the question referred to it by the Berlin Finanzgericht by Order of 4 June 1973, hereby rules: