C-260/90

My Lords, special arrangements for association envisaged by these provisions are set out in Part Four of the Treaty (Articles 131 to 136a) and the overseas countries and terri- tories to which those arrangements apply 1. This case has been referred to the Court are listed, pursuant to Article 227(3), in under Article 177 of the EEC Treaty by the Annex IV to the Treaty. One of those terri- Tribunal de Paix, Papeete, French tories is French Polynesia. Polynesia. The plaintiff in the main action, Mr Leplat, claims the repayment of various charges he was required to pay when, on 26 July 1988, he imported into the territory of French Polynesia a Mercedes car manu- 3. According to the second paragraph of factured in the Federal Republic of Article 131, 'The purpose of association Germany. The case turns on the effect in shall be to promote the economic and social these circumstances of Article 133 of the development of the countries and territories Treaty. and to establish close economic relations between them and the Community as a whole'. One of the ways in which this objective was to be achieved was by the liberalization of trade between the countries Background and territories and the Member States. This was to take place on a non-discriminatory basis, each country or territory applying 'to its trade with Member States and with the other countries and territories the same 2. Before addressing the issues raised by the treatment as that which it applies to the referring court, it will be convenient to European State with which it has special consider the relationship between the relations' (Article 132(2)). Member States and territories such as French Polynesia. The seventh recital of the preamble to the EEC Treaty records the intention of the Member States 'to confirm the solidarity which binds Europe and the 4. The abolition of customs duties in trade overseas countries' and their desire to between the Member States and the ensure the development of the prosperity of countries and territories is dealt with in those countries, 'in accordance with the Article 133, which provides as follows: principles of the Charter of the United Nations'. Article 3(k) of the Treaty accordingly includes among the activities of the Community 'the association of the overseas countries and territories in order to '1. Customs duties on imports into the increase trade and to promote jointly Member States of goods originating in the economic and social development'. The countries and territories shall be completely

5. The detailed arrangements for the asso- 3. The countries and territories may, ciation of the countries and territories with however, levy customs duties which meet the Community were, for the first five years the needs of their development and indus- after the entry into force of the Treaty, laid trialization or produce revenue for their down in an Implementing Convention budgets. annexed to the Treaty in accordance with the first paragraph of Article 136. Thereafter, those arrangements have been renewed periodically by a series of Council decisions adopted under the second The duties referred to in the preceding paragraph of Article 136, which provides: subparagraph shall nevertheless be 'Before the Convention referred to in the progressively reduced to the level of those preceding paragraph expires, the Council imposed on imports of products from the shall, acting unanimously, lay down Member State with which each country or provisions for a further period, on the basis territory has special relations. The of the experience acquired and of the prin- percentages and the timetable of the ciples set out in this Treaty.' reductions provided for under this Treaty shall apply to the difference between the duty imposed on a product coming from the Member State which has special relations with the country or territory concerned and 6. The decision in force at the material time the duty imposed on the same product was Decision 86/283 of 30 June 1986 coming from within the Community on (Official Journal L 175, p. 1). That entry into the importing country or decision deals differently with, on the one territory. hand, imports from the countries and terri- tories into the Community and, on the other hand, imports from the Community into the countries and territories. Thus, Article 70(1) of the decision provides that 'Products orig- 4. Paragraph 2 shall not apply to countries inating in the countries and territories shall and territories which, by reason of the be imported into the Community free of particular international obligations by which customs duties and charges having equi-

The facts (d) FCP 650 by way of statistical tax ('taxe de statistique'), which is imposed on all goods produced in French Polynesia as well as on all goods imported into the 7. The sum which Mr Leplat was required territory or exported from it. This tax is to pay on importing his car into French used to finance the local statistical Polynesia amounted in total to 1 143 525 service. French Pacific Francs (FCP), which are worth about one twentieth of a French Franc. That sum was made up as follows: 8. Mr Leplat has not submitted any obser- vations to the Court, but in the main action he seems to have conceded that these charges are not customs duties in the strict (a) FCP 892 000 by way of import revenue sense. He maintains instead that they duty ('droit fiscal d'entrée'). These constitute charges having an effect equi- duties are imposed on all imported valent to customs duties. This classification goods, regardless of their origin, under appears to have been accepted by the the same conditions as customs duties referring court. Those who have submitted proper; written observations, insofar as they have addressed the issue, have therefore proceeded on the basis that the disputed charges are not customs duties in the strict (b) FCP 223 000 by way of the new social sense but charges having equivalent effect. welfare solidarity tax ('taxe nouvelle de For reasons which will become apparent, it solidarité pour la protection sociale'). is not necessary for me to express a view on This tax is imposed on certain goods the proper classification of the contested imported into French Polynesia and is charges.

Preliminary issues

10. The Tribunal de Paix has therefore referred the following questions to the 11. At the time the reference was made, Court for a preliminary ruling: there was some doubt whether the courts and tribunals of French Polynesia were entitled to make use of the facility estab- lished by Article 177 of the EEC Treaty. It is clear from the Court's judgment of 12 December 1990 in Joined Cases C-100 and '(1) Do the provisions of Article 133(2) and C-101/89 Kaefer and Procacci v France, (3) of the EEC Treaty apply to however, that the referring court's power to measures having an effect equivalent to invoke Article 177 is no longer open to customs duties? question.

12. The Court also held in Kaefer and (2) If so, may the overseas countries and Procacci that any provisions of Decision territories associated with the 86/283 which were unconditional and suffi- Community levy such duties or charges ciently precise would produce direct effect

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OPINION OF MR JACOBS — C-260/90

in the countries and territories. In my view, duction of or any change in customs the same is in principle true of Article 133 d u t i e s . . . " It is evident from these of the Treaty although, for the reasons set provisions that Article 133 does not impose out below, I do not consider that the issue an absolute prohibition on the imposition by of direct effect falls to be determined in the the countries and territories of customs present case. duties on imports from the Member States.

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LEPLAT

17. The terms of Decision 86/283 may in and territories by the first subparagraph of this respect be contrasted with those of its Article 133(3) of the Treaty and by predecessors. Article 2 of Decision 64/349 Decisions 64/349 and 70/549, one would (JO of 11 June 1964, p. 1472) and Article 3 expect such an intention to have been of Decision 70/549 (JO 1970 L 282, p. 83) clearly expressed. No such intention is both authorized the countries and territories apparent, however, either from the to retain or introduce customs duties and operative part of Decision 86/283 or from charges having equivalent effect which met its preamble, the relevant recital of which is the needs of their development or produced quoted at paragraph 6 above. The material revenue for their budgets. However, Article provisions of that decision's two immediate 5 of Decision 76/568 (Official Journal 1976 predecessors are in similar terms. Indeed, L 176, p. 8) and Article 6 of Decision none of the three decisions contains any 80/1186 (Official Journal 1980 L 361, indication that the economies of the p. 1), like Article 74 of Decision 86/283, countries and territories had improved suffi- refer only to customs duties and quantitative ciently to justify restricting their right to restrictions which are considered necessary impose customs duties on imports. The by the countries and territories in view of absence of any unequivocal expression of an their development needs. The provision intention on the part of the Council to currently in force, Article 106(1) of produce such a result leads me to conclude Decision 91/482 of 25 July 1991 (Official that no such result was intended. Journal 1991 L 263, p. 1), is in similar terms.

introduce customs duties, subject to the reference can be understood as limited to conditions set out above, and that Article 74 what it regards as the scope of Article 133, of Decision 86/283 is fully in accordance in other words that the Treaty provisions with Article 133. Moreover, it does not cited are applicable only in so far as they seem to have been suggested that the deal with customs duties in the strict sense. disputed charges are discriminatory or that they do not either meet the needs of the development and industrialization of French Polynesia or produce revenue for its budget. It follows that, in so far as the disputed charges are to be characterized as customs duties, their legality cannot be contested 23.

22. The Commission and the United inappropriate to refer to such directives. Kingdom Government argue that Article 133 is confined to customs duties proper and that it does not extend to charges having equivalent effect. The Commission maintains that, when the authors of the Treaty intended to deal with charges having equivalent effect to customs duties, they did 24. The territory of French Polynesia and so expressly. The absence of any reference the French and Dutch Governments, on the to such charges in Article 133 must other hand, maintain that Article 133 therefore be taken as an indication that they applies not only to customs duties but also were not intended to be covered. Although to charges having equivalent effect.

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LEPLAT

That broad Article 133(5) to respect, would be objective is given concrete form by Article compromised if they remained free to 133(1). Although the latter provision only impose charges having an effect equivalent refers expressly to customs duties, it is clear to customs duties on imports from Member that the Member States are not entitled to States and from the other countries and impose either customs duties or charges territories. having equivalent effect in their trade with each other. It follows that Article 133(1) can only give effect to the general objective laid down in Article 132(1) if the expression 'customs duties' in the former provision is read as extending to charges having equi- valent effect.

I do not consider the fact that it makes no express reference to the latter decisive: see Joined Cases 37 and 38/73 Diamantarbeiders v Inäiamex [1973] ECR • 1609, especially paragraphs 10 and 13. In my opinion, the expression 'customs duties' is used in Article 133 as shorthand for 'customs duties and charges having equi- valent effect'. A similar use of the expression may be found in the heading above Articles 12 to 17 of the Treaty, which reads 'Elimination of customs duties between 27. The United Kingdom Government

I do not customs duties in the strict sense, never- find that argument convincing, for it does theless produced the same effect. Article 133 not explain why the authors of the Treaty would thereby be rendered nugatory. The should have wished to include in Article 133 only way of avoiding this result is to rules which, while applying to customs construe Article 133 as extending to charges duties proper, do not embrace charges having equivalent effect. having the same effect as customs duties.

28. The approach advocated by French 30. The United Kingdom Government Polynesia and by the French and Dutch places some reliance on the contrast Governments has the consequential benefit between Article 70(1) of Decision 86/283, of making it unnecessary to enter into a which, as I have pointed out, refers to sterile debate over the boundary between charges having an effect equivalent to customs duties and charges having equi- customs duties, and Article 74 of that valent effect. It is not in my view incon- decision, which refers only to customs sistent with the terms of Article 133. I am duties. It is argued that the reference in unable to accept the Commission's Article 70(1) to charges having equivalent suggestion that the reference to Articles 12 effect supports the view that the expression et seq. of the Treaty in Article 133(2) can 'customs duties' in both Decision 86/283 reasonably be read as confined to customs and in Article 133 does not extend to such

31. It will be observed that, like Article 70(1), Article 75(1) of Decision 86/283 also refers to customs duties and charges having equivalent effect. Moreover, the equivalent provisions to Article 70(1) in the prede- cessors of Decision 86/283 each refer to customs duties and charges having equi- 29. Contrary to the argument put forward valent effect in dealing with the conditions by the United Kingdom Government, I under which products from the countries consider the reference in the second and territories are to be admitted to the subparagraph of Article 133(3) to '[t]he Member States: see Decision 64/349, percentages and the timetable of the Article 1(1); Decision 70/549, Article 2(1); reductions provided for under this Treaty* Decision 76/568, Article 2(1); Decision apt to cover both the timetable for the 80/1186, Article 3(1). The provisions of reduction of customs duties laid down in those decisions relating to the customs Article 14 and the timetable for the treatment by the countries and territories of abolition of charges having equivalent effect products originating in the Community or envisaged by Article 13(2). As I have just in other countries or territories do not, pointed out, the latter provision is applicable however, display the same degree of to the countries and territories by virtue of consistency. Article 2 of Decision 64/349 Article 133(2). The correct interpretation of and Article 3 of Decision 70/549 refer in Article 133(3) cannot depend on whether or this context to customs duties and charges not any such directives dealing with charges having equivalent effect, while Article 5 of having equivalent effect imposed by the Decision 76/568 and Article 6 of Decision countries and territories were actually 80/1186, like Article 74 of Decision 86/283, adopted. only mention customs duties.

2. The countries and territories to which the special arrangements for association set out in Part Four of the EEC Treaty apply may impose customs duties and charges having equivalent effect on imports from the Member States and from other such countries and territories provided:

(a) the duties or charges meet the needs of the development and industrialization of the country or territory concerned or produce revenue for its budget; and

(b) the imposition of the duties or charges does not give rise, either in law or in fact, to any direct or indirect discrimination between imports from the various Member States or from the other countries and territories.

3. Consideration of the questions referred has disclosed no factor of such a kind as to affect the validity of Article 74 of Council Decision 86/283/EEC of 30 June 1986.

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