C-363/93

2 — Decision concerning the dock dues in the French overseas * Original language: Italian. departments (OJ 19S9 L 399, p. 46). 1 — Case C-163/90 Legros [1992] ECR 1-4625. 3 — See recitals 3 to 6 in the preamble to the decision at issue.

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Article 2 of the decision provides further­ C-411/93), the plaintiffs claimed repayment more for the possibility of authorizing, in of all sums paid as dock dues in the period favour of local production, partial or total between July and December 1992 when they exemptions from the charge according to brought goods into the region, whether from economic requirements; such exemptions Member States of the EC, from non-member may not however be authorized for a period countries or from other regions of France. It of more than ten years from the date of should be noted that in Case C-409/93, pay­ introduction of the new system. Finally, ment of the charge at issue relates solely to Article 4 provides that 'pending implementa­ French beer. tion of the reform of the dock dues arrange­ ments in accordance with the principles set out in Article 1, the French Republic shall be authorized to maintain the current dock dues arrangements, until not later than 31 Decem­ ber 1992 (...)'. Taking account, therefore, of the implica­ tions of the judgment given in the Legros case, and especially of the fact that it is not possible to deduce from it that the prohibi­ tion on dock dues extends equally to dues levied on internal French trade, the court asks:

It is precisely that provision which falls to be considered in this case. 4

Although in the main proceedings in Case applied to imports from non-member coun­ C-363/93 the subject-matter of the dispute is tries. The Court has in fact frequently reaf­ dock dues levied, as from 1974, exclusively firmed that Articles 18 to 29, like Article 113 on products (flour) from metropolitan of the Treaty, prohibit the Member States France brought into Martinique, the Paris from altering the level of the charge imposed Court of Appeal considered it necessary to under the Common Customs Tariff by the refer to the Court a single question on imposition of additional national duties or 5 the validity of the Council Decision of charges. 22 December 1989. The national court in fact upheld the appeal, lodged before the Legros judgment, in so far as it related to the charge which applied until the adoption of the dis­ puted Council decision, starting from the assumption that the manner in which the charge was classified in that judgment — and therefore the prohibition under Article 9 et Validity of Article 4 of Decision 89/688 seq. of the Treaty on maintaining charges with an effect equivalent to customs duties — related also to French internal trade.

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should now be regarded as a Community fis­ recourse to a different legal basis, that is to cal measure and not as a pecuniary charge say Article 235. unilaterally imposed by one State: they fall, therefore, outside the scope of Article 9 et seq. of the Treaty. As regards the basis of the Community's power to adopt the measure, the Council points out that the third sub­ paragraph of Article 227(2) entrusts to the institutions of the Community the task of furthering the social and economic develop­ For the Commission, therefore, there can be ment of the overseas departments; since the no doubt as to the necessity of the measure action aimed at was required in order to taken because, if 'aids to promote the eco­ attain that objective, although the Treaty did nomic development of areas where the stan­ not provide the necessary powers, recourse dard of living is abnormally low or where to Article 235 was entirely legitimate, as all there is serious underemployment' may be the conditions for its application had been considered compatible with the common satisfied in this case. market, within the meaning of Arti­ cle 92(3)(a), which is indisputable with regard to the overseas departments, there is no reason to preclude the pursuit of such an objective from permitting exceptional and temporary derogations from the rules on the free movement of goods.

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OPINION OF MR TESAURO — JOINED CASES C-363/93 AND C-407/93 TO C-411/93

that although the said provisions 'apply pri­ 9. If it were considered possible, by recourse marily to unilateral measures adopted by the to Article 235, to derogate from any provi­ Member States, the Community institutions sion of the Treaty, with a view to attaining themselves must also have due regard to the objective of developing the overseas freedom of trade within the Community, departments, the result would be to render which is a fundamental principle of the com­ meaningless the distinction made by Arti­ 6 cle 227(2) between the different sets of mon market'. Treaty rules. As it is necessary, however, in choosing between two possible interpreta­ tions of a given provision, to select the one which gives it legislative effect, that result appears plainly unacceptable.

6 — See, for example, the judgment in Case 37/83 Rewe-Zentrale v Landwirtschaftskammer Rheinland [1984] ECR 1229, in particular paragraph 18. 7 — Case 148/77 Hansen v Hauptzollamt Flensburg [1978] ECR 8 — Joined Cases 2/62 and 3/62 Commission v Luxembourg and 1787. Belgium [1962] ECR 425, in particular p. 431-432.

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10 excludes the same. to find in Articles 39 to 46 a provision which expressly or even by implication, though unequivocally, requires or authorizes the introduction of such charges, the Court 9 — Sec judgments in Case 24/68 Commission v Italy [1969] ECR 193, especially points 4 and 10, Joined Cases 2/69 found that the provision at issue was invalid. and 3/69 Diamantarbeiders v Brachfeld [1969] ECR 211, especially points 7/8 and 11/12. See also the judgments in It also added: 'It is clear from all these pro Case 77/72 Capolongo v Azienda Agricola Maya [1973] visions and their relationship inter se that the ECR 611, in particular points 10 and 11; Case 87/75 Con- ceria Damele Bresciani v Amministrazione Italiana delle extensive powers, in particular of a sectoral Finanze [1976] ECR 129, in particular points 7 to 9; Joined Cases 80/77 and 81/77 Commissaires Réums and les Fils de and regional nature, granted to the Commu Henn Ramel v Receveur des Douanes [1978] ECR 927, in nity institutions in the conduct of the Com particular points 24 to 26; Casc 193/85 Cooperativa Co-Frutta v Amministrazione delle Finanze dello Stato mon Agricultural Policy must, in any event [1987] ECR 2085, in particular paragraph 27, and Casc 61/86 United Kingdom v Commission [1988] as from the end of the transitional period, be ECR 431, in particular paragraph 9. exercised from the perspective of the unity 10 — As to there being no possibility of recourse to Arti cle 227(2) to restrict the application to the overseas depart of the market to the exclusion of any mea ments of the rules set out in the first subparagraph of that article or to introduce a special system derogating from sure compromising the abolition between those rules in the regions and sectors mentioned tncrcin, academic writers arc essentially at one; see, for further bib liographical references, Dewost, 'Article 227', in Le Droit

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OPINION OF MR TESAURO — JOINED CASES C-363/93 AND C-407/93 TO C-411/93

Member States of customs duties (...) or end at the close of the transitional period and charges or measures having equivalent cannot, therefore, be held to subsist in a effect'. more or less indirect or limited form, espe­ cially as the Treaty provides for various other protective measures, of unlimited dura­ tion, in given areas (but not the area relevant in this case). I do not believe that Article 235 performs that role at present.

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Community's field of action or subsequently 13. Finally, I find no relevance in the Com­ drawn into it, the limits of that procedure, mission's reference to the Treaty provisions which, it would seem, cannot be exceeded, concerning State aids, in particular Arti­ 13 should also be borne in mind. It is beyond cle 92(3), under which, notwithstanding the dispute that the provision under discussion general prohibition laid down in Arti­ has also changed the essential scope of some cle 92(1), 'aid to promote the economic rules of the Treaty; however, compliance development of areas where the standard of with the substantive principles of the 'Com­ living is abnormally low or where there is munity constitution' must in any case form serious underemployment' may be consid­ an insurmountable precondition for its appli­ ered compatible with the common market. It 1 cation. The free movement of goods must is sufficient to reply 4to that argument that certainly be counted among those principles; although the Council possesses certain pow­ significantly, the rules governing that princi­ ers with regard to the application of the ple are placed at the beginning of the part of Treaty provisions on State aids by virtue of the Treaty dealing with the foundations of Article 92(3)(d), the third subparagraph of the Community. Article 93(2) and Article 94, it by no means intended to act in the context of the Treaty provisions on State aids in adopting Deci­ sion 89/688. Accordingly, any application of those provisions in this case can have no influence on the validity of that decision. Moreover, the rules and procedures relating to State aids may not in any event be relied on in order to achieve a result contrary to 15 other rules of the Treaty.

Nature of the dock dues levied on goods from other regions of France

14. In short, if the contested decision is held up to the light, it would appear that there has been an attempt to reintroduce by stealth what has been openly thrown out, that is to 15. The other question referred to the Court say, to maintain at all costs a measure which for a preliminary ruling is whether Article 9 is incompatible with the Treaty and has been of the Treaty is to be interpreted as preclud­ 16 held to be so in a judgment of the Court. ing a Member State from levying charges That attempt first materialized in the shape with the characteristic features of dock dues of Article 4 of the decision — the subject- even when they are applied to goods not matter of my considerations here — which coming from another Member State, merely authorized the existing arrangements to be by reason of the entry of those goods into a kept temporarily in force; however, at least particular region of that State. on a first reading, the attempt was made by means of the decision as a whole. Indeed, while the decision requires the French authorities to adjust the dock dues arrange­ ments for conversion into a system of inter­ nal taxation, it permits exemptions for local production for a period of not more than ten years. In that way the preservation of the 16. The plaintiffs in the main proceedings, previous system is ensured in fact, even if the French Government and the Commis­ under another name, as seems to be con­ sion consider that the question should be firmed by the national law adopted in imple­ answered in the affirmative on the basis of a 17 series of arguments which do not, however, mentation of the decision. That system would prima facie appear to be incompatible seem to me to be decisive. with Article 95 of the Treaty since it discrim­ inates between products originating in the overseas departments and similar products imported from other Member States.

defeated if it were open to Member States to 17. Finally, as the Commission in particular reintroduce internal protection for certain pointed out, if a Member State were able to local markets. maintain tariff barriers between the various parts of its territory for its own products, serious practical problems would be caused by the need in any event to avoid the indi­ rect taxation of a product imported from another Member State, not only where a product from a Member State bound for one of the French overseas departments is merely in 'transit' through a different region of France but also where goods are imported They also added that there was no point in into France and only later shipped to an the circumstances in referring to the case-law overseas department. of the Court, according to which the provi­ sions of the Treaty are not applicable to purely internal situations within a Member State, since dock dues are intended to be applied without distinction to all goods, whether they are from other regions of France, or are imported from other Member States of the Community or from non- member countries. In their view, certain pas­ sages from judgments of the Court — Legros 18 and Ligur Carni and Others — that were 18. As I have said, I am not swayed by those in fact taken into consideration both during arguments, in the light of either the relevant the written procedure and at the hearing had articles of the Treaty or the consistent inter­ already decided the issue arising in this case, pretation thereof by the Court. which is whether or not the prohibition laid down in Article 9 applies also to internal trade. As far as the Legros judgment in par­ ticular is concerned, while acknowledging that the Court did not give a specific ruling on the compatibility with the Treaty of a charge levied on internal trade, those parties maintained that dock dues, which were described as charges having equivalent effect in that case and in so far as they applied to imports from other Member States of the Article 9 lays down 'the prohibition between Community, could not fail to be so classified Member States of customs duties on imports even when they are imposed solely and and exports and of all charges having equiv­ exclusively on domestic trade, as is the situ­ alent effect', Article 12 prohibits Member ation in particular in two of the cases now States from introducing new duties or before the Court. charges and Article 13 required customs duties on imports in force between Member States to be progressively abolished during the transitional period. It is plain, just from 18 — Joined Cases C-227/91, C-318/91 and C-319/91 Ligur reading those provisions, that a financial Carni and Others v Unità Sanitaria Locale No XV di Gen- ova and Others[1993] ECR 1-6621. charge falls within their ambit where it is

It is therefore essential, for the purposes of the application of those rules, for two States to be involved. Consequently, if there is no crossing of a frontier, as is the case where a product from one State is brought into another region of the same State, the situa­ tion is not covered by Community law, in the same way as any other situation in which all the factors are confined within a single Member State. That is borne out by the set­ That is also confirmed by paragraph 16 of tled case-law of the Court. the judgment which, after referring to the clarification provided by earlier case-law of the Court, namely that the prohibition of all . customs duties in trade between Member States is justified by the fact that such pecu­ niary charges create obstacles to the move­ ment of goods, states that 'a charge levied at a regional frontier by reason of the fact that goods are brought into one region of a Member State constitutes an obstacle to the 19. It does not seem to me to be possible to free movement of goods at least as serious as deduce any arguments supporting the oppo­ a charge levied at a national frontier on prod- site contention from the Legros judgment, ucts entering a Member State as a whole' contrary to the view taken in this case. Para­ (emphasis added). In other words, it is graph 18 of that judgment in particular — immaterial, for the purposes of ascertaining repeated in paragraph 1 of the operative part whether or not it is compatible with Arti­ — is quite unequivocal: it states that a charge cle 9 et seq. of the Treaty, that a charge is exhibiting the features of dock dues 'levied applied to imported products at the time

21. It is therefore absolutely clear — it is as well to stress — that in the cases referred to it was necessary to ascertain whether a pecu­ 20. The Court has repeatedly applied that niary charge or a national measure applied to principle when interpreting Article 30 as goods imported from another Member State well. It has frequently stated, most recently could escape being characterized as a duty or 19 in Ligur Carni and Others, that a national a charge having equivalent effect for the pur­ measure cannot escape being characterized as poses of Article 9 et seq., or as a quantitative discriminatory or protective for the purposes restriction or measure having equivalent of the rules on the free movement of goods effect under Article 30 of the Treaty, on just because it has limited territorial scope account of its being imposed also on domes­ and affects both products from other parts of tic products: the reply has, rightly, been no. the national territory and products imported from other Member States. There is no doubt, it seems to me, that the established incompatibility of the national measure in the cases considered related exclusively to the application of the contested measure to imported goods, and not to goods produced and marketed within the country. If, as a possible result of the Court's ruling, the The question now before the Court is a dif­ ferent one, namely, whether an individual can rely on Article 9 et seq. to avoid paying a pecuniary charge imposed on him, not on 19 — Cited above, especially paragraphs 37 and 38. See also the judgment in Case C-21/88 Du Pont de Nemours Italiana v importing a product but on bringing a Unità Sumuna Locale No 2 dì Carrara [1990] ECR I-889, in particular paragraphs 12 and 13; judgment in Joined domestic product into a different part of the Cases C-1/90 and C-176/90 Aragonesa de Publicidad Exte- same State. The question arising here is rior and Publivia v Departamento de Sanidad v Segundad Social de la Generalität de Cataluña [1991] ECR I-4151, whether an individual may rely on Commu­ especially paragraph 24, and judgment in Case C-179/90 Merci Convenzionali Pono di Genova v Sidermgica Gabri- nity law, going back to the example used ear­ elli [1991] ECR I-5889, especially paragraph 21. lier, to obtain a declaration that a charge

22. The Court has consistently held, on the one hand, that the rules of the Treaty are not applicable to purely internal situations, and on the other that because a national law is 23 held to be incompatible with Community 23. In the Cognet judgment, the court law, it does not necessarily follow that it may making the reference asked whether the cre­ not be applied to domestic products either. ation in a Member State of a dual pricing system in the same sector of the book trade which provided for fixed prices, apart from the possibility of a small reduction for books published and sold in that State without hav­ ing crossed a Community frontier at the marketing stage, alongside non-regulated prices, particularly for books published in that State and reimported from another Member State, was incompatible with the 2 rules of the Treaty. The Court made it clear Thus, in Waterkeyn, 0when asked to clarify that 'Article 30 of the EEC Treaty does not the scope of an earlier judgment which forbid such a difference of treatment. The found that the French legislation on the purpose of that provision is to eliminate advertising of alcoholic beverages was 21 obstacles to the importation of goods and incompatible with Article 30, the Court stated that the judgment 'only affects the treatment of products imported from other 22 — See paragraphs 8 to 12 in Waterkeyn, cited at note 20. 23 — Case 355/85 Dnancourt v Cognet [1986] ECR 3231, in par­ ticular paragraph 10. See also the judgments in Case 286/81 Oosthoek's Uitgeversmaatschappij BV [1982] ECR 4575, in 20 — Joined Cases 314/81 to 316/81 and 83/82 Procureur de la particular paragraph 9; Joined Cases 80/85 and 159/85 Ned- République and Comité National de Défense contre erlandse Bakkerij Stichting v Edah [1986] ECR 3359, in l'Alcoolisme v Alex Waterkeyn and Others; Procureur de la particular paragraphs 18 to 20; Case 98/86 Ministère Pubitc République v Jean Cayard and Others [1982] ECR 4337. v Mathot [1987] ECR 809, in particular paragraphs 7 to 9 21 — This is the judgment in Case 152/78 Commission v France and Case 255/86 Commission v Belgium [1988] ECR 693, in [1980] ECR 2299. particular paragraphs 5 and 6.

not to ensure that goods of national origin made from common wheat or from a mix­ always enjoy the same treatment as imported ture of common wheat and durum wheat or reimported goods. (...) A difference in was incompatible with Articles 30 and 36 of treatment between goods which is not capa­ the Treaty. Paragraph 25 of the grounds is ble of restricting imports or of prejudicing particularly significant; in answer to the the marketing of imported or reimported objection of the Italian Government which goods does not fall within the prohibition had maintained, in defending the national contained in Article 30.' legislation on pasta products, that the rules were necessary in order to guarantee market outlets for the cultivation of durum wheat, the Court states: 'It should first be stressed that it is the extension of the law (...) to imported products which is at issue and that Community law does not require the legisla- ture to repeal the law as far as pasta produc- 24. Finally, two further judgments are of ' 24 ers established on Italian soil are concerned particular importance. In Smanor, the (emphasis added). Court was asked whether Articles 30 and 34 of the Treaty precluded the application by a Member State to yoghurt which had been deep-frozen of national legislation prohibit­ ing the sale of the product under the name 'deep-frozen yoghurt', the name 'yoghurt' being reserved for the fresh product alone. 25. Analysis of the case-law provides confir­ The Court held that such rules were incom­ mation, as the Council and the Spanish Gov­ patible with Community law, but only if ernment have correctly noted, of the more applied to products imported from another general principle that the rules of Commu­ Member State where they were lawfully nity law imposing on Member States various manufactured and marketed under that prohibitions with regard to relations name; with that the Court let it clearly be between them is not applicable to situations understood that there was nothing to pro­ which are purely internal; that is borne out hibit the application of the rules in question by the case-law on the free movement of to domestic products. persons or, again, on the right of establish­ 26 ment or the freedom to provide services.

domestic products alone would create prob­ State to another. In this case, the French lems not easily resolved, in terms of setting overseas departments, whether they are up procedures in order to establish where islands (Réunion, Martinique, Guadeloupe) goods come from and, accordingly, whether or not (Guyane), are 'frontiers' only where or not they are subject to the charge, I would the products concerned come from another point out that, while difficulties or complica­ Member State; they are not 'frontiers' where tions are indeed possible, that does not mean the products come from and originate in that the issue of the applicability to internal another region of France. Accordingly, in the French trade as well of the prohibition on latter case the prohibition of duties and duties or charges having equivalent effect has charges having equivalent effect is not appli­ to be settled one way or the other. The solu­ cable. To hold otherwise would amount, I tion of legal issues cannot depend on practi­ repeat, to being deceived by appearances. cal problems to such an extent. It seems to me, moreover, that checks of that type ought not to be so difficult to carry out (and that the Community procedure itself may per­ haps provide helpful examples in that respect). If, however, they did create any bar­ riers to the movement of goods from other Member States, they would in any case have 28. It must be acknowledged, however, that to be examined in the light of Article 30 et the solution of the problem as dictated by seq. of the Treaty, and therefore be consid­ the interpretation of the Treaty and the case- ered as measures, not charges, having equiv­ law of the Court may seem somewhat para­ alent effect. It is, consequently, for the doxical. An experienced lawyer will also national court to apply those rules and, in notice the paradox of a single market in the event of uncertainty, to ask this Court to which barriers to trade between Portugal and interpret them. Denmark are prohibited, whilst barriers to trade between Naples and Capri are immate­ rial.

paradox; that is possible only by an approach of several decades on wholly internal situa­ based on convenience, which will not be tions, not only as regards the Customs unfamiliar even to the least informed of leg­ Union and the movement of goods, but also islatures, as is also borne out by the highly as regards services and free movement of unusual nature of the case in point. Once persons generally. duties on imports are abolished as being unlawful, I simply cannot imagine a legisla­ ture maintaining those same duties on domestic products. The remedy lies, there­ fore, in rebus and not in an overly casual construction of a fundamental and unequiv­ ocal rule of the Treaty, as irrefutably demon­ I do not intend to suggest that alternative to strated by the Commission but which I can­ the Court either. Besides, there is no need to not in any event endorse. do so. It is just worth recalling that the national court can always, in the light of its own internal law, check whether the treat­ ment of domestic undertakings and manufac­ turers is in fact discriminatory and whether, and if so how, such discrimination can 28 and/or must be eliminated.

The same concept of the single customs ter­ ritory, frequently referred to in the proceed­ ings, leads to a formula which is very attrac­ tive but which cannot be separated from the Temporal effects of the judgment Customs Union rules contained in the Treaty. Those rules, it hardly needs repeat­ ing, are intended to eliminate obstacles to trade between Member States (Article 12 mentions imports and exports) and not to trade between regions or municipalities within a single Member State as well. 29. The French Government asks, in short, if Decision 89/688 is found to be invalid, that the Court should impose temporal limits on the effects of its ruling. It should be borne in mind that a judgment of the Court in pro­ ceedings for a preliminary ruling declaring a Community act invalid in principle has ret­ rospective effect, like a judgment annulling 29 the act.

However, I do not think that any justifica­ by adopting Decision 89/688, and a real risk tion for the request is to be found in the that the system of funding local authorities principles which have been laid down by the in the overseas departments might retroac­ case-law on the temporal limitation of the tively be thrown into confusion, by reason effects of a preliminary ruling declaring an of the large number of legal relationships act of a Community institution to be invalid based in good faith on the rules considered and which have been developed, moreover, to be validly in force. Accordingly, without with particular reference to regulations. It is prejudice to the rights of those who had difficult to claim that in this case grounds already brought an action or instituted relating to the uniform application of Com­ equivalent proceedings, the Court held that munity law throughout the Community or the provisions of the Treaty concerning to imperative requirements of legal certainty charges having equivalent effect to customs may be relied on to limit the effects of the duties could not be relied on as the basis of 3 claims for the reimbursement of dock dues Court's judgment. 0 Instead, the argument developed in the Legros judgment declaring paid prior to the date of the judgment. that the application of dock dues to imports from the other Member States was incom­ patible with the provisions of the EEC Treaty ought, to say the least, to have given rise to reasonable doubts as to whether it was lawful to maintain the system, even if only temporarily and on the basis of a Com­ munity act.

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regards the inapplicability of Article 9 et seq. incompatible with the Treaty in those cir­ to internal French trade, it is clear that the cumstances as well. question referred by the Cour d'Appel can­ not simply be answered in the form in which it was asked. Accordingly, since there is no justification for that assumption in practice, it is neces­ sary in a spirit of cooperation between the Court of Justice and the national courts to In the proceedings pending before the Cour provide an answer that will assist the Cour d'Appel, the issue was the levying of dock d'Appel in resolving the dispute before it, dues exclusively on goods of French origin, and which must necessarily deal for that and the question concerning solely the valid­ court too with the point that the prohibition ity of Article 4 of Decision 89/688 was justi­ on charges having equivalent effect to cus­ fied by the belief that, in the light of the toms duties does not apply to French inter­ Legros judgment, levying dock dues was nal trade.

33. I therefore propose that the questions submitted in all the cases before the Court be answered as follows:

1. Article 4 of Council Decision 89/688/EEC of 22 December 1989 concerning the dock dues in the French overseas departments is invalid.

2. The invalidity of Article 4 of Council Decision 89/688/EEC of 22 Decem­ ber 1989, which has been established, does not permit the levying of dock dues by the French authorities in the period prior to 16 July 1992 to be challenged, without prejudice to the rights of those who brought an action or instituted equivalent proceedings for repayment before that date.