C-469/93

1. The main proceedings before the Tribu- nale di Trieste concern the consumer tax on fresh bananas which was introduced in Italy with effect from 1 January 1965 by Law N o 986/64 of 9 October 1964. 1 The amount of 3. The firm Chiquita SpA imported two the tax was increased over the years. consignments of bananas from Columbia and Honduras into Italy in early April 1990. 6 In order to avoid the obligation to pay the said consumer tax, Chiquita applied to the Pretore di Trieste. In those proceed- 2. The Court of Justice has already had to ings it submitted that the tax in question consider this tax on several occasions. In two infringed Community law. The Pretore judgments of 7 May 1987 it held that the tax accepted that submission and thereupon was incompatible with Article 95 of the EC made an interim order allowing Chiquita to Treaty in so far as it was charged on bananas import the bananas into Italy without paying originating in other Member States 2 and on the consumer tax. bananas originating in non-member coun- tries which were in free circulation in the Community. 3 The Court regarded the tax in question as internal taxation within the meaning of Article 95 (and not as a charge having an effect equivalent to a customs duty, within the meaning of Articles 9 and 12 of the EC Treaty), even though banana Shortly afterwards, Chiquita imported into production in Italy was extremely small. 4 It Italy two further consignments of bananas, also held that that tax was a protective meas- from Columbia and Santa Lucia. For that ure within the second paragraph of Arti- purpose Chiquita again obtained an interim order from the Pretore di Trieste allowing it to carry out the import without having to pay the consumer tax. * Original language: German. 1 — Gazzetta Ufficiale della Repubblica Italiana (GURI) N o 264 of 27 October 1964, p. 4580. 2 — Judgment in Case 184/85 Commission v Italy [1987] ECR 2013. 5 — Judgment in Commission v Italy, cited above (note 2), para- 3 — Judgment in Case 193/85 Co-Frutta v Amministrazione delle graph 13; judgment in Co-Frutta, cited above (note 3), para- Finanze dello Stato [1987] ECR 2085. graph 22. 4 — Judgment in Co-Frutta, cited above (note 3), paragraphs 6 — The national court states that the shipment was to arrive in 10 to 13. Trieste on 7 April 1990.

4. The Amministrazione delle Finanze dello products imported directly from non- Stato (the Italian customs authority) there- member countries. 10 upon applied, in the substantive proceedings before the Tribunale di Trieste, for a finding in both cases that the tax at issue was lawful and its levying permissible. The Tribunale di Trieste ordered the two cases to be joined. 7. The Court further held that the EC Treaty does not contain any provision for trade with non-member countries corre- sponding to Article 95, and the tax in ques- tion was therefore not in breach of Article 113 of the EC Treaty. 1 1The Court went on to state, in paragraphs 19 to 22 of the judg- 5. The Italian consumer tax on bananas was ment: abolished by Law N o 428/90 of 29 Decem- ber 1990. 7 According to the national court, that law did not have retroactive effect, how- ever, so that it need not be considered in the present case. '19. Nonetheless, while the Treaty does not itself include provisions which prohibit pos- sible discrimination in the application of internal taxes to products imported directly from non-member countries, account should be taken, in the current cases, of interna- 6. While the proceedings before the Tribu- tional agreements between the Community nale di Trieste were pending, the Court of and non-member countries in which con- Justice gave judgment on 9 June 1992 in the signments of bananas originate and which, Simba case, 8 which also concerned the com- possibly, contain clauses of a nature such as patibility with Community law of the con- to influence the outcome of the disputes in sumer tax in question. In the cases which the main proceedings (see the judgment in gave rise to that judgment, the undertakings Case 148/77, above). 12 concerned (of which Chiquita was one) had imported bananas from non-member coun- tries directly into Italy. The Court confirmed in that judgment that the consumer tax at issue was internal taxation within the mean- ing of Article 95 of the EC Treaty. 9 It stated 20. It should be noted in that connection that Article 95 of the EC Treaty is applicable that, under Article 139(2) of the aforemen- only to products imported from other Mem- tioned Third ACP-EEC Convention, the ber States, and therefore does not extend to Community and its Member States under- took, under the general trade arrangements,

22. It is a matter for the national courts, where appropriate, after having referred to the Court for a preliminary ruling on their interpretation, to determine whether the pro- visions of international agreements are of a nature effectively to prohibit a Member State '(a) Having regard to the judgment of the from levying a duty such as the national tax Court of Justice of 9 June 1992 in on consumption on consignments of fresh Joined Cases C-228/90 to C-234/90, bananas imported directly from the non- C-339/90 and C-3 53/90, with particular member countries concerned.' reference to the force of Community convention law, do GATT and the ACP-EEC Conventions confer rights on individuals which are enforceable in the signatory States, and which, if infringed, give rise to the obligation for national courts to disapply domestic rules which are contrary to and incom- Finally, the Court observed that a duty such patible with GATT and those conven- as the consumer tax at issue does not have to tions? be paid if the national law on which the duty is based is incompatible with provisions of Community law which are based on interna- tional agreements and confer rights on indi- viduals. 13

(b) If so, is an internal charge such as 13 — Ibid., paragraph 28. the consumer tax on fresh bananas

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12. In the present proceedings Chiquita relies on the first two paragraphs of Article 10. By its first question the national court III of GATT. Paragraph 1 of that article pro- appears at first sight to be seeking clarifica- vides: tion of the question whether any provisions of GATT or the agreements between the ACP States and the E C have direct effect in the Community legal order. From the second question and the order for reference as a whole, however, it can be seen that the Tri- 'The contracting parties recognise that inter- bunale di Trieste is merely considering the nal taxes and other internal charges, and possibility that the consumer tax at issue laws, regulations and requirements affecting might infringe certain provisions of those agreements. The question of direct effect need therefore be discussed, logically, only for those provisions of those agreements 14 — Judgment in Case C-18/90 Kziber [1991] ECR I-199, para- graph 15; see also the judgment in Case 12/86 Demirel which may be relevant here in the first place. [1987] E C R 3719, paragraph 14.

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the internal sale, offering for sale, purchase, question whether the provisions of GATT transportation, distribution or use of prod- have direct effect in the Community legal ucts, and internal quantitative regulations order, 'the spirit, the general scheme and the requiring the mixture, processing or use of terms of the General Agreement must be products in specified amounts or propor- considered'. 17 tions, should not be applied to imported or domestic products so as to afford protection to domestic production.' 15

15 — The German text of GATT can be found in Besonderes Anlagenband I zum BGBl. 1951. 16 — Judgment in Joined Cases 21/72 to 24/72 International 17 — Ibid., paragraphs 19 and 20. Fruit Company v Produktschap voor Groenten en Fruit [1972] ECR 1219, paragraphs 14 to 18. 18 — Ibid., paragraph 21.

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15. The Court subsequently confirmed that decision on several occasions and held with 22 — Judgments in Case 9/73 Schlüter v Hauptzollamt Lörrach [1973] E C R 1135, paragraphs 29 and 30, in Case respect to a number of provisions of GATT 266/81 SIOT v Minutero delle Finanze [1983] ECR 731, paragraph 28, in Joined Cases 267/81 to 269/81 Amminis- that they did not have direct effect in the trazione delle Finanze dello Stato v SPI and SAMI [1983] ECR 801, paragraph 23, and in Joined Cases 290/81 and 291/81 Singer and Geigy v Amministrazione delle Finanze dello Stato [1983] ECR 847, paragraphs 7 and 8. 23 — Judgment in Case C-280/93 Germany v Council, [1995] 19 — Ibid., paragraph 25. ECR I-4973. 20 — Ibid., paragraph 26. 24 — Ibid., paragraphs 105 to 108. 21 — Ibid., paragraph 27. 25 — Cited in note 22.

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19. Chiquita submits as an alternative argu­ 18. Chiquita also submits that the Court has ment that even if the Court reaches the con­ in its case-law already identified as having clusion that Article III of GATT has no direct effect provisions in other agreements direct affect, it should still consider the between the Community and non-member national court's second question. The Court countries, the content and wording of which is being asked, in other words, even in that has corresponded to Article III of GATT. It event to discuss the question whether a is not necessary to decide whether the cas­ charge such as that at issue here is compati­ es 2 8 cited by Chiquita in this connection in ble with Paragraph 1 of Article III of GATT fact concerned provisions which corre­ as a matter of substantive Uw. That proposal appears to have been based on two consider­ ations. Firstly, the representative of Chiquita 26 — Cited above (note 23), paragraph 110. The Court observes, explained at the hearing before the Court however, that provisions of GATT are to be examined when reviewing the lawfulness of Community acts 'if the that the Italian courts, when applying the Community intended to implement a particular obligation national rules, took care to interpret those entered into within the framework of GATT, or if the Community act expressly refers to specific provisions of rules in a manner consistent with GATT. A G A T T '(Ibid., paragraph 111). decision of the Court of Justice holding that 27 — See however the exception — not relevant in the present case — in areas which have a specific connection with G A T T (see note 26). 28 — Judgments in Case 17/81 Pabst und Richarz v Hauptzol­ lamt Oldenburg [1982] E C R 1331; Case 104/81 Hauptzol­ lamt Mainz v Kupferberg [1982] E C R 3641; and Case 29 — See, among recent decisions, in particular the judgment in 253/83 Kupferberg v Hauptzollamt Mainz [1985] ECR 157. Case C-312/91 Metuką [1993] E C R I-3751, paragraphs 10 and 11, with further references to the case-law.

a tax such as that at issue here was incompat- 21. Moreover, it seems to me extremely ible with GATT might therefore be of use to doubtful that an infringement of provisions Chiquita in its proceedings before the Italian of GATT by a Member State can found a courts. Secondly, Chiquita evidently takes claim to damages by the traders affected. The the view that a corresponding decision of the abovementioned decisions of the Court on Court of Justice might form the basis for a the question of the direct effect of provisions later claim for damages against the Italian of GATT are ultimately based on the consid- State. It refers in that connection to the eration that infringements by individual con- Court's Francovich judgment. 30 tracting parties are not to be justiciable, but instead are to be dealt with by the contract- ing parties affected or by all the contracting parties together on the basis of the machin- ery provided for in GATT for the settlement of disputes. Settlement of such disputes is thus reserved to the contracting parties. It seems self-evident to me, however, that Chiquita's view cannot be reconciled with that, since if, in the event of an infringement of provisions of GATT by a Member State, the traders affected were given the right to claim damages from that Member State, that would give those traders the possibility of — 20. I do not consider that the Court should indirectly — enforcing compliance with follow that suggestion by Chiquita. The GATT. national court put the second question only in case a (relevant) provision of GATT had direct effect. That decision of the Tribunale di Trieste should be respected by the Court, since it is presumably based on a deliberate choice. The Tribunale clearly expresses in its precisely formulated order for reference that it does not share Chiquita's opinion on the question of the direct effect of provisions of GATT and the Lomé Conventions. 31 Since the Tribunale took that view, the obvious thing to do would have been also to ask the question as to substantive compatibility with To be sure, I would not exclude the possibil- GATT in the event that the relevant provi- ity that in exceptional cases an infringement sion of GATT was not to be taken as having of provisions of GATT might give rise to a direct affect. Since the national court did not liability in damages to the traders concerned. do so, it is to be presumed that it did not In particular, one might envisage a case regard the question as of importance. where in such a situation the Community makes no use of the possibilities provided for in GATT of freeing itself from its obliga- tions, but agrees that the dispute should be 30 — Judgment in Joined Cases C-6/90 and C-9/90 Francovich decided by a neutral tribunal, and then how- and Others v Italy [1991] ECR I-5357. 31 — If the Tribunale di Trieste nevertheless asks the Court for a ever refuses to comply with the decision. preliminary ruling, that is presumably attributable to the Whether such an extreme case can occur at encouragement given by the Court itself in its judgment of 9 June 1992. all is doubtful, however: it is surely to be

I should add that these comments relate exclusively to the GATT in question here. 23. Before discussing the question whether What effects the agreement signed on certain provisions of the Lomé Conventions 15 April 1994 setting up the World Trade can have direct effect, it is appropriate first to Organisation could have in this respect need establish which Lomé Convention could be not be discussed here. applicable in the present case. The first of the so-called Lomé Conventions was of course concluded on 28 February 1975. 32 That con- vention was later replaced by the Second Lomé Convention 33 signed on 31 October 1979, which was itself subsequently replaced by the Third Lomé Convention of 8 Decem- ber 1984. 34 The Fourth Lomé Conven- 22. Purely for the sake of completeness, I tion, 35 concluded on 15 December 1989, also observe that the reference by Chiquita currently applies. The imports to which the to the Francovich judgment is likely to be present case relates were carried out in April misleading. That case concerned a directive, 1990 or at a later date. In this connection the intended to protect employees in the event French Government rightly draws attention of their employer's insolvency, which had to Decision N o 2/90 of the ACP-EEC not been transposed by Italy into national Council of Ministers of 27 February 1990, 36 law. The Court found that the provisions of which decided that a number of provisions the directive — with the exception of one (admittedly essential) point — fulfilled all the requirements for direct effect under 32 — See Council Regulation(EEC) N o 199/76 of 30 January Community law. Only the identity of the 1976 on the conclusion of the ACP-EEC Convention of Lomé (OJ 1976 L 25, p. 1). The text of the convention is person liable to pay the claims given by the annexed to that regulation. directive was not certain, since the directive 33 — See Council Regulation (EEC) N o 3225/80 of 25 Novem- ber 1980 on the conclusion of the Second A C P - E E C Con- left it to the Member States to make a choice vention signed at Lomé on 31 October 1979 (OJ 1980 L in that respect. That case can therefore not 347, p. 1). 34 — See the Decision of the Council and the Commission be compared with the present one. The lack (86/125/EEC, ECSC) of 24 March 1986 on the conclusion of direct effect of the provisions of GATT is of the Third ACP-EEC Convention (OJ 1986 L 86, p. 1). 35 — See the Decision of the Council and the Commission not attributable to the absence of one of sev- (91/400/ECSC, EEC) of 25 February 1991 on the conclu- eral factors, but has its basis in the very sion of the Fourth ACP-EEC Convention (OJ 1991 L 229, p. 1). nature of those provisions. 36 — OJ 1990 L 84, p. 2.

'It is apparent from these provisions that the 24. Both Chiquita and the French Govern- Convention was not concluded in order to ment and the Commission assume that pro- ensure equality in the obligations which the visions of the Lomé Conventions can have Community assumes with regard to the direct effect. The Italian Government takes Associated States, but in order to promote the opposite view, which is presumably also their development .... This imbalance that of the national court. The Court has not between the obligations assumed by the yet made a definitive pronouncement on this Community towards the Associated States, point. In the Razanatsimba case 38 in 1977 a which is inherent in the special nature of the question was referred to the Court by which Convention, does not prevent recognition by the national court sought to know whether a the Community that some of its provisions certain provision of the first Lomé Conven- have a direct effect.' 42 tion had direct effect. The Court did not expressly answer that question, but merely stated that there was no infringement of the provision in question. Chiquita, the French Government and the Commission rightly draw attention in this connection, however, to the Court's judgment in the Bresciani case. 39 That case concerned a provision of the Convention of Association between the The Court reached the conclusion, on the European Economic Community and the basis of those considerations, that the provi- African States and Madagascar associated sion of the Yaoundé Convention in question with the Community — the so called second had direct effect.

25. Such an imbalance between the respec- have direct effect. Whether this is actually tive obligations of the contracting parties is the case cannot be decided generally. Instead, also a feature of the Lomé Conventions, of it is 'only the nature of the obligation at which the Yaounde Conventions were pre- issue in the actual case' which is decisive cursors. The decision just cited therefore here. 46 immediately makes it plain that that circum- stance does not preclude the possibility of direct effect for provisions of the Lomé Con- ventions. 43 The Italian Government's objec- tion that the Lomé Conventions were not intended to regulate trade within a uniform market but essentially pursued objectives of development policy therefore does not con- vince me either, since similar considerations also apply to the Yaounde Conventions, the provisions of which — as the abovemen¬ tioned judgment shows — can have direct The provisions of Chapter 1 of Title I of Part effect. The Italian Government also observes, Three and Article 1 of Protocol 5 on bananas finally, that the Lomé Conventions con- of the Fourth Lomé Convention tained provisions on the settlement of dis- putes between the contracting parties, according to which such disputes have to be referred to a Council of Ministers or Com- mittee of Ambassadors. 44 It argues that in view of that circumstance, the possibility of giving provisions of those conventions direct effect appears to be excluded. Against that it must be stated that the second Yaounde Convention also contained a comparable rule. 45 27. In the present proceedings the parties have discussed a number of provisions of the Fourth Lomé Convention which in their opinion are of importance for answering the questions referred. The only one of them which is clearly not relevant for the present case is Article 168(1) of the Convention, which states that products originating in the 26. The conclusion must therefore be that A C P States are to be imported into the provisions of the Lomé Conventions can Community free of customs duties and charges having equivalent effect. As I said at the beginning, the Court has in its case-law 43 — That conclusion was drawn by Advocate General Reischl in classified the consumer tax in question as his Opinion of 9 November 1977 in the Razanatsimba case internal taxation, not as a charge having [1977] ECR 2241, at p. 2243. 44 — See Article 352 et seq. of the Fourth Lomé Convention. 45 — Under Article 53 of that Convention, disputes were to be submitted to the so-called Council of Association (on which, see Article 42 of the Convention). If the Council could not bring about an amicable settlement, the matter 46 — As Advocate General Reischl said in his Opinion in the could be referred to an arbitration court. Razanatsimba case, cited above (note 43), p. 2243.

47 — I merely mention in passing that as Advocate General in the Co-Frutta case, I argued in my Opinion of 16 October 1986 that the Italian consumer tax on bananas was not internal taxation within the meaning of Article 95 of the EC Treaty, but was to be assessed in the light of Articles 9 and 12 of the EC Treaty as a charge having an effect equivalent to a customs duty ([1987] ECR 2095, at p. 2100). I main- tained that point of view in my Opinion of 13 December Under Article 183 of the Convention, the 1991 in the Simba case ([1992] ECR I-3732). Considering the question freely, I still regard that proposition as prefer- contracting parties, in order to permit the able. It would moreover also much simplify the solution to improvement of the conditions under which the present case, since Article 168(1) —which would then be the relevant one — of the Convention is very similar to bananas originating in the ACP States are Articles 9 and 12 of the EC Treaty and can in my opinion very well be regarded as having direct effect. But to adapt produced and marketed, agree to 'the objec- an old saying, Curia locuta, causa finita. tives set out in Protocol 5'. Article 1 of

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29. The focus of interest in the present pro- ceedings was first Article 177(2) of the Con- vention. 31. All the other parties who have taken part in the proceedings before the Court — the Italian Government, the French Government and the Commission — consider, by con- trast, that Article 177(2) of the Convention does not have direct effect, or at least has not 30. Chiquita argued that that provision had been infringed in the present case. direct effect. It was clear, unambiguous and unconditional, and prohibited the Commu- nity and its Member States from applying protectionist measures to imports from A C P States. As the Court had already held, how- ever, the charge in question was such a pro- tectionist measure. In contrast to Article 95 of the EC Treaty, internal taxation was 32. It is not altogether easy to answer the admittedly not expressly mentioned in Arti- question raised here. That is shown simply cle 177(2) of the Convention. That provision by the fact that, according to the information was, however, a comprehensive one and thus (not disputed in this respect) supplied by applied to internal taxation too. If that were Chiquita, the travaux préparatoires to the denied, the provision would be deprived of Italian law which abolished the charge in

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question in 1990 give as reasons inter alia the sound, since the Court — as I have already obligations entered into towards the ACP mentioned 4 8— has, regardless of that, States, whereas the Italian Government in already confirmed the possibility of direct the present proceedings denied precisely that effect for provisions of the Yaounde Con- the charge infringed the Lomé Conventions. ventions (comparable with the Lomé Con- That circumstance is of no importance, how- ventions). However, the mere comparison ever, for the Court's interpretation of the with the — substantially more precise — Lomé Convention. wording of Article 95(2) of the EC Treaty suggests that in this case the provision is one of merely programmatic character.

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exceptionally in the event of particularly agreements between the Community and serious problems. Indeed, the second sen- non-member countries. It refers to the first tence of Article 177(2) also refers to such paragraph of Article 9 of the Agreement safeguard measures. The provision under between the Community and Israel of consideration here therefore deals with a 11 May 1975, 49 the first paragraph of Article problem of a general nature. It is thus most 33 of the Cooperation Agreement with unlikely that the Community and the ACP Morocco of 27 April 1976 50 and the first States would have inserted a rule on internal paragraph of Article 32 of the Cooperation taxation precisely into such a provision, and Agreement with Tunisia of 25 April 1976. 51 what is more, without even mentioning the Since those provisions all correspond, I shall concept of internal taxation. I am admittedly quote only the relevant paragraph from the unable to accept the Commission's view that agreement with Israel, which reads as fol- the interpretation put forward by Chiquita lows: would have the consequence that Articles 168(1) and 169(1) of the Convention would be superfluous, since customs duties or charges having equivalent effect on the one hand and quantitative restrictions and mea- sures having equivalent effect on the other hand are protectionist measures par excel- 'The Contracting Parties shall refrain from lence. As we know from the extensive case- any measure or practice of an internal fiscal law on Articles 9, 12 and 30 of the EC nature establishing, whether directly or indi- Treaty, those provisions also cover a large rectly, discrimination between the products number of measures which are not protec- of one Contracting Party and like products tionist in intention. It remains the case how- originating in the territory of the other Con- ever, that a rule with the content asserted by tracting Party.' Chiquita appears systematically inappropri- ate in a provision on safeguard measures.

The corresponding provision of the Third Lomé Convention of 1984 — Article 139(2) — used the same wording.

36. Those reservations, based on the system of the Convention, against the interpretation put forward by Chiquita are also supported by considerations which derive from the leg- islative history, insofar as that can be tracked. The provision under consideration in the present case was thus only subsequently added to the Lomé Conventions. 53 The fact that that paragraph was inserted into the provision on safeguard measures and subse- quently left there can probably only be understood as meaning that it was taken as belonging to the field of safeguard measures. If the provision had been intended to pursue the purpose asserted by Chiquita, it would logically have been placed alongside the pro- visions corresponding to Articles 9, 12 and The first Lomé Convention of 1975 in fact 30 of the EC Treaty, as a separate provision contained no provision comparable with the with equal status. present Article 177(2). 52 The Second Lomé Convention of 1979 was the first to contain 53 — The provision of the Fourth Lomé Convention under con- sideration in the present case has a slightly different word- ing from its predecessors in the Second and Third Lomé Conventions. The alteration was probably intended to clar- 52 — See Article 10 of the first Lomé Convention, cited above ify the meaning of the provision. I see no difference in con- (note 32). tent between the two versions.

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37. Should any doubts nevertheless remain, Conventions contain a comparable provi- a look at the second Yaounde Convention, sion. mentioned above, should suffice to dispel them. In that convention there is — in Arti- cle 5 — an express provision on internal tax- ation, which reads as follows:

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character and in any event does not enlarge connection to the opinions of several prom- the obligations assumed by the Community inent legal writers, which — for reasons in the substantive provisions of the which I am about to explain — I will not go Convention concerning access to the market into here, and relies in particular on the of products from ACP States. Court's judgment of 22 September 1988 in Case 45/87. 56 In that judgment the Court indeed stated that Article 30 envisages 'the elimination of all measures of the Member States which impede imports in intra- Community trade, whether the measures 39. Article 177(2) of the Convention is bear directly on the movement of imported therefore inapplicable in the present case. goods or have the effect of indirectly imped- The question as to the direct effect of that ing the marketing of goods from other Mem- provision need therefore not be discussed ber States. The fact that some of those barri- further. In accordance with what has been ers must be considered in the light of specific said above, the existence of such effect would provisions of the Treaty, such as the provi- in any case have to be denied. sions of Article 95 relating to fiscal discrimi- nation, in no way detracts from the general character of the prohibitions laid down by Article 30.' 57

Article 169(1) of the Convention

of a specific provision, the tax at issue must Treaty being regarded as a lex specialis. If I therefore be assessed with reference to Arti- nevertheless do not discuss this argument cle 169(1) of the Convention and — since it further, there is a very simple reason for that. hinders the free import of bananas from The view is based on the supposition that A OP States — be classified as incompatible both the EC Treaty and the Lomé Conven- with that provision. 58 tions are intended to guarantee free move- ment of goods, free from hindrances of whatever type. In other words, it assumes that the Lomé Conventions too apply to internal taxes. As I think I have demon- strated, however, that is precisely not the case. The Lomé Conventions do not contain any parallel provision to Article 95 of the E C Treaty, and in all probability that is the result of a deliberate decision by the contracting 41. The Commission and the Italian Gov- parties. In that respect the EC Treaty simply ernment oppose that argument. They rely in goes considerably further than the Lomé particular on the judgment of the Court in Conventions. Those existing differences Case 27/67, 59 in which the Court expressed must be respected. It is therefore not possi- the opinion that a tax could not come under ble — if one wishes to avoid being guilty of Article 30 and Article 95 at the same time. 60 a petitio principu — to apply the consider- ations (possibly) underlying the EC Treaty on the relationship between Article 30 and Article 95 to the Lomé Conventions.

42. In my opinion there is much to be said for the view put forward by Chiquita, as 43. Article 169(1) is therefore not applicable regards the interpretation of the EC Treaty. to hindrances to trade which result from the The judgment just cited can be reconciled imposition of internal taxes. with that view without great difficulty, if one bears in mind that the Court focused on the existing legal position, in which a specific tax must indeed be assessed with respect either to Article 30 or to Article 95, but not both provisions at once, with Article 95 of the EC Article 1 of the Banana Protocol

arguments — rely also, with respect to sub- 'traditional' markets. If an ACP State previ- sequent increases in the contested tax, on ously regularly exported a certain quantity Article 1 of the Banana Protocol in support of bananas to a Member State of the Com- of his view. It should be observed, however, munity, the protection provided by Article that the questions referred by the Tribunale 1 of the Banana Protocol applies to those di Trieste refer to provisions of the Lomé imports, but does not extend to imports Conventions generally and that the Banana exceeding those traditional quantities. Protocol is specifically mentioned in the Whether a specific case concerns traditional order for reference. As is shown by the writ- markets within the meaning of that provision ten observations of the Italian Government, should, however, be ascertainable without in which the significance of that protocol is difficulty, since this is a pure question of fact. discussed, it was also perfectly evident that In my opinion, the wording of Article those provisions might be of importance for 1 means that it cannot be regarded as a pro- the present case. N o reasons can therefore be vision which is merely programmatic. The seen why those provisions should not be case may very well be different for the other considered for the purpose of answering the provisions of the Banana Protocol. Article 1, questions referred. however, is clear, unambiguous and uncondi- tional, and hence — as the Italian Govern- ment too conceded in their written observa- tions — capable of having direct effect. The fact that the provision is expressed as being for the benefit of the ACP States — not the individual traders — does not prevent that conclusion. The standstill obligation in Arti- cle 12 of the EC Treaty, whose direct effect was declared by the Court in its landmark 45. I am also of the opinion that that provi- decision in the Van Gend & Loos case, 61 is sion is applicable in the present case and that also addressed, according to its wording, Chiquita can rely on it. only to the Member States. Despite the dif- ferences between the EC Treaty and the Lomé Conventions, it appears to me legiti- mate in this respect to regard Article 1 of the Banana Protocol as also having direct effect.

point, it must first be noted that an increase also broad enough to allow it to be applied in a tax such as that at issue here does indeed to internal taxation. In my opinion, that also make access to the market less favourable, corresponds to the purpose of the provision since the price of the bananas affected is better than a restrictive interpretation. The thereby forced up and their sale made more extent of the standstill obligation is already difficult. The prohibition in Article 1 of the much cut down by the restriction to access Banana Protocol of making access to the to (and advantages on) the traditional mar- market less easy applies of course not only kets. Moreover, it only covers measures to new measures but also to the aggravation taken after the relevant date. I therefore see no justification for a further restriction of of existing measures. That that is so can be that provision, which is after all intended, seen simply by looking at Article 12 of the according to Article 183 of the Convention, EC Treaty, where that is specifically laid to permit the improvement of the conditions down for the area dealt with there. under which bananas from the A C P States are produced and marketed. That provision therefore also precludes increases in internal taxes, if the conditions of access of bananas from ACP States to their traditional markets are made less favourable thereby or their advantages on those markets reduced.

C. Conclusion

49. I therefore propose that the Court give the following answer to the questions of the Tribunale di Trieste:

1. Article III of the General Agreement on Tariffs and Trade of 30 October 1947 (GATT) does not have direct effect under Community law which individuals could rely on before the courts of the Member States.

2. Articles 169(1) and 177(2) of the Fourth ACP-EEC Convention of 15 December 1989 do not preclude an internal tax such as the consumer tax on fresh bananas for- merly imposed in Italy under Law N o 986/64.

3. Article 1 of Protocol 5 on bananas of the Fourth ACP-EEC Convention has direct effect. That provision prohibits the imposing of new internal taxes or increas- ing of existing taxes after the entry into force of the Convention, in so far as exports of bananas from ACP States to Community markets are thereby placed in a less favourable position than before as regards access to their traditional markets and their advantages on those markets.

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