C-122/95

1. By application lodged at the Court on 10 also submits that the Federal Republic of April 1995, the Federal Republic of Ger- Germany should be ordered to pay the costs. many, supported by the Kingdom of Bel- gium, brought an action against the Council for annulment of the first indent of Article 1(1) of Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round Facts and legal framework multilateral negotiations (1986-1994) 1(here- inafter 'the Council decision'), in conjunc- tion with point 1 of the Marrakesh Protocol in Annex 1A to the Agreement establishing the World Trade Organisation (hereinafter 'the W T O Agreement'), to the extent that the Council thereby approved the conclusion of the Framework Agreement on Bananas with Costa Rica, Colombia, Nicaragua and Venezuela (hereinafter 'the Framework 3. Council Regulation (EEC) N o 404/93 of Agreement on Bananas'). The Federal 13 February 1993 on the common organisa- Republic of Germany also claims that the tion of the market in bananas 2 (hereinafter Council should be ordered to pay the costs. 'the basic regulation') substituted a common organisation of the market in the banana sector for the various national regimes previ- ously in force. Those national regimes were divided into two groups. In the first, which included France, Spain and the United Kingdom, domestically-produced bananas and bananas produced in A C P countries 3 enjoyed a privileged position. In the second group, which included Germany, Belgium 2. The Council, supported by the Kingdom and the Netherlands, there were no quantita- of Spain, the French Republic and the tive restrictions on imports of Latin- Commission, submits that the application American bananas. 4 should be dismissed as inadmissible or, in the alternative, as unfounded. The Council 2 — OJ 1993 L 47, p. 1. 3 — 'ACP' is an abbreviation for the countries of Africa, the Car- ibbean and the Pacific with which the Community con- * Original language: Danish. cluded the Lome Convention. 1 — OJ 1994 L 336, p. 1. 4 — See the second recital in the preamble to the basic regulation.

... in order to ensure satisfactory marketing of bananas produced within the Community 6. Title IV of the basic regulation contains and of products originating in the A C P provisions on trade with third countries. States within the framework of the Lomé Article 15 defines 'traditional A C P bananas' Convention Agreements, while maintaining with reference to the quantities of bananas traditional trade patterns as far as possible, set out in the annex exported by specific provision should be made for the annual A C P States. It follows from that annex that opening of a tariff quota; ... on the one hand, the total quantity of traditional A C P imports of bananas from third countries bananas is 857 700 tonnes. 'Non-traditional would be subject to a tariff of E C U 100 per A C P bananas' are bananas exported by A C P tonne, which corresponds to the current rate States which exceed the quantity defined in under the Common Customs Tariff, and, on the other hand, imports of non-traditional bananas from the ACP would be subject to 5 — According to Article 18(2) of the basic regulation, the cus- zero duty in accordance with the abovemen- toms duty payable on imports in excess of the tariff quota is to be ECU 750 per tonne for non-traditional ACP bananas tioned agreements ... [tenth recital]; and ECU 850 per tonne for third-country bananas.

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the annex for the country concerned or Article 19 bananas exported by ACP States which are not referred to in the annex. 'Third-country bananas' are defined as those imported from third countries other than ACP States, which in practice means the Latin-American pro- ducer countries.

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8. Colombia, Costa Rica, Guatemala, Nica- 11. O n 28 and 29 March 1994 the Commis- ragua and Venezuela, which are all banana- sion concluded four separate draft agree- producing countries, considered that the ments, couched in identical terms, with basic regulation had substantially reduced Colombia, Costa Rica, Nicaragua and Ven- their opportunities for exporting bananas to ezuela governing Community imports of the Community. They therefore requested bananas. Annex 1 to each of these agree- the Community on 19 February 1993 to ments contains a document entitled 'Frame- open consultations under Article XXIII: 1 of work Agreement on Bananas'. the General Agreement on Tariffs and Trade (hereinafter 'GATT'), which provides that a contracting party which considers that one of its rights is rendered void or compromised may open negotiations with a view to obtaining compensation. Each of the signed documents, headed 'Agreed outcome of the negotiations', pro- vides as follows:

9. O n 3 June 1993 the Commission recom- mended that the Council should authorise it 'The attached draft agreement on bananas to open negotiations on the bananas ques- represents a satisfactory outcome of the tion, in accordance with Article XXVIII of negotiations on bananas in the context of the the GATT, which provides that a contracting Uruguay Round. party is entitled to open negotiations with a view to amending obligations in force. 6

The agreement also constitutes the outcome of Article XXVIII negotiations and consulta- tions on bananas between the E C and the abovementioned countries. 10. O n 29 September 1993 the Committee of Permanent Representatives of the Member States (hereinafter 'Coreper') proposed that the Council should give its authorisation for that purpose. On 18 and 19 October 1993 the Council adopted a decision in accordance with the Coreper proposal. Furthermore, the agreement constitutes a settlement of the dispute on bananas which is the subject of a GATT panel report. It was agreed, therefore, that Colombia, Costa Rica, 6 — Commission Document 7201/93, GATT 90; see Commission Document SEC (93) 866 final. Nicaragua, Venezuela and the E C will not

The authorisation to deliver the special export certificates shall be granted by the 7 — On 18 February 1994 a panel of experts had concluded in its report that the basic regulation was incompatible with the Commission in order to make it possible to GATT. However, that report was not adopted. improve regular and stable trade relations 8 — The global tariff quota was again increased to 2 553 000 in 1996 to cover the increased demand following the accession between producers and importers and on the of new Member States to the European Union, in accordance with Article 1 of Commission Regulation (EC) N o 1559/96 condition that the export certificates will be of 30 July 1996 increasing the volume of the tariff quota for issued without any discrimination among the banana imports provided for in Article 18 of Council Regu- lation N o 404/93 for 1996 (OJ 1996 L 193, p. 12). operators.'

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Point 7 fixes the in-quota customs duty at legal instruments included in Annexes 1, 2 E C U 75 per tonne. and 3 (the Multilateral Trade Agreements) are to be integral parts of the Agreement and binding on all Members. Annex 1A to the W T O Agreement contains Multilateral Agreements on Trade in Goods, including the General Agreement on Tariffs and Trade Point 10, moreover, provides that 'this agree- 1994, known as 'GATT 1994'. ment will be incorporated into the Commu- nity's Uruguay Round Schedule'.

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and the fundamental principles of Commu- approved the agreements concluded in the nity law. Uruguay Round negotiations.

Article 1 of the Council decision provides:

'Article 1 16. By Council Regulation (EC) N o 3290/94 of 22 December 1994 on the adjust- ments and transitional arrangements required in the agricultural sector in order to imple- ment the agreements concluded during the 1. The following multilateral agreements and Uruguay Round of multilateral trade nego- acts are hereby approved on behalf of the tiations, 10 Article 18(1) of the basic regu- European Community with regard to that lation was amended in so far as the tariff portion of them which falls within the com- quota was increased by 200 000 tonnes to petence of the European Community: 2 200 000 tonnes, while the import levy on third-country bananas was reduced by E C U 25 to E C U 75 per tonne. That regulation also inserted into Article 20 of the basic regulation, which empowers the Commis- — [the W T O Agreement], and also the sion to adopt detailed implementing rules, a Agreements in Annexes 1, 2 and 3 to that provision allowing the Commission to adopt Agreement; measures necessary to fulfil obligations aris- ing from agreements concluded by the Com- munity in accordance •with Article 228 of the Treaty.

2. The texts of the agreements and acts referred to in this Article are attached to this Decision.

18. The Council decision was published in 20. O n 13 December 1995 the Court dis- the Official Journal of the European Com- missed the request lodged by the Federal munities of 23 December 1994 under the Republic of Germany on 26 October 1994 heading 'II Acts whose publication is not pursuant to Article 228(6) of the Treaty for obligatory'. It appears, however, that the an opinion on the compatibility of the issue concerned was not available until 13 Framework Agreement on Bananas with the February 1995. The W T O Agreement and Treaty and certain fundamental principles of Annexes 1 to 3, including, under Annex 1A, Community law, 12 on the ground that the GATT 1994 and the Marrakesh Protocol, purpose of the procedure for requesting an were annexed to the Council decision. The opinion is to obtain a preliminary opinion, text of the Marrakesh Protocol published in with the result that the request became the Official Journal contained the following devoid of purpose once the international postscript: agreement in question had been concluded.

Admissibility

'[The agreed schedules of participants will be annexed to the Marrakesh Protocol in the treaty copy of the W T O Agreement]'. 11

25. The Council decision 13 forming the 22. The Council, supported by the Spanish subject-matter of the action for annulment and French Governments and the Commis- was published on 23 December 1994, sion, claims that the proceedings were not together with the annexes referred to therein, instituted 'within the period of two months including the Marrakesh Protocol. In that provided for in the fifth paragraph of Article regard, it is difficult to attach any importance 173 of the Treaty. It maintains that time whatsoever to the fact that the list annexed began to run on 22 December 1994, the day to the Marrakesh Protocol, in so far as con- on which the Council decision came to the cerns the Community, was not reproduced knowledge of the Federal Republic of Ger- in the Official Journal, since there is a refer- many via its representative in the Council. ence in brackets to the treaty copy of the W T O Agreement. It is the Council decision as such that forms the subject-matter of the action, and it was indeed published, irrespec- tive of whether a document annexed to an annex to that decision was not reproduced in 23. The German Government contends that the published version. the proceedings were instituted within the prescribed time. As the measure in issue was published, it follows expressly from the fifth paragraph of Article 173 of the Treaty that the period of two months begins to run on the day of publication, which, according to the case-law of the Court, is the day on 26. According to the information before the which the relevant issue of the Official Jour- Court, the issue of the Official Journal con- nal became available. cerned was not available until 13 February 1995. It follows from the case-law of the Court that in such a case regard must be had to the date of actual publication. 14

actual publication, so that the condition in would have been natural to indicate the con- the fifth paragraph of Article 173 of the nection a little more clearly than was done, Treaty appears at first sight to have been for instance by inserting a reference to met. Article 191 into the fifth paragraph of Article 173. In its present form, the fifth paragraph of Article 173 simply indicates that when time begins to run, some measures have been published while others have been neither 28. It is necessary to consider, however, published nor notified, as the case may be. whether on closer examination the wording and purpose of that provision might lead to a restrictive interpretation, to the effect that the point at which time begins to run is not to be determined with reference to publica- tion where publication is not obligatory. 32. The simplest solution is therefore to interpret the fifth paragraph of Article 173 literally and to take into consideration a period of two months from publication where the measure in question has actually 29. The fifth paragraph of Article 173 pro- been published. A provision which deter- vides that proceedings are to be instituted mines the time within which Member States within two months 'of the publication of the and individuals may institute proceedings measure, or of its notification to the plaintiff before the Court against Community mea- ... as the case may be'. sures must be as clear as possible. Individuals cannot reasonably be expected to investigate whether or not publication of a measure which has in fact been published was obliga- tory. Simplicity and clarity are necessary, 30. The expression 'as the case may be' must especially where the right of Member States be taken to refer to the fact that certain mea- and individuals to legal protection is con- sures are published while others are notified cerned. to the person to whom they are addressed. The criterion of the date on which the meas- ure came to the knowledge of the applicant, within the meaning of the fifth paragraph of Article 173, becomes relevant only where the measure has been neither published nor noti- 33. The period for instituting proceedings fied to the person bringing an action. laid down in the fifth paragraph of Article 173 has two objectives. First, it seeks to ensure that a plaintiff has a reasonable time in which to ascertain whether there are grounds for challenging a measure and, 31. It might be argued, admittedly, that the where appropriate, to prepare his applica- expression 'as the case may be' refers to tion. Second, it seeks to ensure that a Article 191, which contains provisions defin- measure cannot become the subject of an ing the measures to be published in the Offi- action for annulment once a certain period cial Journal and those which are to be noti- has elapsed. In that regard, the Court has fied to those to whom they are addressed. held that only a strict application of the Had that been the intention, however, it time-limit laid down in the fifth paragraph of

34. In my view, an interpretation to the effect that time begins to run when the meas- ure is published in the Official Journal, irre- spective of whether or not publication is 36. The fact that the Council decision had obligatory, is consistent with the interests of already come to the knowledge of the Fed- legal certainty. Both the desire to ensure that eral Republic of Germany when it was a plaintiff has a reasonable time to protect his adopted is irrelevant. That is entirely consis- interests and the desire to ensure that after a tent with the situation of a Member State specific time has elapsed individuals, institu- which seeks to challenge, for example, a tions and Member States are able to rely on regulation adopted by the Council, in which the binding force of the measure require that case time always begins to run when the the rule used to determine the point at which regulation is published, notwithstanding that time begins to run be clear and precise, so it has already come to the knowledge of that that individuals, institutions and Member Member State. States can know precisely when a period begins to run, and therefore when it expires. Such clarity is guaranteed if time is reckoned from the publication of the measure.

37. Having regard to the foregoing consider- ations, I am of the opinion that the proceed- ings were not instituted out of time.

35. A restrictive interpretation of the fifth paragraph of Article 173, to the effect that where publication is not obligatory the period for instituting proceedings must begin The significance of the fact that the Frame- to run when the measure comes to the work Agreement has entered into force knowledge of the plaintiff, would not permit a sufficient degree of clarity and precision to be attained, since it would often be neces- sary, in order to determine when the measure came to the plaintiff's knowledge, to embark upon a concrete evaluation of the evidence. 38. The Council maintains that a decision whereby the Community ratifies an interna- tional agreement cannot be challenged by an action for annulment, since the agreement 15 — See, in particular, the order in Case C-59/91 France v Com- mission [1992] ECR I-525, paragraph 8. binds the parties vis-à-vis contracting non-

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susceptible to an action for annulment. 16 Uruguay Round, might upset the overall bal- Otherwise, exercise of the powers delegated ance. In support of its argument, the Council to the Community institutions in interna- refers to LAISA and CPC Espana v Coun- tional matters would escape judicial review, cil, 19 an action for the annulment of certain under Article 173 of the Treaty, of the legal- provisions of Annex I to the Act concerning ity of the acts adopted. 17 the conditions of accession of the Kingdom of Spain and the Portuguese Republic and the adjustments to the Treaties.

The significance of the fact that the Frame- work Agreement forms part of the WTO Agreement 46. To my mind, the Court's observation in paragraph 15 of that judgment that the Act of Accession affirmed the results of the accession negotiations, which constituted a totality, must not be taken out of its context 44. Lastly, the Council, continuing with the and transposed to situations other than that argument referred to in paragraph 38, sub- to which those cases specifically related. The mits that the application for annulment determining factor there was that the cases should be dismissed because the annulment concerned not a measure of secondary law of the Framework Agreement, which is adopted by the Council but an act of pri- one element of the overall outcome of the mary law not covered by Article 173 of the Treaty, which, by its nature, does not pro- vide for the annulment of such provisions. 16 — See also Case C-327/91 France v Commission [1994] ECR The Court therefore had no jurisdiction to I-3641, paragraphs 15 and 16, Case 165/87 Commission v Council [1988] ECR 5545 and Opinion 1/75 [1975] ECR deal with the matter. 1355. 17 — See France v Commission cited in footnote 16, paragraph 16. 18 — See France v Commission, cited in footnote 16, paragraph 25. 19 — Joined Cases 31/86 and 35/86 [1988] ECR 2285.

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47. The present case concerns a measure of ment must be amenable to challenge irre- secondary law adopted by the Council in the spective of the overall result of the Uruguay form of a decision. Such a measure is covered Round and, second, that the Framework by Article 173 of the Treaty, which confers Agreement must be annulled. on the Court general jurisdiction to review the legality of measures adopted by the Council.

52. It should be observed that, according to Article 37(4) of the Statute, submissions made in an application to intervene are to be limited to supporting the submissions of one 49. I consider that this argument, too, must of the parties. While there is no reason in therefore be rejected. principle why the arguments advanced by an intervener should not support submissions other than those which the party it supports has submitted, 20 it is none the less essential that those submissions do not alter the The objection of inadmissibility in regard to framework of the dispute as defined by the the Kingdom of Belgium application and the defence. 21 In the first place, in accordance with general principles of procedural law, it is for the parties to define the framework of a dispute, so that they are not subsequently required to con- sider matters which they themselves did not 50. The Belgian Government claims, sepa- raise. Second, it would be inappropriate, rately, that the Commission integrated the Framework Agreement into the result of the Uruguay Round without being authorised to 20 — Sec, for example, Case 30/59 De Gezamenlijke Steenkolen- do so by the Council, so that the Framework mijnen in Limburg v High Authority [1961] ECR 1. Agreement infringes essential formal require- 21 — On this point, reference is made to Joined Cases T-447/93, T-448/93 and T-449/93 AITEC and Othert v Commission ments, with the result, first, that the Agree- [1995] ECR II-1971, paragraph 122.

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with regard to the investigation and treat- 55. The Council, supported by the Spanish ment of a case, to allow matters to be intro- and French Governments and the Commis- duced which have no connection which the sion, contends that the Framework Agree- issues raised by the parties. In that regard, it ment is compatible with Community law on will be noted that under Article 42(2) of the all these points. Rules of Procedure the parties are prohibited from raising any new pleas in law in the course of proceedings.

Substance 57. The Framework Agreement on Bananas, which the Council, by its decision, inte- grated into the W T O Agreement, amended the basic regulation on four points. First, the tariff quota was increased by 200 000 tonnes and import duties reduced by E C U 25 to E C U 75. Second, approximately half of the tariff quota was divided into specific national quotas and, for that part of the quota, a sys- 54. The German Government, supported by tem of export licences was introduced, under the Belgian Government, submits that the which the exporting country may require the Framework Agreement on Bananas infringes third-country importers and new operators a number of fundamental principles of Com- to possess such a licence, 'which is a con- munity law, including the right to pursue a dition of these operators being able to trade or business, the right to property, the principle of the protection of legitimate expectations, the principle of proportionality and the principle of non-discrimination. 22 — Case C-280/93 [1994] ECR I-4973.

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import the products into the Community. It external relations, to accord to non-member is only the system of national quotas and countries equal treatment in all respects. It that of the export licences which form the follows from that judgment that different subject-matter of the present action. treatment accorded to traders within the Community must also be regarded as com- patible with Community law, where that dif- ferent treatment is an automatic consequence of the different treatment accorded to non- member countries with which such traders The system of national quotas have entered into commercial relations.

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producer countries concerned and that the to 6 per carton (corresponding to between Framework Agreement contains, in point 6, US $280 and 330 per tonne). a provision designed to ensure that tradi- tional trade patterns are maintained and that there is no discrimination between traders. In that regard, it is for the Commission to ensure that the provisions applicable to licences are in practice implemented in accordance with the requirements set out in the Framework Agreement.

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some 6.5% of the price paid by the final to do so. It follows from point 6 of the consumer. Framework Agreement that the producer countries cannot require that the latter cat- egory of importers must obtain export licences.

67. Following the same reasoning as that applied above to the system of national quo- tas, I fail to see what fundamental rules or principles of Community law might preclude the establishment in an agreement between the Community and certain non-member 69. Since the system of export licences is not countries of a system of export licences. only a source of administrative inconve- Here, too, it is only a question of the regu- nience but also entails the payment of duties lation of trade with the non-member coun- to the countries which issue the licences, the tries concerned by the agreement and the products which third-country importers and export licences concern, in particular, the new operators purchase in the producer conditions under which the non-member countries concerned are in reality subjected countries in question authorise exports of to costs which the bananas which Commu- the goods. A system establishing a tariff nity and ACP importers purchase in the quota and specific national quotas in practice same countries do not bear. The Framework allows the producer countries to which a Agreement therefore seems at first sight to quota is allocated to share the 'burden' of involve unequal treatment of the traders con- this division among their own traders. The cerned. The crucial point, however, is fact that the Community links this system to whether such inequality of treatment may be the import licences which it grants does not regarded as objectively justified by the spe- alter anything in that regard, but ensures that cial circumstances prevailing on the market the Community is able to act in such a way in bananas, and in particular by the consid- that the non-member countries concerned — erations underlying the basic regulation. in the present case the banana-producing countries of Latin America — do not abuse the system.

are subject to a tariff of E C U 100 per tonne. subject, which, other things being equal, has Imports in excess of the quota are subject to a negative effect on the competitive capacity an import duty of E C U 850 per tonne (ECU of Community bananas and traditional A C P 750 per tonne in the case of non-traditional bananas. The increase of 200 000 tonnes in ACP bananas). Finally, Community and the tariff quota implies an increase in overall ACP importers are allocated a share of 30% supply, which, other things being equal, cre- of the quota. ates pressure for a reduction in market prices, which in turn has an adverse effect on Community bananas and traditional A C P bananas, which, for a variety of reasons, are the most expensive. The reduction of E C U 25 per tonne in the customs duty for the glo- bal quota also substantially reduces the level- ling of prices, an essential element in the basic regulation. 71. In Germany v Council 24 the Court held that this system, and in particular the way in which the tariff quota is allocated, is objec- tively justified. First, it contributes to inte- grating previously compartmentalised national markets, since it encourages dealers in Community bananas and traditional ACP bananas to obtain supplies from third coun- tries and encourages importers of third- 73. This deterioration in the competitive country bananas to market Community and capacity of Community bananas and tradi- ACP bananas. In order to guarantee the dis- tional A C P bananas caused by the increase posal of Community bananas and traditional in the tariff quota and the reduction in the A C P bananas, it was necessary to ensure a customs duty primarily affects traders who certain competitive balance between the have traditionally marketed Community traders concerned, which was achieved as a bananas and traditional A C P bananas. These result of, first, the import duty and, second, traders are required to base their activities the fact that 30% of the quota was allocated mainly on these bananas, since, pursuant to to Community and ACP importers. the basic regulation, their access to the mar- ket in the more competitive bananas from non-member countries is restricted to 30% of the overall quota.

75. It is next necessary to examine, in the light of the evidence before the Court, whether there is any basis for assuming that the measure actually adopted constitutes an appropriate and proportionate means of ensuring the necessary balance between trad- ers.

78. Whether that distinction exceeds what is necessary to ensure that a balance is restored between traders depends on a concrete and essentially economic evaluation of the way in 76. It follows from the case-law of the which the increase in the tariff quota and the Court that in matters concerning the com- reduction of the customs duty affect the con- mon agricultural policy the Community leg- ditions of competition on the market in islature has a wide discretionary power and bananas. The Federal Republic of Germany that the legality of the measure concerned has not established, or even put forward, a can be affected only if it is manifestly inap- plausible argument, for example by submit- propriate having regard to the objective pur- ting economic studies of the market, that the sued. 25 increase in the tariff quota and the reduction in the customs duty did not alter the com- petitive capacity of Community and ACP 25 — Sec, in particular, Case C-331/88 The Queen v The Minister importers in comparison with the balance for Agriculture, Fisheries and Food and the Secretary of pursued by the basic regulation, or that the State for Health, ex parte: Fedesa and Others [1990] ECR I-4023, paragraph 14. Framework Agreement has imposed burdens

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