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7. Entertaining doubts as to the application include, as provided in the Treaty and in of the Community legislation, the Tarief- accordance with the timetable set out commissie referred the following question to therein, 'the association of the overseas the Court of Justice for a preliminary ruling: countries and territories in order to increase trade and promote jointly economic and social development'.

'Is Part Four of the EEC Treaty, in particular Articles 132(1), 133(1) and 134, to be inter- preted — regardless of any distinction between goods originating in the O C T and 10. Part Four of the Treaty (Articles 131 to goods originating in third countries, and thus 136) is entitled 'Association of the overseas by way of derogation from Council Deci- countries and territories'. The purpose of sions 86/283/EEC and 91/110/EEC — as that association, pursuant to Article 131, is meaning that no customs duties were pay- to promote the economic and social develop- able on 25 June 1991 on goods which, imme- ment of the O C T and to establish close diately before being imported into the Com- economic relations between them and the munity, were in free circulation in an O C T Community as a whole. country?'

The applicable legislation 11. Article 132 of the Treaty provides:

8. The third paragraph of Article 227 of the EEC Treaty, which defines the territorial 'Association shall have the following objec- scope of the Treaty, brings within that scope the O C T listed in Annex IV, as countries and tives: territories to which '[t]he special arrange- ments for associations set out in Part Four of this Treaty shall apply'. The Netherlands Antilles have appeared on that list since 1964. 1. Member States shall apply to their trade with the countries and territories the same treatment as they accord each other pursuant to this Treaty. 9. Article 3(r) of the EC Treaty * provides that the activities of the Community are to

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16. On the date on which the import trans- 19. Article 70(1) of Decision 86/283 limited action at issue in these proceedings took the preferential regime to products originat- place, Council Decision 86/283/EEC of ing in the OCT: 'Products originating in the 30 June 1986 on the association of the over- countries and territories shall be imported seas countries and territories with the Euro- into the Community free of customs duties pean Economic Community 3 (hereinafter and charges having equivalent effect.' 7 Simi- 'Decision 86/283' or 'the Fifth Decision') lar clauses were to be found in the previous was applicable ratione temporis. decisions.

17. In fact, Decision 86/283, which in prin- ciple was to expire on 28 February 1990, was 20. According to Article 77(1) of Decision extended on three successive occasions by 86/283, 'For the purposes of implementing three Council decisions. 4 The second this chapter, the concept of originating prod- decision, specifically, extended its validity ucts and the methods of administrative coop- until 30 June 1991. eration relating thereto are laid down in Annex II'.

18. However, a further Council decision, Decision 91/482/EEC of 25 July 1991 on the association of the overseas countries and ter- 21. Annex II to Decision 86/283 devotes ritories with the European Economic Com- Title I (Articles 1 to 5) to the 'Definition of munity 5 (hereinafter 'Decision 91/482' or the concept of originating products'. Article 'the Sixth Decision'), which, pursuant to 1(1 )(b) of that annex treats the following as Article 241 thereof, entered into force on 20 'products originating in the countries and September 1991, provided, in Article 240(1), territories': that it would apply for a period of 10 years 'from 1 March 1990'. 6

— are accompanied by an export certificate.

' 1 . Products originating in the O C T shall be imported into the Community free of cus- 3. The provisions of paragraph 2 shall not toms duties and charges having equivalent apply to: effect.

— agricultural products listed in Annex II to the Treaty nor to products falling within Council Regulation (EEC) N o 2. Products not originating in the O C T but 3033/80 of 11 November 1980 laying which are in free circulation in an O C T and down the trade arrangements applicable are re-exported as such to the Community to certain goods resulting from the

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processing of agricultural products, as 25. The system of cooperation established last amended by Regulation (EEC) N o by Article 177 of the EC Treaty, however, 1436/90, enables the Court of Justice to provide the national court with information relevant to the interpretation of Community law provi- sions which it considers to be applicable to the case, even if the national court has not expressly referred to any of them.

OPINION OF MR RUIZ-JARABO COLOMER — CASE C-310/95

(b) that such retroactivity, in so far as it ben- 30. Since the import transaction at issue in efits the plaintiff, is not contrary to the main proceedings took place in June Community law; 1991, it is retroactively covered by the Sixth Decision. If such retroactive application gave rise to adverse consequences for economic agents, with respect to their existing tax pos- ition vis-à-vis their respective authorities, I have no doubt that it would be contrary to Community law. Such agents could success- (c) that Road Air BV benefits from the ret- fully allege breach of the principles of legal roactive application of the new decision certainty and protection of legitimate expec- and can in practice rely upon it. tations, to which, in the case-law of the Court of Justice, traditionally restrict the ret- roactivity of provisions.

28. The retroactive application of the Sixth Decision, as I stated earlier, derives from Article 240(1) thereof. That provision — whose two-fold purpose was to link the new 31. However, in so far as the new decision decision with the theoretical expiry date of favours its addressees, improving their legal the previous decision and to dovetail with position, I see no good grounds for invali- the coming into effect of the new decision on dating the retroactive application decided the A C P States — indicated that it would upon by the Community legislature. apply as from 1 March 1990, a date falling long before its publication.

29. The retroactivity of the Sixth Decision is 32. To be precise, I am not convinced by thus unavoidable. It is quite another matter Road Air's arguments against the retroactiv- that the coexistence of Articles 240 and 241 ity of the Sixth Decision, which are inspired thereof, according to their terms, does not more by general considerations (lack of add up to good legislative drafting and raises statement of reasons, breach of the principles clear problems of transitional applicability. of protection of legitimate expectations and However, quality and good drafting are not legal certainty) than by its impact on the preconditions for the validity of provisions. present case.

35. Secondly, as far as the principles of the protection of legitimate expectations and legal certainty are concerned, it is true that they might be infringed if the new provision were applied retroactively to the detriment of its addressees. But where, on the contrary, its application has a favourable impact on 38. The problem raised by the retroactive them, such as reimbursement of tax paid at application of the Sixth Decision is thus not an earlier stage, I do not see how the legiti- a matter of principle but rather one of prac- mate expectations of the persons liable to the ticalities: can Road Air BV prove, ex post tax could be frustrated or legal certainty facto, that in June 1991 it satisfied the sub- undermined. stantive and formal requirements laid down by Article 101(2) of the Sixth Decision in order to enjoy the benefit of duty-free 8 — One of the recitals states: 'in view of the many similarities importation? between the O C T and many of the A C P Sutes, and while respecting their differing status, the provisions for the O C T should be adopted for the same period as for the A C P States' (second recital). 9 — See Joined Cases C-260/91 and C-261/91 Diversine and 10 — Judgment in Diversinte and Iberlacta, cited above, para- Iberhcta [1993] ECR 1-1885, paragraph 10. graph 9.

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43. To summarize, I consider that the answer given by the Court of Justice to the national court should indicate that Decision 91/482 is applicable retroactively to the import transaction at issue in the main pro- ceedings, to the extent to which it is favour- able to the plaintiff undertaking, enabling it to recover all or part of the customs duties 41. O n the contrary, if it were proved that paid. the customs duties paid in the Netherlands Antilles are equivalent to or greater than those payable under the common customs 12 — In its judgment in Case C-12/92 Huygen and Others [1993] tariff, application of the Sixth Decision dis- ECR 1-6381 the Court took a very flexible approach regarding the production ex post facto of import certificates poses of the problem, rendering unnecessary where the authorities of the State responsible for issuing them failed to do so. According to that judgment (para- any further consideration of how the Treaty graphs 22 and 35) the fact that the customs authorities in is to be interpreted. the exporting State are unable to establish the correct origin of goods is in principle an abnormal and unforeseeable cir- cumstance outside the importer's control: the importer is entitled, according to the circumstances, to invoke as force majeure the fact that the customs authorities in the export- ing Member State arc unable, by reason of their own negli- 11 — As the Commission states, coffee extract is not one of the gence, to establish the correct origin of the goods by means products excluded from the scope of Article 101(2). of a subsequent verification.

49. It is thus clear that the application of the Treaty to the Netherlands Antilles derives 46. Starting from that premiss, Road Air BV not so much from their forming part of the contends that the Treaty prevents the levy of Kingdom of the Netherlands as from the customs duties upon the import into the application of a specific Convention which, Community of goods in free circulation in in its turn, refers to Part Four of that Treaty. an OCT. Irrespective of whether they origi- Accordingly, it is the rules of Part Four of nate in that O C T or come from a non- member country, the rules governing intra- Community trade are fully applicable to 13 — Journal Officiel 1964, 150, p. 2414.

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52. The general answer given to that ques- tion by the Court of Justice is to be found in 56. To that end, Road Air BV seeks to rely its judgment of 12 February 1992 in Leplat: on paragraph 19 of LepUt, cited above, 'That association [of the O C T with the according to which '... in order to comply Community] is the subject of arrangements with the obligation laid down in Article defined in Part Four of the Treaty (Articles 132(1), the reference to customs duties in 131 to 136), with the result that, failing express reference, the general provisions of the Treaty do not apply to the O C T ' . 14 15 — In paragraph 62 of Opinion 1/78 of 4 October 1979 ([1979] ECR 2871) and in paragraph 17 of Opinion 1/94 of 15 November 1994 ([1994] ECR 1-5267), the Court of Justice, referring to the OCT, sutes that they are countries and ter- ritories which arc dependent on the Member States but are 14 — Case C-260/90 LepUt [1992] ECR 1-643, paragraph 10. outside the scope of Community law.

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Article 133(1) must include charges having Community customs duties, to certain an effect equivalent to customs duties'. imports of goods exported from the O C T According to the plaintiff, by using the word (Article 133(1)), the details of which I shall Obligation', the Court of Justice denied that consider below. Article 132(1) was merely an objective.

57. That argument does not take sufficient account of the fact that a few lines earlier in paragraph 19 of LepUt, the Court of Justice 60. From the temporal point of view, the stated expressly: 'That provision [Article adjustments made by the Treaty are of two 133(1) of the Treaty] gives concrete form to kinds: the objective set out in Article 132(1), which provides that the Member States are to apply to their trade with the O C T the same treat- ment as they accord to each other pursuant to the Treaty.' 16

62. Article 133(1) raises an initial linguistic problem: does it refer to all kinds of imports from the O C T into the Community (that is to say, both to products originating in the O C T and to products from non-member (c) those others which, like the Netherlands countries which are in free circulation in the version ('goederen van oorsprong uit de OCT) or only to imports of goods which Landen en gebieden') or the German originate in the OCT? version ('Einfuhr von Waren aus den Ländern und Hoheitsgebieten'), refer to imported products without qualifying them further.

63. The various language versions of the same provision can be placed in three groups:

64. The choice of one language version or (a) those which contain no reference to the another has very different legal conse- origin of the goods, only to imports; quences. If 'originating goods' are chosen, thus, the French version ('importations the scope of Article 133 of the Treaty is lim- originaires des pays et territoires'), the ited to those goods which were produced, in Italian version ('le importazioni origina- an economic sense, in the OCT. The expres- rie dei paesi e territori'), and the Portu- sion would not include, therefore, those guese ('as importações originárias dos other products whose connections with the países e territórios'); O C T are merely incidental, as in the case of products marketed in the O C T but originat- ing in third countries. ' 7

17 — This interpretation of the adjective 'originating' is the one (b) those which refer expressly to the goods consistently relied on in the successive Council decisions adopted under Article 136 of the Treaty. It is the one, for so imported, which must Originate' in example, which prevails in the Fifth Decision, Annex II to the OCT: these include the English ver- which, referring to Article 77, treats as products originating in the O C T those which were obtained wholly, or were sion ('imports of goods originating in the sufficiendy processed, in the OCT.

70. Article 134 of the Treaty covers cases where the customs duties applicable to imports into an O C T of goods from a non- member country are of a level such that, hav- ing regard to the provisions of Article 133(1), there might be deflections of trade to the 67. An initial consideration at first sight sup- detriment of one or more of the Member ports the more restrictive interpretation, the States. In such circumstances, such a Mem- effect of which is to limit the abolition of ber State 'may request the Commission to Community customs duties to imports of propose to the other Member States the mea- products originating in the OCT. To allow sures needed to remedy the situation'. the opposite view, namely that any product originating in any non-member country would be exempt from payment of the cus- toms duties laid down in the common cus- toms tariff on entry into the Community merely because the last place where it was marketed was one of the O C T might 71. The provisions of Article 134 would be encourage evasion of the law and pave the meaningless if Article 133(1) — to which it way for artificial deflections of trade. expressly refers — covered only products

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originating in the OCT: those products, 74. I am not convinced by that argument. In by definition, are not subject to customs my opinion, nothing in Article 134 supports duties within the O C T and therefore could the view that its validity is limited to a tran- never be affected by the conditional phrase sitional period. When the authors of the in the first sentence of Article 134 ('If the EEC Treaty wished to emphasize the provi- level of the duties applicable to goods from a sional nature of a provision, they did so third country on entry into a country or expressly. In the absence of an express men- territory ...'). tion, and when the wording of the provision itself likewise contains nothing concerning timing, I see no reason to limit its application to a specified period.

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for the association of the O C T with the Treaty, 1S are based on the implicit premiss Community) has been in force for five years, that the said article allows progressive appli- the Council 'shall ... lay down provisions for cation in time, so that the 'further period' a further period, on the basis of the experi- could be determined either once or by means ence acquired and of the principles set out in of a series of decisions. this Treaty'.

79. However, Road Air BV's thesis runs counter to the Council's abovementioned interpretation: in its view, the period pro- 77. In those terms, that provision raises at vided for in Article 136 is a single period, so least two problems affecting the present case: that upon the lapse of the first decision, adopted after the expiry of the Implementing Convention annexed to the Treaty, the Council was legally precluded from adopting any similar decision.

(a) Is the 'further period' for which the Council is to legislate a single period, or, on the contrary, may it comprise gradual stages? 80. Even though I recognize that Road Air BV's view has some basis, I consider that the logic of the scheme and the intrinsic meaning of the provision are more conducive to the opposite view. The latter might, at first sight, appear forced, given the literal wording of the second paragraph of Article 136, but I believe that a more in-depth analysis of that provision points in that direction. (b) To what extent are the 'provisions for a further period' linked with the 'prin- ciples set out in the Treaty'?

82. For the exercise of that power, two 85. Thus, in paragraph 11 of the judgment in options were open to the Council: either to LepUt, cited above, the Court of Justice lay down a single period, of considerable stated: 'The second paragraph of that article length, or to legislate for shorter, sequential [136] provides that, before the Implementing periods, the temporal effects of which in fact Convention expires, the Council is to lay coincide with those of a single, more down provisions for a further period, on the extended period. If the Council was autho- basis of the experience acquired and the rized — as it in fact was — to adopt the first principles set out in the Treaty. In application option, for the same reason it could resort to of that provision, the Council has taken a the second. number of decisions, the first of which was Decision 64/349/EEC ..., while that in force at the material time was Decision 86/283.' 19

87. It is true that in those judgments the ence, the evaluation of which by the Council Court of Justice did not directly tackle the must necessarily involve a considerable problem of the validity of the O C T Deci- degree of discretion. sions, which had not been raised before it, and took it for granted that they were valid. But it is also true that an irregularity as seri- ous as the overstepping of the Council's powers, persisting for more than 20 years in the adoption of successive decisions, would without doubt have been focused upon by 91. Specifically with regard to the objective the Court of Justice. laid down in Article 132(1) — which is the basis for the principle expounded in Article 133(1) — the Council's margin of discretion allowed it, in my opinion, to proceed gradu- ally, ultimately abolishing customs duties on imports from the O C T of products originat- 88. To summarize, even if it were conceded ing in non-member countries on which the that Road Air BV's view on this point car- prescribed duties have been paid upon entry ried some weight, I do not see sufficient rea- into the OCT. son to deny the Council the power to subdi- vide the 'period' of time referred to in Article 136 of the Treaty. The validity of the successive decisions adopted in that regard by the Council is not thus affected by the excess of authority imputed to it by Road Air BV. 92. O n this point, Road Air BV raises an objection of some weight: even if the Treaty had not laid down a fixed time-limit for attainment of the objective set out in Article 132(1), the Council would have acted ille- gally by maintaining until the Sixth Decision 89. The second problem raised by the — that is to say 33 years after introduction sequence in time of the decisions is their of the regime provided for in the Treaty and content: did the Council enjoy some latitude 23 years after the full entry into force of the in determining the rate of and procedure for rules on the free movement of goods — a implementation of the 'principles set out in system which imposes certain requirements this Treaty'? linked with the origin of imported products.

94. However, that objection does not con- vince me. 97. The rate of that progress can easily be seen in the two decisions which may be applicable to the present case: according to the Fifth Decision, only products originating in the O C T can be imported into the Com- munity free of customs duties, apart from certain agricultural products. O n the con- 95. It must be borne in mind that each of the trary, as from the Sixth Decision, the exemp- O C T Decisions represents a cohesive legisla- tion is granted in more generous terms, tive whole, the various components of which including not only those agricultural prod- cannot be analysed in isolation. Specifically, ucts but also goods not originating in the the abolition of tariff duties must be linked O C T (with exceptions for certain sensitive with another series of measures which, to a products) which are in free circulation in the greater or lesser degree, promote the econ- O C T and are to be exported to the Commu- omic and social development of the OCT. 21 nity.

102. If, on the contrary, that result were impossible, or if the Court of Justice consid- 100. All the foregoing thus militates in ered the Sixth Decision inapplicable, despite favour of the application, according to their its retroactivity, the reply to be given to the terms, of the provisions contained in either national court would in my view have to decision, concerning customs duties payable uphold the validity of the provisions of the on import into the Community of goods Fifth Decision which, at the material time, from a non-member country which were in allowed customs duties to be levied on the free circulation in the Netherlands Antilles. imports at issue in the main proceedings.

Conclusion

103. I therefore suggest that the C o u r t of Justice give the following answer to the question referred t o it b y the Tariefcommissie:

(1) C o u n c i l D e c i s i o n 9 1 / 4 8 2 / E E C of 25 J u l y 1991 o n t h e association of the over- seas countries a n d territories w i t h t h e E u r o p e a n E c o n o m i c C o m m u n i t y applies retroactively t o the i m p o r t at issue in t h e m a i n p r o c e e d i n g s , t o the extent t o w h i c h it is favourable t o t h e plaintiff u n d e r t a k i n g , enabling it t o recover all o r p a r t of the c u s t o m s duties paid b y it.

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