C-364/95

O P I N I O N OF MR ELMER — JOINED CASES C-364/95 A N D C-365/95

OPINION OF ADVOCATE GENERAL ELMER delivered on 24 June 1997

1. In the present case the Finanzgericht bananas during the reference period 1989, (Finance Court) Hamburg (Germany) has 1990 and 1991 — the reason given was that a requested the Court to give a preliminary Colombian supplier had failed to honour its ruling on a number of questions on the inter- commitments — and therefore received pretation of the first paragraph of Article 234 import licences which only covered small of that Treaty, on the relations between quantities for 1993, 1994 and 1995, in GATT (General Agreement on Tariffs and accordance with the provisions of the basic Trades) 1 and Council Regulation (EEC) N o regulation. 404/93 of 13 February 1993 on the common organization of the market in bananas 2 (hereinafter 'the basic regulation') and on the validity of Commission Regulation (EC) N o 478/95 of 1 March 1995 on additional rules 3. It was in those circumstances that T. Port for the application of the basic regulation as applied for additional import licences by regards the tariff quota arrangements for way of interim relief. By interlocutory order imports of bananas into the Community and of 9 February 1995 the Hessischer Verwal- amending Regulation (EEC) N o 1442/93 3 tungsgerichtshof (Higher Administrative (hereinafter 'the GATT regulation'). Court) allowed its application and awarded T. Port additional licences; at the same time it referred a number of questions to the Court, which the Court answered in a judg- ment delivered on 26 November 1996, T. Proceedings before the national court and Port. 4 the questions referred for a preliminary rul- ing

Finanzgericht Hamburg referred a number Hamburg-Jonas claiming post-clearance pay- of questions to the Court for a preliminary ment, on the ground that in its view there ruling on the interpretation of the first para- was legitimate doubt as to the legality of the graph of Article 234 of the Treaty in con- decisions requiring post-clearance payment, junction with the GATT (Case C-182/95 T. since, according to the Finanzgericht Ham- Port v Hauptzottamt Hamburg-Jonas, here- burg, the basic regulation was incompatible inafter 'T. Port II'). The four orders were with the GATT provisions, which were annulled by the Bundesfinanzhof (Federal applicable in Germany. Pursuant to those Finance Court) by order of 22 August 1995. decisions, the enforcement of the decisions T. Port referred this decision to the Bundes- of the Hauptzollamt Hamburg-Jonas requir- verfassungsgericht (Federal Constitutional ing post-clearance payment of the customs Court), which has not yet given judgment. duty was suspended pending a ruling by the The proceedings before the Court in T. Port Court on the questions originally referred by II are stayed for the time being. the Finanzgericht Hamburg in T. Port II.

I-1027

OPINION OF MR ELMER — JOINED CASES C-364/95 AND C-365/95

(b) If so, is the first paragraph of Question 1 and question 2(b), on the inter- Article 234 of the E C Treaty to be pretation of the first paragraph of Article interpreted as meaning that the 234 of the Treaty application of Article XIII of GATT takes precedence over that regulation?

9. The first paragraph of Article 234 of the Treaty provides that the rights and obliga- tions arising from agreements concluded before the entry into force of the Treaty between one or more Members States on the one hand, and one or more third countries on the other, are not to be affected by the provisions of the Treaty.

3. In the event that questions 1 and 2(b) are answered in the affirmative: are Community citizens entitled to rely in proceedings before the courts of Mem- ber States of the Community on the precedence of the aforesaid GATT pro- 10. By its first question and part (b) of its visions as regards their application?' second question, the national court seeks to ascertain whether the first paragraph of Article 234 of the Treaty is to be interpreted as meaning that in the Federal Republic of Germany the GATT rules prevail over the provisions of the basic regulation or those of the GATT regulation.

8. Question 1 and question 2(b) both con- 11. The provisions of the basic regulation to cern the interpretation of the first paragraph which the national court refers are, first, of Article 234 of the Treaty in conjunction Article 17, which provides that the importa- with the various GATT provisions. I con- tion of bananas into the Community is to be sider it appropriate to deal with those ques- subject to the submission of an import tions together, before answering question licence. The next provision is Article 18, 2(a) on the validity of the GATT regulation which fixes an annual tariff quota of 2.1 mil- and then, if necessary, question 3 on the lion tonnes for 1994 and 2.2 million tonnes direct effect of the GATT rules. for 1995 for third-country bananas and

13. T. Port claims that, in accordance with the case-law of the Court, it is for the national court to ascertain to what extent 15. The Council, supported by the German, provisions of agreements concluded by the Spanish and French Governments and by the United Kingdom, further maintains that the Community has taken over the rights and 5 — Non-traditional ACP bananas mean bananas from the ACP obligations of the Member States arising countries (the countries of Africa, the Caribbean and the Pacific which have signed the Lomé Convention) imported from GATT and that it has exclusive compe- into the Community in excess of the traditional quantities tence for trade with non-member countries. indicated in an annex to the basic regulation. 6 — For further information on these international agreements The obligations arising from GATT there- and their ratification by the Community, see paragraphs 11 fore lie on the Community and no longer on to 18 of my Opinion of 24 June 1997 in Case C-122/95 Ger- many v Council [1998] ECR I-973, I-978. the individual Member States.

I-1029

O P I N I O N OF MR ELMER — JOINED CASES C-364/95 A N D C-365/95

Question 2(a), on the validity of the GATT 18. When the bananas were imported Ecua- regulation dor was therefore unable to assert any claim under either GATT 1947 or GATT 1994.

21. By part (a) of its second question the national court seeks to ascertain whether the 19. Thus in the case pending before the GATT regulation is rendered invalid in so national court it would be a purely theoreti- cal exercise to consider what would apply in

9 — The question of the relations between Community law and national law in connection with GATT 1947 has been much discussed by German writers; see Ernst-Ulrich Petersmann 7 — See the rules on entry into force in Article XIV of the WTO in Groeben, Thiesing, Ehlermann, Kommentar zum EWG- Agreement. Vertrag, fourth edition, Nomos Verlagsgesellschaft, Baden 8 — See Opinion 1/94 of the Court of 15 November 1994 [1994] Baden, pp. 5740 to 5753, with commentaries criticising the ECR I-5267, paragraph 34. Court's case-law.

I-1030

T. PORT v HAUPTZOLLAMT HAMBURG-JONAS

far as it breaches the prohibition on discrimi- tries and groups of countries in the context nation laid down in the second subparagraph of the framework agreement on bananas and of Article 40(3) of the Treaty and Article the GATT regulation was essentially based XIII of GATT, on the ground that the tariff on average imports of bananas from those quota is divided without taking account of countries during a reference period from previous imports. 1990 to 1992.

23. The Spanish and French Governments and the United Kingdom claim that no fac- tors of such a kind as to affect the validity of the GATT regulation have been disclosed. The French Government, in particular, 'Although Taiwan certainly appears to have claims that, according to the case-law of the been treated by the Commission less favour- Court, the fact that the division of quotas in ably than certain non-member countries, it the GATT regulation does not accurately should be remembered that there exists in reflect previous import flows is not contrary the Treaty no general principle obliging the to Article 40 of the Treaty. The division of Community, in its external relations, to quotas between the countries participating in accord to non-member countries equal treat- the framework agreement is not unconnected ment in all respects. It is thus not necessary with previous imports from those countries, to examine on what basis Faust might seek however. Moreover, the GATT regulation to rely upon the prohibition of discrimi- shares 46.5% of the tariff quota, or more nation between producers or consumers than one million tonnes, between countries within the Community contained in Article which are not members of the framework 40 of the Treaty. It needs merely to be agreement, including Ecuador, and therefore observed that, if different treatment of non- does not limit imports from those countries member countries is compatible with Com- to an unacceptable degree. The Spanish Gov- munity law, different treatment accorded to ernment places particular emphasis on the traders within the Community must also be fact that, in accordance with the case-law of regarded as compatible with Community the Court, the GATT is not to be taken into law, where that different treatment is merely consideration when determining the validity an automatic consequence of the different of a Community regulation. treatment accorded to non-member coun- tries with which such traders have entered into commercial relations' (paragraph 25).

27. Furthermore, the Court has established, in International Fruit Company and Oth- ers, 11 Schlüter, 12 SIOT 1 3 and SPI and 28. The W T O Agreement, and hence GATT SAMI, 14that Articles II, III, V, VI, VIII and 1994, were approved on behalf of the Euro- XI of GATT cannot be invoked before the pean Community by Council Decision national courts to support a challenge to the 94/800/EC of 22 December 1994 concerning validity of a measure of Community law. the conclusion on behalf of the Community, The Court reached that conclusion on the as regards matters within its competence, basis of considerations concerning the gen- of the agreements reached in the Uru- eral scheme of GATT, namely that it is was guay Round multilateral negotiations based on the principle of negotiations under- (1986-1994) 1 7 (hereinafter 'the GATT taken on a reciprocal and mutually advanta- decision'). The eleventh recital in the pre- geous basis and was characterised by the amble to that decision is worded as follows: flexibility of its provisions, in particular those concerning the possibilities of deroga- tion, the measures which might be taken in cases of exceptional difficulty and the settle- ment of differences between the contracting parties. 15 In my opinion the same apples to '... by its nature, the Agreement establishing the World Trade Organization, including the Annexes thereto, is not susceptible to being 11 — Joined Cases 21/72, 22/72, 23/72 and 24/72 International Fruit Company and Others v Produktscbap voor Groenten directly invoked in Community or Member en Fruü [1972] ECR 1219. State courts.' 12 — Caie 9/73 Schlüter v Haupaollamt Lörrach [1973] ECR 1135. 13 — Case 266/81 SIOT v Ministero delle Finanze [1983] ECR 731. 14 — Joined Cases 267/81, 268/81 and 269/81 Ammmstrazione 16 — Case C-469/93 Amministrazione delie Finanze delle Stato v delle Finanze dello Stato v SPI and SAMI [1983] ECR 801. Chiquita Italia [1995] ECR I-4533. 15 — See SPI and SAMI, atea above, paragraph 23. 17 — OJ 1994 L 336, p. 1.

18 — Cue C-280/93 Germany v Council [1994] ECR I-4973.

I - 1033

OPINION OF MR ELMER — JOINED CASES C-364/95 AND C-365/95

concluded during the Uruguay Round of multilateral trade negotiations, or Commission Regulation (EC) N o 478/95 of 1 March 1995 on additional rules for the application of the basic regulation as regards the tariff quota arrange- ments for imports of bananas into the Community and amending Regulation (EEC) N o 1442/93, in a case concerning imports of bananas from a third country which is not a party to an international agreement concluded by Member States before the entry into force of the Treaty.

(2) Examination of Regulation N o 478/95 in the light of the order for reference and of other points emerging from the documents before the Court has failed to disclose any factor of such a kind as to call in question the validity of that regulation.

I-1034