C-369/95

SOMALFRUTľ AND CAMAR v MINISTERO DELLE FINANZE AND MINISTERO DEL COMMERCIO CON L'ESTERO

OPINION OF ADVOCATE GENERAL ELMER delivered o n 26 J u n e 1997

1. In this case the Tribunale di Salerno, Italy, of customs duties and charges having equiva­ has referred to the Court for a preliminary lent effect. ruling various questions concerning the valid­ ity of Council Regulation (EEC) N o 404/93 of 13 February 1993 on the common organi­ zation of the market in bananas ' ('the basic regulation'), Commission Regulation (EEC) N o 1442/93 of 10 June 1993 laying down 2. (a) Products originating in the ACP detailed rules for the application of the States: arrangements for importing bananas into the Community 2 ('the implementing regulation') and Commission Regulation (EEC) N o 1443/93 of 10 June 1993 on transitional mea­ sures for the application of the arrangements — listed in Annex II to the Treaty where for importing bananas into the Community they come under a common organization in 1993 3 ('the transitional regulation'). The of the market within the meaning of questions are raised with reference inter alia Article 40 of the Treaty, to the Fourth Lomé Convention of 15 December 1989 4 ('the Lomé Convention') and Protocol 5 thereto ('Protocol 5').

Relevant Community provisions

2. Article 168 of the Lomé Convention pro­ vides as follows: shall be imported into the Community, not­ withstanding the general arrangements ' 1 . Products originating in the ACP States 5 applied in respect of third countries, in shall be imported into the Community free accordance •with the following provisions:

3. Protocol 5 lays down in Article 1, that '[i]n respect of its banana exports to the Community markets, no A C P State shall be placed, as regards access to its traditional 6. Article 18(1) of the basic regulation lays markets and its advantages on those markets, down a tariff quota of 2.1 million tonnes for in a less favourable situation than in the past 1994 and 2.2 million tonnes for 1995 for or at present'. third-country bananas and non-traditional A C P bananas 7 and provides that within the framework of the tariff quota imports of third-country bananas are to be subject to a levy of E C U 75 and imports of non- traditional ACP bananas are to be subject to 4. The Joint Declaration relating to Protocol a zero duty; apart from the quota, imports of 5. which forms Annex LXXIV to the Lomé third-country bananas and non-traditional Convention ('the Joint Declaration'), states:

6 — Derogations may be granted under the committee procedure laid down in Article 27 of the basic regulation. That did not, however, occur in this case. 7 — By non-traditional ACP bananas is meant quantities of '... Article 1 of Protocol 5 does not prevent bananas from ACP countries imported into the Community the Community from establishing common which exceed the quantity defined in the annex to the basic regulation. For Somalia a traditional quantity of 60 000 rules for bananas, in full consultation with tonnes was set.

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SOMAĽERUrr AND CAMAR v MINISTERO DELLE FINANZE AND MINISTERO DEL COMMERCIO CON L'ESTERO

ACP bananas are to be subject to a levy of 2. The term of validity of import licences ECU 850 and E C U 750 per tonne respec­ shall expire on the seventh day of the fourth tively. month following the month of issue.

OPINION OF MR ELMER — CASE C-369/95

10. Somalfruit and Camar thereupon applied bananas and bananas in excess of the for an emergency order to the Tribunale di quota set for that purpose and thus Salerno, which concluded that the imports imposes quantitative restrictions; were of non-traditional A C P bananas out- side the tariff quota of 2.1 million tonnes, so that the rejection of the application for an import licence was lawful. In the circum- stances the Tribunale di Salerno ordered the local customs office to clear the consignment (b) imposes the requirement to obtain an and release the bananas for free circulation import document and to lodge a security against payment of E C U 750 per tonne or of for that purpose — a document which is security guaranteeing payment of the equiva- not purely for statistical purposes and is lent amount. subject to conditions that are onerous and difficult to satisfy;

11. Camar and Somalfruit brought an action (c) imposes a customs duty of E C U 750 per against the Italian Ministry of Finance and tonne for bananas in excess of the tariff Ministry of Foreign Trade challenging the quota? legality of the rejection of the application for an import licence and claiming .compensa- tion. By an order of 12 October 1995, the Tribunale di Salerno decided to stay proceed- ings and refer the following questions to the Court of Justice for a preliminary ruling:

2. Should those parts of [the implementing regulation] and [the transitional regulation], as amended and supplemented by later regu- lations, which limit, reduce or restrict unnec- essarily and in a disproportionate manner in ' 1 . Should that part of [the basic regulation] relation to the objective pursued the right of which limits the right to import Somali access of Somali bananas, as guaranteed by bananas — the so-called right of access, as the Convention referred to in Question 1 recognized by [the Lomé Convention], Pro- and by [the basic regulation], be considered tocol 5 thereto and [the Joint Declaration] — valid, in particular inasmuch as they: be considered valid, in particular inasmuch as it:

15. Somalia has not ratified the Lomé Con- vention. The precondition for the Commu- nity's commitment under the Lomé Conven- tion inter alia to give favourable treatment to certain products from Somalia must, I con- 12. By its first question and the first limb of sider, be assumed to have been that Somalia the second question, the national court should ratify the Convention and thereby essentially seeks to ascertain whether the undertake the obligations which are the cor- basic regulation and the implementing regu- ollary of and the consideration for the rights lation are invalid because they conflict with thereunder. That precondition did not, how- the Lomé Convention. ever, materialize.

13. The French Government, the Council 16. The Court was informed that on 28 June and the Commission pointed out that Soma- 1996 the ACP-EU Council of Ministers

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OPINION OF MR ELMER — CASE C-369/95

adopted the following conclusions concern- with the Lomé Convention is not in my ing Somalia: view tenable. The fact that the Community unilaterally, de facto and politically, treats Somalia favourably cannot imply that it has any obligation towards Somalia since that is purely unilateral favourable treatment on the part of the Community. 'The ACP-EU Council of Ministers

1. confirms the political accession of Somalia to the Lomé Convention, despite the fact that Somalia has not been able to ratify the Convention for reasons beyond its control; 18. Nor, in my view, has any evidence come to light to support the claim that by way of customary law Somalia has become a party to the Convention. That would presuppose that Somalia, for its part, by conduct satisfy- ing the strict requirements attaching to cus- tom in international law, had undertaken to » meet the obligations arising under the Con- vention which are the corollary to and con- sideration for obtaining rights thereunder. According to the evidence there is no basis, however, for such an assumption.

20. As a result of the hypothetical nature of whether the implementing regulation or the that limb of the questions, consideration transitional regulation are invalid as contrary might be given to the question whether the to the basic regulation. Court should decline to reply thereto on the ground that its lacks jurisdiction to do so. In that connection it must, however, be remem- bered that the preliminary-ruling procedure is based on cooperation between the Court of Justice and the national courts and is aimed at producing a reply which will be useful in deciding the case before the national court. I consider it most appropriate for the Court to give the national court a 23. I would point out that the transitional reply stating clearly that the Lomé Conven- regulation lays down transitional measures tion has no relevance for the present case. for the application of the arrangements for importing bananas into the Community in 1993. The transitional regulation is therefore irrelevant as far as the case before the national court is concerned, which concerns imports of bananas in the last quarter of 1994. In so far as it concerns that regulation, the question is therefore hypothetical as 21. In the light of the foregoing I would regards the case before the national court propose that the Court reply to the first and should not, therefore, be answered. question and to the first limb of the second question, concerning the compatibility of the implementing regulation with the Lomé Convention, to the effect that in a case con- cerning the charging of duty on bananas imported from a country which has not rati- fied the Fourth Lomé Convention no ques- tion arises as to whether the basic regulation and the implementing regulation are invalid as contrary to the provisions of the Conven- 24. Camar and Somalfruit stated that Article tion. 14(2) of the implementing regulation should be interpreted to the effect that failing t o meet the deadline should not prevent opera- tors from seeking a licence for the import of bananas from an ACP country provided the quota of traditional ACP bananas for the Relationship to the basic regulation country in question has not been exhausted. An interpretation to the contrary effect would conflict with the principle of propor- tionality, Article 17 of the basic regulation and Article 16(3) of the implementing regu- lation, according to which non-traditional ACP bananas are bananas imported after 22. By the second limb of the second ques- import licences have been issued for all the tion, the national court wishes to ascertain traditional import quantities. In the case

26. Under Article 14(2) of the implementing regulation, import licence applications for 28. A time-limit for the submission of appli- traditional A C P bananas are to be lodged cations for import licences is necessary for during the first week of the last month of several reasons. First, the Commission must each quarter. Within two days following the carry out a number of calculations, including closing date, the national authorities are t o the setting of a single percentage to reduce notify the Commission of the quantities cov- the quantities allocated where applications ered by licence applications, and the Com- for a particular A C P country relate to an mission is to determine forthwith the quanti- overall quantity that exceeds the country's ties for which licences may be issued (Article traditional quantities. Those calculations can 16(1)). If applications for import licences for only be made if an overview can be obtained, bananas from an A C P country relate to a by way of a time-limit, as to the size of the quantity larger than the traditional quantity quantities in respect of which import licences for that country, the Commission is to set a have been applied for. Secondly, a time-limit single percentage to be applied to all licence enables the administrative procedures to be applications concerning bananas from that concluded and licences issued before the country to reduce the quantities allocated. beginning of the quarter to which the Where import licences are issued for all the licences relate. traditional quantities from the same country of origin, the Commission is to notify the Member States and operators that any fur- ther imports from that country during the year in question are to be considered non- traditional. The licences are to be issued not later than the 21st day of the same month 29. Traditional quantities that have not been (Article 17(1) of the implementing regu- used up in the first, second or third quarter lation) and their term of validity is to expire are transferred to the following quarterns) in

32. Contrary to what was stated in the ques- tions submitted by the national court, it is not the implementing regulation but rather the basic regulation which lays down in 30. Nor, in my view, can the rules on time- Article 17(2) that the issue of licences is to be limits in the implementing regulation be subject to the provision of security. The interpreted to the effect that the time-limit question does not therefore arise as to for applications is waived in cases where the whether the implementing regulation is con- traditional quantity has not been used up by trary to the basic regulation on that point. the applications that have been submitted in time. First, there is nothing in the text of the implementing regulation to suggest anything of the sort. Secondly, such an interpretation would on the one hand make it necessary to set a further time-limit for the submission of applications for a share of the traditional 33. I would accordingly propose that the quantity of bananas from the country in Court answer the second question to the question that has not been used up by effect that consideration of the implementing import licences allocated on the basis of the regulation in the light of the order for refer- applications submitted in time, inter alia for ence and the information otherwise pro- the purpose of setting a single percentage to duced in the case has revealed no factor of reduce the quantities allocated where appli- such a kind as to cast doubt on that regula- cations are made for larger quantities than tion's validity.

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