Conclusions
OPINION OF ADVOCATE GENERAL
TIZZANO
delivered on 18 November 2004(1)
Case C-377/02
NV Firma Leon Van Parys
v
Belgisch Interventie- an Restitutiebureau
(Reference for a preliminary ruling from the Raad van State (Belgium))
(Common organisation of the market in bananas – EEC-Andean Pact Agreement – WTO – GATT 1994 – Articles I and XIII – Direct effect – Dispute Settlement Body (DSB) – Recommendations and decisions – Legal effects – Plea of particular obligation – Conditions)
Table of contents
| A – The relevant international agreements |
|
| B – The relevant Community provisions |
|
| A – The first, third and fourth questions |
|
| 2. The Community case-law on the effect of the WTO rules |
|
| a) The judgment in Portugal v Council |
|
| b) The judgment in Netherlands v Parliament and Council |
|
| 3. The problem of the effect of DSB decisions |
|
| b) The Biret case. Introduction |
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| c) Advocate General Alber’s Opinion |
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| d) The judgment of the Court |
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| e) Application to the present case |
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| 4. The question of ‘particular situations’. The ‘plea of particular obligation’ |
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| e) Concluding considerations |
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1.
In the present case, the Belgian Raad van State (Council of State) is seeking a further ruling from the Court on the compatibility
of the Community provisions on the importation of bananas with the Community’s obligations as a member of the World Trade
Organisation (hereinafter the ‘WTO’). The peculiar feature of the present case is that the Community provisions in question,
introduced after the WTO Dispute Settlement Body (hereinafter the ‘DSB’) had found that the previous regime was inconsistent
with the WTO rules, were themselves declared to be inconsistent with those rules by the same body.
I – Legal framework
A –
The relevant international agreements
2.
The first legal instrument to be considered for the purposes of the present case is the
General Agreement on Tariffs and Trade
(hereinafter ‘GATT’). It comprises Annex 1A to the Agreement establishing the WTO, which was approved on behalf of the Community
with regard to that portion which falls within its competence by Council
Decision 94/800/EC of 22 December 1994.
(2)
3.
Article I:1 of GATT establishes the principle of general most-favoured-nation treatment. It provides in particular that ‘[w]ith
respect to customs duties and charges of any kind imposed on or in connection with importation or exportation or imposed on
the international transfer of payments for imports or exports, … any advantage, favour, privilege or immunity, granted by
any contracting party to any product originating in or destined for any other country shall be accorded immediately and unconditionally
to the like product originating in or destined for the territories of all other contracting parties …’.
(3)
4.
Article XIII on the non-discriminatory administration of quantitative restrictions establishes that:
‘1. No prohibition or restriction shall be applied by any contracting party on the importation of any product into of the
territory of any other contracting party … unless the importation of the like product of all third countries … is similarly
prohibited or restricted.
2. In applying import restrictions to any product, contracting parties shall aim at a distribution of trade in such product
approaching as closely as possible the shares which the various contracting parties might be expected to obtain in the absence
of such restrictions and to this end shall observe the following provisions:
(a)
wherever practicable, quotas representing the total amount of permitted imports (whether allocated among supplying countries
or not) shall be fixed …;
(b)
in cases where quotas are not practicable, the restrictions may be applied by means of import licences or permits without
a quota;
(c)
contracting parties shall not, except for purposes of operating quotas allocated in accordance with subparagraph (d) of this
paragraph, require that import licences or permits be utilised for the importation of the product concerned from a particular
country or source;
(d)
in cases in which a quota is allocated among supplying countries, the contracting party applying the restrictions may seek
agreement with respect to the allocation of shares in the quota with all other contracting parties having a substantial interest
in supplying the product concerned. In cases in which this method is not reasonably practicable, the contracting party concerned
shall allot to contracting parties having a substantial interest in supplying the product shares based upon the proportions,
supplied by such contracting parties during a previous representative period, of the total quantity or value of imports of
the product, due account being taken of any special factors which may have affected or may be affecting the trade in the product
… .
5.
The provisions of this Article shall apply to any tariff quota instituted or maintained by any contracting party …’.
(4)
5.
In addition to GATT, mention should also be made of the Framework Agreement on Cooperation between the European Economic Community
and the Cartagena Group and its member countries
(5)
, signed at Copenhagen on 23 April 1993 (hereinafter the ‘EEC-Andean Pact Agreement’) and approved on behalf of the Community
by Council
Decision 98/278/EC of 7 April 1998.
(6)
6.
The provision that is relevant to the present case is contained in Article 4 of that agreement, which reads:
‘The Contracting Parties hereby grant each other most-favoured-nation treatment in trade, in accordance with the General Agreement
on Tariffs and Trade (GATT).
Both Parties reaffirm their will to conduct trade with each other in accordance with that Agreement’.
7.
As we shall see, the Understanding on Rules and Procedures Governing the Settlement of Disputes (the Dispute Settlement Understanding,
hereinafter the ‘DSU’),
(7)
is also relevant for present purposes and I shall return to this later (see point 46 et seq. below).
B –
The relevant Community provisions
8.
Turning to the Community provisions, I note first that by Council
Regulation (EEC) No 404/93 of 13 February 1993 on the common
organisation of the market in bananas
(8)
(hereinafter ‘Regulation No 404/93’), the Community established a common regime for trade with third countries which replaced
the various preceding national regimes. That regime was the subject of dispute settlement proceedings in the context of the
WTO after complaints had been lodged by some third countries. By decision of 25 September 1997, the DSB adopted a report of
the WTO Appellate Body which found that the regime was inconsistent with Article I:1 and Article XIII of GATT.
(9)
9.
Following that decision, the Council adopted
Regulation (EC) No 1637/98 of 20 July 1998 amending
Regulation No 404/93 (hereinafter
‘Regulation No 1637/98’).
(10)
In accordance with Article 2 of that regulation, the new regime (hereinafter ‘Regulation No 404/93 as amended’) applied from
1 January 1999.
10.
Regulation No 404/93 as amended preserved the distinction made in the preceding regime between three different categories
of banana for import purposes. In particular, Article 16 provides that:
‘For the purposes of this title:
- (1)
- “traditional imports from ACP States” means imports into the Community of bananas originating in the States listed in the
Annex hereto
(11)
up to a limit of 857 700 tonnes (net weight) per year; these are termed “traditional ACP bananas”;
- (2)
- “non-traditional imports from ACP States” means imports into the Community of bananas originating in ACP States but not covered
by definition (1); these are termed “non-traditional ACP bananas”;
- (3)
- “imports from non-ACP third States” means bananas imported into the Community originating in third States other than ACP States;
these are termed “third State bananas”’.
11.
Article 17 provides that ‘[a]ll importation of bananas into the Community shall be subject to submission of an import licence
issued by Member States to any interested party … without prejudice to specific provisions adopted for the application of
Articles 18 and 19’.
12.
Article 18(1) to (3) provides that a tariff quota of 2 200 000 tonnes (net weight) and an additional tariff quota of 353 000
tonnes (net weight) shall be opened for imports of third State and of non-traditional ACP bananas. Imports of third State
bananas under those tariff quotas shall be subject to duty of ECU 75 per tonne, while imports of non-traditional ACP bananas
shall be free of duty. And no duty shall be payable on imports of traditional ACP bananas.
13.
Article 18(4) adds that, should there be no reasonable possibility of securing agreement of all WTO contracting parties with
a substantial interest in the supply of bananas, the Commission may allocate the abovementioned tariff quotas and the traditional
ACP quantity between those States with a substantial interest in the supply.
14.
Article 19 provides that imports shall be managed in accordance with...
