Keywords
Summary

Keywords

1 Actions for annulment - Time-limits - Point from which time starts to run - Date on which the measure came to the applicant's knowledge - Subsidiary criterion - Council decision approving an international agreement on behalf of the Community - Date of publication

(EC Treaty, Art. 173, fifth para.)

2 Actions for annulment - Actionable measures - Council decision approving an international agreement on behalf of the Community

(EC Treaty, Art. 173)

3 Actions for annulment - Actionable measures - Decision 94/800 concerning the conclusion of the Uruguay Round agreements - Action for annulment of the decision to a limited extent - Whether admissible

(EC Treaty, Art. 173; Council Regulation No 3290/94; Council Decision 94/800)

4 International agreements - World Trade Organisation - GATT 1994 - Framework Agreement on Bananas between the Community and certain third countries - Decision 94/800 - Division of tariff quota into national quotas - Discrimination - None - Right to property - Acquired rights - Freedom to pursue a trade or business - Principle of proportionality - Infringement - None - Introduction of an export licence system affecting only Category A and C operators - Breach of the principle of non-discrimination

(EC Treaty, Art. 40(3); General Agreement on Tariffs and Trade 1994; Council Regulation No 404/93; Council Decision 94/800)

Summary

5 It is clear from the wording of the fifth paragraph of Article 173 of the Treaty concerning the period prescribed for instituting proceedings that the criterion of the day on which the measure came to the knowledge of the applicant as the starting point of that period is subsidiary to the criteria of publication or notification of the measure.

Since it is consistent practice for Council measures embodying the conclusion of international agreements binding on the Community to be published in the Official Journal of the European Communities, a Member State which brings proceedings for the annulment of a decision approving such an agreement on behalf of the Community is, even though it had knowledge of that decision as soon as it was adopted, legitimately entitled to assume that the contested decision will be published in the Official Journal. Moreover, if such publication in fact took place less than two months after the adoption of the decision, it is the date of publication which marks the starting point of the period prescribed for instituting proceedings even if the text is published under the heading `Acts whose publication is not obligatory'.

6 The right of a Member State to bring an action for annulment of a Council decision concerning the conclusion of an international agreement and to apply for interim relief at that time is not undermined by the fact that that agreement was concluded by the Community without reservation and that it binds the institutions and the Member States in both Community law and international law.

7 An action for annulment of Decision 94/800 concerning the conclusion on behalf of the Community of the agreements reached in the Uruguay Round multilateral negotiations, to the extent to which the Council approved therein conclusion of the Framework Agreement on Bananas with certain third countries, is not rendered inadmissible by the fact that that framework agreement is only one of that set of agreements.

First, it does not appear that annulment of the decision at issue, only to the extent to which it records the conclusion of the Framework Agreement, would render inoperative other reciprocal commitments and concessions agreed upon in the Uruguay Round negotiations. Second, in the agricultural sector, those agreements were implemented internally, through Regulation No 3290/94, by means of separate adjustments to the various Community regulations on the common organisation of the agricultural markets, so that annulment of the contested decision, to the extent indicated above, would not be liable to affect the adjustments made to sectors other than that of bananas.

8 The regime established by the Framework Agreement on Bananas concluded by the Community and certain third countries, embodied in an annex to GATT 1994 which, in turn, constituted an annex to the agreement establishing the World Trade Organisation (which was approved on behalf of the Community by Decision 94/800), provides, in Point 2 of the Framework Agreement, that the tariff quota for imports of third-country and non-traditional ACP bananas is to be divided into specific shares allocated to different countries or groups of third countries, a given percentage being reserved to the contracting States to the Framework Agreement, and, in Point 6, that only operators in Categories A and C, to the exclusion of those in Category B (including operators who have marketed Community and/or traditional ACP bananas) are obliged to obtain export licences from the competent authorities of the contracting States in order to import bananas from those countries.

The division of the tariff quota into national quotas, which favours certain third countries and thus limits the opportunities of Category A and C operators to import bananas originating in other third countries, does not infringe the general principle of non-discrimination.

There is no general principle of Community law obliging the Community, in its external relations, to accord third countries equal treatment in all respects, and if different treatment of third countries is compatible with Community law, then different treatment accorded to traders within the Community must also be regarded as compatible with Community law, where that different treatment is merely an automatic consequence of the different treatment accorded to third countries with which such traders have entered into commercial relations. However, the restrictions on import opportunities which the introduction of country quotas is likely to entail for economic operators in Categories A and C are the automatic consequence of differences in the treatment afforded to third countries, depending on whether or not they are parties to the Framework Agreement and on the size of the quota allocated to them in that agreement.

Nor does the division into country quotas constitute a breach of fundamental rights or of general legal principles.

As regards the right to property, no operator can claim a right to property in a market share which he held before the adoption of the regime in question or claim an acquired right or a legitimate expectation that a situation existing before that time would be maintained. The restrictions on the right to import third-country bananas, resulting from the division of the tariff quota, are inherent in the objectives of general Community interest pursued by the establishment of a common organisation of the market in the bananas sector and therefore do not improperly impair the freedom of the operators affected to pursue their trade or business. As regards, finally, the principle of proportionality, it does not appear that the division of the global third-country quota into country quotas for some of those countries was manifestly inappropriate for achieving the objectives pursued, namely the marketing of Community and traditional ACP banana production and integration of the previously compartmentalised national markets.

As regards, on the other hand, the difference in treatment consisting in the exemption of Category B operators from the export-licence system, as a result of which only Category A and C operators have to pay a price for bananas from the third countries concerned which is some 33% higher, that difference in treatment is incompatible with the prohibition of discrimination laid down in the second subparagraph of Article 40(3) of the Treaty, which is merely a specific enunciation of the general principle of equality, one of the fundamental principles of Community law. Decision 94/800 must therefore be annulled in so far as the Framework Agreement exempts Category B operators from the export-licence system for which it provides.

Admittedly, the common organisation of the market in bananas, as established by Regulation No 404/93, and in particular the system of tariff-quota allocation, involves certain restrictions or differences in treatment detrimental to Category A and C operators which are not contrary to the general principle of non-discrimination in so far as they are inherent in the objective of integrating previously compartmentalised markets, bearing in mind the different situations of the various categories of economic operators before the establishment of the common organisation of the market. It is also true that pursuit of the objective of common organisation, which is to guarantee disposal of Community production and traditional ACP production, entails striking a balance between the various categories of economic operators in question.

However, it has not been shown that that balance, in so far as it has been disturbed by the quota increase and the concomitant lowering of customs duties provided for in the Framework Agreement, which also benefit Category B operators, could be restored only by granting a substantial advantage to that same category of operators and, thus, at the cost of introducing a new difference in treatment detrimental to the other categories of operators who had already, when the tariff quota and the machinery for dividing it up were introduced, been subjected to similar restrictions and differences in treatment.

Moreover, the introduction of the export-licence system is intended not only to reestablish that balance but also to provide financial aid for the third countries party to the Framework Agreement and thereby to offset the limitations which Regulation No 404/93 imposed on the marketing of bananas from those countries in favour of Community and ACP bananas. However, it is not evident that the increase in the tariff quota and its division into country quotas, together with the concomitant reduction of customs duties, were not sufficient to offset those limitations and that that objective therefore had to be achieved by the imposition of a financial burden on only some of the economic operators importing bananas from those countries.