61999O0307

1. Preliminary rulings - Question to which the answer may be clearly deduced from the Court's existing case-law - Application of Article 104(3) of the Rules of Procedure

(Rules of Procedure of the Court of Justice, Art. 104(3))

2. International agreements - Agreement establishing the World Trade Organisation - GATT 1994 - Direct effect - None - Not possible to rely on the WTO agreements to contest the lawfulness of a Community act

(EC Treaty, Art. 234, first para. (now, after amendment, Art. 307 EC, first para.); General Agreement on Tariffs and Trade 1994; Council Decision 94/800)

In Case C-307/99,

REFERENCE to the Court under Article 234 EC by the Finanzgericht Hamburg, Germany, for a preliminary ruling in the proceedings pending before that court between

OGT Fruchthandelsgesellschaft mbH

and

Hauptzollamt Hamburg-St. Annen,

on the interpretation of Articles I and XIII of the General Agreement on Tariffs and Trade 1994, in Annex 1A to the Agreement establishing the World Trade Organisation, approved on behalf of the European Community, as regards matters within its competence, by Council Decision 94/800/EC of 22 December 1994 (OJ 1994 L 336, p. 1),

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, C. Gulmann, A. La Pergola, M. Wathelet and V. Skouris (Presidents of Chambers), D.A.O. Edward, J.-P. Puissochet, P. Jann, L. Sevón, R. Schintgen (Rapporteur), F. Macken, N. Colneric, S. von Bahr, J.N. Cunha Rodrigues and C.W.A. Timmermans, Judges,

Advocate General: A. Tizzano,

Registrar: R. Grass,

after informing the referring court of its intention to give its decision by reasoned order in accordance with Article 104(3) of the Rules of Procedure,

after inviting the persons referred to in Article 20 of the EC Statute of the Court of Justice to submit observations,

after hearing the Opinion of the Advocate General,

makes the following

Order

1 By order of 15 July 1999, received at the Court on 13 August 1999, the Finanzgericht (Finance Court) Hamburg referred to the Court for a preliminary ruling under Article 234 EC a question on the interpretation of Articles I and XIII of the General Agreement on Tariffs and Trade 1994 (GATT 1994), in Annex 1A to the Agreement establishing the World Trade Organisation (the WTO Agreement), approved on behalf of the European Community, as regards matters within its competence, by Council Decision 94/800/EC of 22 December 1994 (OJ 1994 L 336, p. 1).

2 That question arose in proceedings between OGT Fruchthandelsgesellschaft mbH (OGT), a traditional importer of bananas from third countries, and Hauptzollamt (Principal Customs Office) Hamburg-St. Annen (the Hauptzollamt) concerning levying of customs duty on the importation of bananas from Ecuador.

Legal background

3 Council Regulation (EEC) No 404/93 of 13 February 1993 on the common organisation of the market in bananas (OJ 1993 L 47, p. 1), Title IV, substituted a common system of trade with third countries for the previous national systems.

4 Regulation No 404/93 entered into force, in accordance with Article 33, on 26 February 1993 and applied from 1 July 1993.

5 Under the first indent of Article 1(1) of Decision 94/800, the Council approved on behalf of the Community, with regard to that portion of them which falls within the competence of the Community, the WTO Agreement together with the agreements in Annexes 1, 2 and 3 to that agreement, including GATT 1994.

6 Under Article II(2) of the WTO Agreement:

The agreements and associated legal instruments included in Annexes 1, 2 and 3 ... are integral parts of this Agreement, binding on all Members.

7 Article II(4) of the WTO Agreement provides:

The General Agreement on Tariffs and Trade 1994 as specified in Annex 1A (hereinafter referred to as "GATT 1994") is legally distinct from the General Agreement on Tariffs and Trade, dated 30 October 1947, annexed to the Final Act Adopted at the Conclusion of the Second Session of the Preparatory Committee of the United Nations Conference on Trade and Employment, as subsequently rectified, amended or modified (hereinafter referred to as "GATT 1947").

8 In a report dated 8 September 1997, the standing Appellate Body provided for in Article 17 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (the Understanding) in Annex 2 to the WTO Agreement found that certain features of the system of trade with third countries established by Regulation No 404/93 were incompatible with the most-favoured-nation clause in Article I(1) of GATT 1994 and with the principle of non-discrimination in Article XIII thereof.

9 Following that report, Title IV of Regulation No 404/93 was amended by Council Regulation (EC) No 1637/98 of 20 July 1998 (OJ 1998 L 210, p. 28). Articles 16 and 18, as so amended, now provide as follows:

Article 16

Articles 16 to 20 of this Title shall apply only to fresh products of CN code ex 0803 00 19.

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 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 the ACP States; these are termed "third State bananas".

Article 18

1. A tariff quota of 2 200 000 tonnes (net weight) shall be opened each year for imports of third State and non-traditional ACP bananas.

Imports of third State bananas under the tariff quota shall be subject to duty of ECU 75 per tonne, while imports of non-traditional ACP bananas shall be free of duty.

...

3. No duty shall be payable on imports of traditional ACP bananas.

...

10 The annex referred to in Article 16(1) of Regulation No 404/93, which was likewise amended by Regulation No 1637/98, contains a list of 12 States supplying traditional ACP bananas for which an annual quota of 857 000 tonnes (net weight) is reserved, no individual maximum quantities being allocated to those States.

11 Regulation No 1637/98 entered into force, in accordance with Article 2, on 31 July 1998 and applied from 1 January 1999.

12 A panel set up at the request of Ecuador pursuant to Article 21(5) of the Understanding found, in a report dated 12 April 1999, that the new system of trade with third countries under Regulation No 1637/98 continued to infringe Articles I(1) and XIII of GATT 1994.

13 The WTO Agreement entered into force on 1 January 1995. Ecuador, which was not a contracting party to GATT 1947, has been a member of the WTO since 21 January 1996.

The main proceedings and the question referred for a preliminary ruling

14 In the context of the quota provided for in Article 18(1) of Regulation No 404/93, as amended by Regulation No 1637/98, OGT in January 1999 imported 43.01 tonnes of fresh bananas from Ecuador.

15 With a view to their release into free circulation, the Hauptzollamt, applying customs duty on importation of EUR 75 per tonne, by a notice of assessment of 5 February 1999 fixed the amount of duty owed by OGT at DEM 6 309.02. OGT paid that sum.

16 By letters of 3 and 18 March 1999, OGT lodged an objection against that assessment, and applied at the same time for immediate enforcement to be suspended.

17 The Hauptzollamt rejected the application for suspension of enforcement, without ruling on the substance of the objection.

18 In those circumstances, OGT brought proceedings in the Finanzgericht Hamburg for suspension of enforcement of the contested assessment pending a final decision of the Hauptzollamt on the substance of the objection.

19 Since it regarded as material the panel's conclusions in its report of 12 April 1999 as to the incompatibility of the common organisation of the market in bananas, as amended, with Articles I and XIII of GATT 1994, the Finanzgericht Hamburg considered that that illegality might, subject to the direct effect of those provisions, entail the inapplicability of the second subparagraph of Article 18(1) of Regulation No 404/93, as amended by Regulation No 1637/98.

20 According to the Finanzgericht Hamburg, such inapplicability might follow either from the primacy and direct effect of GATT, which could in the present case derive as from 21 January 1996, the date of Ecuador's accession to GATT 1994, from the first paragraph of Article 234 of the EC Treaty (now, after amendment, the first paragraph of Article 307 EC), or from the general direct effect which GATT might have acquired from 1 January 1995, the date of the entry into force of the WTO Agreement and the Understanding.

21 The Finanzgericht Hamburg therefore stayed proceedings and referred the following question to the Court for a preliminary ruling:

Is the second subparagraph of Article 18(1) of Regulation (EEC) No 404/93, as amended by Regulation (EC) No 1637/98, inapplicable on the ground of breach of Articles I and XIII of GATT (1994), individuals being able to rely thereon in court proceedings?

Findings of the Court

22 By its question the Finanzgericht is essentially asking whether Articles I and XIII of GATT 1994 are such as to create rights which individuals may rely on directly before a national court in order to oppose the application of the second subparagraph of Article 18(1) of Regulation No 404/93, as amended by Regulation No 1637/98.

23 The answer to that question may be clearly deduced from existing case-law, so that it is appropriate for the Court, in accordance with Article 104(3) of the Rules of Procedure, to give its decision by reasoned order.

24 The Court has already held, first, in Case C-149/96 Portugal v Council [1999] ECR I-8395, paragraph 47, that, having regard to their nature and structure, the WTO Agreement and the agreements and understandings annexed to it are not in principle among the rules in the light of which the Court is to review the legality of measures adopted by the Community institutions, pursuant to the first paragraph of Article 230 EC.

25 Second, in Joined Cases C-300/98 and C-392/98 Dior and Others [2000] ECR I-11307, paragraph 44, the Court held that, for the same reasons as those set out in paragraphs 42 to 46 of the judgment in Portugal v Council, the provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights, in Annex 1C to the WTO Agreement, are not such as to create rights on which individuals may rely directly before the courts by virtue of Community law.

26 It follows that the same must apply, for the same reasons, to the provisions of GATT 1994.

27 It is true that, as the Court confirmed in paragraph 49 of Portugal v Council, it also follows from the Court's case-law that where the Community intended to implement a particular obligation assumed in the context of GATT, or where the Community measure refers expressly to precise provisions of GATT, it is for the Court to review the legality of the Community measure in question in the light of the GATT rules (see Case 70/87 Fediol v Commission [1989] ECR 1781, paragraphs 19 to 22, and Case C-69/89 Nakajima v Council [1991] ECR I-2069, paragraph 31).

28 However, contrary to OGT's assertions, no such exceptional situation exists in the present case. The common organisation of the market in bananas, as introduced by Regulation No 404/93 and subsequently amended, is not designed to ensure the implementation in the Community legal order of a particular obligation assumed in the context of GATT, nor does it refer expressly to specific provisions of GATT.

29 Moreover, even on the assumption that the first paragraph of Article 234 of the Treaty is applicable to GATT 1994 despite the fact that GATT 1994 is legally distinct from GATT 1947 under Article II(4) of the WTO Agreement, differs significantly from the provisions of GATT 1947 (see Portugal v Council, paragraph 36) and was concluded and approved by the Community by virtue of its exclusive competence (see Opinion 1/94 [1994] ECR I-5267, point 1 of the operative part), no direct effect of the provisions of GATT 1994 can be derived from the first paragraph of Article 234 of the Treaty.

30 It follows from the Court's case-law that the first paragraph of Article 234 of the Treaty does not in itself have the effect of conferring on individuals who rely on an agreement concluded prior to the entry into force of the Treaty rights which the national courts of the Member States must protect (Case 812/79 Burgoa [1980] ECR 2787, paragraphs 10 and 11).

31 The answer to the question referred must therefore be that Articles I and XIII of GATT 1994 are not such as to create rights which individuals may rely on directly before a national court in order to oppose the application of the second subparagraph of Article 18(1) of Regulation No 404/93, as amended by Regulation No 1637/98.

Costs

32 The costs incurred by the German and French Governments and by the Council and Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT

in answer to the question referred to it by the Finanzgericht Hamburg by order of 15 July 1999, hereby rules:

Articles I and XIII of the General Agreement on Tariffs and Trade 1994, in Annex 1A to the Agreement establishing the World Trade Organisation, approved on behalf of the European Community, as regards matters within its competence, by Council Decision 94/800/EC of 22 December 1994, are not such as to create rights which individuals may rely on directly before a national court in order to oppose the application of the second subparagraph of Article 18(1) of Council Regulation (EEC) No 404/93 of 13 February 1993 on the common organisation of the market in bananas, as amended by Council Regulation (EC) No 1637/98 of 20 July 1998.