Keywords
Summary

Keywords

++++

1. International agreements ° GATT ° Whether individuals may rely on its provisions in order to challenge the application of conflicting national provisions ° Not possible

(General Agreement on Tariffs and Trade)

2. International agreements ° Fourth ACP-EEC Lomé Convention ° Whether individuals may rely on certain of its provisions in order to challenge the application of conflicting national provisions

(Fourth ACP-EEC Lomé Convention of 15 December 1989)

3. International agreements ° Fourth ACP-EEC Lomé Convention ° Provisions on commercial cooperation ° General trade arrangements ° Discriminatory internal taxation ° Not prohibited ° Increase of a pre-existing duty such as the Italian national consumption tax on fresh bananas ° Incompatibility with Protocol No 5 and the previous conventions ° Whether individuals may rely on them ° Conditions

(Fourth ACP-EEC Lomé Convention of 15 December 1989, Arts 169(1) and 177(2) and Protocol No 5; First, Second and Third ACP-EEC Lomé Conventions of 28 February 1975, 31 October 1979 and 8 December 1984)

Summary

1. The General Agreement on Tariffs and Trade does not contain provisions of such a nature as to confer rights on individuals which they could rely on before national courts in order to challenge the application of conflicting national provisions. The features of that agreement, which is characterized by the great flexibility of its provisions, in particular those concerning the possibility of derogation, the measures to be taken when confronted with exceptional difficulties and the settlement of conflicts between the contracting parties, preclude the creation of such rights.

2. The Fourth ACP-EEC Lomé Convention, like the ACP-EEC Conventions which preceded it and the Conventions of Association between the European Economic Community and the African States and Madagascar may contain provisions of such a nature as to confer rights on individuals which they may rely on before the national courts in order to challenge the application of conflicting national provisions. In that regard, the fact that those conventions are characterized by a quite appreciable imbalance in the level of obligations undertaken by the contracting parties, an imbalance which is inherent in their special nature, does not prevent recognition by the Community legal system that some of its provisions have direct effect.

3. The Fourth ACP-EEC Convention which contains no provisions expressly prohibiting discriminatory internal taxation, cannot be interpreted as nevertheless laying down such a prohibition in Article 177(2) thereof, which prohibits the use for protectionist purposes of means other than the safeguard measures which it authorizes, or in Article 169(1) thereof, which prohibits the application of quantitative restrictions or measures having equivalent effect. A systematic interpretation of the Convention shows that the contracting parties did not intend to regulate the treatment of internal taxation within the framework of the general trade arrangements put in place.

However, although the general arrangements do not preclude internal taxation on bananas originating in ACP States, such as the national consumption tax on fresh bananas established in the Italian legal system by Law No 986/64, the increases which could be made in that tax are precluded by Article 1 of Protocol No 5 on bananas annexed to the Fourth Convention. That article, which provides that no ACP State shall be placed, as regards access to its traditional markets and its advantages on those markets, in a situation less favourable than enjoyed prior to the entry into force of the Convention, incorporates into the Convention a stand-still clause and constitutes a special provision which, applying the principle lex specialis derogat generali, establishes legal arrangements different from those put in place for other products originating in the ACP States.

Since that article is worded in clear, precise and unconditional terms, with a parallel provision in the first three ACP-EEC Conventions, an economic operator may rely on the ACP-EEC Conventions in order to challenge the said increases, where they took place after 1 April 1976, the date on which the First ACP-EEC Convention entered into force, and their effect is to put those banana exports in a situation less favourable than before.