1.

The Community's strategy for the conduct of the Uruguay Round negotiations was laid down in a communication from the Commission to the Council entitled Overall Approach', approved by the Council on 16 and 17 June 1986.

2.

As regards agriculture, the Commission was instructed to

...

...

3.

In the Punta del Este Declaration of 20 September 1986, adopted with a view to the Uruguay Round negotiations, the GATT contracting parties declared that they wished to

‘achieve greater liberalization of trade in agriculture and bring all measures affecting import access and export competition under strengthened and more operationally effective GATT rules and disciplines ...’.

In the same declaration, the contracting parties agreed to respect the status quo as regards the creation of new barriers to international trade and acknowledged that the negotiations would aim to reduce or eliminate non-tariff measures, in particular quantitative restrictions.

4.

On the same day, on the recommendation of the Commission, the Council approved that declaration and authorized the Commission to open the negotiations provided for within the framework of the directives issued by the Council.

5.

Under Title IV, ‘Trade with third countries’, of Council Regulation (EEC) No 404/93 of 13 February 1993 on the common organization of the market in bananas (OJ 1993 L 47, p. 1), the 20% customs duty bound within the framework of GATT was to be replaced by a system of import quotas subject to fixed-rate levies.

6.

On 19 February 1993, Colombia, Costa Rica, Guatemala, Nicaragua and Venezuela asked the Community to open consultations under Article XXII: 1 of GATT, in the light of Regulation No 404/93. As those consultations did not result in a satisfactory solution, the Latin American States in question initiated in April 1993 the dispute settlement procedure provided for in Article XXIII: 2 of GATT.

7.

On 22 March 1993, in the framework of the Uruguay Round negotiations, the Commission submitted in the name of the Community a proposal relating to banana imports which reproduced the provisions on trade with third countries of Regulation No 404/93.

8.

On 3 June 1993, prior to the entry into force of Regulation No 404/93 on 1 July 1993, the Commission submitted to the Council a draft recommendation for a Council decision authorizing the Commission to begin negotiations under Article XXVIII: 5 of GATT on the compensation to be offered by the Community to certain GATT contracting parties in exchange for the abolition of the 20% bound import duty on bananas.

9.

On 18 and 19 October 1993, following that recommendation, the Council authorized the Commission to open negotiations, specifying that they were to be conducted on the basis of existing GATT rules, that compensation was to be provided to GATT members in accordance with GATT rules and that the negotiations were not to undermine Regulation No 404/93.

10.

On 14 December 1993, the day before the deadline for the close of the Uruguay Round negotiations, the Commission communicated its ‘final’ proposals concerning, inter alia, banana imports to the Director General of GATT. Those proposals had been approved by the Council at a meeting on 13 December 1993.

11.

The proposals relating to bananas were based on the Community's most recent offers to the Latin American countries in the framework of the negotiations under Article XXVIII: 5 of GATT.

12.

The communication to GATT specified:

‘[...] the offer on bananas [...] is dependent upon agreement being reached with the Latin American supplying countries members of GATT [...] If this turns out not to be the case, the European Communities' offer will be as set out in its [previous] communication [...] on 22 March 1993.’

13.

On 18 January 1994, the panel set up under the dispute settlement procedure presented a report in which it found that certain of the provisions of Regulation No 404/93 were inconsistent with the GATT rules. That report was not adopted by all the contracting parties.

14.

By judgment of 5 October 1994 in Case C-280/93 Germany v Council [1994] ECR I-4973, the Court of Justice dismissed an application by the Federal Republic of Germany for the annulment of Regulation No 404/93. The Court held that the applicant could not invoke the provisions of GATT to challenge the lawfulness of the regulation.

15.

On 7 March 1994, the Council decided to sign the Final Act of the Uruguay Round and authorized the President of the Council and the Member of the Commission in charge of the negotiations to do so; at that date, the Community's offer on bananas had reverted to the 22 March 1993 position, since negotiations with the relevant Latin American countries had broken down.

16.

On 25 March 1994, the Commission submitted a final version of its market access commitments; Schedule LXXX set out again, with regard to bananas, the offer of 22 March 1993.

17.

On 28 March 1994, the Commission reached an agreement with Colombia, Costa Rica, Nicaragua and Venezuela, known as the Framework Agreement on Bananas.

18.

On the following day, 29 March 1994, the Commission sent the General Secretariat of GATT a corrigendum to its proposals contained in Schedule LXXX, to which was appended a copy of the Framework Agreement.

19.

At meetings of the Article 113 Committee at Marrakesh on 11 and 14 April 1994, the delegations of the Federal Republic of Germany and other Member States objected to the fact that the Commission had incorporated the Framework Agreement on Bananas into the list of the Community's commitments contained in Schedule LXXX and expressed their disagreement with the contents of that agreement.

20.

The Foreign Affairs Council, meeting at Marrakesh on 15 April 1994 implicitly and unanimously confirmed its decision to sign the Final Act of the Uruguay Round. In a statement, the Commission took note of the various statements made by the national delegations at the meetings of the Article 113 Committee with regard to the import regime for bananas.

21.

On 22 December 1994, the Council adopted Council Decision 94/800/EC concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1).

22.

On 1 January 1995, the Uruguay Round agreements, including the schedules containing the Community's commitments in relation to banana imports, entered into force.

1.

The Framework Agreement on Bananas comprises two documents. The first, entitled ‘Agreed outcome of the negotiations between Colombia, Costa Rica, Nicaragua, Venezuela and the European Community on the EC's import regime for bananas’, signed in Brussels on 28 March 1994 by the Member of the Commission responsible for Agriculture and Rural Development and by the Colombian Ambassador to the Community, constitutes a sort of preamble to the agreement itself; the second, entitled ‘Framework Agreement on Bananas’, contains the technical provisions of the agreement with the Latin American countries.

2.

The first document stipulates:

‘The attached draft agreement on bananas represents a satisfactory outcome of the negotiations on bananas in the context of the Uruguay Round.

The agreement also constitutes the outcome of Article XXVIII negotiations and consultations on bananas between the EC and the abovementioned countries.

Furthermore, the agreement constitutes a settlement of the dispute on bananas which is the subject of a GATT panel report. It was agreed, therefore, that Colombia, Costa Rica, Nicaragua, Venezuela and the EC will not pursue the adoption of the said panel report.

Colombia, Costa Rica, Nicaragua and Venezuela agreed that they would not initiate GATT dispute settlement procedures against the EC's regime for bananas for the duration of the attached agreement.’

3.

Point 1 of the Framework Agreement itself fixes the global basic tariff quota at 2100000 tonnes for 1994 and 2200000 tonnes for 1995 and the following years, subject to any increase resulting from the enlargement of the Community, and Point 2 divides that quota up between the four contracting parties, the Dominican Republic and other ACP States concerning nontraditional quantities, and other States.

Points 3, 4 and 5 deal with the application or modification of the country quotas in the event of one country being unable to fulfil its quota or in the event of any increase in the quota.

Point 6 provides that management of the quotas, including any increase, is to remain as laid down in Regulation No 404/93. That point provides further:

‘the supplying countries with country quotas may deliver special export certificates for up to 70% of their quota, which, in turn, constitute a prerequisite for the issuance, by the Community, of certificates for the importation of bananas from said countries by “Category A” and “Category C” operators.’

Point 7 fixes the in-quota tariff rate at ECU 75 per tonne.

Under Points 8 and 9, the agreed system is to be operational by 1 October 1994 at the latest and to apply until 31 December 2002.

Points 10 and 11 provide:

‘This agreement will be incorporated into the Community's Uruguay Round Schedule.

This agreement represents a settlement of the dispute between Colombia, Costa Rica, Venezuela, Nicaragua and the Community on the Community's banana regime. The parties to this agreement will not pursue the adoption of the GATT panel report on this issue.’

1.

The German Government, represented by E. Röder, Ministerialrat in the Federal Ministry of the Economy, and J. Sedemund, Rechtsanwalt, Cologne, acting as Agents, asked the Court of Justice to deliver an Opinion on the following questions:

2.

The German Government states that the admissibility of the request for an Opinion cannot be questioned. Its purpose is to examine the compatibility with Community law of the procedure by which the Framework Agreement was concluded and of its content. The question whether the Agreement might have to be renegotiated is undeniably of importance both with regard to the Community's external relations and with regard to the situation of Community undertakings. The Framework Agreement is not yet binding in public international law, since the reference to its incorporation in the schedule of the Community's Uruguay Round commitments is to be construed as subject to ratification. The Framework Agreement is separable from the Final Act of the Uruguay Round: it is set out in a purely declaratory manner as an annex to Schedule LXXX to the Final Act; in addition, only the rules in Points 1 to 7 of the Framework Agreement form an integral part of Schedule LXXX; finally, that incorporation did not take place until after the Council had decided to sign the Final Act. Consequently, the Community is entitled to ratify the Final Act with the exception of the provisions on bananas if the Framework Agreement should be contrary to the Treaty. The fact that the Commission signed the Framework Agreement separately shows that it too assumed that the Framework Agreement was separable from the Final Act.

At the hearing, the German Government submitted that Article 228(6) of the Treaty requires only that the agreement should be envisaged at the time when the Opinion is requested. The Treaty does not require that the agreement should not have been implemented at the time when the Opinion is delivered. Accepting the contrary view would mean that a swift conclusion of the agreement would negate the Article 228(6) procedure and would prejudice the judicial protection of the institution or the State which had requested the Court to deliver an Opinion. A request to the Court under Article 228(6) of the Treaty should suspend the procedure for concluding the agreement pending the Opinion of the Court.

3.

With regard to the substance, the German Government asserts that the Commission had no authority to conduct negotiations or at least went beyond the Council's instructions, that the Commission was not authorized to sign the Agreement, that the procedure followed was contrary to the usual practice in such matters and that the Framework Agreement contravenes the substantive provisions of the Treaty.

1.

The Belgian and Netherlands Governments agree with the German Government that there was no authority to negotiate.

The Framework Agreement is distinct from the Final Act of the Uruguay Round. It was concluded under the GATT Article XXVIII procedure and is not covered by the authority to negotiate for the Uruguay Round; it was signed separately with the Latin American countries concerned and contains a specific date of entry into force.

2.

The French and Spanish Governments, the United Kingdom, the Commission and the Council assert that the Commission was authorized by the Council to negotiate the Framework Agreement.

The Spanish Government and the Council refer to the decision of 18 and 19 October 1993 authorizing the Commission to open negotiations under Article XXVIII of GATT; the Spanish Government points out that the Framework Agreement provides for a reduction of the in-quota fixed-rate levy from ECU 100 to ECU 75 per tonne.

The French Government, the United Kingdom and the Council also refer to the Council's decision of 16 and 17 June 1986 approving the overall approach and that of 20 September 1986 approving the Punta del Este Declaration. In the French Government's view, the outcome of the negotiations with the Latin American countries falls within the framework of the Uruguay-Round negotiations inasmuch as, by increasing the quota and reducing the fixed-rate levies, the Framework Agreement improved third-country access to the Community market, converted the quantitative restrictions into a tariff system and included a concession by the Community to the countries concerned through the introduction of export licences.

The Commission stresses that the Council must authorize the opening of negotiations and did so by the 1986 and 1993 decisions.

1.

The Belgian and Netherlands Governments submit that the Agreement goes beyond the scope of the Uruguay Round negotiations in that it brings to an end the dispute settlement procedures pending. The incorporation of the Framework Agreement into the Schedules to the Final Act of the Uruguay Round cannot be described as a corrigendum but amounts to an amendment of the Treaty text.

2.

The French and Spanish Governments, the United Kingdom, the Council and the Commission deny that the Commission went beyond the guidelines laid down in the authority to negotiate.

The French and Spanish Governments state that the Framework Agreement complies with the 1993 guidelines. The exportcertificate system ensures access to the Community market for the contracting States and enables them to control their production and flow of trade themselves; it cannot be described as a barrier to trade. The Agreement complies with the obligation to offer compensation, since it provides for an increase in the quota and a reduction in the fixed-rate levies, and respects the fundamental principles in Regulation No 404/93.

The Council considers that the argument that the Commission went beyond the scope of the negotiating directives is irrelevant. The Council's decision to sign an agreement negotiated by the Commission implies approval of its contents and makes good any irregularity during the course of the negotiations. In practice, the Commission is often led to go beyond the scope of its directives when negotiating an international agreement; in such circumstances, rather than modify those directives during the course of the procedure, the Council merely accepts the final outcome by signing the agreement.

The Commission stresses that although the Council must authorize the opening of negotiations it is not obliged to lay down negotiating directives. In any event, the Commission considers that it did comply with the 1986 and 1993 directives. By increasing the tariff quota and reducing the fixed-rate levies, the Framework Agreement liberalizes trade in bananas. The contracting parties regarded the Framework Agreement as appropriate compensation for the unbinding of the 20% duty. The Framework Agreement is consistent, moreover, with the central provisions of Regulation No 404/93 and does not conflict with the basic rules of GATT, which allows tariff quotas. The Framework Agreement is the outcome of two parallel sets of negotiations: the general trade discussions of the Uruguay Round and the specific GATT Article XXVIII procedure.

1.

The Belgian and Netherlands Governments agree with the German Government that the Council did not authorize the Commission to sign the Framework Agreement.

2.

In the view of the French and Spanish Governments, the United Kingdom, the Council and the Commission, the Council did decide to sign the Framework Agreement.

The Spanish Government refers to the Council's decision of 7 March 1994 authorizing the Commission to sign the Final Act of the Uruguay Round, to which the Framework Agreement is appended. That decision was not affected by subsequent amendments to the schedules, since offers could be amended up to the signature of the Final Act in so far as improving market access was concerned.

The French Government further points out that the Framework Agreement forms an integral and inseparable part of the results of the Uruguay Round. Its signature by the Member of the European Commission does not constitute the signature of an agreement for the purposes of the Vienna Convention of 23 May 1969 on the Law of Treaties but a mere initialling or the signature of minutes of negotiation.

The French Government and the United Kingdom accept that on 7 March 1994 the Framework Agreement did not form part of the Community's commitments. On 15 April 1994, when the Council unanimously confirmed the decision to sign the Final Act, Schedule LXXX did include the contents of the Framework Agreement. Contrary to the German Government's submission, the overall results of the negotiations under the title ‘Framework Agreement on Bananas’ were incorporated into the Community's schedule of commitments.

The Council and the Commission also point out that the Framework Agreement forms an integral part of the results of the Uruguay Round. The incorporation of the provisions of the Framework Agreement in Schedule LXXX does not amount to a declaratory copy of an independent agreement but fixes the Community's commitments. As may be seen from the minutes of its meeting on 7 March 1994, the Council authorized the signature of the Final Act of the Uruguay Round in the knowledge that the legal texts in existence at that date were not final and that further negotiations were necessary, particularly with regard to the Community's commitments. With that in mind, meetings of the Article 113 Committee were called at Marrakesh on 11 and 14 April 1994. At its meeting on 15 April, the Council implicitly and unanimously confirmed its decision to sign the overall results of the Uruguay Round as they existed on that date, including the Framework Agreement forming an integral part of Schedule LXXX. The statements in the minutes by certain of the national delegations cannot affect the legality of the Council's signature of the Final Act on 15 April 1994.

1

It is helpful to review briefly the various stages in the present proceedings as set out in the section ‘Background and Facts’ of the Request for an Opinion.

2

The agreed outcome of the negotiations between Colombia, Costa Rica, Nicaragua, Venezuela and the European Community on the Community import regime for bananas, to which is annexed the Framework Agreement on Bananas, was signed by the Member of the Commission responsible for Agriculture and Rural Development and by the Ambassador of Colombia on 28 and 29 March 1994.

3

The request for an Opinion was lodged by the Federal Republic of Germany on 25 July 1994.

4

According to the facts set out in the section ‘Backround and Facts’ of the request for an Opinion, points 1 and 7 of that agreement, which concern the fixing of an import customs quota, were incorporated in Schedule LXXX which includes the customs concessions proposed by the Community in the context of the Uruguay Round negotiations. The Framework Agreement is set out in an annex to that Schedule LXXX.

5

On 15 April 1994 the Council, notwithstanding the reservations expressed by certain Member States concerning the incorporation of the Framework Agreement in the Community's proposals, decided to sign the Final Act of the Uruguay Round.

6

On 22 December 1994, the Council adopted Decision 94/800/EC concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994).

7

On 1 January 1995, the Uruguay Round agreements, including the schedules setting out the Community's commitments in relation to banana imports, entered into force.

8

It follows from its incorporation in an annex to Schedule LXXX to the Final Act that the Framework Agreement is legally an integral part of the agreements reached in the Uruguay Round multilateral negotiations and that it was concluded together with those agreements after the Court had been requested to deliver this Opinion.

9

In order to determine whether, in those circumstances, the Court should deliver the Opinion requested, the terms and purpose of Article 228(6) of the EC Treaty must be analysed.

10

Article 228(6) provides that the Council, the Commission or a Member State may obtain the Opinion of the Court of Justice as to whether an agreement envisaged is compatible with the provisions of the Treaty.

11

It is not clear from the wording of the first sentence of that provision whether it is sufficient that the agreement be envisaged when the request is lodged or whether it must still be so when the Court delivers its Opinion.

12

The second sentence of Article 228(6) provides however that, where the Opinion of the Court of Justice is adverse, an agreement may enter into force only in accordance with Article N of the Treaty on European Union, which concerns amendment of the Treaty.

13

It would therefore be contrary to the internal logic of Article 228(6) to accept that it is appropriate for the Court to rule on the compatibility with the Treaty of an agreement which has already been concluded, since a negative Opinion would not have the legal effect prescribed by that article.

14

In Opinion 1/94 of 15 November 1994 [1994] ECR I-5267 the Court considered that it may be called upon to state its opinion pursuant to Article 228(6) of the Treaty at any time before the Community's consent to be bound by the agreement is finally expressed. The Court also stated, in paragraph 12, that, unless and until that consent is given, the agreement remains an envisaged agreement.

15

That interpretation is also consistent with the purpose of the procedure for requesting an Opinion.

16

The purpose of Article 228(6) of the Treaty, as the Court indicated in Opinion 1/75 of 11 November 1975 [1975] ECR 1355, is to forestall complications which would result from legal disputes concerning the compatibility with the Treaty of international agreements binding upon the Community.

17

The Court also noted in that Opinion that a possible decision of the Court to the effect that such an agreement is, by reason either of its content or of the procedure adopted for its conclusion, incompatible with the provisions of the Treaty could not fail to provoke, not only in a Community context but also in that of international relations, serious difficulties and might give rise to adverse consequences for all interested parties, including third countries.

18

For the purpose of avoiding such complications, the Treaty had recourse to the exceptional procedure of a prior reference to the Court of Justice for the purpose of elucidating, before the conclusion of the agreement, whether the latter is compatible with the Treaty.

19

However, the preventive intent of Article 228(6) of the Treaty can no longer be achieved if the Court rules on an agreement which has already been concluded.

20

It cannot be contended that that interpretation undermines the judicial protection of the institution or Member State which requested the Opinion at a time when the agreement had not yet been concluded.

21

The procedure under Article 228(6) of the Treaty aims, first, as has already been stated, to forestall difficulties arising from the incompatibility with the Treaty of international agreements binding the Community and not to protect the interests and rights of the Member State or Community institution which has requested the Opinion.

22

In any event, the State or Community institution which has requested the Opinion may bring an action for annulment of the Council's decision to conclude the agreement and may in that context apply for interim relief.

23 

It follows from the foregoing that the request for an Opinion has become devoid of purpose because the Framework Agreement on Bananas, incorporated in the agreements reached in the Uruguay Round multilateral negotiations (1986-1994), was concluded with those agreements after the request for an Opinion was submitted to the Court and there is accordingly no need to respond to that request.