Opinion of the Advocate General — ECLI:EU:C:1997:309
Date: 1997-06-24
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;External relations;Fruit and vegetables;General Agreement on Tariffs and Trade (GATT);Commercial policy;Bananas
Procedure: Action for annulment - unfounded;Action for annulment - successful
Origin: Germany

summary of the 
outcome of the trade negotiations of the 
Uruguay Round, in particular the Agreement 
establishing the World Trade Organisation 
('the WTO Agreement'). 9 
13. Article 11(2) of the W T O Agreement 
provides that the agreements and associated 
legal instruments included in Annexes 1, 2 
and 3 (the Multilateral Trade Agreements) 
are to be integral parts of the Agreement and 
binding on all Members. Annex 1A to the 
WTO Agreement contains Multilateral 
Agreements on Trade in Goods, including 
the General Agreement on Tariffs and Trade 
1994, known as 'GATT 1994'. 
14. Annexed to GATT 1994 is a protocol 
entitled the 'Marrakesh Protocol'. For each 
member, a list setting out the rights and obli­
gations of each Member State is drawn up 
and annexed to that protocol. The list, which 
is binding on the Community, is entitled 
'Schedule LXXX'. In columns 3 and 4 of the 
part headed 'Fresh bananas, other than plan­
tains', Schedule LXXX fixes the quota 
(2 200 000 tonnes) and the customs duty 
applicable to the quota (ECU 75/tonne). 
Schedule LXXX also contains a column 7, 
entitled 'Other stipulations and conditions'. 
As regards bananas, that column states 'as 
indicated in the Annex'. The annex contains 
the full version of the Framework Agree­
ment on Bananas. 
15. On 26 October 1994 the Federal Repub­
lic of Germany requested the Court to give 
an opinion pursuant to Article 228(6) of the 
Treaty on the compatibility of the Frame­
work Agreement on Bananas with the Treaty 9 — OJ 1994 L 336, p. 3 e t seq. 
I - 9 8 3 
OPINION OF MR ELMER — CASE C-122/95 
and the fundamental principles of Commu­
nity law. 
16. By Council Regulation (EC) N o 
3290/94 of 22 December 1994 on the adjust­
ments and transitional arrangements required 
in the agricultural sector in order to imple­
ment the agreements concluded during the 
Uruguay Round of multilateral trade nego­
tiations, 10 Article 18(1) of the basic regu­
lation was amended in so far as the tariff 
quota was increased by 200 000 tonnes to 
2 200 000 tonnes, while the import levy on 
third-country bananas was reduced by ECU 
25 to E C U 75 per tonne. That regulation 
also inserted into Article 20 of the basic 
regulation, which empowers the Commis­
sion to adopt detailed implementing rules, a 
provision allowing the Commission to adopt 
measures necessary to fulfil obligations aris­
ing from agreements concluded by the Com­
munity in accordance •with Article 228 of the 
Treaty. 
17. By Council Decision of 22 December 
1994, which was adopted unanimously with­
out the Federal Republic of Germany await­
ing the opinion of the Court following its 
application of 26 October 1994, the Council 
approved the agreements concluded in the 
Uruguay Round negotiations. 
Article 1 of the Council decision provides: 
'Article 1 
1. The following multilateral agreements and 
acts are hereby approved on behalf of the 
European Community with regard to that 
portion of them which falls within the com­
petence of the European Community: 
— [the WTO Agreement], and also the 
Agreements in Annexes 1, 2 and 3 to that 
Agreement; 
2. The texts of the agreements and acts 
referred to in this Article are attached to this 
Decision. 
3. The President of the Council is hereby 
authorised to designate the person empow­
ered to take the measure provided for in 
Article XIV of [the W T O Agreement] in 
order to bind the European Community 
with regard to that portion of the Agreement 
falling within its competence.' 10 — OJ 1994 L 349, p. 105. 
I - 9 8 4 
GERMANY v COUNCIL 
18. The Council decision was published in 
the Official Journal of the European Com­
munities of 23 December 1994 under the 
heading 'II Acts whose publication is not 
obligatory'. It appears, however, that the 
issue concerned was not available until 13 
February 1995. The WTO Agreement and 
Annexes 1 to 3, including, under Annex 1A, 
GATT 1994 and the Marrakesh Protocol, 
were annexed to the Council decision. The 
text of the Marrakesh Protocol published in 
the Official Journal contained the following 
postscript: 
'[The agreed schedules of participants will 
be annexed to the Marrakesh Protocol in the 
treaty copy of the WTO Agreement]'. 11 
19. As already stated, on 10 April 1995 the 
Federal Republic of Germany brought the 
present action against the Council for the 
annulment of the first indent of Article 1(1) 
of the Council decision, in conjunction with 
point 1 of the Marrakesh Protocol set out in 
Annex 1A to the WTO Agreement, to the 
extent that the Council thereby approved the 
conclusion of the Framework Agreement on 
Bananas. 
20. On 13 December 1995 the Court dis­
missed the request lodged by the Federal 
Republic of Germany on 26 October 1994 
pursuant to Article 228(6) of the Treaty for 
an opinion on the compatibility of the 
Framework Agreement on Bananas with the 
Treaty and certain fundamental principles of 
Community law, 12 on the ground that the 
purpose of the procedure for requesting an 
opinion is to obtain a preliminary opinion, 
with the result that the request became 
devoid of purpose once the international 
agreement in question had been concluded. 
Admissibility 
21. The Council contends that the action 
should be dismissed as inadmissible and sets 
out a number of arguments concerning the 
time within which the action must be insti­
tuted and the significance of the fact that the 
Framework Agreement was approved by the 
Community and forms part of the W T O 
Agreement. These arguments will be exam­
ined separately below. The Council further 
submits that a separate argument relating to 
the procedure followed when the Agreement 
was concluded, which was put forward by 
the Belgian Government, should be dis­
missed. I shall examine that argument at the 
end of the present discussion. 
11 — As indicated above, the Framework Agreement is set out in 
the list which applies to the Community. 12 — Opinion 3/94, [1995] ECR I-4577. 
I - 9 8 5 
OPINION OF MR ELMER — CASE C-122/95 
The period within which proceedings must be 
instituted under the fifth paragraph of Article 
173 of the Treaty 
22. The Council, supported by the Spanish 
and French Governments and the Commis­
sion, claims that the proceedings were not 
instituted 'within the period of two months 
provided for in the fifth paragraph of Article 
173 of the Treaty. It maintains that time 
began to run on 22 December 1994, the day 
on which the Council decision came to the 
knowledge of the Federal Republic of Ger­
many via its representative in the Council. 
23. The German Government contends that 
the proceedings were instituted within the 
prescribed time. As the measure in issue was 
published, it follows expressly from the fifth 
paragraph of Article 173 of the Treaty that 
the period of two months begins to run on 
the day of publication, which, according to 
the case-law of the Court, is the day on 
which the relevant issue of the Official Jour­
nal became available. 
24. The fifth paragraph of Article 173 of the 
Treaty provides that: 
'The proceedings provided for in this Article 
shall be instituted within two months of the 
publication of the measure, or of its notifica­
tion to the plaintiff, or, in the absence 
thereof, of the day on which it came to the 
knowledge of the latter, as the case may be.' 
25. The Council decision 13 forming the 
subject-matter of the action for annulment 
was published on 23 December 1994, 
together with the annexes referred to therein, 
including the Marrakesh Protocol. In that 
regard, it is difficult to attach any importance 
whatsoever to the fact that the list annexed 
to the Marrakesh Protocol, in so far as con­
cerns the Community, was not reproduced 
in the Official Journal, since there is a refer­
ence in brackets to the treaty copy of the 
WTO Agreement. It is the Council decision 
as such that forms the subject-matter of the 
action, and it was indeed published, irrespec­
tive of whether a document annexed to an 
annex to that decision was not reproduced in 
the published version. 
26. According to the information before the 
Court, the issue of the Official Journal con­
cerned was not available until 13 February 
1995. It follows from the case-law of the 
Court that in such a case regard must be had 
to the date of actual publication. 14 
27. The Federal Republic of Germany 
lodged its application on 10 April 1995, and 
therefore within two months of the date of 
13 — (Note relevant only to the Danish version.) 
14 — Case C-337/88 SAFA v Amministrazione delle Finanze 
dello Stato [1990] ECR I-1, paragraph 12. 
I - 9 8 6 
GERMANY v COUNCIL 
actual publication, so that the condition in 
the fifth paragraph of Article 173 of the 
Treaty appears at first sight to have been 
met. 
28. It is necessary to consider, however, 
whether on closer examination the wording 
and purpose of that provision might lead to a 
restrictive interpretation, to the effect that 
the point at which time begins to run is not 
to be determined with reference to publica­
tion where publication is not obligatory. 
29. The fifth paragraph of Article 173 pro­
vides that proceedings are to be instituted 
within two months 'of the publication of the 
measure, or of its notification to the plaintiff 
... as the case may be'. 
30. The expression 'as the case may be' must 
be taken to refer to the fact that certain mea­
sures are published while others are notified 
to the person to whom they are addressed. 
The criterion of the date on which the meas­
ure came to the knowledge of the applicant, 
within the meaning of the fifth paragraph of 
Article 173, becomes relevant only where the 
measure has been neither published nor noti­
fied to the person bringing an action. 
31. It might be argued, admittedly, that the 
expression 'as the case may be' refers to 
Article 191, which contains provisions defin­
ing the measures to be published in the Offi­
cial Journal and those which are to be noti­
fied to those to whom they are addressed. 
Had that been the intention, however, it 
would have been natural to indicate the con­
nection a little more clearly than was done, 
for instance by inserting a reference to 
Article 191 into the fifth paragraph of Article 
173. In its present form, the fifth paragraph 
of Article 173 simply indicates that when 
time begins to run, some measures have been 
published while others have been neither 
published nor notified, as the case may be. 
32. The simplest solution is therefore to 
interpret the fifth paragraph of Article 173 
literally and to take into consideration a 
period of two months from publication 
where the measure in question has actually 
been published. A provision which deter­
mines the time within which Member States 
and individuals may institute proceedings 
before the Court against Community mea­
sures must be as clear as possible. Individuals 
cannot reasonably be expected to investigate 
whether or not publication of a measure 
which has in fact been published was obliga­
tory. Simplicity and clarity are necessary, 
especially where the right of Member States 
and individuals to legal protection is con­
cerned. 
33. The period for instituting proceedings 
laid down in the fifth paragraph of Article 
173 has two objectives. First, it seeks to 
ensure that a plaintiff has a reasonable time 
in which to ascertain whether there are 
grounds for challenging a measure and, 
where appropriate, to prepare his applica­
tion. Second, it seeks to ensure that a 
measure cannot become the subject of an 
action for annulment once a certain period 
has elapsed. In that regard, the Court has 
held that only a strict application of the 
time-limit laid down in the fifth paragraph of 
I - 9 8 7 
OPINION OF MR ELMER — CASE C-122/95 
Article 173 serves the requirements of legal 
certainty and the need to avoid any discrimi­
nation or arbitrary treatment in the adminis­
tration of justice. 15 
34. In my view, an interpretation to the 
effect that time begins to run when the meas­
ure is published in the Official Journal, irre­
spective of whether or not publication is 
obligatory, is consistent with the interests of 
legal certainty. Both the desire to ensure that 
a plaintiff has a reasonable time to protect his 
interests and the desire to ensure that after a 
specific time has elapsed individuals, institu­
tions and Member States are able to rely on 
the binding force of the measure require that 
the rule used to determine the point at which 
time begins to run be clear and precise, so 
that individuals, institutions and Member 
States can know precisely when a period 
begins to run, and therefore when it expires. 
Such clarity is guaranteed if time is reckoned 
from the publication of the measure. 
35. A restrictive interpretation of the fifth 
paragraph of Article 173, to the effect that 
where publication is not obligatory the 
period for instituting proceedings must begin 
to run when the measure comes to the 
knowledge of the plaintiff, would not permit 
a sufficient degree of clarity and precision to 
be attained, since it would often be neces­
sary, in order to determine when the measure 
came to the plaintiff's knowledge, to embark 
upon a concrete evaluation of the evidence. 
The point in time at which the measure 
comes to the plaintiff's knowledge must 
therefore, in accordance with the wording of 
the fifth paragraph of Article 173, be used 
for the purpose of calculating when the 
period starts to run only where the measure 
was not actually published or notified to the 
plaintiff. 
36. The fact that the Council decision had 
already come to the knowledge of the Fed­
eral Republic of Germany when it was 
adopted is irrelevant. That is entirely consis­
tent with the situation of a Member State 
which seeks to challenge, for example, a 
regulation adopted by the Council, in which 
case time always begins to run when the 
regulation is published, notwithstanding that 
it has already come to the knowledge of that 
Member State. 
37. Having regard to the foregoing consider­
ations, I am of the opinion that the proceed­
ings were not instituted out of time. 
The significance of the fact that the Frame­
work Agreement has entered into force 
38. The Council maintains that a decision 
whereby the Community ratifies an interna­
tional agreement cannot be challenged by an 
action for annulment, since the agreement 
binds the parties vis-à-vis contracting non­
15 — See, in particular, the order in Case C-59/91 France v Com­
mission [1992] ECR I-525, paragraph 8. 
I - 9 8 8 
GERMANY v COUNCIL 
member countries. Germany could simply 
have voted against the adoption of the 
Council decision, which had to be adopted 
unanimously. 
39. The German Government, on the other 
hand, claims that the system of the Treaty 
precludes an interpretation to the effect that 
it is impossible to challenge a measure ratify­
ing an international agreement which has 
been concluded. On that point, the Belgian 
Government further states that the only con­
sequence of the annulment of the Frame­
work Agreement would be that the Commu­
nity and its Latin-American contracting 
partners would be required to open negotia­
tions within the framework of the GATT 
with a view to concluding a fresh agreement 
or granting some other form of compensa­
tion. 
40. In Opinion 3/94 the Court, as already 
stated, held that the Federal Republic of Ger­
many's request for an opinion pursuant to 
Article 228(6) of the Treaty on the compat­
ibility of the Framework Agreement with 
the Treaty had become devoid of purpose 
after the Framework Agreement had been 
incorporated in the agreements reached in 
the Uruguay Round negotiations and 
approved by the Community. It was there­
fore no longer an envisaged agreement 
within the meaning of Article 228(6). 
41. In paragraphs 20, 21 and 22 of that opin­
ion the Court held that: 
'It cannot be contended that that interpreta­
tion 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 [para­
graph 20]. 
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 interna­
tional agreements binding the Community 
and not to protect the interests and rights of 
the Member State or Community institution 
which has requested the Opinion [paragraph 
21]. 
In any event, the State or Community insti­
tution which has requested the Opinion may 
bring an action for annulment of the Coun­
cil's decision to conclude the agreement and 
may in that context apply for interim relief 
[paragraph 22].' 
42. It follows, according to the system of the 
Treaty, that an act whereby the Community 
approves an international agreement must be 
I-989 
OP I NI ON OF MR ELMER — CASE C-122/95 
susceptible to an action for annulment. 16 
Otherwise, exercise of the powers delegated 
to the Community institutions in interna­
tional matters would escape judicial review, 
under Article 173 of the Treaty, of the legal­
ity of the acts adopted. 17 
43. Where appropriate, it is necessary to 
decide on the basis of international law, 
in particular the Vienna Convention of 
21 March 1986 on the Law of Treaties 
between States and International Organisa­
tions, or between International Organisa­
tions, whether the annulment of an internal 
measure approving an international agree­
ment implies that the Community is 
released, purely from the aspect of interna­
tional law, from its international obligations 
under that agreement. 18 
The significance of the fact that the Frame­
work Agreement forms part of the WTO 
Agreement 
44. Lastly, the Council, continuing with the 
argument referred to in paragraph 38, sub­
mits that the application for annulment 
should be dismissed because the annulment 
of the Framework Agreement, which is 
one element of the overall outcome of the 
Uruguay Round, might upset the overall bal­
ance. In support of its argument, the Council 
refers to LAISA and CPC Espana v Coun­
cil, 19 an action for the annulment of certain 
provisions of Annex I to the Act concerning 
the conditions of accession of the Kingdom 
of Spain and the Portuguese Republic and 
the adjustments to the Treaties. 
45. In that regard, it should be observed that 
the Court rejected the applications for 
annulment in LAISA v Council as inadmis­
sible on the ground that it had no jurisdic­
tion, since the contested provisions did not 
constitute an act of the Council but were 
provisions of primary law which, according 
to the Act, could not be suspended, amended 
or repealed otherwise than by means of the 
procedures laid down for the revision of the 
original Treaties. 
46. To my mind, the Court's observation in 
paragraph 15 of that judgment that the Act 
of Accession affirmed the results of the 
accession negotiations, which constituted a 
totality, must not be taken out of its context 
and transposed to situations other than that 
to which those cases specifically related. The 
determining factor there was that the cases 
concerned not a measure of secondary law 
adopted by the Council but an act of pri­
mary law not covered by Article 173 of the 
Treaty, which, by its nature, does not pro­
vide for the annulment of such provisions. 
The Court therefore had no jurisdiction to 
deal with the matter. 
16 — See also Case C-327/91 France v Commission [1994] ECR 
I-3641, paragraphs 15 and 16, Case 165/87 Commission v 
Council [1988] ECR 5545 and Opinion 1/75 [1975] ECR 
1355. 
17 — See France v Commission cited in footnote 16, paragraph 
16. 
18 — See France v Commission, cited in footnote 16, paragraph 
25. 19 — Joined Cases 31/86 and 35/86 [1988] ECR 2285. 
I - 990 
GERMANY v COUNCIL 
47. The present case concerns a measure of 
secondary law adopted by the Council in the 
form of a decision. Such a measure is covered 
by Article 173 of the Treaty, which confers 
on the Court general jurisdiction to review 
the legality of measures adopted by the 
Council. 
48. Moreover, to my mind it follows by 
implication from Opinion 3/94 that the insti­
tutions and Member States may challenge 
aspects of a Council decision which ratifies 
an entire international agreement. Were this 
not so, in many cases the judicial protection 
resulting from the right to bring an action 
for annulment, which the Court expressly 
recognised in paragraph 22 of the opinion, 
would in practice be rendered largely illu­
sory. 
49. I consider that this argument, too, must 
therefore be rejected. 
The objection of inadmissibility in regard to 
the Kingdom of Belgium 
50. The Belgian Government claims, sepa­
rately, that the Commission integrated the 
Framework Agreement into the result of the 
Uruguay Round without being authorised to 
do so by the Council, so that the Framework 
Agreement infringes essential formal require­
ments, with the result, first, that the Agree­
ment must be amenable to challenge irre­
spective of the overall result of the Uruguay 
Round and, second, that the Framework 
Agreement must be annulled. 
51. The Council contends that this submis­
sion must be rejected, since, as an intervener, 
the Kingdom of Belgium cannot go beyond 
the parameters of the case determined by the 
application. Furthermore, the Council's 
approval of the overall result of the Uruguay 
Round corrects any procedural defects. 
52. It should be observed that, according to 
Article 37(4) of the Statute, submissions 
made in an application to intervene are to be 
limited to supporting the submissions of one 
of the parties. While there is no reason in 
principle why the arguments advanced by an 
intervener should not support submissions 
other than those which the party it supports 
has submitted, 20 it is none the less essential 
that those submissions do not alter the 
framework of the dispute as defined by the 
application and the defence. 21 In the first 
place, in accordance with general principles 
of procedural law, it is for the parties to 
define the framework of a dispute, so that 
they are not subsequently required to con­
sider matters which they themselves did not 
raise. Second, it would be inappropriate, 
20 — Sec, for example, Case 30/59 De Gezamenlijke Steenkolen­
mijnen in Limburg v High Authority [1961] ECR 1. 
21 — On this point, reference is made to Joined Cases T-447/93, 
T-448/93 and T-449/93 AITEC and Othert v Commission 
[1995] ECR II-1971, paragraph 122. 
I - 9 9 1 
OPINION OF MR ELMER — CASE C-122/95 
with regard to the investigation and treat­
ment of a case, to allow matters to be intro­
duced which have no connection which the 
issues raised by the parties. In that regard, it 
will be noted that under Article 42(2) of the 
Rules of Procedure the parties are prohibited 
from raising any new pleas in law in the 
course of proceedings. 
53. In my view, the Belgian Government's 
submission has no connection 'with the 
application submitted by the Federal Repub­
lic of Germany. I consider, therefore, that the 
submission that the Commission's treatment 
of the Framework Agreement is formally 
defective alters the framework of the case. It 
must therefore be considered inadmissible. 
Substance 
54. The German Government, supported by 
the Belgian Government, submits that the 
Framework Agreement on Bananas infringes 
a number of fundamental principles of Com­
munity law, including the right to pursue a 
trade or business, the right to property, the 
principle of the protection of legitimate 
expectations, the principle of proportionality 
and the principle of non-discrimination. 
55. The Council, supported by the Spanish 
and French Governments and the Commis­
sion, contends that the Framework Agree­
ment is compatible with Community law on 
all these points. 
56. It should be observed at the outset that 
in Germany v Council 22 the Court held that 
the provision of the basic regulation intro­
ducing a tariff quota for third country and 
non-traditional ACP bananas of 70% for 
operators who had traditionally marketed 
third-country bananas and new operators 
and 30% for operators who had traditionally 
marketed Community bananas and ACP 
bananas did not infringe the fundamental 
principles of Community law. 
57. The Framework Agreement on Bananas, 
which the Council, by its decision, inte­
grated into the WTO Agreement, amended 
the basic regulation on four points. First, the 
tariff quota was increased by 200 000 tonnes 
and import duties reduced by ECU 25 to 
ECU 75. Second, approximately half of the 
tariff quota was divided into specific national 
quotas and, for that part of the quota, a sys­
tem of export licences was introduced, under 
which the exporting country may require the 
third-country importers and new operators 
to possess such a licence, 'which is a con­
dition of these operators being able to 
22 — Case C-280/93 [1994] ECR I-4973. 
I - 9 9 2 
GERMANY v COUNCIL 
import the products into the Community. It 
is only the system of national quotas and 
that of the export licences which form the 
subject-matter of the present action. 
The system of national quotas 
58. The German Government, supported by 
the Belgian Government, maintains that the 
provisions establishing specific national quo­
tas restrict traders' opportunities for import­
ing products from other countries and may 
deprive those traders of the value inherent in 
product brand-names based on the countries 
of origin. 
59. The Council, supported by the Spanish 
and French Governments and the Commis­
sion, contends that the Community is 
entitled to confer on specific third countries 
special advantages in the form of export quo­
tas. 
60. In Faust v Commission 23 the Court held 
that there is in Community law no general 
principle obliging the Community, in its 
external relations, to accord to non-member 
countries equal treatment in all respects. It 
follows from that judgment that different 
treatment accorded to traders within the 
Community must also be regarded as com­
patible with Community law, where that dif­
ferent treatment is an automatic consequence 
of the different treatment accorded to non-
member countries with which such traders 
have entered into commercial relations. 
61. Community law therefore does not pro­
tect traders against any adverse effects associ­
ated with the Community's political rela­
tions with non-member countries, which, 
incidentally, may be difficult to distinguish 
from other general commercial risks. To 
accept the opposite argument might make it 
extremely difficult for the Community to 
adopt measures relating to commercial 
policy. 
62. In the present case the disadvantages 
which might result for traders from the sys­
tem of national quotas are precisely the con­
sequence of the fact that third-country 
banana producers are accorded different 
treatment. 
63. It is also necessary to take into consider­
ation the fact that, according to the evidence 
before the Court, the quotas allocated corre­
spond to the market shares held by the 
23 — Case 52/81 [1982] ECR 3745, paragraph 25. The case con­
cerned protective measures which had led to a significant 
drop in imports of preserved mushrooms from Taiwan. 
I-993 
OPINION OF MR ELMER — CASE C-122/95 
producer countries concerned and that the 
Framework Agreement contains, in point 6, 
a provision designed to ensure that tradi­
tional trade patterns are maintained and that 
there is no discrimination between traders. 
In that regard, it is for the Commission to 
ensure that the provisions applicable to 
licences are in practice implemented in 
accordance with the requirements set out in 
the Framework Agreement. 
64. In the light of the foregoing consider­
ations, I consider that there is no ground for 
calling in question the system of national 
quotas established by the Framework Agree­
ment. 
The export-licence system 
65. The German Government claims that the 
requirement for export licences imposed on 
third-country importers and new operators, 
and the exemption from that requirement for 
Community and ACP importers, constitutes 
unwarranted inequality of treatment which is 
the source of significant costs to third-
country importers and new operators. Those 
costs, associated with the issue of export 
licences, amount in Colombia to some US 
$2.60 per carton (18 kg, corresponding to US 
$144 per tonne), which must be considered 
in relation to a carriage-free price of US $5 
to 6 per carton (corresponding to between 
US $280 and 330 per tonne). 
66. The Council, supported by the Spanish 
and French Governments and the Commis­
sion, claims that the system of export 
licences is necessary to ensure that the bal­
ance of the entire organisation of the market 
is maintained, in particular by ensuring that 
quotas are fairly distributed between the 
large multinational companies and small and 
medium-sized undertakings. In that regard, 
it is essential that the Commission, pursuant 
to point 6 of the Framework Agreement, 
should be responsible for authorising the 
issue of export licences. The fact that Com­
munity and ACP importers are exempted 
from the obligation to obtain a licence is not 
in any way discriminatory, since the situa­
tions are not comparable. In any event, any 
difference in treatment would be objectively 
justified. Community and ACP importers 
are affected by the increase in the tariff quota 
and the reduction in import duties for third-
country bananas. Furthermore, imports of 
non-traditional ACP bananas within the 
quota are reduced to 90 000 tonnes. The 
export-licence system is therefore necessary 
to maintain the competitive balance between 
the various groups of traders. It is impossible 
to consider the charges imposed on traders 
in isolation, since the effects of the system 
must be evaluated from an overall perspec­
tive, traders being, in particular, able to pass 
on the charges to consumers, who will thus 
ultimately bear the costs. According to the 
Council's calculations, the charge of approxi­
mately US $2.60 per carton to which the 
German Government refers represents only 
I - 9 9 4 
GERMANY v COUNCIL 
some 6.5% of the price paid by the final 
consumer. 
67. Following the same reasoning as that 
applied above to the system of national quo­
tas, I fail to see what fundamental rules or 
principles of Community law might preclude 
the establishment in an agreement between 
the Community and certain non-member 
countries of a system of export licences. 
Here, too, it is only a question of the regu­
lation of trade with the non-member coun­
tries concerned by the agreement and the 
export licences concern, in particular, the 
conditions under which the non-member 
countries in question authorise exports of 
the goods. A system establishing a tariff 
quota and specific national quotas in practice 
allows the producer countries to which a 
quota is allocated to share the 'burden' of 
this division among their own traders. The 
fact that the Community links this system to 
the import licences which it grants does not 
alter anything in that regard, but ensures that 
the Community is able to act in such a way 
that the non-member countries concerned — 
in the present case the banana-producing 
countries of Latin America — do not abuse 
the system. 
68. The Framework Agreement does not 
establish a general licensing system, but 
rather one which draws a distinction 
between various groups of traders within the 
Community. Third-country importers and 
new operators must therefore hold an export 
licence in order to be able to import prod­
ucts from the producer States concerned, 
whereas Community importers and ACP 
importers are exempted from the obligation 
to do so. It follows from point 6 of the 
Framework Agreement that the producer 
countries cannot require that the latter cat­
egory of importers must obtain export 
licences. 
69. Since the system of export licences is not 
only a source of administrative inconve­
nience but also entails the payment of duties 
to the countries which issue the licences, the 
products which third-country importers and 
new operators purchase in the producer 
countries concerned are in reality subjected 
to costs which the bananas which Commu­
nity and ACP importers purchase in the 
same countries do not bear. The Framework 
Agreement therefore seems at first sight to 
involve unequal treatment of the traders con­
cerned. The crucial point, however, is 
whether such inequality of treatment may be 
regarded as objectively justified by the spe­
cial circumstances prevailing on the market 
in bananas, and in particular by the consid­
erations underlying the basic regulation. 
70. It follows from the recitals in the pre­
amble to the basic regulation that the com­
mon organisation is intended to permit 
bananas produced in the Community and 
those from ACP States which are traditional 
suppliers to be disposed of on the Commu­
nity market providing an adequate income 
for producers and at fair prices for consum­
ers. In order to allow this objective to be 
achieved, a tariff quota is established, accord­
ing to which bananas from third countries 
I - 9 9 5 
OPINION OF MR ELMER — CASE C-122/95 
are subject to a tariff of ECU 100 per tonne. 
Imports in excess of the quota are subject to 
an import duty of ECU 850 per tonne (ECU 
750 per tonne in the case of non-traditional 
ACP bananas). Finally, Community and 
ACP importers are allocated a share of 30% 
of the quota. 
71. In Germany v Council 24 the Court held 
that this system, and in particular the way in 
which the tariff quota is allocated, is objec­
tively justified. First, it contributes to inte­
grating previously compartmentalised 
national markets, since it encourages dealers 
in Community bananas and traditional ACP 
bananas to obtain supplies from third coun­
tries and encourages importers of third-
country bananas to market Community and 
ACP bananas. In order to guarantee the dis­
posal of Community bananas and traditional 
ACP bananas, it was necessary to ensure a 
certain competitive balance between the 
traders concerned, which was achieved as a 
result of, first, the import duty and, second, 
the fact that 30% of the quota was allocated 
to Community and ACP importers. 
72. The Framework Agreement provides for 
a significant increase in the tariff quota and a 
substantial reduction in the import duties to 
which bananas from third countries are 
subject, which, other things being equal, has 
a negative effect on the competitive capacity 
of Community bananas and traditional ACP 
bananas. The increase of 200 000 tonnes in 
the tariff quota implies an increase in overall 
supply, which, other things being equal, cre­
ates pressure for a reduction in market 
prices, which in turn has an adverse effect on 
Community bananas and traditional ACP 
bananas, which, for a variety of reasons, are 
the most expensive. The reduction of ECU 
25 per tonne in the customs duty for the glo­
bal quota also substantially reduces the level­
ling of prices, an essential element in the 
basic regulation. 
73. This deterioration in the competitive 
capacity of Community bananas and tradi­
tional ACP bananas caused by the increase 
in the tariff quota and the reduction in the 
customs duty primarily affects traders who 
have traditionally marketed Community 
bananas and traditional ACP bananas. These 
traders are required to base their activities 
mainly on these bananas, since, pursuant to 
the basic regulation, their access to the mar­
ket in the more competitive bananas from 
non-member countries is restricted to 30% 
of the overall quota. 
74. Accordingly, it is quite reasonable, in my 
view, to implement measures designed to 
maintain the balance which the basic regu­
lation was intended to establish. That is of 24 — Case C-280/93 [1994] ECR 1-4973. 
I-996 
GERMANY v COUNCIL 
crucial importance in a market such as the 
market in bananas, where the production, 
transport and distribution stages are very 
much integrated. In Title II the basic regu­
lation directly encourages the setting up of 
producers' organisations responsible for sales 
and marketing. There is therefore a close 
relationship in this market between the pro­
duction and the import and distribution 
stages. It is therefore necessary to maintain 
the traditional distribution channels to 
ensure the disposal of Community produc­
tion and traditional ACP bananas. 
75. It is next necessary to examine, in the 
light of the evidence before the Court, 
whether there is any basis for assuming that 
the measure actually adopted constitutes an 
appropriate and proportionate means of 
ensuring the necessary balance between trad­
ers. 
76. It follows from the case-law of the 
Court that in matters concerning the com­
mon agricultural policy the Community leg­
islature has a wide discretionary power and 
that the legality of the measure concerned 
can be affected only if it is manifestly inap­
propriate having regard to the objective pur­
sued. 25 
77. There appears, however, at first sight to 
be reason to exempt traders who have tradi­
tionally marketed Community bananas and 
traditional ACP bananas from the obligation 
to obtain export licences, since, as I have 
already mentioned, it was precisely these 
very traders who had been affected by the 
increase in the tariff quota and the reduction 
in the customs duty. It should be observed 
that in all likelihood the Commission had no 
alternative to accepting a system of national 
quotas, so that it was impossible to avoid 
entirely a requirement of export licences. 
The shares fixed within the overall quota 
were precisely what made such a system 
essential. 
78. Whether that distinction exceeds what is 
necessary to ensure that a balance is restored 
between traders depends on a concrete and 
essentially economic evaluation of the way in 
which the increase in the tariff quota and the 
reduction of the customs duty affect the con­
ditions of competition on the market in 
bananas. The Federal Republic of Germany 
has not established, or even put forward, a 
plausible argument, for example by submit­
ting economic studies of the market, that the 
increase in the tariff quota and the reduction 
in the customs duty did not alter the com­
petitive capacity of Community and ACP 
importers in comparison with the balance 
pursued by the basic regulation, or that the 
Framework Agreement has imposed burdens 
25 — Sec, in particular, Case C-331/88 The Queen v The Minister 
for Agriculture, Fisheries and Food and the Secretary of 
State for Health, ex parte: Fedesa and Others [1990] ECR 
I-4023, paragraph 14. 
I - 9 9 7 
OPINION OF MR ELMER — CASE C-122/95 
on third-country importers in excess of what 
was necessary to restore that balance. 
79. In the light of the foregoing consider­
ations, I consider that the Federal Republic 
of Germany has failed adequately to estab­
lish that the exemption from the obligation 
to obtain export licences granted to tradi­
tional Community and ACP importers goes 
beyond what is necessary to ensure a com­
petitive balance between the various traders. 
That submission should therefore also be 
rejected. 
Costs 
80. The Council has asked that the Federal 
Republic of Germany be ordered to pay the 
costs. 
81. Article 69(2) of the Rules of Procedure 
provides that the unsuccessful party is to be 
ordered to pay the costs if they have been 
asked for in the successful party's pleadings. 
82. I propose that the Court should order 
the Federal Republic of Germany to pay the 
costs. 
Conclus ion 
83. In the light of the foregoing considerat ions, I p ropose that the C o u r t should: 
(1) dismiss the act ion against the Counc i l of the E u r o p e a n U n i o n . 
(2) o rde r the Federal Republ ic of G e r m a n y to pay the costs . 
(3) o rder the K i n g d o m of Belgium, the French Republ ic , the K i n g d o m of Spain 
and the C o m m i s s i o n of the E u r o p e a n Communi t i e s t o p a y their o w n costs . 
I - 9 9 8