Opinion of the Advocate General — ECLI:EU:C:1997:312
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: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgmen t 
1. International agreements — Agreements concluded by Member States — Agreements predat­
ing the EC Treaty — Article 234 of the Treaty — Purpose — Scope — Imports from a third 
country which acceded to an agreement before the entry into force of the Treaty — Inappli­
cability of Article 234 
(EC Treaty, Art. 234, first para.; General Agreement on Tariffs and Trade 1994; Council 
Regulation No 404/93; Commission Regulation No 478/95) 
2. Agriculture — Common organisation of the markets — Bananas — Import regime — Tariff 
quota — Division into national quotas — Discrimination — None — Introduction of an 
export licence system affecting only Category A and C traders — Breach of the principle of 
non-discrimination 
(EC Treaty, Art. 40(3); Council Regulation No 404/93; Commission Regulation No 478/95, 
Arts 1(1) and 3(2)) 
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SUMMARY — JOINED CASES C-364/95 AND C-365/95 
1. The purpose of the first paragraph of 
Article 234 of the Treaty is to make clear, 
in accordance with the principles of inter­
national law, that application of the 
Treaty does not affect the commitment of 
the Member State concerned to respect 
the rights of third countries under an ear­
lier agreement and to comply with its 
obligations thereunder. Thus, for a Com­
munity provision to be deprived of effect 
as a result of an international agreement, 
two conditions must be fulfilled: the 
agreement must have been concluded 
before the entry into force of the Treaty 
and the third country concerned must 
derive from it rights which it can require 
the Member State concerned to respect. 
Consequently, the provision in question 
does not apply to cases involving imports 
of bananas from a third country which is 
not a party to an international agreement 
concluded by Member States before the 
entry into force of the Treaty. 
The foregoing applies specifically to 
imports of bananas from Ecuador during 
1995 which were covered by the provi­
sions of Regulations Nos 404/93 and 
478/95 which were allegedly contrary to 
certain articles of GATT. That third 
country was not a contracting party to 
GATT 1947 and did not become a mem­
ber of the World Trade Organisation, and 
therefore a party to GATT 1994, until 
1996. 
2. Article 1(1) of Regulation N o 478/95 on 
additional rules for the application of 
Council Regulation N o 404/93 as regards 
the tariff quota arrangements for imports 
of bananas into the Community and 
amending Regulation N o 1442/93 pro­
vides that the tariff quota for imports of 
third-country and non-traditional ACP 
bananas is to be divided into specific 
shares allocated to various countries or 
groups of third countries, a given per­
centage being reserved for the contracting 
States to a framework agreement con­
cluded with the Community. Article 3(2) 
provides that only Category A and 
C operators, and not Category B opera­
tors (including operators who have mar­
keted Community and/or traditional 
ACP bananas), are required to obtain 
export licences from the competent 
authorities in Colombia, Costa Rica and 
Nicaragua 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 import 
opportunities of economic operators who 
traditionally import bananas from other 
third countries, is not contrary to the 
general principle of non-discrimination, 
as stated in the second subparagraph of 
Article 40(3) of the Treaty. 
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T. PORT v HAUPTZOLLAMT HAMBURG-JONAS 
There is no general principle of Commu­
nity law obliging the Community, in its 
external relations, to accord third coun­
tries 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. The 
restrictions on import opportunities 
which the introduction of country quotas 
is likely to entail for economic operators 
in the categories concerned are the auto­
matic consequence of differences in the 
treatment accorded 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. 
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 coun­
tries concerned which is some 33% 
higher, is incompatible with the above-
mentioned prohibition of discrimination, 
which is merely a specific enunciation of 
the general principle of equality, one of 
the fundamental principles of Commu­
nity law, and renders Regulation N o 
478/95 invalid to the extent to which it 
imposes that obligation only on Category 
A and C operators. 
Admittedly, the common organisation of 
the market in bananas, as established by 
Regulation N o 404/93, and in particular 
the system of tariff-quota allocation, 
involves certain restrictions or differences 
of 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 inher­
ent in the objective of integrating previ­
ously compartmentalised markets, 
bearing in mind the different situations of 
the various categories of economic opera­
tors before the establishment of the com­
mon organisation of the market. It is also 
true that pursuit of the objective of com­
mon organisation, which is to guarantee 
disposal of Community production and 
traditional ACP production, entails strik­
ing a balance between the various catego­
ries 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 concomi­
tant 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 opera­
tors 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 intro­
duced, been subjected to similar restric­
tions and differences in treatment. 
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