Opinion of the Advocate General — ECLI:EU:C:2009:674
Date: 2009-10-29
Language of the case: German
Subject matter: Association Agreement;External relations;Free movement of goods;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. International agreements – EC-Israel Association Agreement – Preferential tariff arrangements granted for products originating in Israel (EC-Israel Association Agreement, Art. 83; EC-PLO Association Agreement, Protocol No 3, Art. 16(4)) 2. International agreements – EC-Israel Association Agreement – Preferential tariff arrangements granted for products originating in Israel (EC-Israel Association Agreement, Protocol No 4, Arts 32(6) and 39) 1. The customs authorities of the importing Member State may refuse to grant the preferential treatment provided for under the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the State of Israel, of the other part, where the goods concerned originate in the West Bank. Indeed, Article 16(4) of Protocol No 3 annexed to the Euro-Mediterranean Interim Association Agreement on trade and cooperation between the European Community, of the one part, and the Palestine Liberation Organisation (PLO) for the benefit of the Palestinian Authority of the West Bank and the Gaza Strip, of the other part, implies that, if the products concerned can be regarded as products originating in the West Bank or Gaza Strip, the customs authorities of the West Bank and Gaza Strip have sole competence to issue an EUR.1 movement certificate. Accordingly, to interpret Article 83 of the EC-Israel Association Agreement as meaning that the Israeli customs authorities enjoy competence in respect of products originating in the West Bank would be tantamount to imposing on the Palestinian customs authorities an obligation to refrain from exercising the competence conferred upon them by virtue of the provisions of that protocol. Such an interpretation, the effect of which would be to create an obligation for a third party without its consent, would thus be contrary to the principle of general international law, ‘pacta tertiis nec nocent nec prosunt’, as consolidated in Article 34 of the Vienna Convention on the Law of Treaties. Furthermore, the customs authorities of the importing Member State may not make an elective determination, leaving open the questions of which of the agreements to be taken into account – namely, the EC-Israel Association Agreement and the EC-PLO Association Agreement – applies in a particular case and of whether proof of origin falls to be issued by the Israeli authorities or by the Palestinian authorities. (see paras 50, 52, 58, operative part 1) 2. For the purposes of the procedure laid down in Article 32 of Protocol No 4 annexed to the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the State of Israel, of the other part, the customs authorities of the importing State are not bound by the proof of origin submitted or by the reply given by the customs authorities of the exporting State where that reply does not contain sufficient information, for the purposes of Article 32(6) of that protocol, to enable the real origin of the products to be determined. Furthermore, the customs authorities of the importing State are not obliged to refer to the Customs Cooperation Committee set up under Article 39 of that protocol a dispute concerning the interpretation of the territorial scope of that agreement. (see para. 73, operative part 2)