61995CC0310_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1 In seeking this preliminary ruling, the Tariefcommissie of the Netherlands raises an issue of principle, concerning the conditions applicable to imports into the Community of goods originating in a non-member country but coming from overseas countries and territories (hereinafter `OCT'), where they have been released into free circulation.
2 The question arose in proceedings brought by a company against the Netherlands administration, challenging the levying of customs duties on goods imported from the Netherlands Antilles which had originated in Columbia.
Facts and proceedings before the national court
3 On 24 June 1991, Road Air BV declared to the Netherlands customs authorities at Schiphol Airport (Netherlands) the import of 7 kg of coffee extract in powder form originating in Columbia and sold in the Netherlands Antilles.
4 On 25 June 1991, the goods were classified under subheading 2101 10 11 of the common customs tariff, to which at that time customs duty was applicable at the rate of 18%.
The amount payable in respect of customs duties was thus HFL 54.40.
5 Road Air BV challenged that assessment and asked the Tariefcommissie to order refund of the amount paid.
In its view, Articles 132, 133 and 134 of the EC Treaty preclude the levying of customs import duties in the Community on goods released for consumption in the OCT, even if they originate in non-Member countries.
6 The Netherlands customs authorities rejected that claim, arguing that free circulation of goods from the OCT is available for products originating in those countries and territories but not for other products which, having originated in non-member countries, have merely passed through OCT.
7 Entertaining doubts as to the application of the Community legislation, the Tariefcommissie referred the following question to the Court of Justice for a preliminary ruling:
`Is Part Four of the EEC Treaty, in particular Articles 132(1), 133(1) and 134, to be interpreted - regardless of any distinction between goods originating in the OCT and goods originating in third countries, and thus by way of derogation from Council Decisions 86/283/EEC and 91/110/EEC - as meaning that no customs duties were payable on 25 June 1991 on goods which, immediately before being imported into the Community, were in free circulation in an OCT country?'
The applicable legislation
8 The third paragraph of Article 227 of the EEC Treaty, which defines the territorial scope of the Treaty, brings within that scope the OCT listed in Annex IV, as countries and territories to which `[t]he special arrangements for associations set out in Part Four of this Treaty shall apply'.
The Netherlands Antilles have appeared on that list since 1964.
9 Article 3(r) of the EC Treaty (1) provides that the activities of the Community are to include, as provided in the Treaty and in accordance with the timetable set out therein, `the association of the overseas countries and territories in order to increase trade and promote jointly economic and social development'.
10 Part Four of the Treaty (Articles 131 to 136) is entitled `Association of the overseas countries and territories'.
The purpose of that association, pursuant to Article 131, is to promote the economic and social development of the OCT and to establish close economic relations between them and the Community as a whole.
11 Article 132 of the Treaty provides:
`Association shall have the following objectives:
1. Member States shall apply to their trade with the countries and territories the same treatment as they accord each other pursuant to this Treaty.
...'
12 Article 133 of the Treaty provides:
`1. Customs duties on imports into the Member States of goods originating in the countries and territories shall be completely abolished in conformity with the progressive abolition of customs duties between Member States in accordance with the provisions of this Treaty.
2. Customs duties on imports into each country or territory from Member States or from the other countries or territories shall be progressively abolished in accordance with the provisions of Articles 12, 13, 14, 15 and 17.
...'
13 Article 134 of the Treaty provides: `If the level of the duties applicable to goods from a third country on entry into a country or territory is liable, when the provisions of Article 133(1) have been applied, to cause deflections of trade to the detriment of any Member State, the latter may request the Commission to propose to the other Member States the measures needed to remedy the situation.'
14 Finally, Article 136 of the Treaty provides:
`For an initial period of five years after the entry into force of this Treaty, the details of and procedure for the association of the countries and territories with the Community shall be determined by an Implementing Convention annexed to this Treaty.
Before the Convention referred to in the preceding paragraph expires, the Council shall, acting unanimously, lay down provisions for a further period, on the basis of the experience acquired and of the principles set out in this Treaty.'
15 The Council, in the exercise of the authority thus granted, has successively adopted four decisions on the association with the OCT, each being valid for five years. (2)
16 On the date on which the import transaction at issue in these proceedings took place, Council Decision 86/283/EEC of 30 June 1986 on the association of the overseas countries and territories with the European Economic Community (3) (hereinafter `Decision 86/283' or `the Fifth Decision') was applicable ratione temporis.
17 In fact, Decision 86/283, which in principle was to expire on 28 February 1990, was extended on three successive occasions by three Council decisions. (4)
The second decision, specifically, extended its validity until 30 June 1991.
18 However, a further Council decision, Decision 91/482/EEC of 25 July 1991 on the association of the overseas countries and territories with the European Economic Community (5) (hereinafter `Decision 91/482' or `the Sixth Decision'), which, pursuant to Article 241 thereof, entered into force on 20 September 1991, provided, in Article 240(1), that it would apply for a period of 10 years `from 1 March 1990'. (6)
19 Article 70(1) of Decision 86/283 limited the preferential regime to products originating in the OCT: `Products originating in the countries and territories shall be imported into the Community free of customs duties and charges having equivalent effect.' (7)
Similar clauses were to be found in the previous decisions.
20 According to Article 77(1) of Decision 86/283, `For the purposes of implementing this chapter, the concept of originating products and the methods of administrative cooperation relating thereto are laid down in Annex II'.
21 Annex II to Decision 86/283 devotes Title I (Articles 1 to 5) to the `Definition of the concept of originating products'.
Article 1(1)(b) of that annex treats the following as `products originating in the countries and territories':
(1) Products wholly obtained in the OCT;
(2) Products obtained in the OCT in the manufacture of which other products have been used, provided that the latter have undergone sufficient working or processing.
22 Article 3 of Annex II determines the requirements to be met by products for them to be regarded as sufficiently worked or processed in the OCT.
23 For its part, Decision 91/482 introduced a new rule on imports into the Community of products coming from the OCT but originating in non-member countries.
Thus, Article 101 of that decision provided:
`1. Products originating in the OCT shall be imported into the Community free of customs duties and charges having equivalent effect.
2. Products not originating in the OCT but which are in free circulation in an OCT and are re-exported as such to the Community shall be accepted for import into the Community free of customs duties and taxes having equivalent effect providing that they:
- have paid, in the OCT concerned, customs duties and taxes having equivalent effect of a level equal to, or higher than, the customs duties applicable in the Community on import of these same products originating in third countries eligible for the most-favoured-nation clause,
- have not been the subject of an exemption from, or a refund of, in whole or in part, customs duties or taxes having equivalent effect,
- are accompanied by an export certificate. 3. The provisions of paragraph 2 shall not apply to:
- agricultural products listed in Annex II to the Treaty nor to products falling within Council Regulation (EEC) No 3033/80 of 11 November 1980 laying down the trade arrangements applicable to certain goods resulting from the processing of agricultural products, as last amended by Regulation (EEC) No 1436/90,
- products subject, on import into the Community, to quantitative restrictions or limitations,
- products subject, on import into the Community, to anti-dumping duties.'
Retroactive application of Decision 91/482
24 The question from the national court relates only to Decision 86/283.
In the main proceedings, the possibility that the decision to be given might depend not on that decision but on Decision 91/482 was not canvassed.
25 The system of cooperation established by Article 177 of the EC Treaty, however, enables the Court of Justice to provide the national court with information relevant to the interpretation of Community law provisions which it considers to be applicable to the case, even if the national court has not expressly referred to any of them.
26 Both the Commission and the Council and the French and Netherlands Governments consider that the Sixth Decision is applicable to the present case.
If that were the case, and the import into the Community of the coffee originating in Columbia and in free circulation in the Netherlands Antilles met the conditions, both positive and negative, laid down by Article 101 thereof, it is possible that the importer which instituted the main proceedings might not be required to pay the customs duties which it earlier paid and now reclaims.
27 For that to be the case, at least three circumstances would have to be proved:
(a) that the Sixth Decision is retroactively applicable to events occurring before its publication;
(b) that such retroactivity, in so far as it benefits the plaintiff, is not contrary to Community law;
(c) that Road Air BV benefits from the retroactive application of the new decision and can in practice rely upon it.
28 The retroactive application of the Sixth Decision, as I stated earlier, derives from Article 240(1) thereof.
That provision - whose two-fold purpose was to link the new decision with the theoretical expiry date of the previous decision and to dovetail with the coming into effect of the new decision on the ACP States - indicated that it would apply as from 1 March 1990, a date falling long before its publication.
29 The retroactivity of the Sixth Decision is thus unavoidable.
It is quite another matter that the coexistence of Articles 240 and 241 thereof, according to their terms, does not add up to good legislative drafting and raises clear problems of transitional applicability. However, quality and good drafting are not preconditions for the validity of provisions.
30 Since the import transaction at issue in the main proceedings took place in June 1991, it is retroactively covered by the Sixth Decision.
If such retroactive application gave rise to adverse consequences for economic agents, with respect to their existing tax position vis-à-vis their respective authorities, I have no doubt that it would be contrary to Community law.
Such agents could successfully allege breach of the principles of legal certainty and protection of legitimate expectations, to which, in the case-law of the Court of Justice, traditionally restrict the retroactivity of provisions.
31 However, in so far as the new decision favours its addressees, improving their legal position, I see no good grounds for invalidating the retroactive application decided upon by the Community legislature.
32 To be precise, I am not convinced by Road Air's arguments against the retroactivity of the Sixth Decision, which are inspired more by general considerations (lack of statement of reasons, breach of the principles of protection of legitimate expectations and legal certainty) than by its impact on the present case.
33 In the first place, although the preamble to the Sixth Decision gives little detail regarding its entry into force, (8) I consider it to be sufficient to determine the Council's intention in making it take effect retroactively.
34 In my opinion, it satisfies the requirement of a statement of reasons laid down in Article 190 of the Treaty, upon which the Court of Justice has placed particular emphasis in ruling as to the validity of Community measures or provisions which have retroactive effect. (9)
35 Secondly, as far as the principles of the protection of legitimate expectations and legal certainty are concerned, it is true that they might be infringed if the new provision were applied retroactively to the detriment of its addressees.
But where, on the contrary, its application has a favourable impact on them, such as reimbursement of tax paid at an earlier stage, I do not see how the legitimate expectations of the persons liable to the tax could be frustrated or legal certainty undermined.
36 The Court of Justice has held, in that regard, that `although in general the principle of legal certainty precludes a Community measure from taking effect from a point in time before its publication, it may exceptionally be otherwise where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected (see, most recently, Case C-368/89 Crispoltoni [1991] ECR I-3695, paragraph 17)'. (10)
37 Respect for legitimate expectations provides a means of protecting legal situations which people have consolidated, so that they cannot be upset a posteriori by administrative measures whose adverse effects detract from their previous status, which they acquired under the provisions then in force.
38 The problem raised by the retroactive application of the Sixth Decision is thus not a matter of principle but rather one of practicalities: can Road Air BV prove, ex post facto, that in June 1991 it satisfied the substantive and formal requirements laid down by Article 101(2) of the Sixth Decision in order to enjoy the benefit of duty-free importation?
39 As regards the substantive requirements laid down by that paragraph, I do not believe that any difficulties arise: it would be sufficient to prove that, when the coffee extract from Columbia entered the Netherlands Antilles, customs duties were paid at the same rate or a greater rate than those applicable in the Community. (11)
40 At the hearing, Road Air BV nevertheless stated that the customs duties paid on the import of the coffee extract into the Netherlands Antilles were less than those payable under the common customs tariff.
If that is the case - a matter to be verified by the national court - retroactive application of the Sixth Decision does not resolve the problem entirely, since part of the customs debt would remain outstanding.
41 On the contrary, if it were proved that the customs duties paid in the Netherlands Antilles are equivalent to or greater than those payable under the common customs tariff, application of the Sixth Decision disposes of the problem, rendering unnecessary any further consideration of how the Treaty is to be interpreted.
42 As regards the formal requirement of providing an `export certificate' (last indent of Article 101(2) of the Sixth Decision), Road Air BV states that it would be difficult to obtain one, now, from the Netherlands Antilles authorities in view of the lapse of time.
Even if that is the case, in view of the merely incidental nature of that requirement and the fact that the Netherlands authorities accepted, without objections, that the product in question was coffee exported from that territory, the absence of an export certificate could not in this case impede reimbursement of the customs duties already paid. (12)
43 To summarize, I consider that the answer given by the Court of Justice to the national court should indicate that Decision 91/482 is applicable retroactively to the import transaction at issue in the main proceedings, to the extent to which it is favourable to the plaintiff undertaking, enabling it to recover all or part of the customs duties paid.
44 If, on the contrary, the Court of Justice were not to accept Article 240(1) of Decision 91/482 as valid, or declared it inapplicable to the facts of the case before the national court, or if its application did not allow full recovery of the customs duties paid upon the entry of the product into the Community, it would be necessary to analyse the preliminary question in the terms in which it was framed.
I will do so below.
Trade between the Community and the OCT
45 The plaintiff's thesis is based on an initial proposition: the Netherlands Antilles form part of the Kingdom of the Netherlands, as a Member State, and cannot be treated as a non-member country since they are associated on a constitutional basis and not, as in the case of non-member countries, on a merely contractual basis.
46 Starting from that premiss, Road Air BV contends that the Treaty prevents the levy of customs duties upon the import into the Community of goods in free circulation in an OCT.
Irrespective of whether they originate in that OCT or come from a non-member country, the rules governing intra-Community trade are fully applicable to imports into the Community of goods in both categories, since their origin is irrelevant.
47 The fact that the Netherlands Antilles form part of the Netherlands does not mean that the Treaty is automatically and necessarily applicable to them.
In fact, under the Protocol on the application of the Treaty establishing the European Economic Community to the non-European parts of the Kingdom of the Netherlands, the Netherlands Government was empowered - and exercised the power - to ratify the Treaty only for the Kingdom in Europe and for Dutch New Guinea, to the exclusion, therefore, of the Netherlands Antilles.
48 That situation continued until 1964, in which year it was necessary to approve a specific Convention revising the EEC Treaty so as to allow application to the Netherlands Antilles of the special association rules laid down in Part Four of that Treaty. (13)
49 It is thus clear that the application of the Treaty to the Netherlands Antilles derives not so much from their forming part of the Kingdom of the Netherlands as from the application of a specific Convention which, in its turn, refers to Part Four of that Treaty.
Accordingly, it is the rules of Part Four of the Treaty which determine the legal situation to be taken into account.
50 As regards the nature of the association of the OCT with the Community, which Road Air BV describes as constitutional, suffice it to say that the plaintiff accepts that the association rules are sui generis, and their individual features cannot therefore be assimilated to the traditional form of customs union or free trade area.
51 To summarize, the arguments that the OCT are an integral part of the Member States or that the basis of their association can be classified in one particular way or another are of minimal importance in this case, since the only relevant consideration in that regard is the extent to which each of the provisions of the EEC Treaty may be applied to them, having regard to Articles 131 to 136 of that Treaty.
52 The general answer given to that question by the Court of Justice is to be found in its judgment of 12 February 1992 in Leplat: `That association [of the OCT with the Community] is the subject of arrangements defined in Part Four of the Treaty (Articles 131 to 136), with the result that, failing express reference, the general provisions of the Treaty do not apply to the OCT'. (14)
53 By virtue of the association with the Community of the OCT, therefore, the latter are not directly and automatically covered by all Community law, (15) whether primary or secondary: on the contrary, it will be necessary in each case to decide, in the light of Articles 131 to 136 of the EC Treaty, what provisions are applicable to them and to what extent.
54 Trade between the Member States and the OCT must, in principle, conform to the same general rules as those laid down by the Treaty for intra-Community trade (Article 132(1)).
55 Article 132 sets out a series of `objectives', one of which is the placing of trade on an equal footing, as mentioned.
I am not convinced by Road Air BV's argument that the term `objectives', applied to Article 132(1), is the result of a drafting error.
56 To that end, Road Air BV seeks to rely on paragraph 19 of Leplat, cited above, according to which `... in order to comply with the obligation laid down in Article 132(1), the reference to customs duties in Article 133(1) must include charges having an effect equivalent to customs duties'. According to the plaintiff, by using the word `obligation', the Court of Justice denied that Article 132(1) was merely an objective.
57 That argument does not take sufficient account of the fact that a few lines earlier in paragraph 19 of Leplat, the Court of Justice stated expressly: `That provision [Article 133(1) of the Treaty] gives concrete form to the objective set out in Article 132(1), which provides that the Member States are to apply to their trade with the OCT the same treatment as they accord to each other pursuant to the Treaty.' (16)
58 For my part, I find no difficulty in reconciling those two statements: the ultimate objective involves, for the Community, an obligation to achieve a certain result. However, that obligation is not absolute and unconditional but may be adjusted, from the substantive and temporal points of view: the Treaty itself thus provides in Articles 133 and 136.
59 From the substantive point of view, the Treaty limits Community tariff dismantling, that is to say the absolute abolition of Community customs duties, to certain imports of goods exported from the OCT (Article 133(1)), the details of which I shall consider below.
60 From the temporal point of view, the adjustments made by the Treaty are of two kinds:
(a) those imports are to benefit from the progressive abolition of customs duties between Member States in accordance with the provisions of the Treaty (Article 133(1));
(b) the Council is to lay down, after a first transitional period, the provisions for the subsequent basis of association of the OCT (Article 136).
61 I will now analyse both points in greater detail.
(i) The substantive aspects
62 Article 133(1) raises an initial linguistic problem: does it refer to all kinds of imports from the OCT into the Community (that is to say, both to products originating in the OCT and to products from non-member countries which are in free circulation in the OCT) or only to imports of goods which originate in the OCT?
63 The various language versions of the same provision can be placed in three groups:
(a) those which contain no reference to the origin of the goods, only to imports; thus, the French version (`importations originaires des pays et territoires'), the Italian version (`le importazioni originarie dei paesi e territori'), and the Portuguese (`as importações originárias dos países e territórios');
(b) those which refer expressly to the goods so imported, which must `originate' in the OCT: these include the English version (`imports of goods originating in the countries and territories') and the Spanish version (`importaciones de mercancías originarias de los países y territorios');
(c) those others which, like the Netherlands version (`goederen van oorsprong uit de Landen en gebieden') or the German version (`Einfuhr von Waren aus den Ländern und Hoheitsgebieten'), refer to imported products without qualifying them further.
64 The choice of one language version or another has very different legal consequences.
If `originating goods' are chosen, the scope of Article 133 of the Treaty is limited to those goods which were produced, in an economic sense, in the OCT.
The expression would not include, therefore, those other products whose connections with the OCT are merely incidental, as in the case of products marketed in the OCT but originating in third countries. (17)
65 Conversely, if Article 133 provided for the abolition of customs duties for all imports `originating' in the OCT, its scope would extend also to products in free circulation in those OCT.
The expression `imports originating in ...' would be equivalent to the expression `imports from ...' used in Article 133(5): both cover, without distinction, imported products of all kinds.
66 In view of the linguistic divergences, recourse must be had to the interpretative criteria of the legislative context of Article 133 and the intrinsic meaning and purpose of that provision.
67 An initial consideration at first sight supports the more restrictive interpretation, the effect of which is to limit the abolition of Community customs duties to imports of products originating in the OCT.
To allow the opposite view, namely that any product originating in any non-member country would be exempt from payment of the customs duties laid down in the common customs tariff on entry into the Community merely because the last place where it was marketed was one of the OCT might encourage evasion of the law and pave the way for artificial deflections of trade.
68 There is in fact little doubt that the common customs tariff could easily be evaded by bringing the goods in question into the Community through the OCT which levied the lowest customs duties or even levied none.
Exporters in non-member countries would be tempted to bring their products into the Community through the OCT without the need to pay the prescribed common customs tariff duties.
69 However, reference to the legislative context of Article 133 reveals that that hypothetical situation is specifically contemplated in Article 134, which endeavours to counter the effects of that situation - if they were to arise.
70 Article 134 of the Treaty covers cases where the customs duties applicable to imports into an OCT of goods from a non-member country are of a level such that, having regard to the provisions of Article 133(1), there might be deflections of trade to the detriment of one or more of the Member States.
In such circumstances, such a Member State `may request the Commission to propose to the other Member States the measures needed to remedy the situation'.
71 The provisions of Article 134 would be meaningless if Article 133(1) - to which it expressly refers - covered only products originating in the OCT: those products, by definition, are not subject to customs duties within the OCT and therefore could never be affected by the conditional phrase in the first sentence of Article 134 (`If the level of the duties applicable to goods from a third country on entry into a country or territory ...').
72 In other words, given that the Treaty included in Article 134 a specific safeguard clause in case the normal application of Article 133(1) were to cause `deflections of trade to the detriment of any Member State', the a contrario argument shows that Article 133(1) must also apply to Community imports from the OCT of products originating in non-member countries on which duties of a specified level have been paid on their entry into the OCT from which they are re-exported to the Community.
73 At the hearing, both the Council and the Commission and the Netherlands Government offered an alternative explanation of Article 134: it applied only to the situation which arose immediately after signature of the EEC Treaty, but became obsolete - and is therefore now superfluous - on expiry of the transitional period, when the common rules on the origin of goods and the common customs tariff were laid down.
74 I am not convinced by that argument.
In my opinion, nothing in Article 134 supports the view that its validity is limited to a transitional period.
When the authors of the EEC Treaty wished to emphasize the provisional nature of a provision, they did so expressly.
In the absence of an express mention, and when the wording of the provision itself likewise contains nothing concerning timing, I see no reason to limit its application to a specified period.
75 The interpretation of Article 134 which I advocate does not however imply that Article 133(1) of the Treaty is immediately and unconditionally effective.
First, Article 132 of the Treaty describes as an `objective' the application of Community treatment (that is to say, the treatment accorded to each other by the Member States) to trade between the Community and the OCT.
Secondly, in pursuance of that objective, the Council enjoys a degree of latitude, which enables it to progress gradually.
I shall return to this point.
(ii) The temporal aspects
76
Article 136 of the Treaty provides that, after the first Implementing Convention (determining the details of and procedure for the association of the OCT with the Community) has been in force for five years, the Council `shall ... lay down provisions for a further period, on the basis of the experience acquired and of the principles set out in this Treaty'.
77 In those terms, that provision raises at least two problems affecting the present case:
(a) Is the `further period' for which the Council is to legislate a single period, or, on the contrary, may it comprise gradual stages?
(b) To what extent are the `provisions for a further period' linked with the `principles set out in the Treaty'?
78 The subsequent OCT Decisions, adopted by the Council as from 1964, purporting to be based on Article 136 of the Treaty, (18) are based on the implicit premiss that the said article allows progressive application in time, so that the `further period' could be determined either once or by means of a series of decisions.
79 However, Road Air BV's thesis runs counter to the Council's abovementioned interpretation: in its view, the period provided for in Article 136 is a single period, so that upon the lapse of the first decision, adopted after the expiry of the Implementing Convention annexed to the Treaty, the Council was legally precluded from adopting any similar decision.
80 Even though I recognize that Road Air BV's view has some basis, I consider that the logic of the scheme and the intrinsic meaning of the provision are more conducive to the opposite view.
The latter might, at first sight, appear forced, given the literal wording of the second paragraph of Article 136, but I believe that a more in-depth analysis of that provision points in that direction.
81 The powers which Article 136 grants to the Council are not subject to any time-limit whatsoever.
By contrast with the five-year period laid down for the initial Implementing Convention, the subsequent provisions are not subject to any time-limits.
The Treaty thus leaves the Council considerable room for manoeuvre, without timing restrictions.
82 For the exercise of that power, two options were open to the Council: either to lay down a single period, of considerable length, or to legislate for shorter, sequential periods, the temporal effects of which in fact coincide with those of a single, more extended period.
If the Council was authorized - as it in fact was - to adopt the first option, for the same reason it could resort to the second.
83 The logic of the system is conducive to the same conclusion: the process of association of the OCT and the Community is, necessarily, a dynamic process which, at each stage, calls not only for political impetus but also for account to be taken of the objective circumstances of the OCT as a whole.
The Treaty did not seek to limit that process to the term of the first Implementing Convention, but instead authorized the Council to adopt the appropriate provisions, in the light of the results obtained, and it did so without imposing time-limits for the action to be taken by it.
84 For the rest, the Court of Justice, in its judgments on the various OCT Decisions, likewise has not taken the view that the Council, in adopting them, exceeded the powers which it enjoys under Article 136 of the Treaty.
On the contrary, it has recognized the link between that article and those decisions.
85 Thus, in paragraph 11 of the judgment in Leplat, cited above, the Court of Justice stated: `The second paragraph of that article [136] provides that, before the Implementing Convention expires, the Council is to lay down provisions for a further period, on the basis of the experience acquired and the principles set out in the Treaty.
In application of that provision, the Council has taken a number of decisions, the first of which was Decision 64/349/EEC ..., while that in force at the material time was Decision 86/283.' (19)
86 Similarly, in its judgment of 26 October 1994 in Netherlands v Commission, (20) referring to another OCT decision, the Court of Justice mentioned a `decision adopted by the Council under Article 136 of the EEC Treaty ... Decision 91/482/EEC of 25 July 1991 on the association of the overseas countries and territories with the European Economic Community'.
87 It is true that in those judgments the Court of Justice did not directly tackle the problem of the validity of the OCT Decisions, which had not been raised before it, and took it for granted that they were valid.
But it is also true that an irregularity as serious as the overstepping of the Council's powers, persisting for more than 20 years in the adoption of successive decisions, would without doubt have been focused upon by the Court of Justice.
88 To summarize, even if it were conceded that Road Air BV's view on this point carried some weight, I do not see sufficient reason to deny the Council the power to subdivide the `period' of time referred to in Article 136 of the Treaty.
The validity of the successive decisions adopted in that regard by the Council is not thus affected by the excess of authority imputed to it by Road Air BV.
89 The second problem raised by the sequence in time of the decisions is their content: did the Council enjoy some latitude in determining the rate of and procedure for implementation of the `principles set out in this Treaty'?
90 The answer must in my opinion be affirmative, since Article 136 entrusts the Council with evaluation of the `experience acquired' as a preliminary to the adoption of subsequent OCT Decisions: such decisions must be adopted on the basis of that experience, the evaluation of which by the Council must necessarily involve a considerable degree of discretion.
91 Specifically with regard to the objective laid down in Article 132(1) - which is the basis for the principle expounded in Article 133(1) - the Council's margin of discretion allowed it, in my opinion, to proceed gradually, ultimately abolishing customs duties on imports from the OCT of products originating in non-member countries on which the prescribed duties have been paid upon entry into the OCT.
92 On this point, Road Air BV raises an objection of some weight: even if the Treaty had not laid down a fixed time-limit for attainment of the objective set out in Article 132(1), the Council would have acted illegally by maintaining until the Sixth Decision - that is to say 33 years after introduction of the regime provided for in the Treaty and 23 years after the full entry into force of the rules on the free movement of goods - a system which imposes certain requirements linked with the origin of imported products.
93 The criticism levelled by Road Air BV, which in its initial submissions primarily attacked the Fifth Decision, was extended, in its reply to a question put to it by the Court of Justice, to the provisions of the Sixth Decision. In its opinion, they too are in breach of the Treaty (specifically, Article 132(1) and Article 133(1)) in that they impose customs duties on certain imports from the OCT.
94 However, that objection does not convince me.
95 It must be borne in mind that each of the OCT Decisions represents a cohesive legislative whole, the various components of which cannot be analysed in isolation. Specifically, the abolition of tariff duties must be linked with another series of measures which, to a greater or lesser degree, promote the economic and social development of the OCT. (21)
96 The Council must, therefore, take account of `the experience acquired' on the expiry of each of the OCT Decisions, so that the new conditions facilitate progress towards attainment of the objectives laid down in Part Four of the Treaty.
To the extent to which the subsequent decision, viewed as a whole, moves towards the attainment of those objectives, the purpose of the powers conferred on the Council by Article 136 will have been achieved.
97 The rate of that progress can easily be seen in the two decisions which may be applicable to the present case: according to the Fifth Decision, only products originating in the OCT can be imported into the Community free of customs duties, apart from certain agricultural products. On the contrary, as from the Sixth Decision, the exemption is granted in more generous terms, including not only those agricultural products but also goods not originating in the OCT (with exceptions for certain sensitive products) which are in free circulation in the OCT and are to be exported to the Community.
98 The access of goods from the OCT to the Community customs territory (which, of course, does not include the Netherlands Antilles) has thus been the subject of progressive liberalization to the point where, in 1991, the full potential of Article 133(1) was achieved.
That process of customs dismantlement goes hand in hand with the introduction of another series of measures which also promote trade with the OCT and thereby contribute to their economic and social development.
99 I do not perceive sufficient legal grounds for treating as contrary to the Treaty the rate of customs dismantlement adopted by the Council by virtue of the two decisions at issue, adopted in the exercise of a discretion as wide as that granted to it by Article 136 of the Treaty.
In my view, none of the usual legal methods of monitoring the exercise of discretionary powers of an institution discloses, in this case, the existence of any defect which might invalidate those decisions.
100 All the foregoing thus militates in favour of the application, according to their terms, of the provisions contained in either decision, concerning customs duties payable on import into the Community of goods from a non-member country which were in free circulation in the Netherlands Antilles.
101 To the extent to which the Sixth Decision is applied retroactively, giving rise to the refund to Road Air BV of customs duties paid upon entry of the product into the Community, most of its objections to the levying of such customs duties are deprived of their foundation: the factual basis of the levy would simply disappear, since it would be an import not taxed in the Community.
102 If, on the contrary, that result were impossible, or if the Court of Justice considered the Sixth Decision inapplicable, despite its retroactivity, the reply to be given to the national court would in my view have to uphold the validity of the provisions of the Fifth Decision which, at the material time, allowed customs duties to be levied on the imports at issue in the main proceedings.
Conclusion
103 I therefore suggest that the Court of Justice give the following answer to the question referred to it by the Tariefcommissie:
(1) Council Decision 91/482/EEC of 25 July 1991 on the association of the overseas countries and territories with the European Economic Community applies retroactively to the import at issue in the main proceedings, to the extent to which it is favourable to the plaintiff undertaking, enabling it to recover all or part of the customs duties paid by it.
(2) In any event, the rules contained in Part Four of the EEC Treaty, and in particular Articles 132, 133, 134 and 136, did not, at the material date, prevent the levying of customs duties on the import into the Community of goods originating in a non-member country which were in free circulation in the Netherlands Antilles.
The legal conditions governing those duties are contained either in Decision 91/482 or in Council Decision 86/283/EEC of 20 June 1986, the due application of which does not infringe the abovementioned articles of the EC Treaty.
(1) - As amended by Article G(2) of the Treaty on European Union.
(2) - They are Council Decisions 64/349/EEC of 25 February 1964 (Journal Officiel 1964, 93, p. 1472); 70/549/EEC of 29 September 1970 (OJ, English Special Edition, Second Series I(ii), p. 164); 76/568/EEC of 29 June 1976 (OJ 1976 L 176, p. 8); and 80/1186/EEC of 16 December 1980 (OJ 1980 L 361, p. 1).
Hereinafter, I shall refer to them as `OCT Decisions'.
(3) - OJ 1986 L 175 p. 1.
(4) - They were: Council Decisions 90/146/EEC of 5 March 1990 (OJ 1990 L 84, p. 108); 91/110/EEC of 27 February 1991 (OJ 1991 L 58, p. 27), adopted `pending a further decision from the Council' on the association of the OCT, and 91/312/EEC of 28 June 1991 (OJ 1991 L 170, p. 13).
(5) - OJ 1991 L 263, p. 1.
(6) - The problems of retroactivity raised by this provision will be analysed later.
(7) - Even then, Article 77(2) provides for certain exceptions for certain products.
(8) - One of the recitals states: `in view of the many similarities between the OCT and many of the ACP States, and while respecting their differing status, the provisions for the OCT should be adopted for the same period as for the ACP States' (second recital).
(9) - See Joined Cases C-260/91 and C-261/91 Diversinte and Iberlacta [1993] ECR I-1885, paragraph 10.
(10) - Judgment in Diversinte and Iberlacta, cited above, paragraph 9.
(11) - As the Commission states, coffee extract is not one of the products excluded from the scope of Article 101(2).
(12) - In its judgment in Case C-12/92 Huygen and Others [1993] ECR I-6381 the Court took a very flexible approach regarding the production ex post facto of import certificates where the authorities of the State responsible for issuing them failed to do so.
According to that judgment (paragraphs 22 and 35) the fact that the customs authorities in the exporting State are unable to establish the correct origin of goods is in principle an abnormal and unforeseeable circumstance outside the importer's control: the importer is entitled, according to the circumstances, to invoke as force majeure the fact that the customs authorities in the exporting Member State are unable, by reason of their own negligence, to establish the correct origin of the goods by means of a subsequent verification.
(13) - Journal Officiel 1964, 150, p. 2414.
(14) - Case C-260/90 Leplat [1992] ECR I-643, paragraph 10.
(15) - In paragraph 62 of Opinion 1/78 of 4 October 1979 ([1979] ECR 2871) and in paragraph 17 of Opinion 1/94 of 15 November 1994 ([1994] ECR I-5267), the Court of Justice, referring to the OCT, states that they are countries and territories which are dependent on the Member States but are outside the scope of Community law.
(16) - Emphasis added.
(17) - This interpretation of the adjective `originating' is the one consistently relied on in the successive Council decisions adopted under Article 136 of the Treaty.
It is the one, for example, which prevails in the Fifth Decision, Annex II to which, referring to Article 77, treats as products originating in the OCT those which were obtained wholly, or were sufficiently processed, in the OCT.
(18) - Thus, for example, the preamble to Decision 91/482 commences: `Having regard to the Treaty establishing the European Economic Community and in particular Article 136 thereof ...'.
(19) - Emphasis added.
(20) - Case C-430/92 [1994] ECR I-5197, paragraph 2.
(21) - Thus, for example, the Sixth OCT Decision considerably improves financial cooperation of the Community with the OCT (an increase of 40% in development funds); it enables the OCT to introduce measures intended to promote or sustain local employment; it introduces a system of decentralized competition; it places emphasis on the promotion of undertakings and respect for the environment, besides introducing innovations of the kind mentioned above in the trading rules.