61990C0228
OPINION OF ADVOCATE GENERAL
LENZ
delivered on 13 December 1991 (
*1
)
Mr President,
Members of the Court,
A — Facts
1.
In its judgment in Case 184/85, (
1
) delivered on 7 May 1987, the Court of Justice declared that the Italian Republic had failed to fulfil its obligations under the second paragraph of Article 95 of the EEC Treaty by imposing and maintaining in force a tax which was applicable to fresh bananas originating in other Member States, and in particular to bananas from the French overseas departments. Also on 7 May 1987, in Case 193/85, (
2
) the Court made the following preliminary ruling:
‘(1)
A charge described as a consumer tax which is imposed on both imported products and domestic products but in practice applies almost exclusively to imported products because domestic production is extremely small does not constitute a charge having an effect equivalent to a customs duty on imports within the meaning of Articles 9 and 12 of the EEC Treaty if it is part of a general system of internal dues applied systematically to categories of products in accordance with objective criteria irrespective of the origin of the products. It therefore constitutes internal taxation within the meaning of Article 95;
(2)
The second paragraph of Article 95 of the EEC Treaty precludes the charging of a consumer tax on certain imported fruit where it may protect domestic production;
(3)
Article 95 of the EEC Treaty covers all products coming from Member States, including products originating in nonmember countries which are in free circulation in the Member States.’
2.
A number of undertakings which imported fresh bananas into Italy then considered that under Community law the consumer tax on fresh bananas which was the subject-matter of the two abovementioned judgments (and which has since been abolished by the Law of 29 December 1990) was not due when bananas are imported directly from nonmember countries. They therefore applied for interim measures to the three courts that have referred questions for a preliminary ruling to this Court, and in fact obtained a provisional ruling that any imports of bananas planned at that time would not be subject to the abovementioned charge. However, after hearing the parties at a later stage of the proceedings, the national courts came to the conclusion that questions of Community law needed to be clarified before a final decision could be made on the applications. They therefore stayed the proceedings and referred a series of questions to the Court of Justice for a preliminary ruling.
3.
In all three cases the first question was as follows:
‘Is the charge on the consumption of fresh bananas introduced into the Italian legal system by Law No 986/1964, amended by Law No 873/1982, incompatible with the spirit and the scheme of Community law as embodied in Article 9 of the EEC Treaty, which provides for the adoption of a common customs tariff as regards nonmember countries, and in Article 113 of the Treaty, which provides for the implementation of a common commercial policy by the Member States, given that the abovementioned charge, which is no longer applicable to products in free circulation in the Member States following the judgments given by the Court of Justice in Cases 184/85 and 193/85, remains applicable solely to products originating directly in nonmember countries, thus amounting to a protectionist measure which was not adopted in accordance with the conditions provided for in Article 115 of the EEC Treaty?’
(In Case C-339/90 an additional question is asked at this point concerning a possible infringement of Article 95 of the EEC Treaty)
4.
In Cases C-228/90 to C-234/90 and C-353/90 the second question (which is not referred in Case C-339/90) is as follows:
‘If so, must the law introducing that charge be set aside by the national court, with the result that there is no obligation on individuals to pay the relevant charge?’
5.
The third question (which is the second question in Case C-339/90) raises in the alternative the further question whether only Law No 873/1982 — under which Italy raised the tax in question from LIT 70 to the rate applicable at the time of LIT 525 contrary to the judgment of the Court of Justice in Joined Cases 37/73 and 38/73 (
3
) prohibiting Member States from altering the level of protection determined by the Common Customs Tariff — is to be regarded as incompatible with the abovementioned provisions of the EEC Treaty and with Regulation No 950/68 of the Council, (
4
) which has been in force since 1 July 1968.
6.
In that regard I consider that the following observations should be made and would refer to the Report for the Hearing for fuller details of the proceedings.
B — Analysis
7.
1. First, it is possible to deal very briefly with the question whether Article 95 of the EEC Treaty applies to direct imports of bananas from nonmember countries, which must be considered if the charge at issue is still to be considered as internal taxation within the meaning of that Article and which was raised in Case C-339/90 alone.
8.
It is clear just from the wording of the first and second paragraphs of Article 95 that that provision concerns exclusively taxation ‘on the products of other Member States’. Thus Article 95 is not applicable if goods are imported directly from nonmember countries and taxed on importation.
9.
That view has also been expressly stated in the case-law, in Case 20/67 (
5
) (‘Since the provisions of Article 95 of the Treaty establishing the European Economic Community relate only to products originating in Member States, they cannot be applied to imports from a third country’) and in Case 148/77 (
6
) (‘The Treaty itself does not include any rule similar to that laid down in Article 95, which applies only to products coming from the Member States’). Nor can that case-law be undermined by the argument — put forward by one of the applicants in the main proceedings — that the judgment in Case 148/77 need no longer be followed because in the more recent judgment in Case 193/85 it was held that Article 95 also covers products originating in nonmember countries which are in free circulation in the Member States. Leaving aside the unambiguous wording of Article 95, that argument can be rebutted by pointing out that the judgment in Case 193/85 does not in fact depart from the judgment in Case 148/77 (which concerned only goods from the Member States in general); it merely clarifies and develops the case-law.
10.
Furthermore, if the tax on bananas is to be regarded as internal taxation, it is probably of no assistance in the present case that in Case 148/77, after stating that the Treaty did not include any provision prohibiting discrimination in the application of internal taxation to products imported from nonmember countries, the Court went on to say that that finding was without prejudice to any treaty provisions which may be in force between the Community and the country of origin of a given product.
11.
That is true in any event for the agreements concluded with Tunisia, Morocco and Israel, referred to by the Commission in its observations, and for the association agreement between the European Economic Community and the associated African and Malagasy States, ratified by the Council Decision of 29 September 1970. The provisions of those agreements relating to taxation correspond to the first paragraph of Article 95; in other words they are limited to simihr products. However, it was made clear in the judgment in Case 193/85 that the first paragraph of Article 95 is not applicable to imports of bananas into Italy (because bananas cannot be regarded as similar to fruit produced in Italy). It was therefore necessary to have recourse to the second paragraph of Article 95, and it is clear that there is no equivalent to that provision in the abovementioned agreements.
12.
However, a different conclusion could possibly be reached in relation to the Third Lomé Convention, (
7
) which was in force at the material time and which is relevant for some of the imports at issue in the main proceedings, and having regard to the fact that in the judgment in Case 193/85, the Italian tax on bananas was expressly described as protectionist. (
8
) In that regard, as one of the applicants in the main proceedings pointed out at the hearing, it is conceivable that Article 139(2) of the abovementioned Lomé Convention, under which the Community and its Member States undertook ‘not to use safeguard measures or other means for protectionist purposes’, could be relied on.
13.
However, as I will demonstrate later, a proper classification of the Italian tax results in the application not of Article 139(2) of Lomé III but of another provision of that convention, and therefore there is no need to deal more extensively with the relevant question. That is again true for Article 111(1 ) and (2) of GATT, which was also referred to in the oral procedure and which provides as follows:
‘1.
The contracting parties recognize that internal taxes and other internal charges, and laws, regulations and requirements affecting the internal sale, offering for sale, purchase, transportation, distribution or use of products, and internal quantitative regulations requiring the mixture, processing or use of products in specified amounts or proportions, should not be applied to imported or domestic products so as to afford protection to domestic production.
2.
The products of the territory of any contracting party imported into the territory of any other contracting party shall not be subject, directly or indirectly, to internal taxes or other internal charges of any kind in excess of those applied, directly or indirectly, to like domestic products...’.
14.
Moreover, with regard to that provision (of which the national courts have not, incidentally, requested an interpretation), I would recall the case-law according to which GATT provisions are not directly applicable in national courts. (
9
) Thus such provisions lack the legal effect which, as the second question referred to the Court shows, is decisive in the view of the national courts.
15.
It should also be pointed out in that connection — and I say this in reference to a specific argument put forward at the hearing by one of the applicants in the main proceedings — that the entry into force of the Common Customs Tariff and the judgment in Joined Cases 37/73 and 38/73 (to which I shall return) relating thereto are of no assistance in the present case if the tax at issue is to be classified as internal taxation. In fact, the abovementioned judgment (according to which it is unlawful, after the entry into force of the Common Customs Tariff, to introduce, in a unilateral manner, new national charges or to raise the level of those in existence at that time) does not cover all charges but only those having equivalent effect to customs duties. In my view, that is made unambiguously clear by the Court in paragraphs 2 and 3 of that judgment.
16.
2. With regard to the remainder of the first question, to which I now come, in other words with regard to the aspects relating to the introduction of a Common Customs Tariff and to Article 113 on the implementation of a common commercial policy, there is, as already pointed out and as rightly stressed by the Commission and a number of the applicants in the main proceedings, every reason to reconsider the problem of ossification, which, as the Court is aware, was already central to the discussion in the cases referred to earlier.
17.
That is not to suggest, of course, that the abovementioned case-law should be fundamentally changed or abandoned, although I still believe that there are good grounds not to classify a priori the Italian banana tax as internal taxation within the meaning of Community law (in that regard, I refer to my Opinion in Case 193/85, in particular to the circumstance mentioned there that it could not be proved that bananas produced in Italy were actually subject to taxation, and to the fact that the background to the Italian tax shows clearly that it serves commercial policy objectives).
18.
Rather, the problem of classification also arises — notwithstanding the view expressed by the Italian Government — even if it is assumed that the case-law mentioned at the beginning of this Opinion is correct, because according to that case-law under Article 95 of the EEC Treaty the tax was wrongfully levied on goods from other Member States (whether the bananas were produced in those countries or were only in free circulation there). In fact only bananas imported directly from nonmember countries then remained subject to the tax.
19.
At the same time, that shows that the conditions laid down in the case-law of the Court of Justice for internal taxation are not in essence met, which leads to the conclusion that the tax is in fact a charge having an effect equivalent to a customs duty. That conclusion is also reached when account is taken of the fact, stressed during the proceedings, that the tax was levied only on importation and that subsequent consumption was therefore irrelevant.
20.
I refer in that regard to the judgment in Case 21/75, (
10
) according to which a charge having an effect equivalent to a customs duty is any charge, levied on the occasion or by reason of importation, which is specifically imposed on an imported product to the exclusion of a similar Community product. I would also recall the judgment in Case 158/82, (
11
) according to which any pecuniary charge imposed unilaterally on goods by reason of the fact that they cross a frontier is to be regarded as a charge having an effect equivalent to a customs duty. However, according to that judgment, the only exception is where the charge in question forms part of a general system of internal dues applied systematically in accordance with the same criteria to both national products and imported and exported products and if it forms part of a general system applicable systematically to categories of products in accordance with objective criteria irrespective of the origin of the products. That last point was again emphasized in paragraph 12 of the abovementioned judgment in Case 193/85.
21.
The only real problem that may then remain is the point in time from which it is appropriate to change or supplement the classification that was held to be correct in principle in Case 193/85. I say that in reference to the statements made in that regard by the Commission, which — if I have understood correctly — appears to be of the opinion that (since the tax continued to be levied after delivery of the judgments in the cases referred to at the beginning of the Opinion) the situation to be considered is the one that would have existed had the Italian Republic complied with the aforementioned judgments of 7 May 1987 in good time. A similar view appears to be taken by a number of the applicants in the main proceedings, who — even though it has been stressed that after the delivery of the abovementioned judgments the tax was limited to direct imports from nonmember countries — also took the view that after those judgments had been delivered, the contested tax could no longer be regarded as part of a system of internal dues (which could mean in effect that the tax is to be classified as a charge having an effect equivalent to a customs duty only from that time).
22.
Let me say at once, however, that in my view that does not in fact go far enough and that the better view is that the tax should have been classified as a charge having an effect equivalent to a customs duty from the very beginning, so to speak. It may, of course, be appropriate when endeavouring to classify the tax — on the basis of the intention of the national legislature — to see fit to start (as in Case 193/85) with Article 95. However, from the point of view of Community law, which is the only point of view that is important for this Court, it immediately follows that the tax is permissible under Article 95 only with regard to direct imports from nonmember countries, precisely because no charges may be levied on any imports from Member States (whether the goods are produced in those States or are only in free circulation there). However, that effect of Community law, which, as the Court is aware, takes precedence over national law, undoubtedly arose as soon as the national rules were adopted. That is because under the third paragraph of Article 95, the second paragraph of Article 95 is to be regarded as directly applicable within the meaning of the Court's case-law from the beginning of the second stage of the transitional period (that is to say, pursuant to the Council Decision of 14 January 1962, from 1 January 1962), and therefore from that time on it supplants any conflicting rules of national law.
23.
Consequently, notwithstanding the judgments cited at the beginning of my Opinion, which, of course, had no constitutive effect but were merely explanatory, and which were delivered at a time when it was not necessary, on the basis of the then material facts, to take the logical and in my opinion necessary step now proposed with regard to its classification, it must be held that the Italian tax legislation at issue did not in principle fulfil the conditions laid down by Community law for a system of internal tax rules because from the very date of its entry into force on 1 January 1965 it was limited by Community law to direct imports from nonmember countries and therefore, in the final analysis, must be classified as a charge having an effect equivalent to a customs duty.
24.
3. The consequences which that view entails for the reply to be given to the questions referred to the Court can, in my view, be determined without any great difficulty, particularly if the relevant case-law is followed.
25.(a)
Thus it is important that in the judgment in Case 70/77 (
12
) it was pointed out that there is no absolute prohibition of charges having equivalent effect to a customs duty as far as trade with nonmember countries is concerned; the question whether such charges are to be abolished must be considered, rather, in the context of the common commercial policy (which, under Article 113 of the EEC Treaty, is to be based on uniform principles after the transitional period has ended).
26.
Accordingly, it certainly cannot be said that, as far as direct imports from nonmember countries are concerned, the tax at issue was prohibited under Community law even at the time of its introduction. Nor, however, is it correct to say that the tax automatically became unlawful when the transitional period expired (that is to say after 31 December 1969; cf. the judgment in Case C-353/89 (
13
)), as one of the applicants in the main proceedings claimed, relying on the fact that since the transitional period expired commercial policy has been a matter exclusively for the Community, and on Case 41/76, (
14
) in which it was pointed out that measures of commercial policy are permissible after the end of the transitional period only if authorized by the Commission (which, however, was not the case for the Italian banana tax). That argument is defeated not only by the wording of Article 113 in which the term ‘based on’ makes it clear that the process involved here is not automatic, but that steps must be taken by the Community (if and to what extent that actually happened will be considered later). It is also quite clear from the relevant case-law (to which I shall return) that pecuniary charges are not to be regarded as measures of commercial policy within the meaning of the judgment in Case 41/76 but that other conclusions regarding such measures are to be drawn from the entry into force of the Common Customs Tariff.
27.
Nor, in my view, is there any doubt in the present context either that Article 115 of the EEC Treaty, which is also referred to in the first question, does not lead to a different conclusion. That article merely stipulates which measures may be adopted by the Commission in order to ensure that the execution of measures of commercial policy taken in accordance with the Treaty by any Member State is not obstructed by deflection of trade, or where differences between such measures lead to economic difficulties in one or more of the Member States. It therefore obviously provides no direct means of evaluating national measures of commercial policy.
28.
In my view it is also clear, first, that there is nothing of decisive importance to be gained from the argument that as a result of the application of the tax to direct imports from nonmember countries Italian traders have suffered discrimination in comparison with traders in other Member States and, secondly, that, contrary to the view of a number of the applicants, it is not possible to deduce merely from the judgment in Case 193/85 that it was unlawful to levy the tax at issue on direct imports from nonmember countries. I cannot see on which provisions of the Treaty (leaving aside Article 113 which I have already considered) the applicants rely in support of that argument. While it is true, on the other hand, that the abovementioned judgment emphasizes that commercial policy with regard to nonmember countries is a matter exclusively for the Community, that is obviously relevant only as support for the view that since Article 95 seeks to exclude discrimination against products from other Member States, it also covers products from nonmember countries that are in free circu-Ution in the Community. However, in my opinion, that cannot be argued to embody a prohibition of the imposition of charges on goods from nonmember countries (outside the Common Customs Tariff).
29. (b)
With regard to the reference in the first question to the Common Customs Tariff, which, as the Court is aware, has been in force since 1 July 1968, the judgment in Joined Cases 37/73 and 38/73 is of particular interest.
30.
Admittedly, that judgment pointed out that in principle the common commercial policy required the removal of national provisions which affect trade with nonmember countries (which is undoubtedly the case of the consumer tax on bananas as ultimately applied). However, it cannot be ignored that it also emphasized the need for differentiation. After the Common Customs Tariff entered into force, it was prohibited unilaterally to introduce new charges applicable to direct imports from nonmember countries or to increase existing charges. However, with regard to charges already in existence at that time, it was pointed out that the obligation to eliminate them was dependent on prior evaluation by the Community authorities and that they could be regarded as incompatible with Community law only ‘pursuant to provisions adopted by the Community’. (
15
)
31.
A comparable view is again expressed in the judgment in Joined Cases 267/81 to 269/81. (
16
) On the one hand, it was pointed out in that case that the Member States are prohibited, by virtue of the Treaty provisions on the Customs Union and on the common commercial policy, from altering the level of charges imposed under the Common Customs Tariff. On the other hand, however, with regard to charges which were already in existence at the date of the entry into force of the Common Customs Tariff, it was pointed out that (and this is of interest in particular with regard to the abovementioned judgment in Case 41/76) they could not, on grounds of legal certainty, be regarded as inapplicable unless expressly decreed to be so by the Community.
32.
It follows from the foregoing — and this immediately answers the third question — that any increase in the consumer tax on bananas after 1 July 1968 (that is to say above the rate applicable at that time of 90 LIT/kg) was definitely unlawful. It may be added, with reference to the second question, that, inasmuch as there may be said to be an individual right to which national courts must give effect notwithstanding a conflicting national law, the Common Customs Tariff, a matter governed by a directly effective Community regulation, (
17
) is of decisive importance.
33.(c)
With regard to the charges already existing at the time of the entry into force of the Common Customs Tariff, it may safely be stated, in accordance with the abovementioned case-law, that Regulation (EEC) No 1035/72 of the Council of 18 May 1972 on the common organization of the market in fruit and vegetables, (
18
) which entered into force on 1 June 1972, is of no assistance for the main proceedings.
34.
It is true that Article 22 of that regulation does prohibit the imposition of charges having an effect equivalent to customs duties on imports from nonmember countries. However, with regard to the consumer tax on bananas, that article is not a Community provision on commercial policy within the meaning of the case-law because it expressly states that it applies only to the products referred to in Article 1 of the regulation. However, Article 1 makes no mention of the tariff heading applicable to bananas at that time (08.01) and that remained the case when Regulation No 2658/87 (
19
) replaced the customs tariff scheme with the combined nomenclature (cf. Regulation No 3910/87 (
20
) adjusting the tariff heading of Regulation No 1035/72, in which the heading relating to bananas, 08030010, is again not mentioned).
35.(d)
However, with regard to the charges already in existence when the Common Customs Tariff entered into force, it is possible that agreements concluded by the Community with nonmember countries might be relevant to the main proceedings.
36.
In that regard mention has been made in particular of ACP agreements, because banana imports obviously come in part from those countries. Those agreements do, in fact, contain provisions prohibiting the imposition of charges having an effect equivalent to customs duties provided that — as is the case for bananas — the goods are not subject to a common organization of the market (cf. for example Article 130 of the Third ACPEEC Convention; (
21
) Article 168 of the Fourth ACPEEC Convention (
22
)). It follows with regard to such imports that the imposition of the consumer tax on fresh bananas was unlawful in its entirety (in other words even at the rate of LIT 90/kg applicable at the time of the entry into force of the Common Customs Tariff). It should also be pointed out, with regard to the second question, that, in accordance with the case-law of this Court, the abovementioned provisions are direcdy applicable and take precedence over conflicting provisions of national law (I refer in that regard to the case-law on various conventions concluded by the Community, in particular Case 104/81 (
23
) concerning the free trade agreement with Portugal, Case 12/86 (
24
) concerning the Association Agreement with Turkey and Case C-18/90 (
25
) concerning the cooperation agreement with Morocco).
37.
Moreover, with regard to any other relevant agreements (which, because it was not known where all the goods at issue in the main proceedings originated, were not exhaustively set out and considered by the Commission), it can be said only very generally that, depending on the circumstances, they may also lead to the conclusion that the imposition of the tax was entirely unlawful if they clearly prohibit the levying of charges having an effect equivalent to customs duties and if agricultural products, including bananas, are not excluded from that prohibition. The necessary investigation would have to be carried out as part of the main proceedings, if necessary subject to a fresh reference to the Court of Justice under Article 177 of the EEC Treaty.
C — Conclusion
38.
Having regard to the foregoing I propose that the questions referred to the Court should be answered as follows:
(1)
A charge applicable only to goods imported directly from nonmember countries is not to be regarded as internal taxation but as a charge having an effect equivalent to a customs duty.
(2)
Article 95 is not applicable to such charges.
(3)
Any introduction of or increase in such charges after the entry into force of the Common Customs Tariff is inconsistent with the Common Customs Tariff. Charges already in existence before the Common Customs Tariff entered into force become unlawful only pursuant to a provision of Community law relating to such charges. Article 22 of Regulation (EEC) No 1035/72 is not such a provision with regard to bananas because bananas are not subject to that organization of the market. On the other hand, agreements concluded by the Community may render the imposition of charges unlawful if they contain a clear prohibition of the imposition of charges having an effect equivalent to customs duties that also applies to bananas.
(4)
In so far as a clear prohibition of the imposition of charges having an effect equivalent to a customs duty can be inferred from Community law, a conflicting national law may not be applied.
(
*1
)	Original language: German.
(
1
)	Commission v Italy [1987] ECR 2013.
(
2
)	Co-Frutta v Amministrazione delle Finanze dello Stato [1987] ECR 2085.
(
3
)	Diamanurbeiders v índiamex [1973] ECR 1609.
(
4
)	OJ, Enghsh Special Edition 1968(1), p. 275.
(
5
)	Kunstmühle Tivoli v Hauptzollamt Würzburg [1968] ECR 199.
(
6
)	Hansen v Hauptzollamt Flensburg [1978] ECR 1787.
(
7
)	OJ 1986 L 86, p. 1.
(
8
)	Paragraph 22.
(
9
)	Cf. Joined Cases 21 to 24/72 International Fruit Company v Produktschap voor Groenten en Fruit [1972] ECR 1219; Case 266/81 SIOT v Ministero delle Finanze [1983] ECR 731; Case 70/87 Fediol v Commission [1989] ECR 1781; and my Opinion in Case 193/85.
(
10
)	Schröder v Stadt Köln [1975] ECR 905.
(
11
)	Commission v Denmark [1983] ECR 3573.
(
12
)	Simmentbal v Amministrazione delle Finanze dello Stato [1978] ECR 1453.
(
13
)	Commission v Netherlands [1991] ECR I-4069.
(
14
)	Donckerwolcke v Procureur de la République [1976] ECR 1921.
(
15
)	Paragraphs 15 to 21.
(
16
)	Amministrazione delle Finanze dello Stato v SPI and SAMT [1983] ECR 801.
(
17
)	Cf. Casc 9/73 Schlüter v Hauptzollamt Lörrach [1973] ECR 1135.
(
18
)	OJ, English Special Edition 1972 (II), p. 437.
(
19
)	OJ 1987 L 256, p. 1.
(
20
)	OJ 1987 L 370, p. 33.
(
21
)	OJ 1986 L 86, p. 1.
(
22
)	OJ 1991 L 229, p. 1.
(
23
)	Hauptzollamt Mainz v Kupferberg [1982] ECR 3641.
(
24
)	Judgment in Case 12/86 Demirel v Stadt Schwäbisch Gmünd [1987] ECR 3719.
(
25
)	Judgment in Case C-18/90 ONEM v Kīiber [1991] ECR I-199.