Keywords

Summary



Keywords

1 . INTERNATIONAL AGREEMENTS - AGREEMENTS WITH THE COMMUNITY - AGREEMENTS ON FREE TRADE - PERFORMANCE BY THE COMMUNITY INSTITUTIONS AND THE MEMBER STATES

( EEC TREATY , ART . 228 ( 2 ))

2 . INTERNATIONAL AGREEMENTS - AGREEMENTS WITH THE COMMUNITY - COMMUNITY NATURE - UNIFORM APPLICATION BY THE COMMUNITY INSTITUTIONS AND THE MEMBER STATES

( EEC TREATY , ART . 228 ( 2 ))

3 . INTERNATIONAL AGREEMENTS - AGREEMENTS WITH THE COMMUNITY - AGREEMENT BETWEEN THE EEC AND THE PORTUGUESE REPUBLIC - DIRECT EFFECT - CONDITIONS - CRITERIA

( EEC TREATY , ART . 228 )

4 . INTERNATIONAL AGREEMENTS - AGREEMENTS WITH THE COMMUNITY - DIRECT EFFECT - DIRECT EFFECT ACKNOWLEDGED BY THE COURTS OF ONLY ONE OF THE CONTRACTING PARTIES - PRINCIPLE OF RECIPROCITY - BREACH - ABSENCE

( EEC TREATY , ART . 228 )

5 . INTERNATIONAL AGREEMENTS - AGREEMENTS WITH THE COMMUNITY - ESTABLISHMENT OF AN INSTITUTIONAL FRAMEWORK FOR THE PURPOSE OF IMPLEMENTING AN AGREEMENT - JUDICIAL APPLICATION OF THE AGREEMENT NOT EXCLUDED

( EEC TREATY , ART . 228 )

6 . INTERNATIONAL AGREEMENTS - AGREEMENTS WITH THE COMMUNITY - DIRECT EFFECT - SAFEGUARD CLAUSES - NO EFFECT - CONDITIONS

( EEC TREATY , ART . 228 )

7 . INTERNATIONAL AGREEMENTS - AGREEMENTS WITH THE COMMUNITY - AGREEMENT BETWEEN THE EEC AND THE PORTUGUESE REPUBLIC - RULE AGAINST TAX DISCRIMINATION IN RESPECT OF IMPORTED PRODUCTS - DIRECT EFFECT

( EEC-PORTUGAL AGREEMENT OF 22 JULY 1972 , ART . 21 , PARA . ( 1 ))

8 . INTERNATIONAL AGREEMENTS - AGREEMENTS WITH THE COMMUNITY - AGREEMENT BETWEEN THE EEC AND THE PORTUGUESE REPUBLIC - EEC TREATY - DISTINCT OBJECTIVES - RULE AGAINST TAX DISCRIMINATION IN RESPECT OF IMPORTED PRODUCTS - INTERPRETATION GIVEN BY THE COURT OF ARTICLE 95 OF THE EEC TREATY - TRANSPOSITION TO THE SYSTEM OF THE AGREEMENT - NONE

( EEC TREATY , ART . 95 ; EEC-PORTUGAL AGREEMENT OF 22 JULY 1972 , ART . 21 , PARA . ( 1 ))

9 . INTERNATIONAL AGREEMENTS - AGREEMENTS WITH THE COMMUNITY - AGREEMENT BETWEEN THE EEC AND THE PORTUGUESE REPUBLIC - RULE AGAINST TAX DISCRIMINATION IN RESPECT OF IMPORTED PRODUCTS - TAX REDUCTION ALLOWED BY THE IMPORTING MEMBER STATE - NOT APPLICABLE TO PRODUCTS ORIGINATING FROM PORTUGAL - NO SIMILAR NATIONAL PRODUCTS IN FACT ENJOYING THE BENEFIT OF THE REDUCTION - DISCRIMINATION - NONE

( EEC-PORTUGAL AGREEMENT OF 22 JULY 1972 , ART . 21 , PARA . ( 1 ))

10 . INTERNATIONAL AGREEMENTS - AGREEMENTS WITH THE COMMUNITY - AGREEMENT BETWEEN THE EEC AND THE PORTUGUESE REPUBLIC - RULE AGAINST TAX DISCRIMINATION IN RESPECT OF IMPORTED PRODUCTS - SIMILAR PRODUCT - COMMUNITY CONCEPT - CRITERIA OF ASSESSMENT

( EEC-PORTUGAL AGREEMENT OF 22 JULY 1972 , ART . 21 , PARA . ( 1 ))

Summary

1 . THE MEASURES NEEDED TO IMPLEMENT THE PROVISIONS OF AN AGREEMENT CONCLUDED BY THE COMMUNITY ARE TO BE ADOPTED , ACCORDING TO THE STATE OF COMMUNITY LAW FOR THE TIME BEING IN THE AREAS AFFECTED BY THE PROVISIONS OF THE AGREEMENT , EITHER BY THE COMMUNITY INSTITUTIONS OR BY THE MEMBER STATES . THAT IS PARTICULARLY TRUE OF AGREEMENTS SUCH AS THOSE CONCERNING FREE TRADE WHERE THE OBLIGATIONS ENTERED INTO EXTEND TO MANY AREAS OF A VERY DIVERSE NATURE .

2 . SINCE , ACCORDING TO ARTICLE 228 ( 2 ) OF THE TREATY , THE MEMBER STATES ARE BOUND , IN THE SAME MANNER AS THE INSTITUTIONS OF THE COMMUNITY , BY THE INTERNATIONAL AGREEMENTS WHICH THE LATTER ARE EMPOWERED TO CONCLUDE , THEY FULFIL , IN ENSURING RESPECT FOR COMMITMENTS ARISING FROM AN AGREEMENT CONCLUDED BY THE COMMUNITY INSTITUTIONS , AN OBLIGATION NOT ONLY IN RELATION TO THE NON-MEMBER COUNTRY CONCERNED BUT ALSO AND ABOVE ALL IN RELATION TO THE COMMUNITY WHICH HAS ASSUMED RESPONSIBILITY FOR THE DUE PERFORMANCE OF THE AGREEMENT . THAT IS WHY THE PROVISIONS OF SUCH AN AGREEMENT FORM AN INTEGRAL PART OF THE COMMUNITY LEGAL SYSTEM .

IT FOLLOWS FROM THE COMMUNITY NATURE OF SUCH PROVISIONS THAT THEIR EFFECT IN THE COMMUNITY MAY NOT BE ALLOWED TO VARY ACCORDING TO WHETHER THEIR APPLICATION IS IN PRACTICE THE RESPONSIBILITY OF THE COMMUNITY INSTITUTIONS OR OF THE MEMBER STATES AND , IN THE LATTER CASE , ACCORDING TO THE EFFECTS IN THE INTERNAL LEGAL ORDER OF EACH MEMBER STATE WHICH THE LAW OF THAT STATE ASSIGNS TO INTERNATIONAL AGREEMENTS CONCLUDED BY IT . THEREFORE IT IS FOR THE COURT , WITHIN THE FRAMEWORK OF ITS JURISDICTION IN INTERPRETING THE PROVISIONS OF AGREEMENTS , TO ENSURE THEIR UNIFORM APPLICATION THROUGHOUT THE COMMUNITY .

3 . NEITHER THE NATURE NOR THE STRUCTURE OF THE AGREEMENT BETWEEN THE EEC AND THE PORTUGUESE REPUBLIC MAY PREVENT A TRADER FROM RELYING ON ONE OF ITS PROVISIONS BEFORE A COURT IN THE COMMUNITY , ESPECIALLY AS THE ANSWER TO THE QUESTION WHETHER SUCH A STIPULATION IS UNCONDITIONAL AND SUFFICIENTLY PRECISE TO HAVE DIRECT EFFECT PRESUPPOSES AN ANALYSIS OF THE PROVISION IN THE LIGHT OF THE OBJECT AND PURPOSE OF THE AGREEMENT AND OF ITS CONTEXT .

4 . ACCORDING TO THE GENERAL RULES OF INTERNATIONAL LAW THERE MUST BE BONA FIDE PERFORMANCE OF EVERY AGREEMENT . ALTHOUGH EACH CONTRACTING PARTY IS RESPONSIBLE FOR EXECUTING FULLY THE COMMITMENTS WHICH IT HAS UNDERTAKEN IT IS NEVERTHELESS FREE TO DETERMINE THE LEGAL MEANS APPROPRIATE FOR ATTAINING THAT END IN ITS LEGAL SYSTEM UNLESS THE AGREEMENT , INTERPRETED IN THE LIGHT OF ITS SUBJECT-MATTER AND PURPOSE , ITSELF SPECIFIES THOSE MEANS . SUBJECT TO THAT RESERVATION THE FACT THAT THE COURTS OF ONE OF THE PARTIES TO AN INTERNATIONAL AGREEMENT CONCLUDED BY THE COMMUNITY CONSIDER THAT CERTAIN OF THE STIPULATIONS IN THE AGREEMENT ARE OF DIRECT APPLICATION WHEREAS THE COURTS OF THE OTHER PARTY DO NOT RECOGNIZE SUCH DIRECT APPLICATION IS NOT IN ITSELF SUCH AS TO CONSTITUTE A LACK OF RECIPROCITY IN THE IMPLEMENTATION OF THE AGREEMENT .

5 . THE MERE FACT THAT AN AGREEMENT CONCLUDED BY THE COMMUNITY HAS ESTABLISHED A SPECIAL INSTITUTIONAL FRAMEWORK FOR CONSULTATIONS AND NEGOTIATIONS BETWEEN THE CONTRACTING PARTIES IN RELATION TO THE IMPLEMENTATION OF THE AGREEMENT IS NOT IN ITSELF SUFFICIENT TO EXCLUDE ALL JUDICIAL APPLICATION OF IT .

6 . APART FROM SPECIFIC SITUATIONS WHICH MAY INVOLVE THEIR APPLICATION , THE EXISTENCE OF SAFEGUARD CLAUSES WHICH ENABLE THE CONTRACTING PARTIES TO DEROGATE FROM CERTAIN PROVISIONS OF AN INTERNATIONAL AGREEMENT CONCLUDED BY THE COMMUNITY IS NOT SUFFICIENT IN ITSELF TO AFFECT THE DIRECT APPLICABILITY WHICH MAY ATTACH TO CERTAIN STIPULATIONS IN THE AGREEMENT .

7 . THE FIRST PARAGRAPH OF ARTICLE 21 OF THE AGREEMENT BETWEEN THE EEC AND THE PORTUGUESE REPUBLIC IMPOSES ON THE CONTRACTING PARTIES AN UNCONDITIONAL RULE AGAINST DISCRIMINATION IN MATTERS OF TAXATION , WHICH IS DEPENDENT ONLY ON A FINDING THAT THE PRODUCTS AFFECTED BY A PARTICULAR SYSTEM OF TAXATION ARE OF LIKE NATURE , AND THE LIMITS OF WHICH ARE THE DIRECT CONSEQUENCE OF THE PURPOSE OF THE AGREEMENT . AS SUCH THIS PROVISION MAY BE APPLIED BY A COURT AND THUS PRODUCE DIRECT EFFECTS THROUGHOUT THE COMMUNITY .

8 . ALTHOUGH ARTICLE 21 OF THE AGREEMENT BETWEEN THE EEC AND THE PORTUGUESE REPUBLIC ON FREE TRADE AND ARTICLE 95 OF THE EEC TREATY HAVE THE SAME OBJECT INASMUCH AS THEY AIM AT THE ELIMINATION OF TAX DISCRIMINATION , BOTH PROVISIONS , WHICH ARE MOREOVER WORDED DIFFERENTLY , MUST HOWEVER BE CONSIDERED AND INTERPRETED IN THEIR OWN CONTEXT .

SINCE THE EEC TREATY AND THE AGREEMENT ON FREE TRADE PURSUE DIFFERENT OBJECTIVES , IT FOLLOWS THAT THE INTERPRETATION GIVEN TO ARTICLE 95 OF THE TREATY CANNOT BE APPLIED BY WAY OF SIMPLE ANALOGY TO THE AGREEMENT ON FREE TRADE .

THE FIRST PARAGRAPH OF ARTICLE 11 MUST THEREFORE BE INTERPRETED ACCORDING TO ITS TERMS AND IN THE LIGHT OF THE OBJECTIVE WHICH IT PURSUES IN THE SYSTEM OF FREE TRADE ESTABLISHED BY THE AGREEMENT .

9 . THERE IS NO DISCRIMINATION WITHIN THE MEANING OF THE FIRST PARAGRAPH OF ARTICLE 21 OF THE AGREEMENT BETWEEN THE COMMUNITY AND THE PORTUGUESE REPUBLIC WHERE A MEMBER STATE DOES NOT APPLY TO PRODUCTS ORIGINATING IN PORTUGAL A TAX REDUCTION PROVIDED FOR CERTAIN CLASSES OF PRODUCERS OR KINDS OF PRODUCTS IF THERE IS NO LIKE PRODUCT ON THE MARKET OF THE MEMBER STATE CONCERNED WHICH HAS IN FACT BENEFITED FROM SUCH REDUCTION .

10 . FOR THE PURPOSES OF ITS APPLICATION IN THE COMMUNITY THE CONCEPT OF SIMILARITY CONTAINED IN THE FIRST PARAGRAPH OF ARTICLE 21 OF THE AGREEMENT BETWEEN THE EEC AND PORTUGAL IS ONE OF COMMUNITY LAW WHICH MUST BE INTERPRETED UNIFORMLY AND IT IS FOR THE COURT TO ENSURE THAT THIS IS THE CASE .

IN VIEW OF THE PURPOSE OF THAT PROVISION PRODUCTS WHICH DIFFER INTER SE BOTH AS REGARDS THE METHOD OF THEIR MANUFACTURE AND THEIR CHARACTERISTICS MAY NOT BE REGARDED AS LIKE PRODUCTS WITHIN THE MEANING OF THE SAID PROVISION . IT FOLLOWS THAT LIQUEUR WINES FORTIFIED WITH SPIRITS ON THE ONE HAND AND WINES RESULTING FROM NATURAL FERMENTATION ON THE OTHER MAY NOT BE REGARDED AS LIKE PRODUCTS WITHIN THE MEANING OF THE PROVISION AT ISSUE .