Keywords

Summary



Keywords

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1. Acts of the institutions ° Procedure for adoption ° Adoption of a regulation by the Council acting on a proposal from the Commission ° Proposal amended in accordance with a political agreement accepted by the competent member on behalf of the Commission and approved by the Commission ° Amended proposal not in writing ° No effect

(EEC Treaty, Art. 149(3))

2. Acts of the institutions ° Statement of reasons ° Obligation ° Scope ° Acts of the Council requiring a proposal from the Commission

(EEC Treaty, Art. 190)

3. Acts of the institutions ° Procedure for adoption ° Consultation of the Parliament ° Fresh consultation in the event of substantial amendment to the original proposal

4. Agriculture ° Common agricultural policy ° Objectives ° Harmonization ° Discretion of the institutions ° Ensuring a fair income for producers ° Increasing productivity ° Stabilization of the market ° Assuring the availability of supplies ° Reasonable prices for consumers ° Regulation on the common organization of the market in bananas ° Lawfulness

(EEC Treaty, Arts 39 to 43; Council Regulation No 404/93)

5. Agriculture ° Common agricultural policy ° Legislation on the production and marketing of agricultural products aimed at the achievement of the objectives set out in Article 39 of the Treaty ° Legal basis ° Article 43 of the Treaty ° Pursuit of other objectives at the same time ° No effect

(EEC Treaty, Arts 39 and 43; Fourth ACP-EEC Convention, Lomé, 15 December 1989)

6. Agriculture ° Common agricultural policy ° Priority over objectives of the Treaty in the field of competition ° Discretion enjoyed by the Council in applying the rules on competition

(EEC Treaty, Art. 42, first para.)

7. Agriculture ° Common organization of the markets ° Bananas ° Import regime ° Tariff quota ° Introduction and subdivision ° Discrimination ° None ° Right to property ° Acquired rights ° Freedom to pursue a trade or business ° Principle of proportionality ° Breach ° None

(Council Regulation No 404/93)

8. International agreements ° Fourth ACP-EEC Lomé Convention ° Provisions on commercial cooperation ° General trade regime ° Levy on imports of non-traditional ACP bananas exceeding a specified tonnage ° Lawfulness

(Fourth ACP-EEC Convention, Lomé, 15 December 1989, Art. 168 and Protocol 5; Council Regulation No 404/93)

9. Actions for annulment of measures ° Pleas in law ° Not possible to rely on rules of GATT to challenge the lawfulness of a Community act ° Exceptions ° Community act intended to implement a GATT rule and expressly and specifically referring thereto

(EEC Treaty, Art. 173, first para.; General Agreement on Tariffs and Trade)

10. Association of the overseas countries and territories ° Implementing Convention provided for in Article 136 of the Treaty ° Protocol on the tariff quota for imports of bananas ° Abolition not requiring compliance with the rules for amending the Treaty

(EEC Treaty, Arts 43(2), 136 and 236; Protocol on the tariff quota for imports of bananas, para. 4, third subpara.)

Summary

1. In the procedure for the adoption of a regulation by the Council, the fact that the proposal from the Commission, amended in accordance with a political agreement accepted by the competent member on behalf of the Commission at a Council session and approved by the college of Commissioners, is not in writing is of no consequence.

Article 149(3) of the Treaty states that as long as the Council has not acted, the Commission may alter its proposal at any time during the procedures mentioned in paragraphs 1 and 2, and it does not require those amended proposals necessarily to be in writing. Such amended proposals, forming part of the Community legislative process, which is characterized by a certain flexibility, necessary for achieving a convergence of views between the institutions, are fundamentally different from the acts which are adopted by the Commission and are of direct concern to individuals, so that strict compliance with the formalities prescribed for the adoption of acts of direct concern to individuals cannot be required for their adoption.

2. Although under Article 190 of the Treaty the proposal from the Commission must be referred to by the Council in acts which it can adopt only on a proposal from the Commission, that article does not require citation of any amendment which may subsequently have been made to that proposal. The position would be different only if the Commission had withdrawn its proposal and replaced it by a fresh proposal.

3. Consultation of the European Parliament, where that is provided for, means that a fresh consultation should take place whenever the text finally adopted, taken as a whole, differs in essence from the text on which the Parliament has already been consulted, except in cases where the amendments substantially correspond to the wishes of the Parliament itself.

4. In pursuing the objectives of the common agricultural policy, the Community institutions must secure the permanent harmonization made necessary by any conflicts between those objectives taken individually and, where necessary, allow any one of them temporary priority in order to satisfy the demands of the economic factors or conditions in view of which their decisions are made.

Thus the Community legislature, which in matters concerning the common agricultural policy has a broad discretion corresponding to the political responsibilities given to it by Articles 40 and 43 of the Treaty, could thus, without infringing Article 39 of the Treaty, establish a common organization of the market in bananas intended to safeguard the income of the agricultural community concerned by guaranteeing the existing level of Community production and providing for suitable machinery for increasing its productivity, to stabilize the market by safeguarding Community production and regulating imports, and, by that machinery supplemented by the mechanism for increasing the import quota if necessary, to assure the availability of supplies.

A breach of Article 39 cannot result from the fact that in certain Member States the establishment of the common organization may have had the effect of increasing prices. The substitution for national arrangements characterized by considerable price differences of a common organization inevitably results in an adjustment of prices throughout the Community; the objective of ensuring reasonable prices for consumers must be considered at the level of the common market as a whole; and priority may be given temporarily to other objectives by the Community legislature.

5. The fact that Regulation No 404/93 on the common organization of the market in bananas pursues objectives of agricultural policy as well as a development policy in favour of the ACP States does not mean that it cannot be based on Article 43 of the Treaty alone.

First, Article 43 of the Treaty is the appropriate legal basis for any legislation concerning the production and marketing of agricultural products listed in Annex II to the Treaty which contributes to the achievement of one or more of the objectives of the common agricultural policy set out in Article 39 of the Treaty, even where other objectives are pursued at the same time.

Secondly, the creation of a common organization of the market requires, alongside the regulation of Community production, the establishment of an import regime to stabilize the markets and ensure sales of Community production if, as in the case of bananas, the internal and external aspects of the common policy cannot be separated, it being understood that the institutions, when making use of their rule-making powers, cannot disregard the international obligations entered into by the Community under the Lomé Convention.

6. The first paragraph of Article 42 of the Treaty recognizes both the priority of the agricultural policy over the objectives of the Treaty in the field of competition and the power of the Council to decide to what extent the competition rules are to be applied in the agricultural sector.

7. The regime of trade with non-member countries in the common organization of the market in bananas established by Regulation No 404/93, in particular the tariff quota for imports and the way it is subdivided, does not constitute a breach of fundamental rights and general principles of law.

With respect to the prohibition of discrimination, it is true that two different categories of traders ° those who previously operated on open national markets and were able freely to obtain supplies of third-country bananas, and those who operated on protected national markets and were ensured the possibility of disposing of Community and traditional ACP bananas despite their higher price ° are not affected in the same way by those measures, since the former now find their import possibilities restricted, whereas the latter may now import specified quantities of third-country bananas.

However, that difference in treatment appears to be inherent in the objective of integrating previously compartmentalized markets, bearing in mind the different situations of the various categories of traders before the establishment of the common organization of the market, and permits the striking of a balance between the two categories of traders, necessary for ensuring the disposal of Community production and traditional ACP production, which the common organization must ensure.

The same considerations justify the restriction on the freedom of traders who previously operated on open markets to pursue their trade or business, the substance of that right not being impaired.

With respect to those traders' right to property, the loss of market shares does not impact that right, since the market share held before the establishment of a common organization of a market constitutes only a momentary economic position exposed to the risks of changing circumstances and is not covered by the right to property. Similarly, a position on the market resulting from an existing situation cannot, especially if that situation is contrary to the rules of the common market, benefit from protection on the basis of acquired rights or legitimate expectation.

Finally, with respect to the principle of proportionality, it cannot be considered that there was a breach in that the objectives of supporting ACP producers and guaranteeing the income of Community producers could have been achieved by measures having less effect on competition and on the interests of certain categories of traders, since there is nothing to show that the Council, which in establishing a common organization of the markets had to reconcile divergent interests and thus select options within the context of the policy choices which are its own responsibility, adopted measures which were manifestly inappropriate having regard to the objective pursued.

8. With respect to the establishment of a tariff quota, the import of bananas from ACP States into the Community falls under Article 168(2)(a)(ii) of the Fourth ACP-EEC Lomé Convention, Protocol 5 on bananas annexed to that Convention, and Annexes LXXIV and LXXV relating to that protocol. Under those provisions, the Community' s only obligation is to maintain the advantages, with respect to access of ACP bananas to the Community market, which the ACP states had before that Convention, so that Regulation No 404/93 was able, without being in breach of Article 168(1) of the Convention, to impose a levy on imports of non-traditional ACP bananas exceeding a specified tonnage.

9. The special features of the General Agreement on Tariffs and Trade, which is characterized by the great flexibility of its provisions, in particular those conferring the possibility of derogation, the measures to be taken when confronted with exceptional difficulties and the settlement of conflicts between the contracting parties, precludes the Court from taking provisions of GATT into consideration to assess the lawfulness of a regulation in an action brought by a Member State under the first paragraph of Article 173 of the Treaty. Those features show that the GATT rules are not unconditional and that an obligation to recognize them as rules of international law which are directly applicable in the domestic legal systems of the contracting parties cannot be based on the spirit, general scheme or terms of GATT. In the absence of such an obligation following from GATT itself, it is only if the Community intended to implement a particular obligation entered into within the framework of GATT, or if the Community act expressly refers to specific provisions of GATT, that the Court can review the lawfulness of the Community act in question from the point of view of the GATT rules.

10. Although the Protocol on the tariff quota for imports of bananas is indeed an integral part of the Treaty since it is annexed to the Implementing Convention on the Association of the Overseas Countries and Territories with the Community, provided for in Article 136 of the Treaty, it was nevertheless adopted as a transitional measure pending standardization of the conditions for importing bananas into the common market. As part of that system, the third subparagraph of paragraph 4 of the Protocol provides that, on a proposal from the Commission, the Council acting by a qualified majority may abolish or amend that quota, with no reservations as to the temporal extent of a decision to abolish it. That means that the Protocol, which moreover cannot have the effect of derogating from a basic provision of the Treaty such as Article 43(2), and the quota which it provides for can be abolished without having to comply with the rules for amending the Treaty laid down in Article 236 of the Treaty.