4.

The next question which arises likewise concerns only Case 9/73. According to this, the question must be examined whether Regulation No 974/71 and the consequential implementing Regulations on it issued by the Commission are valid in so far as they authorize the levying of compensatory amounts, in trade with third countries in Emmental and Gruyère cheese, which when added to the levy are above the consolidated maximum rates for customs duties in GATT. In this connection it must first be remembered that the Community concluded an agreement with Switzerland on 6 October 1969 under Article 28 of GATT in which there are customs concessions for Emmental and Gruyère cheese (a definite ceiling was set to the relevant rates of customs duties). On the other hand it is correct that the levies to compensate for currency fluctuations together the levies for cheese from Switzerland show an amount in excess of the consolidated maximum rates of customs duties. In the light of these facts the plaintiff in the main action points out that the abovementioned customs concessions are components in the schedule within the meaning of Article 2 of GATT and that the Community must accordingly respect the provision therein that such products ‘shall also be exempt from all other duties or charges of any kind on or in connection with the importation’. The plaintiff is also of opinion that the individual can call in aid the abovementioned provision of GATT and, if it is disregarded, question the validity of the Regulations affected by it. In any case in the plaintiff's opinion it is decisive that in Annex II of Regulation No 1/72 of the Council (OJ 1972, L 1) amending Regulation 950/68 (OJ 1968, L 172), the Regulation on the Common Customs Tariff, the consolidated rate of customs duty for Emmental and Gruyère cheese is mentioned. So this concession became part of the Common Customs Tariff and no less binding than the Customs Tariff itself. At least an importer must be able to call it in aid to show that these rates must not be exceeded by making compensatory levies for currency fluctuations. As regards these contentions of the plaintiff it is then clearly correct — if we limit ourselves to the actual GATT argument — that the Community is also bound by the provisions of GATT as regards the concessions negotiated with Switzerland. This can be deduced from the recent judgment in Cases 21 to 24/72. Despite the far-reaching prohibition of Article 2 of GATT which I have quoted, it must nevertheless be open to doubt whether the compensatory levies for currency fluctuations are caught by it and whether it is shown that they are accordingly not reconcilable with GATT. That may be said as regards the special function of the monetary compensatory amounts to compensate for advantages enjoyed by imports in consequence of currency measures. In fact such levies were presumably not foreseen by GATT and it seems too that in GATT practice their use as a transitional measure is permitted to the extent that a currency measure has effect. Moreover it could be asked, as the Commission has shown, whether levies of this kind are not covered by Article II 2 (a) in conjunction with Article III of GATT are not covered as respects third countries. This could be a matter for consideration because levies as respects third countries are the equivalent of levies within the Community and because the maintenance of the agricultural market as part of a customs union certainly implies that goods imported from third countries do not receive better treatment than goods imported from Member States. (So here in fact there would be a justification at least to the extent that trade within the Community also is charged with compensatory amounts.) Finally, as the Commission has likewise shown, there could be justification under Article XIX of GATT, viz. under the provision for special measures in case of serious damage to domestic products. This of course would need to be shown for each individual product. Lastly all this may be clear, even if the considerations mentioned show that the plaintiff's deduction from the principles concerning the direct applicability of Community law does not hold, viz. the deduction that Article 2 of GATT in conjunction with the customs concessions for cheese is a clear, complete, definite and unconditional legal obligation appropriate for direct use by individuals. There is a further decisive point in relation to the GATT rules raised by the Federal Government, the Council and the Commission. It cannot really be admitted from basic considerations that individuals derive rights from GATT agreements and can thus question the validity of a Community regulation. The Court has drawn similar conclusions in the judgment in Cases 21 to 24/72 at least as regards Article 11 of GATT. The grounds of this judgment were however restricted to general terms. I would remind you of the reference to the meaning, structure and wording of GATT, its flexibility and the fact that it contains provisions concerning deviations from general rules, measures which may be taken in cases of exceptional difficulty, and settling of differences between the contracting parties. These considerations can certainly be applied to Article 2 which is likewise fitted into this general scheme and for the non-observance of which the principle of self-help applies. It must accordingly be maintained as regards the GATT provisions cited by the plaintiff in relation to international law that only the obligations of states are at issue, the infringement of which can be dealt with on the level of international law, but that it is not appropriate to draw conclusions from their possible non-observance concerning the invalidity of Community Regulations in this field. Moreover where the plaintiff invokes Regulation No 950/68 or No 1/72 concerning the Common Customs Tariff and the fact that it refers to GATT concessions and so incorporates them in the Regulations, the following observations arise. Before any conclusions can be drawn in this connection from such a Community Regulation which of course is of direct application, it must be determined how the subject matter governed by this Regulation is to be defined. The Council and the Commission are surely right in pointing out that, since the legal basis of the Regulations is Article 28 of the EEC Treaty, their object is to establish the Customs Tariff with the rates of duty. References in these Regulations to other levies which, somewhat like the levies under consideration, have a special legal basis are only declaratory; they do not make the levies part of the Common Customs Tariff. So far as the maximum consolidated rate of duty in GATT for cheese set out in Annex II of the Common Customs Tariff is reproduced in Regulation No 950/68 this is only material for the purpose of customs law in the technical sense. It is for this reason that it was necessary, despite the reference to customs concessions in Regulation No 950, to prescribe in the common organization of the agricultural markets an express limitation of the levies to a corresponding extent (as is done for example in Article 14 of Regulation No 804/68, OJ 1968, L 148). Since on the other hand the comprehensive prohibition of Article 2 of GATT is not reproduced in the Common Customs Tariff it can be said that the Community authorities were not prevented by the subject matter governed by the Common Customs Tariff from introducing special kinds of import levies such as compensatory amounts for fluctuations in exchange rates, such amounts having special functions. As the Council and the Commission stress, there is no contradiction between Regulation No 950/68 and Regulation No 974/71, so far as it contains powers to levy compensatory amounts for fluctuations in exchange rates independently of the amount of the maximum consolidated rates of duty. That it was the Council's intention not to provide such a restriction in Regulation No 974/71 is evident from the Council's negative reaction to the Commission's proposal of May 1972 to set a limit to currency compensation in those cases in which tariff concessions were made for specific products within the framework of GATT. If on the other hand the Council had wished so to limit the frontier compensation it would have been necessary to provide for this expressly in Regulation No 974/71 in the same way as in the case of levies in the relevant organizations of the agricultural markets. Without such an express authorization the Commission was certainly not entitled in the implementation of the regulations for compensation to limit the compensatory amounts generally according to the standard of the GATT consolidations. Whilst, then, it can be said that there is no contradiction between Regulation No 974/71 and the Regulation on the Common Customs Tariff with its references to the concessions in GATT it should be added that, even if there were such a contradiction, the conclusions drawn by the plaintiff on the validity of the compensatory rules are unjustified. In that case we could not fail to recognize that Regulation No 974/71 with its comprehensive special powers in relation to Regulation No 950 is lex specialis as well as lex posterior. Because it is not based on Regulation No 950, its validity cannot be judged by the rules in the latter. So on the third question for preliminary ruling in Case 9/73 there remains only to observe that the validity of the compensatory rules as regards third countries can be disputed neither in relation to Regulation No 950/68 nor by reference to the GATT rules on maximum consolidated rates of duty.