OPINION OF MR ADVOCATE-GENERAL TRABUCCHI

DELIVERED ON 27 NOVEMBER 1973 ( 1 )

Mr President,

Members of the Court,

The reply which the Court gives to the question referred by the Berlin Finanzgericht and which is concerned with the question of the application in 1971, as regards imports of coffee from Guinea to the German Federal Republic, of the preferential scheme applying to imports to the Community of goods from African Malagasy States under the Convention of Association of 29 July 1969 between the Community and those States, will inevitably have political repercussions. However, given the precise nature of the terms of the question for interpretation raised by the Finanzgericht, we can exclude any thought that a case of this nature leaves room for an interpreter to take account of considerations of expediency. We are not called on here to resolve the doubts which may exist as regards the precise legal form of the Republic of Guinea's position vis-à-vis the Community.

Our task is more modest. And in fact the possible solutions to the more general problem concerning the current position of Guinea in its relations with the Community could not in any case be reflected in the tenor of the reply to be given to the reference by the German court on the subject of import duties: a ruling which must be clear and unequivocal.

By Article 131 of the EEC Treaty the Member States agreed to associate with the Community the non-European Countries and Territories which have special relations with certain Member States. In accordance with Article 227 (3) of the Treaty these Countries and Territories, which at the time of the drawing up of the Treaty were in a position of dependency on one or other Member State, have been listed in Annex IV to the Treaty. Guinea has also been included in this list under the heading French West Africa. Soon after the entry into force of the EEC Treaty, on 2 October 1958, French Guinea obtained independence and so became the Republic of Guinea. In the course of the next two years eighteen other Countries and Territories obtained independence.

Whereas all these new States entered into Association Agreements with the European Economic Community as from 1963, the Republic of Guinea, up to the time which is relevant here, did not take part in any kind of agreement or negotiation with the Community.

The legal requirement for the relationship of association which was instituted, at the wish of Member States alone, between the Overseas Countries and Territories and the Community, was the position of dependency of the latter on a Member State. On independence there occurred a fundamental change which in itself justifies, if not the immediate and automatic lapse of the relationship of association established by an authority now extinguished, then at least its suspension until the two parties concerned, the new State and the Community, have taken a stand on the matter.

That ought to apply even if one wishes not simply to keep open the possibility of a bilateral agreement, but directly to recognize the right of the new States to continue to consider themselves as associated with the Community on the basis of the scheme from which they had benefited when they formed part of the Overseas Countries and Territories.

We know that the Community had declared itself willing to maintain on a temporary basis, until the settlement of a new scheme on a contractual basis, the scheme of association fixed for the OSCT in the case of the new States who had shown they desired it. That is what happened in the case of the eighteen African and Malagasy States which then entered into the Convention of Association of Yaoundé with the Community on 20 July 1963.

This being the case, one must thus infer, from the failure by the Republic of Guinea to participate in that agreement or in the preceding negotiations and in the absence of any measure by Guinea to apply the scheme of association which was maintained on a temporary basis for the new independent States already benefiting from the agreements of the OSCT, that the preceding relationship of association under OSCT ceased or at least remained suspended in the case of Guinea from the time it obtained independence.

There is in fact no doubt that the positive desire on the part of the Republic of Guinea not to continue with the relationship of association with the Community, or simply the absence of any wish to carry on with it, cannot fail to be considered decisive in relation to the cessation of such relationship, or at least in relation to suspending the application of the scheme dependent on it. Such a wish, even if not formulated in express terms, can clearly emerge from the behaviour of the State judged in the context of the international relations which make up the Community. For this purpose, it is here relevant to notice the difference, between, on the one hand, the behaviour of active cooperation with the Community of the majority of the countries listed in Annex IV after independence and, on the other hand, the complete indifference of the Republic of Guinea towards any relations with the Community, at least up to the period which is here under consideration.

The general requirement of certainty in legal relations has the effect of rendering impossible any continuance, for fifteen years (that is the period which has elapsed between Guinea's independence and today), of a situation of uncertainty concerning the continuation of the abovementioned arrangements for association. Whereas the majority of the other States which obtained independence in the course of the years immediately following the entry into force of the EEC Treaty expressed, before entering into the appropriate Conventions of Association with the Community, a desire to make use of the previous arrangements for association, the prolonged absence, which extended for more than a reasonable time, of a positive expression of desire or even of a merely indirect indication by the Republic of Guinea as to its intention to conform or renew its relations — which even a measure applying the original arrangements for association of the OSCT would have impliedly shown — means that this State could not have continued to be associated with the Community up to 1971 on the basis of the arrangements prescribed by Article 131 of the Treaty and of the accompanying Implementing Convention to which reference is made in Article 136. Moreover, this first Convention, which was needed to implement the arrangements for association with the OSCT prescribed by the Treaty, had been concluded for a period of only five years. Consequently, by a Decision of the Council of 25 February 1964 (OJ of 11 June 1964, p. 1472) the arrangements of association which it had enacted were replaced by different arrangements. The Republic of Guinea was naturally not among the countries or territories to whom this Decision was addressed.

As regards the customs scheme applying to Community imports in 1971, the time when the imports which are now being examined by the national court were carried out, the Convention of Association of 29 July 1969 with the African and Malagasy States lays down in the first paragraph of Article 2 that goods originating in Associated States shall be exempt from customs duties on importation into the Community.

By virtue of Article 2 of the Council Decision of 29 September 1970 on the association of such Countries and Territories with the Community products from OSCT were treated in a similar manner.

The Republic of Guinea is not among the States associated with the Community under the Convention of Association of 1969, nor is the Association Decision of the Council of 1970, laying down the present arrangements for the association of the Community with Overseas Countries and Territories dependent on Member States, addressed to the Republic of Guinea — nor could it be, the latter being an independent State. Also bearing in mind what was observed previously, it must, then, be held that as regards imports of its goods to the Community in 1971 the Republic of Guinea was in the position of a third country.

One must therefore conclude that goods originating in the State here in question and imported to the Community in 1971 can benefit neither from the preferential arrangements prescribed by the Convention of Association of 29 July 1969 between the Community and the African and Malagasy States nor from the preferential arrangements granted the OSCT by the Community on the basis of Article 131 of the Treaty and confirmed by the Council Decision of 29 September 1970.

The conclusion would be identical even if it were considered that the situation, with regard to the Community, is still subject to the former arrangements for association already applied to Guinea as a member of the OSCT, since in such a case one would still have to admit that, whether because of the cessation of the Implementing Convention of limited duration or because of the abovementioned attitude of the State concerned, the original relationship of association had remained in abeyance, awaiting a new definition of the relationship itself, which necessarily presupposes an express stand on the matter by the Republic of Guinea. Thus in the meantime its application would be suspended. Even in that case one must therefore hold that in 1971 products of the State in question imported into the Community were subject without reservation to the general scheme of the Common Customs Tariff.

That is how I would advise you to answer the request of the Berlin Finanzgericht.

( 1 ) Translated from the Italian.