2.

The Commission's argument is quite different. it observes first that the words Binding and ‘bound’ are not technical terms employed in the original text of GATT which resorts by preference to the concept of tariff concession. On the other hand, these expressions are frequently used in the vocabulary of international commercial law, precisely in relation to GATT. They imply in this case the concept of ‘bound with regard to the contracting parties’, or ‘fixing in accordance with the rules of GATT’. A tariff concession, made by a contracting party, is said to be bound because it can only be withdrawn in accordance with the rules of GATT. It is well known that the GATT system provides in particular for the deposit by each contracting party, after negotiations which from being bilateral have become multilateral, of lists of products in respect of which the corresponding customs duties have been fixed. On the one hand, according to Article II of GATT, a State may not subject products imported from other contracting parties to import duties higher than those resulting from the tariff concession shown in the list which it has deposited. On the other hand, under Article XXVIII, the lists may in principle be modified only every three years and according to a special procedure. The Commission also point out that although Article XXVIIIa — introduced several years after the signature of the original agreement — employs the expression ‘binding’, the meaning which it gives to it is in reality wider than appears at first sight and is compatible with that which I have just mentioned. Dealing with the object which the periodical negotiations may have, this article mentions the binding of duties at the level existing at the time of the negotiations, in addition to the reduction of duties and the undertaking not to raise particular duties above a certain level; it does not follow from this, it says, that the standstill undertaking alone constitutes a binding; the lowering of duties and the undertaking not to raise them above a certain level also display this characteristic. This argument seems to me to be correct. Then, applying Article 16 of Regulation No 160/66 to the concept of binding in the form which it seems to the Commission must be accepted for the purposes of GATT, the Commission considers that the maximum duty laid down in that article is constituted by the concession made by the Community within the framework of GATT with regard to its customs tariff. The basic purpose of this provision is in fact to guarantee the rights vested in the contracting parties by virtue of the tariff concessions which had previously been made. This results both from the wording of the article and the recital preceding it. Thus it remains to see what tariff concession was granted for the tariff headings in question, 17.04-C and 18.06-B. According to Schedule XL, the Community may impose a ‘duty’ of 27 %, described in footnote (a) as a ‘bound duty’, to which may be added an additional duty on sugar. It is obvious from this that by virtue of these provisions the Community did not undertake in respect of the contracting parties to limit the duty on these goods to 27 %, but may impose a higher charge by reason of the existence of the additional duty. The question then arises whether it is bound not only as far as the above-mentioned 27 % is concerned, but also with regard to the additional duty. It seems that the answer must be that the undertaking — that is to say, the binding — also covers the additional duty, for if it were otherwise, the undertaking would be deprived of all real effect, and Article 16 would not introduce any ceiling. Since the tariff concession precisely constitutes a ceiling, the object of the binding constitutes a whole, and it is not possible to consider a part of the charge as bound if the whole is not bound. It is true that it may be objected here that, if the additional duty is also bound and may not therefore exceed the charge on sugar upon importation without infringing the principles of GATT, this charge is not itself bound in the Protocol. However, so long as sugar is subject to a certain charge, the limit of the additional duty and, consequently, the limit of the total charge are fixed; it may therefore be considered that within these limits there is a tariff concession. In other words, the Community may not, with regard to the contracting parties to GATT, levy for the tariff headings in question a duty greater than 27 % and the additional duty on sugar. The tariff concession which it has thus granted must be considered as constituting the bound customs duty under GATT and forms the limit of the charge mentioned in Article 16 of Regulation No 160/66.