Hauptzollamt Mainz v C.A. Kupferberg & Cie KG a.A..
Date: 1982-10-26
11 THE TREATY ESTABLISHING THE COMMUNITY HAS CONFERRED UPON THE INSTITUTIONS THE POWER NOT ONLY OF ADOPTING MEASURES APPLICABLE IN THE COMMUNITY BUT ALSO OF MAKING AGREEMENTS WITH NON-MEMBER COUNTRIES AND INTERNATIONAL ORGANIZATIONS IN ACCORDANCE WITH THE PROVISIONS OF THE TREATY . ACCORDING TO ARTICLE 228 ( 2 ) THESE AGREEMENTS ARE BINDING ON THE INSTITUTIONS OF THE COMMUNITY AND ON MEMBER STATES . CONSEQUENTLY , IT IS INCUMBENT UPON THE COMMUNITY INSTITUTIONS , AS WELL AS UPON THE MEMBER STATES , TO ENSURE COMPLIANCE WITH THE OBLIGATIONS ARISING FROM SUCH AGREEMENTS .
14 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 .
17 IT IS TRUE THAT THE EFFECTS WITHIN THE COMMUNITY OF PROVISIONS OF AN AGREEMENT CONCLUDED BY THE COMMUNITY WITH A NON-MEMBER COUNTRY MAY NOT BE DETERMINED WITHOUT TAKING ACCOUNT OF THE INTERNATIONAL ORIGIN OF THE PROVISIONS IN QUESTION . IN CONFORMITY WITH THE PRINCIPLES OF PUBLIC INTERNATIONAL LAW COMMUNITY INSTITUTIONS WHICH HAVE POWER TO NEGOTIATE AND CONCLUDE AN AGREEMENT WITH A NON-MEMBER COUNTRY ARE FREE TO AGREE WITH THAT COUNTRY WHAT EFFECT THE PROVISIONS OF THE AGREEMENT ARE TO HAVE IN THE INTERNAL LEGAL ORDER OF THE CONTRACTING PARTIES . ONLY IF THAT QUESTION HAS NOT BEEN SETTLED BY THE AGREEMENT DOES IT FALL FOR DECISION BY THE COURTS HAVING JURISDICTION IN THE MATTER , AND IN PARTICULAR BY THE COURT OF JUSTICE WITHIN THE FRAMEWORK OF ITS JURISDICTION UNDER THE TREATY , IN THE SAME MANNER AS ANY QUESTION OF INTERPRETATION RELATING TO THE APPLICATION OF THE AGREEMENT IN THE COMMUNITY .
18 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 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 .
20 THE MERE FACT THAT THE CONTRACTING PARTIES HAVE ESTABLISHED A SPECIAL INSTITUTIONAL FRAMEWORK FOR CONSULTATIONS AND NEGOTIATIONS INTER SE IN RELATION TO THE IMPLEMENTATION OF THE AGREEMENT IS NOT IN ITSELF SUFFICIENT TO EXCLUDE ALL JUDICIAL APPLICATION OF THAT AGREEMENT . THE FACT THAT A COURT OF ONE OF THE PARTIES APPLIES TO A SPECIFIC CASE BEFORE IT A PROVISION OF THE AGREEMENT INVOLVING AN UNCONDITIONAL AND PRECISE OBLIGATION AND THEREFORE NOT REQUIRING ANY PRIOR INTERVENTION ON THE PART OF THE JOINT COMMITTEE DOES NOT ADVERSELY AFFECT THE POWERS THAT THE AGREEMENT CONFERS ON THAT COMMITTEE .
22 IT FOLLOWS FROM ALL THE FOREGOING CONSIDERATIONS THAT NEITHER THE NATURE NOR THE STRUCTURE OF THE AGREEMENT CONCLUDED WITH PORTUGAL MAY PREVENT A TRADER FROM RELYING ON THE PROVISIONS OF THE SAID AGREEMENT BEFORE A COURT IN THE COMMUNITY .
25 SEEN IN THAT CONTEXT THE FIRST PARAGRAPH OF ARTICLE 21 OF THE AGREEMENT SEEKS TO PREVENT THE LIBERALIZATION OF THE TRADE IN GOODS THROUGH THE ABOLITION OF CUSTOMS DUTIES AND CHARGES HAVING EQUIVALENT EFFECT AND QUANTITATIVE RESTRICTIONS AND MEASURES HAVING EQUIVALENT EFFECT FROM BEING RENDERED NUGATORY BY FISCAL PRACTICES OF THE CONTRACTING PARTIES . THAT WOULD BE SO IF THE PRODUCT IMPORTED OF ONE PARTY WERE TAXED MORE HEAVILY THAN THE SIMILAR DOMESTIC PRODUCTS WHICH IT ENCOUNTERS ON THE MARKET OF THE OTHER PARTY .
26 IT APPEARS FROM THE FOREGOING THAT THE FIRST PARAGRAPH OF ARTICLE 21 OF THE AGREEMENT 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 .
29 IN THAT RESPECT IT MUST BE OBSERVED THAT ALTHOUGH ARTICLE 21 OF THE AGREEMENT 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 .
30 AS THE COURT HAS ALREADY STATED IN ITS JUDGMENT OF 9 FEBRUARY 1982 IN CASE 270/80 POLYDOR (( 1982 ) ECR 329 ), THE EEC TREATY AND THE AGREEMENT ON FREE TRADE PURSUE DIFFERENT OBJECTIVES . IT FOLLOWS THAT THE INTERPRETATIONS GIVEN TO ARTICLE 95 OF THE TREATY CANNOT BE APPLIED BY WAY OF SIMPLE ANALOGY TO THE AGREEMENT ON FREE TRADE .
31 THE SECOND PART OF THE QUESTION MUST THEREFORE BE ANSWERED TO THE EFFECT THAT THE FIRST PARAGRAPH OF ARTICLE 21 MUST 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 .

THIRD PART OF THE QUESTION
42 QUESTION 2 ( A ) MUST THEREFORE BE ANSWERED TO THE EFFECT THAT THERE IS NO DISCRIMINATION WITHIN THE MEANING OF THE FIRST PARAGRAPH OF ARTICLE 21 OF THE AGREEMENT BETWEEN THE COMMUNITY AND PORTUGAL 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 .