Ioannis Katsivardas - Nikolaos Tsitsikas OE v Ypourgos Oikonomikon.
Date: 2010-05-20
24. It is to be recalled that, although the Court has no jurisdiction under Article 234 EC to apply a rule of Community law to a particular case and thus to judge a provision of national law by reference to such a rule, it may none the less, within the framework of the judicial cooperation provided for by that article and on the basis of the material presented to it, provide the national court with an interpretation of Community law which may be useful to it in assessing the effects of that provision (Case C-6/01 Anomar and Others  [2003] ECR I-8621, paragraph 37 and the case-law cited).
26. That clause is set out in the Cooperation Agreement, which was approved on behalf of the Community by Regulation No 1591/84 and thus constitutes, in light of settled case-law, an act of the Community institutions which the Court has jurisdiction to interpret in preliminary ruling proceedings (see, to this effect, Case 181/73 Haegeman  [1974] ECR 449, paragraphs 4 to 6; Case C-162/96 Racke  [1998] ECR I‑3655, paragraph 41; and Case C-301/08 Bogiatzi  [2009] ECR I‑0000, paragraph 23).
27. It is also settled case-law that questions on the interpretation of Community law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to verify, enjoy a presumption of relevance. The Court can decline to rule on a reference for a preliminary ruling from a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or to its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (Case C-210/06 Cartesio  [2008] ECR I-9641, paragraph 67 and the case-law cited).
32. It should first be noted, as a preliminary point, that in conformity with the principles of public international law the institutions of the European Union, which have power to negotiate and conclude an agreement with non-member countries, are free to agree with those countries 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 to be decided by the courts having jurisdiction in the matter, and in particular by the Court of Justice within the framework of its jurisdiction under the FEU Treaty, in the same manner as any other question of interpretation relating to the application of the agreement in the European Union (see Case 104/81 Kupferberg  [1982] ECR 3641, paragraph 17; Case C-149/96 Portugal  v Council  [1999] ECR I‑8395, paragraph 34; and Joined Cases C-120/06 P and C-121/06 P FIAMM and FIAMM Technologies  v Council and Commission  [2008] ECR I‑6513, paragraph 108).
33. It should also be noted that, in accordance with the Court’s settled case-law, examination of the direct effect of provisions contained in an agreement concluded by the European Union with non-member countries invariably involves an analysis of the spirit, general scheme and terms of that agreement (see Chiquita Italia , paragraph 25 and the case-law cited).
34. On the other hand, as the European Commission observed at the hearing, the nature of the legal measure approving the international agreement concerned is not relevant in such an examination. As follows from Case 12/86 Demirel  [1987] ECR 3719, paragraph 25, the fact that an international agreement has been approved by means of a decision or by means of a regulation cannot affect whether it is recognised as having direct effect. It is therefore necessary to reject the argument in favour of the most-favoured-nation clause in the Cooperation Agreement having direct effect that Katsivardas derives from the fact that the Cooperation Agreement was approved by a regulation, in contrast to the Framework Agreement on Cooperation which was approved by a decision.
35. With regard to Article 4 of the Cooperation Agreement, contrary to the Italian Government’s assertions, the fact that this article appears in a cooperation agreement does not mean that, as a matter of principle, individuals cannot rely upon it. It is settled case-law that the fact that such an agreement is intended essentially to promote the economic development of the non-member countries party to it, confining itself to instituting cooperation between the parties without being directed towards future accession of those countries to the European Union, is not such as to prevent certain of its provisions from being directly applicable (see, by analogy, Case 87/75 Conceria Bresciani  [1976] ECR 129, paragraph 23; Kupferberg , paragraph 22; and Case C-18/90 Kziber  [1991] ECR I-199, paragraph 21).
36. However, in paragraph 58 of the judgment in Van Parys , the Court, answering a question relating to the interpretation of the most-favoured-nation clause in the Framework Agreement on Cooperation which succeeded the Cooperation Agreement, held that that clause may not be relied upon by an individual before a court of a Member State. That interpretation is not called into question by any of the interested parties which have submitted observations to the Court in the present proceedings.
43. Moreover, as the Commission points out, when Article 4 of the Cooperation Agreement was adopted, the member countries of the Cartagena Agreement were not yet all parties to the 1947 GATT. As the Court observed in paragraph 57 of the judgment in Van Parys , in relation to the Framework Agreement on Cooperation, the intention of the parties to that framework agreement was to extend the application of the system drawn up within the framework of the 1994 GATT to the member countries of the Cartagena Agreement, in order to grant them the benefit of the most-favoured-nation clause in Article I(1) of the GATT, without altering its scope. The same reasoning holds true for the Cooperation Agreement, since the drafting of Article 4 thereof clearly does not reveal an intention of the contracting parties to grant the three member countries of the Cartagena Agreement which were not yet parties to the 1947 GATT trade concessions going beyond those which they had granted to their GATT partners.