Camar Srl v Presidenza del Consiglio dei Ministri.
Date: 2010-04-29
19. It is apparent from the order for reference that, at the time of the facts in the main proceedings, the production of bananas in Italy was negligible or non-existent and must therefore be disregarded. The criterion of similarity on which, according to its wording, the prohibition in Article 14 of the First Yaoundé Convention is based must be assessed in relation to table fruit typically produced in the Member State concerned (see, by analogy, Case 184/85 Commission v Italy  [1987] ECR 2013, paragraph 8).
20. In that connection, it should be recalled that the Court has had to rule on whether bananas and other table fruits produced in Italy were similar in disputes relating to the interpretation of the first paragraph of Article 95 of the EEC Treaty (subsequently the first paragraph of Article 95 of the EC Treaty and now the first paragraph of Article 90 EC). It held that those two categories of products were not similar for the purposes of the first paragraph of Article 95 EEC, since they have different characteristics and do not satisfy the same consumer needs (see Commission  v Italy , paragraphs 9 and 10, and Case 193/85 Cooperative Co-Frutta  [1987] ECR 2085, paragraphs 17 and 18).
21. The Court held that the organoleptic characteristics and the water content of those categories of product differ and that the banana is regarded, at least on the Italian market, as a foodstuff which is particularly nutritious, of a high energy content and well suited for infants (see Commission  v Italy , paragraph 10).
24. However, it should be noted that no support is to be found in the wording of Article 14 of the First Yaoundé Convention for the interpretation proposed by Camar. That provision simply imposes a prohibition on discriminatory taxation of like products, using terms resembling those in the first paragraph of Article 90 EC. According to the case-law on that provision, it is accepted that the like products to which that prohibition applies are products with similar characteristics which satisfy the same consumer needs (see, to that effect, Commission  v Italy , paragraphs 9 and 10).
25. It follows that, if the Community and the African States and Madagascar associated with the Community had intended to address the problem of the internal taxation of unlike products which are in competition with each other, instead of adopting a provision which was similar only to the first paragraph of Article 90 EC, they would have adopted a provision which was also modelled on the second paragraph of Article 90 EC (see, by analogy, Case C‑469/93 Chiquita Italia  [1995] ECR I‑4533, paragraph 43).
32. According to the Court’s case-law, the purpose of Article 90 EC is to guarantee the free movement of goods between the Member States in normal conditions of competition, prohibiting any form of protection which may result from the application to goods originating in other Member States of internal taxes of a discriminatory nature and to guarantee the complete neutrality of internal taxation as regards competition between domestic products and imported products (see, to that effect, Commission  v Italy , paragraph 7)
33. Similarly, the interpretation of that provision must take account of the objectives of the Treaty as laid down in Articles 2 EC, 3 EC and 14 EC, which include, in the first place, the establishment of an internal market in which the free movement of goods, persons, services and capital is guaranteed (see, to that effect, Case 299/86 Drexl  [1988] ECR 1213, paragraph 24).
35. The conclusion that, in order to satisfy the objective of the First Yaoundé Convention, it is unnecessary to interpret Article 14 in a manner that is broader than its wording strictly permits, so as to confer on that provision a scope that is comparable to that of the second paragraph of Article 90 EC, is also supported by the Court’s interpretation of provisions that are virtually identical to Article 14 in disputes relating to agreements aimed at establishing a system of free trade. The Court has held that those provisions imposed on the contracting parties a 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 (see Case 104/81 Kupferberg  [1982] ECR 3641, paragraph 26, and Joined Cases C‑114/95 and C‑115/95 Texaco and Olieselskabet Danmark  [1997] ECR I‑4263, paragraph 31).
36. Moreover, the Court has expressly held that the scope of a provision in a free trade agreement similar to Article 14 of the First Yaoundé Convention does not extend beyond the prohibition of discriminatory taxation of like products. As regards the first paragraph of Article 21 of the agreement between the European Economic Community and the Portuguese Republic signed in Brussels on 22 July 1972, concluded and approved on behalf of the Community by Council Regulation  (EEC) No 2844/72 of 19 December 1972 (OJ English Special Edition 1972(I), p. 166), the Court decided, at paragraph 42 of Kupferberg,  that there is no discrimination within the meaning of Article 21 where a Member State does not apply to products originating in the non-Member country concerned 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.
42. Article 1 of that protocol takes the form of a standstill clause. In other words, that provision aims to ensure that bananas from ACP States have access to their traditional markets upon conditions and according to rules which are no less favourable than those which existed when it entered into force. However, that guarantee of access benefits bananas from ACP States only up to the quantities imported when that provision entered into force ( Chiquita Italia , paragraph 59).
43. The first three Lomé Conventions all contained a standstill clause worded in terms similar to those in Article 1 of Protocol No 5 on bananas annexed to the Fourth Lomé Convention ( Chiquita Italia , paragraph 62). Since the First Lomé Convention entered into force on 1 April 1976, that date is the reference point for the application of the standstill clause (see, to that effect, Chiquita Italia , paragraph 63).
45. More specifically, with regard to the referring court’s question concerning the examination to be carried out to determine whether increases of a tax such as that at issue in the main proceedings are compatible with the standstill clause in Article 1 of Protocol No 5 on bananas annexed to the Fourth Lomé Convention, such increases lead to increases in the price of the bananas concerned and, accordingly, make it more difficult to sell them on the market in question ( Chiquita Italia , paragraph 60). Accordingly, in order to examine such an increase from the perspective of the standstill clause, it is not normally necessary to examine the specific effects of the increase on imports.
46. However, in the case presented in the parties’ arguments in which such increases are aimed solely at bringing a tax such as that introduced by Law No 986/1964 in line with inflation, the purpose of that standstill clause is to prevent banana exports being placed in a situation less favourable than before as regards access to their traditional markets and the advantages they enjoy on those markets (see, to that effect, Chiquita Italia , paragraph 63) so that the clause relates to the actual situation in those markets.