International Fruit Company NV and others v Produktschap voor Groenten en Fruit.
Date: 1972-12-12
5 UNDER THAT FORMULATION, THE JURISDICTION OF THE COURT CANNOT BE LIMITED BY THE GROUNDS ON WHICH THE VALIDITY OF THOSE MEASURES MAY BE CONTESTED .
6 SINCE SUCH JURISDICTION EXTENDS TO ALL GROUNDS CAPABLE OF INVALIDATING THOSE MEASURES, THE COURT IS OBLIGED TO EXAMINE WHETHER THEIR VALIDITY MAY BE AFFECTED BY REASON OF THE FACT THAT THEY ARE CONTRARY TO A RULE OF INTERNATIONAL LAW .
7 BEFORE THE INCOMPATIBILITY OF A COMMUNITY MEASURE WITH A PROVISION OF INTERNATIONAL LAW CAN AFFECT THE VALIDITY OF THAT MEASURE, THE COMMUNITY MUST FIRST OF ALL BE BOUND BY THAT PROVISION .
10 IT IS CLEAR THAT AT THE TIME WHEN THEY CONCLUDED THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY THE MEMBER STATES WERE BOUND BY THE OBLIGATIONS OF THE GENERAL AGREEMENT .
11 BY CONCLUDING A TREATY BETWEEN THEM THEY COULD NOT WITHDRAW FROM THEIR OBLIGATIONS TO THIRD COUNTRIES .
12 ON THE CONTRARY, THEIR DESIRE TO OBSERVE THE UNDERTAKINGS OF THE GENERAL AGREEMENT FOLLOWS AS MUCH FROM THE VERY PROVISIONS OF THE EEC TREATY AS FROM THE DECLARATIONS MADE BY MEMBER STATES ON THE PRESENTATION OF THE TREATY TO THE CONTRACTING PARTIES OF THE GENERAL AGREEMENT IN ACCORDANCE WITH THE OBLIGATION UNDER ARTICLE XXIV THEREOF .
13 THAT INTENTION WAS MADE CLEAR IN PARTICULAR BY ARTICLE 110 OF THE EEC TREATY, WHICH SEEKS THE ADHERENCE OF THE COMMUNITY TO THE SAME AIMS AS THOSE SOUGHT BY THE GENERAL AGREEMENT, AS WELL AS BY THE FIRST PARAGRAPH OF ARTICLE 234 WHICH PROVIDES THAT THE RIGHTS AND OBLIGATIONS ARISING FROM AGREEMENTS CONCLUDED BEFORE THE ENTRY INTO FORCE OF THE TREATY, AND IN PARTICULAR MULTILATERAL AGREEMENTS CONCLUDED WITH THE PARTICIPATION OF MEMBER STATES, ARE NOT AFFECTED BY THE PROVISIONS OF THE TREATY .
14 THE COMMUNITY HAS ASSUMED THE FUNCTIONS INHERENT IN THE TARIFF AND TRADE POLICY, PROGRESSIVELY DURING THE TRANSITIONAL PERIOD AND IN THEIR ENTIRETY ON THE EXPIRY OF THAT PERIOD, BY VIRTUE OF ARTICLES 111 AND 113 OF THE TREATY .
15 BY CONFERRING THOSE POWERS ON THE COMMUNITY, THE MEMBER STATES SHOWED THEIR WISH TO BIND IT BY THE OBLIGATIONS ENTERED INTO UNDER THE GENERAL AGREEMENT .
16 SINCE THE ENTRY INTO FORCE OF THE EEC TREATY AND MORE PARTICULARLY, SINCE THE SETTING UP OF THE COMMON EXTERNAL TARIFF, THE TRANSFER OF POWERS WHICH HAS OCCURRED IN THE RELATIONS BETWEEN MEMBER STATES AND THE COMMUNITY HAS BEEN PUT INTO CONCRETE FORM IN DIFFERENT WAYS WITHIN THE FRAMEWORK OF THE GENERAL AGREEMENT AND HAS BEEN RECOGNIZED BY THE OTHER CONTRACTING PARTIES .
17 IN PARTICULAR, SINCE THAT TIME, THE COMMUNITY, ACTING THROUGH ITS OWN INSTITUTIONS, HAS APPEARED AS A PARTNER IN THE TARIFF NEGOTIATIONS AND AS A PARTY TO THE AGREEMENTS OF ALL TYPES CONCLUDED WITHIN THE FRAMEWORK OF THE GENERAL AGREEMENT, IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 114 OF THE EEC TREATY WHICH PROVIDES THAT THE TARIFF AND TRADE AGREEMENTS " SHALL BE CONCLUDED ... ON BEHALF OF THE COMMUNITY ".
18 IT THEREFORE APPEARS THAT, IN SO FAR AS UNDER THE EEC TREATY THE COMMUNITY HAS ASSUMED THE POWERS PREVIOUSLY EXERCISED BY MEMBER STATES IN THE AREA GOVERNED BY THE GENERAL AGREEMENT, THE PROVISIONS OF THAT AGREEMENT HAVE THE EFFECT OF BINDING THE COMMUNITY .
21 THIS AGREEMENT WHICH, ACCORDING TO ITS PREAMBLE, IS BASED ON THE PRINCIPLE OF NEGOTIATIONS UNDERTAKEN ON THE BASIS OF " RECIPROCAL AND MUTUALLY ADVANTAGEOUS ARRANGEMENTS " IS CHARACTERIZED BY THE GREAT FLEXIBILITY OF ITS PROVISIONS, IN PARTICULAR THOSE CONFERRING THE POSSIBILITY OF DEROGATION, THE MEASURES TO BE TAKEN WHEN CONFRONTED WITH EXCEPTIONAL DIFFICULTIES AND THE SETTLEMENT OF CONFLICTS BETWEEN THE CONTRACTING PARTIES .
25 THOSE MEASURES INCLUDE, FOR THE SETTLEMENT OF CONFLICTS, WRITTEN RECOMMENDATIONS OR PROPOSALS WHICH ARE TO BE " GIVEN SYMPATHETIC CONSIDERATION ", INVESTIGATIONS POSSIBLY FOLLOWED BY RECOMMENDATIONS, CONSULTATIONS BETWEEN OR DECISIONS OF THE CONTRACTING PARTIES, INCLUDING THAT OF AUTHORIZING CERTAIN CONTRACTING PARTIES TO SUSPEND THE APPLICATION TO ANY OTHERS OF ANY OBLIGATIONS OR CONCESSIONS UNDER THE GENERAL AGREEMENT AND, FINALLY, IN THE EVENT OF SUCH SUSPENSION, THE POWER OF THE PARTY CONCERNED TO WITHDRAW FROM THAT AGREEMENT .
26 FINALLY, WHERE BY REASON OF AN OBLIGATION ASSUMED UNDER THE GENERAL AGREEMENT OR OF A CONCESSION RELATING TO A BENEFIT, SOME PRODUCERS SUFFER OR ARE THREATENED WITH SERIOUS DAMAGE, ARTICLE XIX GIVES A CONTRACTING PARTY POWER UNILATERALLY TO SUSPEND THE OBLIGATION AND TO WITHDRAW OR MODIFY THE CONCESSION, EITHER AFTER CONSULTING THE CONTRACTING PARTIES JOINTLY AND FAILING AGREEMENT BETWEEN THE CONTRACTING PARTIES CONCERNED, OR EVEN, IF THE MATTER IS URGENT AND ON A TEMPORARY BASIS, WITHOUT PRIOR CONSULTATION .