Fédération de l'industrie de l'huilerie de la CEE (Fediol) v Commission of the European Communities.
Date: 1989-06-22
19 It should be recalled that the Court has certainly held, on several occasions, that various GATT provisions were not capable of conferring on citizens of the Community rights which they can invoke before the courts ( judgments of 12 December 1972 in Joined Cases 21 to 24/72 International Fruit Company (( 1972 )) ECR 1219; 24 October 1973 in Case 9/73 Schlueter (( 1973 )) ECR 1135; 16 March 1983 in Case 266/81 SIOT (( 1983 )) ECR 731; and 16 March 1983 in Joined Cases 267 to 269/81 SPI and SAMI (( 1983 )) ECR 801 ). Nevertheless, it cannot be inferred from those judgments that citizens may not, in proceedings before the Court, rely on the provisions of GATT in order to obtain a ruling on whether conduct criticized in a complaint lodged under Article 3 of Regulation No 2641/84 constitutes an illicit commercial practice within the meaning of that regulation . The GATT provisions form part of the rules of international law to which Article 2(1 ) of that regulation refers, as is borne out by the second and fourth recitals in its preamble, read together .
20 It is also appropriate to note that the Court did indeed hold in the abovementioned judgments of 12 December 1972 International Fruit Company, 24 October 1973 Schlueter and 16 March 1983 SPI and SAMI, that a particular feature of GATT is the broad flexibility of its provisions, especially those concerning deviations from general rules, measures which may be taken in cases of exceptional difficulty, and the settling of differences between the contracting parties . That view does not, however, prevent the Court from interpreting and applying the rules of GATT with reference to a given case, in order to establish whether certain specific commercial practices should be considered incompatible with those rules . The GATT provisions have an independent meaning which, for the purposes of their application in specific cases, is to be determined by way of interpretation .
21 Lastly, the fact that Article XXIII of GATT provides a special procedure for the settlement of disputes between contracting parties is not such as to preclude its interpretation by the Court . As the Court held in the judgment of 26 October 1982 in Case 104/81 Kupferberg (( 1982 )) ECR 3641, in the context of the joint committees which are set up by free-trade agreements and given responsibility for the administration and proper implementation of those agreements, 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 .
22 It follows that, since Regulation No 2641/84 entitles the economic agents concerned to rely on the GATT provisions in the complaint which they lodge with the Commission in order to establish the illicit nature of the commercial practices which they consider to have harmed them, those same economic agents are entitled to request the Court to exercise its powers of review over the legality of the Commission' s decision applying those provisions .
23 In the light of the foregoing the objection of inadmissibility raised by the Commission must be rejected .
Substance
31 Under Article XI(1 ), "No prohibitions or restrictions other than duties, taxes or other charges, whether made effective through quotas, import or export licences or other measures, shall be instituted or maintained by any contracting party on the importation of any product of the territory of any other contracting party or on the exportation or sale for export of any product destined for the territory of any other contracting party ".