Amministrazione delle Finanze dello Stato v Chiquita Italia SpA.
Date: 1995-12-12
5 Likewise, in its judgment in Case 184/85 Commission v Italy [1987] ECR 2013, paragraph 15, the Court declared that, by imposing and maintaining in force a tax on the consumption of fresh bananas which was applicable to bananas originating in other Member States, the Italian Republic had failed to fulfil its obligations under the second paragraph of Article 95 of the Treaty.
25 In that regard the Court has consistently held that the question of the direct effect of provisions contained in an agreement concluded by the Community with non-member countries invariably involves an examination of the spirit, general scheme and terms of that agreement (see, in particular, the judgment in Joined Cases 21/72, 22/72, 23/72 and 24/72 International Fruit Company and Others v Produktschap voor Groenten en Fruit [1972] ECR 1219).
26 As regards the GATT, the Court has consistently held, most recently in Case C-280/93 Germany v Council [1994] ECR I-4973, paragraph 106, that the GATT, 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.
27 The Court stated (at paragraph 107) that those measures included, for the settlement of conflicts, depending on the case, 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 GATT, and, finally, in the event of such suspension, the power of the party concerned to withdraw from that agreement.
28 It also noted (at paragraph 108) that where, by reason of an obligation assumed under the GATT or of a concession relating to a preference, some producers suffered or were threatened with serious damage, Article XIX gave 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 was urgent and on a temporary basis, without prior consultation (see the judgments in Joined Cases 21/72 to 24/72 International Fruit Company, cited above, paragraphs 21, 25 and 26; Case 9/73 Schlueter v Hauptzollamt Loerrach [1973] ECR 1135, paragraph 29; Case 266/81 SIOT v Ministero delle Finanze [1983] ECR 731, paragraph 28; and Joined Cases 267/81, 268/81 and 269/81 SPI and SAMI [1983] ECR 801, paragraph 23).
34 In paragraph 23 of its judgment in Case 87/75 Bresciani v Amministrazione delle Finanze [1976] ECR 129 the Court held, with regard to the Second Association Agreement between the European Economic Community and the African States and Madagascar signed at Yaoundé on 29 July 1969 (OJ, English Special Edition (Second Series, I External Relations (2)), which preceded the ACP-EEC Conventions, that that imbalance in the obligations assumed by the Community towards the Associated States, which was inherent in the special nature of the convention, did not prevent recognition by the Community that some of its provisions had direct effect.
36 That conclusion is not affected by the argument of the Italian Government to the effect that the Fourth ACP-EEC Convention lays down a special procedure for settling disputes between the contracting parties; Article 53 of the Second Yaoundé Convention also contained similar arrangements and yet, in the judgment cited above, the Court recognized that some of its provisions had direct effect.
43 As the Italian Government rightly points out, if the Community and the ACP States had wished to deal with the question of internal taxation in the framework of the general trade arrangements put in place by the convention, they would have done so precisely by adopting a provision modelled on Article 95 of the EC Treaty.
49 It states that that article corresponds to Article 30 of the EC Treaty. The Court held in paragraph 16 of its judgment in Case 45/87 Commission v Ireland [1988] ECR 4929 that Article 30 of the Treaty envisaged the elimination of all measures of the Member States which impeded imports in intra-Community trade, whether the measures bore directly on the movement of imported goods or had the effect of indirectly impeding the marketing of goods from other Member States. The fact that some of those barriers had to be considered in the light of "specific provisions of the Treaty, such as the provisions of Article 95 relating to fiscal discrimination, in no way detracts from the general character of the prohibitions laid down by Article 30".
52 That line of argument cannot be adopted. It follows from the settled case-law of the Court that the extension of the interpretation of a provision in the Treaty to a comparably, similarly or even identically worded provision of an agreement concluded by the Community with a non-member country depends inter alia on the aim pursued by each provision in its particular context and that a comparison between the objectives and context of the agreement and those of the Treaty is of considerable importance in that regard (see, in particular, the judgment in Case C-312/91 Metalsa [1993] ECR I-3751, paragraph 11).
59 Article 1 of Protocol No 5 on bananas takes the form of a standstill clause. In other words, that provision aims to ensure the access of bananas from ACP States 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.
60 It cannot be denied that that standstill clause precludes increases in a tax such as the tax at issue. Such increases lead to increases in the price of the bananas concerned and, accordingly, they make it more difficult to sell them on the market in question.
62 Finally, the first three ACP-EEC Conventions all contained a standstill clause worded in terms similar to those in Article 1 of Protocol No 5 on bananas.
63 Having regard to the fact that the first ACP-EEC Convention entered into force on 1 April 1976, it must therefore be concluded that the ACP-EEC Conventions preclude increases in internal taxation on bananas originating in the ACP States, such as the Italian consumption tax, where those increases took place after 1 April 1976 and their effect is to put those banana exports in a situation less favourable than before, as regards access to their traditional markets and the advantages they enjoy on those markets.