<TI><P>Judgment</P></TI>1By order of 21 September 1995, received at the Court Registry on 29 September 1995, the Tarief commissie (Administrative Court for Customs and Excise) referred to the Court for a preliminary ruling under Article 177 of the EC Treaty a question on the interpretation of the provisions of Part Four of the EEC Treaty, now the EC Treaty, on the association of the overseas countries and territories (hereinafter the OCT) with the Community, and on the validity and interpretation of Council Decision 86/283/EEC of 30 June 1986 on the association of the overseas countries and territories with the European Economic Community (OJ 1986 L 175, p. 1, hereinafter the Fifth Decision) and Council Decision 91/110/EEC of 27 February 1991 extending the validity of Council Decision 86/283/EEC (OJ 1991 L 58, p. 27).2That question was raised in proceedings brought by Road Air BV against the decision of the Inspecteur der Invoerrechten en Accijnzen (Inspector of Customs and Excise), Hoofddorp, requiring it to pay customs duties of HFL 54.40 on the import from the Netherlands Antilles of 7 kg of coffee in powder form originating in Colombia.3Article 227 of the EEC Treaty defines the territorial scope of the Treaty. Article 227(3) extends its scope to the overseas countries and territories listed in Annex IV and provides that those countries and territories are to have the special arrangements for association set out in Part Four of [the] Treaty applied to them.4Part Four of the Treaty is entitled Association of the overseas countries and territories.5Under the first paragraph of Article 131 of the EEC Treaty, The Member States agree to associate with the Community the non-European countries which have special relations with Belgium, Denmark, France, Italy, the Netherlands and the United Kingdom. According to the same provision those countries and territories are listed in Annex IV to the Treaty.6Originally, the Netherlands Antilles were not included in that list; they were inserted, in accordance with Article 227(3) of the Treaty, by Convention 64/533/EEC of 13 November 1962 amending the Treaty establishing the European Economic Community with a view to rendering applicable to the Netherlands Antilles the special conditions of association laid down in Part Four of that Treaty (Journal Officiel 1964, 150, p. 2414), which entered into force on 1 October 1964.7Article 132 of the Treaty provides:Association shall have the following objectives:
- 1.Member States shall apply to their trade with the countries and territories the same treatment as they accord each other pursuant to this Treaty.
...
8Article 133 of the Treaty adds:1.Customs duties on imports into the Member States of goods originating in the countries and territories shall be completely abolished in conformity with the progressive abolition of customs duties between Member States in accordance with the provisions of this Treaty.2.Customs duties on imports into each country or territory from Member States or from the other countries or territories shall be progressively abolished in accordance with the provisions of Articles 12, 13, 14, 15 and 17.
9According to Article 134 of the Treaty,If the level of duties applicable to goods from a third country on entry into a country or territory is liable, when the provisions of Article 133(1) have been applied, to cause deflections of trade to the detriment of any Member State, the latter may request the Commission to propose to the other Member States the measures needed to remedy the situation.
10Article 136 of the Treaty provides:For an initial period of five years after the entry into force of this Treaty, the details of and procedure for the association of the countries and territories with the Community shall be determined by an Implementing Convention annexed to this Treaty.Before the Convention referred to in the preceding paragraph expires, the Council shall, acting unanimously, lay down provisions for a further period, on the basis of the experience acquired and of the principles set out in this Treaty.
11On the basis of the second paragraph of Article 136 of the Treaty, on 25 February 1964 the Council adopted Decision 64/349/EEC on the association of the overseas countries and territories with the European Economic Community (Journal Officiel 1964, 93, p. 1472). That decision was intended to replace, as from 1 June 1964 (the date of entry into force of the internal agreement on the financing and management of Community aid signed in Yaounde on 20 July 1963), the Implementing Convention on the association of the overseas countries and territories with the European Economic Community, annexed to the Treaty and concluded for a period of five years.12Subsequently, Decisions 70/549/EEC, 76/568/EEC and 80/1186/EEC, of 29 September 1970 (OJ, English Special Edition, Second Series 1(2), p. 164), 29 June 1976 (OJ 1976 L 176, p. 8) and 16 December 1980 (OJ 1980 L 361, p. 1) respectively, on the association of the overseas countries and territories with the European Economic Community, were adopted by the Council.13Finally, on 30 June 1986, the Council adopted the Fifth Decision which, under Article 183 thereof, was to be applicable until 28 February 1990. However, it was extended to 30 June 1991 by Article 1 of Decision 91/110.14Article 70(1) of the Fifth Decision is worded as follows:1.Products originating in the countries and territories shall be imported into the Community free of customs duties and charges having equivalent effect.
15[Pjroducts originating in the countries and territories are defined by Article l(l)(b) of Annex II to the Fifth Decision in the following terms:1.products wholly obtained in one or more countries or territories;2.products wholly obtained in one or more countries or territories in the manufacture of which products other than those wholly obtained in the countries or territories are used, provided that the said products have undergone sufficient working or processing within the meaning of Article 3.
16On 25 July 1991 the Council adopted Decision 91/482/EEC on the association of the overseas countries and territories with the European Economic Community (OJ 1991 L 263, p. 1, hereinafter the Sixth Decision), which entered into force on 20 September 1991. According to Article 240(1) thereof, it is applicable for a period of 10 years as from 1 March 1990.17Article 101 of that decision provides:1.Products originating in the OCT shall be imported into the Community free of customs duties and charges having equivalent effect.2.Products not originating in the OCT but which are in free circulation in an OCT and are re-exported as such to the Community shall be accepted for import into the Community free of customs duties and taxes having equivalent effect providing that they:
have paid, in the OCT concerned, customs duties and taxes having equivalent effect of a level equal to, or higher than, the customs duties applicable in the Community on import of these same products originating in third countries eligible for the most-favoured-nation clause,
have not been the subject of an exemption from, or a refund of, in whole or in part, customs duties or taxes having equivalent effect,
are accompanied by an export certificate.
....
18On 24 June 1991 Road Air declared to the Netherlands customs authorities the import of 7 kg of coffee extract in powder form originating in Colombia which had been released into free circulation in the Netherlands Antilles.19On 25 June 1991 the goods were classified under subheading 21011011 of the Common Customs Tariff, to which customs duty was applicable at the rate of 18% of the customs value. The amount payable was thus HFL 54.40.20Road Air objected to that duty on the ground that, under Article 132(1) of the Treaty, the Member States were not entitled to levy customs duties on goods which, although originating in a nonmember country, had been duly released into free circulation in the OCT.21The Inspecteur der Invoerrechten en Accijnzen, Hoofddorp, dismissed that objection, taking the view that the only goods benefiting from the abolition of customs duties were those satisfying the conditions as to origin.22Considering that the decision to be given in the proceedings called for an interpretation of Part Four of the Treaty, the Tariefcommissie stayed proceedings pending a preliminary ruling from the Court of Justice on the following question:Is Part Four of the EEC Treaty, in particular Articles 132(1), 133(1) and 134, to be interpreted — regardless of any distinction between goods originating in the OCT and goods originating in third countries, and thus by way of derogation from Council Decisions 86/283/EEC and 91/110/EEC — as meaning that no customs duties were payable on 25 June 1991 on goods which, immediately before being imported into the Community, were in free circulation in an OCT country?
23In order to provide the national court with a helpful answer, it is necessary first to consider the applicability to coffee extract originating in Colombia of Council Regulation (EEC) No 3835/90 of 20 December 1990 amending Regulations (EEC) Nos 3831/90, 3832/90 and 3833/90 in respect of the system of generalized tariff preferences applied to certain products originating in Bolivia, Colombia, Ecuador and Peru (OJ 1990 L 370, p. 126), second, to examine Article 133(1) of the Treaty, Article 136 of the Treaty and, finally, the applicability of the Council's Fifth and Sixth Decisions.<TI><P>The applicability of Regulation No 3835/90</P></TI>24In its written observations the French Government submits that the dispute in the main proceedings is covered by Regulation No 3835/90.25Article 3(1) of that regulation provides that Common Customs Tariff duties are to be totally suspended from 1 January to 31 December 1991 for products originating from the four States concerned, which are listed in the annex to that regulation.26That annex includes miscellaneous edible preparations falling within ex-Chapter 21 of the NC Code, excluding sugar syrups falling within subheadings 21069030, 21069051, 21069055 and 21069059.27It follows that, by virtue of that regulation, no customs duty may be levied on the import into the Netherlands on 25 June 1991 of coffee powder originating in Colombia.28It falls to the national court to consider, under national procedural rules, whether the dispute in the main proceedings can be determined by application of Regulation No 3835/90.<TI><P>The interpretation of Article 133(1) of the Treaty</P></TI>29Road Air considers that Article 133(1) of the Treaty not only covers products originating in the OCT but also relates to products from nonmember countries in free circulation there.30Road Air relies, first, on Article 132(1) of the Treaty, which imposes on Member States the obligation to apply to their trade with OCT countries the same treatment as they accord each other under the Treaty. It then refers to the German version of Article 133(1) of the Treaty, which uses the expression Waren aus den Ländern und Hoheitsgebieten ... (goods from the OCT). Finally, it mentions the scheme of Article 134 which, it submits, would be rendered meaningless if only products originating in the OCT could benefit from preferential treatment in the Member States.31In that regard, it must be noted that the Dutch, English, Danish, Irish, Greek, Spanish, Finnish and Swedish versions use terms specifically referring to products or goods: goederen van oorsprong uit..., goods originating in..., varer med oprindelse i..., earraí de thionscnamh na..., των καταγόμενων εμπορευμάτων από..., mercancías originarias de..., peräisin... tavaroiden..., varor med ursprung i.... It follows that, according to those versions, Article 133(1) can apply only to products which originate in an OCT.32Other language versions (the French, Italian and Portuguese versions) use vaguer terms: importations originaires de ..., importazioni originarie dei ..., importações originárias dos .... Those versions are clearly open to an interpretation compatible with the one above. Finally, the German version Waren aus ... refers to goods, in the same way as the language versions mentioned in the foregoing paragraph, but it does not use any term directly expressing the idea of origin. Even if it were ambiguous in that respect, it must be interpreted in a manner conforming with the other language versions.33It was, moreover, on the basis of that interpretation that, in the six decisions adopted by the Commission under Article 136 of the Treaty, only products originating in the OCT were exempted from customs duties and charges having equivalent effect. Similarly, there was annexed to Convention 64/533, which made the special OCT association conditions applicable to the Netherlands Antilles, Protocol 64/534/EEC on imports into the European Economic Community of petroleum products refined in the Netherlands Antilles {Journal Officiel, 1964, 150, p. 2416), according to which the special conditions laid down for those products still differed from those applicable to the same products originating in nonmember countries.34It must, finally, be stressed that the interpretation advocated by Road Air would require that the OCT be granted conditions similar to those which the Member States accord each other progressively, under the Treaty, in respect not only of imports of products originating in the OCT but also of products imported into them, with the result that the OCT would form part of the common customs area, a result which goes far beyond what was envisaged by the Treaty.35It follows that Article 133(1) does not extend to goods not originating in OCT but in free circulation there and that, moreover, Part Four of the Treaty did not lay down any specific conditions for such products.36Contrary to Road Air's assertion, that interpretation does not render Article 134 of the Treaty meaningless. It is sufficient, on that point, to note that, between the entry into force of the Treaty and creation of the common customs area, certain products originating in nonmember countries could be granted a reduction of customs duties or be exempted from duties in an OCT, and thereafter in the Member State with which that OCT maintained special relations. That situation was capable of giving rise to deflections of trade to the detriment of a Member State and the latter would therefore have been entitled to make a request to the Commission under Article 134.<TI><P>The interpretation of Article 136 of the Treaty</P></TI>37The first paragraph of Article 136 of the Treaty envisages an initial period of five years for which the details of and procedure for the association of the OCT are to be determined by an Implementing Convention annexed to the Treaty. The second paragraph provides for a further period for which the Council is to lay down new provisions on the basis of the experience acquired and of the principles set out in the Treaty.38Road Air considers that the second paragraph of Article 136 empowered the Council to adopt only one decision concerning association with the OCT following the Implementing Convention annexed to the Treaty, mentioned above. The Council's practice of adopting a number of successive decisions subsequent to the decision adopted upon the expiry of the Implementing Convention is therefore, in its submission, contrary to the Treaty.39It is to be observed that although the second paragraph of Article 136 does not specify the duration of the further period for which the Council may adopt provisions needed for attainment of the objectives of association, it confers on the Council a considerable degree of discretion in that regard.40Association of the OCT with the Community is to be achieved by a dynamic and progressive process which may necessitate the adoption of a number of measures in order to attain all the objectives mentioned in Article 132 of the Treaty, having regard to the experience acquired through the Council's previous decisions.41In the light of those objectives, the second paragraph of Article 136 must be interpreted as providing not for a single further period for which the Council is empowered to adopt provisions needed in order to attain the objectives of association but for the introduction of a regime under which the Council may adopt a number of successive decisions each containing provisions for a further period.42Since the various decisions adopted by the Council in implementation of that provision are thus valid, it is now necessary to determine which decision was applicable at the material time, namely 25 June 1991, and what were the conditions laid down for goods originating in nonmember countries but in free circulation in OCT.<TI><P>The applicability of the Fifth and Sixth Decisions</P></TI>43The period of 16 months from 1 March 1990 to 30 June 1991 was covered, as from 20 September 1991, by both the Fifth Decision and the Sixth Decision, each of which laid down different conditions for goods originating in nonmember countries and in free circulation in an OCT.44The Fifth Decision, which had been extended to 30 June 1991 by Decision 91/110, granted exemption from customs duties and import charges in the Community only for products originating in the OCT (Article 70), defined in Annex II to that decision as products which have been wholly obtained there or undergo sufficient processing there, to the exclusion of products originating in nonmember countries.45The Sixth Decision, which entered into force on 20 September 1991, applies, by virtue of Article 240 thereof, for a period of ten years as from 1 March 1990. It provides for more favourable conditions than those provided by the Fifth Decision for products originating in nonmember countries which are in free circulation in an OCT. Article 101(2) of that decision exempts a number of products from customs duties provided in particular that customs duties or charges having equivalent effect of an amount equal to or greater than the customs duties applicable in the Community to the import of the same products have been paid in the OCT in question and have not been the subject of an exemption or a total or partial refund.46The result is that the imports in question, carried out on 25 June 1991, were subject, as from 20 September 1991, to the Sixth Decision, which applied retroactively to transactions undertaken on or after 1 March 1990.47As the Advocate General observed at points 24 to 43 of his Opinion, such retroactive application is permissible if it is capable of placing the person concerned in a more favourable legal situation and provided that his legitimate expectations are properly respected.48It is clear in that regard that the Member States must set against the customs duties to be paid in the Community the customs duties or charges having equivalent effect that have already been paid in the OCT.49The answer to the question from the national court must therefore be that Part Four of the Treaty, and more particularly Articles 132(1), 133(1) and 134, must be interpreted as meaning that on 25 June 1991 customs duties could be levied on imports into the Community of goods originating in nonmember countries which were in free circulation in an OCT, to the extent to which, in accordance with Article 101 of the Sixth Decision, the duties paid in the OCT in question were lower than the duties applicable in the Community.<TI><P>Costs</P></TI>50The costs incurred by the Netherlands and French Governments, the Council of the European Union and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.On those grounds,
THE COURT,
in answer to the question referred to it by the Tariefcommissie by order of 21 September 1995, hereby rules:
Part Four of the EC Treaty, and more particularly Articles 132(1), 133(1) and 134, must be interpreted as meaning that on 25 June 1991 customs duties could be levied on imports into the Community of goods originating in nonmember countries which were in free circulation in a country forming part of the overseas countries and territories, to the extent to which, in accordance with Article 101 of Council Decision 91/482/EEC of 25 July 1991 on the association of the overseas countries and territories with the European Economic Community, the duties paid in the overseas country or territory in question were lower than the duties applicable in the Community.