LVP NV v Belgische Staat (C-306/13)

Contents

Judgment of the Court (Fifth Chamber)18 December 2014^note(Reference for a preliminary ruling — Common organisation of the markets — Bananas — System of importation — Applicable tariff rates)In Case C‑306/13,REQUEST for a preliminary ruling under Article 267 TFEU, from the rechtbank van eerste aanleg te Brussel (Belgium), made by decision of 17 May 2013, received at the Court on 4 June 2013, in the proceedingsLVP NVvBelgische Staat,THE COURT (Fifth Chamber),composed of T. von Danwitz, President of the Chamber, C. Vajda, A. Rosas (Rapporteur), E. Juhász and D. Šváby, Judges,Advocate General: P. Cruz Villalón,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:— LVP NV, by R. Verbeke, P. Vlaemminck and B. Van Vooren, advocaten,— the Belgian Government, by M. Jacobs and J.-C. Halleux, acting as Agents,— the Greek Government, by I. Chalkias and A. Vasilopoulou, acting as Agents,— the Council of the European Union, by S. Boelaert and E. Karlsson, acting as Agents,— the European Commission, by G. Wils and I. Zervas, acting as Agents,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following

Judgment

1This request for a preliminary ruling concerns the validity of Council Regulation (EC) No 1964/2005 of 29 November 2005 on the tariff rates for bananas (OJ 2005 L 316, p. 1), having regard to Articles I, XIII(1) and (2)(d) and XXVIII and/or any other applicable article of the General Agreement on Tariffs and Trade of 1994 (OJ 1994, L 336, p. 11, ‘the GATT 1994’), as set out in Annex 1 A of the Agreement establishing the World Trade Organisation (WTO), signed in Marrakesh on 15 April 1994 and approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1).

2The request has been made in proceedings between LVP NV (‘LVP’) and Belgische Staat concerning an application for the repayment of customs duties paid by LVP in respect of the importation of bananas from Costa Rica and Ecuador.

Legal context

The WTO agreements

3By Decision 94/800, the Council of the European Union approved the Agreement establishing the WTO as well as the agreements contained in Annexes 1 to 3 to that Agreement (the WTO agreements), one of which is the GATT 1994.

4Article II(2) of the Agreement establishing the WTO provides:‘The agreements and associated legal instruments included in Annexes 1, 2 and 3 ... are integral parts of this Agreement, binding on all Members.’

5Under Article IV(1) of the Agreement establishing the WTO a Ministerial Conference was established, composed of representatives of all the WTO Members. Article IX(3) and (4) of that agreement governs the conditions under which the Ministerial Conference may decide, in exceptional circumstances, to waive an obligation imposed on a Member by the Agreement establishing the WTO or by one of the WTO agreements.

6Article I(1) of the GATT 1994 provides:‘With respect to customs duties and charges of any kind imposed on or in connection with importation or exportation … any advantage, favour, privilege or immunity granted by any contracting party to any product originating in or destined for any other country shall be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other contracting parties.’

7Article II of GATT 1994, entitled ‘Schedules of Concessions’, provides:1.(a) Each contracting party shall accord to the commerce of the other contracting parties treatment no less favourable than that provided for in the appropriate Part of the appropriate Schedule annexed to this Agreement....7. The Schedules annexed to this Agreement are hereby made an integral part of Part I of this Agreement.’

8Article XIII of the GATT 1994, on the non-discriminatory administration of quantitative restrictions provides that:1. No prohibition or restriction shall be applied by any contracting party on the importation of any product of the territory of any other contracting party … unless the importation of the like product of all third countries … is similarly prohibited or restricted.2.In applying import restrictions to any product, contracting parties shall aim at a distribution of trade in such product approaching as closely as possible the shares which the various contracting parties might be expected to obtain in the absence of such restrictions and to this end shall observe the following provisions:...(d) In cases in which a quota is allocated among supplying countries, the contracting party applying the restrictions may seek agreement with respect to the allocation of shares in the quota with all other contracting parties having a substantial interest in supplying the product concerned. In cases in which this method is not reasonably practicable, the contracting party concerned shall allot to contracting parties having a substantial interest in supplying the product shares based upon the proportions, supplied by such contracting parties during a previous representative period, of the total quantity or value of imports of the product, due account being taken of any special factors which may have affected or may be affecting the trade in the product. ...’

9Article XXVIII of the GATT 1994, entitled ‘Modification of Schedules’, contains detailed rules on the modification of the schedules of concessions, making provision, for this purpose, for a complex system of negotiations between the contracting parties.

10Article XXVIII(1), (3) and (5) of the GATT 1994 thus provides:1. On the first day of each three-year period, the first period beginning on 1 January 1958 …, a contracting party (hereafter in this Article referred to as the “applicant contracting party”) may, by negotiation and agreement with any contracting party with which such concession was initially negotiated and with any other contracting party determined by the contracting parties to have a principal supplying interest (which two preceding categories of contracting parties, together with the applicant contracting party, are in this Article hereinafter referred to as the “contracting parties primarily concerned”), and subject to consultation with any other contracting party determined by the contracting parties to have a substantial interest in such concession, modify or withdraw a concession included in the appropriate Schedule annexed to this Agreement....3.(a) If agreement between the contracting parties primarily concerned cannot be reached before 1 January 1958 or before the expiration of a period envisaged in paragraph 1 of this Article, the contracting party which proposes to modify or withdraw the concession shall, nevertheless, be free to do so and if such action is taken any contracting party with which such concession was initially negotiated, any contracting party determined under paragraph 1 to have a principal supplying interest and any contracting party determined under paragraph 1 to have a substantial interest shall then be free, not later than six months after such action is taken, to withdraw, upon the expiration of thirty days from the day on which written notice of such withdrawal is received by the contracting parties, substantially equivalent concessions initially negotiated with the applicant contracting party.(b) If agreement between the contracting parties primarily concerned is reached but any other contracting party determined under paragraph 1 of this Article to have a substantial interest is not satisfied, such other contracting party shall be free, not later than six months after action under such agreement is taken, to withdraw, upon the expiration of thirty days from the day on which written notice of such withdrawal is received by the contracting parties, substantially equivalent concessions initially negotiated with the applicant contracting party....5. Before 1 January 1958 and before the end of any period envisaged in paragraph 1 a contracting party may elect by notifying the contracting parties to reserve the right, for the duration of the next period, to modify the appropriate Schedule in accordance with the procedures of paragraphs 1 to 3. If a contracting party so elects, other contracting parties shall have the right, during the same period, to modify or withdraw, in accordance with the same procedures, concessions initially negotiated with that contracting party.’

The memoranda of understanding on bananas entered into by the European Union with the Republic of Ecuador and the United States of America

11On 11 April 2001 and 30 April 2001, the European Union reached memoranda of understanding, respectively, with the United States of America and with the Republic of Ecuador, which identified means to resolve the disputes brought by those countries before the WTO with respect to the tariff treatment of bananas imported into the Union (‘the memoranda of understanding on bananas’). Those memoranda provided that the European Union would introduce a tariff‑only regime for imports of bananas no later than 1 January 2006.

12The memorandum of understanding on bananas reached with the Republic of Ecuador provided that negotiations under Article XXVIII of the GATT 1994, in which that State would be recognised as the principal supplier, would be initiated in good time to that effect.

The Doha waiver

13On 14 November 2001, the ministerial conference of the WTO, held in Doha, granted the European Union a waiver from Article I of the GATT 1994 (‘the Doha waiver’), to the extent necessary to enable the European Union to grant to products originating in the African, Caribbean and Pacific (ACP) Group of States (‘the ACP States’) the preferential tariff treatment required under the Partnership Agreement between the members of the African, Caribbean and Pacific Group of States of the one part, and the European Community and its Member States, of the other part, signed in Cotonou on 23 June 2000 (OJ 2000 L 317, p. 3) and approved on behalf of the Community by Council Decision 2003/159/EC of 19 December 2002 (OJ 2003 L 65, p. 27, ‘the ACP-EC partnership’), without being required to extend the same preferential treatment to like products of any other WTO member.

14The annex to the decision of the Ministerial Conference granting the Doha waiver, however, provided for specific arbitration procedures between the European Union and States whose bananas are subject to the most‑favoured‑nation rate (‘the MFN States’), in the context of the negotiations under Article XXVIII of the GATT 1994, in order to determine whether the envisaged rebinding of the customs duty applied by the European Union to bananas had the effect of at least maintaining total access to the market for banana suppliers from MFN States.

15That annex provided that the negotiations under Article XXVIII of the GATT 1994 and the abovementioned arbitration procedures would be concluded before the entry into effect of the new tariff‑only regime of the European Union on 1 January 2006.

The Geneva Agreement

16On 15 December 2009, the European Union and certain MFN States of Latin America initialled the Geneva Agreement on Trade in Bananas between the European Union and Brazil, Colombia, Costa Rica, Ecuador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Peru and Venezuela (‘the Geneva Agreement’), signed on 31 May 2010 and approved by Council Decision 2011/194/EU of 7 March 2011 (OJ 2011 L 88, p. 66).

17Paragraph 3(a) of the Geneva Agreement sets out the maximum amounts of the customs duties to be applied by the European Union to bananas from 15 December 2009, decreasing progressively until 1 January 2017, from EUR 148 per tonne to EUR 114 per tonne.

18It is apparent from paragraph 5 of the Geneva Agreement that pending WTO disputes and all claims filed by MFN States that are parties to that agreement, under the procedures of Articles XXIV and XXVIII of the GATT 1994, relating to the European Union trading regime for bananas are to be settled. That paragraph provides, moreover, that the parties to the Geneva Agreement are to jointly notify the WTO Dispute Settlement Body that they have reached a mutually agreed solution through which they have agreed to end those disputes.

European Union law

19Title IV of Council Regulation (EEC) No 404/93 of 13 February 1993 on the common organisation of the market in bananas (OJ 1993 L 47, p. 1), replaced the various previous national arrangements with a common trading system with third countries.

20Article 15 of Regulation No 404/93 defined, for the purposes of Title IV of that Regulation, four categories of bananas, namely traditional bananas from ACP States, non-traditional bananas from ACP States, bananas from non-ACP third countries and Community bananas.

21Article 18 of Regulation No 404/93 provided for the opening each year of a tariff quota of two million tonnes (net weight) for imports of non‑ACP third country bananas and non-traditional ACP bananas, submitting imports of these two categories of bananas, however, to two different tariff rates.

22Regulation No 404/93 has been subject to a number of subsequent amendments.

23Council Regulation (EC) No 3290/94 of 22 December 1994, (OJ 1994 L 349, p. 105), Council Regulation (EC) No 216/2001 of 29 January 2001 (OJ 2001 L 31, p. 2), and Council Regulation (EC) No 2587/2001 of 19 December 2001 (OJ 2001 L 345, p. 13), amended Articles 15 to 20 of Regulation No 404/93, particularly as regards the tariff quota and the amount of duty set in Article 18 of that Regulation.

24Article 16(1) of Regulation No 404/93, as amended by Regulation No 2587/2001, provides:‘This Article and Articles 17 to 20 shall apply to imports of fresh products falling within CN code 0803 00 19 until the entry into force, no later than 1 January 2006, of the rate of the common customs tariff for those products established under the procedure provided for in Article XXVIII [of the GATT 1994].’

25Article 18 of Regulation No 404/93, as amended by Regulation No 2587/2001, provides:1.Each year from 1 January the following tariff quotas shall be opened:(a) a tariff quota of 2200000 tonnes net weight, called ‘quota A’;(b) an additional tariff quota of 453000 tonnes net weight, called ‘quota B’;(c) an autonomous tariff quota of 750000 tonnes net weight, called ‘quota C’.Quotas A and B shall be open for imports of products originating in all third countries.Quota C shall be open for imports of products originating in ACP [States]....2. Imports under quotas A and B and imports of bananas from third countries other than the ACP [States] shall be subject to customs duty of EUR 75 per tonne. Imports of products originating in the ACP [States] shall be subject to a zero duty.3. Imports under the C quota shall be subject to a zero duty....’

26Recitals 1 to 7 in the preamble to Regulation No 1964/2005 state:(1) [Regulation No 404/93, as amended by Regulation No 2587/2001] provides for the entry into force of a tariff‑only regime for imports of bananas no later than 1 January 2006.(2) On 12 July 2004, the Council authorised the Commission to open negotiations under Article XXVIII of the GATT 1994 with a view to modifying certain concessions for bananas. Accordingly, the Community notified the WTO on 15 July 2004 of its intention to modify concessions on item 0803 00 19 (bananas) in EC Schedule CXL. Negotiations have been conducted by the Commission in consultation with the Committee established by Article 133 of the Treaty and the Special Committee on Agriculture and within the framework of the negotiating directives issued by the Council.(3) The Commission has not been able to negotiate an acceptable agreement with Ecuador and Panama, having a principal supplying interest, and Colombia and Costa Rica, having a substantial supplier interest, in products of HS subheading 0803 00 19 (bananas). Pursuant to the Annex to the Decision of the WTO Ministerial Conference of 14 November 2001 on … the ACP-EC Partnership Agreement, the Commission has also held consultations with other WTO Members. These consultations did not lead to an acceptable agreement.(4) On 31 January 2005 the Community notified the WTO of its intention to replace its concessions on item 0803 00 19 (bananas) with a bound duty of EUR 230/tonne.(5) The arbitration procedure set out in the Annex to the Decision was initiated on 30 March 2005. The Arbitrator’s Award issued on 1 August 2005 concluded that the MFN tariff rate of EUR 230/tonne proposed by the Community was not consistent with the abovementioned Annex as it would not result in at least maintaining total market access for MFN suppliers. The Commission revised the Community proposal in light of the arbitrator’s findings. In a second arbitration award, issued on 27 October 2005, the Arbitrator concluded that the revised proposal for an MFN tariff rate of EUR 187/tonne fails to rectify the matter. The Commission has therefore further modified its proposal in order to rectify the matter.(6) A tariff rate quota for bananas originating in ACP [States] should also be opened in accordance with the Community commitments under the ACP-EC Partnership Agreement.(7) The measures necessary for the implementation of this Regulation, as well as transitional measures relating in particular to the management of the tariff rate quota for bananas originating in ACP [States], should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission [OJ 1999 L 184, p. 23].’

27Article 1 of that regulation provides:1. As from 1 January 2006 the tariff rate for bananas (CN code 0803 00 19) shall be EUR 176/tonne.2. Each year from 1 January, starting from 1 January 2006, an autonomous tariff quota of 775000 tonnes net weight subject to a zero-duty rate shall be opened for imports of bananas (CN code 0803 00 19) originating in ACP [States].’

28Following the signature of the Geneva Agreement on 31 May 2010, Regulation No 1964/2005 was repealed by Regulation (EU) No 306/2011 of the European Parliament and of the Council of 9 March 2011 (OJ 2011 L 88, p. 44).

29It is stated in recital 3 in the preamble to Regulation No 306/2011 that, in accordance with the Geneva Agreement, the European Union will gradually reduce its banana tariff from EUR 176 per tonne to EUR 114 per tonne. A first cut, which was applied retroactively from 15 December 2009, the date of initialling of the Geneva Agreement, thus reduced the tariff to EUR 148 per tonne.

The dispute in the main proceedings and the question referred for a preliminary ruling

30LVP is a banana importing company established in Belgium.

31The main proceedings relate to a claim, made by LVP, for reimbursement of overpaid customs duties of EUR 176 per tonne in respect of the importation of bananas from Costa Rica and Ecuador during the period from 1 January 2006 to 15 December 2009, principally in the second to the fourth quarter of 2006 (‘the period at issue’).

32That claim, submitted on 6 January 2009 to the Ghent Regional Directorate of the Customs and Excise Authority, was rejected by a decision dated 20 May 2009.

33By decision of 7 November 2012, the administrative appeal against the refusal decision of 20 May 2009, submitted by LVP on 27 July 2009 to the Administrator General of Customs and Excise, was declared unfounded on the ground that the customs duties were, at the time of payment, legally due under European Union law.

34By application lodged at the registry of the referring court on 7 February 2013, LVP brought an action against the decision of the Administrator General of Customs and Excise.

35Having regard to the obligations of the European Union under WTO law, LVP contests the validity of the tariff rate of EUR 176 per tonne, applicable as from 1 January 2006 to bananas from non-ACP States, laid down by Regulation No 1964/2005. According to LVP, the regime laid down by that regulation could apply only from the date of the Geneva Agreement, namely 15 December 2009, so that, for the period at issue, the tariff rate of EUR 75 per tonne provided for by Regulation No 404/93, as amended by Regulation No 2587/2001 should still apply for imports of bananas from non-ACP third countries in the context of the A and B quotas laid down by that regulation.

36Referring in particular to Article 16(1) of Regulation No 404/93, as amended by Regulation No 2587/2001, the referring court points out that the negotiations under Article XXVIII of the GATT 1994 had not yet been completed in the period at issue, so that, according to that court, the tariff rate of EUR 75 per tonne applicable to the A quota of 2.2 million tonnes opened for imports of bananas from third countries by Regulation No 404/93, as amended by Regulation No 2587/2001, was still in force during that period and could not have been replaced by the tariff rate set out in Regulation 1964/2005. It was only since 15 December 2009 that an agreement had been in place between the European Union and, inter alia, the Republic of Costa Rica and the Republic of Ecuador. Consequently, it is contended, it was only from that date that the tariff rate of EUR 75 per tonne ceased to apply.

37The referring court notes that the Republic of Ecuador had brought an action against the introduction of the tariff rate of EUR 176 per tonne before the competent bodies of the WTO. In its report on that case, the Appellate Body of the WTO ruled that the quota of 2.2 million tonnes at the tariff rate of EUR 75 per tonne had remained in force until the Article XXVIII GATT 1994 negotiations were completed, and they were completed on 15 December 2009.

38Although, according to the case-law of the Court, WTO provisions do not have direct effect (see judgment in Van Parys, C‑377/02, EU:C:2005:121), the referring court points out that it is nevertheless possible for the Court to review the legality of EU legislation in the light of WTO agreements if that legislation was adopted specifically to ensure the implementation of WTO provisions or if it refers expressly to specific provisions of the WTO agreements (see judgments in Nakajima v Council, C‑69/89, EU:C:1991:186, paragraph 31; FIAMM and FIAMM Technologies v Council and Commission, T‑69/00, EU:T:2005:449, paragraph 114, and Fedon & Figli and Others v Council and Commission, T‑135/01, EU:T:2005:454, paragraph 107).

39The referring court notes, inter alia, that the recitals in the preambles to the regulations governing imports in the banana sector refer to the WTO and to the negotiations under Article XXVIII GATT 1994. It cannot therefore be ruled out that the Court is competent to review the legality of Regulation No 1964/2005 in the light of the WTO rules.

40In those circumstances, the rechtbank van eerste aanleg te Brussel (Court of First Instance, Brussels) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:‘Does Council Regulation [No 1964/2005], as applied by the European Union in the period from 1 January 2006 to 15 December 2009, infringe Article I, Article XIII(1), Article XIII(2)(d), Article XXVIII and/or any other applicable article of the GATT 1994, individually or collectively, by introducing a tariff rate of EUR 176 per tonne for bananas (CN Code 0803 00 19), contrary to the concessions for bananas negotiated by the [European Community], before a new negotiated agreement in that regard was concluded within the framework of the WTO?’

The question referred for a preliminary ruling

41By its question the referring court essentially asks whether Regulation No 1964/2005 infringes Article I, Article XIII(1), Article XIII(2)(d), Article XXVIII and/or any other applicable article of the GATT 1994, in so far as that regulation introduced a customs tariff rate of EUR 176 per tonne for bananas as from 1 January 2006.

42Leaving aside an autonomous quota of 775000 tonnes net weight subject to a zero-duty rate opened by that regulation for imports of bananas from ACP States, Regulation No 1964/2005 introduced, as from 1 January 2006, a tariff‑only regime for imports of bananas into the European Union, setting the customs tariff rate for bananas at EUR 176 per tonne as from that date.

43Examination of the question referred for a preliminary ruling requires the Court first to resolve the question of whether the provisions of the GATT 1994 are such as to create rights which individuals might rely on directly before a national court in order to oppose the application of that tariff rate, laid down in Article 1(1) of Regulation No 1964/2005.

44In that regard, it must be pointed out at the outset that, given their nature and purpose, the WTO agreements are not in principle among the rules in the light of which the Court is to review the legality of measures adopted by the European Union institutions (see judgment in Portugal v Council, C‑149/96, EU:C:1999:574, paragraph 47; order in OGT Fruchthandelsgesellschaft, C‑307/99, EU:C:2001:228, paragraph 24; judgments in Omega Air and Others, C‑27/00 and C‑122/00, EU:C:2002:161, paragraph 93; Petrotub and Republica v Council, C‑76/00 P, EU:C:2003:4, paragraph 53; Biret International v Council, C‑93/02 P, EU:C:2003:517, paragraph 52, and Van Parys, EU:C:2005:121, paragraph 39).

45Having noted that the system resulting from the WTO agreements accorded considerable importance to negotiation between the parties (see judgment in Portugal v Council, EU:C:1999:574, paragraph 36), the Court found that to require courts to refrain from applying rules of domestic law which are inconsistent with the WTO agreements would have the consequence of depriving the legislative or executive organs of the contracting parties of the possibility, afforded in particular by the Understanding on Rules and Procedures Governing the Settlement of Disputes, which forms Annex 2 to the Agreement establishing the WTO (‘the Dispute Settlement Understanding’), of entering into a negotiated arrangement even on a temporary basis (see judgments in Portugal v Council, EU:C:1999:574, paragraph 40, and Van Parys, EU:C:2005:121, paragraph 48).

46Furthermore, the Court held that to accept that the courts of the European Union have the direct responsibility for ensuring that EU law complies with the WTO rules would deprive the European Union’s legislative or executive bodies of the discretion which the equivalent bodies of the European Union’s commercial partners enjoy. It is not in dispute that some of the contracting parties, which are amongst the most important commercial partners of the European Union, have concluded from the subject-matter and purpose of the WTO agreements that they are not among the rules applicable by their courts when reviewing the legality of their rules of domestic law. Such lack of reciprocity, if admitted, would risk introducing an anomaly in the application of the WTO rules (see judgment in Portugal v Council, EU:C:1999:574, paragraphs 43 to 46; Van Parys, EU:C:2005:121, paragraph 53, and FIAMM and Others v Council and Commission, C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraph 119).

47It is only where the European Union intends to implement a particular obligation assumed in the context of the WTO or where the European Union measure refers expressly to specific provisions of the WTO agreements that the Court can review the legality of the European Union measure at issue in the light of the WTO rules (see, with regard to the General Agreement on Tariffs and Trade of 1947, the judgments in Fediol v Commission, 70/87, EU:C:1989:254, paragraphs 19 to 22; Nakajima v Council , EU:C:1991:186, paragraph 31, and, with regard to the WTO agreements, the judgments in Portugal v Council, EU:C:1999:574, paragraph 49; Biret International v Council, EU:C:2003:517, paragraph 53, and Van Parys, EU:C:2005:121, paragraph 40).

48However, contrary to what LVP claims, there is no such exceptional situation in the present case.

49It must first be recalled that the Court has held that the common organisation of the market in bananas, as introduced by Regulation No 404/93 and subsequently amended, is not designed to ensure the implementation in the European Union legal order of a particular obligation assumed in the context of the GATT 1994, nor does it refer expressly to specific provisions of the GATT 1994 (order in OGT Fruchthandelsgesellschaft, EU:C:2001:228, paragraph 28).

50Furthermore, by setting, in Regulation No 1964/2005, at EUR 176 per tonne the customs tariff rate for bananas from non‑ACP States as from 1 January 2006, the European Union did not intend to ensure the implementation, in the European Union legal order, of a particular obligation assumed in the context of the WTO, capable of justifying an exception to the principle that WTO rules cannot be relied upon before the courts of the European Union and enabling those courts to review the legality of the EU provisions at issue having regard to those rules.

51In that regard, it is clear from the documents before the Court that, after reaching memoranda of understanding on bananas with the Republic of Ecuador and the United States of America, providing that the European Union would introduce a tariff-only regime for imports of bananas no later than 1 January 2006, the European Union opened negotiations under Article XXVIII of the GATT 1994 with a view to modifying its concessions for bananas and to reaching, in accordance with the annex to the decision of the WTO Ministerial Conference granting it the Doha waiver, an agreement on import duties that would maintain total access to the market for bananas from MFN States.

52After various WTO dispute settlement proceedings were brought, first, under the annex to the decision of the WTO Ministerial Conference granting the Doha waiver to the European Union, against the tariff rates proposed by the European Union, and, secondly, under the Dispute Settlement Understanding, against the tariff rate of EUR 176 per tonne laid down by Regulation No 1964/2005, a negotiated arrangement was finally adopted on 15 December 2009, under the Geneva Agreement, by the European Union and the MFN States of Latin America concerned.

53In addition to the gradual reduction, from 15 December 2009, of the customs tariff rate for bananas, that agreement provides that the pending WTO disputes with respect to the regime for bananas are to be settled, together with all claims filed by MFN States that are parties to that agreement, under the procedures of Articles XXIV and XXVIII of the GATT 1994. As the Belgian and Greek Governments, along with the Council and the Commission, essentially point out, it follows that, at the end of the negotiations undertaken by the European Union, the MFN States that are parties to the Geneva Agreement ultimately accepted the application, during the period at issue, of the tariff rate of EUR 176 per tonne, provided by Regulation No 1964/2005, against which they had, however, initiated dispute settlement proceedings and which had been held, in the course of those proceedings, to be incompatible with the relevant provisions of the GATT 1994.

54It must be noted, therefore, that the regime which the European Union has obtained through the Geneva Agreement, in particular the undertaking of MFN States that are parties to that agreement to end all pending disputes and claims, reflects the need to allow the institutions of the European Union a degree of latitude in the negotiations that led to that agreement.

55In particular, it should be noted, first, that the memoranda of understanding provided that the European Union would introduce a tariff-only regime for imports of bananas no later than 1 January 2006, and would, moreover, initiate negotiations under Article XXVIII of the GATT 1994 in good time to that effect, and, secondly, that the annex to the decision of the WTO Ministerial Conference granting the Doha waiver to the European Union required it to comply with specific arbitration procedures with a view to reaching an agreement on import duties that would maintain total access to the market for bananas from MFN States. It must be noted, however, that neither those memoranda, nor that annex, nor even the two arbitration awards made on 1 August and 27 October 2005 in respect of that annex, which recital 5 in the preamble to Regulation 1964/2005 refers to, established the level of import duties to be applied by the European Union.

56Furthermore, the memoranda of agreement on bananas are not mentioned in Regulation No 1964/2005, recital 1 in the preamble to which merely states that ‘[Regulation No 404/93, as amended by Regulation No 2587/2001] provides for the entry into force of a tariff‑only regime for imports of bananas no later than 1 January 2006’.

57Moreover, the tariff rate of EUR 176 per tonne, laid down by Regulation No 1964/2005, was subsequently held to be incompatible with the relevant provisions of the GATT 1994 in the course of the dispute settlement proceedings initiated under the Dispute Settlement Understanding. Contrary to what the LVP claims, that fact supports the conclusion that, by setting the rate of customs duty at that level for bananas as from 1 January 2006, the European Union did not intend to ensure the implementation of a particular obligation assumed in the context of the WTO.

58It follows from the foregoing that Regulation No 1964/2005 cannot be regarded as a measure intended to ensure the implementation, in the European Union’s legal order, of a particular obligation assumed in the context of the WTO.

59Finally, the mere reference to the context of the negotiations undertaken by the European Union under Article XXVIII of the GATT 1994, in recitals 2 to 5 in the preamble to Regulation No 1964/2005, cannot lead to the conclusion that that regulation satisfies the second condition that is capable, as is apparent from paragraph 47 of the present judgment and in accordance with the ruling in Fediol v Commission (EU:C:1989:254, paragraphs 19 to 22), of justifying an exception to the principle that WTO rules cannot be relied upon before the courts of the European Union, namely the condition that the European Union measure in question refers expressly to specific provisions of the WTO agreements.

60It follows from all of the foregoing considerations that the provisions of the GATT 1994 are not such as to create rights which individuals might rely on directly before a national court in order to oppose the application of the customs tariff rate of EUR 176 per tonne, laid down in Article 1(1) of Regulation No 1964/2005.

Costs

61Since 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. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (Fifth Chamber) hereby rules: The provisions of the General Agreement on Tariffs and Trade of 1994, as set out in Annex 1 A of the Agreement establishing the World Trade Organisation (WTO), signed in Marrakesh on 15 April 1994 and approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994), are not such as to create rights which individuals might rely on directly before a national court in order to oppose the application of the customs tariff rate of EUR 176 per tonne, laid down in Article 1(1) of Council Regulation (EC) No 1964/2005 of 29 November 2005 on the tariff rates for bananas.