Opinion of Advocate General Tesauro

Mr President,

Members of the Court,

1. The Court has once more to consider the so-called dock dues, which were the subject-matter of Case C-163/90 Legros. As is wellknown, dock dues are a pecuniary charge levied in the French overseas departments on goods brought into those territories, irrespective of their provenance and/or origin, which may be another Member State of the Community, a nonmember country or even a region of France itself. In Legros, the Court treated dock dues as a charge having effect equivalent to a customs duty; it also held that for the purposes of such classification it was irrelevant that the charge was imposed equally on goods from other parts of France.

2. On 22 December 1989, hence before the judgment referred to had been delivered but after the events material to that case had occurred, the Council adopted Decision 89/688/EEC on the basis of Articles 227(2) and 235 of the Treaty; Article 1 of the decision, taking into consideration the part played by dock dues in supporting the economic and social development of the overseas departments but also in view of the need to reform the dues system in force in order to integrate the French overseas departments fully into the process of completing the internal market, imposes on the French authorities the obligation to amend the dock dues arrangements by 31 December 1992 so that they apply without distinction to all products whether imported into or produced in those areas.

3. The questions referred to the Court by the Tribunal d'Instance, Saint-Denis (Réunion), and the Cour d'Appel, Paris, follow logically from the Legros case in at least one way; they also present a particular aspect of considerable importance. In the proceedings pending before the Saint-Denis court (Cases C-407/93 to C-411/93), the plaintiffs claimed repayment of all sums paid as dock dues in the period between July and December 1992 when they brought goods into the region, whether from Member States of the EC, from nonmember countries or from other regions of France. It should be noted that in Case C-409/93, payment of the charge at issue relates solely to French beer.

4. Finally, I might appropriately draw attention to the fact that in the proceedings pending in Réunion a further question had arisen, namely whether the application of the contested charge to imports from nonmember countries was compatible with the Treaty. Since, however, the court considered it beyond dispute that Articles 9 and 13 do not apply to such goods, unless they are in free circulation or there exist special trading agreements concluded by the Community, neither of which is the situation in the case referred, it did not find it necessary to question the Court of Justice on that point. I shall merely observe here, in the absence of a specific question submitted to the Court, that once dock dues are classed as charges having an effect equivalent to a customs duty, the question of their compatibility with the Treaty rules concerning the Customs Union could arise, in so far as such dues are applied to imports from nonmember countries. The Court has in fact frequently reaffirmed that Articles 18 to 29, like Article 113 of the Treaty, prohibit the Member States from altering the level of the charge imposed under the Common Customs Tariff by the imposition of additional national duties or charges.

Validity of Article 4 of Decision 89/688

5. As far as the validity of Article 4 of Decision 89/688 is concerned, I believe I can endorse the Opinion of Advocate General Jacobs in the Legros case: it does not seem to me that the arguments put forward during these proceedings are capable of altering that position.

6. The Council maintains, first, that as a result of the contested decision dock dues should now be regarded as a Community fiscal measure and not as a pecuniary charge unilaterally imposed by one State: they fall, therefore, outside the scope of Article 9 et seq. of the Treaty. As regards the basis of the Community's power to adopt the measure, the Council points out that the third subparagraph of Article 227(2) entrusts to the institutions of the Community the task of furthering the social and economic development of the overseas departments; since the action aimed at was required in order to attain that objective, although the Treaty did not provide the necessary powers, recourse to Article 235 was entirely legitimate, as all the conditions for its application had been satisfied in this case.

7. In my view, those arguments — which, in part at least, restate those put forward in the Legros case — cannot be accepted. So far as concerns the claim that dock dues are a Community measure, it is sufficient to point out that simply replacing regulation by a Member State with regulation by the Community, which — it is worth reemphasizing — in this case merely amounted to authorizing the preservation of a national measure held in a judgment of the Court to be contrary to the rules of the Treaty, is not of itself or automatically sufficient to confer legitimacy on the measure at issue. As far as the rules on free movement of goods are concerned, to which the prohibition of dock dues can be traced in the light of the Legros judgment, the Court has several times ruled, with particular reference to Articles 30 to 36, that although the said provisions apply primarily to unilateral measures adopted by the Member States, the Community institutions themselves must also have due regard to freedom of trade within the Community, which is a fundamental principle of the common market.

8. Nor can the reference to the objectives entrusted to the Community institutions by Article 227(2), in connection with the provisions of Article 235, serve as a basis for the validity of Decision 89/688. In fact, as Advocate General Jacobs correctly points out in his Opinion in Legros, that argument disregards the fundamental distinction drawn by Article 227(2) and confirmed by the Court in the Hansen judgment between the provisions mentioned in the first subparagraph, including those relating to the free movement of goods, which were to apply as soon as the Treaty came into force, and the others, which were to be applied progressively to the overseas departments, allowing the greatest latitude possible for adopting specific measures to meet the needs of those regions of France. I believe that the effect of any other solution would be to distort the meaning and scope not only of Article 227 but also of Article 235 and the procedure it establishes for supplementing the powers of the Community.

9. If it were considered possible, by recourse to Article 235, to derogate from any provision of the Treaty, with a view to attaining the objective of developing the overseas departments, the result would be to render meaningless the distinction made by Article 227(2) between the different sets of Treaty rules. As it is necessary, however, in choosing between two possible interpretations of a given provision, to select the one which gives it legislative effect, that result appears plainly unacceptable.

10. In my view, it is helpful in that regard to bear in mind the judgment in the Commissaires Réunis and Fils de Henri Ramel case. The Court had been asked to give a ruling on the validity of an article in a regulation on the common organization of the market in wine authorizing the producer Member States to introduce and to levy, after the end of the transitional period and until the measures required for the management of that market had been applied in full, charges having an effect equivalent to customs duties in intra-Community trade in table wine, where that was necessary to avoid disturbance of the markets concerned.

11. That also meets the objection of the Commission, which considers it can interpret the reference in the third subparagraph of Article 227(2) to Article 226 as permitting, even after the end of the transitional period and the consequent impossibility of using the procedure provided therein, the introduction of derogations from the rules of the EEC Treaty — from all the rules, including those stated by Article 227 to apply immediately — where such derogations are regarded as being necessary to the economic and social development of the overseas departments, merely by recourse to another legal basis, in this case Article 235.

12. To take a different view, as already mentioned, would lead to the meaning of the provision in question being distorted. The purpose of Article 235 is to establish a formal procedure — one that is at the same time more flexible than that laid down for revision of the Treaties — intended, in the light of progress in completing the system and its overall development, to supplement the powers expressly conferred on the Community institutions with other powers and duties, as far as is necessary to attain the objectives pursued.

13. Finally, I find no relevance in the Commission's reference to the Treaty provisions concerning State aids, in particular Article 92(3), under which, notwithstanding the general prohibition laid down in Article 92(1), aid to promote the economic development of areas where the standard of living is abnormally low or where there is serious underemployment may be considered compatible with the common market. It is sufficient to reply to that argument that although the Council possesses certain powers with regard to the application of the Treaty provisions on State aids by virtue of Article 92(3)(d), the third subparagraph of Article 93(2) and Article 94, it by no means intended to act in the context of the Treaty provisions on State aids in adopting Decision 89/688. Accordingly, any application of those provisions in this case can have no influence on the validity of that decision. Moreover, the rules and procedures relating to State aids may not in any event be relied on in order to achieve a result contrary to other rules of the Treaty.

14. In short, if the contested decision is held up to the light, it would appear that there has been an attempt to reintroduce by stealth what has been openly thrown out, that is to say, to maintain at all costs a measure which is incompatible with the Treaty and has been held to be so in a judgment of the Court. That attempt first materialized in the shape of Article 4 of the decision — the subject-matter of my considerations here — which authorized the existing arrangements to be kept temporarily in force; however, at least on a first reading, the attempt was made by means of the decision as a whole. Indeed, while the decision requires the French authorities to adjust the dock dues arrangements for conversion into a system of internal taxation, it permits exemptions for local production for a period of not more than ten years. In that way the preservation of the previous system is ensured in fact, even if under another name, as seems to be confirmed by the national law adopted in implementation of the decision. That system would prima facie appear to be incompatible with Article 95 of the Treaty since it discriminates between products originating in the overseas departments and similar products imported from other Member States.

Nature of the dock dues levied on goods from other regions of France

15. The other question referred to the Court for a preliminary ruling is whether Article 9 of the Treaty is to be interpreted as precluding a Member State from levying charges with the characteristic features of dock dues even when they are applied to goods not coming from another Member State, merely by reason of the entry of those goods into a particular region of that State.

16. The plaintiffs in the main proceedings, the French Government and the Commission consider that the question should be answered in the affirmative on the basis of a series of arguments which do not, however, seem to me to be decisive.

17. Finally, as the Commission in particular pointed out, if a Member State were able to maintain tariff barriers between the various parts of its territory for its own products, serious practical problems would be caused by the need in any event to avoid the indirect taxation of a product imported from another Member State, not only where a product from a Member State bound for one of the French overseas departments is merely in transit through a different region of France but also where goods are imported into France and only later shipped to an overseas department.

18. As I have said, I am not swayed by those arguments, in the light of either the relevant articles of the Treaty or the consistent interpretation thereof by the Court.

19. It does not seem to me to be possible to deduce any arguments supporting the opposite contention from the Legros judgment, contrary to the view taken in this case. Paragraph 18 of that judgment in particular — repeated in paragraph 1 of the operative part — is quite unequivocal: it states that a charge exhibiting the features of dock dues levied by a Member State on goods imported from another Member State by reason of their entry into a region of the territory of the first Member State constitutes a charge having effect equivalent to a customs duty on imports, notwithstanding the fact that the charge is also imposed on goods entering that region from another part of the same State (emphasis added). It is self-evident in my view that such a statement cannot in any way affect the classification of the charge in question where it is applied to domestic goods; it simply makes clear that its application does not prevent a pecuniary charge applied to imported products from being held to be a charge having equivalent effect to a duty despite the fact of its being applied also to domestic goods.

20. The Court has repeatedly applied that principle when interpreting Article 30 as well. It has frequently stated, most recently in Ligur Carni and Others, that a national measure cannot escape being characterized as discriminatory or protective for the purposes of the rules on the free movement of goods just because it has limited territorial scope and affects both products from other parts of the national territory and products imported from other Member States. There is no doubt, it seems to me, that the established incompatibility of the national measure in the cases considered related exclusively to the application of the contested measure to imported goods, and not to goods produced and marketed within the country. If, as a possible result of the Court's ruling, the measure is inapplicable to domestic products as well, that is merely a consequence either of the special mechanism set up by the internal rules which made provision for it and made it impossible, when applying it, to draw distinctions according to the origin of the goods, or else of the practical methods of implementation which in the end took the form of a different measure having equivalent effect, by reason of the checks that they entailed.

21. It is therefore absolutely clear — it is as well to stress — that in the cases referred to it was necessary to ascertain whether a pecuniary charge or a national measure applied to goods imported from another Member State could escape being characterized as a duty or a charge having equivalent effect for the purposes of Article 9 et seq., or as a quantitative restriction or measure having equivalent effect under Article 30 of the Treaty, on account of its being imposed also on domestic products: the reply has, rightly, been no.

22. The Court has consistently held, on the one hand, that the rules of the Treaty are not applicable to purely internal situations, and on the other that because a national law is held to be incompatible with Community law, it does not necessarily follow that it may not be applied to domestic products either.

23. In the Cognet judgment, the court making the reference asked whether the creation in a Member State of a dual pricing system in the same sector of the book trade which provided for fixed prices, apart from the possibility of a small reduction for books published and sold in that State without having crossed a Community frontier at the marketing stage, alongside non-regulated prices, particularly for books published in that State and reimported from another Member State, was incompatible with the rules of the Treaty. The Court made it clear that Article 30 of the EEC Treaty does not forbid such a difference of treatment. The purpose of that provision is to eliminate obstacles to the importation of goods and not to ensure that goods of national origin always enjoy the same treatment as imported or reimported goods. (...) A difference in treatment between goods which is not capable of restricting imports or of prejudicing the marketing of imported or reimported goods does not fall within the prohibition contained in Article 30.

24. Finally, two further judgments are of particular importance. In Smanor, the Court was asked whether Articles 30 and 34 of the Treaty precluded the application by a Member State to yoghurt which had been deep-frozen of national legislation prohibiting the sale of the product under the name deep-frozen yoghurt, the name yoghurt being reserved for the fresh product alone. The Court held that such rules were incompatible with Community law, but only if applied to products imported from another Member State where they were lawfully manufactured and marketed under that name; with that the Court let it clearly be understood that there was nothing to prohibit the application of the rules in question to domestic products.

25. Analysis of the case-law provides confirmation, as the Council and the Spanish Government have correctly noted, of the more general principle that the rules of Community law imposing on Member States various prohibitions with regard to relations between them is not applicable to situations which are purely internal; that is borne out by the case-law on the free movement of persons or, again, on the right of establishment or the freedom to provide services.

26. Finally, in answer to the Commission's objection that to maintain dock dues for domestic products alone would create problems not easily resolved, in terms of setting up procedures in order to establish where goods come from and, accordingly, whether or not they are subject to the charge, I would point out that, while difficulties or complications are indeed possible, that does not mean that the issue of the applicability to internal French trade as well of the prohibition on duties or charges having equivalent effect has to be settled one way or the other. The solution of legal issues cannot depend on practical problems to such an extent. It seems to me, moreover, that checks of that type ought not to be so difficult to carry out (and that the Community procedure itself may perhaps provide helpful examples in that respect). If, however, they did create any barriers to the movement of goods from other Member States, they would in any case have to be examined in the light of Article 30 et seq. of the Treaty, and therefore be considered as measures, not charges, having equivalent effect. It is, consequently, for the national court to apply those rules and, in the event of uncertainty, to ask this Court to interpret them.

27. To summarize the points that I have developed, where goods from one Member State pass from one region to another in the same Member State the basic and essential condition for the application of Article 9 et seq. of the Treaty is not satisfied. That condition is the crossing of a frontier from one State to another. In this case, the French overseas departments, whether they are islands (Réunion, Martinique, Guadeloupe) or not (Guyane), are frontiers only where the products concerned come from another Member State; they are not frontiers where the products come from and originate in another region of France. Accordingly, in the latter case the prohibition of duties and charges having equivalent effect is not applicable. To hold otherwise would amount, I repeat, to being deceived by appearances.

28. It must be acknowledged, however, that the solution of the problem as dictated by the interpretation of the Treaty and the case-law of the Court may seem somewhat paradoxical. An experienced lawyer will also notice the paradox of a single market in which barriers to trade between Portugal and Denmark are prohibited, whilst barriers to trade between Naples and Capri are immaterial.

Temporal effects of the judgment

29. The French Government asks, in short, if Decision 89/688 is found to be invalid, that the Court should impose temporal limits on the effects of its ruling. It should be borne in mind that a judgment of the Court in proceedings for a preliminary ruling declaring a Community act invalid in principle has retrospective effect, like a judgment annulling the act.

30. That said, it is essential to take account of the fact that precisely on that occasion the Court held that the conditions enabling it exceptionally to limit the effects of a ruling on interpretation had been satisfied. It was noted, in particular, that there existed, in objective terms, uncertainty as to the lawfulness of the charge with regard to Community law, to which the Community institutions themselves had contributed, especially by adopting Decision 89/688, and a real risk that the system of funding local authorities in the overseas departments might retroactively be thrown into confusion, by reason of the large number of legal relationships based in good faith on the rules considered to be validly in force. Accordingly, without prejudice to the rights of those who had already brought an action or instituted equivalent proceedings, the Court held that the provisions of the Treaty concerning charges having equivalent effect to customs duties could not be relied on as the basis of claims for the reimbursement of dock dues paid prior to the date of the judgment.

31. Taking account of the fact that Article 4 of Decision 89/688 merely authorizes the national dock dues arrangements then in existence to be maintained in force, and also that the effects of the Legros judgment finding those arrangements incompatible with the provisions of the Treaty were limited, for the reasons set out above, to the date of the judgment itself, it would not, it seems to me, be consistent to make a declaration that Decision 89/688 is invalid take effect from an earlier date.

32. In the light of those considerations, if the Court intends to follow my Opinion as regards the inapplicability of Article 9 et seq. to internal French trade, it is clear that the question referred by the Cour d'Appel cannot simply be answered in the form in which it was asked.

33. I therefore propose that the questions submitted in all the cases before the Court be answered as follows:

1 Original language: Italian.

2 Case C-163/90 Legros [1992] ECR I-4625.

3 Decision concerning the dock dues in the French overseas departments (OJ 1989 L 399, p. 46).

4 See recitals 3 to 6 in the preamble to the decision at issue.

5 In his Opinion in the Legros case. Advocate General Jacobs had invited the Court to give a ruling on the validity of the 1989 decision as well, in so far as it authorized the arrangements then in force to be temporarily maintained. That suggestion was not however followed up in the judgment, on the grounds that — as pointed out earlier — the facts in the case referred to predated the decision which clearly did not have retrospective effect.

6 See, on this point, the judgment in Joined Cases 37/73 and 38/73 Sociaal Fonds voor de Diamatitarbeiders v Indiamex and Association de fait De Beider [1973] ECR 1609, and to the same effect also the judgments in Case 266/81 SIOT v Ministem delle Finanze and Others [1983] ECR 731, in particular paragraphs 16 to 19, and Joined Cases 267/81 to 269/81 Amministrazione delle Finanze dello Stato v SPI and SAMÍ [1983] ECR 801, in particular paragraphs 26 and 27.

7 See, for example, the judgment in Case 37/83 Rewe-Zentrale v Landwirtschaftskammer Rheinland [1984] ECR 1229, in particular paragraph 18.

8 Case 148/77 Hansen v Hauptzollamt Flensburg [1978] ECR 1787.

9 Joined Cases 2/62 and 3/62 Commission v Luxembourg and Belgium [1962] ECR 425, in particular p. 431-432.

10 Sec judgments in Case 24/68 Commission v Italy [1969] ECR 193, especially points 4 and 10, Joined Cases 2/69 and 3/69 Diamantarbeiders v Brachfeld [1969] ECR 211, especially points 7/8 and 11/12. See also the judgments in Case 77/72 Capolongo v Azienda Agricola Maya [1973] ECR 611, in particular points 10 and 11; Case 87/75 Conceria Damele Bresciani v Amministrazione Italiana delle Finanze [1976] ECR 129, in particular points 7 to 9; Joined Cases 80/77 and 81/77 Commissaires Réums and les Fils de Henn Ramel v Receveur des Douanes [1978] ECR 927, in particular points 24 to 26; Casc 193/85 Cooperativa Co-Frutta v Amministrazione delle Finanze dello Stato [1987] ECR 2085, in particular paragraph 27, and Casc 61/86 United Kingdom v Commission [1988] ECR 431, in particular paragraph 9.

11 As to there being no possibility of recourse to Article 227(2) to restrict the application to the overseas departments of the rules set out in the first subparagraph of that article or to introduce a special system derogating from those rules in the regions and sectors mentioned tncrcin, academic writers arc essentially at one; see, for further bibliographical references, Dewost, Article 227, in Le Droit de la Communauté Européenne (Commentaire Megret), Volume 15, Brussels 1987, p. 474 et seq.

12 Joined Cases 80/77 and 81/77, cited in footnote 9.

13 Paragraph 35.

14 On this point, see Tizzano: Competenze della Comunità, in Trent'anni di Dintto Comunitario, 1981, p. 45 et seq.

15 As Advocate General Jacobs did in the Legros case, in which the Council had made a similar point.

16 See the judgment in Case 73/79 Commission v Italy [1980] ECR 1533, in particular paragraph 11.

17 It is significant here that the Commission itself, in the Legros case, had claimed that the measure in question was incompatible with the Treaty.

18 Law No 92/676 of 17 July 1992 (Official Journal of the French Republic of 19 July 1992, p. 9697).

19 Joined Cases C-227/91, C-318/91 and C-319/91 Ligur Carni and Others v Unità Sanitaria Locale No XV di Genova and Others [1993] ECR I-6621.

20 Cited above, especially paragraphs 37 and 38. See also the judgment in Case C-21/88 Du Pont de Nemours Italiana v Unità Sumuna Locale No 2 dì Carrara [1990] ECR I-889, in particular paragraphs 12 and 13; judgment in Joined Cases C-1/90 and C-176/90 Aragonesa de Publicidad Exterior and Publivia v Departamento de Sanidad v Segundad Social de la Generalität de Cataluña [1991] ECR I-4151, especially paragraph 24, and judgment in Case C-179/90 Merci Convenzionali Pono di Genova v Sidermgica Gabrielli [1991] ECR I-5889, especially paragraph 21.

21 Joined Cases 314/81 to 316/81 and 83/82 Procureur de la République and Comité National de Défense contre l'Alcoolisme v Alex Waterkeyn and Others; Procureur de la République v Jean Cayard and Others [1982] ECR 4337.

22 This is the judgment in Case 152/78 Commission v France [1980] ECR 2299.

23 See paragraphs 8 to 12 in Waterkeyn, cited at note 20.

24 Case 355/85 Dnancourt v Cognet [1986] ECR 3231, in particular paragraph 10. See also the judgments in Case 286/81 Oosthoek's Uitgeversmaatschappij BV [1982] ECR 4575, in particular paragraph 9; Joined Cases 80/85 and 159/85 Nederlandse Bakkerij Stichting v Edah [1986] ECR 3359, in particular paragraphs 18 to 20; Case 98/86 Ministère Pubitc v Mathot [1987] ECR 809, in particular paragraphs 7 to 9 and Case 255/86 Commission v Belgium [1988] ECR 693, in particular paragraphs 5 and 6.

25 Case 298/87 Smanor [1988] ECR 4489, in particular paragraphs 8 to 25.

26 Case 407/85 Drei Glocken and Another v USL CentroSud and Another [1988] ECR 4233, in particular, paragraphs 23 to 25.

27 I would merely refer to the recent judgments in Joined Cases C-330/90 and C-331/90 López Brea and Hidalgo Palacios [1992] ECR I-323, in particular paragraphs 7 to 9; Case C-332/90 Steen v Deutsche Bundespost [1992] ECR I-341, in particular paragraphs 8 to 12, and Case C-60/91 Batista Morais [1992] ECR I-2085, in particular paragraphs 7 to 9.

28 On this subject) for a different situation but one amenable to the same logic, see my Opinion of 26 April 1994 in Case C-130/93 Lamaire [1994] ECR I-3215, at page I-3217, pending before the Court — the subject-matter of the action being a pecuniary charge applied to agricultural products exported from Belgium — in -which, taking account of the fact that the sole objective of Articles 9 and 12 of the Treaty is to prohibit charges having equivalent effect to customs duties levied on trade between Member States, I consider a contribution such as the one at issue not to be incompatible with those provisions, if it is applied to products exported to nonmember countries.

29 On this point, see most recently the judgment in Case C-132/93 Stem [1994] ECR I-2715, especially paragraphs 8 toll.

30 Sec. most recently, the judgment in Case C-229/92 Roquette Frères [1994) ECR I-1445.

31 On this point, in addition to the Roquette Frères judgment cited in the previous footnote, see the judgments in Case 4/79 Providence Agricole de la Champagne v ONIC [1980] ECR 2823, paragraphs 44 to 46; in Case 109/79 Maïseries de Beance v ONIC [1980] ECR 2883, paragraphs 44 to 46 and in Case 145/79 Roquette Frères v French Customs Administration [1980] ECR 2917, paragraphs 51 to 53. See also the judgment in Case 112/83 Produits de maïs v Administration des Douanes et Droits Indirects [1985] ECR 719, paragraph 17.