1 BY JUDGMENT DATED 17 OCTOBER 1973, REGISTERED AT THE COURT OF JUSTICE ON 7 NOVEMBER 1973, THE TRIBUNAL DE PREMIERE INSTANCE OF BRUSSELS, UNDER ARTICLE 177 OF THE EEC TREATY, REFERRED PRELIMINARY QUESTIONS ON THE INTERPRETATION OF ARTICLE 9 ( 3 ) OF REGULATION NO 816/70 OF THE COUNCIL DATED 28 APRIL 1970 ( OJ 1970, L 99 ) AND OF CERTAIN PROVISIONS OF THE 'AGREEMENT CREATING AN ASSOCIATION BETWEEN THE EUROPEAN ECONOMIC COMMUNITY AND GREECE', CONCLUDED IN VIRTUE OF THE COUNCIL'S DECISION DATED 25 SEPTEMBER 1961 AND PUBLISHED IN THE OFFICIAL JOURNAL DATED 18 FEBRUARY 1963 ( P . 293/63 ), HEREINAFTER CALLED THE ATHENS AGREEMENT .
2 UNDER THE FIRST PARAGRAPH OF ARTICLE 177 OF THE EEC TREATY 'THE COURT OF JUSTICE SHALL HAVE JURISDICTION TO GIVE PRELIMINARY RULINGS CONCERNING ... THE INTERPRETATION OF ACTS OF THE INSTITUTIONS OF THE COMMUNITY '.
3 THE ATHENS AGREEMENT WAS CONCLUDED BY THE COUNCIL UNDER ARTICLES 228 AND 238 OF THE TREATY AS APPEARS FROM THE TERMS OF THE DECISION DATED 25 SEPTEMBER 1961 .
4 THIS AGREEMENT IS THEREFORE, IN SO FAR AS CONCERNS THE COMMUNITY, AN ACT OF ONE OF THE INSTITUTIONS OF THE COMMUNITY WITHIN THE MEANING OF SUBPARAGRAPH ( B ) OF THE FIRST PARAGRAPH OF ARTICLE 177 .
5 THE PROVISIONS OF THE AGREEMENT, FROM THE COMING INTO FORCE THEREOF, FORM AN INTEGRAL PART OF COMMUNITY LAW .
6 WITHIN THE FRAMEWORK OF THIS LAW, THE COURT ACCORDINGLY HAS JURISDICTION TO GIVE PRELIMINARY RULINGS CONCERNING THE INTERPRETATION OF THIS AGREEMENT .
7 THE FIRST QUESTION ASKS FOR A DEFINITION OF THE EXACT CONTENT AND SCOPE OF THE WORD 'TREATMENT' OCCURRING IN PARAGRAPH 2 OF PROTOCOL NO 14 ANNEXED TO THE ATHENS AGREEMENT .
8 IT EMERGES FROM THE PLEADINGS THAT THE ESSENTIAL PROBLEM IS WHETHER THE 'TREATMENT' IN THIS PARAGRAPH RELATES ONLY TO CUSTOMS DUTIES AND QUOTAS OR TO THE GENERAL SYSTEM UNDER WHICH GREEK WINES ARE IMPORTED INTO THE BENELUX COUNTRIES .
9 PARAGRAPH 2 OF PROTOCOL NO 14 PROVIDES THAT :
'THE KINGDOM OF BELGIUM, THE GRAND DUCHY OF LUXEMBOURG AND THE KINGDOM OF THE NETHERLANDS SHALL APPLY TO IMPORTS FROM GREECE THE TREATMENT ACCORDED TO IMPORTS FROM GERMANY, FRANCE AND ITALY '.
10 TO INTERPRET THIS PROVISION IT IS NECESSARY TO EXAMINE IT IN THE LIGHT OF THE GENERAL STRUCTURE BOTH OF THE ATHENS AGREEMENT, OF WHICH IT FORMS PART, AND OF THE TOTALITY OF THE PROVISIONS CONTAINED IN THE PROTOCOL ITSELF .
11 BY THE TERMS OF ARTICLE 6 OF THE SAID AGREEMENT, THE ASSOCIATION ESTABLISHED BETWEEN THE COMMUNITY AND GREECE 'SHALL BE BASED ON A CUSTOMS UNION WHICH, AS OTHERWISE PROVIDED IN THE AGREEMENT, SHALL COVER ALL TRADE IN GOODS AND SHALL INVOLVE THE PROHIBITION BETWEEN MEMBER STATES OF THE COMMUNITY AND GREECE OF CUSTOMS DUTIES ON IMPORTS AND EXPORTS AND OF ALL CHARGES HAVING EQUIVALENT EFFECT, AND THE ADOPTION BY GREECE OF THE COMMON CUSTOMS TARIFF OF THE COMMUNITY IN ITS RELATIONS WITH THIRD COUNTRIES '.
12 THE FUNCTIONING AND DEVELOPMENT OF THE ASSOCIATION, IN RESPECT OF AGRICULTURAL PRODUCTS IN PARTICULAR, SHOULD, UNDER ARTICLE 33 OF THE AGREEMENT, BE ACCOMPANIED BY PROGRESSIVE HARMONIZATION OF THE AGRICULTURAL POLICIES OF THE COMMUNITY AND GREECE .
13 THIS HARMONIZATION IS MADE SUBJECT FIRSTLY TO THE PROGRESS MADE BY THE COMMUNITY IN ESTABLISHING ITS OWN COMMON AGRICULTURAL POLICY AND SECONDLY TO EFFECT BEING GIVEN TO THE PROCEDURE CONTAINED IN ARTICLES 34 AND 35 OF THE AGREEMENT .
14 IN ANTICIPATION OF SUCH HARMONIZATION AGRICULTURAL PRODUCTS ARE SUBJECT TO A TREATMENT DEFINED IN ARTICLE 37 OF THE AGREEMENT, INVOLVING, FOR PRODUCTS APPEARING IN THE LIST IN ANNEX III, THE GRADUAL ELIMINATION OF CUSTOMS DUTIES AND IMPORT QUOTAS AS WELL AS OF CHARGES AND MEASURES HAVING EQUIVALENT EFFECT .
15 THE TREATMENT FOR PRODUCTS NOT OCCURRING IN THE ABOVEMENTIONED LIST CONSISTS IN THE CONSOLIDATION OF THE NATIONAL MEASURES IN RESPECT OF TARIFFS AND QUOTAS APPLIED BY THE CONTRACTING PARTIES AT THE TIME OF THE COMING INTO FORCE OF THE AGREEMENT AND IN THE EXTENSION TO THEIR TRADE WITH EACH OTHER OF THE CONCESSIONS RESPECTING TARIFFS AND QUOTAS GRANTED TO THIRD COUNTRIES .
16 FURTHER, IN THE CASE OF AGRICULTURAL PRODUCTS, PROTOCOL NO 12 ANNEXED TO THIS AGREEMENT PROVIDES FOR THE EVENTUALITY OF THESE BECOMING SUBJECT TO THE LEVY SYSTEM ENVISAGED WITHIN THE FRAMEWORK OF THE COMMON AGRICULTURAL POLICY .
17 IT APPEARS FROM THESE ARRANGEMENTS THAT THE OBJECT OF THE ATHENS AGREEMENT IS THE ACHIEVEMENT OF UNION, WITH THREE RESERVATIONS : THE TIME LIMITS PROVIDED UNDER THE AGREEMENT, THE SPECIAL ADVANTAGES IN THE FIELD OF TARIFFS AND QUOTAS SECURED FOR GREEK EXPORTS OF CERTAIN AGRICULTURAL PRODUCTS, AND THE FREEDOM GUARANTEED TO THE COMMUNITY BY PROTOCOL NO 12 TO DECIDE THE NECESSARY MEASURES FOR BRINGING THE COMMON AGRICULTURAL POLICY INTO OPERATION .
18 SINCE PROTOCOL NO 14 PROVIDES FOR THE EXTENSION TO GREEK WINE EXPORTS OF THE CONCESSIONS GRANTED, OR WHICH MIGHT BE GRANTED, BY THE MEMBER STATES IN THEIR TRADE WITH EACH OTHER, IT PROPERLY BELONGS AMONG THESE ARRANGEMENTS .
19 FOR THIS REASON ALONE IT IS CLEAR THAT THE SUBJECT MATTER OF PARAGRAPH 2 OF THIS PROTOCOL IS SOLELY CONCERNED WITH THE CUSTOMS DUTIES AND QUOTAS APPLICABLE TO GREEK WINE EXPORTS .
20 FURTHER, THIS PARAGRAPH OCCURS IN A PROVISION WHICH, IN THE CASE OF EXPORTS OF GREEK WINES INTO GERMANY, FRANCE AND ITALY, DEALS EXCLUSIVELY WITH QUESTIONS OF TARIFFS AND QUOTAS .
21 IT MUST THEREFORE BE CONCLUDED THAT THE WORD 'TREATMENT' IN PARAGRAPH 2 OF PROTOCOL NO 14 ANNEXED TO THE AGREEMENT CREATING AN ASSOCIATION BETWEEN THE EUROPEAN ECONOMIC COMMUNITY AND GREECE MUST BE UNDERSTOOD AS REFERRING ONLY TO QUESTIONS OF CUSTOMS DUTIES AND QUANTITATIVE RESTRICTIONS .
22 THE SECOND QUESTION ASKED IS WHETHER THE COUNTERVAILING CHARGE IMPOSED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES ON GREEK WINES IMPORTED INTO BELGIUM AND THE GRAND DUCHY OF LUXEMBOURG IS A DUTY OR CHARGE HAVING EQUIVALENT EFFECT, WITHIN THE MEANING OF ARTICLE 37 ( 2 ) OF THE SAID AGREEMENT OF ASSOCIATION .
23 UNDER THE FIRST PARAGRAPH OF ARTICLE 9 ( 3 ) OF REGULATION NO 816/70 'WHERE THE FREE-AT-FRONTIER OFFER PRICE FOR A WINE, PLUS CUSTOMS DUTIES, IS LOWER THAN THE REFERENCE PRICE FOR THAT WINE, A COUNTERVAILING CHARGE EQUAL TO THE DIFFERENCE BETWEEN THE REFERENCE PRICE AND THE FREE-AT-FRONTIER OFFER PRICE PLUS CUSTOMS DUTIES SHALL BE LEVIED ON IMPORTS OF THAT WINE AND OF WINES IN THE SAME CATEGORY '.
24 THE ESSENTIAL PURPOSE OF THIS CHARGE, ACCORDING TO THE FOURTH RECITAL IN THE PREAMBLE TO THIS REGULATION, IS TO AVOID DISTURBANCES ON THE COMMUNITY MARKET CAUSED BY OFFERS MADE ON THE WORLD MARKET AT ABNORMAL PRICES .
25 IT APPEARS, THEREFORE, FROM THIS ARRANGEMENT THAT THE CHARGE IN QUESTION IS DETERMINED BY REFERENCE TO A PRICE LEVEL FIXED IN ACCORDANCE WITH THE OBJECTIVES OF THE COMMON MARKET, IS PAYABLE AT A VARIABLE RATE, SUSCEPTIBLE TO FLUCTUATION ACCORDING TO UNFORESEEABLE ECONOMIC TRENDS, AND THUS PLAYS A STABILIZING ROLE IN THE COMMUNITY MARKET IN WINE .
26 SUCH A CHARGE CONSTITUTES A LEVY INSEPARABLE FROM THE ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKET IN WINE .
27 IF THIS CHARGE FAILS TO FULFIL ITS PROTECTIVE PURPOSE IN THE CASE OF IMPORTS OF GREEK WINES INTO THE BENELUX COUNTRIES, THIS DOES NOT AFFECT ITS NATURE IN LAW, BUT IS DUE SOLELY TO THE PRIVILEGED CHARACTER OF THE TREATMENT SECURED FOR THESE IMPORTS .
28 THE SAID LEVY FALLS UNDER THE MEASURES ADOPTED WITHIN THE FRAMEWORK OF THE COMMON AGRICULTURAL POLICY, IN PARTICULAR UNDER THE ADDITIONAL PROVISIONS FOR THE COMMON ORGANIZATION OF THE MARKET IN WINE LAID DOWN BY REGULATION NO 816/70 .
29 THE FIRST PARAGRAPH OF PROTOCOL NO 12 ANNEXED TO THE ATHENS AGREEMENT RESERVES FREEDOM FOR THE COMMUNITY BY PROVIDING THAT 'THE LEVY SYSTEM ENVISAGED WITHIN THE FRAMEWORK OF THE COMMON AGRICULTURAL POLICY CONSTITUTES A MEASURE SPECIFIC TO THAT POLICY WHICH IN THE CASE OF ITS APPLICATION BY EITHER PARTY IS NOT TO BE CONSIDERED AS A CHARGE HAVING EQUIVALENT EFFECT TO CUSTOMS DUTIES WITHIN THE MEANING OF ARTICLES 12 AND 37 OF THE AGREEMENT OF ASSOCIATION '.
30 THE REPLY TO THE SECOND QUESTION MUST, ACCORDINGLY, BE THAT THE COUNTERVAILING CHARGE IMPOSED ON GREEK WINES IMPORTED INTO BELGIUM AND THE GRAND DUCHY OF LUXEMBOURG UNDER ARTICLE 9 ( 3 ) OF REGULATION NO 816/70 CONSTITUTES A LEVY WITHIN THE MEANING OF PROTOCOL NO 12 ANNEXED TO THE AGREEMENT OF ASSOCIATION BETWEEN THE EUROPEAN ECONOMIC COMMUNITY AND GREECE AND CANNOT, UNDER THE TERMS OF THAT PROTOCOL, BE CONSIDERED EITHER AS A CUSTOMS DUTY OR AS A CHARGE HAVING EQUIVALENT EFFECT WITHIN THE MEANING OF ARTICLE 37 ( 2 ) OF THAT AGREEMENT .
31 THE THIRD QUESTION ASKED IS WHETHER, UNDER ARTICLE 43 OF THE ATHENS AGREEMENT, THE COMMISSION OF THE EUROPEAN COMMUNITIES IS EMPOWERED TO DETERMINE ON ITS OWN, I.E ., WITHOUT REFERENCE TO THE COUNCIL OF ASSOCIATION, THE AMOUNT OF THE COUNTERVAILING CHARGE TO BE IMPOSED ON IMPORTS OF GREEK WINE INTO THE TERRITORY OF THE EEC, AND THE WAY IN WHICH IT IS TO BE COLLECTED .
32 THE FOURTH QUESTION IS WHETHER, ASSUMING THAT THE CONDITIONS FOR APPLYING ARTICLE 41 OF THE AGREEMENT OF ASSOCIATION ARE SATISFIED, IT IS LAWFUL FOR THE COMMISSION OF THE EUROPEAN COMMUNITIES TO PUT THE PROTECTIVE MEASURES FOR WHICH IT PROVIDES INTO OPERATION OTHERWISE THAN BY A SYSTEM OF MINIMUM PRICES, AND, MORE PARTICULARLY, BY A SYSTEM OF COUNTERVAILING CHARGES LEVIED BY THE COMMUNITY .
33 ARTICLES 41 AND 43 OF THE AGREEMENT DEAL WITH SPECIAL CASES CHARACTERIZED EITHER BY A DISTURBANCE LIKELY TO JEOPARDIZE THE ATTAINMENT OF THE OBJECTIVES SET OUT IN ARTICLE 37 OF THE EEC TREATY, OR BY THE EXISTENCE OF A DAMAGING EFFECT ON THE MARKET OF ONE OR MORE MEMBER STATES OR OF THE COMMUNITY, ON THE ONE HAND, OR OF GREECE, ON THE OTHER .
34 IT APPEARS FROM THESE PROVISIONS THAT THE MEASURES LAID DOWN THEREIN HAVE THE SOLE OBJECT OF COPING WITH DIFFICULTIES DUE TO ABNORMAL MARKET SITUATIONS .
35 THE DISPUTED COUNTERVAILING CHARGE, ON THE OTHER HAND, IS A MEASURE FOR STABILIZING IMPORTS, AND FORMS AN ESSENTIAL PART OF THE COMMON ORGANIZATION OF THE MARKET IN WINE .
36 ARTICLES 41 AND 43 OF THE AGREEMENT THEREFORE HAVING NO BEARING ON THE APPLICATION OF THIS CHARGE, THE QUESTIONS RELATING TO THEIR INTERPRETATION ARE IN THE CIRCUMSTANCES IRRELEVANT .
37 THE COSTS INCURRED BY THE BELGIAN STATE AND THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE .
38 AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, COSTS ARE A MATTER FOR THAT COURT .
THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE TRIBUNAL DE PREMIERE INSTANCE OF BRUSSELS BY JUDGMENT OF THAT COURT DATED 17 OCTOBER 1973, HEREBY RULES :
1 . THE WORD 'TREATMENT' IN PARAGRAPH 2 OF PROTOCOL NO 14 ANNEXED TO THE AGREEMENT CREATING AN ASSOCIATION BETWEEN THE EUROPEAN ECONOMIC COMMUNITY AND GREECE MUST BE UNDERSTOOD AS REFERRING ONLY TO QUESTIONS OF CUSTOMS DUTIES AND QUANTITATIVE RESTRICTIONS .
2 . THE COUNTERVAILING CHARGE IMPOSED ON GREEK WINES IMPORTED INTO BELGIUM AND THE GRAND DUCHY OF LUXEMBOURG UNDER ARTICLE 9 ( 3 ) OF REGULATION NO 816/70 CONSTITUTES A LEVY WITHIN THE MEANING OF PROTOCOL NO 12 ANNEXED TO THE AGREEMENT OF ASSOCIATION BETWEEN THE EUROPEAN ECONOMIC COMMUNITY AND GREECE AND CANNOT, UNDER THE TERMS OF THAT PROTOCOL, BE CONSIDERED EITHER AS A CUSTOMS DUTY OR AS A CHARGE HAVING EQUIVALENT EFFECT WITHIN THE MEANING OF ARTICLE 37 ( 2 ) OF THAT AGREEMENT .
3 . ARTICLES 41 AND 43 OF THE AGREEMENT OF ASSOCIATION BETWEEN THE EUROPEAN ECONOMIC COMMUNITY AND GREECE HAVE NO BEARING ON THE APPLICATION OF THE COUNTERVAILING CHARGE IMPOSED BY ARTICLE 9 ( 3 ) OF REGULATION NO 816/70 .
