17 Case 87/75 Concern Daniele Bresciani v. Amministrazione Italiana delle Finanze, [1976] E.C.R. 129. 18 Case 104/81 Hauptzollamt Mainz v. C.A. Kupferberg & Cie., [1982] E.C.R. 3641.
19 Case 17/81 Pabst & Richarz KG v. Hauptzollamt Oldenburg, [1982] E.C.R. 1331. 20 Case C-192/89 S.Z. Sevince v. Staatssecretaris van Justitie, [1990] E.C.R. 1-3461. 21 Case C-18/90 Office national de Vemploi (Onem) v. Bahia Kziber, [1991] E.C.R. 1-199.
Greece, the EC-Turkey Association Agreement, and the Cooperation Agreement between the EC and Morocco.
1.1 Reciprocity as an Initial Balance of Obligations
When, in 1969 and 1970, the Conceria Bresdani of Genoa imported consignments of raw cow hides from France and Senegal, the Italian customs authorities charged a veterinary and public health inspection duty on these importations. The duty was introduced by Italy to offset the cost of the compulsory public health inspection of imported products of animal origin. Similar products of domestic origin were not subject to the same duty, but whenever animals are slaughtered in Italy there are veterinary inspections for which local authorities charge duties. The main purpose of these inspections is to establish whether the meat is fit for consumption. Arguing that the duty in question was incompatible with the prohibition laid down in Article 13(2) of the EC Treaty in respect of the importations from France and in Article 2(1) of the Yaoundé Convention of 1969 in respect of the importations from Senegal, Bresdani brought an action before the Tribunale di Genua for repayment of the duty. This court referred certain questions to the Court of Justice for a preliminary ruling under Article 177 of the EC Treaty. One of these questions was whether Artide 2(1) could have direct effect. It was not self-evident at all that the treaty as such could have direct effect, since the obligations under the Convention were dearly not the same for the Community and the Assodated States. There was no initial balance of obligations. The Court, however, held that "this imbalance between the obligations assumed by the Community towards the Assodated States, which is inherent in the spedal nature of the Convention, does not prevent recognition by the Community that some of its provisions have a direct effect".22
In Kupferberg, Advocate-General Rozes referred to the Bresciani judgment and argued that the Court of Justice "recognized various provisions of the 1973 Yaoundé Convention as having direct effect since that Convention was not based on redprodty but was intended to confer spedal advantages on certain African countries and to Madagascar. On the other hand, it is not possible to speak of any such lack of redprodty with regard to the Agreement between the EEC and Portugal which is based on the prindple of strict equality".23 According to
22 [1976] E.CR. 129, at 141 (paragraph 23). 23 [1982] E.C.R. 3641, at 3673.
Advocate-General Rozes, this was one of the main reasons why the EC - Portugal Agreement could not have direct effect. Did Advocate-General Rozes claim that a lack of reciprocity is a condition for recognition of direct effect? Marc Maresceau has argued that Advocate- General Rozes considerations did constitute a paradox: agreements without reciprocity can have direct effect, agreements based on reciprocity cannot.24 If one would start from the assumption that a lack of reciprocity is an obstacle to the recognition of direct effect, since a balance between obligations must be considered a minimum condition, the following parallel with the situation within the Community could be drawn.
In the Community, the balance between obligations is the very foundation of the relationship between the Member States. This follows from the Costa v. ENEL judgment in particular, where the Court stated that the Community legal system is accepted by the Member States "on a basis of reciprocity". Clearly, the Community is more than that. The Court had already made clear, in Van Gend & Loos, that the objective of the EEC Treaty implies "that this Treaty is more than an agreement which merely creates mutual obligations between the contracting States". The Community legal order is not only based on reciprocity, but also on solidarity between the Member States. Indeed, a solidarity which is necessary to achieve the goals described in the Treaty.25 This does not mean, however, that in the Community solidarity has replaced reciprocity; the balance between obligations is still there. The Community legal order, however, transcends mere reciprocity. The Yaoundé Convention, on the other hand, was not even based on reciprocity, there was a clear imbalance between obligations. In the view that reciprocity is a minimum condition, direct effect would have been out of the question. The only reason it was granted was the special link between the African States and Madagascar, on the one hand, and the European Community, on the other. This display of 'extra-territorial solidarity' satisfied both the Advocate-General and the Court of Justice. In Advocate-General Rozes' opinion no such solidarity could be found in the EC - Portugal Agreemen and therefore this agreement remained a simple free-trade agreement, based on not more than mere reciprocity which was, in her view, not enough to grant direct effect. She probably did not intend to say, however, that an agreement which is less than an agreement
24 SeeM. Maresceau, T)e werking van overeenkomsten tussen de EEG en derde Staten volgens de rechtspraak van het Hof van Justitie na het arrest Kupfeiberg', in: II Liber Amicorum Frederic DuTtion 1183 (1983), pp. 1197/1198.
25 See, e.g.f Case 39/72 Commission v. Italian Republic, [1976] E.C.R. 277, at 284. Case 78/76 Steinike & Weinlig v. Federal Republic o f Germany, [1977] E.C.R. 595, at 612. Case 128/78 Commission v. United Kingdom, [1979] E.C.R. 419, at 429.
based on mere reciprocity can have direct effect. Probably, it also was her view that if a simple reciprocal agreement cannot have direct effect, then - a fortiori - an agreement which does not even satisfy that criterion cannot have direct effect either. However, if there is an acceptable 'substitute', going beyond mere reciprocity, direct effect is indeed conceivable. This substitute was the 'extra-territorial solidarity' recognized by the Court, the special link between the Community and the Associated States. Since the Portugal Agreement is based on strict reciprocity and not more than that, the Advocate General argued, it cannot have direct effect.
In Kupferberg, the Court did not agree with Advocate General Rozes' point of view. It stated that the nature of the Agreement may not "prevent a trader from relying on the provisions of the said Agreement before a court in the Community”.26 This conclusion was based on considerations regarding reciprocity in judicial control by the courts and therefore will be considered in more detail below. Implicitly, however, the Court also recognized that the mere reciprocity on which the EC-Portugal Agreement was based could not prevent direct effect. It recognized that a simple free-trade agreement can produce direct effect and it appears that a special link with the Community is not necessary. Or was the special link perhaps the fact that Portugal had already applied for membership in 1977 and was likely to accede at some point in the near future? In that case, it could be argued perhaps that there existed a kind of 'anticipated solidarity', that is, another substitute transcending mere reciprocity.
In the Pabst & Richarz Case the facts were as follows. In order to adapt its monopoly in spirits to the requirements of Community law, the German Federal Monopoly Administration abolished the monopoly in the importation of spirits which it held under German law with regard to spirits coming from other Member States. The reduction in the selling prices of monopoly spirits which followed these measures caused a deficit for the Monopoly, since the purchase prices payable to producers delivering their products to it were left unchanged. The deficit was met from the State budget and this caused an increase of 10% in the general rate of the tax on spirits. In order to let producers, manufacturers and importers of spirits adapt to the new situation, the Federal Minister of Finance laid down administrative instructions which contained measures of relief. The company Pabst & Richarz KG owned an establishment distilling spirits from wine. It had a spirits warehouse and also a storage tank. When certain spirits from France, Italy and Greece entered the warehouse, Pabst & Richarz
paid the relevant duty, which then was refunded to it. In its application to the Finanzgericht Hamburg, however, Pabst & Richarz claimed supplementary relief in respect of the raw spirits held in their storage tank. The company based its claim on the argument that the relief system constituted a discrimination between, on the one hand, monopoly spirits which could qualify for a reimbursement without previously having been subject to taxation and, on the other, imported spirits in respect of which the reimbursement was intended to compensate for the previous payment of a duty. In the view of Pabst & Richarz, this discriminatory aspect of the relief system infringed Article 95 of the EC Treaty and, in so far as spirits imported from Greece were concerned, the similarly worded Article 53(1) of the Association Agreement between the European Community and Greece. The Finanzgericht Hamburg decided to stay the proceedings in order to refer questions to the Court of Justice for a preliminary ruling under Article 177.
The question we are concerned with here is the one relating to Article 53(1) of the EC - Greece Association Agreement. According to Advocate-General Rozes, Article 53(1) was directly effective since, inter alia, the objectives of the Association Agreement showed that this agreement was far more than a free-trade agreement of the classical type. In the preamble to the Agreement, the contracting parties announced that they wished "to establish ever- closer bonds between the Greek people and the peoples brought together in the EEC" in order to prepare the accession of Greece to the Community.27 The Court agreed and granted direct effect to Article 53(1) of the Association Agreement, partly on the grounds that this provision "forms part of a group of provisions the purpose of which was to prepare for the entry of Greece into the Community'*.28 It therefore "follows from the wording of Article 53(1),..., and from the objective and nature of the Association Agreement of which it forms part that that provision precludes a national system of relief from providing more favourable tax treatment for domestic spirits than for those imported from Greece".29 It could be argued that, again, there was a special link with the Community. In addition to the reciprocity of the agreement, the balance between obligations, the Court recognized an anticipated solidarity in view of the fact that Greece had meanwhile acceded to the Community.
27 [1982] E.C.R. 1331, at 1359.
28 [1982] E.C.R. 1331, at 1350 (paragraph 26). 29 [19821 E.C.R. 1331, at 1350 (paragraph 27).
In Sevince, after having stated that the provisions of the decisions of the EC-Turkey Association Agreement were dear, predse and unconditional and therefore were capable of having direct effect, the Court of Justice held that this finding was "confirmed by the purpose and nature of the dedsions of which those provisions form part and of the Agreement to which they relate”.30 Referring to the Demirel Case, it held that the purpose of the Assodation Agreement was:
to promote the continuous and balanced strengthening of trade and economic relations between the parties, and it establishes between the European Economic Community and Turkey an association which provides for a preparatory stage to enable Turkey to strengthen its economy with aid from the Community, a transitional stage for the progressive establishment of a customs union and for the alignment of economic policies, and a final stage based on the customs union and entailing dose coordination of economic policies.31
In this case as well, an antidpated solidarity (or perhaps only extra-territorial solidarity since it is still unlikely that Turkey ever will accede to the Community) was recognized and emphasized by the Court. There exists a spedal link between the Community and Turkey. The association provides for a preparatory stage to enable Turkey to strengthen its economy with Community aid, for a transitional stage to progressively establish a customs union and for the alignment of economic polities, and a final stage based on the customs union and involving the dose coordination of economic polities.
The background of the Kziber Case may be described as follows. Ms. Bahia Kziber, a Moroccan national, lives with her parents in Belgium. Her father, also of Moroccan nationality, who had worked as a wage-earner in Belgium, is now a pensioner there. When Ms. Kziber applied for a special unemployment allowance the Belgian authority, the Office national de Temploi (Onem), refused to grant the allowance on the ground of her nationality. After the Tribunal du travail of Liege had annulled that decision, Onem brought an appeal before the Court du travail of Liege. Ms. Kziber relied on the provisions of Artide 41(1) of the EC-Morocco Cooperation Agreement, prohibiting, in the field of social security, discrimination based on nationality between, on the one hand, workers of Moroccan nationality and any members of their families living with them and, on the other, nationals of the Member States in which they are employed. Realizing that the matter involved an interpretation of the EC-Morocco Agreement, the Court du Travail stayed the proceedings and asked the Court of Justice for a preliminary ruling.
30 [1990] E.C.R. 1-3461, at 1-3502 (paragraph 19). 31 [1990] E.C.R. 1-3641, at 1-3502/3503 (paragraph 20).
In his assessment of the purpose and nature of the EC-Morocco Cooperation Agreement, Advocate-General Van Gerven argued that the Cooperation Agreement was far less characterized by inequality of obligations than the Yaoundé Convention in Bresciani and that the Court "even in that case" had recognized direct effect. Therefore, the Cooperation Agreement a fortiori should be considered to have direct effect in principle.32 Although the Court recognized the direct effect of Article 41(1), it did not explicitly refer to the Bresciani Case. In appraising the purpose and nature of the Cooperation Agreement, it first mentioned its object which is to promote overall cooperation between the Community and Morocco, especially in the field of labour, and subsequently stated that "the fact that the Agreement is intended essentially to promote the economic development of Morocco and that it confines itself to instituting cooperation between the Parties without referring to Morocco's association with or future accession to the Communities is not such as to prevent certain of its provisions from being directly applicable".33 34 Again, the Court stressed the special link between the Community and its partner in the agreement. An 'implied extra-territorial solidarity', expressed by the establishment of a framework to promote the economic development of Morocco, was held sufficient to recognize the direct effect in principle of the treaty in question.
1.2 Reciprocity in Enforcement
The fact that the courts of other contracting parties have adopted a different approach towards the international agreement, that is, have denied direct effect or interpreted the agreement in a certain way, or the fact that there is uncertainty surrounding this issue, may be relevant to the question whether direct effect should be granted. This matter also may be perceived in terms of reciprocity, that is, reciprocity in enforcement, or reciprocity in the judicial control of the implementation of the agreement. In Polydor,3* where ¿liso provisions of the EC-Portugal Agreement were invoked, Advocate-General Rozes pointed to judgments of courts in certain other EFTA-countries whereby the interpretation suggested by the defendants had been rejected. It also had appeared from these proceedings that in one case, in a judgment of the Swiss Federal Supreme Court, provisions equivalent to Articles 14(2)
32 [1991) E.C.R. 1-199, at 1-212.
33 [1991] E.C.R. 1-199, at 1-226 (paragraph 21).
34 Case 270/80 Polydor Limited and RSO Records Inc. v. Harlequin Record Shops Limited and Simons