THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 62023/00
by EMESA SUGAR N.V.
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 13 January 2005 as a Chamber composed of:
MrB.M. Zupančič, President,
MrJ. Hedigan,
MrL. Caflisch,
MrC. Bîrsan,
MrsA. Gyulumyan,
MsR. Jaeger,
MrE. Myjer, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged on 3 August 2000,
Having regard to the decision taken by virtue of Article 36 § 2 of the Convention to admit as a third party the European Commission,
Having regard to the observations submitted by the respondent Government, the applicant company and the European Commission,
Having deliberated, decides as follows:
THE FACTS
The applicant, Emesa Sugar N.V., is a public limited company, having its registered seat in Oranjestad (Aruba). It is represented before the Court by Mr G. van der Wal and Mr P. Kreijger, who are both lawyers practising in Brussels. The respondent Government are represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs. The European Commission is represented by Messrs G. Marenco and C. Ladenburger, and Mrs S. Fries.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant company's activities include the operation of a sugar factory on Aruba and the export of sugar to the European Communities (EC). Since Aruba produces no sugar, the sugar is bought from cane sugar refineries in Trinidad and Tobago. After purchase, the sugar is transported to Aruba, where it is cleaned, milled and packed.
The applicant company operates within the legal framework of the European Council Decision 91/482/EEC of 25 July 1991. This Council Decision is based on Part IV of the EC Treaty, relating to the association of overseas countries and territories with the EC. Aruba is one of these “overseas countries and territories” (“OCT”). Part IV of the EC Treaty provides the basis for the abolition of customs duties on goods originating from OCTs when imported into the EC. In accordance with Article 187 of the EC Treaty, the details of and the procedure for the association of the OCTs with the EC are set out in an Implementing Convention.
Since 1964, there have been several successive Implementing Conventions. The European Council Decision 91/482/EEC is the sixth Implementing Convention. The original version of the sixth Implementing Convention provided for the possibility of importing goods originating from the OCT to the EC free of customs duties or charges. Goods were considered to be of OCT origin not only when they were wholly obtained within the OCT concerned, but also if they were obtained from one of the ACP (Africa, Caribbean, Pacific) States or the EC and underwent work or processing in the OCT.
The sixth Implementing Convention was amended at mid-term by the European Council Decision 97/803/EEC of 24 November 1997. This amendment severely impeded the commercial operations of the applicant company, since it limited the levy free imports of sugar of ACP/OCT origin within the EC to 3,000 tonnes per year.
Following the adoption of the European Council Decision 97/803/EEC, the applicant company instituted summary injunction proceedings (kort geding) before the President of the Regional Court (arrondissementsrechtbank) of The Hague seeking an interim order prohibiting:
(i) the Netherlands State from charging import duties on sugar originating in the OCTs from where the applicant company proposed importation;
(ii) the Central Board for Agricultural Products (Hoofdproductschap voor Akkerbouwproducten) from refusing to grant the applicant company import licences; and
(iii) the Aruba authorities from refusing to grant the applicant company movement certificates EUR-1 for sugar produced by it in Aruba, where such certificates were not withheld under European Council Decision 91/482/EEC before it was amended by the European Council Decision 97/803/EEC.
On 19 December 1997 the President of the Regional Court of The Hague declined jurisdiction to hear the applicant company's claims against the Netherlands State and the Central Board for Agricultural Products, as the Industrial Appeals Tribunal (College van Beroep voor het Bedrijfsleven) was the competent judicial body for claims concerning import levies, agricultural levies and/or import licences. As to the applicant company's claim against the authorities of Aruba, the President decided to refer a number of questions to the Court of Justice of the European Communities (ECJ) for a preliminary ruling, within the meaning of (former) Article 177 of the EC Treaty, on the validity of Council Decision 97/803EC of 24 November 1994 and, pending the outcome of the proceedings before the ECJ, provisionally granted the interim measure sought by the applicant company against the authorities of Aruba.
A hearing was held before the ECJ on 16 March 1999 and, on 1 June 1999, the Advocate General to the ECJ presented his Opinion. Under Article 18 of the AC Statute of the ECJ and Article 59 of the Rules of Procedure of the ECJ, the submission of the Opinion of the Advocate General brought the oral proceedings before the ECJ to an end.
The applicant company's request of 11 June 1999 to be allowed to respond to the Opinion was rejected by the ECJ in an order of 4 February 2000. The ECJ held inter alia:
“2. The EC Statute of the Court of Justice and the Rules of Procedure of the Court make no provision for the parties to submit observations in response to the Advocate General's Opinion.
3. However, Emesa relies on the case-law of the European Court of Human Rights concerning the scope of Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter 'the Convention'), and in particular on the judgment of 20 February 1996 in Vermeulen v Belgium (Reports of Judgments and Decisions, 1996-I, p. 224).
...
8. As the Court has consistently held, fundamental rights form an integral part of the general principles of law, the observance of which it ensures (see, in particular, Opinion 2/94 of 28 March 1996 [1996] ECR I-1759, paragraph 33). For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have cooperated or of which they are signatories. The Convention has special significance in that respect (see, in particular, Case C-260/89 ERT [1991] ECR I-2925, paragraph 41).
9. Moreover, those principles have been incorporated in Article 6(2) of the Treaty on European Union, according to which 'The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law'. According to Article 46(d) of the Treaty on European Union, the Court is to ensure that this provision is applied 'with regard to action of the institutions, in so far as [it] has jurisdiction under the Treaties establishing the European Communities and under [the] Treaty [on European Union]'.
10. It is also appropriate to recall the status and role of the Advocate General within the judicial system established by the EC Treaty and by the EC Statute of the Court of Justice, as set out in detail in the Court's Rules of Procedure.
11. In accordance with Articles 221 and 222 of the EC Treaty, the Court of Justice consists of Judges and is assisted by Advocates General. Article 223 lays down identical conditions and the same procedure for appointing both judges and Advocates General. In addition, it is clear from Title I of the EC Statute of the Court of Justice, which, in law, is equal in rank to the Treaty itself, that the Advocates General have the same status as the Judges, particularly so far as concerns immunity and the grounds on which they may be deprived of their office, which guarantees their full impartiality and total independence.
12. Moreover, the Advocates General, none of whom is subordinate to any other, are not public prosecutors nor are they subject to any authority, in contrast to the manner in which the administration of justice is organised in certain Member States. They are not entrusted with the defence of any particular interest in the exercise of their duties.
13. The role of the Advocate General must be viewed in that context. In accordance with Article 222 of the EC Treaty, his duty is to make, in open court, acting with complete impartiality and independence, reasoned submissions on cases brought before the Court of Justice, in order to assist the Court in the performance of the task assigned to it, which is to ensure that, in the interpretation and application of the Treaty, the law is observed.
14. Under Article 18 of the EC Statute of the Court of Justice and Article 59 of the Rules of Procedure of the Court, the Opinion of the Advocate General brings the oral procedure to an end. It does not form part of the proceedings between the parties, but rather opens the stage of deliberation by the Court. It is not therefore an opinion addressed to the judges or to the parties which stems from an authority outside the Court or which 'derives its authority from that of the Procureur Général's department [in the French version, "ministère public"]' (judgment in Vermeulen v Belgium, cited above, paragraph 31). Rather, it constitutes the individual reasoned opinion, expressed in open court, of a Member of the Court of Justice itself.
15. The Advocate General thus takes part, publicly and individually, in the process by which the Court reaches its judgment, and therefore in carrying out the judicial function entrusted to it. Furthermore, the Opinion is published together with the Court's judgment.
16. Having regard to both the organic and the functional link between the Advocate General and the Court, referred to in paragraphs 10 to 15 of this order, the aforesaid case-law of the European Court of Human Rights does not appear to be transposable to the Opinion of the Court's Advocates General.
17. Moreover, given the special constraints inherent in Community judicial procedure, connected in particular with its language regime, to confer on the parties the right to submit observations in response to the Opinion of the Advocate General, with a corresponding right for the other parties (and, in preliminary ruling proceedings, which constitute the majority of cases brought before the Court, all the Member States, the Commission and the other institutions concerned) to reply to those observations, would cause serious difficulties and considerably extend the length of the procedure.
18. Admittedly, constraints inherent in the manner in which the administration of justice is organised within the Community cannot justify infringing a fundamental right to adversarial procedure. However, no such situation arises in that, with a view to the very purpose of adversarial procedure, which is to prevent the Court from being influenced by arguments which the parties have been unable to discuss, the Court may
