Keywords
Summary

Keywords

1 Actions for annulment - Contested measure - Assessment of legality - Criteria

(EC Treaty, Art. 173)

2 Public international law - Principles - Good faith - Community law - Protection of legitimate expectations - Adoption of a Community measure contrary to an international agreement that has not yet entered into force but in respect of which the Community has lodged its instrument of approval

3 International agreements - Community agreements - Direct effect - Conditions - Article 10 of the Agreement creating the European Economic Area

(EC Treaty, Art. 228; EEA Agreement, Art. 10)

4 International agreements - Agreement creating the European Economic Area - Interpretation in conformity with the previous case-law of the Community judicature - Conditions - Interpretation of Article 10

(EC Treaty, Arts 12, 13, 16 and 17; EEA Agreement, Arts 6 and 10)

5 Free movement of goods - Customs duties - Charges having equivalent effect - Meaning

(EC Treaty, Arts 9 and 12; EEA Agreement, Art. 10)

6 Community law - Principles - Legal certainty - Community rules - Requirements of clarity and foreseeability

7 Community law - Principles - Legal certainty - Community rules - Requirements of clarity and foreseeability - Co-existence of two contradictory legal rules

8 Community law - Principles - Legal certainty - Community rules - Requirements of clarity and foreseeability - Acts of the institutions - Publication - Date

Summary

9 In the context of an application for annulment under Article 173 of the Treaty the legality of the contested measure must be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted and not at the time when it entered into force.

10 The principle of good faith, codified by Article 18 of the First Vienna Convention, is a rule of customary international law whose existence is recognized by the International Court of Justice and is therefore binding on the Community. That principle is the corollary in public international law of the principle of protection of legitimate expectations, which forms part of the Community legal order and on which any economic operator to whom an institution has given justified hopes may rely.

In a situation where the Community has deposited its instrument of approval of an international agreement and the date of entry into force of that agreement is known, economic operators may rely on the principle of protection of legitimate expectations in order to challenge the adoption by the institutions, during the period preceding its entry into force, of any measure contrary to the provisions of that agreement which will have direct effect on them after it has entered into force.

11 Agreements concluded in accordance with the conditions provided for in Article 228 of the EC Treaty are binding on the institutions and the Member States, form an integral part of the Community legal order once they have entered into force, and may have direct effect if their provisions are unconditional and sufficiently precise.

Article 10 of the Agreement creating the European Economic Area, which prohibits, as between the contracting parties, customs duties on imports and exports and any charges having equivalent effect, and which provides that, without prejudice to the arrangements set out in Protocol 5 to that agreement, customs duties of a fiscal nature are likewise prohibited, lays down an unconditional and precise rule, subject to a single exception which is itself unconditional and precise, and therefore has direct effect.

12 Article 6 of the Agreement creating the European Economic Area must be interpreted as meaning that where a provision of that agreement is identical in substance to corresponding rules of the EC and ECSC Treaties and to the acts adopted in application of those two treaties, it must be interpreted in conformity with the relevant rulings of the Court of Justice and of the Court of First Instance given prior to the date of signature of the agreement.

That is the case with Article 10 of the Agreement creating the European Economic Area, which is identical in substance to Articles 12, 13, 16 and 17 of the EC Treaty.

13 Any pecuniary charge, however small and whatever its designation and mode of application, which is imposed unilaterally on domestic or foreign goods by reason of the fact that they cross a frontier, and which is not a customs duty in the strict sense, constitutes a charge having equivalent effect within the meaning of Articles 9 and 12 of the Treaty and Article 10 of the Agreement creating the European Economic Area, even if it is not imposed for the benefit of the State, is not discriminatory or protective in effect or if the product on which the charge is imposed is not in competition with any domestic product.

14 The principle of legal certainty requires Community legislation to be certain and its application foreseeable by individuals and that every Community measure having legal effects must be clear and precise and must be brought to the notice of the person concerned in such a way that he can ascertain exactly the time at which the measure comes into being and starts to have legal effects. That requirement must be observed all the more strictly in the case of a measure liable to have financial consequences in order that those concerned may know precisely the extent of the obligations which it imposes on them.

15 A regulation which creates a situation in which two contradictory rules of law co-exist as to the duties imposed on the importation of certain products into the Community cannot be regarded as Community legislation which is certain and its application foreseeable by those subject to it; accordingly, it infringes the principle of legal certainty.

16 Although there is a presumption that the date of publication of a Community measure is the date actually appearing on each issue of the Official Journal, should evidence to the contrary be produced, regard must be had to the date of actual publication.

In back-dating the issue of the Official Journal in which a Community measure was published, the Council infringes the principle of legal certainty, since, by acting in that way, it does not place the person concerned in a position to ascertain exactly the time at which the measure comes into being and starts to have legal effects.