Keywords
Summary

Keywords

++++ 1 . PRELIMINARY QUESTIONS - APPRAISAL OF VALIDITY - DECLARATION OF INVALIDITY - LACK OF JURISDICTION OF NATIONAL COURTS ( EEC TREATY, ARTS 173, 177 AND 184 ) 2 . OWN RESOURCES OF THE EUROPEAN COMMUNITIES - POST-CLEARANCE RECOVERY OF IMPORT OR EXPORT DUTIES - IMPORTER FULFILLING THE REQUIREMENTS SET OUT IN ARTICLE 5*(2 ) OF REGULATION NO 1697/79 - POST-CLEARANCE RECOVERY - PRECLUDED ( COUNCIL REGULATION NO 1697/79, ART . 5*(2 )*)

Summary

1 . NATIONAL COURTS AGAINST WHOSE DECISIONS THERE IS A JUDICIAL REMEDY UNDER NATIONAL LAW MAY CONSIDER THE VALIDITY OF A COMMUNITY ACT AND, IF THEY CONSIDER THAT THE GROUNDS PUT FORWARD BEFORE THEM BY THE PARTIES IN SUPPORT OF INVALIDITY ARE UNFOUNDED, THEY MAY REJECT THEM, CONCLUDING THAT THE MEASURE IS COMPLETELY VALID . IN CONTRAST, NATIONAL COURTS, WHETHER OR NOT A JUDICIAL REMEDY EXISTS AGAINST THEIR DECISIONS UNDER NATIONAL LAW, THEMSELVES HAVE NO JURISDICTION TO DECLARE THAT ACTS OF COMMUNITY INSTITUTIONS ARE INVALID . THAT CONCLUSION IS DICTATED, IN THE FIRST PLACE, BY THE REQUIREMENT FOR COMMUNITY LAW TO BE APPLIED UNIFORMLY . DIVERGENCES BETWEEN COURTS IN THE MEMBER STATES AS TO THE VALIDITY OF COMMUNITY ACTS WOULD BE LIABLE TO PLACE IN JEOPARDY THE VERY UNITY OF THE COMMUNITY LEGAL ORDER AND DETRACT FROM THE FUNDAMENTAL REQUIREMENT OF LEGAL CERTAINTY . SECONDLY, IT IS DICTATED BY THE NECESSARY COHERENCE OF THE SYSTEM OF JUDICIAL PROTECTION ESTABLISHED BY THE TREATY . IN ARTICLES 173 AND 184, ON THE ONE HAND, AND IN ARTICLE 177, ON THE OTHER, THE TREATY ESTABLISHED A COMPLETE SYSTEM OF LEGAL REMEDIES AND PROCEDURES DESIGNED TO PERMIT THE COURT OF JUSTICE TO REVIEW THE LEGALITY OF MEASURES ADOPTED BY THE INSTITUTIONS . SINCE ARTICLE 173 GIVES THE COURT EXCLUSIVE JURISDICTION TO DECLARE VOID AN ACT OF A COMMUNITY INSTITUTION, THE COHERENCE OF THE SYSTEM REQUIRES THAT WHERE THE VALIDITY OF AN ACT IS CHALLENGED BEFORE A NATIONAL COURT THE POWER TO DECLARE THE ACT INVALID MUST ALSO BE RESERVED FOR THE COURT OF JUSTICE . THAT DIVISION OF JURISDICTION MAY HAVE TO BE QUALIFIED IN CERTAIN CIRCUMSTANCES WHERE THE VALIDITY OF A COMMUNITY ACT IS CONTESTED BEFORE A NATIONAL COURT IN PROCEEDINGS RELATING TO AN APPLICATION FOR INTERIM MEASURES . 2 . ARTICLE 5*(2 ) OF COUNCIL REGULATION NO 1697/79 ON THE POST-CLEARANCE RECOVERY OF IMPORT OR EXPORT DUTIES, WHICH LAYS DOWN THREE SPECIFIC REQUIREMENTS WHICH MUST BE FULFILLED BEFORE THE COMPETENT AUTHORITIES MAY WAIVE THE POST-CLEARANCE RECOVERY OF DUTIES, MUST BE INTERPRETED AS MEANING THAT IF ALL THOSE REQUIREMENTS ARE FULFILLED THE PERSON LIABLE IS ENTITLED TO THE WAIVER OF THE RECOVERY OF THE DUTY IN QUESTION .