Keywords
Summary

Keywords

1. Accession of new Member States – 2003 Act of Accession – Adaptation of Community acts which have not been adapted by the Act of Accession itself – Concept

(2003 Act of Accession, Art. 57; Council Directive 2004/85)

2. Accession of new Member States – Czech Republic – Estonia – Cyprus – Latvia – Lithuania – Hungary – Malta – Poland – Slovenia – Slovakia – Community acts adopted after signature of the 2003 Treaty of Accession – Adoption of temporary derogations in favour of new Member States – Appropriate legal basis

(Art. 249(2) and (3) EC and Art. 299 EC; 2003 Act of Accession, Art. 2(2) and (3))

3. Acts of the institutions – Statement of reasons – Obligation – Scope

(Art. 253 EC; Council Directive 2004/85)

Summary

1. The measures which can be adopted on the basis of Article 57 of the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded, providing for the adaptation of acts of the institutions which have not been adapted by the act itself, are limited, in principle, to adaptations intended to render earlier Community measures applicable in the new Member States, to the exclusion of all other amendments and, particularly, to the exclusion of temporary derogations. It follows that such temporary derogations from the application of the provisions of a Community act, whose sole object and purpose is to delay temporarily the effective application of the Community act concerned as regards a new Member State, cannot, in principle, be described as ‘adaptations’, within the meaning of Article 57 of that act.

However, while Directive 2004/85, amending Directive 2003/54 as regards the application of certain provisions to Estonia, is certainly intended to delay temporarily the effective application of certain provisions of Directive 2003/54 concerning common rules for the internal market in electricity and repealing Directive 96/92 as regards the Republic of Estonia, the fact remains that some of the measures which it contains with that in view are also measures of adaptation necessary to ensure the full applicability of Directive 2003/54 as regards that Member State. Such is the case of measures intended to take account, within the framework established by Directive 2003/54, of the transitional measure previously accorded to the Republic of Estonia by Annex VI to the 2003 Act of Accession as regards Directive 96/92. The following considerations justify such a conclusion. Thus, in so far as Directive 2004/85 provided for suspension of the application of Article 21(1)(b) and (c) of Directive 2003/54 until 31 December 2008, so as to maintain, for the benefit of the Republic of Estonia, the dispensation from opening its electricity market before 1 January 2009 to which it was entitled under the terms of Annex VI to the 2003 Act of Accession, it could validly be adopted on the basis of Article 57 of the Act of Accession.

However, Directive 2004/85 must be annulled in so far as it grants Estonia a derogation from the application of Article 21(1)(b) and (c) of Directive 2003/54, going beyond 31 December 2008 and imposes a corresponding obligation to ensure only partial opening of the market representing 35% of consumption on 1 January 2009 and an obligation to communicate annually the consumption thresholds extending eligibility to final customers. The further derogations constitute measures whose sole object and purpose, like most temporary derogations, is to postpone temporarily the effective application of the Community act concerned, and whose adoption therefore involves a political assessment. It follows that they could not validly be adopted on the basis of Article 57 of the 2003 Act of Accession.

(see paras 37-40, 51-52, 60-61, 88)

2. Once the 2003 Treaty on the accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union was signed, and subject to the application of the particular procedures for which that Treaty provides for the purposes of deciding on certain types of transitional measures, there is no objection in principle to Community measures adopted after that signature and before the entry into force of the Treaty of Accession and containing temporary derogations in favour of a future acceding State being adopted directly on the basis of the provisions of the EC Treaty.

Such derogations, which are intended to apply only subject to and on the date of actual entry into force of the 2003 Treaty of Accession, cannot disregard either the second and third paragraphs of Article 249 EC and Article 299 EC, under which the acts adopted by the institutions apply to the Member States, or Article 2(2) and (3) of the 2003 Treaty of Accession.

First, such specific provisions, like, moreover, the acts in which they are included and/or from which they derogate, will apply to the acceding States only on the date on which their accession takes effect, when they acquire the status of Member States.

Second, the fact that Article 2(2) of the 2003 Treaty of Accession provides that the Treaty is not to enter into force until 1 May 2004 and that Article 2(3) provides that, notwithstanding that principle, certain provisions of that Treaty may be applied earlier does not affect the possibility of provision being made, in acts adopted not under that Treaty but on the basis of the EC Treaty itself, for the conditions under which such acts adopted between the signature of the Treaty of Accession and its entry into force will apply to the future Member States once accession has taken place.

Lastly, the application of the normal legislative procedure provided for by the EC Treaty in respect of derogations adopted in favour of new Member States during the period between the date of signature of the 2003 Treaty of Accession and the date when the accession takes effect is confirmed by the existence of mechanisms specific to the accession process allowing those new States the opportunity to assert their interests where necessary, such as the information and consultation procedure.

(see paras 62-65, 69)

3. The statement of reasons required by Article 253 EC must be adapted to the nature of the act in question. Whilst that statement of reasons must show clearly and unequivocally the reasoning of the Community institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for it and the competent court to exercise its power of review, the institution is not required to go into every relevant point of fact and law. The question as to whether the statement of reasons for a measure satisfies the requirements of Article 253 EC must be assessed with reference not only to the wording of the measure but also to its context and to the whole body of legal rules governing the matter in question.

The preamble to Directive 2004/85, amending Directive 2003/54 as regards the application of certain provisions to Estonia, which refers to the Republic of Estonia’s request, to the transitional derogation relating to Directive 96/92 granted to that Member State by Annex VI to the 2003 Act of Accession, to Declaration No 8, annexed to the final act of the 2003 Treaty of Accession, to the accelerated opening of the electricity market brought about by Directive 2003/54 concerning common rules for the internal market in electricity and repealing Directive 96/92, and, finally, to the specific features of the Estonian oil shale sector and the difficulties which that sector would encounter in the absence of the transitional measures provided for by Directive 2004/85, is such as to enable those concerned to ascertain sufficiently the reasons for those transitional measures and the competent court to exercise its power of review. In particular, those considerations enable the Court to review the validity of the legal basis used by the Community legislature without there being a need for more detailed reasons for that choice of legal basis, which was expressly identified in the citation in the preamble to Directive 2004/85 as being Article 57 of the 2003 Act of Accession. Nor does the fact that the Council did not adopt the legal basis proposed by the Commission call for a more specific statement of reasons in that regard.

(see paras 81-83)