Opinion of the Advocate General — ECLI:EU:C:1997:582
Date: 1997-12-04
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: External relations;Commercial policy
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment
1. Preliminary rulings — Assessment of validity — Jurisdiction of the Court — Extent
(EC Treaty, Art. 177)
2. International agreements — Agreements by the Community — Direct effect — Conditions —
Article 22 of the EEC/YugosUvia Cooperation Agreement
(EEC/YugosUvia Cooperation Agreement, Art. 22(4); Additional Protocol, Arts 2(1) and (2),
and 4)
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SUMMARY — CASE C-162/96
3. International agreements — Agreements by the Community — EEC/'Yugoslavia Coopera­
tion Agreement — Entitlement of individuals to challenge the validity under customary inter­
national Uw rules of a regulation suspending the trade concessions granted by the agreement
(EEC/Yugoslavia Cooperation Agreement, Art. 22(4); Additional Protocol, Arts 2(1) and (2),
and 4)
4. Public international law — Pńnciples — Pacta sunt servanda — Rules of customary interna­
tional law concerning the termination and the suspension of treaty reUtions — Entitlement of
individuals to rely on those principles in order to challenge the validity of a regulation sus­
pending the trade concessions granted by a cooperation agreement — Whether permissible —
Judicial review — Limits
(EEC/YugosUvia Cooperation Agreement; Council Regulation No 3300/91)
1. The jurisdiction of the Court of Justice to
give preliminary rulings under Article 177
of the Treaty concerning the validity of
acts of the Community institutions can­
not be limited by the grounds on which
the validity of those measures may be
contested. Since such jurisdiction extends
to all grounds capable of invalidating
those measures, the Court is obliged to
examine whether their validity may be
affected by reason of the fact that they are
contrary to a rule of international law.
2. A provision of an agreement concluded
by the Community with non-member
countries must be regarded as being
directly applicable when, regard being
had to its wording and the purpose and
nature of the agreement itself, the provi­
sion contains a clear and precise obliga­
tion which is not subject, in its imple­
mentation or effects, to the adoption of
any subsequent measure.
Such is the case with Article 22(4) of the
Cooperation Agreement between the
EEC and the Socialist Federal Republic
of Yugoslavia, which, as amended by
Article 4 of the Additional Protocol to
that agreement, lays down in respect of
certain wines a Community tariff quota
within which dismantling of customs
duties on importation into the Commu­
nity is to take place.
3. When invoking in legal proceedings the
preferential customs treatment granted to
him by Article 22(4) of the Cooperation
Agreement between the EEC and the
Socialist Federal Republic of Yugoslavia,
an individual may challenge the validity
under customary international law rules
of a regulation suspending the trade con­
cessions granted under that Agreement.
An agreement concluded by the Council
with a non-member country in accord­
ance with the provisions of the EC Treaty
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RACKE v HAUPTZOLLAMT MAINZ
is, as far as the Community is concerned,
an act of a Community institution, and
the provisions of such an agreement form
an integral part of Community law. If,
therefore, a Community regulation sus­
pending the application of a cooperation
agreement were to be declared invalid by
reason of its being contrary to rules of
customary international law, the trade
concessions granted by the provisions of
that agreement would remain applicable
in Community law until the Community
brought that agreement to an end in
accordance with the relevant rules of
international law.
Moreover, the European Community
must respect international law in the exer­
cise of its powers. It is therefore required
to comply with the rules of customary
international law when adopting a regu­
lation suspending the trade concessions
granted by, or by virtue of, an agreement
which it has concluded with a non-
member country.
It follows that the rules of customary
international law concerning the termina­
tion and the suspension of treaty relations
by reason of a fundamental change of cir­
cumstances are binding upon the Com­
munity institutions and form part of the
Community legal order.
4. Where an individual is incidentally chal­
lenging the validity of a Community
regulation under rules of customary inter­
national law concerning the termination
and the suspension of treaty relations by
reason of a fundamental change of cir­
cumstances in order to rely upon rights
which he derives directly from an agree­
ment of the Community with a non-
member country, the case in question
does not concern the direct effect of those
rules.
Moreover, those rules form an exception
to the pacta sunt servanda principle,
which constitutes a fundamental principle
of any legal order and, in particular, the
international legal order. Applied to inter­
national law, that principle requires that
every treaty be binding upon the parties
to it and be performed by them in good
faith.
In those circumstances, an individual
relying in legal proceedings on rights
which he derives directly from an agree­
ment with a non-member country may
not be denied the possibility of challeng­
ing the validity of a regulation which, by
suspending the trade concessions granted
by that agreement, prevents him from
relying on it, and of invoking, in order to
challenge the validity of the suspending
regulation, obligations deriving from
rules of customary international law
which govern the termination and sus­
pension of treaty relations.
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SUMMARY — CASE C-162/96
However, because of the complexity of
those rules and the imprecision of some
of the concepts to which they refer,
judicial review must necessarily, and in
particular in the context of a preliminary
reference for an assessment of validity, be
limited to the question whether, by
adopting the suspending regulation, the
Council made manifest errors of assess­
ment concerning the conditions for
applying those rules.
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