Opinion of the Advocate General — ECLI:EU:C:2007:525
Date: 2007-09-18
Language of the case: Czech
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Accession;Provisions governing the Institutions;Free movement of goods;Customs Union;Acts of the institutions
Procedure: Reference for a preliminary ruling
Origin: Czechia

Summary of the Judgment 1. Accession of new Member States to the Communities – Act of Accession of 2003 – Community legislation not published in the Official Journal in the language of a new Member State, which is an official language of the European Union – Unenforceable against individuals (Act of Accession of 2003, Art. 58) 2. Preliminary rulings – Jurisdiction of the Court (Arts 234 EC and 254(2), first sentence, EC; Act of Accession of 2003, Arts 2 and 58; Council Regulation No 1, Arts 4 and 5) 3. Preliminary rulings – Interpretation – Temporal effects of judgments by way of interpretation (Arts 231 EC and 234 EC) 1. Article 58 of the Act concerning the conditions of accession to the European Union 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 precludes the obligations contained in Community legislation which has not been published in the Official Journal of the European Union in the language of a new Member State, where that language is an official language of the Union, from being imposed on individuals in that State, even though those persons could have learned of that legislation by other means. The principle of legal certainty requires that Community legislation must allow those concerned to acquaint themselves with the precise extent of the obligations it imposes upon them, which may be guaranteed only by the proper publication of that legislation in the official language of those to whom it applies. In addition, it would be contrary to the principle of equal treatment to apply obligations imposed by Community legislation in the same way in the old Member States, where individuals have the opportunity to acquaint themselves with those obligations in the Official Journal of the European Union in the languages of those States, and in the new Member States, where it was impossible to learn of those obligations because of late publication. Observing fundamental principles of that kind is not contrary to the principle of effectiveness of Community law since the latter principle cannot apply to rules which are not yet enforceable against individuals. The approach which allows an act which has not been properly published to be enforceable in the name of the principle of effectiveness would be contra legem and result in individuals in the Member State concerned bearing the adverse effects of a failure by the Community administration to comply with its obligation to make available to those individuals, on the date of accession, the entire acquis communautaire in all the official languages of the Union. Moreover, the fact that the party concerned is an international trader which must know the content of the customs requirements is not sufficient to make Community legislation which has not been properly published in the Official Journal of the European Union enforceable against an individual. Similarly, although Community legislation is indeed available on the internet and individuals are using this means more and more frequently to acquaint themselves with it, making the legislation available by such means does not equate to a valid publication in the Official Journal of the European Union in the absence of any rules in that regard in Community law. Moreover, although various Member States have adopted electronic publication as a valid form, it is the subject of legislation or regulations which organise it in detail and set out exactly when that publication is valid. Accordingly, as Community law now stands, the Court cannot consider that form of making Community legislation available to be sufficient for it to be enforceable. The only version of a Community regulation which is authentic, as Community law now stands, is that which is published in the Official Journal of the European Union, such that an electronic version predating that publication, even if it is subsequently seen to be consistent with the published version, cannot be enforced against individuals. (see paras 38-42, 45-46, 48-51, operative part 1) 2. In holding that a Community regulation which is not published in the language of a Member State is unenforceable against individuals in that State, the Court is interpreting Community law for the purposes of Article 234 EC. The provisions of the first sentence of Article 254(2) EC, of Articles 2 and 58 of the Act concerning the conditions of accession to the European Union 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, and of Articles 4 and 5 of Regulation No 1 determining the languages to be used by the European Economic Community do not affect the validity of a regulation applicable in the Member States in which it has been properly published. In addition, the fact that that regulation is not enforceable against individuals in a Member State in the language of which it has not been published has no bearing on the fact that, as part of the acquis communautaire, its provisions are binding on the Member State concerned as from its accession. The purpose and effect of interpreting those provisions in conjunction with one another is to delay the enforceability of the obligations which a Community regulation imposes on individuals in a Member State until those individuals can acquaint themselves with it in an official manner which is completely unambiguous. (see paras 57-61, operative part 2) 3. In the context of an order for reference concerning the interpretation of a provision of Community law, the Court may, exceptionally, in application of the general principle of legal certainty inherent in the Community legal order, decide to restrict for any person concerned the right to rely upon a provision, which it has interpreted, with a view to calling in question legal relations established in good faith. However, if the question at issue is not that of limiting the temporal effects of a judgment of the Court concerning the interpretation of a provision of Community law, but that of limiting the effects of a judgment finding a Community act not published in the language of a Member State unenforceable in that State’s territory, that State is not obliged under Community law to call into question the administrative or judicial decisions taken on the basis of such rules where those decisions have become definitive under the applicable national rules. By virtue of an express provision of the EC Treaty, namely Article 231 EC, the Court may, even though an act is unlawful and deemed never to have been adopted, decide that some of its legal consequences shall nevertheless lawfully take effect. The same requirements of legal certainty dictate that the same should apply to national decisions taken pursuant to provisions of Community law which have not become enforceable in some Member States because they were not properly published in the Official Journal of the European Union in the official language of the States concerned, with the exception of any of those decisions which had been the subject of administrative or judicial proceedings at the date of the judgment. It would be otherwise only in exceptional circumstances where administrative measures or judicial decisions, particularly of a coercive nature compromising fundamental rights, have been taken, which, within those limits, is a matter for the competent national authorities to determine. (see paras 67-73)