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 Regulation No 1223/2004)

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. Actions for annulment – Judgment annulling a measure – Effects – Limitation by the Court

(Art. 231, second para., EC; Council Regulation No 1223/2004)

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 such as those enacted by Regulation No 1223/2004 amending Regulation No 1228/2003 as regards the date of application of certain provisions to Slovenia, whose sole object and purpose is to delay temporarily the effective application of the Community act concerned as regards a new Member State, cannot be described as ‘adaptations’ within the meaning of Article 57 of the 2003 Act of Accession.

As to the circumstance that a certain number of measures establishing derogations of the type of those provided for by Regulation No 1223/2004 are said to have been adopted on the basis of the article of the 1994 Act of Accession corresponding to Article 57 of the 2003 Act of Accession, that cannot have any effect on the scope of the latter provision. In fact, what is merely Council practice cannot derogate from the rules laid down in the EC Treaty, and cannot therefore create a precedent binding on the Community institutions with regard to the correct legal basis.

Regulation No 1223/2004, adopted on the basis of Article 57 of the 2003 Act of Accession, must therefore be annulled because of its incorrect legal basis.

(see paras 35-37, 54)

2. As regards Community measures adopted after the date of signature of 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, that Treaty and the 2003 Act of Accession contain no provision of general application intended to permit the adoption of transitional derogations in favour of the new Member States. However, once the 2003 Treaty of Accession 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 38-42, 46)

3. The aim of Regulation No 1223/2004, which introduced temporary derogations in favour of the Republic of Slovenia with respect to the application of Regulation No 1228/2003 on conditions for access to the network for cross-border exchanges in electricity, annulled by the Court, was to allow certain Slovenian energy-intensive industries to restructure and certain electricity producers to comply with Community acquis applicable to electricity production. On grounds of legal certainty and, in particular, the need to avoid serious negative consequences for the undertakings concerned resulting from the doubt cast on and discontinuity of that transitional derogation system provided for under the regulation to that end, the effects of that regulation must be maintained until such time as a new act has been adopted within a reasonable period on an appropriate legal basis, as a consequence of this judgment, without however prolonging those effects beyond 1 July 2007, the date on which that derogation system would have expired.

(see paras 58-59)