AS Pimix v Maksu- ja Tolliameti Lõuna maksu- ja tollikeskus and Põllumajandusministeerium.
Date: 2012-07-12
33. In order to answer that question, it is necessary to bear in mind that a fundamental principle in the EU legal order requires that a measure adopted by the public authorities cannot be enforced against individuals before they have the opportunity to make themselves acquainted with it through its proper publication in the Official Journal of the European Union (Case C-98/78 Racke  [1979] ECR 69, paragraph 15, and Skoma-Lux , paragraph 37).
34. Furthermore, it follows from Article 2 of the 2003 Act of Accession that the measures taken by the institutions before accession are binding upon the new Member States and are applicable in those States as from accession. However, their enforceability against natural and legal persons in those States is subject to the general conditions for the implementation of EU law in the Member States, as laid down in the original treaties and, in the case of the new Member States, by the 2003 Act of Accession ( Skoma-Lux , paragraph 32).
35. As regards regulations of the Council or the Commission and directives of those institutions, which are addressed to all the Member States, it follows from Article 297(2) TFEU that those measures cannot produce legal effects unless they have been published in the Official Journal of the European Union (see, to that effect, Skoma-Lux , paragraph 33).
36. Those principles must also be observed and have the same consequences where, for its implementation, EU legislation obliges Member States to adopt measures imposing obligations on individuals. Such measures must therefore be published so that the latter can become aware of them (see, to that effect, Case C-313/99 Mulligan and Others  [2002] ECR I-5719, paragraphs 51 and 52). The individuals concerned must also have the possibility of determining the source of the national measures imposing obligations upon them. Accordingly, not only must the national legislation be published but also the measure of EU law which obliges the Member States to take measures imposing obligations on individuals (see, to that effect, Case C-345/06 Heinrich  [2009] ECR I-1659, paragraphs 45 to 47).
37. Furthermore, it follows from Article 58 of the 2003 Act of Accession, read in conjunction with Articles 4, 5 and 8 of Regulation No 1, that, in the case of a Member State whose language is an official language of the European Union, the proper publication of a Community regulation must be understood as including the publication of that act, in that language, in the Official Journal of the European Union ( Skoma-Lux , paragraph 34).
38. The Court has accordingly held that Article 58 of the 2003 Act of Accession precludes the obligations laid down in EU 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 European Union, from being imposed on individuals in that State, even though those persons could have learned of that legislation by other means ( Skoma-Lux , paragraph 51, and Balbiino , paragraph 30).
40. The Court has held that the rule stated in Skoma-Lux  does not preclude the enforcement against individuals of any of the provisions of Regulation No 1972/2003 which were taken up in the ÜLTS. The Skoma-Lux rule may nevertheless remain of residual application if certain provisions of that regulation which were not implemented by the ÜLTS were relied on by the Estonian authorities against individuals before the official publication of the regulation in Estonian ( Balbiino , paragraph 32, and Rakvere Lihakombinaat , paragraph 34).
44. However, the Court has held that compliance with the case-law referred to in paragraphs 33 to 38 above, which is based on the principles of legal certainty and non-discrimination, is not contrary to the principle of the effectiveness of EU law, since the principle of effectiveness cannot relate to rules which are not yet enforceable against individuals. Allowing an act which has not been properly published to be enforceable in the name of the principle of effectiveness would result in individuals in the Member State concerned bearing the adverse effects of a failure by the EU 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 ( Skoma-Lux , paragraph 42).
46. However, the fact that Pimix made an accurate declaration of the quantities of products in its possession on 1 May 2004 on which charges could be levied and was therefore informed of the applicable EU rules is not sufficient to make EU legislation which has not been properly published in the Official Journal of the European Union enforceable against it (see, to that effect, Skoma-Lux , paragraph 46).