European Parliament v Council of the European Union.
Date: 2006-11-28
13. It must be pointed out directly that although the French version of Article 57 suggests that adaptations thereunder must be made prior to accession – ‘avant l’adhésion’ – that temporal restriction is not in fact, as is clear from the other language versions of that provision, placed on recourse to Article 57 but on the date of the acts to be amended (see, to that effect, in respect of the identical provision in the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded (OJ 1994 C 241, p. 21, hereinafter ‘the 1994 Act of Accession’), Case C‑259/95 Parliament  v Council  [1997] ECR I‑5303, paragraphs 12 to 22).
29. In that regard, it is appropriate to observe that, as the Parliament pointed out, it follows from the wording of Article 57 of the 2003 Act of Accession that that provision authorises the adoption of ‘adaptations’ which are made ‘necessary’ by reason of accession but which were not provided for in the Act of Accession or its annexes.
30. As the Commission rightly argued, it is clear from Articles 20 and 21 of the 2003 Act of Accession, which together make up Title I, entitled ‘Adaptations to acts adopted by the institutions’, of Part Three of that act, itself entitled ‘Permanent provisions’, that the ‘adaptations’ to which those articles refer correspond, in principle, to amendments necessary to ensure the full applicability of acts of the institutions to the new Member States and which are intended, with that in view, to supplement those acts in the long term.
31. Such ‘adaptations’, do not, on the other hand, usually cover temporary derogations from the application of Community acts, which are, for their part, the subject of Article 24 of the 2003 Act of Accession in Title I, entitled ‘Transitional measures’, of Part Four of that act, entitled ‘Temporary provisions’.
32. There is nothing to suggest that the term ‘adaptation’ should be given a different meaning depending on whether it is used in the context of Articles 20 and 21 of the 2003 Act of Accession or of Article 57 of that act. Article 21 moreover itself refers to the provisions of Article 57 as regards the procedure for, and the conditions governing, the drawing up of the adaptations for which that article provides, whilst Article 57 which refers to adaptations which have ‘not been provided for in this Act or its Annexes’ suggests, for its part, that the adaptations to be adopted on the basis of that provision are of the same type as those for which, in particular, Articles 20 and 21 of that act provide.
33. Furthermore, the grant of temporary derogations in view of the prospect of imminent accession is, as correctly pointed out by the Parliament and the Commission, the specific subject of another provision of the 2003 Act of Accession, namely Article 55, and it is, in that regard, difficult to imagine that the signatories to that act intended to lay down two distinct provisions for the purpose of enabling the adoption of the same measure.
34. That is all the more true as Article 55 makes the grant of such temporary derogations subject to conditions markedly more restrictive than those which Article 57 prescribes for the adoption of adaptation measures. First, Article 55 authorises derogations only as regards Community acts which were adopted between 1 November 2002 (the date on which the accession negotiations were concluded) and 16 April 2003 (the date of signature of the 2003 Treaty of Accession). Second, such grant is subject to the requirement of unanimity within the Council.
35. It follows from the foregoing that the measures which can be adopted on the basis of Article 57 of the 2003 Act of Accession 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 (see, by way of analogy, in respect of the identical provision contained in the 1994 Act of Accession, Parliament  v Council , cited above, paragraphs 14 and 19), and, particularly, to the exclusion of temporary derogations.
36. It follows that temporary derogations such as those enacted by the contested regulation in favour of the Republic of 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.
37. As to the circumstance that a certain number of measures establishing derogations of the type of those provided for by the contested regulation 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, contrary to the submissions of the Council and the Polish Government, have any effect on the scope of the latter provision. In fact, it is settled case‑law that 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 (see, in particular, Case C‑84/94 United Kingdom  v Council  [1996] ECR I‑5755, paragraph 19).
43. Rather, as regards acts that must be thus adopted during the period between the date of signature of the Treaty of Accession and the date when the accession takes effect, the Community institutions are fully aware of the imminent accession of new Member States whilst the latter have the opportunity to assert their interests where necessary, in particular through the information and consultation procedure (see, to that effect, Joined Cases 39/81, 43/81, 85/81 and 88/81 Halyvourgiki and Helleniki Halyvourgia  v Commission  [1982] ECR 593, paragraph 10).
49. On that point, none of the parties has provided evidence to suggest that the information and consultation procedure was not properly followed and that the Slovenian Government was not in a position to assert its interests as regards the proposal for a regulation which led to the adoption of Regulation No 1228/2003, as provided for by that procedure (see, by way of analogy, Halyvourgiki and Helleniki Halyvourgia v Commission , cited above, paragraph 15).
52. It follows, in that regard, from the Court’s case‑law that although the principle of legal certainty precludes, in general, a Community measure from taking effect from a point in time before its publication, it may exceptionally be otherwise where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected (see Case C‑331/88 Fedesa and Others [1990] ECR I‑4023, paragraph 45, and Parliament  v Council , paragraph 21).
59. In those circumstances, the Court considers that, on grounds of legal certainty and, in particular, the need to avoid serious negative consequences for undertakings whose restructuring or compliance with the Community acquis applicable to electricity production it was the contested regulation’s aim to facilitate – such consequences 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.
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