A. Racke GmbH & Co. v Hauptzollamt Mainz.
Date: 1998-06-16
24 By way of a preliminary observation, it should be noted that even though the Vienna Convention does not bind either the Community or all its Member States, a series of its provisions, including Article 62, reflect the rules of international law which lay down, subject to certain conditions, the principle that a change of circumstances may entail the lapse or suspension of a treaty.  Thus the International Court of Justice held that `[t]his principle, and the conditions and exceptions to which it is subject, have been embodied in Article 62 of the Vienna Convention on the Law of Treaties, which may in many respects be considered as a codification of existing customary law on the subject of the termination of a treaty relationship on account of change of circumstances' (judgment of 2 February 1973, Fisheries Jurisdiction (United Kingdom v Iceland), ICJ Reports 1973, p. 3, paragraph 36).
The jurisdiction of the Court
26 As the Court has already held in Joined Cases 21/72 to 24/72 International Fruit Company v Produktschap voor Groenten en Fruit [1972] ECR 1219, paragraph 5, the jurisdiction of the Court to give preliminary rulings under Article 177 of the Treaty concerning the validity of acts of the Community institutions cannot be limited by the grounds on which the validity of those measures may be contested.
27 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 (International Fruit Company, paragraph 6).
31 The Court has consistently held that 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 provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure (see, in particular, Case 12/86 Demirel v Stadt Schwäbisch Gmünd [1987] ECR 3719, paragraph 14).
34 It follows that, as regards the preferential customs treatment for which it makes provision, Article 22(4) of the Cooperation Agreement is capable of conferring rights upon which individuals may rely before national courts.
35 That finding is, moreover, borne out by examination of the purpose and nature of the agreement of which Article 22(4) forms part.
36 The aim of the Cooperation Agreement is to promote the development of trade between the contracting parties and progressively to remove barriers affecting the bulk of their trade.  After the end of the first stage of that liberalisation, on 30 June 1985, the Additional Protocol established the further trade arrangements.  It is in that context that Article 22(4), as amended by Article 4 of the Additional Protocol, lays down in respect of certain wines a Community tariff quota within which dismantling of customs duties on importation into the Community is to take place.
41 As far as the Community is concerned, an agreement concluded by the Council with a non-member country in accordance with the provisions of the EC Treaty is  an act of a Community institution, and the provisions of such an agreement form an integral part of Community law (see Demirel, cited above, paragraph 7).
45 It should be noted in that respect that, as is demonstrated by the Court's judgment in Case C-286/90 Poulsen and Diva Navigation [1992] ECR I-6019, paragraph 9, the European Community must respect international law in the exercise of its powers.  It is therefore required to comply with the rules of customary international law when adopting a regulation suspending the trade concessions granted by, or by virtue of, an agreement which it has concluded with a non-member country.
46 It follows that the rules of customary international law concerning the termination and the suspension of treaty relations by reason of a fundamental change of circumstances are binding upon the Community institutions and form part of the Community legal order.
47 In this case, however, the plaintiff is incidentally challenging the validity of a Community regulation under those rules in order to rely upon rights which it derives directly from an agreement of the Community with a non-member country.  This case does not therefore concern the direct effect of those rules.
48 Racke is invoking fundamental rules of customary international law against the disputed regulation, which was taken pursuant to those rules and deprives Racke of the rights to preferential treatment granted to it by the Cooperation Agreement (for a comparable situation in relation to basic rules of a contractual nature, see Case C-69/89 Nakajima v Council [1991] I-2069, paragraph 31).
49 The rules invoked by Racke 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 international law, that principle requires that every treaty be binding upon the parties to it and be performed by them in good faith (see Article 26 of the Vienna Convention).
51 In those circumstances, an individual relying in legal proceedings on rights which he derives directly from an agreement with a non-member country may not be denied the possibility of challenging 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 suspension of treaty relations.
52 However, because of the complexity of the rules in question 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 assessment concerning the conditions for applying those rules.