Skoma-Lux sro v Celní ředitelství Olomouc.
Date: 2007-12-11
32. It follows from Article 2 of the Act concerning the conditions of accession that the measures taken before accession by the institutions bind 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 Community law in the Member States as laid down in the original treaties and, in the case of the new Member States, by the Act concerning the conditions of accession itself.
33. It is evident from the very wording of the provisions of Article 254(2) EC that a Community regulation cannot take effect in law unless it has been published in the Official Journal of the European Union .
34. Furthermore, it follows from the provisions of Article 58 of the Act concerning the conditions of accession in conjunction with those of Articles  4, 5 and 8 of Regulation No 1 that the proper publication of a Community regulation, with regard to a Member State whose language is an official language of the Union, must include the publication of that act, in that language, in the Official Journal of the European Union .
36. In addition to the legitimacy which it derives from the very wording of the treaties, such an interpretation is the only one consistent with the principles of legal certainty and non-discrimination.
37. It is apparent from paragraph 15 of the judgment in Case C-98/78 Racke  [1979] ECR 69, that an act adopted by a Community institution, such as the regulation at issue in the main proceedings, cannot be enforced against natural and legal persons in a Member State before they have the opportunity to make themselves acquainted with it by its proper publication in the Official Journal of the European Union .
38. The Court has held that 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 (see also, to that effect, Case C-370/96 Covita  [1998] ECR I-7711, paragraph 27, Case C-228/99 Silos  [2001] ECR I‑8401, paragraph 15, and Consorzio del Prosciutto di Parma and Salumificio S. Rita , paragraph 95).
42. The approach which allows an act which has not been properly published to be enforceable in that way 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 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 (see to that effect Racke , paragraph 16).
43. Admittedly, in some of the observations submitted to the Court it is pointed out that, in paragraphs 11 to 21 of Oryzomyli Kavallas and Others , the Court considered whether inadequate publication of Community law in the Official Journal of the European Union  should constitute in all cases a ground for the unenforceability of the legislation at issue against individuals.
44. However, that judgment must be read in its context and in the light of the question which was referred to the Court. The Court did no more than assess the impossibility for a Greek company of acquainting itself with Community legislation at the time of the accession of the Hellenic Republic to the European Communities. The issue of the proper publication of that legislation did not arise as such. The Court merely examined whether, at the time of the accession of the Hellenic Republic, a Greek company which had acted unlawfully under the Community rules in submitting applications to its national authorities for rebates of import duty might still receive those rebates, having regard to the difficulty for that company and for the Greek authorities of acquainting themselves with the Community legislation and applying the new rules correctly.
46. However, such a fact 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.
51. The answer to the first question must therefore be that Article 58 of the Act concerning the conditions of accession 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 second question
53. The Czech Government relies on the Court’s case-law submitting that the lack of publication of a Community regulation in the Official Journal of the European Union  has no influence on its validity and that, consequently, an examination of the effects of that lack of publication concerns only the interpretation of Community law. The Court held that the validity of such a regulation is not affected by the fact that its publication did not take place until after the expiry of the time-limit since this belatedness has no significance save as to the date from which the regulation could be applied or take effect (Case 185/73 König  [1974] ECR I-607, paragraph 6).
57. The question before the referring court is whether a regulation which has not been published in the language of a Member State is invalid in the light of the first sentence of Article 254(2) EC, Articles 2 and 58 of the Act concerning the conditions of accession and Articles 4 and 5 of Regulation No 1.
58. It is common ground that those provisions do not affect the validity of a regulation applicable in the Member States in which it has been properly published.
59. 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.
67. In this connection, 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 (see, in particular, Case 43/75 ‘ Defrenne II ’ [1976] ECR 455, paragraphs 72 to 75, and Case C-292/04 Meilicke and Others  [2007] ECR I-1835, paragraph 35.