The Queen, ex parte Centro-Com Srl v HM Treasury and Bank of England.
Date: 1997-01-14
25 None the less, the powers retained by the Member States must be exercised in a manner consistent with Community law (see Joined Cases 6/69 and 11/69 Commission v France [1969] ECR 523, paragraph 17; Case 57/86 Greece v Commission [1988] ECR 2855, paragraph 9; Case 127/87 Commission v Greece [1988] ECR 3333, paragraph 7, and Case C-221/89 Factortame and Others [1991] ECR I-3905, paragraph 14).
26 Similarly, the Member States cannot treat national measures whose effect is to prevent or restrict the export of certain products as falling outside the scope of the common commercial policy on the ground that they have foreign and security objectives (see Case C-70/94 Werner v Germany [1995] ECR I-3189, paragraph 10).
28 It was indeed in the exercise of their national competence in matters of foreign and security policy that the Member States expressly decided to have recourse to a Community measure, which became the Sanctions Regulation, based on Article 113 of the Treaty.
29 As the preamble to the Sanctions Regulation shows, that regulation ensued from a decision of the Community and its Member States which was taken within the framework of political cooperation and which marked their willingness to have recourse to a Community instrument in order to implement in the Community certain aspects of the sanctions imposed on the Republics of Serbia and Montenegro by the United Nations Security Council.
40 It should be noted that Article 1 of the Export Regulation implements the principle of freedom to export at Community level and must therefore be interpreted as covering measures adopted by the Member States whose effect is equivalent to a quantitative restriction where their application may lead to an export prohibition (see Case C-70/94 Werner, cited above, paragraph 22, and Case C-83/94 Leifer and Others [1995] ECR I-3231, paragraph 23).
44 It is to be remembered in this regard that the concept of public security within the meaning of Article 11 of the Export Regulation covers both a Member State's internal security and its external security and that, consequently, the risk of a serious disturbance to foreign relations or to peaceful coexistence of nations may affect the external security of a Member State (see Case C-70/94 Werner, cited above, paragraphs 25 and 27, and Case C-83/94 Leifer and Others, cited above, paragraphs 26 and 28).
46 However, a Member State's recourse to Article 11 of the Export Regulation ceases to be justified if Community rules provide for the necessary measures to ensure protection of the interests enumerated in that article (see Case 72/83 Campus Oil and Others v Minister for Industry and Energy [1984] ECR 2727, paragraph 27, which concerned recourse to Article 36 of the EEC Treaty).
49 In that respect, the Member States must place trust in each other as far as concerns the checks made by the competent authorities of the Member State from which the products in question are dispatched (see Case 46/76 Bauhuis v Netherlands [1977] ECR 5, paragraph 22, and Case C-5/94 Hedley Lomas [1996] ECR I-2553, paragraph 19).
51 Finally, it should be borne in mind that, since Article 11 of the Export Regulation forms an exception to the principle of freedom to export laid down in Article 1 of the Export Regulation, it must, on any view, be interpreted in a way which does not extend its effects beyond what is necessary for the protection of the interests which it is intended to guarantee (see Case C-83/94 Leifer and Others, cited above, paragraph 33).
56 According to settled case-law, the purpose of the first paragraph of Article 234 of the Treaty is to make clear, in accordance with the principles of international law, that application of the Treaty does not affect the commitment of the Member State concerned to respect the rights of non-member States under an earlier agreement and to comply with its corresponding obligations (see Case C-324/93 Evans Medical and Macfarlan Smith [1995] ECR I-563, paragraph 27).
57 Consequently, in order to determine whether a Community rule may be deprived of effect by an earlier international agreement, it is necessary to examine whether that agreement imposes on the Member State concerned obligations whose performance may still be required by non-member States which are parties to it (see Case C-324/93 Evans Medical and Macfarlan Smith, cited above, paragraph 28).
58 However, in proceedings for a preliminary ruling, it is not for this Court but for the national court to determine which obligations are imposed by an earlier agreement on the Member State concerned and to ascertain their ambit so as to be able to determine the extent to which they thwart application of the provisions of Community law in question (see Case C-324/93 Evans Medical and Macfarlan Smith, cited above, paragraph 29).
59 So, the national court must examine whether, in the circumstances of the case before it, in which exports were approved by the United Nations Sanctions Committee and authorized by the competent authorities in the country of export, both the change of policy and the four decisions refusing to allow funds to be released are necessary in order to ensure that the Member State concerned peforms its obligations under the Charter of the United Nations and United Nations Security Council Resolution 757 (1992).
60 It should, in any event, be remembered that, when an international agreement allows, but does not require, a Member State to adopt a measure which appears to be contrary to Community law, the Member State must refrain from adopting such a measure (see Case C-324/93 Evans Medical and Macfarlan Smith, cited above, paragraph 32).
61 The answer to this question must therefore be that national measures which prove to be contrary to the common commercial policy provided for in Article 113 of the Treaty and to the Community regulations implementing that policy are justified under Article 234 of the Treaty only if they are necessary to ensure that the Member State concerned performs its obligations towards non-member countries under an agreement concluded prior to entry into force of the Treaty or prior to accession by that Member State.