European Commission v Moravia Gas Storage a.s.
Date: 2015-03-26
21. The Commission submits, moreover, that, by finding that the judgment in Meridionale Industria Salumi and Others  (212/80 to 217/80, EU:C:1981:270) could be applied to the present case and by holding that the procedural and substantive changes introduced by Article 36 of Directive 2009/73 formed an indivisible whole, the General Court erred in law.
27. MGS argues that the exception in the judgment in Meridionale Industria Salumi and Others  (212/80 to 217/80, EU:C:1981:270) can be applied to a situation in which an EU directive replaces a previous one, and that the General Court applied that exception correctly in the present case.
32. A new rule of law applies from the entry into force of the act introducing it, and, while it does not apply to legal situations that have arisen and become definitive under the old law, it does apply to their future effects, and to new legal situations. It is otherwise, subject to the principle of the non-retroactivity of legal acts, only if the new rule is accompanied by special provisions which specifically lay down its conditions of temporal application (judgment in Gemeinde Altrip and Others , C‑72/12, EU:C:2013:712, paragraph 22 and the case-law cited).
33. In particular, according to settled case-law, procedural rules are generally taken to apply from the date on which they enter into force (judgment in Commission  v Spain , C‑610/10, EU:C:2012:781, paragraph 45 and the case-law cited), as opposed to substantive rules, which are usually interpreted as applying to situations existing before their entry into force only in so far as it clearly follows from their terms, their objectives or their general scheme that such an effect must be given to them (see judgments in Meridionale Industria Salumi and Others , 212/80 to 217/80, EU:C:1981:270, paragraph 9; Molenbergnatie , C‑201/04, EU:C:2006:136, paragraph 31; and Commission  v Freistaat Sachsen , C‑334/07 P, EU:C:2008:709, paragraph 44).
34. The Court has also held that the provision which forms the legal basis of an act and empowers an EU institution to adopt the act must be in force on the date on which the act is adopted (see judgment in ThyssenKrupp  v Commission , C‑352/09 P, EU:C:2011:191, paragraph 88).
35. In the present case, the General Court held that the procedural and substantive changes introduced by Article 36 of Directive 2009/73 formed an indivisible whole, so that, in accordance with the judgment in Meridionale Industria Salumi and Others  (212/80 to 217/80, EU:C:1981:270), the entirety of those provisions could not be accorded retroactive effect, and it was consequently the rules of Directive 2003/55 that applied with respect both to the substance and to the procedure.
36. It should be recalled that, in paragraph 11 of that judgment, this Court, by way of exception to the rule of interpretation recalled in paragraph 33 above, held that EU legislation which was intended to establish a body of rules covering the post-clearance recovery of customs duties contained both procedural and substantive rules forming an indivisible whole, the individual provisions of which could not be considered in isolation with regard to their temporal effect. The reason for such an exception was the replacement of the existing national rules by new Community rules, with the aim of achieving a consistent and uniform application of the Community legislation thus established in the field of customs (see judgment in Molenbergnatie , C‑201/04, EU:C:2006:136, paragraph 32).
37. On this point, it must be stated that the situation at issue in Meridionale Industria Salumi and Others  (212/80 to 217/80, EU:C:1981:270) is not comparable to that at issue in the present case. Directive 2009/73 repeals and replaces previous EU legislation applicable in the same field, namely Directive 2003/55. Directive 2009/73 does not create a new set of rules but is a direct continuation of Directive 2003/55, and leaves unchanged the content of the substantive provisions of that directive, in particular the substantive provisions on the material conditions for the grant of an exemption in Article 22(1) and (2) of Directive 2003/55 and Article 36(1) and (2) of Directive 2009/73.
38. In those circumstances, as the Advocate General observes in points 48 and 49 of her Opinion, the fact that the procedural rules of Directive 2003/55 were amended by Directive 2009/73 is not in itself, contrary to the General Court’s conclusion in paragraph 36 of the judgment under appeal, capable of showing that the procedural and substantive provisions laid down in Article 36 of Directive 2009/73 are ‘indivisible’ within the meaning of the judgment in Meridionale Industria Salumi and Others  (212/80 to 217/80, EU:C:1981:270).
44. Thus, contrary to MGS’s submissions and as the Advocate General observes in points 66, 70 and 71 of her Opinion, such a decision or notification cannot be regarded as creating a ‘situation that has arisen and become definitive’ or an ‘existing situation’ for the purposes of the case-law cited in paragraphs 32 and 33 above.
46. With respect, in this connection, to the alleged breach of the principle of the protection of legitimate expectations relied on by MGS and the Czech Republic, it suffices to recall that according to settled case-law that principle cannot be extended to the point of generally preventing a new rule from applying to the future effects of situations which arose under the earlier rule (see judgments in Tomadini , 84/78, EU:C:1979:129, paragraph 21; Commission  v Freistaat Sachsen , C‑334/07 P, EU:C:2008:709, paragraph 43; and Stadt Papenburg , C‑226/08, EU:C:2010:10, paragraph 46).