Criminal proceedings against Peter Leifer, Reinhold Otto Krauskopf and Otto Holzer.
Date: 1995-10-17
10 So, national rules whose effect is to prevent or restrict the export of certain products fall within the scope of the common commercial policy within the meaning of Article 113 of the Treaty.
12 Since full responsibility for commercial policy was transferred to the Community by Article 113(1), national measures of commercial policy are therefore permissible only if they are specifically authorized by the Community (judgments in Case 41/76 Donckerwolke v Procureur de la République [1976] ECR 1921, paragraph 32, and Case 174/84 Bulk Oil v Sun International [1986] ECR 559, paragraph 31).
22 As the Court has emphasized in previous judgments, in interpreting a provision of Community law it is necessary to consider not only its wording but also the context in which it occurs and the objects of the rules of which it is part (Case 292/82 Merck v Hauptzollamt Hamburg-Jonas [1983] ECR 3781, paragraph 12, and Case 337/82 St Nikolaus Brennerei v Hauptzollamt Krefeld [1984] ECR 1051, paragraph 10).
23 A regulation based on Article 113 of the Treaty, whose objective is to implement the principle of free exportation at the Community level, as stated in Article 1 of the Export Regulation, cannot exclude from its scope measures adopted by the Member States whose effect is equivalent to a quantitative restriction where their application may lead, as in the present case, to an export prohibition.
26 The Court recalls here that in Case C-367/89 Richardt and "Les Accessoires Scientifiques" [1991] ECR I-4621, paragraph 22, it held that the concept of public security within the meaning of Article 36 of the Treaty covers both a Member State' s internal security and its external security. To interpret the concept more restrictively when it is used in Article 11 of the Export Regulation would be tantamount to authorizing the Member States to restrict the movement of goods within the internal market more than movement between themselves and non-member countries.
29 Although it is for the national court to decide whether Article 11, as interpreted by the Court of Justice, applies to the facts and measures which it is called on to appraise, it should, however, be observed that it is common ground that the exportation of goods capable of being used for military purposes to a country at war with another country may affect the public security of a Member State within the meaning referred to above (see the judgment in Case C-367/89 Richardt and "Les Accessoires Scientifiques", cited above, paragraph 22).
33 Since Article 11 forms an exception to the principle of the freedom to export goods laid down in Article 1 of the Export Regulation, it must 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.
35 However, depending on the circumstances, the competent national authorities have a certain degree of discretion when adopting measures which they consider to be necessary in order to guarantee public security in a Member State within the meaning indicated above. When the export of dual-use goods involves a threat to the public security of a Member State, those measures may include a requirement that an applicant for an export licence show that the goods are for civil use and also, having regard to specific circumstances such as inter alia the political situation in the country of destination, that a licence be refused if those goods are objectively suitable for military use.
40 It is for the national court to determine whether the criminal penalties applicable comply with the principle of proportionality, taking account of all the elements of each case, such as the nature of the goods capable of endangering the security of the state, the circumstances in which the breach was committed and whether or not the trader who has illegally exported the goods was acting in good or bad faith (see, to that effect, Case C-367/89 Richardt and "Les Accessoires Scientifiques", cited above, paragraph 25).
44 It is sufficient to state here that, by virtue of the second paragraph of Article 189 of the EC Treaty, a regulation is binding in its entirety and is directly applicable in all Member States. A provision such as Article 1 of the Export Regulation is therefore a direct source of rights and obligations for all those which it concerns, whether Member States or individuals who are parties to legal relationships governed by Community law (see the judgment in Case 106/77 Simmenthal [1978] ECR 629, paragraph 15).