Opel Austria GmbH v Council of Ministers of the European Communities (T-115/94)

• Jurisdiction: European Union
• Date: 22 January 1997
• Court: Court of First Instance

Court of First Instance of the European Communities (Fourth Chamber)

(Lenaerts, President; Lindh and Cooke, Judges)

Opel Austria GmbH

and

Council of the European Union

Treaties — Application — Obligation of good faith — Duty not to defeat object and purpose of treaty prior to its entry into force — Whether constituting a rule of customary international law — Vienna Convention on the Law of Treaties, 1969, Article 18 — Whether binding on the European Community — Whether preventing adoption by the European Community of a measure contrary to international agreement concluded by the Community which has not yet entered into force — Principle of legitimate expectations under Community law — Whether corollary of principle of good faith under international law

Treaties — Effect in municipal law — Agreements between the European Community and third States — Direct effect of provisions — Conditions — European Economic Area Agreement, 1991 (‘EEA Agreement’) — Article 10 — Whether containing unconditional and precise obligation

Treaties — Interpretation — EEA Agreement — Article 6 — Requirement that provisions identical in substance to EC Treaty provisions should be interpreted in conformity with previous case-law of the Court of Justice of the European Communities — Application to rules concerning free movement of goods — EC Treaty, Articles 9 and 12 — EEA Agreement, Article 10

International organizations — European Community — Legality of measures enacted by institutions — Application to Court of Justice of European Communities for annulment of regulation under Article 173 of EC Treaty — Whether legality to be assessed at date of adoption or date of entry into force of measure — Principle of legal certainty — Whether infringed by backdating of publication of regulation in official journal — The law of the European Community

Summary: The facts:—EC Council Regulation No 3697/93 introduced a duty of 4.9 per cent on certain gearboxes produced by General Motors Austria (‘the applicant’) and originating in Austria within the meaning of Protocol No 3 of the Free Trade Agreement between the European Community and Austria, 1972. This duty was imposed in order to counterbalance aid granted to the applicant by the Austrian Government and was intended to apply until the aid in question was ‘no longer having a distortive effect on competition and trade’. The applicant sought the annulment of the Regulation under Article 173 of the EC Treaty on the grounds, inter alia, that it infringed both Article 10 of the European Economic Area Agreement, 1991 (‘EEA Agreement’) and the obligation under public international law not to defeat the object and purpose of a treaty before its entry into force.

The applicant argued that the contested Regulation had entered into force after the entry into force of the EEA Agreement and was therefore required to be compatible with that Agreement. It was not disputed that, although the issue of the Official Journal in which the contested Regulation had been published was dated 31 December 1993, the actual date of publication was 11 January 1994 and this was therefore the date on which the Regulation had entered into force. The applicant contended that Article 10 of the EEA Agreement1 was to be construed, in accordance with Article 6 of the Agreement,2 in the light of the case-law of the Court of Justice regarding provisions of the EC Treaty which were identical in substance. Accordingly, Article 10 of the Agreement was to be interpreted, in the same way as the parallel provision in Article 12 of the EC Treaty, as meaning that customs duties were generally prohibited irrespective of the purpose for which they were introduced. By adopting the contested Regulation the Community had introduced a new customs duty which took effect after the EEA Agreement had entered into force.

The Council of the European Union argued that the decisive date for assessing the validity of the contested Regulation was the date of its adoption, which was before the EEA Agreement had entered into force, so that the Agreement was inapplicable to the present case. In the alternative, the Council argued that certain key differences between the EC Treaty and the EEA Agreement meant that Article 10 of the Agreement and Article 12 of the Treaty had to be interpreted differently. The Council concluded that the duty at issue was not a normal customs duty but rather a safeguarding measure which, as such, did not fall within the terms of Article 10 of the EEA Agreement.

Held:—Council Regulation No 3697/93 was annulled.

(1) In the context of an application for annulment under Article 173 of the EC Treaty, the legality of the contested measure was to be assessed on the basis of the facts and law as they stood at the time when the measure was adopted and not at the time when it entered into force (p. 322).

(2) The principle of good faith, codified by Article 18 of the first Vienna Convention on the Law of Treaties, 1969, was a rule of customary international law whose existence was recognized by the International Court of Justice and was therefore binding on the Community. That principle was the

corollary in public international law of the principle of the protection of legitimate expectations, which formed part of the Community legal order and on which any economic operator to whom a Community institution had given justified hopes could rely (pp. 323–4).

(3) In a situation where the Community had deposited its instrument of approval of an international agreement, and the date of the entry into force of that agreement was known, economic operators could rely on the principle of the protection of legitimate expectations in order to challenge the adoption, during the period preceding its entry into force, of any measure contrary to the provisions of that agreement which would have direct effect on them after it had entered into force. Consequently the applicant was entitled to require a review of the legality of the contested Regulation in the light of the provisions of the EEA Agreement which had direct effect after its entry into force (p. 324).

(4) According to the settled case-law of the Court of Justice, international agreements concluded in accordance with the conditions laid down in Article 228 of the EC Treaty were binding on the institutions and the Member States, formed an integral part of the Community legal order once they had entered into force, and could have direct effect if their provisions were unconditional and sufficiently precise. Article 10 of the EEA Agreement, which prohibited customs duties between the Contracting Parties on imports and exports and any charges having equivalent effect, and which provided that customs duties of a fiscal nature were likewise prohibited, laid down an unconditional and precise rule and therefore had direct effect (pp. 326–7).

(5) Article 6 of the EEA Agreement was to be interpreted as meaning that where a provision of that Agreement was identical in substance to corresponding rules of the EC Treaty and to acts adopted in application of that Treaty, it must be interpreted in conformity with the relevant rulings of the Court of Justice and the Court of First Instance given prior to the date of signature of the Agreement. This was the case with Article 10 of the EEA Agreement, which was identical in substance to Articles 12, 13, 16 and 17 of the EC Treaty (p. 330).

(6) Any pecuniary charge, however small and whatever its designation and mode of application, which was imposed unilaterally on domestic or foreign goods by reason of the fact that they crossed a frontier, and which was not a customs duty in the strict sense, constituted a charge having equivalent effect within the meaning of Articles 9 and 12 of the Treaty and Article 10 of the EEA Agreement, even if it was not imposed for the benefit of the State, and was not discriminatory or protective in effect (p. 334).

(7) The principle of legal certainty required that Community legislation should be certain, its application should be foreseeable by individuals and that every Community measure having legal effects should be clear, precise and brought to the notice of the person concerned in such a way that he could ascertain exactly the time at which the measure came into being and started to have legal effects. That requirement should be observed particularly strictly in the case of a measure liable to have financial consequences, so that those concerned could know precisely the extent of the obligations imposed upon them (p. 335).

(8) By adopting the contested Regulation on 20 December 1993, when it knew with certainty that the EEA Agreement would enter into force on 1 January 1994, the Council knowingly created a situation in which two contradictory rules of law would co-exist with regard to the importation of certain products into the Community. Such a regulation could not be regarded as Community legislation which was certain and its application foreseeable by those subject to it. Accordingly it infringed the principle of legal certainty (p. 335).

(9) There was a presumption that the date of publication of a Community measure was the date actually appearing on the relevant issue of the Official Journal. However, should evidence to the contrary be produced, regard was to be had to the date of actual publication. In deliberately backdating the issue of the Official Journal in which a Community measure was published, the Council infringed the principle of legal certainty, since by acting in that way it did not place the person concerned in a position to ascertain exactly the time at which the measure came into being and started to have legal effect (pp. 336–7).

The following is the text of the judgment of the Court:

Judgment

1 Relevant legislation and the facts of the case

This action seeks the annulment of Council Regulation (EC) No 3697/93 of 20 December 1993 withdrawing tariff concessions in accordance with Article 23(2) and...