Opel Austria GmbH contra Consejo de la Unión Europea.

• Jurisdiction: European Union
• Celex Number: 61994TJ0115
• ECLI: ECLI:EU:T:1997:3
• Date: 22 January 1997
• Docket Number: T-115/94
• Procedure Type: Recours en annulation - fondé
• Court: General Court (European Union)

Avis juridique important

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61994A0115

Judgment of the Court of First Instance (Fourth Chamber) of 22 January 1997. - Opel Austria GmbH v Council of the European Union. - Withdrawal of tariff concessions - Agreement on the European Economic Area - Obligation under public international law not to deprive a treaty of its object and purpose before its entry into force - Principle of protection of legitimate expectations - Principle of legal certainty - Publication in the Official Journal. - Case T-115/94.

European Court reports 1997 Page II-00039

Summary
Parties
Grounds
Decision on costs
Operative part

Keywords

1 Actions for annulment - Contested measure - Assessment of legality - Criteria

(EC Treaty, Art. 173)

2 Public international law - Principles - Good faith - Community law - Protection of legitimate expectations - Adoption of a Community measure contrary to an international agreement that has not yet entered into force but in respect of which the Community has lodged its instrument of approval

3 International agreements - Community agreements - Direct effect - Conditions - Article 10 of the Agreement creating the European Economic Area

(EC Treaty, Art. 228; EEA Agreement, Art. 10)

4 International agreements - Agreement creating the European Economic Area - Interpretation in conformity with the previous case-law of the Community judicature - Conditions - Interpretation of Article 10

(EC Treaty, Arts 12, 13, 16 and 17; EEA Agreement, Arts 6 and 10)

5 Free movement of goods - Customs duties - Charges having equivalent effect - Meaning

(EC Treaty, Arts 9 and 12; EEA Agreement, Art. 10)

6 Community law - Principles - Legal certainty - Community rules - Requirements of clarity and foreseeability

7 Community law - Principles - Legal certainty - Community rules - Requirements of clarity and foreseeability - Co-existence of two contradictory legal rules

8 Community law - Principles - Legal certainty - Community rules - Requirements of clarity and foreseeability - Acts of the institutions - Publication - Date

Summary

9 In the context of an application for annulment under Article 173 of the Treaty the legality of the contested measure must be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted and not at the time when it entered into force.

10 The principle of good faith, codified by Article 18 of the First Vienna Convention, is a rule of customary international law whose existence is recognized by the International Court of Justice and is therefore binding on the Community. That principle is the corollary in public international law of the principle of protection of legitimate expectations, which forms part of the Community legal order and on which any economic operator to whom an institution has given justified hopes may rely.

In a situation where the Community has deposited its instrument of approval of an international agreement and the date of entry into force of that agreement is known, economic operators may rely on the principle of protection of legitimate expectations in order to challenge the adoption by the institutions, during the period preceding its entry into force, of any measure contrary to the provisions of that agreement which will have direct effect on them after it has entered into force.

11 Agreements concluded in accordance with the conditions provided for in Article 228 of the EC Treaty are binding on the institutions and the Member States, form an integral part of the Community legal order once they have entered into force, and may have direct effect if their provisions are unconditional and sufficiently precise.

Article 10 of the Agreement creating the European Economic Area, which prohibits, as between the contracting parties, customs duties on imports and exports and any charges having equivalent effect, and which provides that, without prejudice to the arrangements set out in Protocol 5 to that agreement, customs duties of a fiscal nature are likewise prohibited, lays down an unconditional and precise rule, subject to a single exception which is itself unconditional and precise, and therefore has direct effect.

12 Article 6 of the Agreement creating the European Economic Area must be interpreted as meaning that where a provision of that agreement is identical in substance to corresponding rules of the EC and ECSC Treaties and to the acts adopted in application of those two treaties, it must be interpreted in conformity with the relevant rulings of the Court of Justice and of the Court of First Instance given prior to the date of signature of the agreement.

That is the case with Article 10 of the Agreement creating the European Economic Area, which is identical in substance to Articles 12, 13, 16 and 17 of the EC Treaty.

13 Any pecuniary charge, however small and whatever its designation and mode of application, which is imposed unilaterally on domestic or foreign goods by reason of the fact that they cross a frontier, and which is not a customs duty in the strict sense, constitutes a charge having equivalent effect within the meaning of Articles 9 and 12 of the Treaty and Article 10 of the Agreement creating the European Economic Area, even if it is not imposed for the benefit of the State, is not discriminatory or protective in effect or if the product on which the charge is imposed is not in competition with any domestic product.

14 The principle of legal certainty requires Community legislation to be certain and its application foreseeable by individuals and that every Community measure having legal effects must be clear and precise and must be brought to the notice of the person concerned in such a way that he can ascertain exactly the time at which the measure comes into being and starts to have legal effects. That requirement must be observed all the more strictly in the case of a measure liable to have financial consequences in order that those concerned may know precisely the extent of the obligations which it imposes on them.

15 A regulation which creates a situation in which two contradictory rules of law co-exist as to the duties imposed on the importation of certain products into the Community cannot be regarded as Community legislation which is certain and its application foreseeable by those subject to it; accordingly, it infringes the principle of legal certainty.

16 Although there is a presumption that the date of publication of a Community measure is the date actually appearing on each issue of the Official Journal, should evidence to the contrary be produced, regard must be had to the date of actual publication.

In back-dating the issue of the Official Journal in which a Community measure was published, the Council infringes the principle of legal certainty, since, by acting in that way, it does not place the person concerned in a position to ascertain exactly the time at which the measure comes into being and starts to have legal effects.

Parties

In Case T-115/94,

Opel Austria GmbH, formerly General Motors Austria GmbH, a company incorporated under the laws of Austria, whose registered office is in Vienna, Austria, represented by Dirk Vandermeersch, of the Brussels Bar, and Till Müller-Ibold, Rechtsanwalt, Frankfurt am Main, with an address for service in Luxembourg at the Chambers of Arendt and Medernach, 8-10 Rue Mathias Hardt,

applicant,

supported by

Republic of Austria, represented initially by Irène Janisch, Kommissärin, of the Ministry of Economic Affairs, subsequently by Beatrix Matousek-Horak, Rätin, of the same Ministry, acting as Agents, assisted by Christian Kremer, of the Luxembourg Bar, with an address for service in Luxembourg at the Austrian Embassy, 3 Rue des Bains,

intervener,

v

Council of the European Union, represented by Bjarne Hoff-Nielsen, Legal Adviser, acting as Agent, and Hans-Jürgen Rabe and Georg M. Berrisch, Rechtsanwälte, Hamburg and Brussels, with an address for service in Luxembourg at the office of Bruno Eynard, Manager of the Legal Directorate of the European Investment Bank, 100 Boulevard Konrad Adenauer,

defendant,

supported by

Commission of the European Communities, represented by John Forman, Legal Adviser, Eric White and Theofanis Christoforou, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

intervener,

APPLICATION for annulment of Council Regulation (EC) No 3697/93 of 20 December 1993 withdrawing tariff concessions in accordance with Article 23(2) and Article 27(3)(a) of the Free Trade Agreement between the Community and Austria (General Motors Austria) (OJ 1993 L 343, p. 1),

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES

(Fourth Chamber),

composed of: K. Lenaerts, President, P. Lindh and J.D. Cooke, Judges,

Registrar: H. Jung,

having regard to the written procedure and further to the hearing on 19 September 1996,

gives the following

Judgment

Grounds

Relevant legislation and the facts of the case

1 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 Article 27(3)(a) of the Free Trade Agreement between the Community and Austria (General Motors Austria) (OJ 1993 L 343, p. 1; hereinafter the `contested regulation'). That regulation was adopted on the basis of Article 113 of the EC Treaty and the provisions of Council Regulation (EEC) No 2837/72 of 19 December 1972 on the safeguard measures provided for in the Agreement between the European Economic Community and the Republic of Austria (OJ, English Special Edition 1972 (31 December), p. 96), as amended by Council Regulation (EEC) No 638/90 of 5 March 1990 (OJ 1990 L 74, p. 1).

2 Article 1 of the contested regulation provides as follows:

`A 4.9% duty is hereby introduced for F-15 car gearboxes produced by...