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Published online by Cambridge University Press: 27 October 2017
On 1 may 2004, 10 new Member States joined the European Union. This meant inter alia that, save for the express derogations provided for in the Act of Accession, the entire mass of Community secondary legislation became binding in the new Member States. This principle of the immediate effects of Community law in the new Member States was provided for in Article 2 AA:
From the date of Accession, the provisions of the original Treaties and the acts adopted by the institutions and the European Central Bank before Accession shall be binding on the new Member States and shall apply in those States under the conditions laid down in those Treaties and in this Act.
1 Hereinafter ‘AA’ or the ‘Act’.
2 Kaleda, SL ‘Immediate Effect of Community Law in the New Member States: Is there a Place for a Consistent Doctrine?’ (2004) 10 ELJ 102 CrossRefGoogle Scholar.
3 Act of 23 Sep 2003 concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded, OJ 2003 L 236/33 (emphasis added).
4 Hereinafter ‘OJ’.
5 See a press release of the Office for Official Publications of the EU of 22 Mar 2006 indicating that the publication of Community legislation in the 9 new languages had been completed, available at http://publications.europa.eu, press releases section.
6 Hereinafter ‘OPOCE’.
7 Some Member States administrative authorities and courts have formulated similar requests for disclosure and addressed them to the OPOCE. For instance, in reply to the query by the president of the Czech Supreme Administrative Court of 10 Nov 2005, the Director-General of the OPOCE indicated, with respect to the state of publication of the Czech Special Edition, that so far 171 of the total 219 volumes had been published. It would appear that the majority of the then published volumes were published in the second half of 2004 (letter from director-general of the OPOCE, Mr TL Cranfield, to Mr Josef Baxa, president of the Supreme Administrative Court, of 28 Nov 2005, DIRGEN(05) D/15074, Ref: TLC/ma—d15074 j.baxa).
8 This is significant for a number of frequently applied pieces of Community legislation, such as the Common Custom Tariff, the Sixth VAT Directive etc.
9 Commission Regulation 2454/93/EC of 2 July 1993, laying down provisions for the implementation of Council Regulation 2913/92/EC establishing the Community Customs Code, OJ 1993 L 253/1.
10 Decision of 20 July 2005, case No I SA/Bd 275/05, unpublished. See a disapproving case note by a Polish Supreme Court judge: Wróbel, A ‘Glosa do wyroku Wojewódzkiego Sądu Administracyjnego w Bydgoszczy z 20.07.2005 r. (SA/Bd 275/05), wyrok niepublikowany’ (2006) styczen Europejski Przeglad Sadowy 48. For the ensuing debate in Poland see eg Wierczyński, G ‘Konsekwencje braku urzędowego ogłoszenia aktów prawa wspólnotowego w języku polskim’ (2007) styczeń Europejski Przegląd Sądowy 51-2 and Błędzki, P ‘Praktyczne problemy związane z publikacją prawa wspólnotowego w Polsce’ (2007) styczeń Europejski Przegląd Sądowy 53 Google Scholar.
11 Judgment No 3-3-1-66-05 of the Administrative Law Chamber of the Supreme Court of 10 May 2006, summary of the case available at http://www.juradmin.eu/fr/jurisprudence/jurifast/ jurifast_fr.php.
12 Case C-161/06, Case notice published in OJ 2006 C 121/9.
13 Council Decision 2004/281/EC of 22 March 2004 adapting the Act concerning the conditions of Accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded, following the reform of the Common Agricultural Policy, OJ 2004 L 93/1.
14 Order of the ECJ of 15 Nov 2006 in Case C–273/04, The Polish Republic and Others v Council and Commission, para 5. The decision in the case on merits is still pending.
15 EC primary law and the case law of the Community courts are outside the scope of this paper. However, with respect to primary law, the issues addressed in this paper do not arise. Primary law (the Treaties) is by its nature international law treaties. If primary law is published in the OJ (with regard to the treaties typically in a consolidated version), it is only in the ‘C’ series as ‘information’. Its publication in the OJ is not a condition for its validity or entry into force. On the other hand, as all the Member States are members of the UN, the Treaties and their modifications are to be notified to the Secretary General of the UN (see Art 102(1) of the UN Charter). The situation is slightly different from the point of view of domestic constitutional systems, where publication of an international treaty may be a precondition for its (direct) domestic application. The founding treaties and all primary law have however been, at least with respect to Czech law, published in one ‘mammoth’ volume (of 7,792 pages) of the Czech Collection of International Treaties (No 44/2004 Sb. m. s. of 28 Apr 2004).
16 Regulation No 1 determining the languages to be used by the European Economic Community, JO 1958 17/390, English special edition: Series I, Ch 1952–8, 59.
17 It is questionable how much weight is to be given to the distinction between the series of the OJ, eg the ‘L’, ‘C’, ‘C E’ and ‘S’ (or ‘TED’) series. Can legislation be validly published only in the ‘L’ series? Assume, for instance, that a regulation had mistakenly been published in the ‘C’ series and not in the ‘L’ series of the OJ. Would that be an infringement of an essential procedural requirement, leading to the annulment of the regulation under Art 230 EC? Or would that even amount to the automatic nullity of the regulation?
18 JO 1958 17/ 419.
19 Decision 2000/459/EC of the European Parliament, the Council, the Commission, the Court of Justice, the Court of Auditors, the Economic and Social Committee and the Committee of the Regions of 20 July 2000 on the organisation and operation of the Office for Official Publications of the European Communities, OJ 2000 L 183/12.
20 Eg Austria, Belgium, Estonia or Cyprus. See ‘Legal gazettes in Europe’, available at http://forum.europa.eu.int, which contains an overview of the manner of law publication in the various Member States.
21 Eg France, Slovenia, United Kingdom. See the information provided at website above n 20.
22 Most notably via the EUR-Lex site, available at http://eur-lex.europa.eu/en/index.htm.
23 In EC law, like other legal systems which have not yet adopted rules providing for the authenticity of the electronic version of their official journals/bulletins, there is a considerable gap between formal requirements of publication of legal norms and the genuine means of cognition of the content of a legal norm by its day-to-day users. To put it more bluntly, the vast majority of practitioners applying EC law on a daily basis have never seen a printed version of the OJ. However, unless one is ready to re-examine the epistemological foundations of the modern (positivist) law, this empirical observation cannot invalidate a clear normative answer to what the source of law is.
24 With the exception of the ‘correspondence provision’ in Art 21(3) EC, which seems to leave the ECJ quite unsympathetic as a tool of deriving broader language principles from primary law: see Case C–361/01 P, Kik v Office for Harmonization in the Internal Market (Trade Marks and Designs) (OHIM) [2003] ECR I–8283, case note Nic Shuibhne, N (2004) 41 CML Rev 1093 and the discussion of broader implications of this decision in Creech, RL Law and Language in the European Union (Groningen, Europa Law Publishing, 2005) 32-8Google Scholar.
25 Above n 16.
26 Council Regulation 930/2004/EC of 1 May 2004 on temporary derogation measures relating to the drafting in Maltese of the acts of the institutions of the European Union. OJ 2004 L 169/1 (1 May 2004) and Council Regulation 920/2005/EC of 13 June 2005 amending Regulation No 1 of 15 April 1958 determining the language to be used by the European Economic Community and Regulation No 1 of 15 April 1958 determining the language to be used by the European Atomic Energy Community and introducing temporary derogation measures from those Regulations, OJ 2005 L 156/3 (18 June 2005).
27 On this issue see below, point 4.
28 See Case 7/76, IRCA v Amministrazione delle Finanze dello Stato [1976] ECR 1213 and the Opinion of AG Warner in that case (at 1234 and seq.). Generally see Lamoureux, F ‘The Retroactivity of Community Acts in the Case Law of the Court of Justice’ (1983) 20 CMLRev 269 Google Scholar; Letemendia, M ‘La retroactivité en droit communautaire. Comparaison avec le droit anglais’ [1977] Cahiers de droit européen 518 Google Scholar.
29 Case 98/78, A Racke v Hauptzollamt Mainz [1979] ECR 69, para 15. See also Case 88/76, Société pour l’exportation des sucres SA v the Commission [1977] ECR 70.
30 Case 98/78, A Racke v Hauptzollamt Mainz [1979] ECR 69, paras 15 and 16.
31 Ibid, para 15.
32 See a comprehensive study on this subject in Herzog, J-B and Vlachos, G La promulgation, la signature et la publication des textes législatifs en droit comparé (Paris, Les Editions de l’Epargne, 1961)Google Scholar.
33 Case C–108/01, Consorzio del Prosciutto di Parma and others v Asda Stres Ltd and Hygrade Foods Ltd [2003] ECR I–5121.
34 Council Regulation No 2081/92/EC of 14 July 1992 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs, OJ 1992 L 208/1.
35 See, however, the opposing view of the AG Alber. In quite a sweeping opinion, the AG held, to a large extent relying upon the CFI’s decision in Case T–120/99, Kik v OHIM [2001] ECR II–2235, that there is no principle in EC law which would require all Community legal acts to be published in every official language. The AG held that publication on the national level was sufficient and that a major undertaking like Asda Stores was able (and expected) to procure for itself a translation of the Italian official gazette or request one directly from the Commission.
36 Case C–108/01, Consorzio del Prosciutto di Parma and others v Asda Stores Ltd and Hygrade Foods Ltd [2003] ECR I–5121, paras 89, 95, 96 and 99.
37 See also other language versions: ‘kann den Wirtschaftsteilnehmern jedoch nicht entgegengehalten werden’ (De),’ ‘non è opponibile agli operatori economici’ (It), ‘no puede oponerse a los operadores económicos’ (Es).
38 Case T–115/94, Opel Austria GmbH v Council [1997] ECR II–39.
39 Ibid, para 131, where the Court of First Instance clearly states that ‘the Council deliberately backdated the issue of the Official Journal in which the contested regulation was published’ (emphasis added).
40 Ibid, para 130.
41 Schermers and Waelbroeck ( Schermers, HG and Waelbroeck, DF Judicial Protection in the European Union 6th edn, (The Hague, Kluwer Law International, 2001), 393 Google Scholar) claim that this is especially true of the legislation which needs to be published (or needs to appear to be published) within a given calendar year. Volumes of the OJ nominally bearing the date of 31 December are in reality often published months later.
42 Also of importance is Art 53 AA, which creates an en bloc presumption of notification, upon the Accession, for all the Directives and Decisions addressed to the old Member States and adopted before 1 May 2004. This means, by implication, that the new Member States accepted, under international law, notification (and thus also assumed the duty to implement) in other than their official languages for all the Directives and Decisions (but not Regulations and other sources of EC law).
43 See eg Art 2 of the Act of Accession for the 1973, the 1979 or the 1995 enlargement.
44 The exact wording of Art 58 AA refers to the ‘drafting’ of the legislative texts in the languages of the new Member States, not to their translation (‘texts of the acts … drawn up’, ‘les textes des actes … qui ont été établis’, ‘die abgefassten Rechtsakte’). However, for all practical purposes, there is no doubt that the drafting activity was no (parallel) ‘co-drafting’ of legislation in different languages, but a simple subsequent translation of already existing text(s) into the languages of the new Member States (a distinction between the two types of drafting made by Doczekalska, A Production and Application of Multilingual Law: The Principle of Equality of Authentic Texts and the Value of Subsequent Translation, not yet published). Subsequent use of the notion of ‘translation’ of EC legislation in this paper thus stands for the ‘drafting’ in the languages of the new Member States in the meaning of Art 58 AA.
45 Art 1 of Decision 2000/459/EC, above n 19.
46 Ibid, Arts 4 and 5(2).
47 The greatest part of the translation work was done on the national level: ie within specialised translation agencies set up by the governments. Some of the work was also contracted out. Translation drafts were subsequently sent back to the Linguistic Service of the Council, which acted as the final revision and unification body for translation. This could mean that, if, by contractual or another institutional type of agreement, a Member State was delayed in translating the necessary legislation and sending it to the Council, the EC institutions (the Council) might try to raise this as a type of defence against liability claims. On the amount of translation and the activity done on the national level in the case of the Czech Republic see, eg, Palivec, J ‘Kvantifikační analýza procesu aproximace práva České republiky s právem Evropských společenství’ [Quantitative Analysis of the process of approximation of the Czech law with EC law] [2005] Právník 29 Google Scholar.
48 See the discussion below, in section VI.
49 Or, as Sir Humphrey Appleby might have put it: ‘the precise correlation between the information … communicated and the facts insofar as they can be determined and demonstrated is such as to cause epistemological problems of sufficient magnitude to lay upon the logical and semantic resources of the English language a heavier burden than they can reasonably be expected to bear’: Yes Prime Minister, Series 2, Episode 8—‘The Tangled Web’, first aired on the BBC 28 Jan 1988.
50 There is a clear and gradual delay in the schedule of publications: shortly after the Accession, the official position taken by the Commission was that all the legislation would be published in the languages of the new Member States by the end of 2004. See, eg, a letter of 21 June 2004 by the president of the European Commission, Mr. Romano Prodi, to Ms Vineta Muižniece, Minister of Justice of the Republic of Latvia, in reply to the minister’s query about the status of publication of the acquis in Latvian, PRODI(2004)A/3397. In a later note by the Director-General of the OPOCE of 8 July 2004 to the Steering Committee of the OPOCE (TLC/vh/gpa DIRGEN(04)D 9677), it was already admitted that publication of all the legislation before the end of 2004 might be possible in only 3 languages. The publication in all languages was in fact finished in March 2006: see the press release of the OPOCE, above n 5.
51 Speaking only of the bare text of the legislation, not about the research environment: it is symptomatic that the Commission Notice in the new official languages did not refer to the language versions of the EUR-Lex searching environment in the new languages (these did not exist), but to the French one, available at http://europa.eu.int/eur-lex/fr/accession.html. Leaving aside the question whether or not there was anything to be found, a Hungarian person, for instance, would have quite some difficulty in navigating in a purely French database environment, if she did not speak French.
52 Every document contained an indication of when it was ‘first delivered’ and ‘last uploaded’, and they were being continuously updated, ie the content of the database was being changed.
53 Including, inter alia, a secure, ‘locked’ and signed format of the legislation (typically in the Adobe Acrobat signed ‘portable document format’—pdf), which is downloadable and cannot be altered and other tools ensuring verification of the content of the legal norm. See, eg, the requirements for electronic publication of laws in Austria (Kundmachungsreformgesetz [2004] BGBl. Teil I, Nr. 100 (Ausgegeben am 21. November 2003) 1476). Generally see Walker, R ‘Die amtliche elektronische Verkündung von Gesetzen’ [2005] JurPC Web-Dok . 155/2005, Abs. 1-62 or Hietanen, A ‘Electronic Publication of Legislation: Methods of Authentification of the Texts’ and Svoboda, WR ‘Current State of Publication of Legislation in the EU Member States’, both available at http://forum.europa.eu.int/irc/opoce/ojf/info/data/prod/html/act12. htm.
54 Case 160/84, Oryzomyli Kavallas OEE and Others v Commission [1986] ECR 1643.
55 As set out in Art 13 of Council Regulation 1430/79 of 2 July 1979 on the repayment or remission of import or export duties (OJ 1979 L 175/1), which made the repayment conditional upon the fact that they ‘result from special circumstances in which no negligence or deception may be attributed to the person concerned’.
56 Above n 54, at para 12 (at 1647) of the decision; a detailed account of the facts is provided in the Opinion of AG Mischo (at 1636).
57 Ibid, AG Mischo’s Opinion, at 1636.
58 Ibid, at 1639 and 1640.
59 Ibid, para 16 (at 1648).
60 In the sense of the German concept of ‘Nichtigkeit’ or the French ‘nul et non-avenu’: ie that the act could never validly have come into existence and it does not produce any legal effects whatsoever. See, with respect to absolute nullity in Community law, Joined Cases 1 and 14/57, Société des Usines à Tubes de la Sarre v High Authority [1957] ECR 105; Case 15/85, Consorzio Cooperative d’ Abruzzo v Commission [1987] ECR 1005 and Joined Cases T–79, 84, 85, 86, 89, 91, 92, 94, 96, 98, 102 and 104/89, BASF AG and Others v Commission [1992] ECR II–315. Generally see Annacker, C ‘Die Inexistenz als Angriffs- und Verteidigungsmittel vor dem EuGH und dem EuG’ (1995) 22 EuZW 755 Google Scholar, and Schärf, W-G ‘Zur Frage der Inexistenz von Rechtsakten im Gemeinschaftsrecht’ (2004) 11 EuZW 333-4Google Scholar.
61 Art 6(2) TEU, confirming established case law of the ECJ.
62 Generally see Schwarze, J Droit administratif européen (Brussels, Bruylant, 1994), ii, 1170–1232 Google Scholar (also available in English: European Administrative Law 2nd edn (London, Sweet & Maxwell, 2006)); Schermers, HG and Waelbroeck, DF, above n 41, 64–83; Tridimas, T The General Principles of EC Law 2nd edn (Oxford, Oxford University Press, 2007) ch 6Google Scholar.
63 Above n 10.
64 Above n 11.
65 See above, text to n 24.
66 Art 314 EC as amended by Art 61 AA.
67 Such as, for instance, Art 115 of Council Regulation (EC) 40/94 of 20 Dec 1993 on the Community trade mark, OJ 1994 L 11/1, which limits languages of the Office for Harmonisation in the Internal Market to English, French, German, Italian and Spanish.
68 It may perhaps be somewhat surprising to a modern legal discourse that is centred around the individual rights and their protection, but at the heart of the creation of official (state) gazettes and official journals published exclusively by the state authority lie the interests of the absolutist, though enlightened, monarch or state: well-informed subjects are much better in complying with their duties towards the state and the administration can work more efficiently. See further an excellent historical survey in Wittling, A Die Publikation der Rechtsnormen einschliesslich der Verwaltungsvorschriften (Baden-Baden, Nomos Verlag, 1990), pt I, 11–113 Google Scholar.
69 See, eg, Case 70/83, Gerda Kloppenburg v Finanzamt Leer [1984] ECR 1075, para 11 or Case 169/80, Administration des Douanes v SA Gondrand Frères and SA Garancini [1981] ECR 1931, para 17.
70 Case 294/83, Parti écologiste ‘Les Verts’ v European Parliament [1986] ECR 1339, para 23.
71 The last (and perhaps the only) comprehensive study dealing with this topic in a comparative prospective remains Herzog, J-B and Vlachos, G, above n 32. For a historical overview of publication of law in Europe see, eg, Wittling, A, above, n 68; Holzborn, T Die Geschichte der Gesetzespublikation—insbesondere von den Anfängen des Buchdrucks um 1450 bis zur Einführung von Gesetzesblättern im 19. Jahrhundert (dissertation, Rheinischen Friedrich-Wilhelms-Universität, Bonn, 2003)Google Scholar.
72 Which can be said to be accepted in EC law as well: see Case C–370/96, Covita AVE v Greece [1998] ECR I–7711 and Case 161/88, Binder v Hauptzollamt Bad Reichenhall [1989] ECR 2415.
73 The origin of the adage is said to be the distinction between errors in law and errors in facts. M. Dereux makes the reference to Ulpianus ‘Ignorantia enim excusatur non juris, sed facti’ (L. 11, fr. 4, D.): see Dereux, MG ‘Etude critique de l’adage ‘‘Nul n’est censé ignorer la loi”’ (1907) VI Revue de droit civil 513 Google Scholar, at 517 n 1. See also Wittling, A, above, n 68, at 28 and 29.
74 In some jurisdictions, there is a limited exception to this strict requirement of knowledge in criminal cases, provided that the culprit genuinely had no opportunity to acquaint him/herself with the content of the criminal rule: see § 17 of the German Criminal Code (Strafgesetzbuch, consolidated version published in [1998] I BGBl 3322) which refers to ‘Verbotsirrtum’ in the following way: ‘Fehlt dem Täter bei Begehung der Tat die Einsicht, Unrecht zu tun, so handelt er ohne Schuld, wenn er diesen Irrtum nicht vermeiden konnte. Konnte der Täter den Irrtum vermeiden, so kann die Strafe nach § 49 Abs. 1 gemildert werden’ [If upon commission of the act the perpetrator lacks the appreciation that he is doing something wrong, he acts without guilt if he was unable to avoid this mistake. If the perpetrator could have avoided the mistake, the punishment may be mitigated pursuant to Section 49 subsection 1]. Similarly also in § 9 of the Austrian Criminal Code or § 20 of the Swiss Criminal Code, which for the same situation of the lack of the knowledge about the content of the law use the notion of ‘Rechtsirrtum’. I am indebted to Jens Scherpe for drawing my attention to the exceptions of Verbotsirrtum in this context.
75 See Wittling, A, above n 71, at 29 or Holzborn, T, above n 71, at 149.
76 The applicable law, which requires only Royal Assent as the condition for validity of legislation, but not its publication in any sort of official journal, goes back to the ancient case law of R. v Bishop of Chichester (1365), R v Jefferies (1721) 1 Stra 446 and Price v Hollis (1813) 1 M & S 105: quoted from Brown, N ‘La promulgation, la Signature et la Publication des Textes Législatifs en Grande-Bretagne’ in Herzog, J-B and Vlachos, G, above n 32, 97.
77 A normative act, typically an Act of Parliament (la loi; das Gesetz).
78 Belgium is also under the distinct French influence: see de Visscher, P ‘La Promulgation, la Signature et la Publication des Lois en Droit Belge’ in: Herzog, J-B and Vlachos, G, above n 32, 41; Delpérée, F, Le droit constitutionnel de la Belgique (Brussels, Bruylant, 2000) 802-4Google Scholar.
79 Puget, H and Séché, J-C La promulgation et la publication des actes législatifs en droit français, quoted in Herzog, J-B and Vlachos, G, above n 32, 71; Terré, F Introduction générale au droit 5th edn (Paris, Dalloz, 2000) 442-50Google Scholar; Starck, B, Roland, H and Boyer, L Introduction au droit 5th edn (Paris, Litec, 2000) 194-9Google Scholar; Lavroff, DG Le droit constitutionnel de la Ve République 3rd edn (Paris, Dalloz, 1999) 804-8Google Scholar.
80 Art 82 of the Fundamental Law (Grundgesetz). For some of the standard commentaries see, eg, Von Münch, I and Kunig, P (eds), Grundgesetz—Kommentar, Band 3 (Art 70 bis Art 146 und Gesamtregister) 3. Auflage (Munich, CH Beck'sche Verlagsbuchhandlung, 1996) 313–27; Maunz, T and Dürig, G (eds) Grundgesetz—Kommentar Band V (Art 70–99) (Munich, Verlag CH Beck, 1998), point 82, 1–6 Google Scholar; Dreir, H (ed), Grundgesetz Kommentar, Band II (Artikel 20–82) (Tübingen, Mohr Siebeck, 1998) 1570-85Google Scholar; Schmidt-Bleibtreu, B and Klein, F (eds), Kommentar zum Grundgesetz 10th edn (Munich, Luchterland, 2004) 1536-47Google Scholar and the case law quoted therein. For a detailed study see Hallier, H-J ‘La Promulgation et la Publication des Lois et Règlements dans la République Fédérale d'Allemagne’ in Herzog, J-B and Vlachos, G, above n 32, 13–39 Google Scholar and Wittling, A above n 71, pt II (114–299).
81 Wittling, A, above n 71, at 90 ff.
82 In this perspective, the current practice of the Community institutions is rather perturbing: see the pending Case C–345/06, Heinrich (Reference for a preliminary ruling from the Unabhängiger Verwaltungssenat im Land Niederösterreich lodged on 10 Aug 2006), OJ 2006 C 281/30, from which it appears that as a part of the EU participation in the world-wide ‘war against terrorism’, the EU has also started adopting secret regulations, which are not being published in the OJ.
83 Art 52(1) of the Constitution of the Czech Republic in connection with § 3(1) zák. č. 309/1999 Sb., zákon o Sbírce zákonů a Sbírce mezinárodních smluv, ve znění pozdějších předpisů [law 309/1999 Coll., on Collection of Laws and Collection of International Treaties, as amended].
84 Art 87(4) of the Constitution of the Slovak Republic (constitutional law No 460/1992 Coll., as amended, consolidated version in no 135/2001 Z.z.).
85 Art 88(1) of the Constitution of the Polish Republic in connection with Art 2(1) Ustawa z dnia 20 lipca 2000 r. o ogłaszaniu aktów normatywnych i niektórych innych aktów prawnych (Dziennik Ustaw z 2005 Nr 190 poz. 1606) (Law on the publication of normative acts and some other legal acts, (2005) Collection of Laws, vol. 190, no. 1606).
86 It is here where the French inspiration of legal consequences of unpublished acts (‘n’est pas opposable aux opérateurs économiques’), adopted by the ECJ in Case C–108/01, Consorzio del Prosciutto di Parma and others v Asda Stres Ltd and Hygrade Foods Ltd [2003] ECR I–5121, becomes evident (see the discussion of the case above, text to nn 33–37).
87 See above, text to nn 33–37.
88 See, eg, the effects that a trade mark registration with the Office of Harmonisation in the Internal Market, done in only 5 languages, has on the rights and duties of other economic operators and the discussion of balancing of the competing interests in Case C–361/01 P, Kik v OHIM [2003] ECR I–8283, paras 88–94.
89 Or, after the last accession, into at least 9 clusters (the 15 ‘old’ Member States and Malta and Cyprus on the one hand and the remaining eight Member States with the eight new official languages on the other).
90 Moreover, two of the current ‘official and working’ languages of the EU, Gaelic and Maltese, provided for in primary law, are, on the basis of temporal derogation contained in secondary law (see above n 26), in reality currently not used as official languages for the purposes of the publication of legislation. This does not, however, seem to affect the validity of Community law on the territory of Malta and Ireland.
91 Analysed above, in the text to nn 29–32, para 15 of the judgment.
92 Especially the above discussed Case 160/84, Oryzomyli Kavallas OEE and Others v Commission [1986] ECR 1643 and Case C–108/01 Consorzio del Prosciutto di Parma and others v Asda Stres Ltd and Hygrade Foods Ltd [2003] ECR I–5121.
93 See above, text to nn 54–59.
94 Typically two months following the publication or notification of the measure: see Art 230 EC or, for instance in Czech law, Art 72(1) zák. č. 150/2002 Sb., soudní řád správní, ve znění novel (law no 150/2002 Coll., the Code of Administrative Justice, as amended).
95 For instance, imagine that company A delivered certain goods to company B in June 2004 in accordance with domestic law but not with an untranslated and unpublished Community Regulation. In 2009, company A sues company B for the payment of the outstanding purchase price, but company B refuses to pay, stating that the goods did not comply with Community standards, which were applicable from the date of the accession (1 May 2004).
96 Art 249 EC. See as a typical example of horizontal application, the above-described Case C–108/01, Consorzio del Prosciutto di Parma and others v Asda Stres Ltd and Hygrade Foods Ltd [2003] ECR I–5121. Another notable example of ‘private’ horizontal enforcement of regulations is Case C–253/00, Antonio Muñoz y Cia SA and Superior Fruiticola SA v Frumar Ltd and Redbridge Produce Marketing Ltd [2002] ECR I–7289.
97 In Hohfeldian terms, the granting of a privilege to party A correlates with the absence of right (no-right) of party B. See Hohfeld, WN Fundamental Legal Conceptions as Applied in Judicial Reasoning (New Haven and London, Yale University Press, 1919) 36 Google Scholar.
98 See, eg, Case C–194/94, CIA Security International SA v Signalson SA and Securitel SPRL [1996] ECR I–2201; Case C–443/98, Unilever Italia SpA v Central Food SpA [2000] ECR I–7535; Case C–159/00, Sapod Audic [2002] ECR I–5031. Generally on this issue see Weatherill, S ‘Breach of Directives and Breach of Contract’ (2001) 26 EL Rev 177 Google Scholar; Lackhoff, K and Nyssens, K ‘Direct Effect of Directives in Triangular Situations’ (1998) 23 EL Rev 397 Google Scholar; Karase, HD and Beljin, S ‘Grenzen der Privatbelastung durch unmittelbar wirkende Richtlinien’ (2004) 5 Europarecht 714 Google Scholar.
99 See, eg, Case 148/78, Ratti [1979] ECR 1629 or Case 41/74, Van Duyn [1974] ECR 1337 (Directives) and Case 9/70, Grad v Finanzamt Traunstein [1970] ECR 825 (Decisions).
100 A different question would be the extent of the obligation to consult other language versions for the authorities of the Member States, especially the courts. There the ‘clarity’ test for the purpose of establishing whether or not a question of Community law is self-evident was set out in the CILFIT ruling. Its application would mean that the national court must compare (presumably all?) the different language versions: Case 283/81, Srl CILFIT and others and Lanificio di Gavardo SpA v Ministero della Sanità [1982] ECR 3415, para 18. However, this is Community fiction and not reality: Member States’ courts (of last instance) only very rarely engage in a comparative linguistic exercise. It is noteworthy, however, that the ECJ itself also does so only rarely: see a surprisingly frank remark by AG Jacobs in Case C–338/95, Wiener v Hauptzollamt Emmerich [1997] ECR I–6518, para 65 of the opinion, in which he noted that it is somehow exaggerated to require from Member States’ courts something that even the ECJ does not normally do.
101 As is evidenced by the tens of Art 226 EC proceedings launched by the Commission against the new Member States and the first judgments already delivered against the Czech Republic (ECJ judgments of 18 Jan 2007 in Case C–203/06, Commission v Czech Republic, not yet reported, and in Case C–204/06, Commission v Czech Republic, not yet reported) and Slovakia (ECJ judgment of 8 Feb 2007 in Case C–114/06, Commission v Slovakia, not yet reported).
102 However, if one accepts that even untranslated Directives and Decision are capable of indirect effect, which is very likely, then a right not granted on the basis of direct effect might return through the back door of indirect effect and the ‘conforming’ interpretation of national legislation, as the line between direct and indirect effect of Directives can be very thin: see, eg, Case C–106/89, Marleasing SA v La Comercial Internacionale de Alimentación SA [1990] ECR I–4135 and Case C–168/95, Criminal proceedings against Luciano Arcaro [1996] ECR I–04705. See, generally, Prechal, S Directives in EC Law 2nd edn (Oxford, Oxford University Press 2005)Google Scholar, sects 8.5 and 9.5.
103 In the form of primary responsibility to ‘draft’ and to ‘publish’ in the languages of the new Member States. As has already been addressed above, most of the translation work has been ‘contracted out’ to specialised (governmental) translation centres in the new Member States. Possible delays or failures to translate and submit draft translations to the Council for final revision and publishing on time on the part of some of the Member States might be relevant for allocating liability between the Communities and the Member State in question or used as a defence in the event of regressive claims against the Communities by a Member State. They do not, however, alter the conclusion that the primary responsibility for timely publication rests with the European Communities.
104 See the general conditions for extra-contractual liability of the Member States and Community institutions, which should now be, at least in theory, the same: Joined Cases C–46 and 48/93, Brasserie du Pêcheur SA v Bundesrepublik Deutschland and The Queen v Secretary of State for Transport, ex parte Factortame (III) [1996] ECR I–1131, para 42 and Case C–352/98, Laboratoires pharmaceutiques Bergaderm SA and Jean-Jacques Goupil v Commission [2000] ECR I–5291, para 41.
105 The more detailed issue whether all the branches of government are bound by untranslated EC law to the same extent will not be addressed here. For a discussion on this point see: Procházka, R ‘K publicite prameňov komunitárneho práva’ [On Publicity of Sources of Community Law]. (2004) 56 Justičná revue 856 Google Scholar. The en bloc assumed duty to transpose Directives and Decisions in Art 53 AA from other language versions would mean that at least the Member States’ legislatures are bound to apply (transpose) Directives and Decisions unpublished in the languages of the new Member States.
106 Generally see Temple Lang, J ‘The Duties of National Authorities under Community Constitutional Law’ (1998) 23 EL Rev 109 Google Scholar; Temple Lang, J ‘The Duties of Cooperation of National Authorities and Courts under Article 10 E.C.: Two More Reflections’ (2001) 26 EL Rev 84 Google Scholar; Constantinesco, L ‘L'article 5 CEE, de la bonne foi à la loyauté communautaire’ in Capotorti, F, Ehlermann, C-D, Frowein, J, Jacobs, F, Joliet, R, Koopmans, T and Kovar, J (eds) Du droit international au droit de l'integration; Liber Amicorum Pierre Pescatore (Baden-Baden, Nomos Verlag, 1987) 97 Google Scholarff.
107 Especially directly applicable Regulations. As outlined above, the situation in respect of Directives and Decisions is different.
108 There were academic suggestions soon after the Accession (even from such high-ranking civil servants as the Slovak Agent representing the Slovak Republic before the ECJ) that the Member State could sue the European Communities for failure to translated and publish as a failure to act under Art 232 EC. These suggestions were not pursued: see Prochazka, R, above n 105, 864.
109 It has, for instance, been established, in the proceedings before the Czech regional administrative court (Krajský soud v Ostravě) that eventually submitted the reference for preliminary ruling in Case C–161/06, Skoma-Lux, s.r.o., that the Czech customs administration applied and enforced the Common Customs Tariff and related EC law on the basis of working translations provided by the Ministry of Finance.
110 The ECJ’s current position appears to be that priority is to be given to a claim for damages before a court of a Member State and only subsequently claims may be brought before the Community Courts in Luxembourg: see Joined Cases 5, 7, 13–24/66, Kampffmeyer [1967] ECR 266 and Case 101/78, Granaria [1979] ECR 637. Generally see Rengeling, H-W, Middeke, A and Gellermann, M Handbuch des Rechtsschutzes in der Europäischen Union 2nd edn (Munich, C H Beck, 2003) 188 Google Scholar.
111 Good overviews of the issues concerning joint/concurrent liability of the EC and the Member States are offered in Oliver, P ‘Joint Liability of the Community and the Member States’ in Schermers, HG, Heukels, T and Mead, P (eds) Non-Contractual Liability of the European Communities (Dordrecht, Martinus Nijhoff Publishers, 1988) 125 Google Scholar and Wils, W ‘Concurrent Liability of the Community and a Member State’ (1992) 17 EL Rev 101 Google Scholar.
112 BVerfGE 37, 271 (Solange I); BVerfGE 73, 339 (Solange II); BVerfGE 89, 155 (Maastricht), for an overview of the case law see, eg, Kokott, J ‘Report on Germany’ in Slaughter, A-M, Stone Sweet, A and Weiler, JHH (eds) The European Court and National Court—Doctrine and Jurisprudence. Legal Change in its Social Context (Oxford, Hart Publishing, 2000)Google Scholar.
113 Decision of the Czech Constitutional Court (plenary court) of 8 Mar 2006, case No Pl. US 50/04, published as No 154/2006 Coll. (English translation available at http://test. concourt.cz/angl_verze/doc/p-50-04.html).
114 Based on the wording of Art 9 (2) of the Czech Constitution: ‘[a]ny changes in the essential requirements for a democratic state governed by the rule of law are impermissible’.
115 This line of reasoning can again be traced back to the German ‘Solange’ line of case law, especially the ‘Maastricht-Urteil’, (BVerfGE 89, 155; reported in English as Brunner v European Union Treaty [1994] 1 CMLR 57), which addressed the question of what constitutes the untouchable constitutional core (jeder Verfassungsänderung entzogener Verfassungskern: Art 79(3) GG), which is even beyond the disposition of the constitution-maker. For a good analysis, see the discussion of the decision by the reporting judge, Paul Kirchhof, writing extra-judicially in Kirchhof, P ‘Das Maastricht-Urteil des Bundesverfassungsgerichts’ in Hommelhoff, P and Kirchhof, P (eds), Der Staatenverbund der Europäischen Union: Beiträge und Diskussion des Symposiums am 21. und 22. Januar 1994 in Heidelberg (Heidelberg, CF Müller, 1994)Google Scholar.
116 ‘Demokratie, soll sie nicht lediglich formales Zurechnungsprinzip bleiben, ist vom Vorhandensein bestimmter vorrechtlicher Voraussetzungen abhängig . . . Dazu gehört auch, daβ die Entscheidungsverfahren der Hoheitsgewalt ausübenden Organe und die jeweils verfolgten politischen Zielvorstellungen allgemein sichtbar und verstehbar sind, und ebenso, daβ der wahlberechtigte Bürger mit der Hoheitsgewalt, der er unterworfen ist, in seiner Sprache kommunizieren kann’ in: BVerfGE 89, 155 (185); Brunner v European Union Treaty [1994] 1 CMLR 57.
117 Coming back to the Community level, this calls into question the opinions expressed in the Kik ruling, above n 24. Can one consistently claim that there is a primary-law guaranteed right to petition the Community institutions and receive the answer in the same language (Art 21 (3) ECT) and, at the same time, not to have the same right in cases of much greater incursion into the rights of an individual, i.e. for binding Community legislation (regulations)?
118 See the typology of the use of comparative legal arguments by the ECJ made by Lenaerts, K ‘Interlocking Legal Orders in the European Union and Comparative Law’ (2003) 52 ICLQ 873 CrossRefGoogle Scholar, 883–94.
119 See above nn 83–85.
120 In the Czech Republic, for instance, there is already a constitutional complaint pending before the Constitutional Court in the Skoma-Lux case (constitutional complaint of 27 Feb 2006, case No II. ÚS 110/06, pending).
121 See an overview of the major cases by Sadurski, W ‘“Solange, chapter 3”: Constitutional Courts in Central Europe—Democracy—European Union’, EUI Working Paper Law No 2006/40 (Florence, EUI, 2006), available at http://cadmus.eui.eu.
122 See, eg, the judgment of the Czech Constitutional Court (full court) of 3 May 2006, case No Pl. ÚS. 66/04, published as no 434/2006 Coll., declaring the Czech domestic implementation of the European Arrest Warrant compatible with the Czech Constitution. The ‘Euro-friendliness’ of the decision is obvious when compared to similar decisions in Germany and Poland. An analysis of these decisions is offered by Komárek, J ‘European Constitutionalism and the European Arrest Warrant: In Search of the Limits of “Contrapunctual Principles”’ (2007) 44 CML Rev 9 Google Scholar.
123 Which is not to be taken for granted in the old Member States either, at least in the rhetoric of the old Member States’ constitutional and/or supreme courts. See further, eg, Alter, KJ Establishing the Supremacy of European Law: the Making of an International Rule of Law in Europe. (Oxford, OUP, 2001)Google Scholar or Slaughter, A-M, Stone Sweet, A and Weiler, JHH (eds), above n 112.
124 It appears, however, that the publication of the EC legislation following the Rumanian and Bulgarian accessions in January 2007 follows a similar pattern, including the lack of translations in the printed version of the Special Edition of the Official Journal.
125 When lecturing in Central Europe (the Czech Republic, Slovakia, Poland) after the 2004 Accession and before discussing the issue of lacking publication, I used to ask the audience (practising lawyers, judges, tax advisors, academic lawyers, students) how many of them had ever held a printed version of the OJ in their hands. The number of positive replies used to cover less than one third of the audience. Only about one out of thirty or so lawyers, who commonly applied EC law, would claim that he or she regularly works with the printed version of the OJ.
126 See, eg, the Austrian Kundmachungsreformgesetz 2004, BGBl. Teil I, Nr. 100 (published on 21. Nov 2003), 1476–80, which, as from 1 Jan 2004, introduced electronically signed ‘pdf’ (Adobe Acrobat’s ‘Portable Document Format’) images of the Bundesgesetzblatt as the only exclusively authentic source of legislation. Paper copies, which are still available upon subscription or request, are no longer deemed to be authentic.
127 Parallel publication means that both versions of the official gazette, ie electronic as well as the paper one, are authentic. This is the situation in France (see Art 3 of Ordonnance 2004-164 of 20 Feb 2004 relative aux modalités et effets de la publication des lois et de certains actes administratifs [2004] JO 3514) or in Slovenia (see the Slovenian Law on the Collection of Laws (Zakon uradnem listu Republike Slovenije), Uradni list Republike Slovenije Št. 112 z 12. 15. 2005, stran 12023). Art 4 of the Slovenian Law provides that, in the case of a conflict between the printed and the electronic text, the latter shall prevail.
128 Generally see Walker, R ‘Die amtliche elektronische Verkündung von Gesetzen’ [2005] JurPC Web-Dok. 155/2005, 1, Herberger, M ‘Elektronische Publikation von Gesetzen—Eine Chance für die Gerechtigkeit?’ [2003] JurPC Web-Dok. 340/2003, 1, both articles available at http://www.jurpc.de.
129 See above, text to nn 29–32.
130 The standard practice of the ECJ in similar cases is to ask the OPOCE when a given volume was available at its seat in Luxembourg. However, this information is completely ‘one sided’, ie the opposing party, be it an individual or a Member State, has no chance to verify, retrospectively, whether the information is correct. I am grateful to Maciej Szpunar for this point. As he observed in the course of the conference entitled ‘The Treaty of Rome—50 Years On!’, held in March 2007 in Warsaw, the very same problem was encountered by Poland and the other new Member States which are the applicants in an action for annulment against the Council and the Commission: Case C–273/04, The Polish Republic and Others v Council and Commission, pending, cited above, text to n 14. The date of publication of the contested Regulation in Polish and other languages of the new Member States is of crucial importance for the observance of the 2 month time limit for an annulment action provided for in Art 230 EC. The OPOCE stated that the Regulation was available in Luxembourg on the date stated on issue of the OJ, the Member States claim that it was not. They are, however, not in a position to prove that it was not and, on the other hand, the OPOCE has, apart from its own statement, no proof of the fact that it actually was.
131 In this respect, it is somewhat striking that the objections the OPOCE puts forward against future publication of EC legislation in electronic form are that it would be ‘questionable in terms of democracy’ and a ‘threat to legal certainty’. See the OPOCE’s answer to the questionnaire of the European Forum of Official Gazettes, ‘Questionnaire on the organisation and operation of official gazettes in the EU’, point 4.5, available at http://forum.europa.eu.int/ irc/opoce/ojf/info/data/prod/html/eu.pdf.
132 The First Book of Moses (Genesis), Ch 11. To complete the parallel made in the title of this paper, was the rushed and perhaps somewhat premature enlargement of the EU the construction of a presumptuous Tower (Gn, ch. 11, v 4.) for which the punishment came (Gn, ch. 11, v 7)?
133 Further on these issues see Bobek, M ‘A New or a Non-existent Legal Order? Some (Early) Experience in the Application of EU Law in Central Europe’ (2006) 2 Croatian Yearbook of European Law & Policy 265 Google Scholar, 295–6.
134 None of Czech, Slovak, Hungarian, Lithuanian, Latvian, Estonian, Maltese, Slovenian or Bulgarian is spoken by more than 10 million people. The Romanian language is spoken by about 22 million people. The Polish language represents, with about 39 million people, the only ‘larger’ language in the 2004 and 2007 enlargements, comparable in size to the number speaking Spanish.