Official Languages, No Translation, No Enforceability: Case C-161/06

Now here is a curious case ! In its judgment in Case C-161/06 Skoma-Lux the Court of Justice held that the obligations contained in EC legislation which has not been published in the Official Journal in the language of the member State in which enforcement is sought cannot be enforced in that State.

Well, actually, the case concerns enforcement in the Czech Republic and the lack of translation into Czech and Article 58 of the Act of Accession.

What happened ? Skorma-Lux, a Czech importer of wine, was fined by the Czech customs authorities for submitting the wrong customs classification for wine. The Czech authorities claimed Skorma-Lux had breached Regulation 2454/93 implementing the EC customs code. Skorma-Lux, on the other hand, defended itself by submitting that at the relevant time, Regulation 2454/93 had not been translated and published in the Czech language. The Czech court seised of the matter referred questions to the Court of Justice on whether Article 58 of the Act of Accession required proper publication in Czech in the Official language before Regulation 2454/93 could be enforced and whether the matter of its enforceability was a question of interpretation or of validity of EC law.

The Court of Justice held that Article 58 of the Act of Accession requires that EC legislation be properly translated and published in the official language of the member State in which enforcement was sought. It stated that it had already held that an act adopted by a EC institution, such as the regulation at issue in the main proceedings, cannot be enforced against natural and legal persons in a member State before they have the opportunity to make themselves acquainted with it by its proper publication in the Official Journal of the European Union (Case C-98/78 Racke). It had also held that the principle of legal certainty requires that EC legislation must allow those concerned to acquaint themselves with the precise extent of the obligations it imposes upon them, which may be guaranteed only by the proper publication of that legislation in the official language of those to whom it applies (see also, to that effect, Case C-370/96 Covita, paragraph 27, Case C-228/99 Silos, paragraph 15, and Case C-108/01 Consorzio del Prosciutto di Parma and Salumificio S. Rita, paragraph 95).

The court held that it would be contrary to the principle of equal treatment to apply obligations imposed by EC legislation in the same way in the old member States, where individuals have the opportunity to acquaint themselves with those obligations in the Official Journal of the European Union in the languages of those States, and in the new member States, where it was impossible to learn of those obligations because of late publication. It added for good measure that to allow an act which has not been properly published to be enforceable in the name of the principle of effectiveness would result in individuals in the member State concerned bearing the adverse effects of a failure by the EC administration to comply with its obligation to make available to those individuals, on the date of accession, the entire acquis communautaire in all the official languages of the Union.

The Court distinguished Case 160/84 Oryzomyli Kavallas and Others because in that case the Court did no more than assess the impossibility for a Greek company of acquainting itself with EC legislation at the time of the accession of the Hellenic Republic to the EC. The issue of the proper publication of that legislation did not arise as such.

As to the second question, the Court answered that the enforceability of the measure was an issue of its interpretation and not of its validity. The fact that the measure could not be enforced did not mean that it was invalid.

Comments

[East Timor Law & Justice Bulletin]

This case reminds us of the problems of language and the law in East Timor. Under the Constitution, the official languages of East Timor are Portuguese and Tetum. But laws enacted by the Parliament and the Government are, when they are published at all, usually only published in the Portuguese language.

Other legislation requires that new laws be published in both of the official languages but this is not implemented as it should.

The practical problem is posed by the fact that less than 10% of the population of East Timor can understand Portuguese. In this regard, the Court's holding that the principle of legal certainty requires that ..legislation must allow those concerned to acquaint themselves with the precise extent of the obligations it imposes upon them, which may be guaranteed only by the proper publication of that legislation in the official language of those to whom it applies, is of particular relevance to the legal system of East Timor.

The most curious thing is that because new laws are not published and publicised in a language that is understood by the vast majority of the population, the principle of legal certainty has not found expression in the new legal system of East Timor notwithstanding the constitutional imperatives and the interventions and support of public and private international law and justice agencies since independence in 2002.

Legal certainty is one of the indispensable conditions for the effective rule of law, which has disintegrated several times since the restoration of independence with catastrophic and enduring consequences for the civil peace, political stability and democracy.