OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 9 January 2019(1)

Case C‑620/16

European Commission

v

Federal Republic of Germany

(Infringement — Article 258 TFEU — Council Decision 2014/699/EU — Principle of sincere cooperation — Article 4(3) TEU — Admissibility — Past conduct — Refusal by the Federal Republic of Germany to vote, at the 25th session of the OTIF Revision Committee, in accordance with Council decision)






I.      Introduction

1.        Both the EU and 26 of its Member States are parties to the Convention concerning International Carriage by Rail of 9 May 1980, as amended by the Vilnius Protocol of 3 June 1999 (‘the COTIF’), which is being administered by the Intergovernmental Organisation for International Carriage by Rail (OTIF), an international organisation located in Berne. In view of the preparation for a meeting of that organisation, the Council, on 24 June 2014, adopted Decision 2014/699/EU, (2) which established the divisions of competence between the European Union and its Member States regarding the exercise of voting rights at the said meeting.

2.        The events which followed led to two sets of proceedings before the Court: first, an annulment action introduced by the Federal Republic of Germany against the Council, alleging, mainly, that the EU did not have competence to adopt the decision (this action was dismissed by the Court in its judgment of 5 December 2017, Germany v Council); (3) secondly, infringement proceedings brought by the Commission against the Federal Republic of Germany, which are the subject of the present case.

3.        By its application under Article 258 TFEU, the Commission asks the Court to declare that the Federal Republic of Germany has failed to fulfil its obligations under Decision 2014/699 and Article 4(3) TEU by not voting in accordance with that decision and publicly voicing its disapproval as to the content of that decision in the context of the meeting.

4.        This case raises fundamental questions about the admissibility of an infringement action where the alleged improper conduct lies in the past and its legal effects have purportedly been exhausted. In this respect, the Court has been provided the opportunity to further refine its case-law on the admissibility of infringement actions.

5.        Moreover, on the substance, the present case exposes the importance of the principle of sincere cooperation pursuant to Article 4(3) TEU in the context of the European Union’s external relations and, in particular, in situations in which this principle leads to legal effects distinct from those arising from other provisions in EU law. In this regard, the current proceedings are illustrative of the fact that, as has been pointed out in legal literature, it is in practice not always easy to ‘isolate’ the principle of conferral (4) from other principles, such as the duty of sincere cooperation laid down in Article 4(3) TEU. (5)

6.        My assessment of this case will lead me to propose that the Court should find that the Commission’s infringement action is both admissible and, as to the substance, well founded.

II.    Legal framework

A.      International law

1.      The COTIF

7.        The COTIF entered into force on 1 July 2006. The 49 States, including all the Member States of the European Union (with the exception of the Republic of Cyprus and the Republic of Malta) which are parties to the COTIF, constitute the OTIF. The European Union acceded to the COTIF with effect from 1 July 2011.

8.        Under Article 2(1) of the COTIF, the aim of OTIF is to promote, improve and facilitate, in all respects, international traffic by rail, in particular by establishing systems of uniform law in various fields of law relating to international rail traffic.

9.        The OTIF Revision Committee, in principle, is composed of all parties to the COTIF. In accordance with Article 17(1)(a) and (b) of the COTIF, the OTIF Revision Committee is to take decisions, within the limits of its competences, on proposals aiming to modify the COTIF and is to consider, in addition, proposals to be submitted for decision to the General Assembly of OTIF. The respective competences of those two bodies of OTIF with respect to modification of the COTIF are laid down in Article 33 of that convention.

10.      Under Title VI of the COTIF, entitled ‘Modification of the [COTIF]’, Article 33, headed ‘Competence’, provides as follows:

‘…

§ 2      The General Assembly shall take decisions about proposals aiming to modify the Convention in so far as §§ 4 to 6 do not provide for another competence.

§ 4      Subject to decisions taken by the General Assembly in accordance with § 3, first sentence, the Revision Committee shall take decisions about proposals aiming to modify

a)      Articles 9 and 27 §§ 2 to 5;

d)      the CUV Uniform Rules except Articles 1, 4, 5 and 7 to 12;

…’

11.      According to Article 35 of the COTIF (‘Decisions of the Committees’)

‘§ 1      Modifications of the Convention, decided upon by the Committees, shall be notified to the Member States by the Secretary General.

§ 2      Modifications of the Convention itself, decided upon by the Revision Committee, shall enter into force for all Member States on the first day of the twelfth month following that during which the Secretary General has given notice of them to the Member States. Member States may formulate an objection during the four months from the day of the notification. In the case of objection by one-quarter of the Member States, the modification shall not enter into force. If a Member State formulates an objection against a decision of the Revision Committee within the period of four months and it denounces the Convention, the denunciation shall take effect on the date provided for the entry into force of that decision.

§ 3      Modifications of Appendices to the Convention, decided upon by the Revision Committee, shall enter into force for all Member States on the first day of the twelfth month following that during which the Secretary General has given notice of them to the Member States. Modifications decided upon by the RID Expert Committee or by the Committee of Technical Experts shall enter into force for all Member States on the first day of the sixth month following that during which the Secretary General has given notice of them to the Member States.

§ 4      Member States may formulate an objection within the period of four months from the day of the notification referred to in § 3. In the case of objection by one-quarter of the Member States, the modification shall not enter into force. In the Member States which have formulated objections against a decision within the period allowed, the application of the Appendix in question shall be suspended, in its entirety, from the moment the decisions take effect, in so far as concerns traffic with and between those Member States. However, in the case of objection to the validation of a technical standard or to the adoption of a uniform technical prescription, only that standard or prescription shall be suspended in respect of traffic with and between the Member States from the time the decisions take effect; the same shall apply in the case of a partial objection.

…’

12.      It follows from Article 38(2) of the COTIF that the European Union, as a regional organisation having acceded to the COTIF, may exercise the rights available to its Member States under the COTIF insofar as they cover matters within its competence. Article 38(3) shows that, in order to exercise the right to vote and the right to object provided for in Article 35(2) and (4), it has a number of votes equal to that of its Member States which are also members of OTIF. The latter may exercise their rights, in particular voting rights, only to the extent permitted by paragraph 2 of that same provision.

2.      The accession agreement

13.      The Agreement between the European Union and the [OTIF] on the Accession of the European Union to the [COTIF] of 9 May 1980, as amended by the Vilnius Protocol of 3 June 1999 (OJ 2013 L 51, p. 8; ‘the accession agreement’), signed on 23 June 2011 in Berne, entered into force, pursuant to Article 9 thereof, on 1 July 2011.

14.      Article 6 of that agreement provides:

‘1.      For decisions in matters where the Union has exclusive competence, the Union shall exercise the voting rights of its Member States under the [COTIF].

2.      For decisions in matters where the Union shares competence with its Member States, either the Union or its Member States shall vote.

3.      Subject to Article 26, paragraph 7, of [the COTIF], the Union shall have a number of votes equal to that of its members who are also Parties to the [COTIF]. When the Union votes, its Member States shall not vote.

4.      The Union shall, on a case-by-case basis, inform the other Parties to the Convention of the cases where, with regard to the various items on the agendas of the General Assembly and the other deliberating bodies, it will exercise the voting rights provided for in paragraphs 1 to 3. That obligation shall also apply when decisions are taken by correspondence. That information is to be provided early enough to the OTIF Secretary-General in order to allow its circulation together with meeting documents or a decision to be taken by correspondence.’

B.      EU law

15.      The accession agreement was approved on behalf of the European Union by Council Decision 2013/103/EU. (6)

16.      Article 5 of that decision stipulates that ‘the internal arrangements for the preparation for OTIF meetings and for the representation and voting at such meetings are set out in Annex III to this Decision’.

17.      Annex III, headed ‘Internal arrangements for the Council, the Member States and the Commission in proceedings under OTIF’ reads as follows:

‘Bearing in mind the requirement of unity of the international representation of the Union and its Member States in accordance with the Treaty on European Union and the Treaty on the Functioning of the European Union and the case-law of the Court of Justice of the European Union also at the stage of implementation of international obligations, the Council, the Member States and the Commission will apply the following internal arrangements:

1.      Scope

These internal arrangements will apply to any meeting of any of the bodies set up under OTIF. Any reference to a “meeting” in these arrangements is understood to include mutatis mutandis a reference also to other proceedings, such as a written procedure.

2.      Coordination procedure

2.1.      To prepare for any OTIF meeting, including but not limited to the meetings of the General Assembly, the Administrative Committee and other Committees, coordination meetings will be held:

–        in Brussels, within the competent Council Working Party (usually the Land Transport Working Party), as early as possible and as many times as necessary ahead of the OTIF meeting and, in addition,

–        on the spot, particularly at the beginning and, if necessary, during and at the end of an OTIF meeting.

2.2.      The coordination meetings will agree on positions on behalf of the Union only or, where relevant, on behalf of the Union and its Member States. Positions of the Member States relating to their exclusive competence may be subject to coordination at these meetings if so agreed by the Member States.

2.3.      The coordination meetings will decide on the exercise of responsibilities with respect to statements and voting in relation to each item of the OTIF meeting agenda, on which a statement may be made or a vote is expected.

2.4.      To prepare the coordination meetings referred to in point 2.1, including draft statements and position papers, preliminary discussions will, if necessary, be held in the appropriate Committee created by the relevant Union rail legislation, namely:

–        the Committee on the transport of dangerous goods for items covered by Appendix C to the Convention; if these items affect rail interoperability, or the common safety approach developed under Directive 2004/49/EC, the Committee on rail interoperability and safety is also to be involved,

–        the Committee on the development of the Union’s railways for items covered by Appendices A, B, D or E to the Convention and for other systems of uniform law elaborated by the OTIF,

–        the Committee on rail interoperability and safety for items covered by Appendices F or G to the Convention.

2.5.      Before any OTIF meeting the Commission will give an indication of which agenda items are subject to Union coordination and will prepare draft statements and position papers to be discussed at coordination meetings.

2.6.      If the Commission and the Member States in coordination meetings cannot agree a common position, including for reasons of disagreement on the repartition of competence, the matter will be referred to the Committee of Permanent Representatives and/or the Council.

3.      Statements and voting in the OTIF meetings

3.1.      Where an agenda item deals with matters of exclusive Union competence, the Commission will speak and vote for the Union. After due coordination, the Member States can also speak in order to support and/or develop the Union position.

3.2.      Where an agenda item deals with matters of exclusive national competence, Member States will speak and vote.

3.3.      Where an agenda item deals with matters containing elements of both national and Union competence, the Presidency and the Commission will express the common position. After due coordination, Members States can speak to support and/or develop the common position. The Member States or the Commission, as appropriate, will vote on behalf of the Union and its Member States in accordance with the common position. The decision on who will be voting is made in the light of where the preponderance of the competence lies (e.g. mainly national or mainly Union competence).

3.4.      Where an agenda item deals with matters containing elements both of national and of Union competence and the Commission and the Member States have not been able to agree a common position as referred to in point 2.6, Member States and the Commission can speak and vote on matters falling clearly within their respective competence.

3.5.      On matters for which there is no agreement between the Commission and the Member States on division of competence, or where it has not been possible to obtain the majority needed for a Union position, a maximum effort will be made to clarify the situation or achieve a Union position. Pending this, and after due coordination, the Member States and/or the Commission, as appropriate, would be entitled to speak on condition that the position expressed will not prejudge a future Union position, will be coherent with Union policies and previous Union positions, and will be in conformity with Union law.

3.6.      The representatives of the Member States and of the Commission may participate in OTIF working groups preparing the technical committees of OTIF namely the Committee of Experts for the Carriage of Dangerous Goods (RID) and the Committee of Technical Experts (TEC). During participation in these working groups the representatives of the Member States and the Commission may present technical contributions and fully participate in the technical discussions on the basis of their technical knowledge. These discussions will not bind the Union.

The representatives of the Member States and the Commission will make serious efforts to reach a common position and to defend this position during the discussions in the OTIF working groups.

…’

III. Background to the dispute

A.      Facts giving rise to the dispute

18.      On 24 June 2014 the Council adopted Decision 2014/699.

19.      Article 1(1) of that decision provides that ‘the position to be taken on the Union’s behalf at the 25th session of the Revision Committee set up by the [COTIF] shall be in accordance with the Annex to this Decision’. Pursuant to Article 1(2) of the decision, ‘[m]inor changes to the documents mentioned in the Annex to this Decision may be agreed by the representatives of the Union in the Revision Committee without further Decision of the Council’.

20.      Section 3 of the Annex to that decision mentions, with respect to the various items on the agenda at the 25th session of the OTIF Revision Committee, the divisions of competence between the European Union and its Member States, the exercise of voting rights and the recommended coordinated position.

21.      Agenda item 4, in part, and Agenda items 5, 7 and 12 relate to the amendments at issue.

22.      At the 25th session of the OTIF Revision Committee, the Commission put forward the position of the European Union, as set out in the annex to Decision 2014/699, while the Federal Republic of Germany maintained an independent position concerning the proposed amendments to Article 12 of the COTIF and Appendices B (CIM), D (CUV) and E (CUI) and demanded that it exercise its right to vote on those matters itself. The Federal Republic of Germany voted against the position put forward by the European Union concerning the proposed amendments to Article 12 of the COTIF and Appendix D (CUV). Since that proposal received the required majority, the amendments at issue were adopted by the OTIF Revision Committee.

B.      Pre-litigation procedure

23.      By letter of 4 August 2014, the Commission invited the Federal Republic of Germany to explain its conduct at the 25th session of the OTIF Revision Committee.

24.      In its reply of 12 November 2014, the Federal Republic of Germany considered that its conduct was entirely legitimate and legal on the grounds that none of the amendments at issue fell within the competence of the European Union, since the latter had not exercised its internal competence in the areas in question.

25.      On 22 December 2014 the Federal Republic of Germany brought proceedings before the Court of Justice, seeking the partial annulment of Decision 2014/699, in so far as it related to the disputed amendments. Its pleas related to alleged infringements of (i) the principle of conferral (Article 5(2) TEU) owing to a lack of competence of the European Union, (ii) the obligation to state reasons (Article 296 TFEU), and (iii) the principle of sincere cooperation (Article 4(3) TEU) in conjunction with the principle of effective judicial protection. (7)

26.      On 29 May 2015 the Commission opened an infringement procedure pursuant to Article 258(1) TFEU by addressing a letter of formal notice to the Federal Republic of Germany, in which it claimed that that Member State, by its conduct at the 25th session of the OTIF Revision Committee, had failed to fulfil its obligations under Decision 2014/699 and Article 4(3) TEU. The Commission further noted that it could be inferred, based on the fact that the Federal Republic of Germany expressly considered, according to its own statements, its conduct to be legitimate, that this Member State would be likely to engage in similar conduct in the future under similar circumstances.

27.      In its reply of 7 July 2015, the Federal Republic of Germany rejected the Commission’s claims.

28.      On 11 December 2015 the Commission issued a reasoned opinion in which it reiterated its position as expressed in its letter of formal notice. The Commission called on the Federal Republic of Germany to take all measures necessary to comply with the reasoned opinion within two months of the opinion’s receipt, and in particular to put an end to the alleged infringing practices described therein.

29.      By letter dated 1 February 2016, the Federal Republic of Germany replied to the reasoned opinion, reiterating the position expressed in its reply to the letter of formal notice.

C.      Procedure before the Court

30.      The Commission considers that the Federal Republic of Germany has not taken any measures to remedy the consequences of the alleged infringing conduct or, in any event, to limit such consequences and eliminate any doubts as to its future action. The Commission also asserts that the Federal Republic of Germany has not recognised the illegality of its conduct towards OTIF or the Commission and has, on the contrary, maintained the lawfulness of its conduct.

31.      Since the Commission did not consider the Federal Republic of Germany’s response from 1 February 2016 to be sufficient, it decided to bring the present action.

32.      On 5 December 2017, following the end of the written procedure phase of the present case, the Court delivered its judgment in the case of Germany v. Council, (8) in which it dismissed the Federal Republic of Germany’s action by rejecting all three pleas in law put forward by that Member State.

33.      By a separate act, filed at the Court Registry on 8 February 2017, the Federal Republic of Germany raised an objection of inadmissibility. On 10 May 2017, the Court, after hearing the Advocate General, reserved its decision pending its ruling on the substance of the case.

34.      By application lodged at the Court Registry on 4 December 2017, the Council of the European Union applied for leave to intervene in support of the Commission. By decision of 3 January 2018, the President of the Court allowed that application.

35.      Both the German Government and the Commission presented oral argument at the hearing held on 4 July 2018, as did the Council of the European Union.

IV.    Assessment

A.      Admissibility of the action

1.      Arguments of the parties

(a)    The Federal Republic of Germany

36.      The Federal Republic of Germany considers the action to be inadmissible. It submits that the conduct at issue in this action had exhausted all its effects by the end of the 25th session of the OTIF Revision Committee, i.e. before the end of the period set by the Commission in the reasoned opinion. Correspondingly, the Federal Republic of Germany notes that, according to the Court’s case-law, the Commission may no longer bring an action for failure to fulfil obligations before the Court if the Member State concerned has brought to an end the infringement before the expiry of the period laid down in the reasoned opinion and, moreover, an action for failure to fulfil obligations is inadmissible where the act for which the Member State is criticised has ceased to produce any legal effects before that period has expired. (9)

37.      That Member State further submits that its exercise of the right to vote did not have any bearing on the outcome of the decisions taken at the 25th session of the OTIF Revision Committee, as the Commission concedes, nor did this damage the reputation, credibility or unitary representation of the European Union among members of the international community. In any event, the Federal Republic of Germany alleges that the EU organised the procedure for the adoption of Decision 2014/699 in such a way as to prevent the Federal Republic of Germany from obtaining judicial protection against that decision, contributing to the difference of opinion at that session.

38.      Finally, the Federal Republic of Germany maintains that the alleged damage to the European Union’s image can no longer be remedied. It contests the Commission’s assertion that it has taken no action either to remedy the consequences of its conduct in dispute in the present infringement proceedings, or to remove doubts as to its future action. Indeed, when Council Decision (EU) 2015/1734 was adopted, (10) the Federal Republic of Germany made a statement (‘the Statement of 17 September 2015’) which appears in the minutes of the Council, in which, while considering that that decision was unlawful, it specified that, pending the judgment of the Court in the Germany v Council case (C‑600/14), it would not exercise its right to vote on the points at issue by departing from the European Union’s positions. Thus, that Member State has already put an end to the practice criticised by the Commission in its reasoned opinion, even before the period indicated therein has begun to run.

39.      According to the Federal Republic of Germany, insofar as the Commission expected it to publicly apologise and abandon its legal analysis, that Member State sees no basis for its doing so and wonders to what extent such an apology would be likely to eliminate a posteriori the alleged damage to the European Union’s reputation and credibility. In any event, neither in the letter of formal notice nor in the reasoned opinion is there anything to suggest that the Federal Republic of Germany has infringed EU law on account of the failure to submit such an apology. Moreover, if an action for failure to fulfil obligations is to be admissible, it is not sufficient, according to the case-law of the Court, for differences of opinion on questions of law between a Member State and the Commission to persist, as long as that Member State nonetheless complies with the Commission’s analysis. This applies a fortiori when the legal issue is already the subject of proceedings before the Court, as is the case here.

40.      I cannot help but recall the figure of speech ‘pociąg odjechał’ (11) - which sums up the argument of the Federal Republic of Germany in one phrase.

(b)    Commission

41.      While the Commission accepts that an action under Article 258 TFEU relating to a breach which has exhausted all its effects before the expiry of the period provided for in the reasoned opinion is inadmissible, it stresses that this principle is not without exception.

42.      According to the Commission, it can be inferred from the judgment of 31 March 1992, Commission v Italy, (12) that, although the failure to fulfil obligations ceased to have effect at the end of the period laid down in the reasoned opinion, the action remains admissible where, even if it had acted in good time, the Commission would not have had the time necessary to complete the pre-litigation procedure before the infringement had ended. In such circumstances, there is a public interest in the Court clarifying the legal situation in order to avoid doubts on the part of the Member State concerned or on the part of other Member States. Such an interest is all the more obvious when there is a dispute between the Commission and the Member State concerned about the legality of the latter’s conduct.

43.      The Commission points out that, in the circumstances of the present case, it was unable to bring the pre-litigation infringement proceedings to a successful conclusion in good time.

44.      In addition, the Commission considers that according to the Court’s case-law, it is not necessary to demonstrate a risk of repetition of the alleged conduct.

45.      With respect to the complaint alleging infringement of the principle of sincere cooperation, laid down in Article 4(3) TEU, the Commission accepts that the damage incurred can no longer be remedied in its entirety, even if that damage can be limited by clarifications at a subsequent OTIF meeting. In any event, since it was impossible for the Commission to prevent such irreparable damage from occurring by means of infringement proceedings, this complaint should be deemed to be admissible.

46.      As for the argument that the European Union’s conduct gave rise to a situation that was detrimental to its credibility and reputation, the Commission considers that, while the effects of the conduct of the Federal Republic of Germany cannot be disputed, criticism of the conduct of the Commission and the Council could, at most, be raised in relation to the substance of the dispute. In any event, that argument is unfounded. That reasoning also applies to the argument put forward by that Member State that it did not have any judicial protection.

47.      Furthermore, the Commission contests the argument of the Federal Republic of Germany that it has done everything possible to dispel doubts about its future behaviour and even to eliminate, to the extent possible, the consequences of the failure to fulfil its obligations in terms of damaging the image of the European Union. In particular, that Member State has not acknowledged in the OTIF Revision Committee that it had made an error.

2.      Analysis

48.      The issue raised by the present case is whether the Commission’s action is inadmissible because the deemed infringement has purportedly exhausted its legal effects before the deadline set by the Commission’s reasoned opinion.

(a)    Treaty wording

49.      The starting point is the wording of Article 258 TFEU.

50.      Pursuant to this provision, if the Commission considers that a Member State has failed to fulfil an obligation under the Treaties (that is to say, an obligation arising from EU law), it is to deliver a reasoned opinion on the matter after giving the Member State concerned the opportunity to submit its observations. If the Member State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court.

51.      One could indeed be tempted to infer from the wording of Article 258 TFEU that, logically, this provision presupposes that there is an ongoing infringement, which the Member State can bring to an end during the course of the proceedings. One could argue that in order for a Member State to be able to comply with a reasoned opinion, the infringement must be ongoing, as otherwise it is impossible for the Member State to comply with the reasoned opinion.

52.      And yet, such a categorical assertion, tempting though it may appear, should be resisted.

(b)    Related case-law

53.      As a preliminary matter, the Court’s case-law does not support such an assertion.

54.      It is true that the Court has consistently held that the Commission cannot bring infringement proceedings where the Member State concerned has brought its conduct into line with EU law before the end of the period laid down by the Commission for that purpose in the reasoned opinion. (13)

55.      Yet, the instances in which the Court has actually dismissed an infringement action on admissibility grounds are rather rare.

56.      In Commission v Italy, (14) a public procurement case, the Court thus held that when the effects of a contract notice had been exhausted before the issue of the reasoned opinion, the infringement complained of had ceased to exist on expiry of the deadline laid down in the reasoned opinion and that the Commission’s application should therefore be dismissed as being inadmissible. (15

57.      However, the Court based its reasoning on the fact that ‘the Commission did not act in good time in order to prevent, by means of procedures available to it, the infringement complained of from producing effects and did not even invoke the existence of circumstances preventing it from concluding the pre-litigation procedure laid down in Article [258 TFEU] before the infringement ceased to exist’. (16) In doing so, the Court ‘largely followed’ (17) the Opinion of Advocate General Lenz, according to which there were exceptions to the rule (18) in cases of ‘seasonal infringements … where, because of its purpose and legal nature, the infringement of the Treaty is confined to a limited period (as for example in the case of the import and export restrictions introduced on a seasonal basis for the protection of national traders) and where, because of this, the conduct of the procedure prior to the actions for failure [to] fulfil obligations is made, purely in terms of time, more difficult, if not altogether impossible’. (19)

58.      I would submit that this aspect was crucial to the Court’s reasoning: as the Commission neither acted when it could have done so nor provided an appropriate justification for such inaction, it should not be able to institute infringement proceedings against a Member State at a later stage if the alleged infringement had ceased to exist.

59.      The Court in its case-law thus applies a two-part (cumulative) test: first, for an action to be inadmissible, the infringement must have ceased to exist on expiry of the deadline set forth in the reasoned opinion, and, secondly, the Commission must have been able to act in order to prevent the alleged infringement from producing effects. If either of these stages is not fulfilled, the action cannot be inadmissible.

60.      Applying this test to the present case, it follows that the Commission’s action is admissible, since it was impossible for the Commission to prevent Germany from committing the alleged infringement. (20)

61.      Moreover, as Advocate General Mengozzi puts it clearly, while in principle the Commission is not authorised to bring proceedings in relation to infringements which have been brought to an end, ‘that does not rule out the possibility of taking action in respect of failures of brief duration, in relation to which, although it has acted swiftly, the Commission did not actually have the time to conclude the pre-litigation procedure before those failures were remedied’. (21) Also, Advocate General Geelhoed makes a valid point, in my view, when he cautions against an overtly rigid interpretation of admissibility arguing that ‘ultimately, it would mean that proceedings under [Article 258 TFEU] against infringements of [EU] law which have ceased to exist and which are irreversible would be impossible in future. This would open the way to systematic infringements’. (22)

62.      The approach I propose is fully in line with the Court’s early case‑law on admissibility of infringement proceedings. Indeed, as early as 1973 the Court sought to pre-empt a Member State relying on adventurous arguments on admissibility when it held that ‘the defendant cannot in any case be allowed to rely upon a fait accompli of which it is itself the author so as to escape judicial proceedings’. (23) I do not see it necessary to elaborate on the significance of that statement for the case at issue.

(c)    No separate requirement of ‘specific interest’ to be demonstrated by Commission

63.      It should finally be added that in the context of Article 258 TFEU, there is no requirement for a specific interest to bring the action to be demonstrated by the Commission. (24) Indeed, the Commission does not have to show that there is a specific interest in bringing an action when exercising its powers under Article 258 TFEU. Given its role as guardian of the Treaties, the Commission alone is competent to decide whether it is appropriate to bring proceedings against a Member State for failure to fulfil its obligations and to determine the conduct or omission attributable to the Member State concerned forming the basis on which those proceedings should be brought. (25)

(d)    No narrow interpretation of Article 258 TFEU

64.      As for the more general and fundamental argument advanced by the German Government that as a procedural provision, Article 258 TFEU should be applied narrowly so as to guarantee a maximum of legal certainty, suffice it to say that nowhere in the case-law of the Court can such a principle be discerned. (26)

65.      Quite to the contrary. Apart from its liberal case-law on the admissibility of references for a preliminary ruling, (27) the Court has rightly not refrained from interpreting the procedural Treaty provisions praeter legem (to put it mildly) in order to uphold the principle of the rule of law which underpins the EU legal order (28) or the principle of interinstitutional balance. (29) As for Unión de Pequeños Agricultores v Council, specifically relied on by the German Government in support of its argument, here indeed, the Court chose not to interpret Article 263(4) TFEU in too broad a manner. Yet, unlike the present case, that case related to the definition of individual concern within the meaning of Article 263 TFEU and thus concerned the review of the legality of measures of the EU institutions. Had the Court relaxed those criteria and altered its case-law, this would have affected the complete system of legal remedies in the EU legal order and the relationship and interplay between actions of annulment under Article 263 TFEU and the preliminary reference procedure under Article 267 TFEU, which is why the Court pointed to the possibility of amending the Treaties pursuant to Article 48 TEU. (30)

66.      In summary, the present action is therefore admissible.

B.      Substance of the action

1.      Infringement of Decision 2014/699

(a)    Arguments of the parties

(1)    Commission

67.      The Commission alleges that the Federal Republic of Germany has infringed Decision 2014/699 by voting, at the 25th session of the OTIF Revision Committee, against the position defined by the European Union in that decision with regard to items 4 and 7 of the agenda of that Revision Committee, and by publicly challenging the exercise of the right to vote by the European Union.

68.      The Commission states that Decision 2014/699 is, in accordance with the fourth paragraph of Article 288 TFEU, binding in its entirety, both on the institutions of the European Union and on the Member States. The Commission adds that the fact that the Federal Republic of Germany voted against the said decision in the Council and brought an action for annulment of the same decision before the Court does not affect the binding nature of the decision and the obligations resulting therefrom for the Member States.

69.      Indeed, it would appear from the Court’s case-law that Member States cannot, by themselves, take corrective or ptotective measures designed to prevent the institution which adopted the disputed act from disregarding EU law. It would follow that, as long as the Court has not annulled Decision 2014/699 or suspended its execution, the Federal Republic of Germany has to comply with it. Otherwise, the consistent and uniform application of EU law, a fundamental feature of the EU system, would be undermined.

70.      Moreover, the Commission considers that it was neither impossible nor inexpedient for the Federal Republic of Germany to request provisional measures. The Commission stresses that the Treaty has established a comprehensive system of remedies which, as appears from Articles 278 and 279 TFEU, makes it possible to deal with emergency situations. Any difficulties in this respect, such as those invoked by that Member State, do not allow Member States to act unilaterally in violation of EU law.

71.      In this context, the Commission also points out that the Federal Republic of Germany had been given the opportunity to obtain provisional measures in due time. In this respect, the Commission recalls that the decisions of the OTIF Revision Committee did not themselves create law applicable from the date of their adoption; additional steps still had to be taken before these amendments entered into force. However, between the date of adoption of the decisions in question by the OTIF Revision Committee and the entry into force of the amendments, the Federal Republic of Germany could have obtained provisional measures. On the one hand, with regard to the amendment of Article 12 of the COTIF, it would follow from Article 33(2) and (4)(a) of the COTIF that this amendment still had to be definitively adopted by the General Assembly of OTIF, which took place only on 30 September 2015. On the other hand, as regards the amendment of Articles 2 and 9 of Appendix D (CUV), this amendment would not have entered into force immediately, in accordance with Article 35(3) and (4) of the COTIF. It would thus have been possible for the European Union, assuming that a stay of execution of Decision 2014/699 had been ordered by the Court, to raise an objection with OTIF within four months of the date of adoption of the amendment in question.

(2)    Federal Republic of Germany

72.      The Federal Republic of Germany claims that the application does not satisfy the requirement of sufficiently clear wording, since the Commission did not specify in its conclusions that it holds the Member State responsible for a failure to fulfil its obligations only with respect to items 4 and 7 of the agenda of the 25th session of the OTIF Revision Committee. According to that Member State, the Commission made this clarification only in its brief reply.

73.      Moreover, the Federal Republic of Germany suggests that because of its alleged serious deficiencies, the decision in question is a non-existent act (31) – a matter which the Court would have to examine ex officio.

74.      The Federal Republic of Germany concedes that it did not comply with Decision 2014/699, in so far as that decision provided for the exercise of voting rights by the European Union with regard to items 5, 7 and 12 of the agenda of the 25th session of the OTIF Revision Committee. However, it considers that the corresponding provisions of that decision cannot be invoked against it, since they are unlawful for the reasons already set out in the case giving rise to the judgment of 5 December 2017, Germany v Council judgment (C‑600/14, EU:C:2017:935). (32)

75.      That Member State specifies, in this context, that it is entitled to raise, in accordance with Article 277 TFEU, an objection of illegality against that decision in the context of these infringement proceedings. In the present case, the Commission alleges that the Federal Republic of Germany is in breach not of a directive or decision addressed to the Member States, whose unlawfulness cannot, in accordance with the case-law of the Court, be invoked by the Member States as a defence in an action for failure to fulfil obligations based on failure to comply with such an act, but of a general decision which has not been notified to those to whom it is addressed, in accordance with the third subparagraph of Article 297(2) TFEU. The Federal Republic of Germany adds that the words ‘in proceedings in which an act of general application … is at issue’ in the wording of Article 277 TFEU include the case where the legality of an act of general application is called into question in the context of infringement proceedings.

76.      The Federal Republic of Germany submits that it is open to it to rely incidentally on the illegality of Decision 2014/699 in these proceedings for failure to comply with that decision, particularly in view of the fact that it was de facto impossible for it to obtain judicial protection against that decision before the opening of the 25th session of the OTIF Revision Committee. Moreover, since the European Union organised the procedure leading to the adoption of Decision 2014/699 in such a way as to prevent the Federal Republic of Germany from obtaining judicial protection against that decision, to exclude the possibility of that Member State relying incidentally on the illegality of that decision in the present proceedings would be contrary to the principle of nemo turpitudinem suam allegans auditur. Moreover, according to this Member State, a request to obtain, as suggested by the Commission, after the 25th session of the OTIF Revision Committee, an interim measure from the Court having the effect of forcing the Council to raise an objection, in accordance with Article 35 of the COTIF, against the decisions taken at that session, would have been inadmissible. In any event, the intention of the Federal Republic of Germany was not to prevent the adoption of the disputed amendments, but rather to clarify the question of competence.

77.      In any event, the Federal Republic of Germany points out, with regard to the amendment of Article 12 of the COTIF, which is the subject of item 4 of the agenda of the OTIF Revision Committee, that it has not infringed Decision 2014/699, since that decision provides that the Member States exercise the right to vote and that it only defines a ‘recommended coordinated position’. That Member State recalls that a recommendation, in accordance with the fifth paragraph of Article 288 TFEU, is not to be binding. With regard to the amendment of Articles 2 and 9 of Appendix D (CUV), which is the subject of item 7 of the agenda of the OTIF Revision Committee, the Federal Republic of Germany argues that, although Decision 2014/699 had provided for the exercise of the European Union’s voting rights, the European Union was limited to defining recommendations for positions, without any binding effect.

78.      At the hearing, the Federal Republic of Germany formally withdrew the plea as to the exception of illegality under Article 277 TFEU.

(b)    Analysis

79.      Regarding the criticism voiced by the Federal Republic of Germany as to the precision of the Commission’s submission, I believe it is clear from the Commission’s submissions that only on items 4 and 7 on the agenda of the 25th session of the OTIF Revision Committee has the Federal Republic of Germany expressed a distinct view and voted against the European Union’s position as defined in Decision 2014/699. Moreover, in its submission, the Commission referred only to Article 1 and the Annex to Decision 2014/699, in so far as this Annex concerns the amendments to the COTIF which are the subject of items 4 and 7 of the agenda of the 25th session of the OTIF Revision Committee. It therefore appears to me that, notwithstanding the general wording of the Commission’s conclusions in its application, referring to Decision 2014/699 in its entirety, there could be no uncertainty as to the scope of the alleged breach.

80.      Furthermore, we are not in the presence of a non-existent act. (33)

81.      Apart from the fact that the references in Decision 2014/699 to the ‘recommended coordinated position[s]’ cannot in any reasonable way be interpreted as allowing a Member State to deviate from the European Union’s position, had the Court found that that decision suffered from inherent logical shortcomings such as to cause it to be a non-existent act, it would presumably have stated as much already in the judgment of 5 December 2017, Germany v Council (C‑600/14, EU:C:2017:935).

82.      Regarding the infringement, given that the Federal Republic of Germany does not deny the facts as presented by the Commission and that it has, moreover, withdrawn the plea as to the exception of illegality, the analysis can be rather short.

83.      The minutes of the 25th session of the OTIF Revision Committee leave no room for doubt: the Federal Republic of Germany expressed its views on items 4 and 7 of the agenda of the OTIF Revision Committee and voted against the European Union’s position as defined in Decision 2014/699. With regard to item 7 of this agenda, the Federal Republic of Germany also exercised a voting right on this specific item, contrary to the voting modalities defined in the said decision.

84.      It has, moreover, been clarified by the Court that the European Union had competence to adopt that decision. But this is not the issue here. Once Decision 2014/699 was adopted, Germany was under an obligation to respect and implement it. In a European Union based on the rule of law, acts of the institutions enjoy a presumption of legality. There are procedures in place to have the legality of such measures checked. In this context, Germany can challenge any act under the terms of Article 263(1) TFEU without having to demonstrate an interest to act. In such a situation, it can be expected of a Member State that it should ‘bite the bullet’ and follow the decision – regardless of whether or not that Member State considers doing so to be palatable. What a Member State cannot do is to take the law in its own hands. A unilateral measure is not possible. There is long-standing case-law in this respect that a Member State may not unilaterally adopt, on its own authority, corrective or protective measures designed to obviate any (alleged) breach by an institution (34) of rules of EU law.The Federal Republic of Germany has therefore acted against and infringed the terms of Decision 2014/699.

2.      Infringement of Article 4(3) TEU

(a)    Arguments of the parties

85.      The Commission submits that the fact that the Federal Republic of Germany voted against the European Union’s position at the 25th session of the OTIF Revision Committee, distanced itself from the vote cast by the European Union and sought to exercise its right to vote when that right had been conferred on the European Union, created confusion as to the result of the vote and damaged the credibility and reputation of the European Union, the unity of its international representation and its image in general. This conduct therefore infringed the principle of sincere cooperation enshrined in Article 4(3) TEU.

86.      By contrast, the Federal Republic of Germany considers that the Commission has not demonstrated either the actual existence of an harm to the credibility and reputation of the European Union or the fact that its conduct was the cause of such harm. On the contrary, it considers that it was the accession of the European Union to OTIF, which posed new challenges for OTIF, and the haste with which the EU institutions prepared for the 25th session of the OTIF Revision Committee, which caused confusion during the vote in that body.

(b)    Analysis

87.      Article 4(3) TEU stipulates that, pursuant to the principle of sincere cooperation, the European Union and the Member States are, in full mutual respect, to assist each other in carrying out tasks which flow from the Treaties. The Member States are to take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the EU institutions. The Member States are to facilitate the achievement of the European Union’s tasks and refrain from any measure which could jeopardise the attainment of the European Union’s objectives.

88.      This provision, which is central to the EU legal order, which sets out to ensure the functioning of the European Union, (35) which has been described as constituting the ‘inherent underlying purpose of the entire European integration project’ (36) and which underlines the reciprocal character of cooperation between the European Union and its Member States, is a general norm which has been given concrete expression in a range of other provisions in the Treaty. (37)

89.      Given that any breach of EU law, such as the breach of Decision 2014/699, also breaches the principle of sincere cooperation between the EU and its Member States, (38) as a general rule, Article 4(3) TEU stands back behind that specific breach and displays no legal effects of its own. It is therefore, in many instances, declaratory in nature. By way of example, the Court explicitly refrains from analysing this principle in the context of infringement proceedings relating to non-transposition of directives once it has found a breach of non-transposition, as it sees ‘no need’ to do so. (39)

90.      However, there are instances in which Article 4(3) TEU constitutes an independent basis for obligations. (40)

91.      There is room for such a separate application of Article 4(3) TEU not least because the matter at issue falls within the ambit of the EU’s external relations.

92.      In particular, in the domain of mixed agreements, (41) the Court has on several occasions stressed that where it is apparent that the subject matter of an agreement or convention falls in part within the competence of the European Union and in part within that of the Member States, it is essential to ensure close cooperation between the Member States and the EU institutions, both in the process of negotiation and conclusion and in the fulfilment of the commitments entered into. That obligation to cooperate flows from the requirement of unity in the international representation of the European Union. (42)

93.      I would contend that this statement (43) was equally true if one turned around cause and effect and saw the requirement of unity as flowing from the obligation to cooperate. (44)

94.      Moreover, the Court has held that an arrangement between the Council and the Commission on voting within an international organisation (the United Nations Food and Agriculture Organization (FAO)) represents fulfilment of the duty of cooperation between the European Union and the Member States within that international organisation. (45)

95.      Even though in none of these cases was the credibility and reputation of the European Union on the international scene specifically at stake, we do know from that case-law that the principle of sincere cooperation has a particular significance in the area of external relations and that it specifically applies as regards the exercise of voting rights in an area of shared competence. (46)

96.      I would therefore argue that all the Court needs to do in the present case is to take the matter one step further. It should clarify that the reputation and credibility of the European Union on the international stage constitutes a distinct legal interest protected by Article 4(3) TEU and which, in the case at issue, transcends the letter and purpose of Decision 2014/699.

97.      Failure to comply with that decision, in combination with a clear manifestation of disagreement as to the content of that decision, damages the EU’s reputation on the international level. It gives the impression of the European Union not acting sufficiently effectively as a unit to prepare for a meeting at an international organisation.

98.      Moreover, as the Commission rightly contends, the mere fact that the vote of the Federal Republic of Germany had no effect on the outcome of the meeting does not alter that finding.

V.      Conclusion

99.      On the basis of the foregoing considerations, I am therefore of the opinion that the Court should:

–        Declare that the Federal Republic of Germany has infringed Council Decision 2014/699/EU of 24 June 2014 establishing the position to be adopted on behalf of the European Union at the 25th session of the OTIF Revision Committee as regards certain amendments to the Convention concerning International Carriage by Rail (COTIF) and to the Appendices thereto and Article 4(3) TEU by voting at the 25th session of the Intergovernmental Organisation for International Carriage by Rail (OTIF) Revision Committee against the position laid down in that decision and publicly opposing that position as well as the exercise of voting rights by the European Union provided for therein.

–        Order the Federal Republic of Germany to pay the costs.


1      Original language: English.


2      Council Decision establishing the position to be adopted on behalf of the European Union at the 25th session of the OTIF Revision Committee as regards certain amendments to the Convention concerning International Carriage by Rail (COTIF) and to the Appendices thereto (OJ 2014 L 293, p. 26).


3      C‑600/14, EU:C:2017:935.


4      Pursuant to Article 5(2) TEU.


5      See Govaere, I., ‘To Give or To Grab: The Principle of Full, Crippled and Split Conferral of Powers Post-Lisbon, in M. Cremona, Structural Principles in EU External Relations Law, Hart Publishing, Oxford and Portland, Oregon, 2018, pp. 71-91, at p. 73.


6      Decision of 16 June 2011 on the signing and conclusion of the Agreement between the European Union and the Intergovernmental Organisation for International Carriage by Rail on the Accession of the European Union to the Convention concerning International Carriage by Rail (COTIF) of 9 May 1980, as amended by the Vilnius Protocol of 3 June 1999 (OJ 2013 L 51, p. 1).


7      In its judgment of 5 December 2017, Germany v CouncilGermany v CouncilGermany v Council (C‑600/14, EU:C:2017:935), the Court dismissed the Federal Republic of Germany’s action in its entirety.


8      Judgment of 5 December 2017, Germany v CouncilGermany v CouncilGermany v Council (C‑600/14, EU:C:2017:935).


9      The Federal Republic of Germany points to the following cases: judgments of 5 June 2003, Commission v ItalyCommission v ItalyCommission v Italy (C‑145/01, EU:C:2003:324, paragraph 15); of 27 October 2005, Commission v ItalyCommission v ItalyCommission v Italy (C‑525/03, EU:C:2005:648, paragraph 15); and of 11 October 2007, Commission v GreeceCommission v GreeceCommission v Greece (C‑237/05, EU:C:2007:592, paragraph 29).


10      Decision of 18 September 2015 establishing the position to be adopted on behalf of the European Union at the 12th General Assembly of the Intergovernmental Organisation for International Carriage by Rail (OTIF) with regard to certain amendments to the Convention concerning International Carriage by Rail (COTIF) and its appendices (OJ 2015 L 252, p. 43).


11      Literally, ‘the train has departed’, which translates to the English expression, ‘the ship has sailed’.


12      C‑362/90, EU:C:1992:158, paragraphs 11-13.


13      See, by way of example, judgments of 24 March 1988, Commission v GreeceCommission v GreeceCommission v Greece (240/86, EU:C:1988:173, paragraphs 15 and 16), and of 15 January 2002, Commission v ItalyCommission v ItalyCommission v Italy (C‑439/99, EU:C:2002:14, paragraphs 16 and 17). For a comprehensive overview of the case-law on past infringements, see Prete, L., Infringement proceedings in EU law, Wolters Kluwer, Alphen aan den Rijn, 2017, pp. 151-154.


14      See judgment of 31 March 1992 (C‑362/90, EU:C:1992:158).


15      See judgment of 31 March 1992, Commission v ItalyCommission v ItalyCommission v Italy (C‑362/90, EU:C:1992:158, paragraphs 11 and 12). In another case in the domain of public procurement, as far as concerns the award of public procurement contracts, the Court held that an action for failure to fulfil obligations is inadmissible if, when the period prescribed in the reasoned opinion expired, the contract in question had already been completely performed: judgment of 2 June 2005, Commission v GreeceCommission v GreeceCommission v Greece (C‑394/02, EU:C:2005:336, paragraph 18). Here, however, the contract had not been fully performed, given that when the period prescribed by the reasoned opinion expired only 85% of the works had been completed. See also judgment of 29 October 2009, Commission v GermanyCommission v GermanyCommission v Germany (C‑536/07, EU:C:2009:664, paragraph 23). Also here: the contract in question, that is the project at issue viewed as a whole, had not been completely performed when the period prescribed in the reasoned opinion expired merely because the building works in question had been completed. In fact, the ‘lease’ aspect of that project was ongoing at that time.


16      See judgment of 31 March 1992, Commission v ItalyCommission v ItalyCommission v Italy (C‑362/90, EU:C:1992:158, paragraph 12). This formula was repeated in judgment of 25 October 2001, Germany v CommissionGermany v CommissionGermany v Commission (C‑276/99, EU:C:2001:576, paragraph 32). The latter judgment was handed down under Article 88 of the now redundant Treaty establishing the European Coal and Steel Community. Here, infringement procedures differed in the sense that as of the end of the pre-litigation procedure, the roles were reversed, as compared to Article 258 TFEU: instead of a reasoned opinion, the Commission adopted a decision (Article 14 ECSC, comparable in this respect to Article 288 TFEU) which could then be challenged by a Member State before the court.


17      See Opinion of Advocate General Mengozzi in Commission v GreeceCommission v GreeceCommission v Greece (C‑237/05, EU:C:2007:98, point 42, footnote 11).


18      The rule being ‘where the infringements were terminated before [the expiry of the period laid down in the reasoned opinion] there is in principle no ground for considering that there is an interest in pursuing the action’, see Opinion of Advocate General Lenz in Commission v ItalyCommission v ItalyCommission v Italy (C‑362/90, EU:C:1992:95, point 12).


19      See Opinion of Advocate General Lenz in Commission v ItalyCommission v ItalyCommission v Italy (C‑362/90, EU:C:1992:95, point 13).


20      I should like to stress that we are still at the level of the admissibility of the case. Obviously, whether an infringement actually existed at the material time is a question concerning the substance of the action, see also Opinion of Advocate General Alber in Commission v AustriaCommission v AustriaCommission v Austria (C‑328/96, EU:C:1999:5, point 30).


21      Opinion of Advocate General Mengozzi in Commission v GreeceCommission v GreeceCommission v Greece (C‑237/05, EU:C:2007:98, point 66).


22      See Opinion of Advocate General Geelhoed in Joined Cases Commission v GermanyCommission v GermanyCommission v Germany (C‑20/01 and C‑28/01, EU:C:2002:717, point 53). For the sake of completeness, the citation goes on ‘of the Directive committed by means of long-term contracts which are legally unassailable’ (the case was about procurement procedures).


23      See judgment of 7 February 1973, Commission v ItalyCommission v ItalyCommission v Italy (39/72, EU:C:1973:13, paragraph 10).


24      See Opinion of Advocate General Kokott in Commission v ItalyCommission v ItalyCommission v Italy (C‑385/02, EU:C:2004:276, point 15). See also Nowak, C., ‘§ 10 Vertragsverletzungsverfahren’, point 44, in St. Leible, J. Ph. Terhechte, Europäisches Rechtsschutz- und Verfahrensrecht (Enzyklopädie Europarecht, Band 3), Nomos, Baden-Baden, 2014 who further differentiates between the terms ‘Rechtsschutzinteresse’, ‘Rechtsschutzbedürfnis’ and ‘Klageerhebungsinteresse’. See also Półtorak, N., commentary on Article 258 TFEU in: A. Wróbel (ed.), Traktat o funkcjonowaniu Unii Europejskiej. Komentarz Lex, Vol. II, Warsaw, 2012, p. 269.


25      See judgment of 10 April 2003, Commission v GermanyCommission v GermanyCommission v Germany (C‑20/01 and C‑28/01, EU:C:2003:220, paragraphs 29 and 30 and the case-law cited). See also Opinion of Advocate General Jacobs in Commission v GreeceCommission v GreeceCommission v Greece (C‑394/02, EU:C:2005:105, point 15). Moreover, see Taborowski, M., Konsekwencje naruszania prawa Unii Europejskiej przez sądy krajowe, Lex — Wolters Kluwer, Warsaw 2012, p. 265 et seq.


26      Interestingly, as part of its argument on the exception of illegality (see below in this Opinion), in order to justify that exception in the context of an infringement procedure, the Federal Republic of Germany in its defence submission acknowledges itself that in cases where there was a risk of a gap in the system of legal protection, the Court of Justice has interpreted the relevant Treaty provisions broadly and even beyond their wording.


27      See by way of example judgments of 27 February 2018, Associação Sindical dos Juízes PortuguesesAssociação Sindical dos Juízes PortuguesesAssociação Sindical dos Juízes PortuguesesAssociação Sindical dos Juízes PortuguesesAssociação Sindical dos Juízes PortuguesesAssociação Sindical dos Juízes PortuguesesAssociação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117, paragraphs 19-26), and of 25 July 2018, AY (Arrest warrant – Witness) (C‑268/17, EU:C:2018:602, paragraphs 23-31).


28      See judgment of 23 April 1986, Les Verts v ParliamentLes Verts v ParliamentLes Verts v Parliament (294/83, EU:C:1986:166, paragraph 24).


29      See judgment of 22 May 1990, Parliament v CouncilParliament v CouncilParliament v Council (C‑70/88, EU:C:1990:217, paragraph 26).


30      See judgment of 25 July 2002, Unión de Pequeños Agricultores v CouncilUnión de Pequeños Agricultores v CouncilUnión de Pequeños Agricultores v CouncilUnión de Pequeños Agricultores v CouncilUnión de Pequeños Agricultores v CouncilUnión de Pequeños Agricultores v Council (C‑50/00 P, EU:C:2002:462, paragraph 45).


31      When that Member State was asked during the hearing why it had not pleaded a non-existent act in the context of Case C‑600/14, Germany v CouncilGermany v CouncilGermany v Council, it replied that it had only noticed this issue at a later stage.


32      The Federal Republic of Germany had argued in that case that Decision 2014/699 infringed the principle of conferral (Article 5(2) TEU), is insufficiently motivated and infringed the principle of loyal cooperation in conjunction with the principle of effective judicial protection.


33      Even though it would appear reasonable to preclude a Member State which has already challenged an act it presumed to exist in the context of an action of annulment from subsequently invoking an alleged non-existence, it is of course for the Court to examine the question of a non-existent act ex officio.


34      See also, in this sense, judgment of 12 February 2009, Commission v GreeceCommission v GreeceCommission v Greece (C‑45/07, EU:C:2009:81, paragraph 26). The same applies to a breach by another Member State, see judgment of 23 May 1996, Hedley Lomas (C‑5/94, EU:C:1996:205, paragraph 20 and the case-law cited).


35      See Obwexer, W., in H. von der Groeben, J. Schwarze, J. A. Hatje (ed.), Europäisches Unionsrecht (Kommentar), 7th ed., Nomos, Baden-Baden, 2015, Artikel 4 EUV, point 67.


36      See Kahl, W., in Chr. Calliess, M. Ruffert (ed.), EUV/AEUV, 5th ed., C. H. Beck, Munich, 2016, Artikel 4 EUV, point 35: ‘Geschäftsgrundlage des gesamten europäischen Integrationsprojekts.’ See also Sikora, A., Sankcje finansowe w razie niewykonania wyroków Trybunału Sprawiedliwości Unii Europejskiej, Lex — Wolters Kluwer, Warsaw 2011, p. 38 et seq


37      Such as Article 344 TFEU, see judgment of 30 May 2006, Commission v IrelandCommission v IrelandCommission v Ireland (C‑459/03, EU:C:2006:345, paragraph 169).


38      See, by way of example, in Franzius, C., in M. Pechstein, C. Nowak, U. Häde (eds), Frankfurter Kommentar zu EUV, GRC und AEUV, Band II, Mohr Siebeck, Tübingen, 2017, Artikel 4 EUV, point 101.


39      See judgments of 13 October 1993, Commission v SpainCommission v SpainCommission v Spain (C‑378/92, EU:C:1993:843, paragraph 6), and of 19 January 1995, Commission v BelgiumCommission v BelgiumCommission v Belgium (C‑66/94, EU:C:1995:13, paragraph 6).


40      See Lenz, C. O., in C. O. Lenz, K.-D. Borchardt, EU-Verträge Kommentar, Bundesanzeiger Verlag, 6th ed., Cologne, 2013, Artikel 4 EUV, point 17 et seq; Streinz, R., in R. Streinz (ed.), EUV/AEUV (Kommentar), 2nd ed., C. H. Beck, Munich, 2012., Artikel 4 EUV, point 27.


41      On the duty of sincere cooperation in mixed agreements, see Heliskoski, J., Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States, Kluwer Law International, The Hague, 2001, pp. 61-67, and Cremona, M., ‘Defending the Community Interest: the Duties of Cooperation and Compliance’, in B. de Witte, M. Cremona (eds), EU Foreign Relations Law, Hart Publishing, Oxford and Portland, Oregon, 2008, pp. 158-161.


42      See also Ruling (1/78 of 14 November 1978, EU:C:1978:202, paragraphs 34-36) (by analogy with the EAEC Treaty); Opinion 2/91 (ILO Convention No 170), of 19 March 1993 (EU:C:1993:106, paragraph 36); Opinion 1/94 (Agreements annexed to the WTO Agreement), of 15 November 1994 (EU:C:1994:384, paragraph 108); and Opinion 2/00 (Cartagena Protocol on Biosafety), of 6 December 2001 (EU:C:2001:664, paragraph 18). See also Opinion 1/08 (Agreements modifying the Schedules of Specific Commitments under the GATS) of 30 November 2009 (EU:C:2009:739, paragraph 136), and judgment of 20 April 2010, Commission v SwedenCommission v SwedenCommission v Sweden (C‑246/07, EU:C:2010:203, paragraph 73).


43      It appears that this reference to the requirement of unity has in the meantime been dropped by the Court, see judgment of 28 April 2015, Commission v CouncilCommission v CouncilCommission v Council (C‑28/12, EU:C:2015:282, paragraph 54).


44      In a similar vein, Hillion, Chr., ‘Mixity and Coherence in EU External Relations: The Significance of the “Duty of Cooperation”’, in Chr. Hillion, P. Koutrakos, Mixed agreements revisited, Hart Publishing, Oxford and Portland, Oregon, 2010, pp. 87-115, at p. 89 argues that the legal foundation of the duty of cooperation is to be seen in Article 4(3) TEU. The same author, ibid. at p. 91, convincingly argues that ‘the requirement was not originally envisioned as a foundation of the duty of cooperation but as a means to apply it to the EEC context, its foundation being the same as in the Euratom context, namely, the general principle of loyal cooperation’.


45      See judgment of 19 March 1996, Commission v CouncilCommission v CouncilCommission v Council (C‑25/94, EU:C:1996:114, paragraph 49). On the events leading to that dispute, see Heliskoski, J., ‘Internal struggle for international presence: the exercise of voting rights within the FAO’, in A. Dashwood, Chr. Hillion, The general law of E.C. external relations, Sweet & Maxwell, London, 2000, pp. 79-99.


46      To avoid any misunderstanding, I understand the principle of sincere cooperation under Article 4(3) TEU to include the ‘duty of cooperation’ which the Court has in the past referred to in the cases cited above. I also understand the Opinion of Advocate General Sharpston in 2/15 (EU-Singapore Free Trade Agreement, EU:C:2016:992, point 569) in the same manner. Moreover, this is clear in particular since the MOX-Plant case where the Court, for the first time, specifically referred to the former Treaty provision of Article 10 EC in this context (even though the case was in essence about the more specific provision of Article 344 TFEU), see judgment of 30 May 2006, Commission v IrelandCommission v IrelandCommission v Ireland (C‑459/03, EU:C:2006:345, paragraph 114). On this point see also Hillion, Chr., ‘Mixity and Coherence in EU External Relations: The Significance of the “Duty of Cooperation”, in Chr. Hillion, P. Koutrakos, Mixed agreements revisited, Hart Publishing, Oxford and Portland, Oregon, 2010, pp. 87-115, at pp. 90-91.