Opinion of the Advocate General — ECLI:EU:C:2019:3
Date: 2019-01-09
Language of the case: German
Subject matter: Principles, objectives and tasks of the Treaties
Procedure: Action for failure to fulfil obligations - successful
Origin: Germany

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.