Opinion of the Advocate General — ECLI:EU:C:2008:642
Date: 2008-11-20
Language of the case: Greek
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Principles, objectives and tasks of the Treaties;Transport
Procedure: Action for failure to fulfil obligations - successful
Origin: Greece

Summary of the Judgment 1. Member States – Obligations – Obligation to cooperate in good faith with the Community institutions – Ship and port facility security (Arts 10 EC, 71 EC and 80(2) EC; European Parliament and Council Regulation No 725/2004) 2. European Communities – Institutions – Obligations – Obligation to cooperate in good faith – Reciprocity (Arts 10 EC, 71 EC and 80(2) EC) 3. International agreements – Community not a member of an international organisation – Area falling within the external competence of the Community 4. International agreements – Agreements concluded by the Member States – Agreements predating the EC Treaty – Article 307 EC – Scope (Art. 307(1) EC) 1. To the extent to which Community rules are promulgated for the attainment of the objectives of the Treaty, the Member States cannot, outside the framework of the Community institutions, assume obligations which might affect those rules or alter their scope. The provisions of Regulation No 725/2004 on enhancing ship and port facility security, which has as its legal basis Article 80(2) EC, the second subparagraph of which refers to Article 71 EC, are Community rules promulgated for the attainment of the objectives of the Treaty. In asking the International Maritime Organisation (IMO) Maritime Safety Committee to examine the creation of check lists or other appropriate tools for assisting the Contracting States of the International Convention for the Safety of Life at Sea in monitoring whether ships and port facilities comply with the requirements of Chapter XI-2 of the Annex to that convention and the International Ship and Port Facility Security Code, a Member State submits to that committee a proposal which initiates a procedure which could lead to the adoption by the IMO of new rules. The adoption of such new rules would as a consequence have an effect on the regulation, the Community legislature having decided to incorporate in substance both of those international instruments into Community law. In those circumstances, the Member State which sets in motion such a procedure takes an initiative likely to affect the provisions of the regulation, which is an infringement of the obligations under Articles 10 EC, 71 EC and 80(2) EC. (see paras 17-18, 21-23) 2. Any breach by the Commission of Article 10 EC cannot entitle a Member State to take initiatives likely to affect Community rules promulgated for the attainment of the objectives of the Treaty, in breach of that State’s obligations, which arise under Articles 10 EC, 71 EC and 80(2) EC. Indeed, a Member State may not unilaterally adopt, on its own authority, corrective or protective measures designed to obviate any breach by an institution of rules of Community law. (see para. 26) 3. The mere fact that the Community is not a member of an international organisation in no way authorises a Member State, acting individually in the context of its participation in an international organisation, to assume obligations likely to affect Community rules promulgated for the attainment of the objectives of the Treaty. The fact that the Community is not a member of an international organisation does not prevent its external competence from being in fact exercised, in particular through the Member States acting jointly in the Community’s interest. (see paras 30-31) 4. Article 307(1) EC is designed to apply only if there is an incompatibility between, on the one hand, an obligation arising under an international convention and, on the other, an obligation arising under Community law. (see para. 35)