Judgment — ECLI:EU:C:2000:359
Date: 2000-07-04
Language of the case: Portuguese
Court formation: Full Court
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Freedom to provide services;Transport
Concepts: Maritime transport;Rights of non-member countries under prior agreements;General
Procedure: Action for failure to fulfil obligations - successful
Origin: Portugal

Summary of the Judgment 
1. Transport — Maritime transport — Cargo-sharing agreement between a Member State 
and a third country — Obligation to adjust an agreement in existence before the entry 
into force of Regulation No 4055/86 — Non-compliance — Obligation of the Member 
State to denounce such an agreement — Failure to fulfil obligation — Justification 
based on the existence of a difficult political situation in the third country — Not 
permissible 
(Art. 169 of the Treaty (now Art. 226 EC); Council Regulation No 4055/86, Art. 3 
and 4(1)) 
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SUMMARY — CASE C-84/98 
2. International agreements — Agreements concluded by Member States — Agreements 
predating the EC Treaty — Rights of third States and obligations of the Member 
States — Obligation to eliminate any incompatibilities between a prior agreement and 
the Treaty — Scope 
(Art. 234 of the Treaty (now, after amendment, Art. 307 EC)) 
1. Where a Member State has not succee­
ded in adjusting, by recourse to diplo­
matic means, within the time-limit laid 
down by Regulation No 4055/86 
applying the principle of freedom to 
provide services to maritime transport 
between Member States and between 
Member States and third countries, a 
bilateral agreement concluded with a 
third State before the accession of the 
Member State to the Communities and 
containing cargo-sharing arrangements 
incompatible with that regulation, and 
in so far as denunciation of such an 
agreement is possible under interna­
tional law, it is incumbent on the 
Member State concerned to denounce 
it. 
In that regard, the existence of a 
difficult political situation in the third 
State which is a contracting party 
cannot justify a continuing failure on 
the part of a Member State to fulfil its 
obligations under the Treaty. 
(see paras 40, 48) 
2. The purpose of the first paragraph of 
Article 234 of the Treaty (now, after 
amendment, the first paragraph of 
Article 307 EC) is to make it clear, in 
accordance with the principles of inter­
national law that application of the 
Treaty does not affect the duty of the 
Member State concerned to respect the 
rights of third countries under a prior 
agreement and to perform its obliga­
tions thereunder. Although, in the con­
text of the second paragraph of Arti­
cle 234, the Member States have a 
choice as to the appropriate steps to 
be taken, they are nevertheless under 
an obligation to eliminate any incom­
patibilities existing between a pre-
Community convention and the Treaty. 
If a Member State encounters difficul­
ties which make adjustment of an 
agreement impossible, an obligation 
to denounce that agreement cannot 
therefore be excluded. 
In that connection, the argument that 
such denunciation would involve a 
disproportionate disregard of foreign-
policy interests of the Member State 
concerned as compared with the Com­
munity interest cannot be accepted. 
The balance between the foreign-policy 
interests of a Member State and the 
Community interest is incorporated in 
Article 234 of the Treaty, in that it 
allows a Member State not to apply a 
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COMMISSION V PORTUGAL 
Community provision in order to 
respect the rights of third countries 
deriving from a prior agreement and to 
perform its obligations thereunder. 
That article also allows them to choose 
the appropriate means of rendering the 
agreement concerned compatible with 
Community law. 
(see paras 53, 58-59) 
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