Opinion of the Advocate General — ECLI:EU:C:2017:296
Date: 2017-04-24
Language of the case: German
Subject matter: External relations;Provisions governing the Institutions;Transport;International agreements
Procedure: Action for annulment - unfounded
Origin: Germany

summary form the situations in which the European Union has such competence. Article 216(1) TFEU provides for EU external competence in four situations which essentially affirm the case-law of the Court concerning external competences. (36) 66. Under Article 216(1) TFEU, the European Union may conclude an agreement with one or more third countries or international organisations, (1) where the Treaties so provide (37) or where the conclusion of an agreement (2) (38) is necessary in order to achieve, within the framework of the European Union’s policies, one of the objectives referred to in the Treaties, (39) (3) or is provided for in a legally binding EU act (40) (4) or is likely to affect common rules or alter their scope. (41) 67. I note at the outset that the second and fourth situations are concerned with competences which, before the entry into force of the Treaty of Lisbon, were commonly referred to as ‘implicit’ competences. 68. Article 216(1) TFEU remains silent on whether the external competence is exclusive or shared, and with good reason. I shall return to that issue shortly. (b) Exclusive and shared competences 69. The categories and areas of EU competence are, since the entry into force of the Treaty of Lisbon, explained in detail in Title I (‘Categories and areas of Union competence’) of the first part of the FEU Treaty entitled ‘Principles’. 70. First of all, under Article 2(1) TFEU, when the Treaties confer on the European Union exclusive competence in a specific area, only the European Union may legislate and adopt legally binding acts. However, according to Article 2(2) TFEU, when the Treaties confer on the European Union a competence shared with the Member States in a specific area, the European Union and the Member States may legislate and adopt legally binding acts in that area. 71. That latter provision contains a principle of pre-emption, in that it states that the Member States are to exercise their competence to the extent that the European Union has not exercised its competence and that they are again to exercise their competence to the extent that the European Union has decided to cease exercising its competence. 72. That principle applies to both internal and external competences. (42) 73. Next, Articles 3 to 6 TFEU determine the different types of EU competence according to its areas of action. Article 3 TFEU, which I shall examine in more detail below, covers exclusive competence; Article 4 TFEU provides that the shared competence is the ‘default’ (43) competence and lays down the principal areas in which the European Union and the Member States share competences (44) (transport is expressly included in that list); (45) Article 5 TFEU covers the coordination of economic policies within the European Union and Article 6 TFEU provides that the European Union is to have competence ‘to carry out actions to support, coordinate or supplement the actions of the Member States’ in particular areas, such as the protection and improvement of human health and industry. 74. I shall now return to Article 3 TFEU. That provision sets out an exhaustive list of the areas in which the European Union has exclusive competence. Article 3(1) lists the areas in which the European Union has (express) exclusive competence, namely the customs union, the establishing of the competition rules necessary for the functioning of the internal market, monetary policy for the Member States whose currency is the euro, the conservation of marine biological resources under the common fisheries policy and the common commercial policy. 75. Article 3(2) TFEU provides that the European Union is also to have exclusive competence for the conclusion of an international agreement (1) when its conclusion is provided for in a legislative act of the European Union or (2) is necessary to enable the European Union to exercise its internal competence, or (3) in so far as its conclusion may affect common rules or alter their scope. It should be emphasised that Article 3(2) TFEU, unlike Article 3(1) TFEU, by referring to ‘the conclusion of an international agreement’, is limited to EU external competences. 76. However, where the European Union has shared competence, both it and the Member States have the power to act. 77. Nevertheless, where, and to the extent that, the European Union has exercised its shared external competence, the Member States are no longer capable of acting. (46) The Member States are to exercise their competence only to the extent that the European Union has not exercised its competence. (47) Where the European Union exercises its shared external competence, it acts alone. (48) The exercise of a shared competence by the European Union therefore includes an element of exclusivity, since the Member States may no longer act. The principle of pre-emption enshrined in Article 2(2) TFEU applies in such a situation. (49) 78. The question of when and how the European Union exercises that competence is essentially a political one (50) which is covered by the procedure laid down in Article 218 TFEU. (51) 79. It is necessary to point out the difference between an exclusive competence, within the meaning of Article 3 TFEU, and a shared competence which the European Union has decided to exercise. Thus, pursuant to the third sentence of Article 2(2) TFEU, the Member States are again to exercise their competence to the extent that the European Union has decided to cease exercising its competence. That provision applies only to shared competences. 80. Therefore, as regards the relationship between Article 216(1) and Article 3(2) TFEU, it should be noted that the first provision concerns the existence of external competence, whereas the second resolves the issue of whether or not such external competence (which exists pursuant to Article 216 TFEU) is exclusive. (52) 81. In my view, that clearly follows from the wording of those two provisions and from their respective positions in the FEU Treaty. It also follows that the wording, and therefore the scope, of Article 216(1) TFEU is more extensive than that of Article 3(2) TFEU. Only some of the competences set out in Article 216(1) TFEU are exclusive competences pursuant to Article 3(2) TFEU. (53) 82. It must therefore be determined, as a first step, whether an EU competence exists pursuant to Article 216(1) TFEU, read in conjunction, where appropriate, with other provisions of the FEU Treaty, before addressing the question of the nature of that competence, in particular the question whether it is exclusive pursuant to Article 3(2) TFEU or merely shared. The Court follows that same approach. (54) (c) Shared competences and mixed agreements: two separate issues 83. It should be emphasised that the issue of competence — whether exclusive or shared — must not be conflated with that of a mixed agreement, namely an agreement, with one or more third States or an international organisation, to which both the European Union and the Member States are parties. 84. As Advocate General Wahl noted in his Opinion in Opinion procedure 3/15, (55) ‘the choice between a mixed agreement or an EU-only agreement, when the subject matter of the agreement falls within an area of shared competence … is generally a matter for the discretion of the EU legislature’. 85. EU law requires the conclusion of a mixed agreement only in the event that that agreement includes a part which falls under the competence of the European Union and a part which falls under the exclusive competence of the Member States, without any of those parts being ancillary to the other. (56) 86. Similarly, amendments to a mixed agreement, such as that in the main proceedings, follow the same principle. If, for example, in an area of shared competences, the European Union decided to exercise its competence in connection with such amendments, it would then be the European Union, and no longer the Member States, which would take any decision. 87. The accession agreement reflects that reality. Under Article 6(2) of that agreement, for decisions in matters where the European Union shares competence with the Member States, either the European Union or the Member States are to vote. Consequently, once the European Union has decided to exercise its shared external competence, it alone votes within OTIF. 88. It is common ground among the parties that, under Article 4(2)(g) TFEU, as regards measures relating to transport policy within the European Union, competence is shared between the European Union and the Member States and that, where there is shared competence, it follows from Article 2(2) TFEU that both the European Union and the Member States may legislate and adopt legally binding acts and that the Member States are to exercise their competence only to the extent that the European Union has not exercised its competence. 89. Moreover, it is common ground (57) that, first, the European Union has internal competence, on the basis of Article 91(1) TFEU, to adopt provisions in areas relating to private transport law for rail transport undertakings, namely (private) law relating to the carriage of goods, law relating to charter contracts or contracts regarding the provision of a vehicle for use and contract law relating to the use of infrastructure and that, secondly, the European Union has not yet exercised that competence. 90. Curiously, the Council indicates in the paragraphs at issue in the contested decision that the competence is a shared competence, whereas in its statement in defence it states that the European Union has exclusive competence. 3. The existence of external competence (a) Arguments of the parties 91. The Federal Republic of Germany claims that, outside the European Union, transport policy is an area of competence shared by the European Union and the Member States, except in the situations covered by Article 3(2) TFEU, in which the external competence of the European Union is exclusive. 92. In order to ensure that the European Union has competence to adopt, in accordance with Article 218(9) TFEU, a decision establishing a position to be taken on behalf of the European Union in an international body, where the purpose of the act adopted by such a body is to amend the provisions of a mixed agreement, it is necessary, according to the Federal Republic of Germany, to verify whether the amendments relate to provisions of the agreement which fall within EU competence. In the absence of such competence, no decision establishing the position of the European Union can be adopted. For the Federal Republic of Germany, what is important, for the purposes of that verification, is whether the decision of the international body in question has a direct effect on the EU acquis and, therefore, whether there are common rules which may be undermined or whose scope may be altered as a result of the decision at issue. According to the Federal Republic of Germany, the existence of such a risk presupposes that the amendments to provisions of an international agreement fall within an area in which the European Union has already adopted common rules. In that regard, the Federal Republic of Germany refers to the case giving rise to the AETR judgment. (58) 93. The Council, supported by the Commission, notes that EU external action is not restricted to matters which are already the subject of EU internal provisions. It claims that the European Union may also act, externally, where the matters in question are not yet or are only partially the subject of legislation within the European Union, and that legislation therefore cannot be affected. It considers that an international agreement could be concluded by the European Union alone, using a ‘potential’ competence externally. 94. Unlike the Federal Republic of Germany, the Council considers that, in an area falling within the scope of a shared competence, a position to be adopted on behalf of the European Union within a body set up by an international agreement may be established by a decision adopted pursuant to Article 218(9) TFEU, since such a position serves EU interests, even where there are no common rules relating to the matter in question. Such a case would involve the exercise of a shared external competence, which, pursuant to Protocol (No 25) on the exercise of shared competence, annexed to the EU Treaty and the FEU Treaty, (59) would be limited to the specific elements governed by the legal act of the European Union. 95. In the present case, the European Union chose to exercise its external competence in the area of transport with a view to becoming a contracting party to the COTIF, by specifying the extent and the nature of its competence in matters for which it has assumed competences, as confirmed by the reference to Article 91 TFEU in the first citation of Decision 2013/103 and the declaration on the competence of the European Union annexed to that decision. That declaration, which might suggest that the transfer of shared competences is subject to the existence of EU provisions, does not in fact exclude the possibility of a new transfer of shared competences in the context of the COTIF. (b) Assessment 96. As a first step, it is necessary to analyse whether in the present case the European Union had external competence pursuant to Article 216(1) TFEU. (1) The second situation referred to in Article 216(1) TFEU 97. As I have already indicated, the second situation referred to in Article 216(1) TFEU authorises the European Union to conclude an agreement with one or more third countries or international organisations where the conclusion of an agreement ‘is necessary in order to achieve, within the framework of the Union’s policies, one of the objectives referred to in the Treaties’. 98. In the present case, the convention at issue does indeed concerns an EU policy, (60) since transport is the subject matter of Title VI of Part Three of the FEU Treaty. Pursuant to Article 90 TFEU, the objectives of the Treaties are to be pursued, in matters governed by that title, within the framework of a common transport policy. More precisely, it follows from Article 91(1) TFEU that the European Union has (internal) competence to draw up that transport policy. Moreover, pursuant to Article 100(1) TFEU, the provisions of Title VI are to apply, inter alia, to transport by rail. 99. Furthermore, it follows from the case-law of the Court that Article 91(1) and Article 80(1) TFEU provide for an EU power to act in the field of transport. (61) 100. In a broader sense, transport policy is inextricably linked with the policy of the internal market. Not only does transport policy directly contribute to the accomplishment of the internal market, but the FEU Treaty itself also provides that certain aspects of transport constitute in themselves a particular category of services. (62) 101. As regards the criterion of necessity referred to in the second situation provided for in Article 216(1) TFEU, (63) that must, in my view, be interpreted broadly. (64) In that regard, the political institutions with competence have a wide margin of discretion. The criterion of necessity could even be regarded as a simple declaratory confirmation of the principles of subsidiarity (65) and proportionality. (66) 102. In any event, as I understand the second situation envisaged in Article 216(1) TFEU, the criterion of necessity is a criterion which primarily serves to exclude EU external competence where external action by the European Union does not allow the objectives of the FEU Treaty to be achieved. 103. That is not the case here. The purpose of the amendments at issue is the achievement of the objectives of the FEU Treaty within the framework of transport policy. 104. The question which now arises is whether the European Union has external competence, given that the requirements of the second situation provided for in Article 216(1) TFEU have been fulfilled, or whether additional requirements must be fulfilled. Does the European Union therefore have external competence without the need for prior internal legislation? 105. I think that it does. 106. Also clear and leaving little room for doubt is the wording of the second situation provided for in Article 216(1) TFEU; this is strikingly similar to the wording of Article 352(1) TFEU, (67) which may be explained by the fact that the case-law of the Court prior to the adoption of the Treaty of Lisbon has, ‘in a sense, transposed to the sphere of the [European Union’s] external competence the logic underlying Article [352 TFEU]’. (68) That provision refers to the objectives set out in the Treaties, within the framework of the European Union’s policies. (69) No prior internal regulation is required. In the provisions of the FEU Treaty, it is only at the stage of classifying an external competence (established pursuant to Article 216(1) TFEU) that the question of internal legislation addressed in the second situation described in Article 3(2) TFEU (70) arises and, even then, prior internal legislation is not required. (71) 107. Moreover, the case-law of the Court does not contain a requirement concerning prior internal legislation. Each time the question of prior internal legislation has been raised, it was necessary to determine not whether an external competence existed but whether or not an external competence was to be classified as an exclusive external competence. (72) 108. Furthermore, it follows from the judgment in Kramer and Others (73) that the mere existence of an internal competence an external competence, even where internal measures have not (yet) been adopted. (74) 109. In Opinion 2/00, (75) the Court ruled on the choice of the appropriate legal basis for the act by which the Council proposed to conclude the Cartagena Protocol on Biosafety. That issue divided the Commission, on the one hand, and the Council and the Member States, on the other. Whilst, in the Commission’s view, pursuant to Article 207 TFEU that protocol essentially fell within the scope of the common commercial policy, an exclusive external competence of the European Union, according to the Council and the Member States, pursuant to Article 192(1) TFEU the protocol fell within the scope of environmental policy, (likewise) an external competence but a shared one. 110. According to the Court, the conclusion of the Cartagena Protocol on behalf of the European Union had to be founded on a single legal basis which was specific to environmental policy, namely Article 192(1) TFEU. (76) Moreover, the Court added, referring to the AETR judgment, (77) that ‘it is thus also necessary to consider whether the [European Union] holds exclusive competence [(78)] under Article [192 TFEU] to conclude the Protocol because secondary legislation adopted within the framework of the [European Union] covers the subject of biosafety and is liable to be affected if the Member States participate in the procedure for concluding the Protocol.’ (79) The Court considered that, in that case, the harmonisation achieved at internal level in the Cartagena Protocol’s field of application covered only a very small part of such a field and concluded that the European Union and its Member States shared competence to conclude the protocol. (80) 111. The Court therefore found, first, that an EU competence exists, before addressing the question of its exclusive nature. It is only at the second stage that it examined whether there existed any secondary legislation. It thus follows from Opinion 2/00 (81) that the existence of a shared external competence is independent of the existence of secondary legislation and, therefore, of the exercise of an internal competence. 112. Next, it follows from the cases which gave rise to the judgments in Commission v France (82) and Commission v Ireland (83) that the European Union may conclude international agreements even where the specific matters covered by those agreements are not yet or are only partially subject to legislation at EU level, legislation which, therefore, cannot be affected. 113. Those three cases (84) concerned the external competence of the European Union in the field of the environment, a competence which is shared. The fact that the competence in question was an explicit external competence based on Article 192 and the fourth indent of Article 191(1) TFEU (85) and, unlike that in Article 91 TFEU, read in conjunction with the second situation provided for in Article 216(1) TFEU, not an implicit external competence in no way alters the finding in the preceding point, contrary to what the Federal Republic of Germany claims. An implicit competence is no less valid that an explicit competence. 114. Moreover, I am well aware that the contexts of the cases which gave rise to the above judgments in Commission v France and Commission v Ireland weredifferent from that of the present case, in so far as those cases were primarily concerned with an examination by the Court of its own jurisdiction to interpret the provisions of a mixed agreement and to hear and rule on a dispute relating to compliance with those provisions. However, that does not alter the findings of the Court in those cases in the slightest. The context may be different but the law is not. What was at issue in those two cases was the external competence of the European Union in the field of the environment, a competence which is, in principle, shared. 115. The findings of the Court in Commission v France and Commission v Ireland may therefore be transposed to the present case. (86) (2) The Council’s other obligations 116. My proposed reading of the second situation provided for in Article 216(1) TFEU does not mean that the political institutions of the European Union have unlimited discretion. 117. First, they are subject to the obligation to state reasons under Article 296(2) TFEU. I shall deal with that point in depth during the examination of the second plea raised by the Federal Republic of Germany. 118. Secondly, if those institutions exercise a shared competence, they must comply with the principle of subsidiarity enshrined in Article 5(3) TEU. That principle applies to the exercise of any shared competence, whether internal or external. (87) (c) Conclusion 119. In the light of those considerations, the European Union has an external competence pursuant to the combined provisions of Article 91 and the second situation referred to in Article 216(1) TFEU. I noted above that, in the context of the policies of the European Union, the purpose of the measures at issue is to achieve the objectives referred to in the Treaties. The Council exercised that competence. It follows that, in accordance with the second sentence of Article 2(2) TFEU, the Federal Republic of Germany may no longer exercise its shared competence. 120. Consequently, the Council did not infringe the principle of conferral contained in Article 5(2) TEU and the first plea must therefore be rejected. 121. The assessment of the first plea ought to be concluded here, since I propose that it be rejected. I shall nevertheless continue my analysis in the event that the Court may also desire an analysis concerning whether, in the present case, the European Union likewise has exclusive external competence. 4. The existence of exclusive external competence (a) The third situation envisaged in Article 3(2) TFEU 122. It must be assessed whether the European Union has exclusive external competence pursuant to Article 3(2) TFEU. 123. In the absence of a corresponding clause in an EU legislative act, the first situation provided for in Article 3(2) TFEU must be immediately ruled out. 124. The same applies to the second situation provided for in that article which, in my view, is not applicable, since it in no way follows from the file that the Council’s adoption of the decision is ‘necessary to enable the Union to exercise its internal competence’. The present case is therefore not an ‘Opinion 1/76 situation’. (88) 125. That leaves the third situation described in Article 3(2) TFEU. 126. The question which arises is the following: how must the phrase ‘insofar as its conclusion [that is the conclusion of an international agreement] may affect common rules or alter their scope’ contained in Article 3(2) TFEU be interpreted? 127. That phrase corresponds to that used by the Court in paragraph 22 of the AETR judgment, (89) in which it defined the nature of the international commitments which Member States cannot enter into outside the framework of the EU institutions, where common EU rules have been promulgated for the attainment of the objectives of the FEU Treaty. (90) That phrase must, therefore, be interpreted in the light of the clarifications provided by the Court in the AETR judgment and in the case-law flowing from that judgment. (91) 128. How, then, must the phrase ‘may affect common rules or alter their scope’ be interpreted? 129. The wording of Article 3(2) TFEU implies that EU rules must already exist in the area covered by the international agreement. If no such rules exist, it is difficult to imagine how the conclusion of the latter could affect or alter the scope of the former. (92) The ‘common rules’ within the meaning of that provision are, in my view, necessarily provisions of secondary EU law and do not include the provisions of the Treaties, for the simple reason that the purpose of that phrase is, broadly speaking, to codify the case-law flowing from the AETR judgment. (93) 130. According to settled case-law, there is a risk of international commitments undermining the common EU rules or altering their scope sufficiently to justify an exclusive external competence of the European Union where those commitments fall within an area in which those rules are applicable. (94) A finding that there is such a risk does not presuppose that the area covered by the international commitments and that of the EU rules coincide fully. (95) Such commitments may also affect or alter the scope of common EU rules when those commitments fall within an area which is already covered to a large extent by such rules. (96) 131. Moreover, the Court has noted that any EU competence, especially where it is exclusive, must have its basis in conclusions drawn from a comprehensive and specific analysis of the relationship between the envisaged international agreement and the EU law in force. That analysis must take into account the areas covered by the EU rules and by the provisions of the agreement envisaged, respectively, their foreseeable future development and the nature and content of those rules and those provisions, in order to determine whether the agreement is capable of undermining the uniform and consistent application of the EU rules and the proper functioning of the system which they establish. (97) 132. The present case must be analysed in the light of those elements. 133. The disputed amendments relate to the field of private contract law relating to goods and passenger transport by rail. It is common ground that that field has not yet been subject to EU legislation. 134. In that regard, the Council does not dispute the absence of comprehensive and coherent EU private law legislation in the field of transport. It considers, however, that the disputed amendments are likely to undermine other EU provisions, the majority of which are contained in ‘Annex III’ (98) to Decision 2013/103, and, therefore, that they fall under the exclusive competence of the European Union. (b) Item 5: partial revision of Appendix B (CIM) 135. The proposed amendments to Article 6 and Article 6a of Appendix B (CIM) provide for the introduction of an electronic consignment note. (1) Arguments of the parties 136. The Federal Republic of Germany emphasises that there is no provision in that connection in EU law in the field of goods transport. In such circumstances, no provision of EU law could be affected by the amendment of Appendix B (CIM). An indirect effect of that amendment on certain EU customs or veterinary provisions, which fall under public law, is insufficient to establish an effect on EU law. In any event, Article 2 of Appendix B (CIM), from which it follows that the provisions of customs law and those relating to animal protection remain unchanged, excludes any indirect effect on EU provisions on those matters. Moreover, the amendment at issue does not affect the right of the parties to agree on the use of paper consignment notes. 137. The Council claims that the introduction of electronic consignment notes will have an effect on the simplified procedure for customs transit by rail provided for in Articles 414 and 419 of Regulation No 2454/93 and, more particularly, on the formalities provided for in Article 412, Article 416(1) and Article 419(1) and (2) of that regulation, as well as Article 94 of Regulation No 2913/92. In fact, the use of electronic consignment notes would make it impossible to opt for a simplified customs procedure and, consequently, would render customs checks significantly more onerous. Moreover, the introduction of such notes would also have an impact on the legislation relating to animal and phytosanitary protection, namely on Directive 97/78/EC, (99) on Directive 2000/29/EC (100) and on Regulation No 136/2004, which provide as a general rule for the use of paper documents as accompanying documents. Furthermore, the origins of Article 6(7) of Appendix B (CIM) also demonstrate the direct interaction between the CIM consignment notes and EU customs law. Therefore, the amendment of Article 6 and the introduction of Article 6a into Appendix B (CIM) are likely to undermine the provisions of EU law. 138. According to the Council, the Federal Republic of Germany’s argument that the provisions of transport law set out in Annex I to Decision 2013/103 are not affected cannot succeed. Apart from the fact that that annex does not contain an exhaustive list of EU acts relating to subjects covered by the COTIF, the case-law of the Court does not require that the EU rules which may be undermined be contained in one and the same EU instrument. 139. Therefore, the Council contends that the European Union has exclusive competence as regards the proposed amendments to Appendix B (CIM). (2) Assessment 140. On the basis of the case-law cited above, concerning the European Union’s exclusive external competence and interpreting Article 3(2) TFEU, I do not see how, in the present case, the proposed amendments to Appendix B (CIM) ‘may affect common rules or alter their scope’. 141. Appendix B (CIM) concerns the contract of international carriage of goods by rail (CIM), that is to say the contract between a consignor of goods and a rail carrier. Such a contract must be certified by a ‘consignment note’ in a standard form, which accompanies every consignment. The consignment note contains, in particular, detailed information about the route and the dispatched goods. In the EU customs procedure, the consignment note replaces the transit declaration, which is usually necessary for all goods in transit through the European Union. (101) Even though the regulation implementing the customs code expressly refers to the CIM consignment note, that simplification, as the Federal Republic of Germany claims without contradiction from the Council, also applies in practice (102) to consignment notes governed by other international agreements. 142. The proposed amendment is for the introduction of a new Article 6a into Appendix B (CIM), the purpose of which is to define, inter alia, the requirements applicable to electronic consignment notes. Even now, under Article 6(9) of Appendix B (CIM), ‘the consignment note and its duplicate may be established in the form of electronic data registration which can be transformed into legible written symbols’. (103) The option to use a consignment note in electronic form therefore already exists, even though no standard is specified. Regulation No 2913/92 is silent on the use of that electronic consignment note. Only Article 233(4) of that regulation deals with the issue of ‘electronic documents’ in general. That provision stipulates only that, in principle, the use of electronic documents must be possible. However, that provision nowhere refers to a consignment note in any format. 143. The amendment proposed by the introduction of Article 6a into Appendix B (CIM), namely the requirement of an electronic format as the norm for consignment notes, has no direct effect on the way in which the customs procedure is conducted. While the Council claims in that regard that, under EU law as it now stands, electronic notes are not accepted by the relevant authorities, it must be stated that it is sufficient to print the electronic document in order to comply with the customs procedure. 144. It cannot, therefore, be a question of exclusive competence. (c) Items 4 and 7: partial revision of the COTIF — basic Convention and Appendix D (CUV) 145. The purpose of Appendix D (CUV), that is to say the uniform rules concerning contracts of use of vehicles in rail traffic (CUV), is, in particular, to establish liability in case of loss of or damage to a vehicle or in case of damage caused by that vehicle. The proposed amendment relates to the definition of the ‘keeper’ of a vehicle within the meaning of the COTIF. (1) Arguments of the parties 146. The Federal Republic of Germany claims that there is currently no EU provision in that field. The only EU act to which the Council refers as regards one of the five amendments concerned, namely Directive 2008/110, relates only to public law issues concerning rail security. Therefore, even though the term ‘keeper’ is used both in Directive 2008/110 and in Appendix D (CUV), it relates to a different legislative context in those two cases. Whereas Directive 2008/110 governs the public law obligations of rail undertakings and the competences of the authorities, Appendix D (CUV) relates to contractual rights and obligations in the event of loss of a railway vehicle or of damage caused by such a vehicle. That is why, according to the Federal Republic of Germany, the definition of the term ‘keeper’ in the amendments in question was different from that given in EU law. 147. By contrast, the Council emphasises the strong links between the provisions in Appendix D (CUV) and EU law. As is clear from recitals 3 and 4 of Directive 2008/110, prior amendments to that appendix concerning the rights and obligations of keepers have, in the past, already given rise to amendments to Directive 2004/49. The purpose of the current proposed amendments is, first, to bring the definition of the term ‘keeper’ in Appendix D (CUV) into closer alignment with that used in Directive 2008/110. Secondly, they are intended to impose on the keeper the obligation to nominate an entity in charge of maintenance (‘ECM’) during the conclusion of a contract of use and to regulate the exchange of information between the keeper and the ECM, matters which are already subject to detailed rules in EU law, namely in Directive 2008/110 and Regulation (EU) No 445/2011. (104) If their content had been different, those amendments could have undermined and made it difficult to apply provisions of EU law and could also have sent a negative message outside the European Union. 148. Therefore, the Council contends that the proposed amendments to Appendix D (CUV) fall under the exclusive competence of the European Union. (2) Assessment 149. It is clear that the purpose of the proposed amendment to Article 12 and to Appendix D (CUV) is to bring the definition used in the COTIF into closer alignment with that used in Directive 2004/49 on safety on the Community’s railways. That directive contains a provision stating that the keeper may be an ECM. According to recitals 3 and 4 of Directive 2008/110, the definition of ‘keeper’, within the meaning of that directive, must be as close as possible to that used in the COTIF. Since definitions of the same concept contained in a specific EU act, in the present case Directive 2008/110, and in the COTIF draw inspiration from each other, any change to the definition in question in the COTIF will have direct repercussions for that specific act and is therefore likely to affect it. 150. The European Union therefore has exclusive competence in that regard. (d) Item 12: partial revision of Appendix E (CUI) (1) Arguments of the parties 151. As regards the proposed amendments to Appendix E (CUI), the Federal Republic of Germany considers that they pertain exclusively to issues of private law concerning contractual liability or concerning the use of rail infrastructure. It is true that, in the field of rail infrastructure, the European Union has adopted a number of measures, set out in the appendix to Annex I to Decision 2013/103, such as Directive 2001/14 and Directive 2004/49. Nevertheless, those measures pursue objectives falling under public law and therefore do not govern the issues dealt with in Appendix E (CUI). On the contrary, Directive 2004/49 explicitly excludes issues falling under private law from the scope of its provisions. Moreover, Article 5a of Appendix E (CUI) has the effect of excluding any indirect effect by the amendments in question on EU public law. 152. As regards the EU position to be adopted on the proposed amendments to Appendix E (CUI), the Council takes the view that the contractual provisions relating to the use of infrastructure must not be considered in isolation, since they interfere with provisions of international and European rail law and, more particularly, with those of public law relating to safety. The extension of the manager’s liability for financial losses arising from damages paid by the carrier as a result of infrastructure could possibly have the effect of altering the conditions of liability governed by EU law, notwithstanding the clause relating to law remaining unaffected in Article 5a of Appendix E (CUI). The same applies to proposed amendments seeking to extend the scope of Appendix E (CUI) to national transport and to create a legal basis for the general terms and conditions relating to contracts of use of infrastructure in international rail traffic. (2) Assessment 153. Appendix E (CUI) governs contracts of use of rail infrastructure (CUI) for transport purposes, including the form and the framework conditions of the contract. The amendments suggested by CIT include the extension of the scope of CUI to internal operations, the introduction of general terms and conditions which are contractually binding and, finally, the extension of the infrastructure manager’s liability for damage. 154. A single article of EU law refers to agreements between rail undertakings and infrastructure managers. That article is Article 28 of Directive 2012/34/EU, (105) which provides that those agreements must be non-discriminatory and transparent. 155. That does not provide a sufficient basis for exclusive competence. B. The second plea, alleging infringement of Article 296 TFEU 156. By its second plea, the Federal Republic of Germany, supported by the French Republic, claims that the contested decision is vitiated by a lack of reasoning, on the ground that the Council did not demonstrate that the matters covered by the EU position were concerned with a field which has already largely been regulated in EU law. 1. Arguments of the parties 157. According to the Federal Republic of Germany, the clear demarcation of competences is particularly important in cases of mixed agreements in order to determine the competences of the various participants within bodies of international organisations. However, in the present case, the Council has not cited any instrument of EU law or has referred only to instruments connected with public law, even though the proposed amendments relate only to transport law falling within the scope of civil law. According to the Federal Republic of Germany, the Council has not indicated the legal basis for substantive EU external competence either in the contested decision or in its defence. It adds that while the Council, in its defence, has relied on certain EU acts which could, in the view of that party, be affected if the disputed amendments are approved, the majority of those acts are not, however, mentioned in the contested decision, or even in Decision 2013/103. 158. The Council, supported by the Commission, contends that the reasoning justifying the competence of the European Union clearly follows from the contested decision. The EU provisions which the disputed amendments may undermine are indicated in that decision. The fact that, in the view of the Federal Republic of Germany, the provisions of EU law relied on are irrelevant cannot call into question the adequacy of the reasoning in the contested decision. In any event, in a matter which, at the very least, falls under a competence shared by the European Union and the Member States, the Council has fulfilled its obligation to state reasons by simply referring to the legal basis of its action and by describing its position. According to the Council, Article 218(9) TFEU constitutes the appropriate legal basis for the adoption of the contested decision and an additional statement of reasons was not necessary. Moreover, the fact that the contested decision relies on provisions of EU law which are not set out in Decision 2013/103 is, in the Council’s view, irrelevant. 2. Assessment 159. This plea is based on the arguments put forward by the Federal Republic of Germany in the context of its first plea, which I propose that the Court reject. Since, as I have already stated, the field with which the amendment is concerned need not already largely be regulated internally, the requirements relating to a statement of reasons are consequently reduced. 160. According to the second paragraph of Article 296 TFEU, legal acts are to state the reasons on which they are based and are to refer to any proposals, initiatives, recommendations, requests or opinions required by the Treaties. 161. According to settled case-law, that obligation to give reasons requires that all of the measures concerned should contain a statement of the reasons which led the institution to adopt them, in order that the Court can exercise its power of review and that the Member States and the third parties concerned may learn of the conditions under which the EU institutions have applied the FEU Treaty. (106) The obligation to indicate the legal basis of a measure is also related to that duty to state reasons. (107) Moreover, according to settled case-law, it is not necessary for details of all relevant factual and legal aspects to be given in the statement of reasons. (108) The question whether the statement of the grounds for a decision meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and all the legal rules governing the matter in question. (109) 162. While Article 218(9) TFEU is the procedural legal basis for adopting decisions in the context of the procedure to be followed by the political institutions of the European Union to amend the provisions of an agreement which does not fall within the institutional framework of that agreement and since, as I noted earlier in the present Opinion, that provision presupposes the existence of a substantive EU competence, the Council is obliged, in that decision, to state the substantive legal basis underlying the European Union’s competence and the justification for that competence. The Council is obliged to state the applicable substantive and procedural legal bases. (110) That obligation arises from Article 296 TFEU. (111) 163. In the present case, the Council has fulfilled that obligation. It clearly indicated the applicable substantive legal basis, namely Article 91(1) TFEU, and gave reasons for its position. In the contested decision, the Council also gave reasons, point by point, justifying the necessity of EU action. Moreover, the Council indicated that the applicable procedure was that in Article 218(9) TFEU. 164. During the proceedings before the Court, the Council stated that it considers not only that there is (shared) competence pursuant to Article 91(1) and the second situation provided for in Article 216(1) TFEU, but that the competence is exclusive pursuant to Article 3(2) TFEU. 165. However, the Council at no point refers to that latter provision in its statement of reasons. Moreover, since, except in one particular respect, the European Union does not have exclusive competence, it would have been impossible for the Council to state the reasons why the European Union had such competence. 166. Nevertheless, the absence of any reference to Article 3(2) TFEU is irrelevant to the present plea since the lack of reasoning with regard to (non-existent) exclusive competence is irrelevant for the purposes of Article 296 TFEU. 167. The second plea must therefore be rejected. C. The third plea, alleging infringement of Article 4(3) TEU 1. Arguments of the parties 168. The Federal Republic of Germany claims that the principle of sincere cooperation enshrined in Article 4(3) TEU requires that, in cases of disagreement between Member States and the European Union concerning the limits of competences in the context of the exercise of rights as members of an international organisation, the institutions of the European Union ensure that the EU act establishing an EU position is adopted in good time to allow the Member State contesting the European Union’s competence to bring the matter before the Court in sufficient time to receive clarification on the issue. The principle of effective legal protection also requires that the adoption procedure be organised in such a way as to allow a Member State contesting the adopted act to apply to the Courts of the European Union for a suspension of operation before the act in question produces irreversible effects. 169. In the present case, even though the Federal Republic of Germany stated its reservations concerning the competences of the European Union immediately after the Commission submitted the draft decision on 5 June 2014, the Council waited until the 24 June 2014, that is to say the day before the opening of the 25th session of the OTIF Revision Committee, to adopt the contested decision, thus leaving the Federal Republic of Germany fewer than 24 hours to refer the matter to the Court of Justice. In doing so, the Council infringed both the principle of sincere cooperation and the principle of effective legal protection. Although it was no longer possible to revisit the acts adopted by the OTIF Revision Committee, the need for legal protection persisted owing to the fact that the Commission opened an EU Pilot procedure against the Federal Republic of Germany in which the Commission alleged that that Member State had infringed the contested decision. Moreover, the circumstances in which the Council adopted a decision under Article 218(9) TFEU in the context of the work of the OTIF Revision Committee could arise once again. 170. The Council, supported by the Commission, considers that it complied with the principle of sincere cooperation. In the preparatory bodies of the Council, several meetings were dedicated to debating, in particular, the points on which the Federal Republic of Germany had expressed doubts concerning the competence of the European Union. The Federal Republic of Germany’s argument that the EU position should have been adopted sufficiently early to allow it to apply to the Court for a suspension of operation is excessive and unrealistic. The Council adds that the fact that the Federal Republic of Germany initiated the present proceedings in fact demonstrates that the principle of effective legal protection has been complied with. 171. Moreover, the Council notes that, in view of the period within which the disputed amendments are due to enter into force according to the applicable rules of the COTIF, no irreversible effects for the Federal Republic of Germany can be identified as resulting from the contested decision. In any event, the European Union, which holds the majority of votes within OTIF, could exercise some influence within that organisation if a new EU position or a coordinated position has to be adopted following the judgment to be delivered the Court in the present case. The Council adds that, in the event that the Court annuls the contested decision, it is in any event obliged, under the first paragraph of Article 266 TFEU, to take the necessary measures to comply with the judgment of the Court. Furthermore, compliance with the judgment is possible since the European Union holds the majority of votes within OTIF. 2. Assessment 172. As the Commission notes, there is no evidence that the contested decision was able to influence the result, in the light of the views of the various Member States of OTIF and the relevant rules concerning the adoption of decisions. The Federal Republic of Germany itself recognises that a majority of votes was in favour of the adoption of the proposals, even without its vote. In the absence of a causal relationship of the sort set out above, it is not possible to raise, if only for that reason, the issue of effective legal protection. 173. Accordingly, the third plea must be rejected and this action must therefore be dismissed in its entirety. VI. Costs 174. Under Article 138(1) of the Rules of Procedure of the Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the pleadings of the successful party. The Council applied for the costs in its pleadings and the Federal Republic of Germany is the unsuccessful party. 175. In accordance with Article 140(1) of the Rules of Procedure, Member States and institutions which have intervened in the proceedings are to bear their own costs. VII. Conclusion 176. In the light of the above considerations, I propose that the Court: – dismiss the action; – order the Federal Republic of Germany to pay the costs; and – order the French Republic, the United Kingdom of Great Britain and Northern Ireland and the European Commission to bear their own costs. 1 Original language: French. 2 Council 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). 3 Directive of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification (OJ 2001 L 75, p. 29). 4 Directive of the European Parliament and of the Council of 29 April 2004 on safety on the Community’s railways and amending Council Directive 95/18/EC on the licensing of railway undertakings and Directive 2001/14/EC on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification (Railway Safety Directive) (OJ 2004 L 164, p. 44, and corrigendum OJ 2004 L 220, p. 16). 5 Directive of the European Parliament and of the Council of 16 December 2008 amending Directive 2004/49/EC on safety on the Community’s railways (Railway Safety Directive) (OJ 2008 L 345, p. 62). 6 Council Regulation of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), as amended by Regulation (EC) No 955/1999 of the European Parliament and of the Council of 13 April 1999 (OJ 1999 L 119, p. 1, ‘Regulation No 2913/92’). 7 Commission Regulation of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1), as amended by Commission Regulation (EC) No 2787/2000 of 15 December 2000 (OJ 2000 L 330, p. 1, ‘the implementing regulation’). 8 Regulation of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (recast) (OJ 2013 L 269, p. 1), which entered into force on 30 October 2013. With effect from 1 May 2016, that regulation repeals Regulation No 2913/92 in particular. 9 Commission Regulation of 22 January 2004 laying down procedures for veterinary checks at Community border inspection posts on products imported from third countries (OJ 2004 L 21, p. 11). 10 Directive 2008/57/EC of the European Parliament and of the Council of 17 June 2008 (recast) (OJ 2008 L 191, p. 1). 11 ‘Directive 2004/49’ (OJ 2008 L 345, p. 62). 12 Council Decision 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 (OJ 2014 L 293, p. 26). 13 See also Article 17(1)(a) of the COTIF. 14 See Article 218(3) TEU. 15 See Article 218(4) TEU. 16 See Article 218(5) TEU. 17 See Article 218(6) TEU. 18 See Article 218(6)(a) TFEU: association; accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’); agreements establishing a specific institutional framework by organising cooperation procedures; agreements with important budgetary implications for the European Union, and agreements covering fields to which either the ordinary legislative procedure applies, or the special legislative procedure where consent by the European Parliament is required. 19 See Article 218(6)(b) TFEU. 20 It must be informed ‘immediately and fully’; see Article 218(10) TFEU. 21 See Article 16(3) TEU. 22 See Article 218(8) TFEU: unanimity is required when the agreement covers a field for which unanimity is required for the adoption of an EU act, for association agreements, for economic, financial and technical cooperation agreements with the States which are candidates for accession and for the accession of the European Union to the ECHR. 23 See, for example, Eeckhout, P., EU External Relations Law, 2nd ed., Oxford University Press, Oxford, 2012, p. 209; Bungenberg, M., ‘Artikel 218 AEUV, point 81’, in von der Groeben, H., Schwarze, J., and Hatje, A. (ed.), Europäisches Unionsrecht (Kommentar), 7th ed., Nomos, Baden-Baden, 2015, and Terhechte, J. Ph., in Schwarze, J. (ed.), EU-Kommentar, 3rd ed., Nomos, Baden-Baden, 2012. 24 See the Opinion of Advocate General Kokott in United Kingdom v Council (C‑81/13, EU:C:2014:2114, footnote 63). 25 See the second subparagraph of Article 300(2) EC. 26 See the Opinion of Advocate General Sharpston in Council v Commission (C‑73/14, EU:C:2015:490, points 71 to 73). See also Eeckhout, P., EU External Relations Law, 2nd ed., Oxford University Press, Oxford, 2012, p. 208. 27 For a detailed historic overview of that provision, see the Opinion of Advocate General Cruz Villalón in Germany v Council (C‑399/12, EU:C:2014:289, point 39 et seq.). 28 Under that provision, by way of derogation from Article 218(5), (6) and (9) TFEU, the Council may, when concluding an agreement, authorise the negotiator to approve on the European Union’s behalf modifications to that agreement where it provides for them to be adopted by a simplified procedure or by a body set up by that agreement. The Council may attach specific conditions to such authorisation. 29 See also the Opinion of Advocate General Sharpston in Council v Commission (C‑73/14, EU:C:2015:490, point 67). 30 They are minor and quite technical amendments. 31 For example, the Court has excluded the applicability of Article 218(9) TFEU in a situation involving the determination of a position to be expressed on behalf of the European Union before an international judicial body; see the judgment of 6 October 2015, Council v Commission (C‑73/14, EU:C:2015:663, paragraphs 66 and 67). 32 I refer in that regard to the very detailed Opinion of Advocate General Sharpston in Opinion procedure 2/15 (Free Trade Agreement with Singapore, EU:C:2016:992, points 54 to 78). 33 That principle, which underlies the very logic of the Treaties, was formulated explicitly as a principle governing the vertical competences (those of the European Union vis-à-vis those of the Member States) only in the Maastricht Treaty (see Article 3(b), now Article 5 EC). 34 See Geiger, R., ‘Article 216, point 1’, in Geiger, R., Khan, D.-E., and Kotzur, M. (ed.), European Union Treaties, Hart, Oxford, 2015. 35 See the Opinion of Advocate General Kokott in Commission v Council (C‑137/12, EU:C:2013:441, point 42). See also Cremona, M., ‘Defining competence in EU external relations: lessons from the Treaty reform process’, in Dashwood, A., and Maresceau, M., Law and Practice of EU External Relations — Salient Features of a Changing Landscape, Cambridge University Press, Cambridge, 2008, pp. 34 to 69, in particular p. 56. 36 See also the Opinion of Advocate General Sharpston in Opinion procedure 2/15 (Free Trade Agreement with Singapore, EU:C:2016:992, point 64). 37 This is a simple affirmation of the principle of conferral of competences. See also Opinion 1/13 (Accession of a non-Union country to the Hague Convention, EU:C:2014:2303, point 67 and the case-law cited). 38 It should be pointed out that in the German version of Article 216(1) TFEU the phrase ‘within the framework of the European Union’s policies’ refers not only to the second situation but also to the third and fourth situations. In this, the German version differs, for example (the following list not being intended to be exhaustive), from the English, French, Polish, Dutch, Italian, Spanish, Portuguese, Danish and Swedish versions. This observation is, however, irrelevant to the present case. 39 See Opinion 1/76 (Draft Agreement establishing a European laying-up fund for inland waterway vessels, EU:C:1977:63, point 3); Opinion 2/91 (Convention No 170 of the ILO, EU:C:1993:106, point 7), and Opinion 1/03 (New Lugano Convention, EU:C:2006:81, point 115). 40 See Opinion 1/94 (Agreements annexed to the WTO Agreement, EU:C:1994:384, point 95). 41 See the judgment of 31 March 1971, Commission v Council (22/70, ‘the AETR judgment’, EU:C:1971:32, paragraphs 17 and 18). 42 See Opinion 2/94 (Accession by the Community to the ECHR, EU:C:1996:140, point 24), and the judgment of 1 October 2009, Commission v Council (C‑370/07, EU:C:2009:59, paragraph 46). 43 According to Article 4(1) TFEU, the European Union is to share competence with the Member States where the Treaties confer on it a competence which does not relate to the areas referred to in Articles 3 and 6 TFEU. 44 See Article 4(2) TEU. 45 See Article 4(2)(g) TFEU. 46 See also Lenaerts, K., ‘Les répercussions des compétences de la Communauté européenne sur les compétences externes des États membres et la question de “préemption”’, in Demaret, P. (ed.) Relations extérieures de la Communauté européenne et marché intérieur: aspects juridiques et fonctionnels,Bruges, 1986, pp. 37 to 62 and in particular p. 61. 47 See the second sentence of Article 2(2) TFEU. See the judgment of 14 July 1976, Kramer and Others (3/76, 4/76 and 6/76, EU:C:1976:114, paragraph 39). 48 See the Opinion of Advocate General Kokott in Commission v Council (C‑13/07, EU:C:2009:190, point 76). 49 That provision may be regarded as a codification of the law applicable to date. See also the Opinion of Advocate General Kokott in Commission v Council (C‑13/07, EU:C:2009:190, point 76 and footnote 40). 50 See also, in that regard, Mögele, R., ‘Artikel 216 AEUV, point 32’, in Streinz, R. (ed.), EUV/AEUV (Kommentar), 2nd ed., C. H. Beck, Munich, 2012. 51 See also the Opinion of Advocate General Sharpston in Opinion procedure 2/15 (Free Trade Agreement with Singapore, EU:C:2016:992, point 74). 52 See also the Opinion of Advocate General Sharpston in Opinion procedure 2/15 (Free Trade Agreement with Singapore, EU:C:2016:992, point 64). It should be added that most of the legal literature supports that approach. See, for example, Eeckhout, P., EU External Relations Law, 2nd ed., Oxford University Press, Oxford, 2012, p. 112; Hartley, T., The foundations of European Union law, 8th ed., Oxford University Press, Oxford, 2014, p. 186; Geiger, R., ‘Article 216 TFEU, point 3’, in Geiger, R., Khan, D.-E., and Kotzur, M., European Union Treaties, Hart, Oxford, 2015; Lachmayer, K., and von Förster, St., ‘Artikel 216 AEUV, point 4’, in von der Groeben, H., Schwarze, J., and Hatje, A. (ed.), Europäisches Unionsrecht (Kommentar), 7th ed., Nomos, Baden-Baden, 2015, and Mögele, R., ‘Artikel 216 AEUV, point 29’, in Streinz, R. (ed.), EUV/AEUV (Kommentar), 2nd ed., C. H. Beck, Munich, 2012. 53 In some language versions, the fourth situation provided for in Article 216(1) TFEU may paradoxically appear more restrictive than the third situation described in Article (3)(2) TFEU. That is not the case in the French version. In any event, like Advocate General Sharpston in her Opinion in Opinion procedure 2/15 (Free Trade Agreement with Singapore, EU:C:2016:992, footnote 26), I attach no decisive significance to any difference in wording between those two provisions in certain language versions. 54 See, for example, Opinion 1/13 (Accession of a non-Union country to the Hague Convention, EU:C:2014:2303, point 67 et seq.). 55 Opinion (Marrakesh Treaty to Facilitate Access to Published Works), EU:C:2016:657, point 119. 56 See the Opinion of Advocate General Wahl in Opinion procedure 3/15 ((Marrakesh Treaty to Facilitate Access to Published Works), EU:C:2016:657, point 122). 57 The Federal Republic of Germany concedes that the ‘European Union could potentially … adopt common provisions’. 58 Judgment of 31 March 1971 (22/70, EU:C:1971:32). 59 OJ 2016 C 202, p. 306. 60 Moreover, as indicated above, it is common ground among the parties that the European Union has internal competence on the basis of Article 91(1) TFEU. The present case therefore clearly concerns transport policy. 61 See the judgment of 14 July 2005, Commission v Germany (C‑433/03, EU:C:2005:462, paragraph 41). 62 Pursuant to Article 58(1) TFEU, freedom to provide services in the field of transport is to be governed by the provisions of the title relating to transport. 63 ‘Necessary in order to achieve, within the framework of the Union’s policies, one of the objectives referred to in the Treaties’. 64 Unlike the criterion of necessity referred to in Article 3(2) TFEU, a provision which, I would point out, deals with the exclusive nature of a competence. 65 See Article 5(3) TEU. 66 See Article 5(4) TEU. 67 Pursuant to which ‘if action by the Union should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures’. 68 See the Opinion of Advocate General Tizzano in Commission v United Kingdom (C‑466/98, EU:C:2002:63, point 48). 69 See also Schmalenbach, K., ‘Artikel 216 AEUV, point 12’, in Calliess, Chr., Ruffert, M. (ed.), EUV/AEUV, 5th ed., C. H. Beck, Munich, 2016, and Schütze, R., European Union Law, Cambridge University Press, Cambridge, 2015, p. 272. According to Hartley, T., The foundations of European Unionlaw, 8th ed., Oxford University Press, Oxford, 2014, p. 186, the wording of the second situation envisaged in Article 216(1) TFEU is even ‘based’ on that of Article 352 TFEU. 70 ‘Necessary to enable the Union to exercise its internal competence’. 71 See also, to that effect, Kadelbach, S., ‘Artikel 5 EUV, point 24’, in von der Groeben, H., Schwarze, J., and Hatje, A. (ed.), Europäisches Unionsrecht (Kommentar), 7th ed., Nomos, Baden-Baden, 2015, and Hartley, T., The foundations of European Unionlaw, 8th ed., Oxford University Press, Oxford, 2014, p. 180. 72 Judgment of 31 March 1971, AETR (22/70, EU:C:1971:32, paragraph 31); Opinion 1/76 (Draft Agreement establishing a European laying-up fund for inland waterway vessels, EU:C:1977:63); Opinion 1/94 (Agreements annexed to the WTO Agreement, EU:C:1994:384, point 77), and the judgment of 5 November 2002, Commission v Germany (C‑476/98, EU:C:2002:631, paragraph 89). 73 Judgment of 14 July 1976 (3/76, 4/76 and 6/76, EU:C:1976:114). 74 See also Craig, P., and De Burca, G., EU law, 6th ed., Oxford University Press, Oxford, 2015, p. 80. 75 Opinion 2/00 (Cartagena Protocol on Biosafety, EU:C:2001:664, points 44 to 47). 76 Opinion 2/00 (Cartagena Protocol on Biosafety, EU:C:2001:664, points 42 and 44). 77 Judgment of 31 March 1971 (22/70, EU:C:1971:32). 78 Emphasis added. 79 Opinion 2/00 (Cartagena Protocol on Biosafety, EU:C:2001:664, point 45). 80 Opinion 2/00 (Cartagena Protocol on Biosafety, EU:C:2001:664, points 46 and 47). 81 Opinion (Cartagena Protocol on Biosafety, EU:C:2001:664). 82 Judgment of 7 October 2004 (C‑239/03, EU:C:2004:598, paragraph 30). 83 Judgment of 30 May 2006, Commission v Ireland (C‑459/03, EU:C:2006:345, paragraph 95). 84 Opinion 2/00 (Cartagena Protocol on Biosafety, EU:C:2001:664); judgments of 7 October 2004, Commission v France (C‑239/03, EU:C:2004:598), and of 30 May 2006, Commission v Ireland (C‑459/03, EU:C:2006:345). 85 See also the first situation referred to in Article 216(1) TFEU. 86 The judgment of 8 March 2011, Lesoochranárske zoskupenie (C‑240/09, EU:C:2011:125, paragraph 36), relied on by the Federal Republic of Germany, does not alter those findings in the slightest. In that case, there was internal legislation (see paragraph 37 of that judgment). 87 See also, to that effect, Lorz, R.A., Meurers, V., ‘§ 2, point 42’, in von Arnauld, A. (ed.), Europäische Außenbeziehungen (Enzyklopädie Europarecht, Band 10), Nomos, Baden-Baden, 2014; Kadelbach, S., ‘Artikel 5 EUV, point 24’, in von der Groeben, H., Schwarze, J., and Hatje, A. (ed.), Europäisches Unionsrecht (Kommentar), 7th ed., Nomos, Baden-Baden, 2015, and Roldán Barbero, J., ‘The relationship of the Member States’ International Agreements with the EU’, in Eeckhout, P., and Lopez-Escudero, M. (ed.), The European Union’s external action in times of crisis, Hart, Oxford, Portland (Oregon), 2014, pp. 249 to 269, in particular p. 266. 88 (Draft Agreement establishing a European laying-up fund for inland waterway vessels, EU:C:1977:63). 89 Judgment of 31 March 1971 (22/70, EU:C:1971:32). 90 See the judgment of 4 September 2014, Commission v Council (C‑114/12, EU:C:2014:2151, paragraph 66). 91 See the judgment of 4 September 2014, Commission v Council (C‑114/12, EU:C:2014:2151, paragraph 67). 92 See also the Opinion of Advocate General Sharpston in Commission v Council (C‑114/12, EU:C:2014:224, point 89). 93 Judgment of 31 March 1971 (22/70, EU:C:1971:32). See Opinion of Advocate General Kokott in Commission v Council (C‑137/12, EU:C:2013:441, points 111 to 117), and Opinion of Advocate General Sharpston in Commission v Council (C‑114/12, EU:C:2014:224, point 96). See also the judgment of 4 September 2014, Commission v Council (C‑114/12, EU:C:2014:2151, paragraph 67). 94 See the judgments of 31 March 1971, AETR (22/70, EU:C:1971:32, paragraph 30); of 5 November 2002, Commission v Denmark (C‑467/98, EU:C:2002:625, paragraph 82), and of 4 September 2014, Commission v Council (C‑114/12, EU:C:2014:2151, paragraph 68). 95 See Opinion 1/03 (New Lugano Convention, EU:C:2006:81, point 126), and the judgment of 4 September 2014, Commission v Council (C‑114/12, EU:C:2014:2151, paragraph 69). 96 See Opinion 2/91 (Convention No 170 of the ILO, EU:C:1993:106, point 25); the judgment of 5 November 2002, Commission v Denmark (C‑467/98, EU:C:2002:625, paragraph 82); Opinion 1/03 (New Lugano Convention, EU:C:2006:81, points 120 and 126), and the judgment of 4 September 2014, Commission v Council (C‑114/12, EU:C:2014:2151, paragraph 70). 97 See Opinion 1/03 (New Lugano Convention, EU:C:2006:81, point 124); the judgment of 4 September 2014, Commission v Council (C‑114/12, EU:C:2014:2151, paragraph 74), and Opinion 1/13 (Accession of a non-Union country to the Hague Convention, EU:C:2014:2303, point 74). 98 I imagine that the Council’s reference is, rather, to the appendix to Annex I 99 Council Directive of 18 December 1997 laying down the principles governing the organisation of veterinary checks on products entering the Community from third countries (OJ 1998 L 24, p. 9). 100 Council Directive of 8 May 2000 on protective measures against the introduction into the Community of organisms harmful to plants or plant products and against their spread within the Community (OJ 2000 L 169, p. 1). 101 See Article 413 of the implementing regulation. 102 That also follows from the guidelines concerning export and exit in the context of Regulation (EC) No 648/2005, of 27 October 2010, adopted by the Customs Code Committee, published by the Commission with the reference ‘TAXUD/A3/0034/2010’ at http://ec.europa.eu/ecip/documents/procedures/export_exit_guidelines_en.pdf (see part B, paragraph 10.4). Clearly, that document is not legally binding but it clearly describes practice. 103 That provision continues as follows: ‘The procedure used for the registration and treatment of data must be equivalent from the functional point of view, particularly so far as concerns the evidential value of the consignment note represented by those data.’ 104 Commission Regulation of 10 May 2011 on a system of certification of entities in charge of maintenance for freight wagons and amending Regulation (EC) No 653/2007 (OJ 2011 L 122, p. 22). 105 Directive of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area (OJ 2012 L 343, p. 32). 106 See the judgment of 1 October 2009, Commission v Council (C‑370/07, EU:C:2009:590, paragraph 37 and the case-law cited). 107 See the judgment of 1 October 2009, Commission v Council (C‑370/07, EU:C:2009:590, paragraph 38 and the case-law cited). 108 See the judgment of 14 February 1990, Delacre and Others v Commission (C‑350/88, EU:C:1990:71, paragraph 16). 109 See the judgment of 14 February 1990, Delacre and Others v Commission (C‑350/88, EU:C:1990:71, paragraph 16 and the case-law cited). 110 See the Opinion of Advocate General Kokott in Commission v Council (C‑370/07, EU:C:2009:249, point 78). 111 See the judgment of 1 October 2009, Commission v Council (C‑370/07, EU:C:2009:590, paragraph 37).