Opinion of the Advocate General — ECLI:EU:C:2004:750
Date: 2004-11-25
Language of the case: French
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;Action for failure to fulfil obligations - unfounded
Origin: Luxembourg

Summary of the Judgment 1. International agreements — Competence of the Community — Creation of exclusive external competence of the Community by reason of the exercise of its internal competence — Conditions — Inland waterway transport — Regulation No 3921/91 — Community rules not sufficient to effect a transfer of exclusive external competence to the Community (Arts 71(1) EC and 80(1) EC; Council Regulation No 3921/91) 2. Member States — Obligations — Duty of cooperation — Decision authorising the Commission to negotiate a multilateral agreement on behalf of the Community — Duty of Member States of action and abstention – Scope (Art. 10 EC) 1. The Community acquires exclusive external competence by reason of the exercise of its internal competence where the international commitments fall within the scope of the common rules, or in any event within an area which is already largely covered by such rules, even if there is no contradiction between those rules and the commitments. Thus, whenever the Community has included in its internal legislative acts provisions relating to the treatment of nationals of non-member countries or expressly conferred on its institutions powers to negotiate with non-member countries, it acquires an exclusive external competence in the spheres covered by those acts. The same applies, even in the absence of any express provision authorising its institutions to negotiate with non-member countries, where the Community has achieved complete harmonisation in a given area, because the common rules thus adopted could be affected if the Member States retained freedom to negotiate with non-member countries. As regards the determination of the conditions for access by non-Community carriers to the national transport of goods or passengers by inland waterway, the Community has not acquired exclusive external competence. Regulation No 3921/91 laying down the conditions under which non‑resident carriers may transport goods or passengers by inland waterway within a Member State does not govern the situation of those carriers since it covers only transporters established in a Member State and the harmonisation achieved by that regulation is not complete. (see paras 40-45, 48, 50-51) 2. The duty of genuine cooperation, imposed by Article 10 EC, is of general application and does not depend either on whether the Community competence concerned is exclusive or on any right of the Member States to enter into obligations towards non-member countries. In particular, the Member States are subject to special duties of action and abstention in a situation in which the Commission has submitted to the Council proposals which, although they have not been adopted by the Council, represent the point of departure for concerted Community action. It follows that the adoption by the Council of a decision authorising the Commission to negotiate a multilateral agreement on behalf of the Community which marks the start of a concerted Community action at international level requires, for that purpose, if not a duty of abstention on the part of the Member States, at the very least a duty of close cooperation between the latter and the Community institutions in order to facilitate the achievement of the Community tasks and to ensure the coherence and consistency of the action and its international representation. (see paras 58-60)