Opinion of the Advocate General — ECLI:EU:C:2005:153
Date: 2005-03-10
Language of the case: German
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;Action for failure to fulfil obligations - inadmissible
Origin: Germany

Summary of the Judgment 1. Actions for failure to fulfil obligations — Subject-matter of the proceedings — Determination in the course of the pre-litigation procedure — Subsequent restriction — Whether permissible (Art. 226 EC) 2. Actions for failure to fulfil obligations — Examination of the merits by the Court — Situation to be taken into consideration — Situation at the end of the period laid down in the reasoned opinion (Art. 226 EC) 3. International agreements — Competence of the Community — Creation of exclusive external competence of the Community by reason of the exercise of its internal competence — Conditions — Transport by inland waterway — Regulation No 3921/91 — Community legislation insufficient to effect the transfer of exclusive external competence to the Community (Arts 71(1) EC and 80(1) EC; Council Regulation No 3921/91) 4. Procedure — Originating application — Subject-matter of the dispute — Definition — Alteration during the proceedings — Prohibited 5. Member States — Obligations — Duty of cooperation — Decision authorising the Commission to negotiate a multilateral agreement on behalf of the Community — Duties of the Member States — Duties of action and abstention — Scope (Art. 10 EC) 1. Although it is true that the subject-matter of the proceedings brought under Article 226 EC is circumscribed by the pre-litigation procedure provided for by that provision and that, consequently, both the Commission’s reasoned opinion and the application must be based on the same complaints, that requirement cannot be stretched so far as to mean that in every case the statement of the subject-matter of the proceedings in the reasoned opinion must be exactly the same as the form of order sought in the originating application if the subject-matter of the proceedings has not been extended or altered but simply limited. (see para. 28) 2. The question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and the Court cannot take account of any subsequent changes. (see para. 32) 3. 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 conditions for access by non-Community carriers to national transport by inland waterway in a Member State, 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 to the extent that it covers only carriers established in a Member State and the harmonisation achieved by that regulation is not complete. (see paras 44-48, 50, 52-53) 4. A party may not alter the actual subject-matter of the dispute during the proceedings, so that the substance of the application must be examined solely with reference to the conclusions contained in the application instituting the proceedings. (see para. 61) 5. 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 64-66)