62023CJ0271_RES
Case C‑271/23
European Commission
v
Hungary
Judgment of the Court (Grand Chamber) of 27 January 2026
(Failure of a Member State to fulfil obligations – Article 258 TFEU – Admissibility – Decision (EU) 2021/3 – Position to be taken, on behalf of the European Union, at the reconvened sixty-third session of the Commission on Narcotic Drugs, established by the United Nations Economic and Social Council, on the scheduling of cannabis and cannabis-related substances under the Single Convention on Narcotic Drugs of 1961, as amended by the 1972 Protocol, and the Convention on Psychotropic Substances of 1971 – Position and vote of a Member State, both being contrary to that position of the European Union – Article 4(3) TEU – Principle of sincere cooperation – Effects of the alleged conduct as at the date of expiry of the deadline laid down in the reasoned opinion – Ongoing effects on the unity and consistency of the European Union’s international action – Article 3(2) TFEU – Exclusive external competence – Effect on common rules or alteration of their scope – Plea of illegality raised in the defence – Inadmissibility)
Action for failure to fulfil obligations – Admissibility criteria – No obligation on the Commission to indicate, in the reasoned opinion, what steps should be taken to eliminate the impugned conduct
(Arts 258, 260(1) and 279 TFEU)
(see paragraphs 51-54)
Action for failure to fulfil obligations – Admissibility criteria – No requirement that the effects of a failure to comply with a Council decision establishing the position to be taken on behalf of the European Union at a session of the international organisation concerned have not been exhausted – Adverse effects of the disputed conduct of a Member State on the unity and consistency of the European Union’s international action within the international organisation concerned
(Arts 2 and 17 TEU; Arts 218(9), 258 and 288, fourth para., TFEU)
(see paragraphs 56-58)
International agreements – Conclusion – Competence of the European Union – Exclusive competence in respect of an agreement capable of affecting common rules or of altering their scope – Scope – Exclusive competence of the Council to adopt a decision establishing the position to be taken on behalf of the European Union – Binding act – Presumption of validity of the act – Failure of a Member State to comply with that decision – Failure to fulfil obligations
(Arts 3(2) and 218(9) TFEU; Council Framework Decision 2004/757, as amended by Directive 2017/2103, Arts 1(1)(a) and (b) and 4; Council Decision 2021/3)
(see paragraphs 94-109, 135-137)
Action for failure to fulfil obligations – Failure to comply with obligations arising from a decision or from a directive – Defences – Plea of illegality – Calling into question the legality of the Council decision – Inadmissibility – Limits – Non-existent act
(Art. 4(3) TEU; Arts 258, 259, 263, 265 and 277 TFEU; Rules of Procedure of the Court of Justice, Art. 160(1))
(see paragraphs 119-132)
Member States – Obligations – Duty of sincere cooperation with the EU institutions – Council decision establishing the position to be taken on behalf of the European Union at a session of the international organisation concerned – Member State’s vote contrary to that position, and public statement by that Member State declaring its opposition to that position – Not permissible – Failure to fulfil obligations
(Art. 4(3) TEU; Art. 218(9) TFEU; Council Decision 2021/3)
(see paragraphs 152-159)
Résumé
Hearing an action for failure to fulfil obligations brought by the European Commission, the Court of Justice, sitting as a Grand Chamber, finds that Hungary’s failure, at a session within the United Nations Commission on Narcotic Drugs, to comply with the European Union’s position adopted by the Council of the European Union, resulted in Hungary failing to fulfil its obligations under EU law. (
1
) On this occasion, the Court clarifies the scope of the binding nature of decisions adopted by the Council under Article 218(9), confirms that the European Union has exclusive external competence when international commitments are capable of affecting common rules, and states that, as a matter of principle, a Member State may not dispute the legality of such decisions in the context of an action for failure to fulfil obligations. The Court also clarifies the scope of the principle of sincere cooperation in relation to the external representation of the European Union.
The Commission on Narcotic Drugs is a body established by the United Nations Economic and Social Council. The Convention on Narcotic Drugs (
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) and the Convention on Psychotropic Substances (
3
) confer on that commission the power to amend, on the basis of recommendations from the World Health Organization (WHO), the schedules annexed to those two conventions which concern the classification of certain substances.
By Decision 2021/3, adopted on the basis of Article 218(9) TFEU, the Council adopted the position to be taken on behalf of the European Union at the session of the Commission on Narcotic Drugs, scheduled for December 2020. That decision established, inter alia, the common position of the Member States of the European Union as regards the WHO recommendations on the amendment of the classification of cannabis and certain cannabis-related substances in the schedules annexed to the two conventions in question.
At the session of the Commission on Narcotic Drugs, Hungary did not comply with the position adopted by the Council. It voted against some of the WHO recommendations and stated that the adoption of those recommendations would increase the growing use of cannabis and would involve unjustified interference with national policies.
Taking the view that Hungary’s vote and the position which it had expressed within the Commission on Narcotic Drugs constituted a breach of the Council decision, undermined the European Union’s exclusive external competence and were in breach of the principle of sincere cooperation, the European Commission initiated infringement proceedings against that Member State.
Findings of the Court
The Court begins by rejecting Hungary’s plea of inadmissibility in respect of the action.
In the first place, the Court recalls that the Commission cannot be required to indicate, in the reasoned opinion, what steps should be taken to eliminate the impugned conduct, since the purpose of an action brought under Article 258 TFEU is to obtain a declaration that a Member State has failed to fulfil its obligations under EU law. Where there is such a finding, the Member State in question is required, under Article 260(1) TFEU, to take the measures necessary to comply with the judgment of the Court of Justice. Thus, neither the Commission nor the Court can order a Member State to take specific measures, since the Commission cannot ask the Court to issue an instruction in the context of the main proceedings. By contrast, in proceedings for interim relief based on Article 279 TFEU, the Commission may request the Court to grant interim measures, such as a direction.
In the second place, the Court rejects Hungary’s argument that it can no longer bring to an end the alleged failure to fulfil obligations; it also rejects Hungary’s claim that the Commission has not demonstrated the existence of actual and noticeable effects of the disputed conduct, persisting beyond the decision-making process concerned, or demonstrated that the unity and consistency of the European Union’s external action has been affected.
The Court considers, first of all, that a Member State which, by its conduct, impedes the achievement of the objective inherent in a decision adopted under Article 218(9) TFEU, cannot evade infringement proceedings on the grounds that that infringement has already exhausted its effects. Otherwise, the Commission would be unable to bring proceedings, within the powers that it holds under Article 258 TFEU, against the Member State concerned before the Court with a view to obtaining a declaration of such an infringement and to perform fully its role as guardian of the Treaties. Furthermore, as to Hungary’s argument that it is no longer possible to remedy the alleged harm to the reputation and credibility of the European Union, that argument cannot, in any event, give rise to the inadmissibility of the action. A Member State cannot be allowed to rely upon a fait accompli of which it is itself the author so as to evade proceedings brought before the Court for failure to fulfil obligations.
The Court notes, next, that to uphold the inadmissibility of an action for failure to fulfil obligations brought against a Member State on the grounds of infringement of a decision adopted under Article 218(9) TFEU would be detrimental both to the binding nature of decisions and to the respect for the values on which the European Union is founded, one such being the rule of law. A Member State could, after taking part in the deliberations and voting within the Council, eschew that decision following its adoption, while being confident that the Commission would be unable to bring proceedings before the Court for failure to fulfil its obligations.
Lastly, the Court finds that the effects of Hungary’s disputed conduct at the session of the Commission on Narcotic Drugs cannot be considered to have ceased at the end of that session, since they manifest themselves as regards both the unity and consistency of the European Union’s external action. Those effects go beyond the decision-making process concerned, when the very purpose of a decision taken on the basis of Article 218(9) TFEU is to safeguard those interests.
The Court then goes on to examine the substance of the case.
In the first place, as regards the Commission’s complaint alleging infringement of the European Union’s exclusive external competence, provided for in Article 3(2) TFEU, the Court explains that that provision is also applicable where a body established under an international agreement is called upon to adopt measures implementing it. In that regard, the fact that the European Union is not a member of an international organisation does not prevent that competence from being in fact exercised, in particular through the Member States acting jointly in the European Union’s interest.
The Court emphasises that there is a risk that common EU rules might be adversely affected by international commitments, or that the scope of those rules might be altered, which is such as to establish an exclusive external competence of the European Union, where those commitments fall within the scope of those rules. It is not necessary for the areas covered by the international agreement and the EU legislation to coincide fully, where the commitments at issue may affect the meaning, scope and effectiveness of the common rules, even where there is no conflict with those rules.
In the present case, it is apparent from Framework Decision 2004/757 (
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) that the concept of ‘drug’ is defined, inter alia, by reference to the two conventions in question. Therefore, as stated in Decision 2021/3, any change to the schedules of those two conventions is directly incorporated into common EU rules, with the result that such a change will directly affect the content of Framework Decision 2004/757.
In the second place, as regards Hungary’s plea of illegality in respect of Decision 2021/3, the Court begins by recalling that the system of legal remedies established by the FEU Treaty distinguishes between actions for failure to fulfil obligations and actions for annulment and that those two types of action pursue different objectives and are subject to different rules. The Court states that, in the absence of a provision of that Treaty expressly permitting it to do so, a Member State cannot properly plead the unlawfulness of a decision or a directive addressed to it as a defence in an action for failure to fulfil obligations arising out of its failure to implement that decision or that directive. As a member of the Council, which was the author of the decision establishing the position to be taken on behalf of the European Union in negotiations within an international organisation, a Member State necessarily had knowledge of that decision, even if it was not formally the addressee thereof. A Member State was therefore fully in a position to bring an action seeking annulment of that decision within the period of two months laid down in the sixth paragraph of Article 263 TFEU.
The Court also recalls that an action for failure to fulfil obligations has a specific purpose consisting exclusively in seeking a declaration by the Court that a Member State has failed to fulfil its obligations, and cannot therefore be used in order to make up for the failure to bring an action for annulment of the act that was allegedly disregarded.
The Court adds that an action for failure to fulfil obligations does not in any way concern the applicability of an EU act and that, in accordance with Article 277 TFEU, the very purpose of a plea of illegality is to obtain the inapplicability of such an act.
Those factors lead the Court to confirm that a Member State cannot be authorised to raise, in such an action, a plea of illegality in respect of such an EU act, whatever it may be, unless that act contains such particularly serious and manifest defects that it could be categorised as a non-existent act. A Member State wishing to take advantage of any action for failure to fulfil obligations in order to challenge the legality of the act the failure to comply with which led to the bringing of that action, disregards the presumption of validity enjoyed by all acts of secondary legislation. That presumption imposes, on all persons subject to EU law, the obligation to acknowledge that acts of secondary EU law are fully effective as long as their invalidity has not been established by the Court of Justice of the European Union and to recognise their enforceability unless the EU Courts have decided to suspend the operation of those acts.
The Court observes that, as a result, the fact that it is impossible for a Member State to plead the illegality of the act the disregard of which has led the Commission to initiate proceedings against that Member State for failure to fulfil obligations is based on the principle that, except where expressly provided for, the scheme of the Treaties prohibits the Member States from taking the law into their own hands. If a Member State considers that an act of secondary legislation contains elements which are incompatible with EU law, it has the power to act, either within the Council, by alerting the Commission, or, ultimately, in legal proceedings to have those incompatibilities eliminated. However, a Member State may not, under any circumstances, unilaterally adopt, on its own authority, corrective or protective measures designed to cure any infringement, by another Member State or by an EU institution, of rules of EU law, without calling into question the fundamental requirement of the EU legal order that EU law be applied uniformly.
The Court points out that, where a Member State does not, within the prescribed period, bring an action for annulment, that Member State cannot subsequently call into question the legality of that act in the context of infringement proceedings, as otherwise the consistent and uniform application of EU law, which is a fundamental feature of the EU legal system, would be undermined. For a Member State to break unilaterally, according to its own conception of national interest, the equilibrium between the advantages and obligations flowing from its adherence to the European Union calls into question the equality of Member States before EU law, in breach of the duties of solidarity which are accepted by Member States as a result of their adherence to the European Union and which form part of the fundamental basis of the EU legal order. Such an attitude is also capable of creating discrimination at the expense of the nationals of Member States and, and above all, of the nationals of the State itself which places itself outside the EU rules.
In addition, the Court states that, in a context characterised by urgency caused by the concomitance or quasi-concomitance between, on the one hand, the Council decision establishing the position to be taken on behalf of the European Union in negotiations within an international body and, on the other hand, the vote within that body, a Member State which has doubts as to the validity of such a decision should take advantage of the period which runs between the Commission’s submission of the final, or almost final, version of the draft decision and the Council’s vote which may lead to the adoption of that decision, in order to prepare its application initiating proceedings and an application for suspension of the operation of that decision. From that perspective, the Commission must, in general, endeavour to present its proposal in sufficient time to enable the Council to complete its decision-making process with a view to establishing, in a timely manner, the position to be taken on behalf of the European Union with a view to negotiations and voting within such a body. The grant of suspension of operation of that decision would have the effect of temporarily removing its presumption of validity, without, however, relieving the Member States and the EU institutions of their duties of sincere cooperation, in particular as regards respect for unity in the external representation of the European Union.
Furthermore, the Court points out that the fact that it is impossible for a Member State to raise a plea of illegality in the context of an action for failure to fulfil obligations is without prejudice to its right to challenge the merits of the Commission’s interpretation of the act of secondary legislation which that Member State allegedly infringed, since an act of secondary EU legislation must, as far as possible, be interpreted in a manner consistent with the international agreements concluded by the European Union.
In the third place, as regards the Commission’s complaint alleging that Hungary acted in breach of the principle of sincere cooperation, (
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) the Court recalls that the Member States must facilitate the achievement of the European Union’s tasks and abstain from any measure which could jeopardise the attainment of the objectives of the Treaties. Where the subject matter of an international agreement or of an international convention falls partly within the competence of the European Union and partly within that of its Member States, it is essential to ensure close cooperation between the Member States and the EU institutions, both in the process of negotiation and conclusion and in the fulfilment of the commitments entered into. That obligation to cooperate flows from the requirement of unity in the international representation of the European Union.
The Court clarifies that the special duties of action and abstention to which a Member State is thus subject do not permit that State to present, in a body set up by an international agreement, a unilateral proposal which dissociates it from a common strategy drawn up within the Council. Such a situation is likely to compromise the principle of unity in the international representation of the European Union and its Member States and also to weaken their negotiating power with regard to the other parties to the convention concerned. The Member States’ obligations under the principle of sincere cooperation are binding, a fortiori, on those Member States within the scope of the European Union’s exclusive competences.
The Court also emphasises that it is inherent not only in the very idea of the European Union, but also in the application of a majority voting procedure in the Council, that the Member States should emphasise their interests within the framework of the mechanics of collective discussion that were created by the Treaties in order to implement the objectives of the European Union. It also recalls that compliance on the part of the Member States with a decision adopted by the Council under Article 218(9) TFEU is a specific expression of the requirement of unity in representation of the European Union, arising from the duty of sincere cooperation.
In the light of the foregoing, the Court concludes that, first, by failing, within the Commission on Narcotic Drugs, to vote in accordance with Decision 2021/3 and, second, by publicly expressing its disagreement with the WHO recommendations which were on the agenda, contrary to the position adopted by the European Union in that decision, Hungary acted in breach of the principle of sincere cooperation. Such conduct undermined the effectiveness of the international action of the European Union and the latter’s credibility and reputation on the international scene.
(
1
)	Namely, under Council Decision (EU) 2021/3 of 23 November 2020 on the position to be taken, on behalf of the European Union, at the reconvened sixty-third session of the Commission on Narcotic Drugs, on the scheduling of cannabis and cannabis-related substances under the Single Convention on Narcotic Drugs of 1961, as amended by the 1972 Protocol, and the Convention on Psychotropic Substances of 1971 (OJ 2021 L 4, p. 1), and under Article 3(2), Article 218(9) and the fourth paragraph of Article 288 TFEU, and under Article 4(3) TEU.
(
2
)	The Single Convention on Narcotic Drugs, 1961, as amended by the 1972 Protocol amending the Single Convention on Narcotic Drugs, 1961, concluded in New York on 30 March 1961 (United Nations Treaty Series, Vol. 520, No 7515).
(
3
)	The Convention on Psychotropic Substances, concluded in Vienna on 21 February 1971 (United Nations Treaty Series, Vol. 1019, p. 175).
(
4
)	Article 1(1)(a) and (b) of Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking (OJ 2004 L 335, p. 8), as amended by Directive (EU) 2017/2103 of the European Parliament and of the Council of 15 November 2017 (OJ 2017 L 305, p. 12).
(
5
)	Enshrined in Article 4(3) TEU.