Moreover, a distinction must be made between whether the Union has an external competence and whether any such competence is exclusive or shared. That distinction is reflected in the FEU Treaty. In that regard, it follows from the very wording of Article 216(1) TFEU, in which no distinction is made according to whether the European Union’s external competence is exclusive or shared, that the Union possesses such a competence in four situations. The scenario in which the conclusion of an agreement is liable to affect common rules or to alter their scope, a scenario where the Union competence is, under Article 3(2) TFEU, exclusive, constitutes only one of those situations. Likewise, it is clear from a comparison of the respective wording of Article 216(1) TFEU and Article 3(2) TFEU that the situations in which the Union has an external competence, in accordance with the former provision, are not limited to the various scenarios set out in the latter provision, where the Union has exclusive external competence.

An external competence of the European Union may exist outside the situations provided for in Article 3(2) TFEU. The European Union competence to conclude international agreements may arise not only from an express conferment by the Treaties, but may equally flow implicitly from other provisions of the Treaties and from measures adopted, within the framework of those provisions, by the EU institutions. In particular, whenever EU law creates for those institutions powers within its internal system for the purpose of attaining a specific objective, the Union has the competence to undertake international commitments necessary for the attainment of that objective even in the absence of an express provision to that effect. The last-mentioned possibility is now referred to in Article 216(1) TFEU.

The Agenda Items at the 25th session of the Revision Committee of the Intergovernmental Organisation for International Carriage by Rail relating to proposed amendments of the Convention concerning International Carriage by Rail of 9 May 1980, on which the Council established the positions to be adopted on behalf of the European Union, fall within the scope of the Union’s external competence. Consequently, the Council was not in breach of the principle of conferral laid down in the first sentence of Article 5(2) TEU.

The amendments at issue concern the private law relating to contracts of international carriage by rail, a subject which falls within the scope of a Union policy, namely the common transport policy, which is the subject of Title VI, headed ‘Transport’ of Part Three of the FEU Treaty, headed ‘Union Policies and internal actions’, and which must, therefore, be regarded as corresponding to one of the objectives of the FEU Treaty. In that regard, since the provisions of the Convention concerning International Carriage by Rail and the Appendices thereto, to which those amendments relate, are designed to establish common rules at international level, including with respect to international transport to or from the territory of a Member State, or passing across the territory of one or more Member States, as regards parts of the journey that take place outside EU territory and, as a general rule, also as regards parts of the journey that take place on EU territory, the fact that the European Union adopts a position on those amendments must be considered to contribute to the achievement of the objectives of the common transport policy, within the framework of the competence conferred on the Union by Article 91(1) TFEU, which also encompasses an external aspect. The adoption of such a position is, consequently, necessary in order to achieve, within the framework of the Union’s policies, one of the objectives referred to by the Treaties, within the meaning of Article 216(1) TFEU.

Further, it cannot be validly maintained that since the area of transport falls, pursuant to Article 4(2)(g) TFEU, within the scope of the shared competence of the Union and its Member States, the Union cannot take external action unless it has first taken internal action by means of adopting common rules, in areas in which international agreements have been concluded. The existence of an external European Union competence is not, in any event, dependent on the prior exercise, by the Union, of its internal legislative competence in the area concerned. The first sentence of Article 2(2) TFEU, on shared competences does not state that a prerequisite of the Union having an external competence that is shared with its Member States is the existence, in the Treaties, of a provision explicitly conferring such an external competence on the Union.

(see paras 56, 60, 62, 66, 67, 72)