CELEX: 62007CC0246
Language: en
Date: 2009-10-01
Title: Opinion of Mr Advocate General Poiares Maduro delivered on 1 October 2009.#European Commission v Kingdom of Sweden.#Failure of a Member State to fulfil obligations - Breach of Articles 10 EC and 300(1) EC - Stockholm Convention on Persistent Organic Pollutants - Unilateral proposal by a Member State to list a substance in Annexe A to that convention.#Case C-246/07.

OPINION OF ADVOCATE GENERAL
      Poiares Maduro
      delivered on 1 October 2009 (1)
      
      Case C‑246/07
      Commission of the European Communities
      v
      Kingdom of Sweden
      
      1.        The duty of loyal cooperation between the Community and Member States has particular significance in the exercise of competences
         under the Treaty: this is all the more so where those competences are shared.
      
      2.        It is in that context that the present case arises. Both the Community and Sweden are parties to a multilateral agreement
         regulating substances harmful to the environment. Can Sweden propose to add a new substance to the agreement, or is it forced
         to act in tandem with the Community?
      
      3.         The answer, as will become apparent, does not depend only on whether Sweden has the competence to act individually; it also
         depends on how it chooses to act.
      
      I –  Factual and legal background
      4.        The present case concerns the regulation of persistent organic pollutants (‘POPs’), substances which are particularly harmful
         to the environment and human health. POPs are toxic, resist degradation and bioaccumulate (that is to say, work their way
         up the food chain). As such, the negative effects of POPs – via transport by air, water and migratory species – may occur
         far from the place of their initial release.
      
      5.        Those cross-border negative effects have led to POPs being regulated under several multilateral environmental agreements.
         One such multilateral agreement is the Stockholm Convention on POPs (‘the Convention’). (2) The Convention is a mixed agreement, to which both the Community and Sweden are parties. It requires parties to reduce or
         eliminate the release of POPs listed in its annexes.
      
      6.        Any party to the Convention may propose that a substance be considered a POP and added to the annexes to the Convention (‘added
         to the Convention’). In essence, after a substance is thus proposed the POPs Review Committee (‘POPRC’) will verify whether
         the substance satisfies the Convention’s requirements, conduct a risk assessment, and issue a final recommendation on the
         possible addition of the substance.
      
      7.        Throughout the POPRC’s technical review the parties to the Convention may submit observations and, after this review is carried
         out, they have the ultimate decision on whether a substance is added to the Convention. A conference of the parties is held,
         usually once a year, in order to decide on amendments such as these additions. The conference of the parties strives to reach
         decisions by consensus but, failing that, it can adopt decisions by a three-quarters majority.
      
      8.        It is important to note that, under the Convention, any party thereto may refuse to be bound by an amendment. It has a period
         of one year in which to take a decision to that effect, which coincides with the period preceding the entry into force of
         the amendment.
      
      9.        Another multilateral environmental agreement on POPs regulation is the POPs Protocol to the Convention on Long Range Transboundary
         Air Pollution (‘the Protocol’). (3) The Protocol is similar in many respects to the Convention but, as its name indicates, it is mostly concerned with the air
         transport of pollutants. One key similarity is that any party to the Protocol may propose that a substance be added to the
         list of POPs in the annexes to the Protocol (‘added to the Protocol’). Both the Community and Sweden are parties to the Protocol.
      
      10.      The cross-border negative effects of POPs have also led to their regulation at the Community level, most notably by Regulation
         No 850/2004 (‘the POPs regulation’). (4)
      
      11.      The present case deals with Sweden’s proposal to add to the Convention a particular group of substances: perfluoroctane sulfonates
         (‘PFOs’). It is not disputed that PFOs can be qualified as a POP. However, at the time of Sweden’s proposal PFOs were not
         included in any of the abovementioned international and Community instruments regulating POPs.
      
      12.      It is important to note the chronology of the events surrounding Sweden’s proposal, and also whether those events relate to
         the Convention or to the Protocol.
      
      13.      On 4 August 2004, the Commission proposed that the Council authorise it to submit, in the name of the Community and its Member
         States, a proposal to amend the annexes to both the Convention and the Protocol. The Commission proposal did not include PFOs.
      
      14.      Also in August 2004, Sweden proposed that PFOs be added to the Protocol. (5)
      
      15.      On 8 September 2004, the Council’s ‘international environment group’ met. During this meeting, Sweden raised the issue of
         adding PFOs to the Convention, stating that it expected such an addition to be the subject-matter of a common proposal and
         that it would refrain from submitting its own proposal in the meantime. Sweden raised this issue again in the group’s meeting
         of 12 January 2005.
      
      16.      In March 2005, the Council adopted conclusions on a common proposal to add certain substances to the Convention. The choice
         of those substances was to be made on the basis of the substances already included in the Protocol, which were also covered
         by the POPs regulation. As mentioned above, at the time PFOs were not covered by any of those instruments (as no conclusion
         had been reached on Sweden’s proposal under the Protocol).
      
      17.      On 6 July 2005, the Council’s ‘international environment group’ reached agreement on a common proposal to add PFOs to the
         Protocol once the Commission had submitted a proposal on control measures at Community level.
      
      18.      This meeting of the ‘international environment group’ also dealt with the addition of PFOs to the Convention. Sweden toughened
         its position and made clear that, if an agreement on a common proposal were not reached, it would submit such a proposal unilaterally.
         Despite this, the group only managed to agree that the addition of substances should be proposed, postponing to a later date
         the decision on which substances to add.
      
      19.      On 14 July 2005, Sweden acted in accordance with its stated position and unilaterally proposed the addition of PFOs to the
         Convention, informing the Presidency on the same day. Sweden’s proposal is, as mentioned, the object of the present case and
         should therefore be assessed by reference to the situation obtaining at the material time. Nonetheless, some subsequent events
         are worth noting.
      
      20.      On 8 September 2005, the Council decided to authorise the Community and its Member States to submit a common proposal to add
         PFOs to the Protocol (6) once the Commission had submitted a proposal concerning restrictions under Directive 76/769 (7) on the use of PFOs. 
      
      21.      On 24 April 2006, the Council decided to authorise the Community and its Member States to submit a common proposal to add
         certain substances – which did not include PFOs – to the Convention. (8)
      
      22.      If and when PFOs are finally added to the Convention or the Protocol, they will also be included among the substances covered
         by the POPs regulation. (9)
      
      23.      After Sweden had submitted its proposal, a directive introducing control measures for PFOs was also proposed and adopted. (10)
      
      24.      The Commission sent a letter of formal notice to Sweden questioning the compatibility of Sweden’s proposal with Community
         law. Since it was not satisfied with Sweden’s responses to its letter of formal notice and subsequent reasoned opinion, it
         brought the present action under Article 226 EC.
      
      II –  Assessment
      25.      It should be made clear from the outset that the Commission does not dispute that PFOs should be considered to be POPs; indeed,
         subsequent Community legislation has confirmed that they are. Considering the cross-border effects of PFOs and in the absence
         of Community legislation, resorting to international instruments was the only possible means for Sweden to prevent such negative
         effects on its environment and the health of its citizens.
      
      26.      The Commission contends that Sweden was not allowed to act as regards the dangers posed by PFOs. It argues that a Community
         regulatory framework – notably the POPs regulation and Directive 76/769 – already existed, even though at the material time
         such regulatory framework did not include PFOs.
      
      27.      This, as Member States have rightly pointed out, is the language of exclusive competence. However, the Commission did not
         raise the issue of infringement of an exclusive competence at the requisite stage of the pre-litigation procedure. Therefore,
         this plea should be considered inadmissible and the relevant arguments disregarded.
      
      28.      Nevertheless, even if a plea of infringement of exclusive competence were admissible, it would be destined to fail. As the
         Court has stated, ‘[the] external competence of the Community in regard to the protection of the environment … is not exclusive
         but rather, in principle, shared between the Community and the Member States’. (11)
      
      29.      Both the Community regulatory framework on which the Commission relies and Sweden’s accession to the Convention are based
         on Title XIX of the EC Treaty, concerning the environment (Articles 174 EC to 176 EC). The distribution of competences operated
         by the Treaty is biased towards action: neither Member States nor the Community can block the other from pursuing a higher
         level of protection of the environment.
      
      30.      As such, the Community regulatory framework in question should be understood as introducing minimum standards, which in no
         way prevent further action by Member States. Since this framework did not at the material time cover PFOs, the Community could
         not have acquired exclusive competence over their regulation. (12)
      
      31.      While a plea of exclusive competence is inadmissible, the Commission has correctly raised in the pre-litigation procedure
         the issue of infringement of Article 10 EC, on which I shall concentrate. (13) There are two facets to this alleged infringement.
      
      32.      The first is substantive: it entails an allegation that Sweden’s proposal to add PFOs – or indeed any substance – to the Convention
         compromises the unity of the international representation of the Community and its Member States.
      
      33.      The second is procedural: it bypasses the issue of whether Sweden is entitled to submit such proposals, to focus instead on
         the coordination of those proposals with an ongoing Community decision-making process.
      
      34.      I believe it is useful to analyse these two facets separately.
      
      i) Whether Sweden can propose to add PFOs to the Convention
      35.      The Commission’s main argument is that, since the Convention is a mixed agreement, Sweden is not permitted to act individually,
         but only in tandem with the Community or if it is represented by the Community. It should be noted that this argument, as
         formulated by the Commission, can readily be applied to all mixed agreements.
      
      36.      Mixed agreements are typical where there are shared competences, as is the situation in the present case. It is true that
         the Court has held that the need for unity in the international representation of the Community and its Member States may
         prevent the latter from acting individually, even if the competence remains shared. (14) Nonetheless, it would clearly go beyond this case law to hold that this is true whatever the situation under a mixed agreement.
      
      37.      The unity of international representation of the Community and its Member States does not have an independent value; it is
         merely an expression of the duty of loyal cooperation under Article 10 EC. (15) The question whether such unity is required by the duty of loyal cooperation can be resolved only by analysing the obligations
         laid down in a specific agreement. 
      
      38.      The standard for this analysis, as I have previously stated, should be whether the exercise of the shared competence by the
         Member State – in this case through an international agreement – is liable seriously to compromise the exercise of a Community
         competence. (16)
      
      39.      Following an analysis of Sweden’s proposal to add PFOs to the Convention, I can only conclude that the Community’s competence
         is not jeopardised. Sweden’s proposal neither forces the Community to be subject to rules that it does not want, nor does
         it affect its ability to propose rules that it does want. 
      
      40.      In relation to the Community’s being subject to new rules, the Convention itself allows the Community to refuse to be bound
         by any amendments, such as the addition of PFOs (should the technical review prompted by Sweden’s proposal result in such
         an amendment). (17)
      
      41.      In relation to the Community’s ability to propose new rules, under the Convention the Community remains free both to influence
         the technical review of PFOs and to make proposals as to their treatment, in the same way as if it had submitted the initial
         proposal itself. All that Sweden has done is to start the relevant procedure, prompting the technical review of PFOs.
      
      42.      The Commission has mentioned two difficulties that may stand in the way of the exercise of the Community’s competence: first,
         that it has to act in order to avoid being bound by the addition of PFOs to the Convention; and, second, that this addition
         may trigger (unspecified) demands for compensation from developing countries, which may influence future negotiations on other
         substances.
      
      43.      I see difficulties for the Community, but not excessive ones. It should be borne in mind that such difficulties need to be
         balanced against the legitimate rights of Member States and the preservation of their competences. The duty of loyal cooperation
         applies equally to the actions of the Community’s institutions towards Member States. (18)
      
      44.      If the Community institutions were to prevent Sweden from adequately protecting its environment and the health of its citizens
         because of vague economic interests, or simply because the Community is required to notify the Convention, they would render
         the exercise of Sweden’s competence excessively difficult.
      
      45.      Sweden is therefore entitled to propose that PFOs be added to the Convention, just as it had competence to accede to it under
         Article 174(4) EC. However, Sweden will, when submitting any such proposal, be constrained by the fact that the Community
         is also a party to the Convention; I shall deal with this problem in the following section.
      
      ii) Whether Sweden could have proposed to add PFOs to the Convention while the Community decision-making process was ongoing
      46.      The implications of the duty of loyal cooperation do not end with the analysis of whether it was possible for Sweden to exercise
         its competence; the manner in which it did so is equally, if not more, important. 
      
      47.      Indeed, Sweden’s actions may jeopardise the exercise of the Community’s competence not because of their subject-matter, but
         because they undermine the Community’s decision-making process.
      
      48.      In the field of mixed agreements, the Court has stated that a Member State has a duty to inform and consult the Community
         institutions prior to engaging in individual action. (19) If fulfilling that duty triggers a Community decision-making process, or is integrated in an ongoing process, the consequence
         must be that the Member State should engage fully and in good faith in such process.
      
      49.      The implications of the duty of loyal cooperation are therefore twofold: first, that Member States cooperate with the Community
         decision-making process; and, second, that they refrain from taking individual action, at least for a reasonable period of
         time, until a conclusion to that process has been reached. (20)
      
      50.      Sweden seems to have successfully discharged the first part of that duty: it sought to achieve a common proposal on adding
         PFOs to the Convention. However, Sweden’s later threats to act individually could be perceived as intended to disproportionately
         influence the Community decision-making process and therefore to interfere with the integrity of the Community’s political
         process. 
      
      51.      Furthermore, Sweden failed to discharge the second part of that duty in its entirety. If a Community decision had been reached
         not to add PFOs to the Convention, it would have been free to act individually. However, a careful examination of the Community
         decision-making process reveals that no conclusion had been reached by the time Sweden acted. Therefore, Sweden should have
         refrained from acting. 
      
      52.      At the time of Sweden’s proposal, an agreement had been reached in the Council’s ‘international environment group’ that a
         common proposal would be made to add substances to the Convention. Although an agreement was still to be reached on whether
         those substances would include PFOs, previous Council conclusions had established a preference for substances already included
         in the Protocol.
      
      53.      Not only had Sweden already proposed that PFOs be added to the Protocol, but there was also an agreement in the Council’s
         ‘international environment group’ to submit such a proposal under the Protocol (which indeed later resulted in a Council decision).
         With the addition of PFOs to the Protocol imminent, Sweden cannot assert in good faith that a decision not to propose PFOs
         to the Convention had been taken.
      
      54.      The fact that the Council decision which followed Sweden’s proposal did not include PFOs is irrelevant. Sweden’s proposal
         made a Community proposal superfluous. In any event, Sweden should have forborne from acting individually precisely until
         a decision of that sort was taken, so as to respect the integrity of the Community decision-making process and not to interfere
         with its internal balance of power.
      
      55.      Sweden argues that, had it not acted promptly, it would not have been possible to submit the proposal for the addition of
         PFOs to the Convention to an impending conference of the parties, which would have delayed matters for at least one more year.
         However, abiding by the duty of loyal cooperation may involve the sacrifice of a Member State’s interests.
      
      56.      The Community decision-making process is slow, and Member States must acknowledge that results will not be achieved as promptly
         as when they act individually. If, however, they were allowed to bypass this process whenever it suited them, Community decision-making
         would serve no purpose. Furthermore, I am of the opinion that a degree of prudence should be exercised with regard to Member
         States using their external competences to interfere with the internal balance of power of the Community decision-making process.
      
      57.      I am sympathetic to the argument that Member States must not be caught in a never-ending process, in which a final decision
         by the Community is postponed to the point of inaction. If that proves to be the case, a decision should be deemed to have
         been taken and Member States should be allowed to act. (21) Nonetheless, that was not the case here: it is sufficient to point out that little more than a week elapsed between Sweden’s
         announcement that it would act individually if an agreement was not reached and its actual submission of a proposal.
      
      58.      Sweden did not let that decision-making process take its natural course and culminate in a Council decision either for or
         against the addition of PFOs to the Convention. Sweden should have engaged in the Community decision-making process until
         such a decision was reached, even if, politically, it felt that its efforts to achieve a common proposal on the addition of
         PFOs to the Convention were as doomed as lemmings heading towards the edge of a cliff.
      
      III –  Conclusion
      59.      In light of all the above, I propose that the Court should declare that, in unilaterally proposing that perfluorooctane sulfonates
         should be added to the annexes to the Stockolm Convention on Persistent Organic Pollutants before a Community decision was
         reached on the matter, Sweden failed to fulfil its obligations under Article 10 EC.
      
      1 –	Original language: English.
      
      2 –	The Stockolm Convention on Persistent Organic Pollutants was adopted on 22 May 2001, and entered into force on 17 May 2004.
      
      3 –	The Convention on Long Range Transboundary Air Pollution was concluded in 1979; the Protocol dates from 1998.
      
      4 –	Regulation (EC) No 850/2004 of the European Parliament and of the Council of 29 April 2004 on persistent organic pollutants
         and amending Directive 79/117/EEC (OJ 2004 L 158, p. 7).
      
      5 –	Sweden clarified by a letter of 31 October 2005 that the technical review initiated by its proposal was indeed intended
         to add PFOs to the Protocol. There were some doubts over Sweden’s intentions on account of its statement in the Report of
         the 22nd Session of the Executive for the Convention on Long-Range Transboundary Air Pollution of 24 January 2005, paragraph 30, which
         referred to paragraph 4(d) of a certain Decision 2003/10 – which states that the Task Force on POPs, created under the Protocol,
         will ‘carry out such other tasks … as the Executive Body may assign it’ (instead of Sweden referring to paragraph 4(c) of
         that decision, which deals with preparing ‘technical reviews on … new substances proposed by the Parties for inclusion [in
         the Protocol]’).
      
      6 –	Document 11386/05 of 22 July 2005, the written procedure in the Council regarding this decision having been closed on 8
         September 2005 (document 13305/05).
      
      7 –	Council Directive 76/769/EEC of 27 July 1976 on the approximation of the laws, regulations and administrative provisions
         of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations (OJ
         1976 L 262, p. 201); see footnote 11 below.
      
      8 –	Council Decision 8541/06/EC of 24 April 2006; its fourth recital reads: ‘In accordance with Article 8 of the Convention,
         any Party may submit a proposal to the Secretariat for listing a chemical in the Annexes to the Convention. … Based on the
         requirement of close cooperation in the international representation of the Community, proposals should be submitted by the
         Community and the Member States together.’ The Commission added a minute statement to this decision, where it affirmed its
         opinion that the decision ‘fully support[s] that Member States are not to make unilateral submissions not agreed at Council’.
      
      9 –	See Article 1(1) of the POPs regulation.
      
      10 –	Directive 2006/122/EC of the European Parliament and of the Council of 12 December 2006 amending for the 30th time Council
         Directive 76/769/EEC on the approximation of the laws, regulations and administrative provisions of the Member States relating
         to restrictions on the marketing and use of certain dangerous substances and preparations (perfluorooctane sulfonates) (OJ
         2006 L 372, p. 32); the directive was proposed by the Commission on 5 December 2005.
      
      11 –	Case C-459/03 Commission v Ireland [2006] ECR I-4635, paragraph 92.
      
      12 –	The Community can acquire exclusive competence through internal regulation according to the well-known ERTA principle,
         see Case 22/70 ERTA [1971] ECR 263, and Opinion 1/94 [1994] ECR I-5267, paragraph 77.
      
      13 –	The Commission has additionally claimed the infringement of Article 300(1) EC; however, as the United Kingdom has rightly
         pointed out, this provision concerns ‘the conclusion of agreements’, whereas it is Article 300(2) EC which deals with the
         ‘positions to be adopted on behalf of the Community in a body set up by an agreement, when that body is called upon to adopt
         decisions having legal effects’. As such, contrary to the Commission’s contention, an infringement of Article 300(1) EC would
         not cover Sweden’s proposal and its effects on the Community’s competence to propose substances to the Convention.
      
      14 –	See Opinion 1/94 [1994] ECR I-5267, paragraph 108. 
      
      15 –	See Hillion, C., ‘Mixity and coherence in EU external relations: the significance of the “duty of cooperation”’ CLEER Working
         Papers No 2009/2 p. 6.
      
      16 –	See my Opinion in Case C-205/06 Commission v Austria and Case C-249/06 Commission v Sweden [2009] ECR I-0000, points 36 to 42.
      
      17 –	The Convention precludes a dual exercise of rights by States and international organisations which are parties to it, and
         requires a declaration of competence as to the exercise of these rights. Nonetheless, there is a consensus among the parties
         to the present case that this does not apply in relation to the right to refuse to be bound by amendments to the Convention.
         That consensual interpretation must be accepted, as the outcome of an action under Article 226 EC should not depend on a disputed
         interpretation of an international agreement (see my Opinion in Commission v Austria and Commission v Sweden, point 62, and the Opinion of Advocate General Sharpston in Case C-118/07 Commission v Finland [2009] ECR I-0000, points 34 and 35).
      
      18 –	See Case C-45/07 Commission v Greece [2009] ECR I-0000, paragraph 25; it should be noted that this case dealt with an exclusive Community competence.
      
      19 –	Case C-459/03 Commission v Ireland [2006] ECR I-4635, paragraph 179.
      
      20 –	The Court has held that when the decision-making process has culminated in a Council decision authorising the Commission
         to negotiate a multilateral agreement, this requires ‘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
         Case C-266/03 Commission v Luxembourg [2005] ECR I-4805, paragraph 60, and Case C-433/03 Commission v Germany [2005] ECR I-6985, paragraph 66). Because in those cases a conclusion to the decision-making process had already been reached,
         the Court concentrated on the absolute duty for Member States to coordinate their action with the Council decision reached;
         a duty of abstention was admitted only in principle since, according to my remarks above, such a duty would only apply to
         Member State action liable seriously to compromise the objectives of the Council decision (see footnote 18 above). 
      
      21 –	Similarly, the Court found that the Council was allowed to forego the opinion of the European Parliament if that opinion
         was withheld in violation of the duty of loyal cooperation (see Case C-65/93 Parliament v Council [1995] ECR I-643, paragraphs 26 to 28).