Commission of the European Communities v Grand Duchy of Luxemburg.
Date: 2005-06-02
35. It must be recalled, first, that under the system laid down by Article 226 EC, the Commission has a discretion to bring an action for failure to fulfil obligations and it is not for the Court to assess whether it was appropriate to exercise that discretion (Case C-152/98 Commission  v Netherlands  [2001] ECR I-3463, paragraph 20) and that, second, a Member State cannot, in any event, plead the principle of reciprocity and rely on a possible infringement of the Treaty by another Member State in order to justify its own default (Case 325/82 Commission  v Germany  [1984] ECR I-777, paragraph 11, and Case C-131/01 Commission  v Italy  [2003] ECR I-1659, paragraph 46).
36. It must also be recalled that, according to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation in the Member State as it stood at the end of the period laid down in the reasoned opinion, and that the Court may not take account of any subsequent changes (see, in particular, case C-110/00 Commission  v Austria  [2001] ECR I-7545, paragraph 13).
41. If the Member States were free to conclude international agreements affecting the common rules, that would compromise the attainment of the objective pursued by those rules as well as the Community’s tasks and the objectives of the Treaty.
43. That is the case 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 ( Commission  v Luxembourg , paragraph 88).
44. Thus it is that, 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 ( Commission  v Luxembourg , paragraph 89).
45. 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 within the meaning of the ERTA  judgment if the Member States retained freedom to negotiate with non-member countries ( Commission  v Luxembourg , paragraph 90).
46. As is clear from its title and from Articles 1 and 2, Regulation No 3921/91 lays down the conditions for access to the national transport of goods or passengers by inland waterway in Member States only in respect of Community carriers. Those provisions cover only carriers of goods or passengers by inland waterway established in a Member State, which use vessels whose owner or owners are natural persons domiciled in a Member State and who are Member State nationals, or legal persons which have their registered place of business in a Member State and the majority holding in which or majority of which belongs to Member State nationals.
47. The reference in Article 6 of Regulation No 3921/91 to rights existing on the basis of the Mannheim Convention cannot alter that conclusion, since, as the Advocate General states in point 58 of his Opinion, by that provision the Community is merely taking formal note of Switzerland’s rights under that convention.
48. It follows that Regulation No 3921/91 does not govern the conditions for access by non-Community carriers to the national transport of goods or passengers by inland waterway in a Member State.
58. That duty of genuine cooperation 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.
59. In that regard, it must be recalled that the Court has already held that 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 (see Case 804/79 Commission  v United Kingdom  [1981] ECR I-1045, paragraph 28).
60. The adoption of a decision authorising the Commission to negotiate a multilateral agreement on behalf of the Community marks the start of a concerted Community action at international level and 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.
73. As the Advocate General states in points 85 and 86 of his Opinion, whilst Regulation No 1356/96 organises the freedom to provide inland waterway transport services between the Member States of the Community to the benefit of carriers established in one of those Member States, it is clear that the system established by Regulation No 1356/96 does not have as its purpose or effect to prevent operators established in third countries or vessels registered in the latter to carry out services between Member States of the Community.