Commission of the European Communities v Hellenic Republic.
Date: 2009-02-12
5. Member States shall conform to the following paragraphs of Part B of the ISPS Code as if they were mandatory:
…’
5. Article 9 of the Regulation, entitled ‘Implementation and conformity checking’, provides in paragraph 1:
‘Member States shall carry out the administrative and control tasks required pursuant to the provisions of the special measures to enhance maritime security of the SOLAS Convention and of the ISPS Code. They shall ensure that all necessary means are allocated and effectively provided for the implementation of the provisions of this Regulation.’
15. In that connection, it must first be observed that, under Article 3(1)(f) EC, the setting of a common policy in the sphere of transport is specifically mentioned as one of the objectives of the Community (see also Case 22/70 Commission v Council  [1971] ECR 263, paragraph 20, ‘AETR’ ).
21. However, as the Advocate General noted at point 36 of his Opinion, in asking the IMO Maritime Safety Committee to examine the creation of check lists or other appropriate tools for assisting the Contracting States of the SOLAS Convention in monitoring whether ships and port facilities complied with the requirements of Chapter XI-2 of the Annex to that convention and the ISPS Code, the Hellenic Republic submitted to that committee a proposal which initiates a procedure which could lead to the adoption by the IMO of new rules in respect of Chapter XI-2 and or/the ISPS code.
22. The adoption of such new rules would as a consequence have an effect on the Regulation, the Community legislature having decided, as is apparent from both Article 3 of that regulation and Annexes I and II thereto, to incorporate in substance both of those international instruments into Community law.
23. In those circumstances, since it set in motion such a procedure with the contested proposal, the Hellenic Republic took an initiative likely to affect the provisions of the Regulation, which is an infringement of the obligations under Articles 10 EC, 71 EC and 80(2) EC.
26. None the less, any breach by the Commission of Article 10 EC cannot entitle a Member State to take initiatives likely to affect Community rules promulgated for the attainment of the objectives of the Treaty, in breach of that State’s obligations, which, in a case such as the present, arise under Articles 10 EC, 71 EC and 80(2) EC. Indeed, a Member State may not unilaterally adopt, on its own authority, corrective or protective measures designed to obviate any breach by an institution of rules of Community law (see, by analogy, Case C-5/94 Hedley Lomas [1996] ECR I-2553, paragraph 20 and case‑law cited).
29. Moreover, a gentleman’s agreement, even if it had the scope ascribed to it by the Hellenic Republic, could not, in any event, affect the division of powers between the Member States and the Community, such as it results from the provisions of the Treaty; it cannot permit a Member State, acting individually in the context of its participation in an international organisation, to assume obligations likely to affect Community rules promulgated for the attainment of the objectives of the Treaty (see, to that effect, Case 204/86 Greece v Council [1988] ECR 5323, paragraph 17).
30. Similarly, the Hellenic Republic’s argument that an obligation to abstain from active participation in the IMO will not ensure that the Community interest is protected, since the Community is not a member of that international organisation, cannot be accepted. The mere fact that the Community is not a member of an international organisation in no way authorises a Member State, acting individually in the context of its participation in an international organisation, to assume obligations likely to affect Community rules promulgated for the attainment of the objectives of the Treaty.
31. Moreover, the fact that the Community is not a member of an international organisation does not prevent its external competence from being in fact exercised, in particular through the Member States acting jointly in the Community’s interest (see, to that effect, Opinion 2/91 [1993] ECR I-1061, paragraph 5).
35. However, it must be borne in mind that Article 307(1) EC is designed to apply only if there is an incompatibility between, on the one hand, an obligation arising under the international convention, concluded by the Hellenic Republic before its accession to the Community and by which that State became an IMO member, and, on the other, an obligation arising under Community law (see, to that effect, Case C‑62/98, Commission  v Portugal  [2000] ECR I-5171, paragraphs 46 and 47).