European Commission v Federal Republic of Germany.
Date: 2019-03-27
34


Furthermore, the Federal Republic of Germany, relying on the wording of the second paragraph of Article 258 TFUE, argues that it is only when the Member State in question fails to comply with the reasoned opinion within the time limit laid down therein that the Commission may bring infringement proceedings before the Court. As a procedural rule, Article 258 TFEU ought to be subject to a restrictive interpretation so as to ensure legal certainty. In the same vein, the Federal Republic of Germany refers to the case-law of the Court, from which it follows that the Commission cannot bring an action for failure to fulfil obligations before it where the Member State concerned has put an end to the infringement before the expiry of the time limit set in the reasoned opinion (judgment of 5 June 2003, Commission v Italy, C‑145/01, EU:C:2003:324, paragraph 15).
39


As a preliminary point, it should be recalled that it is clear from the second paragraph of Article 258 TFEU that, if the Member State concerned does not comply with the reasoned opinion within the period laid down therein, the Commission may bring the matter before the Court. According to the settled case-law of the Court, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of that period (see, in particular, judgment of 4 May 2017, Commission v Luxembourg, C‑274/15, EU:C:2017:333, paragraph 47).
40


It is also clear from the case-law of the Court that the procedure provided for in Article 258 TFEU presupposes an objective finding that a Member State has failed to fulfil its obligations under the FEU Treaty or secondary legislation and also makes it possible to establish an infringement of EU law in a given case (judgment of 22 February 2018, Commission v Poland, C‑336/16, EU:C:2018:94, paragraphs 61 and 62 and the case-law cited).
44


The infringement thus complained of consists in the alleged failure to observe a position adopted by the European Union, as it is set out in a Council decision adopted under Article 218(9) TFEU, which provides for a simplified procedure for the purposes of defining positions to be adopted on behalf of the European Union in the context of its participation in the adoption, within a decision-making body set up by the international agreement in question, of acts applying or implementing that agreement (judgment of 6 October 2015, Council v Commission, C‑73/14, EU:C:2015:663, paragraph 65). The context of that alleged infringement is therefore the external action of the European Union and it concerns, more specifically, the decision-making process of an international body set up by an agreement to which the European Union is a party and to which the European Union had been authorised, by Decision 2014/699, to contribute.
45


An infringement of a Council decision adopted on the basis of Article 218(9) TFEU, such as that for which the Federal Republic of Germany is criticised in the present case, manifests its effects not only at domestic level, but also at international level on the unity and consistency of the external action of the European Union, interests which are specifically to be safeguarded by a decision taken on that basis (see, to that effect, Opinion 1/94 (Agreements annexed to the WTO Agreement) of 15 November 1994, EU:C:1994:384, paragraph 108; judgments of 2 June 2005, Commission v Luxembourg, C‑266/03, EU:C:2005:341, paragraph 60; of 14 July 2005, Commission v Germany, C‑433/03, EU:C:2005:462, paragraph 66; and of 20 April 2010, Commission v Sweden, C‑246/07, EU:C:2010:203, paragraph 73).
48


In those circumstances, if the argument put forward by the Federal Republic of Germany were to be upheld, then any Member State which, by its conduct, were to impede the achievement of the objective inherent in a decision adopted under Article 218(9) TFEU, could evade infringement proceedings, on the grounds that that infringement has already exhausted its effects, as a result of which the Member States might take advantage of their own misconduct.
49


In such a situation, 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, conferred on it by Article 17 TEU.
50


Moreover, 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, pursuant to the fourth paragraph of Article 288 TFEU, and, more generally, to the respect for the values on which the European Union, in accordance with Article 2 TEU, is founded, one such being the rule of law.
53


It follows that, bearing in mind the particular context to which the disputed conduct relates, the Federal Republic of Germany cannot rely, in order to contest the admissibility of the present action, on case-law in the area of public procurement, delivered in contexts that are purely internal to the European Union, case-law from which it follows that an action seeking to obtain a declaration of a failure to fulfil obligations under EU rules on public procurement is inadmissible when, on the expiry of the period laid down in the reasoned opinion, the disputed procurement notice or the contracts at issue had already exhausted all their effects (judgments of 27 October 2005, Commission v Italy, C‑525/03, EU:C:2005:648, paragraphs 12 to 17, and of 11 October 2007, Commission v Greece, C‑237/05, EU:C:2007:592, paragraphs 33 to 35).
56


In that connection, it should be observed that such a claim merges into the substantive examination of the failure to fulfil obligations, in that the analysis of that claim implies a review of the conduct of the Federal Republic of Germany following the 25th session of the OTIF Revision Committee (see, by analogy, judgment of 14 April 2005, Commission v Luxembourg, C‑519/03, EU:C:2005:234, paragraph 20). Consequently, the question of whether that claim is well founded will be the subject of the substantive examination of that failure to fulfil obligations.
57


As to the claim relied upon by the Federal Republic of Germany that it is no longer possible to remedy the alleged harm to the reputation and credibility of the European Union, it could not — assuming it to be established — give rise to the inadmissibility of the present action. As the Advocate General observes in point 62 of his Opinion, 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 (judgment of 7 February 1973, Commission v Italy, 39/72, EU:C:1973:13, paragraph 10).
82


It follows that Decision 2014/699 is a measure which produces binding legal effects, in that it establishes the European Union position at the 25th session of the OTIF Revision Committee, on the one hand, for the Commission and, on the other hand, for the Member States inasmuch as it obliges them to defend that position (see, to that effect, judgment of 1 October 2009, Commission v Council, C‑370/07, EU:C:2009:590, paragraph 44).
85


As the Advocate General stated in point 84 of his Opinion, in a European Union based on the rule of law, acts of the institutions enjoy a presumption of lawfulness. Since Decision 2014/699 had been adopted, the Federal Republic of Germany was bound to comply with and implement it (see, to that effect, judgment of 20 September 2007, Commission v Spain, C‑177/06, EU:C:2007:538, paragraphs 36 and 38).
86


The fact that the Federal Republic of Germany subsequently also disputed the lawfulness of Decision 2014/699 before the Court, under Article 263 TFEU, on account, inter alia, of an alleged breach of the principle of effective judicial protection, in no way alters the binding nature of that decision.
87


The disputed conduct occurred at a date prior to that on which the Federal Republic of Germany brought an action seeking annulment of Decision 2014/699. Moreover, that Member State failed to seek either the suspension of the implementation of that decision or the adoption of interim measures by the Court, under Articles 278 and 279 TFEU, so that the action for annulment had no suspensive effect, in accordance with Article 278.
88


It is clear from the Court’s case-law that a Member State may not unilaterally adopt, on its own authority, corrective or protective measures designed to cure any breach by an institution of rules of EU law (see, to that effect, judgment of 12 February 2009, Commission v Greece, C‑45/07, EU:C:2009:81, paragraph 26).
89


In any event, it should be recalled that the system of remedies established by the FEU Treaty distinguishes between the actions mentioned in Articles 258 and 259 TFEU, which seek a declaration that a Member State has failed to fulfil its obligations, and the actions mentioned in Articles 263 and 265 TFEU, which seek review of the lawfulness of acts or failures to act of the European Union institutions. Those remedies have different objectives and are subject to different rules. In the absence of a provision of the Treaty expressly permitting it to do so, a Member State cannot, therefore, properly plead the unlawfulness of a decision or a directive addressed to it as a defence in an action for a declaration that it has failed to fulfil its obligations arising out of its failure to implement that decision or that directive. The position could be different only if the act in question contained such particularly serious and manifest defects that it could be categorised as a non-existent act (judgments of 18 October 2012, Commission v Czech Republic, C‑37/11, EU:C:2012:640, paragraph 46, and of 11 October 2016, Commission v Italy, C‑601/14, EU:C:2016:759, paragraph 33).
92


As regards the second submission, alleging infringement of Article 4(3) TFEU, it should be recalled that it is clear from that provision, which sets out the principle of sincere cooperation, that the European Union and the Member States are, in full mutual respect, to assist each other in carrying out the tasks provided for by the Treaties (judgment of 5 December 2017, Germany v Council, C‑600/14, EU:C:2017:935, paragraph 105).
93


It is settled case-law that, in particular where the subject matter of an agreement or 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 (judgment of 20 April 2010, Commission v Sweden, C‑246/07, EU:C:2010:203, paragraph 73 and the case-law cited).
99


The Federal Republic of Germany cannot justify its conduct either by a possible failure on the part of the EU institutions to comply with the obligation of sincere cooperation (see, to that effect, judgment of 12 February 2009, Commission v Greece, C‑45/07, EU:C:2009:81, paragraph 26), or by the difficulties linked to the European Union’s accession to the OTIF.