European Commission v Kingdom of Sweden.
Date: 2010-04-20
69. In all the areas corresponding to the objectives of the Treaty, Article 10 EC requires Member States to facilitate the achievement of the Community’s tasks and to abstain from any measure which could jeopardise the attainment of the objectives of the Treaty (Opinion 1/03 [2006] ECR I-1145, paragraph 119, and Case C‑459/03 Commission  v Ireland  [2006] ECR I-4635, paragraph 174).
71. In that regard, the Court has already held that this 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 (Case C-266/03 Commission  v Luxembourg  [2005] ECR I-4805, paragraph 58, and Case C-433/03 Commission  v Germany [2005] ECR I-6985, paragraph 64).
73. Where it is apparent that the subject-matter of an agreement or convention falls partly within the competence of the Community and partly within that of its Member States, it is essential to ensure close cooperation between the Member States and the Community 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 Community (Ruling 1/78 [1978] ECR 2151, paragraphs 34 to 36 (by analogy with the EAEC Treaty); Opinion 2/91 [1993] ECR I-1061, paragraph 36; Opinion 1/94 [1994] ECR I-5267, paragraph 108; and Case C-25/94 Commission  v Council  [1996] ECR I‑1469, paragraph 48).
74. The Court has held that 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 (Case 804/79 Commission  v United Kingdom  [1981] ECR I-1045, paragraph 28; Commission  v Luxembourg , paragraph 59; and Commission  v Germany , paragraph 65).
75. Likewise, the Court has held that 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 ( Commission  v Luxembourg , paragraph 60, and Commission  v Germany , paragraph 66).
77. In that regard, it does not appear to be indispensable that a common position take a specific form for it to exist and to be taken into consideration in an action for failure to fulfil the obligation of cooperation in good faith, provided that the content of that position can be established to the requisite legal standard (see, to that effect, Commission  v Council , paragraph 49).
103. As was pointed out in paragraph 74 of this judgment, the Court has held that 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 ( Commission  v Germany , paragraph 65). That is especially true in a situation such as that in the present case which is characterised, as established in paragraph 91 of this judgment, by a unilateral proposal which dissociates the Member State in question from a concerted common strategy within the Council and was submitted within an institutional and procedural framework such as that of the Stockholm Convention.