Commission of the European Communities v Federal Republic of Germany.
Date: 2005-07-14
28. Although it is true that the subject-matter of the proceedings brought under Article 226 EC is circumscribed by the pre-litigation procedure provided for by that provision and that, consequently, both the Commission’s reasoned opinion and the application must be based on the same complaints, that requirement cannot be stretched so far as to mean that in every case the statement of the subject-matter of the proceedings in the reasoned opinion must be exactly the same as the form of order sought in the originating application if the subject-matter of the proceedings has not been extended or altered but simply limited (see, in particular, Case C-279/94 Commission  v Italy [1997] ECR I-4743, paragraphs 24 and 25, Case C-52/00 Commission  v France [2002] ECR I-3827, paragraph 44, and Case C-139/00 Commission  v Spain  [2002] ECR I-6407, paragraphs 18 and 19).
29. By referring to the Open Skies  judgments in its originating application the Commission merely intended to set out the most recent case-law relating to the principles governing the exclusive external competence of the Community, without extending, modifying or even limiting the subject-matter of the dispute, as defined in the reasoned opinion of 28 February 2000.
32. Suffice it in this regard to point out 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 prevailing in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see, inter alia, Case C-110/00 Commission  v Austria  [2001] ECR I-7545, paragraph 13, and Case C-310/03 Commission  v Luxembourg  [2004] ECR I-1969, paragraph 7).
43. If 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 (Case C-266/03 Commission  v Luxembourg [2005] ECR I-0000, paragraph 41).
45. 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 Germany , paragraph 108).
46. 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 Germany , paragraph 109).
47. 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 AETR  judgment, if the Member States retained freedom to negotiate with non-member countries ( Commission  v Germany , paragraph 110).
48. 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 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 (Case C-266/03 Commission  v Luxembourg , paragraph 46).
49. 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 by that provision the Community is merely taking formal note of Switzerland’s rights under that convention (Case C-266/03 Commission  v Luxembourg , paragraph 47).
50. 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 (Case C-266/03 Commission  v Luxembourg , paragraph 48).
60. First, as regards the admissibility of the complaint relating to the maintenance in force of the agreement concluded with Czechoslovakia, it must be held that this was raised by the Commission in its reply and therefore cannot be examined by the Court. Such a complaint is not mentioned by the Commission in its originating application (see, to that effect, Case 298/86 Commission  v Belgium  [1988] ECR 4343, paragraph 8).
61. According to settled case-law, a party may not alter the actual subject-matter of the dispute during the proceedings, so that the substance of the application must be examined solely with reference to the conclusions contained in the application instituting the proceedings (see, in particular, Case 232/78 Commission  v France  [1979] ECR 2729, paragraph 3, and Case C-256/98 Commission  v France  [2000] ECR I-2487, paragraph 31).
63. Second, as regards the substance of the complaint, it must be recalled that 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.
64. It should also be recalled 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 , paragraph 58).
65. In that connection, the Court has already 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, and Case C-266/03 Commission  v Luxembourg , paragraph 59).
66. 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 (Case C-266/03 Commission v Luxembourg , paragraph 60).
81. 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 non-member countries or vessels registered in the latter from carrying out services between Member States of the Community (see Case C-266/03 Commission  v Luxembourg , paragraph 73).