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Published online by Cambridge University Press: 17 February 2017
Case C-246/07 Commission v. Sweden nyr
1. Unilateral proposals in the context of an international legal framework regarding alterations of that framework may be interpreted as dissociation from the common strategy within the Council (author’s headnote).
2. If such dissociation has (legal) consequences for the Union, it compromises the principle of unity in the international representation of the Union and its Member States and weakens their negotiating power with regard to other parties to the Convention concerned. In such a case, there is a breach of the duty of cooperation in good faith under Article 10 EC (author’s headnote).
3. By unilaterally proposing that a substance be listed in Annex A to the Stockholm Convention on Persistent Organic Pollutants, the Kingdom of Sweden failed to fulfil its obligations under Article 10 EC** (official headnote).
** Article 10 EC (now: Article 4, paragraph 3 of the Treaty on the Functioning of the European Union (‘TFEU’)), The Stockholm Convention on Persistent Organic Pollutants.
1 Judgment of 20 April 2010.
2 Sweden was supported by the Kingdom of Denmark, the Kingdom of the Netherlands, the Republic of Finland and the United Kingdom of Great Britain and Northern Ireland.
3 Stockholm Convention on Persistent Organic Pollutants, Doc. UNEP/POPS/CONF/2, 9 March 2001; 40 ILM 531 (2001). The Stockholm Convention was adopted on 22 May 2001, and entered into force on 17 May 2004. It was approved by the Community on 14 October 2004, Decision 2006/507/EC, OJ 2006 L209/1.
4 Article 1 of the Stockholm Convention, supra note 3.
5 Article 3 of the Stockholm Convention, supra note 3.
6 Ibid., Article 8.
7 Ibid., Article 2.
8 Council Decision 2004/259/EC of 19 February 2004 concerning the conclusion, on behalf of the Community, of the Protocol to the 1979 Convention on Long Range Transboundary Air Pollution on Persistent Organic Pollutants, OJ 2004 L81/35. The Convention on Long Range Transboundary Air Pollution was concluded in 1979; the Protocol dates from 1998.
9 Case C-246/07, Commission v. Sweden, nyr, para. 35.
10 Document 7293/05 of 14 March 2005.
11 Council Decision 8541/06/EC of 24 April 2006. After Sweden had submitted its proposal, a directive introducing control measures for PFOs was adopted. See Directive 2006/122/EC of the European Parliament and of the Council of 12 December 2006 amending for the 30th time Council Directive 76/769/EEC on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations (perfluorooctane sulfonates) (OJ 2006 L 372, p. 32); the directive was proposed by the Commission on 5 December 2005.
12 Article 23 of the Stockholm Convention, supra note 3.
13 Case C-246/07, Commission v. Sweden, supra note 9, para. 72.
14 Ibid., para. 73.
15 Case C-266/03 Commission v. Luxembourg [2005] ECR I-4805, para. 58 and Case C-433/03 Commission v. Germany [2005] ECR I-6985, para. 64 as quoted in Case C-246/07 Commission v. Sweden (not yet reported), para. 71. See also Opinion of Advocate General Poiares Maduro, 1 October 2009 in Case-246/07, Commission v. Sweden, nyr, paras. 25–31 regarding the Commission's failed plea regarding exclusive competence.
16 Case C-246/07, Commission v. Sweden, supra note 9, para. 75.
17 Ibid., para. 76.
18 Ibid., para. 91.
19 Opinion of Advocate General Poiares Maduro, 1 October 2009 in Case-246/07, Commission v. Sweden, nyr, para. 49.
20 Ibid., para. 51.
21 Ibid., para. 92.
22 Ibid., para. 94.
23 Ibid., paras. 97–98.
24 Ibid., para. 102.
25 The complaint alleging breach of Article 300(1) EC was not well founded, as it was based on the fact that the conduct of the Kingdom of Sweden was covered by the second subparagraph Article 300(2) EC rather than by Article 300(1) EC. See Case C-246/07, Commission v. Sweden, supra note 9, paras. 108–110.
26 See also Eleftheria Neframi, “The Duty of Loyalty: Rethinking its Scope through its Application in the Field of EU External Relations”, 47 Common Market Law Review (2010), pp. 323–359, at p. 324, footnote 4.
27 “The Member States shall take any appropriate measure, general or particular, to ensure fulfillment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardize the attainment of the Union's objectives”. Article 10 EC has been taken over by Article 4(3) TFEU, second and third sentence (“Union” has replaced “Community”).
28 Case 22/70, Commission v. Council, [1971] ECR 263 as discussed in Eleftheria Neframi, “The Duty of Loyalty”, supra note 26, at p. 339.
29 See Case C-467/98, Commission v. Denmark, [2002] ECR I-9519; Case C-268/98, Commission v. Sweden, [2002] ECR I-9575; Case C-469/98, Commission v. Finland, [2002] ECR I-9627; Case C-471/98, Commission v. Belgium, [2002] ECR I-9681; Case C-472/98, Commission v. Luxembourg, [2002] ECR I-9741; Case C-475/98, Commission v. Austria, [2002] ECR I-9797; Case C-476/98, Commission v. Germany, [2002] ECR I-9855; Case C-523/04, Commission v. The Netherlands, [2007] ECR I-3267, as quoted in Neframi, “The Duty of Loyalty”, supra note 26, at p. 340, footnote 55.
30 Opinion 1/03, [2006] ECR I-1145.
31 Neframi, “The Duty of Loyalty”, supra note 26, at p. 340.
32 Ibid.
33 Ibid., at p. 341. This is also illustrated in Case 45/07, Commission v. Hellenic Republic, [2009] ECR I-701. Furthermore, the duty of loyalty is here also applied to conduct, not only result.
34 This point was briefly argued by the Commission but was not admitted by the Court and quickly addressed and dismissed by the Advocate General, see supra note 15.
35 Neframi, “The Duty of Loyalty”, supra note 26, at p. 342. Examples of this include the Open Skies judgments and pre-accession agreements. For a complete discussion, see Neframi, “The Duty of Loyalty”, supra note 26, pp. 342–345. It should be noted that Advocate General Maduro has pointed out that conflict exists also where international obligations of Member States are liable to jeopardize the effectiveness of future common rules. Opinion of A.G. Maduro in Case C-205/06 and Case C-249/06, delivered on 10 July 2008, para. 40 as quoted in Neframi, “The Duty of Loyalty”, supra note 26, p. 345.
36 The Directive on PFOs was not adopted until December 2005, see supra note 11.
37 According to Neframi, the loyalty to facilitate the exercise of Community competence is implicit in mixed agreements. See Neframi, “The Duty of Loyalty”, supra note 26, p. 352.
38 Opinion of Advocate General Poiares Maduro, supra note 19, para. 45.
39 Ibid., note 19, para. 46. On this point, Sweden submits that the obligations under Article 10 EC do not entail that the Commission could legitimately expect the Kingdom of Sweden, despite its repeated efforts, to wait for an indefinite period for internal action on the part of the Community. See Opinion of Advocate General Poiares Maduro, infra para. 62.
40 Article 4(3) TFEU, first sentence. Emphasis added.
41 See Article 4 (2) TFEU. Article 191 (4) TFEU moreover stipulates that “Within their respective spheres of competence, the Union and the Member States shall cooperate with third countries and with the competent international organizations. The arrangements for Union cooperation may be the subject of agreements between the Union and the third parties concerned. The previous subparagraph shall be without prejudice to Member States’ competence to negotiate in international bodies and to conclude international agreements”.