JUDGMENT OF THE COURT (Grand Chamber)

5 December 2017 ( *1 )

(Action for annulment — External action of the European Union — Article 216(1) TFEU — Article 218(9) TFEU — Establishment of the position to be adopted on behalf of the European Union in a body set up by an international agreement — Revision Committee of the Intergovernmental Organisation for International Carriage by Rail (OTIF) — Amendment of the Convention concerning International Carriage by Rail COTIF) and the Appendices thereto — Competence shared between the European Union and its Member States — External competence of the European Union in an area where the Union has not yet adopted common rules — Validity of Decision 2014/699/EU — Obligation to state reasons — Principle of sincere cooperation)

In Case C‑600/14,

ACTION for annulment under Article 263 TFEU, brought on 22 December 2014,

Federal Republic of Germany , represented by T. Henze and J. Möller, acting as Agents,

applicant,

supported by:

French Republic , represented initially by D. Colas, G. de Bergues and M. Hours, acting as Agents, and subsequently by D. Colas and M.‑L. Kitamura, acting as Agents,

United Kingdom of Great Britain and Northern Ireland , represented by C. Brodie, M. Holt and D. Robertson, acting as Agents, and by J. Holmes QC,

interveners,

v

Council of the European Union , represented by E. Finnegan, Z. Kupčová and J.‑P. Hix, acting as Agents,

defendant,

supported by:

European Commission , represented by F. Erlbacher, W. Mölls and J. Hottiaux, acting as Agents,

intervener,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, A. Tizzano, Vice-President, L. Bay Larsen, T. von Danwitz, J.L. da Cruz Vilaça, J. Malenovský and C. Vajda (Rapporteur), Presidents of Chambers, A. Borg Barthet, J.‑C. Bonichot, A. Arabadjiev, S. Rodin, F. Biltgen, K. Jürimäe, C. Lycourgos and M. Vilaras, Judges,

Advocate General: M. Szpunar,

Registrar: K. Malacek, Administrator,

having regard to the written procedure and further to the hearing on 25 October 2016,

after hearing the Opinion of the Advocate General at the sitting on 24 April 2017,

gives the following

Judgment

1By its application, the Federal Republic of Germany asks the Court partially to annul Council Decision 2014/699/EU of 24 June 2014 establishing the position to be adopted on behalf of the European Union at the 25th session of the OTIF Revision Committee as regards certain amendments to the Convention concerning International Carriage by Rail (COTIF) and to the Appendices thereto ( OJ 2014 L 293, p. 26 ; ‘the contested decision’).

Legal context

International law

The COTIF

2The Convention concerning International Carriage by Rail of 9 May 1980, as amended by the Vilnius Protocol of 3 June 1999 (‘the COTIF’), entered into force on 1 July 2006. The 49 States, including all the Member States of the European Union, with the exception of the Republic of Cyprus and the Republic of Malta, which are parties to the COTIF, constitute the Intergovernmental Organisation for International Carriage by Rail (OTIF).

3Under Article 2(1) of the COTIF, the aim of OTIF is to promote, improve and facilitate, in all respects, international traffic by rail, in particular by establishing systems of uniform law in various fields of law relating to international rail traffic.

4Article 6 of the COTIF, headed ‘Uniform Rules’, is worded as follows:

‘§ 1 So far as declarations are not made in accordance with Article 42 § 1, first sentence, international rail traffic and admission of railway material to use in international traffic shall be governed by:

…

(b)

the “Uniform Rules concerning the Contract of International Carriage of Goods by Rail (CIM)”, forming Appendix B to the [COTIF],

…

(d)

the “Uniform Rules concerning Contracts of Use of Vehicles in International Rail Traffic (CUV)”, forming Appendix D to the [COTIF],

(e)

the “Uniform Rules concerning the Contract of Use of Infrastructure in International Rail Traffic (CUI)”, forming Appendix E to the [COTIF],

…

§ 2 The Uniform Rules, the Regulation and the systems listed in § 1, including their Annexes, shall form an integral part of the [COTIF].’

5Article 12(5) of the COTIF provides:

‘Railway vehicles may only be seized on a territory other than that of the Member State in which the keeper has its registered office, under a judgment given by the judicial authority of that State. The term “keeper” means the person who, being the owner or having the right to dispose of it, exploits the railway vehicle economically in a permanent manner as a means of transport.’

6The OTIF Revision Committee, in principle, is composed of all parties to the COTIF.

7In accordance with Article 17(1)(a) and (b) of the COTIF, the OTIF Revision Committee is to take decisions, within the limits of its competences, on proposals aiming to modify the COTIF and is to consider, in addition, proposals to be submitted for decision to the General Assembly of OTIF. The respective competences of those two bodies of OTIF with respect to modification of the COTIF are laid down in Article 33 of that convention.

The accession agreement

8The Agreement between the European Union and the Intergovernmental Organisation for International Carriage by Rail on the Accession of the European Union to the Convention concerning International Carriage by Rail (COTIF) of 9 May 1980, as amended by the Vilnius Protocol of 3 June 1999 ( OJ 2013 L 51, p. 8 ; ‘the accession agreement’), signed on 23 June 2011 in Berne, entered into force, pursuant to Article 9 thereof, on 1 July 2011.

9Article 2 of the accession agreement provides:

‘Without prejudice to the object and the purpose of [the COTIF] to promote, improve and facilitate international traffic by rail and without prejudice to its full application with respect to other Parties to [the COTIF], in their mutual relations, Parties to [the COTIF] which are Member States of the Union shall apply Union rules and shall therefore not apply the rules arising from [the COTIF] except in so far as there is no Union rule governing the particular subject concerned.’

10Article 6 of that agreement provides:

‘1. For decisions in matters where the Union has exclusive competence, the Union shall exercise the voting rights of its Member States under [the COTIF].

2. For decisions in matters where the Union shares competence with its Member States, either the Union or its Member States shall vote.

3. Subject to Article 26, paragraph 7, of [the COTIF], the Union shall have a number of votes equal to that of its members who are also Parties to [the COTIF]. When the Union votes, its Member States shall not vote.

4. The Union shall, on a case-by-case basis, inform the other Parties to the Convention of the cases where, with regard to the various items on the agendas of the General Assembly and the other deliberating bodies, it will exercise the voting rights provided for in paragraphs 1 to 3. That obligation shall also apply when decisions are taken by correspondence. That information is to be provided early enough to the OTIF Secretary-General in order to allow its circulation together with meeting documents or a decision to be taken by correspondence.’

11Article 7 of the accession agreement states:

‘The scope of the competence of the Union shall be indicated in general terms in a written declaration made by the Union at the time of the conclusion of this Agreement. That declaration may be modified as appropriate by notification from the Union to OTIF. It shall not replace or in any way limit the matters that may be covered by the notifications of Union competence to be made prior to OTIF decision-making by means of formal voting or otherwise.’

European Union law

12The accession agreement was approved on behalf of the European Union by Council Decision 2013/103/EU of 16 June 2011 on the signing and conclusion of the Agreement between the European Union and the Intergovernmental Organisation for International Carriage by Rail on the Accession of the European Union to the Convention concerning International Carriage by Rail (COTIF) of 9 May 1980, as amended by the Vilnius Protocol of 3 June 1999 ( OJ 2013 L 51, p. 1 ).

13Annex I to that decision contains a declaration by the European Union made upon the signing of the accession agreement, concerning the exercise of competence.

14That declaration reads as follows:

‘In the rail sector, the European Union … shares competence with the Member States of the Union … pursuant to Articles 90 and 91, in conjunction with Article 100(1), and Articles 171 and 172 [TFEU].

…

On the basis of [Articles 91 and 171 TFEU] the Union has adopted a substantial number of legal instruments applicable to rail transport.

Under Union law, the Union has acquired exclusive competence in matters of rail transport where the [COTIF] or legal instruments adopted pursuant to it may affect or alter the scope of these existing Union rules.

For subject matters governed by the Convention in relation to which the Union has exclusive competence, Member States have no competence.

Where Union rules exist but are not affected by the [COTIF] or legal instruments adopted pursuant to it, the Union shares competence on matters in relation to [COTIF] with Member States.

A list of the relevant Union instruments in force at the time of the conclusion of the Agreement is contained in the Appendix to this Annex. The scope of the Union competence arising out of these texts has to be assessed in relation to the specific provisions of each text, especially the extent to which these provisions establish common rules. Union competence is subject to continuous development. In the framework of the Treaty on European Union and the TFEU, the competent institutions of the Union may take decisions which determine the extent of the competence of the Union. The Union therefore reserves the right to amend this declaration accordingly, without this constituting a prerequisite for the exercise of its competence in matters covered by [COTIF].’

15The Appendix to Annex I to Decision 2013/103 lists the European Union instruments relating to subjects dealt with by the COTIF.

Background to the dispute and the contested decision

16In April 2014 the OTIF Secretary-General notified the Member States of OTIF of proposals for modifications to the COTIF to be submitted to the OTIF Revision Committee at its 25th session in Berne from 25 to 27 June 2014. Those proposals for modifications concerned, in particular, Appendix B to the COTIF on Uniform Rules concerning the Contract of International Carriage of Goods by Rail (CIM) (‘Appendix B (CIM)’), Appendix D to the COTIF on Uniform Rules concerning Contracts of Use of Vehicles in International Rail Traffic (CUV) (‘Appendix D (CUV)’), in conjunction with Article 12 of the COTIF, and Appendix E to the COTIF on Uniform Rules concerning the Contract of Use of Infrastructure in International Rail Traffic (CUI) (‘Appendix E (CUI)’). On 25 April and 27 May 2014, respectively, the French Republic and the Federal Republic of Germany submitted proposals concerning Appendix D (CUV), which were also submitted to the OTIF Revision Committee for consideration at that session.

17On 26 May 2014 the European Commission submitted, in preparation for that session, a working document to the ‘Land Transport’ working group of the Council of the European Union, concerning a number of amendments to the COTIF. On 5 June 2014 the Commission sent to the Council a proposal for a Council Decision setting out the position to be adopted by the Union at the 25th session of the OTIF Revision Committee (COM(2014) 338 final; ‘the proposal for a decision’). On the conclusion of working sessions which took place within its preparatory bodies, the Council, at its meeting on 24 June 2014, adopted the contested decision, establishing the position to be adopted on behalf of the European Union as regards, in particular, proposals for amendment of Article 12 of the COTIF and Appendices B (CIM), D (CUV) and E (CUI) of the COTIF (together, ‘the amendments at issue’).

18The Federal Republic of Germany voted against that proposal and, on the adoption of the contested decision, made the following statement:

‘The Federal Republic of Germany takes the view that [the European Union] is not competent as regards the amendments to Appendix B (… CIM), Appendix D (… CUV) and Appendix E (… CUI) to the [COTIF], and, consequently, that there is no need to coordinate an EU position at the 25th session of the OTIF Revision Committee, to take place from 25 to 27 June 2014. To date, [the European Union] has not exercised its legislative competence in the areas of private law concerning contracts of carriage governed by those Appendices. Member States may therefore continue to exercise their competence in accordance with the second sentence of Article 2(2) [TFEU]. Moreover, in cases where competence is shared, Article 6(2) [of the accession agreement] explicitly provides that Member States may continue to vote independently in those areas. [The Federal Republic of Germany] hereby asserts, as a precaution, that it rejects any casting of its vote by the European Commission.’

19Recitals 3 to 6, 9 and 11 of the contested decision read as follows:

‘The Council of the European Union

Having regard to the [FEU Treaty], and in particular Article 91 in conjunction with Article 218(9) thereof,

…

whereas:

…

(3)

The Revision Committee set up in accordance with point (c) of Article 13(1) of [the COTIF], at its 25th session due to take place from 25 to 27 June 2014, is expected to decide upon certain amendments to [the COTIF] as well as to certain Appendices thereto, namely Appendices B (… CIM), D (…CUV), E (…CUI) …

(4)

The amendments to [the COTIF] have the objective of updating the tasks of the Committee of Technical Experts and the definition of “keeper” in line with Union law; and of modifying certain rules concerning the financing of [OTIF], its auditing and reporting as well as minor administrative changes.

(5)

The amendments to Appendix B (CIM) aim to give preference to the electronic form of the consignment note and its accompanying documents and to clarify certain provisions of the contract of carriage.

(6)

The amendments to Appendix D (CUV) presented by the Secretary-General of OTIF have the objective of clarifying the roles of the keeper and the entity in charge of maintenance in the contracts of use of vehicles in international rail traffic. [The French Republic] has presented a separate proposal concerning the liability for damage caused by a vehicle. [The Federal Republic of Germany] has also presented a separate proposal concerning the scope of the CUV Uniform rules.

…

(9)

The amendments to Appendix E (CUI) suggested by the International Rail Transport Committee (CIT) aim to extend the scope of the uniform rules concerning the contract of use of infrastructure to domestic rail transport, to create a legal basis for general terms and conditions of use of railway infrastructure and to extend the liability of the infrastructure manager for damage or losses caused by the infrastructure.

…

(11)

Most of the proposed amendments are in line with the law and the strategic objectives of the Union, and should therefore be supported by the Union. Certain amendments have no impact on EU law and do not need a position to be agreed at Union level. Finally, some amendments need more discussion within the Union and should be rejected at this meeting of the Revision Committee; should the latter amendments be approved without modification that is acceptable for the Union, the Union should formulate an objection following the procedure established in Article 35(4) of [COTIF].’

20Article 1(1) of the contested decision provides that ‘the position to be taken on the Union’s behalf at the 25th session of the Revision Committee set up by [COTIF] shall be in accordance with the Annex to this Decision’.

21Section 3 of the Annex to that decision mentions, with respect to the various items on the agenda at the 25th session of the OTIF Revision Committee, the divisions of competence between the Union and its Member States, the exercise of voting rights, and the recommended coordinated position. Agenda item 4, in part, and Agenda items 5, 7 and 12 relate to the amendments at issue.

22As regards Agenda item 4 at the 25th session of the OTIF Revision Committee, concerning the partial revision of the COTIF, Section 3 of the annex to the contested decision provides:

‘…

Competence: shared.

Exercising voting rights: Member States.

Recommended coordinated position:

…

Amendments to Article 12 (Execution of judgments. Attachment) to be supported as it amends the definition of “keeper” in line with Union law.

…’

23As regards Agenda item 5 at the 25th session of the OTIF Revision Committee, concerning the partial revision of Appendix B (CIM), Section 3 of the annex to the contested decision provides:

‘…

Competence: shared

Exercising voting rights: Union for Articles 6 and 6a. Member States for other Articles.

Recommended coordinated position:

Amendments to Article 6 and new Article 6a concern Union law because of the use of the consignment note and its accompanying documents for customs and sanitary and phytosanitary (SPS) procedures. The Union agrees with the intention of OTIF to give priority to the electronic form of consignment notes. However, at present the adoption of these amendments may lead to unintended consequences. The current simplified procedure for customs transit by rail is only possible with paper documents. Therefore, if railways opt for the electronic consignment note, they will have to use the standard transit procedure and the New Computerised Transit System (NCTS).

The Commission has started preparations for a working group to discuss the use of electronic transport documents for transit under Regulation (EU) No 952/2013 of the European Parliament and the Council [of 9 October 2013 laying down the Union Customs Code ( OJ 2013 L 269, p. 1 )]. That working group will have its kick-off meeting on 4-5 June 2014. The Union agrees also with the intention to provide the accompanying documents in electronic format. However, under current Union law there is no legal basis to provide the documents (e.g. Common Veterinary Entry Document, Common Entry Document) which have to accompany SPS-related goods in electronic format and therefore they need to be provided on paper. The Commission has prepared a draft Regulation, which will cater for electronic certification and the draft is currently under discussion in the European Parliament and the Council. That Regulation (Official Control Regulation) is envisaged to be adopted by end of 2015/beginning of 2016, however, there will be a transitional period for the enforcement.

Therefore, the Union suggests that no decision should be taken on these items at the present session of the [Revision Committee] and that OTIF continue cooperation with the Union on this issue in order to have a well‑prepared solution for an upcoming revision of CIM which should ideally be synchronised with the Regulation (EU) No 952/2013 and its implementing provisions which are to be in force from 1 May 2016. Certain electronic procedures may be phased in between 2016 and 2020 in accordance with Article 278 of Regulation (EU) No 952/2013.

…’

24As regards Agenda item 7 at the 25th session of the OTIF Revision Committee, concerning the partial revision of Appendix D (CUV), Section 3 of the annex to the contested decision states:

‘…

Competence: shared.

Exercising voting rights: Union.

Recommended Union position: Amendments to Articles 2 and 9 to be supported as they clarify the roles of the keeper and of the entity in charge of maintenance in line with Union law (Directive 2008/110/EC of the European Parliament and of the Council [of 16 December 2008 amending Directive 2004/49/EC on safety on the Community’s railways (Railway Safety Directive) ( OJ 2008 L 345, p. 62 )]. However, the proposed amendment to Article 7 submitted by [the French Republic] concerning the liability of the person who has provided a vehicle for use as a means of transport in case of damage resulting from a defect of the vehicle needs further analysis within the Union before taking a decision in OTIF. Therefore, the Union is not in a position to support this amendment proposal at this [session of the OTIF Revision Committee] and proposes to postpone the decision until the next General Assembly in order to further assess this issue. The Union takes the same position, i.e. to postpone the decision until the next General Assembly in order to further assess the issue, on the proposal of [the Federal Republic of Germany] for a new Article 1a presented to OTIF during Union coordination.

Additional recommended Union position: In document CR 25/7 ADD 1, page 6, at the end of paragraph 8a, add: “The amendment to Article 9, paragraph 3, first indent, does not affect the existing allocation of liabilities between [the entity in charge of maintenance] and the keeper of the vehicles”.’

25As regards Agenda item 12 at the 25th session of the OTIF Revision Committee, concerning the partial revision of Appendix E (CUI), Section 3 of the annex to the contested decision provides:

‘…

Competence: shared.

Exercising voting rights: Union.

Recommended coordinated position: amendments to be rejected. These amendments suggested by [the International Rail Transport Committee] include the extension of the scope of [Appendix E (CUI)] to domestic operations, the introduction of contractually binding General Terms and Conditions and the extension of the infrastructure manager’s liability for damage. They may deserve further consideration but as they have not been discussed in any internal forum of OTIF before the [session of the OTIF Revision Committee], their impact could not have been assessed in sufficient detail. It seems to be premature to amend [Appendix E (CUI)] (which is at present in line with Union law) at this [session of the OTIF Revision Committee] without proper preparation.’

Forms of order sought by the parties and procedure before the Court

26The Federal Republic of Germany claims that the Court should:

–

annul Article 1 of the contested decision, read with Section 3 of the annex to that decision, in so far as that article relates to, first, Agenda item 4 at the 25th session of the OTIF Revision Committee, to the extent that Agenda item 4 concerns the amendment of Article 12 of the COTIF and, second, Agenda items 5, 7 and 12, relating to amendments to Appendices B (CIM), D (CUV) and E (CUI), and

–

order the Council to pay the costs.

27The Council contends that the Court should:

–

dismiss the action;

–

in the alternative, in the event that the contested decision is annulled, maintain the effects of that decision;

–

order the Federal Republic of Germany to pay the costs.

28By decisions of the President of the Court of 29 May 2015, the French Republic and the United Kingdom of Great Britain and Northern Ireland were granted leave to intervene in support of the forms of order sought by the Federal Republic of Germany, while the Commission was granted leave to intervene in support of the forms of order sought by the Council.

The action

29The Federal Republic of Germany relies on three pleas in law in support of its action.

30The first plea in law concerns the European Union’s lack of competence and the infringement of the principle of conferral, laid down in the first sentence of Article 5(2) TEU. The second plea in law concerns an infringement of the obligation to state reasons laid down in Article 296 TFEU. The third plea in law concerns infringement of the principle of sincere cooperation, together with the principle of effective judicial protection.

The first plea in law: the European Union’s lack of competence and infringement of the principle of conferral, laid down in the first sentence of Article 5(2) TEU

Arguments of the parties

31By its first plea in law, the Federal Republic of Germany, supported by the French Republic, argues that the Union had not been vested with the competence, under Article 91 TFEU and Article 218(9) TFEU, to adopt the contested decision, in so far as it relates to the amendments at issue, and, as a consequence, that the Council’s adoption of that decision infringed the principle of conferral laid down in the first sentence of Article 5(2) TEU.

32The Federal Republic of Germany states that, in the area of transport, which covers the COTIF in general and the amendments at issue in particular, the European Union and the Member States have, both internally and, as a general rule, externally, shared competence, pursuant to Article 4(2)(g) TFEU.

33In order to ensure that the Council has competence to adopt, in accordance with Article 218(9) TFEU, a position to be taken on behalf of the European Union in an international body, where the purpose of the act adopted by such a body is to amend the provisions of a mixed agreement, as is the position in this case, it is necessary, according to the Federal Republic of Germany, to verify whether the amendments relate to provisions of the agreement which fall within the Union’s competence. If that is not the case, a decision establishing the Union’s position cannot be adopted.

34It is essential, for the purposes of that verification, to ascertain whether the decision of the international body concerned has a direct impact on the European Union’s acquis, as stated in paragraph 64 of the judgment of 7 October 2014, Germany v Council ( C‑399/12 , EU:C:2014:2258 ), in the sense that there are common rules of the Union which the decision at issue is liable to undermine or the scope of which it is liable to alter, within the meaning of the line of case-law stemming from the judgment of 31 March 1971, Commission v Council ( 22/70 , EU:C:1971:32 ). According to the Federal Republic of Germany, the existence of such a risk presupposes therefore that the amendments to provisions of an international agreement fall within an area in which the European Union has already adopted common rules.

35The Federal Republic of Germany states that the Council, on whom the onus lies to demonstrate, in this case, that the amendments at issue concern an area that falls within the scope of existing provisions of EU law, has failed to do so in the contested decision. In any event, in the area of private law relating to contracts concerning cross-border carriage by rail of goods and passengers, the scope of which includes the amendments at issue, the Union has not, to date, made use of its internal competence by adopting common rules. The French Republic adds that no action by the European Union in the areas to which the amendments at issue relate is envisaged.

36The Federal Republic of Germany accepts that, in an area that falls under the competence of the Member States, the positions to be adopted before an international body may be subject to coordination, in accordance with the principle of sincere cooperation enshrined in Article 4(3) TEU. Nonetheless, a Council Decision, made pursuant to Article 218(9) TFEU, cannot be adopted in that context.

37The Federal Republic of Germany considers, moreover, that, in the area of private law concerning contracts of carriage, which is an area of shared competence, the European Union cannot exercise a competence externally when it has not made use of its competence internally, if it is not to circumvent the ordinary legislative procedure and impinge on the rights of the European Parliament. When the ‘disconnection clause’ in Article 2 of the accession agreement is taken into consideration, the acts of the OTIF Revision Committee have, in EU law, the same effects as regulations and directives.

38The Federal Republic of Germany, supported by the French Republic, also argues that, in the area of transport, which is an area where the European Union and its Member States share competence, only in the situations provided for in Article 3(2) TFEU, namely those where the Union has an exclusive external competence, is the Union permitted to conclude an international agreement. In this case, however, no exclusive external competence arises from any of the situations provided for in Article 3(2) TFEU. The Federal Republic of Germany adds that, outside those situations, the Union has no external competence.

39As regards, more specifically, the judgment of 30 May 2006, Commission v Ireland ( C‑459/03 , EU:C:2006:345 ), relied on by the Council, the Federal Republic of Germany states that its scope was restricted by the Court in its judgment of 8 March 2011, Lesoochranárske zoskupenie ( C‑240/09 , EU:C:2011:125 ). The French Republic considers that, in the present case, no guidance can be obtained from the former judgment, since, in that judgment, the Court took into consideration the specific features of the area of the environment, where the Treaties have conferred an explicit external competence on the Union. As distinct from that area, transport policy does not include, among its objectives, the development of an international policy.

40The Council contends, first, that the European Union has an exclusive competence, by virtue of the final clause of Article 3(2) TFEU and the case-law of the Court stemming from the judgment of 31 March 1971, Commission v Council ( 22/70 , EU:C:1971:32 ), to establish a position with respect to the amendments at issue, submitted at the 25th session of the OTIF Revision Committee.

41In the alternative, the Council, supported by the Commission, refers to Opinion 2/00 (Cartagena Protocol on Biosafety) of 6 December 2001 ( EU:C:2001:664 , paragraphs 44 to 47 ), and to the judgments of 7 October 2004, Commission v France, ( C‑239/03 , EU:C:2004:598 , paragraph 30 ), and of 30 May 2006, Commission v Ireland ( C‑459/03 , EU:C:2006:345 , paragraph 95 ), and considers that the European Union has the competence to adopt such a position, in accordance with Article 218(9) TFEU, by virtue of a competence that it shares with the Member States, even in the absence of EU rules in the area of private law concerning contracts of carriage. According to those institutions, the action of the Union externally is not, contrary to what is maintained by the Federal Republic of Germany, limited to areas which are already the subject of EU common rules, but also extends to areas which are not yet, or are only partly, covered by legislation at EU level, which, as a result, is not liable to be affected. In the latter case also, the Union has the competence to adopt a decision, under Article 218(9) TFEU, acting by virtue of a shared external competence, that competence being limited, in accordance with Protocol No (25) on the exercise of shared competences, annexed to the EU and FEU Treaties, to the specific elements governed by the Union decision in question.

42The Commission adds that the existence of a shared external competence does not depend on the exercise of that competence internally, but stems directly from the Treaties, more specifically from the first sentence of Article 2(2) TFEU and from Article 4(2)(g) TFEU. There is no provision in the Treaties relating to shared competences that provides that, when that competence is exercised for the first time, it may lead solely to the adoption of Union acts which do not relate to external relations.

Findings of the Court

43By its first plea in law, the Federal Republic of Germany claims, in essence, that Agenda item 4 at the 25th session of the OTIF Revision Committee, in so far as it concerns the amendment of Article 12 of the COTIF, and Agenda items 5, 7 and 12, relating to the amendments to Appendices B (CIM), D (CUV) and E (CUI) of the COTIF, on which the contested decision established the positions to be adopted on behalf of the European Union, do not fall within the scope of the Union’s external competence, unless the Union has, first, adopted common rules that are liable to be affected by those amendments, and consequently it was not open to the Council to establish, under Article 218(9) TFEU, those positions. The Federal Republic of Germany claims that, in so acting, the Council infringed the principle of conferral laid down in the first sentence of Article 5(2) TEU.

45As the Court has stated, in particular, in Opinion 1/03 ( New Lugano Convention ) of 7 February 2006 ( EU:C:2006:81 , paragraph 114 ), the competence of the European Union to conclude international agreements may arise not only from an express conferment by the Treaties, but may equally flow implicitly from other provisions of the Treaties and from measures adopted, within the framework of those provisions, by the EU institutions. In particular, whenever EU law creates for those institutions powers within its internal system for the purpose of attaining a specific objective, the Union has the competence to undertake international commitments necessary for the attainment of that objective even in the absence of an express provision to that effect. The last-mentioned possibility is now referred to in Article 216(1) TFEU (Opinion 1/13 (Accession of third States to the Hague Convention) of 14 October 2014, EU:C:2014:2303 , paragraph 67 and the case-law cited).

46Moreover, it follows from the Court’s settled case-law that a distinction must be made between whether the Union has an external competence and whether any such competence is exclusive or shared (Opinion 1/76 (Agreement on the establishment of a European Laying‑up Fund for Inland Waterway Vessels) of 26 April 1977, EU:C:1977:63 , paragraphs 3 and 4 ; Opinion 2/91 (ILO Convention No 170) of 19 March 1993, EU:C:1993:106 , paragraphs 13 to 18 ; Opinion 1/03 (New Lugano Convention) of 7 February 2006, EU:C:2006:81 , paragraphs 114 and 115 , and judgment of 30 May 2006, Commission v Ireland, C‑459/03 , EU:C:2006:345 , paragraphs 93 and 94 ; see to that effect, also, Opinion 2/00 (Cartagena Protocol on Biosafety) of 6 December 2001, EU:C:2001:664 , paragraphs 44 to 47 ).

47That distinction between whether the Union has an external competence and whether that competence is or is not exclusive is reflected in the FEU Treaty.

48Article 216(1) TFEU provides that ‘the Union may conclude an agreement with one or more third countries or international organisations where the Treaties so provide or where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union’s policies, one of the objectives referred to in the Treaties, or is provided for in a legally binding Union act or is likely to affect common rules or alter their scope’.

49It follows from the very wording of that provision, in which no distinction is made according to whether the European Union’s external competence is exclusive or shared, that the Union possesses such a competence in four situations. Contrary to the arguments put forward by the Federal Republic of Germany, the scenario in which the conclusion of an agreement is liable to affect common rules or to alter their scope, a scenario where the Union competence is, under Article 3(2) TFEU, exclusive, constitutes only one of those situations.

50Moreover, it is clear from a comparison of the respective wording of Article 216(1) TFEU and Article 3(2) TFEU that the situations in which the Union has an external competence, in accordance with the former provision, are not limited to the various scenarios set out in the latter provision, where the Union has exclusive external competence.

51It follows that, contrary to the arguments put forward by the Federal Republic of Germany, the European Union may have an external competence that falls outside the situations laid down in Article 3(2) TFEU.

52In that context, the external Union competence that falls within the scope of the second situation laid down in Article 216(1) TFEU, corresponding to the scenario in which the conclusion of an agreement is ‘necessary in order to achieve, within the framework of the Union’s policies, one of the objectives referred to in the Treaties’, reflects the case-law of the Court cited in paragraph 45 of the present judgment. The external competence of the Union in that second situation, unlike the fourth situation laid down in that provision, is not subject to any condition relating to the prior adoption of EU rules that are likely to be affected.

53It is necessary therefore to determine, in this case, whether the fact that the European Union is undertaking international commitments with respect to the amendments at issue is ‘necessary in order to achieve, within the framework of the Union’s policies, one of the objectives referred to in the Treaties’, within the meaning of Article 216(1) TFEU. If that were to be so, the European Union would have the external competence required to establish positions with respect to the amendments at issue, whether or not it had, first, adopted common rules in the areas concerned, likely to be affected by those amendments.

55The amendments at issue relate, on the one hand, to the uniform rules governing the contract for international carriage of goods by rail, contracts for the use of wagons in international rail traffic, and the contract for use of infrastructure in international rail traffic and, on the other, to the provision in the COTIF relating to the enforcement of judgments delivered under the provisions of that convention and to the seizure of railway vehicles.

56The amendments accordingly concern the private law relating to contracts of international carriage by rail, a subject which, as all the parties have accepted, falls within the scope of a Union policy, namely the common transport policy, which is the subject of Title VI, headed ‘Transport’ of Part Three of the FEU Treaty, headed ‘Union Policies and internal actions’, and which must, therefore, be regarded as corresponding to one of the objectives of the FEU Treaty.

58It must therefore be stated, as the Advocate General did in point 103 of his Opinion, that the amendments at issue contribute to the realisation of the objectives of the FEU Treaty, within the framework of the common transport policy.

59In particular, the common rules provided for in Article 91(1)(a) TFEU are applicable to ‘international transport to or from the territory of a Member State, or passing across the territory of one or more Member States’. In its judgment of 31 March 1971, Commission v Council ( 22/70 , EU:C:1971:32 , paragraphs 26 and 27 ), the Court stated, specifically in that field, that that provision which is also concerned with transport to and from third countries - as regards that part of the journey that takes place on EU territory - and which thus is based on the assumption that the European Union’s competence extends to relationships that are subject to international law, meaning that agreements with the third countries concerned are therefore necessary in the field in question.

62Second, if the argument of the Federal Republic of Germany and of the French Republic that seeks to deny the existence of an external European Union competence in this specific case is to be understood as meaning that, in the area of transport, which falls, pursuant to Article 4(2)(g) TFEU, within the scope of the shared competence of the Union and its Member States, the Union cannot take external action unless it has first taken internal action by means of adopting common rules, in areas in which international agreements have been concluded, then that argument cannot be accepted.

64Contrary to what is claimed by the Federal Republic of Germany, the Court did not limit the scope of that case-law in the judgment of 8 March 2011, Lesoochranárske zoskupenie ( C‑240/09 , EU:C:2011:125 ). The question that arose in the case that led to that judgment related, as is apparent from paragraphs 34 and 35 of that judgment, not to the existence of an external European Union competence in the area of the environment, but to whether, in the specific field covered by a provision of a mixed agreement, the Union had exercised its powers and had adopted provisions to implement obligations that derived from it.

67The fact that the existence of an external European Union competence is not, in any event, dependent on the prior exercise, by the Union, of its internal legislative competence in the area concerned is also apparent from paragraph 243 of Opinion 2/15 ( Free Trade Agreement with Singapore ) of 16 May 2017 ( EU:C:2017:376 ), from which it is clear that the relevant provisions of the agreement concerned, relating to non-direct foreign investment, fall within the shared competence of the Union and its Member States, even though it was common ground between the parties, as is clear from paragraphs 229 and 230 of that Opinion, that the Union had taken no internal action, by adopting rules of secondary law, in that field.

69Further, the Federal Republic of Germany cannot pray in argument the judgment of 7 October 2014, Germany v Council ( C‑399/12 , EU:C:2014:2258 ). As is clear from paragraphs 51 and 52 of that judgment, the Court took into consideration the fact that the area of the Common Agricultural Policy and, more specifically, the common organisation of the wine markets, is one which is regulated for the most part by the EU legislature in the exercise of its competence under Article 43 TFEU, in order to determine whether the European Union could rely on Article 218(9) TFEU, although it was not a party to the international agreement at issue in the case that led to that judgment. That question does not, however, arise in the present case, given that the Union acceded to the COTIF with effect from 1 July 2011.

71In addition to what is stated in paragraphs 63 to 69 of the present judgment, the wording of Article 218(9) TFEU, which empowers the Council, on a proposal from the Commission or the High Representative of the Union for Foreign Affairs and Security Policy, to adopt a decision ‘establishing the positions to be adopted on behalf of the Union in a body set up by an agreement, when that body is called upon to adopt acts having legal effects’, must also entail the rejection of that argument. Article 218(9) TFEU does not limit the action of the Union to situations where it has, previously, adopted internal rules in accordance with the ordinary legislative procedure.

72In the light of the foregoing, it must be concluded that the items on the agenda at the 25th session of the OTIF Revision Committee relating to the amendments at issue, on which the Council, by means of the contested decision, established the positions to be adopted on behalf of the European Union, fall within the scope of the Union’s external competence. Accordingly, the Council, in adopting that decision, did not infringe the principle of conferral laid down in the first sentence of Article 5(2) TEU.

73It follows that the first plea in law relied on by the Federal Republic of Germany must be rejected.

The second plea in law: breach of the obligation to state reasons under Article 296 TFEU

Arguments of the parties

74In its second plea in law, the Federal Republic of Germany argues that the contested decision is vitiated by a failure to state sufficient reasons, since the Council failed to state, in that decision, that the agenda items on which the European Union was adopting a position concerned areas that had previously been regulated for the most part within EU law. A clear demarcation of competences is particularly important in cases of mixed agreements, first, due to the fact that the provisions of such agreements are applicable both within EU law and within national law and, second, in order to determine the competences of the various participants within the bodies of international organisations. In this case, however, the Council has not cited any instrument of EU law in the area concerned and has referred only to instruments connected with public law, although the amendments at issue fall within the area of private law concerning contracts relating to transport.

75Moreover, the Council failed to state, in the contested decision, any substantive legal basis to found a substantive external competence of the Union, since Article 91 TFEU to which the Council referred confers only an internal competence on the Union.

76In addition, at the hearing, the Federal Republic of Germany submitted that the Council argued, in the course of that hearing, for the existence of an external European Union competence by referring to the second situation provided for in Article 216(1) TFEU, although it had failed to mention that provision in the contested decision.

77The Council, supported by the Commission, contends that the reasons justifying the competence of the Union are clearly stated in the contested decision. The proposed amendments to the COTIF and the Appendices thereto, which concern EU law, and the provisions of EU law which the amendments at issue are liable to affect are indicated in that decision. In addition, account should also be taken of the reasons stated in the OTIF working documents. The fact that, according to the Federal Republic of Germany, the provisions of EU law relied on are not relevant cannot call into question the adequacy of the reasons stated in the contested decision. In any event, in a matter which, at the very least, falls under a competence shared by the European Union and the Member States, the Council has fulfilled its obligation to state reasons by simply referring to the appropriate legal basis and by describing its position.

Findings of the Court

78It follows from the examination carried out in relation to the first plea in law relied on by the Federal Republic of Germany that the items on the agenda at the 25th session of the OTIF Revision Committee, relating to the amendments at issue, fall within the competence of the European Union, and there is no need to determine for that purpose whether there exists any internal EU legislation in the area concerned which would be affected by those amendments. Accordingly, the argument of the Federal Republic of Germany in support of its submission that the Council failed to establish, in the contested decision, that those amendments related to an area that was already regulated for the most part by the European Union, must be rejected.

79As regards the alleged necessity of indicating as a legal basis in the contested decision not only Article 91(1)TFEU but also the second situation referred to in Article 216(1) TFEU, it must be recalled that, in accordance with settled case-law, the obligation under Article 296 TFEU to state reasons requires that all of the measures concerned should contain a statement of the reasons which led the institution concerned to adopt them, in order that the Court can exercise its power of review and that the Member States and the third parties concerned may know the conditions under which the EU institutions have applied the FEU Treaty (judgment of 1 October 2009, Commission v Council, C‑370/07 , EU:C:2009:590 , paragraph 37 and the case-law cited).

81Further, the indication of the legal basis is of particular significance in order to preserve the prerogatives of the EU institutions concerned by the procedure for the adoption of a measure (judgment of 25 October 2017, Commission v Council (WRC‑15), C‑687/15 , EU:C:2017:803 , paragraph 50 ).

82An indication of the legal basis is also essential in the light of the obligation to state reasons that stems from Article 296 TFEU. That obligation, which is justified in particular by the need for the Court to be able to exercise its power of judicial review, must apply to all European Union acts that produce legal effects (judgment of 25 October 2017, Commission v Council (WRC‑15), C‑687/15 , EU:C:2017:803 , paragraph 52 ).

84Moreover, it is clear from equally settled case-law of the Court that the alleged failure to refer to a specific provision of the Treaty, such as in this case Article 216(1) TFEU, as raised by the Federal Republic of Germany, does not constitute an infringement of essential procedural requirements if the legal basis for a measure may be determined from other parts of the measure, provided that the parties concerned and the Court are not left uncertain as to the specific legal basis (see, to that effect, judgment of 25 October 2017, Commission v Council (WRC‑15), C‑687/15 , EU:C:2017:803 , paragraph 55 and the case-law cited).

85In the present proceedings, such is indeed the case, since the substantive and procedural legal basis for the contested decision can be clearly determined.

86It must, first, be stated that since the contested decision makes explicit reference to Article 91 TFEU, the Council correctly stated, in that decision, the substantive legal basis for it. In so far as the argument of the Federal Republic of Germany relies on the claim that Article 91 TFEU cannot be capable of conferring an external competence on the Union, suffice it to state that that argument relates to the question whether a competence actually exists and cannot therefore be validly relied on in support of a plea in law alleging a breach of the obligation to state reasons.

87Second, it is clear that the Council has stated sufficient reasons for the contested decision with regard to the criterion of necessity provided for in the second situation referred to in Article 216(1) TFEU, taking also into account the fact that the reasons to be stated in that second situation differ from those required by Article 3(2) TFEU.

88The first and third sentences of recital 11 of the contested decision, read in conjunction with the reasons, reproduced in paragraphs 22 to 25 of the present judgment, stated in the listing in the annex to that decision of the positions established on behalf of the European Union on Agenda items 4, 5, 7 and 12 at the 25th session of the OTIF Revision Committee make plain the necessity of ensuring that the rules of international law on the subject of international carriage by rail and of EU law should remain consistent and, therefore, the necessity of external action by the European Union for that purpose.

90Third, it must be observed that Article 218(9) TFEU, indicated as the procedural legal basis for the contested decision, defines the procedure to be followed for the adoption of the decision.

91That being the case, it is necessary, fourth, to state that the present case differs from the one which gave rise to the judgment of 25 October 2017, Commission v Council (WRC-15) ( C‑687/15 , EU:C:2017:803 ). In the case which gave rise to that judgment, the Council had failed to indicate the substantive and procedural legal basis for the contested measure, and there was nothing in that measure from which that legal basis could be inferred.

92Consequently, in the light of the foregoing, the failure to make explicit reference, in the contested decision, to the second situation referred to in Article 216(1) TFEU does not give rise to any confusion as to the nature and legal scope of that decision or with respect to the procedure to be followed for its adoption, and cannot, consequently, require the partial annulment of the decision.

The third plea in law: infringement of the principle of sincere cooperation, in conjunction with the principle of effective judicial protection

Arguments of the parties

95Close cooperation is more particularly essential in the exercise of rights by the Union and its Member States when their status is that of members of an international organisation. In the event of disagreement between the Member States of the European Union and the Union itself on the subject of demarcation of competences, the EU institutions should work together in good faith, in order to clarify the situation and to overcome difficulties that arise. Accordingly, those institutions should arrange the procedure for the adoption of a legal instrument in such a way as to ensure that a Member State that challenges the competence of the European Union may bring proceedings before the Court sufficiently early to permit clarification on the question of competence to be obtained.

96The Federal Republic of Germany adds that the principle of effective judicial protection, which can also be relied upon by the Member States, also requires the procedure for the adoption of a legal instrument to be arranged in such a way that the Member States have an adequate period of time, between the date of adoption of that instrument and the date after which the effects of the instrument are irreversible, to bring proceedings before the Courts of the European Union with a view to seeking, if necessary, suspension of implementation of the instrument in question.

97The Federal Republic of Germany considers that Article 263 TFEU, which grants to the Member States special rights to a legal remedy, would thus also be deprived of its effet utile where the period between the date of adoption of the legal instrument and the date when its effects are irreversible is so short that the bringing of an action in good time before the Courts of the European Union becomes impossible.

98In the present case, although the Federal Republic of Germany stated its reservations concerning the competences of the European Union immediately after the Commission submitted the proposal for a decision on 5 June 2014, the Council waited until 24 June 2014, that is to say the day before the opening of the 25th session of the OTIF Revision Committee, to adopt the contested decision, thus leaving the Federal Republic of Germany fewer than 24 hours to refer the matter to the Court of Justice. The Federal Republic of Germany states that it was not possible for it, in that period of time, to conclude the internal procedures necessary for the lodging before the Court of an application and a request for the suspension of implementation.

99Due to the absence of judicial protection, the Federal Republic of Germany was compelled, when voting, to depart from the Union position, in order to protect its rights, and for that reason the Commission has initiated against the Federal Republic of Germany an ‘EU Pilot’ procedure which could be followed at any time by proceedings against it for failure to fulfil its obligations under Article 258 TFEU.

100The Council, supported by the Commission, argues that it was impossible for it to begin or to finish its work earlier. Most of the working documents containing the proposed amendments on the agenda of the 25th session of the OTIF Revision Committee were sent by the OTIF Secretary-General on 25 April 2014. Some documents were received on 6 and 12 May 2014, and a proposal of the Federal Republic of Germany in relation to Appendix D (CUV) was received on 3 June 2014. The Commission submitted, on 26 May 2014, to the appropriate Council working group, an initial working document setting out possible approaches towards achieving a coordinated Union position. The work undertaken within that working group was continued on 5 and 16 June 2014, on the basis of a proposal for a decision that the Commission had meantime sent. That proposal, after it was approved on 17 June 2014 by the Permanent Representatives Committee, was adopted by the Council on 24 June 2014, that is, in good time, before the opening of the 25th session of the OTIF Revision Committee, on 25 June 2014.

101The Council states that the period of one month at the end of which it completed the decision-making process constitutes an extremely short period for dealing with complex technical and legal issues. In the course of that process, the Council, with the assistance of the Commission, discussed in as much detail as possible its position with the delegations, particularly in order to convince the Federal Republic of Germany that the European Union had the required competence, with respect to the agenda items at the 25th session of the OTIF Revision Committee, on the subject of which that Member State had expressed doubts. Accordingly, the Council did everything in its power to ensure that the adoption of the European Union position was with due regard to the principle of sincere cooperation.

102Further, the insistence of the Federal Republic of Germany that the European Union position ought to have been adopted sufficiently early to permit it to request that the Court suspend the implementation of the contested decision is inordinate and unrealistic. The fact that that Member State has brought the present proceedings is clear evidence that the principle of effective judicial protection has been respected.

103Moreover, the Council states that no irreversible effect of the contested decision with respect to the Federal Republic of Germany can be identified, since, in accordance with the applicable rules, the amendments examined in the course of the 25th session of the OTIF Revision Committee either were not definitively adopted at that session, or, if they were adopted, have not yet entered into force. In addition, according to the same rules, the entry into force of those amendments could be prevented in the case of objection by one quarter of the Member States of the OTIF. In any event, if the Court were to annul the contested decision, the Council would be obliged, pursuant to Article 266(1) TFEU, to take the necessary measures to comply with the judgment of the Court. Such compliance is possible given that the Union controls a majority of votes within the OTIF.

Findings of the Court

104By its third plea in law, the Federal Republic of Germany submits that the Council failed to fulfil its duty of sincere cooperation in the organisation of the decision-making process leading to the adoption of the contested decision, in that the Council did not make available to it sufficient time to challenge that decision before the Court, before the effects of that decision became irreversible. Consequently, the Council was in breach of the principle of effective judicial protection.

109The third plea in law must therefore be rejected as being unfounded.

110It follows from all the foregoing that the action of the Federal Republic of Germany must be dismissed.

Costs

111Under Article 138(1) of the Court’s Rules of Procedure, the unsuccessful party must be ordered to pay the costs if they have been applied for in the other party’s pleadings. Since the Federal Republic of Germany has been unsuccessful and the Council has applied for costs, the former must be ordered to pay the costs.

112In accordance with Article 140(1) of those Rules, under which Member States and institutions which have intervened in the proceedings are to bear their own costs, the French Republic, the United Kingdom and the Commission must be ordered to bear their own costs.

On those grounds, the Court (Grand Chamber) hereby:

1.Dismisses the action;

2.Orders the Federal Republic of Germany to pay the costs;

3.Orders the French Republic, the United Kingdom of Great Britain and Northern Ireland and the European Commission to bear their own costs.

[Signatures]

( *1 ) Language of the case: German.