Case C-45/07, Commission v Greece

In this case, the Commission sought a declaration from the Court that, by submitting to the International Maritime Organisation (or “IMO”, (headquarters above)) a proposal for monitoring the compliance of ships and port facilities with the requirements of the International Convention for the Safety of Life at Sea ( “the SOLAS Convention”) and the International Ship and Port Facility Security Code ( “the ISPS Code”), the Greece had failed to fulfil its obligations under arts 10 EC, 71 EC and 80(2) EC.

Greece had asked the IMO Maritime Safety Committee to examine the creation of check lists or other appropriate tools for assisting the Contracting States of the SOLAS Convention in monitoring whether ships and port facilities complied with the requirements of Chapter XI-2 of the Annex to that convention and the ISPS Code. The Commission argued that, since the adoption of Regulation 725/2004 , integrating both Chapter XI-2 of the Annex to the SOLAS Convention and the ISPS Code into Community law, the Community had enjoyed exclusive competence to assume international obligations in the area covered by that regulation. It argued that, therefore, the Community alone was competent to ensure that the standards on the subject were properly applied at Community level and to discuss with other IMO Contracting States the correct implementation of or subsequent developments in those standards, in accordance with the two measures referred to.

The Commission found that the Member States therefore no longer had competence to submit to the IMO national positions on matters falling within the exclusive competence of the Community, unless expressly authorised to do so by the Community.

AETR-case
The Court reiterated that under art. 3(1)(f) EC, the setting of a common policy in the sphere of transport was specifically mentioned as one of the objectives of the Community. Under art. 10 EC, the Member States must both take all appropriate measures to ensure fulfilment of the obligations arising out of the EC Treaty or resulting from action taken by the institutions and also abstain from any measure which might jeopardise the attainment of the objectives of the Treaty
(
Case 22/70 Commission v Council [1971]).

The Court held that to the extent to which Community rules were promulgated for the attainment of the objectives of the Treaty, the Member States could not, outside the framework of the Community institutions, assume obligations which might affect those rules or alter their scope. The provisions of Regulation 725/2004 , which had as its legal basis art. 80(2) EC, the second subparagraph of which referred to art. 71 EC, were Community rules promulgated for the attainment of the objectives of the Treaty.

Infringement Articles 10, 71 and 80(2) EC
(a) In asking the IMO Maritime Safety Committee to examine the creation of check lists or other appropriate tools for assisting the Contracting States of the SOLAS Convention in monitoring whether ships and port facilities complied with the requirements of Chapter XI-2 of the Annex to that convention and the ISPS Code, Greece submitted to that committee a proposal which initiated a procedure which could lead to the adoption by the IMO of new rules in respect of Chapter XI-2 and or/the ISPS code.

The adoption of such new rules would as a consequence have an effect on Regulation 725/2004 , the Community legislature having decided to incorporate in substance both of those international instruments into Community law. Since it set in motion such a procedure with the contested proposal, Greece took an initiative likely to affect the provisions of Regulation 725/2004 , which was an infringement of the obligations under arts 10, 71 and 80(2) EC.

Reliance on Article 307(1) EC
The Court furthermore held that the competence of the Member States, which stemmed from that provision, did not imply that they had an external competence to take initiatives likely to affect the provisions of the regulation. Article 307(1) EC was designed to apply only if there was an incompatibility between, on the one hand, an obligation arising under the international convention, concluded by Greece before its accession to the Community and by which that State became an IMO member, and, on the other, an obligation arising under Community law.

The whole thrust of Greece’s argument was that its submission of the contested proposal to the IMO Maritime Safety Committee was not at variance with that Member State’s obligations under Community law, which ruled out precisely the possibility of relying on art. 307(1) EC. Furthermore, Greece did not establish that it was required to submit the contested proposal to that committee by virtue of the IMO’s founding documents and/or legal instruments drew up by that international organisation.

Text of Judgment