Keywords
Summary

Keywords

1. Transport - Maritime transport - Cargo-sharing agreement between a Member State and a third country - Obligation to adjust an agreement in existence before the entry into force of Regulation No 4055/86 - Non-compliance - Obligation of the Member State to denounce such an agreement - Failure to fulfil obligation - Justification based on the existence of a difficult political situation in the third country - Not permissible

(Art. 169 of the Treaty (now Art. 226 EC); Council Regulation No 4055/86, Arts 3 and 4(1))

2. International agreements - Agreements concluded by Member States - Agreements predating the EC Treaty - Rights of third States and obligations of the Member States - Obligation to eliminate any incompatibilities between a prior agreement and the Treaty - Scope

(Art. 234 of the Treaty (now, after amendment, Art. 307 EC))

Summary

1. Where a Member State has not succeeded in adjusting, by recourse to diplomatic means, within the time-limit laid down by Regulation No 4055/86 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries, a bilateral agreement concluded with a third State before the accession of the Member State to the Communities and containing cargo-sharing arrangements incompatible with that regulation, and in so far as denunciation of such an agreement is possible under international law, it is incumbent on the Member State concerned to denounce it.

In that regard, the existence of a difficult political situation in the third State which is a contracting party cannot justify a continuing failure on the part of a Member State to fulfil its obligations under the Treaty.

( see paras 34, 39 )

2. The purpose of the first paragraph of Article 234 of the Treaty (now, after amendment, the first paragraph of Article 307 EC) is to make it clear, in accordance with the principles of international law that application of the Treaty does not affect the duty of the Member State concerned to respect the rights of third countries under a prior agreement and to perform its obligations thereunder. Although, in the context of the second paragraph of Article 234, the Member States have a choice as to the appropriate steps to be taken, they are nevertheless under an obligation to eliminate any incompatibilities existing between a pre-Community convention and the Treaty. If a Member State encounters difficulties which make adjustment of an agreement impossible, an obligation to denounce that agreement cannot therefore be excluded.

In that connection, the argument that such denunciation would involve a disproportionate disregard of foreign-policy interests of the Member State concerned as compared with the Community interest cannot be accepted. The balance between the foreign-policy interests of a Member State and the Community interest is incorporated in Article 234 of the Treaty, in that it allows a Member State not to apply a Community provision in order to respect the rights of third countries deriving from a prior agreement and to perform its obligations thereunder. That article also allows them to choose the appropriate means of rendering the agreement concerned compatible with Community law.

( see paras 44, 49-50 )