1. Procedure - Intervention - Plea of inadmissibility not raised by the defendant - Not admissible
(EC Statute of the Court of Justice, Art. 37)
2. Actions for failure to fulfil obligations - Commission's right to bring proceedings - Action for a declaration that a mixed agreement concluded by the Commission and the Member States has not been complied with - Berne Convention for the Protection of Literary and Artistic Works - Area falling within Community competence
(EC Treaty, Art. 228(7) (now, after amendment, Art. 300(7) EC); Protocol 28 to the EEA Agreement, Art. 5)
3. Actions for failure to fulfil obligations - Examination of the merits by the Court - Situation to be taken into consideration - Situation at the end of the period laid down in the reasoned opinion
(Art. 226 EC)
1. Under Article 37 of the Statute of the Court of Justice, an application to intervene must be limited to supporting the form of order sought by one of the parties. An intervener therefore has no standing to raise a plea of inadmissibility not set out in the form of order sought by the defendant.
( see paras 3, 5 )
2. The requirement of adherence to the Berne Convention for the Protection of Literary and Artistic Works (Paris Act of 24 July 1971) which Article 5 of Protocol 28 to the Agreement on the European Economic Area imposes on the Contracting Parties comes within the Community framework in view of the fact that it features in an agreement concluded, pursuant to Article 228 of the Treaty (now, after amendment, Article 300 EC) by the Community, its Member States and non-member countries and relates to an area covered in large measure by the Treaty. The Commission is thus competent to assess compliance with that requirement, subject to review by the Court.
Mixed agreements concluded by the Community, its Member States and non-member countries have the same status in the Community legal order as purely Community agreements, as these are provisions coming within the scope of Community competence. It follows that, in ensuring respect for commitments arising from an agreement concluded by the Community institutions, the Member States fulfil, within the Community system, an obligation in relation to the Community, which has assumed responsibility for the due performance of the agreement. The Berne Convention creates rights and obligations in areas covered by Community law, with the result that there is a Community interest in ensuring that all Contracting Parties to the Agreement on the European Economic Area adhere to that Convention.
( see paras 14-15, 19-20 )
3. Within the context of an action brought under Article 226 EC, the question whether there has been a failure to fulfil 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.
( see para. 21 )