Provisional text

delivered on 27 February 2025 (1)

Case C-271/23

European Commission

Hungary

( Failure of a Member State to fulfil obligations – Article 258 TFEU – Council Decision (EU) 2021/3 – Joint position to be taken on behalf of the European Union – Article 218(9) TFEU – Legal basis – Single Convention on Narcotic Drugs of 1961, as amended by the 1972 Protocol, and the Convention on Psychotropic Substances of 1971 – Scheduling of cannabis and cannabis-related substances – Vote at the session of the Commission on Narcotic Drugs – Vote and position of the Member State contrary to the Council decision – Article 3(2) TFEU, in fine – External competence of the Union – Article 288(4) TFEU – Article 277 TFEU – Plea of illegality raised by a Member State – Admissibility – Council Framework Decision 2004/757/JHA – Article 4(3) TEU – Principle of sincere cooperation – Obligations to inform, consult and mitigate )

1.During a session of the United Nations Commission on Narcotic Drugs (‘the CND’), (2) when voting on an amendment of the Convention on Narcotic Drugs, (3) can an EU Member State which is a party to that convention vote against and make a declaration against a Council decision that establishes a position to be taken jointly on behalf of the European Union? Furthermore, can that Member State plead the illegality of the Council decision adopting that position as a defence in an action for failure to fulfil obligations under Article 258 TFEU, without having previously challenged the legality of that decision before the Court of Justice of the European Union?

2.Those two questions arise in the context of infringement proceedings brought by the European Commission against Hungary.

3.In the present proceedings, the Commission claims that Hungary has failed to fulfil its obligations under Council Decision (EU) 2021/3, (4) Article 218(9) TFEU, the fourth paragraph of Article 288 TFEU, Article 3(2) TFEU and Article 4(3) TEU. That decision concerns essentially the position to be taken by the Member States on behalf of the European Union with respect to the reclassification of cannabis and cannabis-related substances in the vote at the CND.

4.It is important to note that all EU Member States are parties to the Convention on Narcotic Drugs and the Convention on Psychotropic Substances (together, ‘the Conventions on Narcotic Drugs and Psychotropic Substances’), whereas the European Union itself is not. (5)

5.Specifically, according to Decision 2021/3, Member States would vote for the removal of cannabis and cannabis resin from Schedule IV to the Convention on Narcotic Drugs, while supporting their continued inclusion in Schedule I thereto. (6) In essence, substances in Schedule IV to that convention are deemed to pose such a high risk to public health that their use should be prohibited, other than for extremely limited medical or scientific purposes, while Schedule I lists drugs with significant potential for abuse and risk of harm.

6.Adopted within the framework of the United Nations, the Conventions on Narcotic Drugs and Psychotropic Substances seek, respectively, to combat the abuse of narcotic drugs through coordinated international action and, in response to the diversification and expansion of the range of narcotic drugs, to establish an international system of control in respect of a number of synthetic drugs, according to their potential for abuse and their therapeutic value.

7.Each of those conventions has four schedules, numbered I to IV, comprising lists of narcotic drugs or preparations containing narcotic drugs and psychotropic substances. Cannabis and cannabis resin were, for many years, included in Schedules I and IV to the Convention on Narcotic Drugs, while extracts and tinctures of cannabis were included in Schedule I thereto. Inclusion in a specific schedule determines the control measures that States parties to those conventions are required to apply to the respective substances. (7)

8.The CND, whose functions and powers are defined in particular in the Conventions on Narcotic Drugs and Psychotropic Substances, (8) is competent to amend the list of drugs or preparations annexed to those conventions, on the basis of the recommendations of the World Health Organization (‘the WHO’) – which itself acts in accordance with the recommendations of its Committee of Experts.

9.The CND is composed of 53 Member States of the United Nations, which are selected by ECOSOC. In December 2020, 12 EU Member States, including Hungary, were members of the CND and therefore had a right to vote within that committee. The European Union has observer status on that committee.

10.On 24 January 2019, the WHO submitted six recommendations, numbered 5.1 to 5.6, to amend the classification of cannabis and related substances in accordance with the Conventions on Narcotic Drugs and Psychotropic Substances (‘the WHO recommendations’). The objective of those recommendations was, first, to ensure that the substances concerned were subject to the most relevant international control provided for by those conventions, having regard to the current state of scientific and medical knowledge, and, second, to ensure the availability, research and development of preparations containing cannabis-related substances for medical purposes.

11.The WHO recommendations were debated at the fourth and fifth intersessional meetings of the CND on 24 June and 23 September 2019. During those meetings, the International Narcotics Control Board and the United Nations Office on Drugs and Crime clarified and assessed the potential impact of those recommendations.

12.After deciding, in March 2020, to postpone the vote on the WHO recommendations, the CND organised three thematic discussions between June and October 2020, followed, on 8 October 2020, by an intersessional meeting open to all stakeholders.

13.The vote on the WHO recommendations to change the scheduling of cannabis and cannabis-related substances was put on the agenda of the reconvened sixty-third session of the CND that was to take place from 2 to 4 December 2020. (9)

14.The EU Member States discussed the WHO recommendations on several occasions within the Horizontal Working Party on Drugs. (10) The European Monitoring Centre for Drugs and Drug Addiction also assessed the potential impact of those recommendations.

15.On 16 October 2020, the Commission adopted a proposal on the position to be taken, on behalf of the European Union, [at] the reconvened sixty-third session of the [CND] on the scheduling of substances under the [Conventions on Narcotic Drugs and Psychotropic Substances]. (11)

16.The Council’s Horizontal Working Party on Drugs examined that proposal on 29 October 2020.

17.The Council voted on the Commission’s proposal by written procedure on 23 November 2020. It adopted Decision 2021/3 by qualified majority in accordance with the first subparagraph of Article 218(8) TFEU. On that occasion, Hungary voted against and Bulgaria abstained. That decision was addressed to the EU Member States.

18.Under Articles 1 and 2 of Decision 2021/3, the position to be adopted on behalf of the European Union by the Member States that are members of the CND, acting jointly, at the reconvened sixty-third session of the CND from 2 to 4 December 2020, on the addition of substances to or their removal from the schedules to the Conventions on Narcotic Drugs and Psychotropic Substances, was set out in the annex to that decision. Points 1 to 6 of that annex correspond to WHO Recommendations 5.1 to 5.6. Under point 1 of the annex to Decision 2021/3, the Member States were to vote in favour of the removal of cannabis and cannabis resin from Schedule IV to the Convention on Narcotic Drugs, but to maintain it in Schedule I thereto. Pursuant to point 4 of the annex to Decision 2021/3, the term ‘extracts and tinctures’ was to be removed from Schedule I to the Convention on Narcotic Drugs.

19.On 2 December 2020, a vote on the WHO recommendations took place within the CND. WHO Recommendations 5.2 to 5.6, to which points 2 to 6 of the annex to Decision 2021/3 corresponded, were rejected. Hungary voted against WHO Recommendations 5.1 and 5.4. Recommendation 5.1, which advocated removing cannabis and cannabis resin from Schedule IV to the Convention on Narcotic Drugs, (12) which lists the most dangerous substances not having a medical use (‘Recommendation 5.1’), was adopted by the required majority. (13)

20.Recommendation 5.4 advocated removing the words ‘extracts and tinctures’ from Schedule I to the Convention on Narcotic Drugs (‘Recommendation 5.4’). Hungary also made a statement within the CND asserting that the adoption of the WHO recommendations would increase the use of cannabis and would involve interference with national policies. Hungary did not warn the European Union before making that declaration.

21.The Commission considered that Hungary’s vote and its position at the CND session constituted a failure to fulfil its obligations under Decision 2021/3, an infringement of the exclusive external competence of the Union and a breach of the principle of sincere cooperation. The Commission therefore sent a letter of formal notice to Hungary on 18 February 2021.

22.On 19 April 2021, Hungary replied to the letter of formal notice, explaining that it had already expressed reservations about the WHO recommendations during the procedure for the adoption of Decision 2021/3, against which it had voted. As regards Recommendation 5.1, Hungary argued that it would not have altered the material scope of the Convention on Narcotic Drugs and thus the level of international control of the substances concerned, because cannabis and cannabis resin were to be removed from Schedule IV but were to remain in Schedule I. Hungary claimed that the adoption of Decision 2021/3 sent the public an incorrect message that the social and public health risks of cannabis have been overestimated.

23.The Commission issued a reasoned opinion on 12 November 2021. First, it stated that the fact that Hungary voted against Decision 2021/3 and the reasons why that Member State did not follow the position adopted by the Council were irrelevant. Second, the Commission argued that Hungary had infringed Article 3(2) TFEU, since the acts at issue fall within the exclusive external competence of the Union. Third, the Commission argued that Hungary had acted in breach of the duty of sincere cooperation enshrined in Article 4(3) TEU, in particular by weakening the position of the European Union within the CND. The Commission expressed concerns regarding the likelihood that Hungary would adopt similar behaviour in the future.

24.On 11 January 2022, Hungary replied to the reasoned opinion. It maintained its position based on health and social policy considerations. In addition, it expressed concern regarding the increase in cannabis consumption and stressed its commitment to reducing drug addiction. Hungary also noted the specific nature of the present case and disputed the Commission’s conclusion that it would be likely to engage in similar conduct in similar circumstances in the future, highlighting the relevance and importance of its explanations concerning the vote within the CND.

25.Since the Commission was still not persuaded by the arguments put forward by Hungary, it decided, on 15 February 2023, to bring an action before the Court seeking a declaration that Hungary had failed to fulfil its obligations.

II. Procedure before the Court

26. The Commission claims that the Court should:

– declare that, by failing to follow the position of the European Union when voting at the sixty-third session of the CND on amendment of the scheduling of cannabis and related substances, Hungary has failed to fulfil its obligations under Council Decision 2021/3, which is binding on it under Article 218(9) TFEU, read in conjunction with the fourth paragraph of Article 288 TFEU, and has also infringed the exclusive external competence of the Union under Article 3(2) TFEU and acted in breach of the principle of sincere cooperation enshrined in Article 4(3) TEU;

– order Hungary to pay the costs.

– declare the action inadmissible;

– in the alternative, dismiss the action as unfounded;

– order the Commission to pay the costs.

28.At the hearing on 15 October 2024, Hungary and the Commission presented oral argument.

III. Assessment

29.The Commission raises three complaints in support of its action. First, it alleges that Hungary has failed to fulfil obligations under Decision 2021/3, read in conjunction with the fourth paragraph of Article 288 TFEU. Second, it claims that Hungary has infringed the exclusive external competence of the Union under Article 3(2) TFEU. Third, the Commission asks the Court to declare that Hungary has acted in breach of the principle of sincere cooperation enshrined in Article 4(3) TEU.

30.Following a preliminary discussion of the admissibility of the action, I will examine first whether Hungary has infringed the Union’s exclusive external competence under Article 3(2) TFEU. It is my view that this question should be examined before the issue of whether Hungary has failed to fulfil obligations under Decision 2021/3, read in conjunction with the fourth paragraph of Article 288 TFEU. (14)

In that regard, next, I will analyse Hungary’s claim that Decision 2021/3 should be deemed to be non-existent. Lastly, I will consider the Commission’s third complaint regarding the principle of sincere cooperation under Article 4(3) TEU.

31.Hungary disputes the admissibility of the present action for failure to fulfil obligations, in essence, on four grounds.

32.First, referring to the judgment of 7 April 2011, Commission v Portugal, (15) it submits that the purpose of an action brought under Article 258 TFEU is to put an end to a Member State’s infringement, and that the Commission was therefore required to specify the conduct that Hungary should have adopted. In particular, Hungary claims that it can be inferred from the judgment of 25 October 2001, Germany v Commission, (16) that the purpose of the infringement procedure is to obtain a change in conduct by a Member State and not to establish in abstracto a failure to fulfil obligations which existed in the past.

33.In that respect, as regards the allegation that the Commission failed to specify the conduct that it is expecting from Hungary in order to bring the infringement to an end, it is clear from the case-law of the Court that the procedure provided for in Article 258 TFEU presupposes an objective finding that a Member State has failed to fulfil its obligations under EU law. (17) The judgments delivered by the Court under that provision are declaratory in nature. (18) It follows that the only relevant question is whether a Member State has infringed EU law. (19) In particular, aside from the decision as to costs, they do not identify any specific measures which a Member State must adopt in order to put an end to an infringement of EU law. (20) Therefore, in infringement proceedings under Article 258 TFEU, the Commission cannot ask the Court to order a Member State to act in a particular way in order to comply with EU law.

34.As regards the argument put forward by Hungary that the purpose of infringement proceedings is to obtain a change in behaviour by the Member State in question, I would observe that, as pointed out by Advocate General Geelhoed, if the Court were to adopt an overly rigid interpretation of admissibility it would ultimately ‘mean that proceedings under [Article 258 TFEU] against infringements of [EU] law which have ceased to exist and which are irreversible would be impossible in future’, which ‘would open the way to systematic infringements’. (21) Therefore, in Commission v Germany, (22) when replying to an almost identical argument put forward by Germany, the Court held that, if that argument ‘were to be upheld, then any Member State which, by its conduct, were to impede the achievement of the objective inherent in a decision adopted under Article 218(9) TFEU, could evade infringement proceedings, on the grounds that that infringement has already exhausted its effects, as a result of which the Member States might take advantage of their own misconduct’. (23)

35.In the present case, the Commission asks the Court to find that Hungary has infringed EU law by failing to follow the position of the European Union when voting at the sixty-third session of the CND on the amendment of the scheduling of cannabis and related substances. In my view, in so far as the Commission is requesting a declaration of the existence of the alleged failure to fulfil obligations, such an action is admissible.

36.Second, Hungary argues that, given that the vote on the WHO recommendations within the CND has already taken place and cannot be changed, that Member State is no longer in a position to put an end to the failure to fulfil obligations at issue. In that respect, I would point out that it is settled case-law that a Member State cannot be allowed to rely upon a fait accompli of which it is itself the author so as to evade proceedings brought before the Court for failure to fulfil obligations. (24)

37.Third, Hungary claims that the Commission has not demonstrated the existence of actual and noticeable effects of Hungary’s conduct which persist beyond the decision-making process at issue.

38.It also submits that the Commission’s assertion that that Member State may engage in similar conduct in the future is a mere supposition. The interests at stake determine the position of a Member State in international negotiations, and therefore that position cannot be determined by the manner in which such a Member State has acted previously in a given case. Hungary argues that its conduct had no consequences whatsoever for the European Union or for the unity and consistency of the European Union’s external action. In that respect, in Commission v Germany, (25) Germany challenged the admissibility of the infringement action brought by the Commission, arguing that the alleged breach involved past conduct that had ceased before the time limit set in the Commission’s reasoned opinion. In particular, Germany contended that its past actions during the twenty-fifth session of the Intergovernmental Organisation for International Carriage by Rail (OTIF) Revision Committee were no longer producing effects. The Court emphasised that Germany’s disputed conduct infringed a Council decision (26) adopted under Article 218(9) TFEU, which provides for a simplified procedure for the purposes of defining positions to be adopted on behalf of the European Union in the context of its participation in the adoption, within a decision-making body set up by the international agreement in question, of acts applying or implementing that agreement. The Court specifically held that ‘the disputed conduct of … Germany … cannot be considered to have ceased at the end of that session’, but ‘must be considered to have produced effects on the unity and consistency of the international action of the European Union … that extended beyond that session’. (27) The Court considered that allowing Member States to evade liability on the grounds that the effects of the infringement have expired would undermine EU cohesion and the rule of law. Consequently, the Court dismissed Germany’s objection to the admissibility of the infringement action. (28)

39.That judgment stems from a long line of case-law in which the Court has held to be admissible the Commission’s actions claiming liability in respect of Member States’ past conduct in the international sphere. (29) That case-law suggests that infringement actions may be admissible when a Member State’s conduct allegedly fails to comply with the requirement of unity in the international representation of the Union. It follows that when a Member State’s conduct allegedly breaches an EU position in an international setting, infringement proceedings may be admissible in order to address potential impacts on EU unity in external matters, regardless of the fact that the conduct took place in the past. In the present case, if Hungary’s reasoning were accepted, that Member State could depart from the Council decision after its adoption, secure in the knowledge that the Commission would not be able to bring an action before the Court under Article 258 TFEU against such a failure to fulfil obligations, thereby undermining the effectiveness and binding nature of that decision. In order to prevent such an outcome, the alleged conduct must be regarded as having produced effects on the unity and consistency of the external action of the European Union.

40.I therefore propose that the Court should rule that the present action is admissible.

1. Arguments of the parties

41.The Commission considers that by voting within the CND in a manner contrary to Decision 2021/3, Hungary has infringed the Union’s exclusive external competence.

42.In its view, the amendments of the Schedules to the Conventions on Narcotic Drugs and Psychotropic Substances have a direct impact on the scope of EU legislation in the field of drug control. Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking (30) defines drugs as covering, inter alia, all substances covered by those conventions. That framework decision is therefore applicable to the substances listed in those schedules. Any amendment of those schedules has a direct impact on the common EU rules and alters their scope. That is so irrespective of whether or not the substance in question is already subject to control throughout the European Union.

43.More specifically, the Commission asserts that the removal of cannabis and cannabis resin from Schedule IV to the Convention on Narcotic Drugs affects and amends the penalty rules under Framework Decision 2004/757. As a result of that removal, those substances can no longer be regarded as among the drugs which are most harmful to health, with the effect that the penalties provided for in Article 4(2)(b) of Framework Decision 2004/757 are no longer applicable. (31)

44.In any event, the Commission argues that the claim that the European Union does not have exclusive competence is ineffective, since the Council may adopt a decision based on Article 218(9) TFEU in all areas of EU competence, including, consequently, in areas within the scope of shared competence.

45.In its reply, Hungary disputes that the Union’s exclusive external competence covers the amendment of the Conventions on Narcotic Drugs and Psychotropic Substances, in accordance with Recommendations 5.1 and 5.4, which was discussed within the CND. Neither of those recommendations alters the concept of ‘drugs’ within the meaning of Article 1(1) of Framework Decision 2004/757, with the result that the scope of EU law, likewise, is not altered.

46.Hungary claims that the Commission has classified only one provision of Framework Decision 2004/757, that is to say, Article 1(1) thereof, as a ‘common rule’ within the meaning of Article 3(2) TFEU for the purpose of determining the scope of the Union’s exclusive external competence, namely the definition of ‘drugs’, which essentially determines the material scope of that decision. In Hungary’s view, that provision makes no distinction according to whether the substance in question appears in the Conventions on Narcotic Drugs and Psychotropic Substances, in the schedules thereto or, as the case may be, in a particular schedule. As a result, for that framework decision to apply, it is sufficient that a substance falls either within the scope of those conventions or within one of their schedules. Hungary submits that the exact schedule to the Convention on Narcotic Drugs in which a substance is included is irrelevant in that regard because the substances in question in any event fall within the scope of that framework decision.

47.Specifically, in Hungary’s view, Recommendation 5.1 does not entail a substantive change in the application of EU law, by removing certain substances from Schedule IV, given that those substances are still listed in Schedule I to the Convention on Narcotic Drugs and still fall within the scope of that framework decision and therefore do not alter the scope of the concept of ‘drugs’ defined in Framework Decision 2004/757.

48.As regards Recommendation 5.4, Hungary considers that its adoption similarly would not have altered the concept of ‘drugs’ within the meaning of Framework Decision 2004/757, since the recommended removal of ‘extracts and tinctures’ applies only to extracts and dyes, which do not constitute drugs within the meaning of that expression, since they do not contain Delta-9-tetrahydrocannabinol (‘THC’). It draws that inference from the fact that the extracts and tinctures in question were to be removed from Schedule I. Furthermore, it refers to the case-law of the Court, according to which it would not be appropriate to include substances containing cannabidiol extracted from the cannabis plant in the definition of narcotic drugs within the meaning of the Conventions on Narcotic Drugs and Psychotropic Substances, on the ground that they do not contain a psychoactive ingredient, namely THC. (32) It infers therefrom that extracts or tinctures of cannabis, which do not contain THC, are not covered by those conventions or, therefore, by Framework Decision 2004/757, since they are not regarded as drugs or narcotic drugs.

49.Moreover, Hungary states that the European Union itself emphasises in its declaration following the vote on the WHO recommendations that the substances referred to in Recommendation 5.1 continue to be controlled under Schedule I to the Convention on Narcotic Drugs. In addition, Recommendation 5.4 does not imply any change in the level of international control of cannabis extracts and tinctures, and is not likely to affect the control and/or reporting obligations of the Member States.

50.According to Hungary, it follows from recitals 5 and 7 of Decision 2021/3 that only the addition of new substances to the schedules to the Conventions on Narcotic Drugs and Psychotropic Substances would change the scope of Framework Decision 2004/757 and would therefore fall within the competence of the European Union.

51.Hungary infers from the arguments set out above that Recommendations 5.1 and 5.4 do not affect the applicability of Framework Decision 2004/757 and that it is therefore doubtful, in those circumstances, that an amendment resulting from those recommendations falls within the exclusive competence of the European Union.

52.I would recall that, under Article 3(2) TFEU, in fine, the Union is to have exclusive competence for the conclusion of an international agreement when its conclusion may affect common rules or alter their scope. (33) As observed by the Court in the judgment of 4 September 2014, Commission v Council, (34) there is a risk that EU rules might be adversely affected by international commitments, or that the scope of those rules might be altered, which is such as to justify an exclusive external competence of the European Union, where those commitments fall within the scope of those rules.

53.A finding that there is a risk that EU rules might be adversely affected or that the scope of those rules might be altered does not presuppose that the areas covered by the international commitments and those covered by the EU rules coincide fully. (36) In particular, the scope of common EU rules may also be affected or altered by such commitments where those commitments fall within an area which is already largely covered by such rules.

It is important to note that, since the European Union has only conferred powers, any competence, especially where it is exclusive, must have its basis in conclusions drawn from a specific analysis of the relationship between the envisaged international commitment and the EU law in force, from which it is clear that such an agreement is capable of affecting the common EU rules or of altering their scope. (38)

54.

As the Court held in Opinion 1/03, that analysis must take into account the areas covered, respectively, by the rules of EU law and by the provisions of the agreement envisaged, as well as the nature and content of those rules and provisions, to determine whether the international commitment is capable of undermining the uniform and consistent application of the EU rules and the proper functioning of the system which they establish. (39) In the light of the foregoing considerations, I shall, first, analyse the scope, nature and content of the international commitment envisaged; second, compare it with the scope of the rules of EU law; and, third, examine its effect on the rules of EU law in question. (40)

55.

First, with respect to the scope, nature and content of the international commitment envisaged, it should be recalled that the Convention on Narcotic Drugs, adopted within the framework of the United Nations, recognises that addiction to narcotic drugs constitutes a serious evil for the individual. (41) That convention recognises that effective measures against abuse of narcotic drugs require coordinated and universal action. (42) The WHO, after hearing its Expert Committee, may put forward recommendations on the addition of the substances to or their removal from the schedules. (43) The Convention on Narcotic Drugs explicitly includes cannabis, cannabis resin and related substances in its schedules and definitions. (44)

56.

Recommendation 5.1 advocated removing cannabis and cannabis resin from Schedule IV to the Convention on Narcotic Drugs, which lists the most dangerous substances not having a medical use. A narcotic drug in Schedule I to that convention may be included in Schedule IV thereto where it is particularly likely to give rise to abuse and to produce harmful effects. According to that recommendation, cannabis and cannabis resin would remain in Schedule I to the Convention on Narcotic Drugs. Recommendation 5.4 proposed removing the words ‘extracts and tinctures’ from Schedule I to the Convention on Narcotic Drugs.

57.

The analysis of the international commitment should also take into account the fact that the European Union is neither a party to the Convention on Narcotic Drugs nor a member of the CND. In that regard, it must be borne in mind that the Court has observed that, in such a situation, the Union’s competence, if any, is to be exercised through the Member States acting jointly in the interest of the European Union. (45)

58.

Second, as regards the scope of the rules of EU law, it should be noted, at the outset, that Framework Decision 2004/757 was adopted on the basis of Article 31(e) and Article 34(2)(b)TEU, (46) which provided that common action on judicial cooperation in criminal matters is to include progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the field of illicit drug trafficking. (47)

59.

The Court has held that Framework Decision 2004/757 determines the constituent elements of criminal acts in the field of illicit drug trafficking, which concerns drug precursors and thus scheduled substances. (48) According to Article 1(1)(a) of that framework decision, drugs are defined as substances covered by the Conventions on Narcotic Drugs and Psychotropic Substances. By making such a reference, the EU institutions signalled their decision to ensure that the European Union aligns its actions with international drug control policies and, accordingly, with those conventions. Since Framework Decision 2004/757 incorporates the definitions set out by the Conventions on Narcotic Drugs and Psychotropic Substances, it covers cannabis and its derivatives, including resin, extracts and tinctures.

60.

It should also be noted that Article 2(1) of Framework Decision 2004/757 sets out which intentional conduct in the field of trafficking in drugs and precursors, when committed ‘without right’, must be made punishable by the Member States. The activities referred to in the provision include, under subparagraph (a), the production, manufacture, extraction, preparation, offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation or exportation of drugs. Furthermore, the activities include, under subparagraphs (b) and (c), the possession or purchase of drugs with a view to conducting one of the aforementioned activities, and the cultivation of, inter alia, the cannabis plant.

61.

It should also be noted that Article 4(1) of Framework Decision 2004/757 provides general rules on criminal penalties. (49) Moreover, Article 4(2)(b) of Framework Decision 2004/757 imposes heavier penalties for the offences referred to in Article 2(1)(a), (b) and (c) thereof where they either involve drugs listed in the Conventions on Narcotic Drugs and Psychotropic Substances which cause the most harm to health or have resulted in significant damage to the health of a number of persons.

62.

Third, as regards the effects of the international commitments on the rules of EU law in question, it should be noted that the removal of cannabis and cannabis resin from Schedule IV to the Convention on Narcotic Drugs, pursuant to Recommendation 5.1, affects and amends the rules of Framework Decision 2004/757 on penalties, since, as a result of that removal, those substances can no longer be regarded as the drugs which cause the most harm to health within the meaning of Article 4(2)(b) of Framework Decision 2004/757. (50) Furthermore, the removal of extracts and tinctures from Schedule I to the Convention on Narcotic Drugs, pursuant to Recommendation 5.4, would lead to their exclusion from the scope of Framework Decision 2004/757, since the latter applies only to substances that are listed in the schedules to that convention.

63.

It follows that the constituent elements of the offences of illicit trafficking in drugs as laid down by Framework Decision 2004/757 are applicable to the substances as defined by their classification in the schedules to the Convention on Narcotic Drugs. To the extent that a decision adopted by the CND on the modification of substances in those schedules has a direct bearing on the scope of Framework Decision 2004/757 and on the types of penalties that the Member States must impose for the purposes of implementing that framework decision, it is clear that EU rules may be affected or altered by that modification. That is so irrespective of whether or not the substance in question is already subject to control throughout the European Union.

64.

In any event, as I stated earlier, it should be recalled that a finding that there is a risk that EU rules might be adversely affected does not presuppose that the areas covered by the international commitments and those covered by the EU rules coincide fully. (51) Consequently, I take the view that, since decisions on the modification of substances in the schedules to the Conventions on Narcotic Drugs and Psychotropic Substances affect and alter EU law, the position to be taken by the EU Member States in relation to those decisions falls within the exclusive competence of the Union, in accordance with Article 3(2) TFEU.

65.

As regards the exercise of that exclusive competence, in the case of international agreements to which the European Union is not a party but which fall under the exclusive competences of the Union, Member States are required to represent the Union’s position in the international bodies set up by such conventions. (52) That position is defined by the Council by means of a decision adopted in accordance with Article 218(9) TFEU. In the judgment in Germany v Council, (53) the Court confirmed that, where an area of law falls within a competence of the European Union, the fact that the Union did not take part in the international agreement in question does not prevent it from exercising that competence by establishing, through its institutions, a position to be adopted on its behalf in the body set up by that agreement, in particular through the Member States which are party to that agreement acting jointly in its interest.

66.

In the present case, the Commission claims that Hungary failed to fulfil its obligations under Article 3(2) TFEU in fine. That provision establishes not only exclusive competence but also obligations on Member States to abstain from acting in areas where the European Union has exclusive competence. (55) When the Union has exclusive competence, Member States no longer have the authority to legislate or to take action independently in that area, except where expressly authorised by the Union. It has been established that, during the vote on the WHO recommendations, which took place within the CND on 2 December 2020, Hungary voted against Recommendations 5.1 and 5.4, and therefore contrary to the provisions of Decision 2021/3 establishing the joint position to be taken on behalf of the European Union. That decision is a specific expression of the exclusive competence of the Union. As a result, Hungary failed to fulfil its obligations under Article 3(2) TFEU.

67.

By its first complaint, the Commission alleges that by voting within the CND in a manner contrary to Decision 2021/3, Hungary has failed to fulfil its obligations under that decision, read in conjunction with the fourth paragraph of Article 288 TFEU.

68.

Since Hungary has raised a plea of illegality in respect of Decision 2021/3 in its defence, that plea should be examined as a preliminary point.

1. Plea of illegality

(a) Admissibility

(1) Arguments of the parties

69.

The Commission argues that the plea of illegality raised by Hungary must be rejected as inadmissible.

70.

Hungary states that its plea of illegality is admissible since it was not in a position to challenge Decision 2021/3 successfully under Article 263 TFEU.

71.

In particular, due to the short period of time that elapsed between the adoption of Decision 2021/3 on 23 November 2020 and the voting session of the CND on 2 December 2020, it was impossible for Hungary to examine the merits of any potential action against it. It also considers that there can be no question of circumventing the procedural time limit laid down in Article 263 TFEU even where the problems raised by an EU act are not identifiable at the time of its adoption and cannot be detected until later, in the context of its implementation. Hungary argued at the hearing before the Court that, in such a situation, an action under Article 263 TFEU and a supplementary application for interim measures cannot be regarded as a genuine and effective remedy. Moreover, Hungary suggests that Decision 2021/3 does not adversely affect it. It is, rather, the Commission’s action for failure to fulfil obligations on the ground of non-compliance with Decision 2021/3 which adversely affects that Member State.

72.

At the hearing, Hungary claimed that, if it is established that Article 263 TFEU cannot guarantee judicial review of an act for reasons beyond the control of the Member State, the application of Article 277 TFEU must then be envisaged, since that provision is intended to ensure effective judicial protection in specific situations where such protection cannot be achieved by the application of Article 263 TFEU.

73.

In Hungary’s view, Article 277 TFEU extends the scope of a plea of illegality to any ‘act of general application adopted by an institution, body, office or agency of the Union’. (56) Hungary therefore invited the Court to extend the scope of the plea of illegality under Article 277 TFEU to acts of general application. According to that Member State, Decision 2021/3 may be regarded as an act of general application since, in addition to being addressed to all the Member States, it requires Member States to adopt a general position. (57) It is also clear from the wording of that decision that the position in question is also binding on Member States which do not sit on the CND. Such an interpretation would furthermore allow Member States to rely, in infringement proceedings, on the inapplicability not only of regulations but also, for example, on that of decisions of general application.

(2) Analysis

74.

The plea of illegality raised by Hungary gives rise, in essence, to three sets of issues. First is the question of what, in the context of the system of remedies established by the Treaties, the essential function of a plea of illegality under Article 277 TFEU is and what the scope of that provision is. Second, it is necessary to examine the relevance of the issue of short timescales. In particular, it is important to determine whether a Member State, as a privileged applicant, should be able to challenge the legality of an act by invoking the short period of time between its adoption and its implementation. Third, it is necessary to examine whether, in the context of the FEU Treaty, the effectiveness of infringement proceedings could be preserved if a Member State were able to raise a plea of illegality in those proceedings. Those three questions will be analysed in turn.

(i) The essential function of a plea of illegality and the scope of Article 277 TFEU

75.

At the outset, I would recall that the European Union is a union based on the rule of law, which has been provided for by the FEU Treaty with a complete system of legal remedies and procedures designed to enable the Court to review the legality of acts of the EU institutions. (58)

76.

Such a complete system of remedies is at the disposal of any applicant, whether an individual, an institution or a Member State. Therefore, within that system of remedies, Member States may invoke, for their own benefit, the principle of effective judicial protection. (59) Furthermore, under the second paragraph of Article 263 TFEU, as a privileged applicant a Member State does not need to prove direct and individual concern. (60)

The action must be brought within two months from the adoption or the publication of the act in question. If the Court finds that the act is illegal, it can annul it, either in whole or in part. Once the two-month period has passed without the act being challenged or if the Court has already upheld its legality by dismissing a similar action for annulment, Member States cannot question the validity of that act. In that respect, the Court has emphasised the paramount importance of legal certainty by upholding the two-month deadline for bringing actions for annulment. (61)

77.As part of the complete system of remedies, Article 277 TFEU provides for the possibility of the legality of EU measures being reviewed. However, that is done not through an independent action, but by way of an incidental procedure before the EU judicature in the course of a main action. (62) The Court has emphasised that such a review is an expression of the general principle which ensures that every person has, or will have had, the opportunity to challenge an EU measure which forms the basis of a decision adversely affecting that person. (63)

78.It follows that, with respect to its scope <i>ratione personae</i>, Article 277 TFEU allows <i>any party</i> to invoke the inapplicability of an act of general application. (64) Therefore, it can be argued – as many advocates general have in the past (65) – that even Member States, as privileged applicants, are permitted to raise a plea of illegality before the Court. In particular, in <i>Commission </i>v<i> ECB</i>, (66) the Court held that the plea of illegality invoked by the European Central Bank was admissible on the basis of the wording of Article 241 EC (now Article 277 TFEU), which referred to ‘any party’, and thus included privileged and semi-privileged applicants, (67) and on the basis of the fact that the regulation at issue was of a general or legislative character. (68)

79.However, that case-law does not extend to infringement proceedings, in respect of which the Court has specifically held that, in the absence of a provision of the Treaty expressly permitting it to do so, a Member State cannot plead the unlawfulness of a decision or a directive addressed to it as a defence in such an action. (69)

80.The Court has even held specifically that, although the decision in question was not formally addressed to the Member State, the latter – as a member of the Council, which was the author of that decision – necessarily had knowledge of it, and was fully in a position to bring an action seeking annulment of that decision within the period of two months laid down in the sixth paragraph of Article 263 TFEU. (70) The Court therefore looks at the extent to which the Member State was involved in the adoption of the act in question. When the Member State was aware of the act to be adopted and participated in its adoption, it cannot plead the unlawfulness of that act in infringement proceedings.

81.As regards the material scope of Article 277 TFEU, under that provision, a plea of illegality may only be raised to challenge <i>an act of general application</i> adopted by an institution, body, office or agency of the Union. It should be noted that before the entry into force of the Treaty of Lisbon, pleas of illegality were limited to regulations, since former Article 241 EC referred specifically to regulations, while Article 277 TFEU now expressly refers to ‘acts of general application’. (71) That change stems, however, from the Court’s own case-law, which allowed that remedy for other acts of the institutions which, although they were not in the form of a regulation, nevertheless produced similar effects, even though they were not in the strict sense measures laid down by a regulation. (72)

82.It follows that, although the wording of Article 277 TFEU extends the material scope of a plea of illegality to various types of acts of general application, the rationale of that provision with respect to the acts in question remains the same, and there is therefore no reason why the Court would interpret the concept of ‘acts of general application’ under that provision any differently. In that respect, it is important to note that, for the purposes of a plea of illegality, the Court has maintained its requirement that the provisions of an act of general application must constitute the basis of individual decisions or have a direct legal connection with such decisions. (73) That clarification means, in my view, that in order for that provision to apply there must be two types of act – an individual act and an act of general application – and those acts must pertain to a specific relationship.

83.As regards the concept of ‘acts of general application’, the Court has held that it encompasses legislative and regulatory acts. (74) Acts of general application apply to objectively determined situations and produce legal effects for categories of persons regarded generally and in the abstract. (75) In that respect, a decision with a limited number of addressees cannot constitute an act of general application. Therefore, Decision 2021/3 cannot be regarded as a measure of general application capable of being subject to an interlocutory review of legality on the basis of Article 277 TFEU.

84.It follows that Article 277 TFEU cannot be invoked in the present case, since, first, Member States do not have the right to plead the illegality of a decision addressed to them as a defence to an action for failure to fulfil obligations and, second, Decision 2021/3 cannot be regarded as a measure of general application capable of being subject to an interlocutory review of legality on the basis of Article 277 TFEU.

85.However, according to the Court’s case-law, the infringement action brought by the Commission could be dismissed as unfounded if Decision 2021/3 contained such particularly serious and manifest defects that it could be categorised as a non-existent act. (76)

86.A finding that a decision addressed to a Member State is vitiated by a lack of powers conferred on the Union under Article 5(2) TEU may, in principle, constitute a serious illegality capable of vitiating the contested decision in its entirety. I shall address that issue below, when analysing the substance of the plea of illegality raised by Hungary. (77) However, the issue of the short period of time in which to challenge an act under Article 263 TFEU before its implementation does not, in my view, constitute a serious and manifest defect within the meaning of the case-law referred to above.

87.It would only be if the Court took the opposite view that it would be necessary to analyse the issue, raised by Hungary, of the short timescale in which to challenge that decision. Since the essential function of a plea of illegality is to confer on a party that did not have the <i>possibility </i> of challenging an act of general application the right to request the inapplicability of such an act which forms the legal basis of the act of individual application that is being challenged (in annulment proceedings), (78) for a Member State, as a privileged applicant, to be able to invoke Article 277 TFEU, it must demonstrate that it was unable to challenge the act at issue.

(ii) <i>The issue of the short timescale</i>

88.In the present case, it is established that Hungary did not challenge Decision 2021/3 under the second paragraph of Article 263 TFEU. That Member State argues that it could not bring an action for annulment due to the short period of time that elapsed between the adoption of the decision and the vote within the CND.

89.It should be observed at the outset that, on 23 November 2020, the Council adopted Decision 2021/3 by qualified majority in accordance with the first subparagraph of Article 218(8) TFEU. On 2 December 2020, a vote on the WHO recommendations took place within the CND. That gave Hungary eight days in which to challenge that decision and to apply for interim measures.

90.If an act is to be implemented immediately and a Member State does not have sufficient time to challenge it, irrespective of the two-month period set by Article 263 TFEU, the Member State has the option of requesting interim measures from the Court under Article 279 TFEU in order to suspend the application of the challenged Council decision until the Court has ruled on an annulment action. The aim is to prevent the immediate implementation of an act that could cause serious or irreparable harm if allowed to take effect. In such a case, the Court can temporarily halt the implementation of the Council decision in question if it finds that there is a prima facie case and that the Member State would suffer irreparable damage if the act were implemented immediately. It follows that the FEU Treaty has established a comprehensive system of remedies which, as is apparent from Article 279 TFEU, makes it possible to deal with emergency situations. Any difficulties in that respect, such as those invoked by the Member State in question, are not such as to allow Member States to act unilaterally in infringement of EU law.

91.In the present case, despite the limited time available, Hungary could, in principle, have requested the annulment of Decision 2021/3 under the second paragraph of Article 263 TFEU and simultaneously ask for interim relief under Article 279 TFEU, especially since that Member State was already aware of the content of that decision. In that respect, it should be emphasised that several rounds of consultations took place within the Council’s Horizontal Working Party on Drugs before Decision 2021/3 was adopted.

92.In my view, in a situation in which a Member State is given very little time to challenge a decision under the second paragraph of Article 263 TFEU, such a Member State still has options, albeit within a very time-sensitive framework. Even if the decision requires steps to be taken within a very short period, a Member State can still apply for interim measures under Article 279 TFEU. In such cases, the Court has the authority to act very quickly – sometimes within a matter of days (80) – when deciding whether to suspend the enforcement of the act.

93.Moreover, an action for annulment does not have suspensory effect on the implementation of the challenged decision. Even if it had had more time, Hungary would therefore still have been required to implement Decision 2021/3. The appropriate procedure to avoid that circumstance would have consisted in challenging that decision and simultaneously requesting suspension of its operation as an interim measure pursuant to Article 279 TFEU.

94.In that context, it should be pointed out that acts of the EU institutions are in principle presumed to be lawful until such time as they are withdrawn, annulled in an action for annulment (81) or declared invalid following a reference for a preliminary ruling. It follows that Member States cannot unilaterally take corrective or protective measures intended to cure any infringement of EU law by the institution which adopted the disputed act. (82)

95.Therefore, so long as the Court has not annulled or withdrawn Decision 2021/3 or suspended its execution, Hungary has to comply with it.

96.It follows that, where a Member State does not bring an action for annulment against an act addressed to it within the two-month period set out in Article 263 TFEU, a Member State cannot question the validity of that act in the context of infringement proceedings. Otherwise, the consistent and uniform application of EU law, which is a fundamental feature of the EU system, would be undermined. Indeed, the Court has held that, in permitting Member States to profit from the advantages of the European Union, the Treaties also impose on them the obligation to respect the rules of those treaties. For a Member State to break unilaterally, according to its own conception of national interest, the equilibrium between the advantages and obligations flowing from its adherence to the Union calls into question the equality of Member States before EU law. (83)

97.Finally, it should be observed that, under Article 218 TFEU, scenarios arise in external relations where immediate action is required, leading to acts being implemented even before the two-month deadline for challenging those acts. Such scenarios may rise in situations involving the provisional application of international agreements (84) or Council decisions that need immediate implementation, (85) such as Council decisions adopted under Article 218(9) TFEU. In other areas also, scenarios arise, for instance, where acts adopted by the Council may be put into effect before the two-month time limit. (86) Even in those urgent scenarios, individuals, Member States and institutions retain the right to challenge Council decisions under Article 263 TFEU. However, unless provisional measures are granted under Article 279 TFEU, the challenged act remains effective during the annulment proceedings. When assessing the legality of those provisional measures, the Court should embark on a balancing exercise between immediate implementation in critical situations and the rights to an effective remedy of the Member State concerned. If the Court were to follow Hungary’s reasoning whereby acts cannot be implemented before the two-month deadline, no acts could be adopted by the European Union in urgent scenarios, which would seriously undermine the European Union’s actions and, in particular, its actions in the area of external relations.

98.Moreover, if a Member State decides not to request interim measures, it can still bring an action for annulment after the decision at issue has been applied but before the two-month time limit. If successful, such an action for annulment would, for example, close the door on any infringement actions that may be envisaged by the Commission relating to that decision. If the decision is annulled, the Council would be required, in accordance with Article 266 TFEU, to take the necessary measures to comply with the judgment of the Court.

99.In the present case, it is clear that Hungary did not challenge the act either during the period between its adoption and the vote within the CND or subsequent to the vote. In that respect, Hungary argues that challenging Decision 2021/3 would not necessarily have ruled out the possibility of infringement proceedings being initiated. However, had Hungary brought an action for annulment, it could have drawn to the attention of the Court the fact that suspension of the infringement proceedings may be warranted until a ruling regarding such an action is delivered. Moreover, as mentioned above, had Decision 2021/3 been annulled, the Commission would not have been able to rely on that decision for the purposes of the present infringement proceedings. Therefore, in such a situation, Member States have every interest in bringing an action for annulment, even after a vote in the international sphere, in order to challenge the lawfulness of the decision in question. In the present case, Hungary could have challenged the lawfulness of Decision 2021/3 in an action for annulment, but that Member State chose not to do so and not to make use of the legal remedies made available to it.

(iii) The effectiveness of the infringement proceedings

100.The system of remedies established by the FEU Treaty distinguishes between, on the one hand, the actions referred to in Articles 258 and 259 TFEU, which seek a declaration that a Member State has failed to fulfil its obligations, and, on the other hand, the actions referred to in Articles 263 and 265 TFEU, which seek review of the lawfulness of acts or failures to act of the EU institutions. Those remedies have different objectives and are subject to different rules. (87) It is settled case-law that a Member State is precluded from challenging the legality of a directive or a decision addressed to it as a defence to an action claiming that it failed to fulfil its obligations in relation to that directive or decision. (88)

101.The effectiveness of the infringement proceedings would be liable to be seriously undermined if a Member State were permitted to raise pleas of illegality in their defence in order to avoid such proceedings. (89)

102.In my view, the importance of that legal reasoning is threefold. First, the acceptance of a plea of illegality in infringement proceedings would encourage Member States to ignore EU decisions until an infringement action is brought before the Court. (90)

103.Second, the time limit for bringing an action for annulment would be, in practice, useless and ineffective. In that respect, according to settled case-law, the time limits for bringing proceedings under Article 263 TFEU were established with the aim of safeguarding legal certainty by preventing EU measures which produce legal effects from being called into question indefinitely and of avoiding any discrimination or arbitrary treatment in the administration of justice. (91) In particular, in infringement proceedings, the Court has held that it is impossible for a Member State which has allowed the strict time limit laid down in Article 263 TFEU to expire without contesting by the means available under that article the legality of the Commission decision addressed to it to call that decision into question by means of Article 258 TFEU. (92)

104.Third, the acceptance of a plea of illegality in infringement proceedings would jeopardise the legal certainty of the EU legal order and the stability of the complete system of legal remedies provided for in the Treaties. (93)

105.That approach was confirmed in the judgment of 27 March 2019, Commission v Germany, (94) in which the Court emphasised that the case-law precluding a Member State, in the absence of a Treaty provision expressly permitting it to do so, from pleading, as a defence in an infringement action, the unlawfulness of a directive or decision addressed to it applies, mutatis mutandis, to a decision of a general nature not formally addressed to that Member State. (95) That is even more so when, as in the present case, the Council decision has been formally addressed to the Member State.

106.To summarise, were the Member States able to raise pleas of illegality by challenging the legality of a Council decision during the proceedings for failure to fulfil obligations under Article 258 TFEU, the effectiveness of those proceedings would be seriously jeopardised.

107.It follows that Member States cannot rely on the alleged unlawfulness of an act in infringement proceedings relating to an alleged failure to implement that act. The case-law referred to above applies even when the deadlines for implementing the decision are short, as in the present case. As I have suggested earlier, a Member State can indeed apply for interim measures. Therefore, the Member State at issue in the present case was, in fact, guaranteed an effective remedy throughout the period laid down by Article 263 TFEU for challenging such a decision.

108.If the Court endorses my proposed conclusion on the inadmissibility of the plea of illegality, the question relating to the unlawfulness of Decision 2021/3 becomes devoid of purpose, unless the latter contains such particularly serious and manifest defects that it could be deemed non-existent. (96) It is therefore only if the Court decides to examine that question that I will briefly examine the merits of that argument below.

(b) Substance

109.Hungary claims that the provisions of Decision 2021/3 cannot be invoked against it since they are unlawful. It contends that the decision contains such particularly serious and manifest defects that it could be deemed non-existent. (97) Hungary argues that the European Union lacked competence to adopt Decision 2021/3, on the ground that the legal basis for that decision did not confer on it the appropriate power to amend an international agreement. (98) As a result, that decision was adopted in breach of the principle of conferral laid down in Article 5(2) TEU.

110.Hungary contends that, since the proposed amendments to the Conventions on Narcotic Drugs and Psychotropic Substances do not fall within the competence of the European Union, the latter cannot adopt a decision in which it takes a position on that subject. Since Article 3(2) TFEU cannot constitute the appropriate legal basis for the adoption of Decision 2021/3, and since that decision did not refer to Article 216(1) TFEU or to any other legal basis, it does not satisfy the requirement to indicate its legal basis. If Decision 2021/3 was adopted solely on the basis of Article 3(2) TFEU, Hungary submits that that provision does not confer exclusive competence as regards the subject matter of that decision.

111.It should be noted at the outset that Article 218(9) TFEU states that ‘the Council, on a proposal from the Commission …, shall adopt a decision … establishing the positions to be adopted on the Union’s behalf in a body set up by an agreement, when that body is called upon to adopt acts having legal effects, with the exception of acts supplementing or amending the institutional framework of the agreement’. The Court has held that there is nothing in the wording of that provision to prevent the European Union from adopting a decision establishing a position to be adopted on its behalf in a body set up by an international agreement to which it is not a party. (99)

112.In order to assess the lawfulness of Decision 2021/3, it is necessary to analyse whether the Council was competent to adopt it and therefore did not act in breach of the principle of conferral under Article 5(2) TEU. As already suggested in this Opinion, (100) the changes (additions or removals of substances) in Schedules I and IV to the Convention on Narcotic Drugs affect the scope of Framework Decision 2004/757 and thus fall within the exclusive competence of the Union. It is settled case-law that, where an area of law falls within a competence of the European Union, the fact that the European Union did not take part in the international agreement in question does not prevent it from exercising that competence by establishing, through its institutions, a position to be adopted on its behalf in the body set up by that agreement, in particular through the Member States which are party to that agreement acting jointly in its interest. (101) That finding leads me to propose that the Council was competent to adopt Decision 2021/3, and that it was therefore not adopted in breach of the principle of conferral laid down in Article 5(2) TEU.

113.In that context, as regards the argument put forward by Hungary contending that Decision 2021/3 contains such particularly serious and manifest defects that it could be deemed non-existent, it is settled case-law that the seriousness of the consequences of a finding that an act of an EU institution is non-existent means that, for reasons of legal certainty, such a finding must be reserved for extreme situations. (102) Furthermore, the Court has held that the applicant contesting a provision must provide evidence to show that that provision is vitiated by a defect such as to call into question its very existence. (103) In the present case, Hungary’s claim that Decision 2021/3 should be deemed non-existent is based on the argument that the Union was not competent. Hungary claims that Decision 2021/3 should have referred to Article 216(1) TFEU or to another legal basis.

114.It should be observed that Decision 2021/3 refers to ‘the Treaty on the Functioning of the European Union, and in particular Article 83(1), in conjunction with Article 218(9) thereof’. The choice of the appropriate legal basis has constitutional significance, since, having only conferred powers, the European Union must link the acts which it adopts to the provisions of the FEU Treaty which actually empower it to adopt such acts. (104) Moreover, an indication of the legal basis is essential in the light of the obligation to state reasons that stems from Article 296 TFEU. (105)

115.In the present proceedings, the legal act at issue is a decision adopted by the Council referring explicitly to Article 83(1) TFEU and Article 218(9) TFEU as its legal bases. Therefore, it cannot, in my view, be argued that the parties concerned and the Court are left uncertain as to the specific legal basis. (106) It follows that the legal basis can be clearly determined.

116.In any case, the choice made between Article 216(1) and 218(9) TFEU does not appear to be one of the extreme scenarios described by the Court where the provisions contain such particularly serious and manifest defects that it could be deemed non-existent. On the contrary, as the Court held in the judgment in Commission v Czech Republic, procedural choices cannot call into question the very existence of the decision. (107)

117.As stated by the Court in the judgment in Germany v Council, while Article 216(1) TFEU does indeed list the various situations in which the European Union has power to conclude an international agreement, that provision does not, unlike Article 352 TFEU, prescribe any formal or procedural requirements for doing so. (108) The form of the act and the procedure to be followed must, therefore, be determined by reference to the other provisions of the Treaties. That is, indeed, the role of Article 218(9) TFEU, which is indicated in the present proceedings as the procedural legal basis for the contested decision, defining the procedure to be followed for the adoption of the decision. (109)

118.That observation leads me to propose that the failure to make explicit reference to 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, call into question the very existence of that decision.

119.The Commission alleges that, by voting against the position defined by the European Union in Decision 2021/3 at the sixty-third session of the CND on amendment of the entries in the lists for cannabis and related substances, Hungary has failed to fulfil its obligations under that decision, read in conjunction with the fourth paragraph of Article 288 TFEU. The fact that Hungary voted against that decision in the Council does not affect the binding nature of that decision within the meaning of the fourth paragraph of Article 288 TFEU. Nor does the fact that Hungary had substantive objections to the content of the WHO recommendations alter the binding nature of Decision 2021/3.

120.In the present case, Hungary appears to admit by implication to the infringement of Decision 2021/3, in its defence and at the hearing. That Member State’s defence relies instead on the illegality of that decision on the basis of Article 277 TFEU.

121.As I have observed above, Decision 2021/3 enjoys a presumption of lawfulness, producing legal effects until such time as it is withdrawn, annulled in an action for annulment or declared invalid following a reference for a preliminary ruling or a plea of illegality. (110) So long as the Court has not decided to suspend it, Member States are bound to implement it. (111)

122.Since Decision 2021/3 was, in my view, lawfully adopted in accordance with the Treaties and addressed to the Member States, it is binding in its entirety on its addressees, that is to say, the Member States, (112) in that it establishes, for the Member States, the position of the European Union at the sixty-third session of the CND and requires them to defend that position. (113)

123.In particular, the binding nature of Decision 2021/3 and the obligations of the Member States resulting therefrom are not affected by the fact that Hungary voted against that decision. Any unilateral national considerations concerning the possibility of voting on the decision or any political message that it might send, the scope of the recommendations to be adopted or the reasons for them do not affect the binding nature of that decision. Hungary, as an addressee of Decision 2021/3 and a member of the CND with voting rights, was required to comply with and implement that decision. (114)

124.Furthermore, failure to comply with Decision 2021/3 may call into question the unity and consistency of the European Union’s external action and undermine, inter alia, the value of the rule of law on which the European Union is founded, in accordance with Article 2 TEU. (115)

125.Consequently, I take the view that the first complaint is well founded.

1. Arguments of the parties

The Commission submits that, by voting against Decision 2021/3 without prior warning and consultation, and by publicly expressing an objection to the WHO recommendations, Hungary acted in breach of the principle of sincere cooperation enshrined in Article 4(3) TEU.

127.According to the Commission, in areas falling within the Union’s exclusive external competence, cooperation between the Member States and the institutions of the European Union is particularly important. That imposes certain obligations and limits on Member States’ action in the international sphere, which flow from the requirement of unity in the international representation of the European Union. (116) In the Commission’s view, the decision adopted on the basis of Article 218(9) TFEU and compliance with that decision by the Member States are a specific expression of the requirement of unity in the representation of the European Union, with which Hungary should have complied. (117) In any event, the Commission denies that it is possible to rely on the principle of sincere cooperation only in the event of infringement of the Union’s exclusive external competence. That principle is of general application and does not depend on whether or not the Union has exclusive competence. (118)

128.The Commission asserts that Hungary’s action is aggravated by the fact that its vote against the joint position on behalf of the European Union in the CND took place without any prior consultation of the EU institutions. Moreover, the Commission notes that Hungary did not take any steps, either at the meeting of the CND or thereafter, to remedy or at least to mitigate the consequences of its behaviour and dispel doubts as to its future action.

129.The Commission claims that, by voting in a manner incompatible with Decision 2021/3 and publicly distancing itself from the European Union’s position after the vote, Hungary undermined the unity of the international action of the European Union, and thus its effectiveness, credibility and reputation. Such action would also risk weakening the European Union’s negotiating position within the United Nations on related issues.

130.Hungary contends that if the amendments in question do not fall within the exclusive competence of the European Union, with the effect that Decision 2021/3 is unlawful, that Member State cannot be required, by virtue of the principle of sincere cooperation, to adopt the conduct laid down in that decision for the purposes of voting. Hungary is, on the contrary, free to express its views as it sees fit and its public position on a matter falling within its competence as a Member State in the context of shared competence does not necessarily harm the interests of the European Union.

131.In addition, Hungary observes that the infringement procedure and a possible finding against it at the end of that procedure are not such as to put an end to the alleged infringement. Hungary is not in a position to remedy the infringement even if it were ordered to do so in the context of those proceedings.

132.Hungary claims that it is not solely responsible for the situation at hand. Although the WHO submitted its recommendations as early as January 2019, the Commission did not adopt a proposal in that regard until 16 October 2020 and the Council voted on that proposal on 23 November 2020. The session of the CND and the vote on the WHO recommendations took place on 2 December 2020, with the effect that only a few days elapsed between the adoption of Decision 2021/3 and the vote.

133.Even if Hungary had wished to challenge the validity of Decision 2021/3 within the period prescribed by Article 263 TFEU, it would not have had an opportunity to do so, since the vote took place even before expiry of the two-month time limit available to it. The few days which elapsed between the adoption of that decision and the vote on the amendments were not a sufficient period in which to bring an action and an application for interim measures and for the Court to rule on them. It follows that any action brought against that decision would in fact have been devoid of purpose and that a finding that the decision was invalid would not have changed the situation in any way.

134.Hungary is uncertain as to the options available to a Member State where, despite the position of that Member State throughout a legislative procedure, a decision taken by the majority of Member States results in a binding act whose validity that Member State cannot challenge and which compels it to engage in conduct that it considers unacceptable within a given international organisation.

135.Furthermore, Hungary states that, because of the tight timetable described above, it adopted its final position on the recommendations only just before the session, taking into account, in that regard, the judgment of 19 November 2020, <i>B S and C A (Marketing of cannabidiol (CBD))</i>. (119)

136.Finally, Hungary emphasises the health and social policy considerations underlying its rejection vote. In objecting to the removal of the words ‘extracts and tinctures’ from Schedule I, it intended not to extend the penalties relating to narcotic drugs to substances not containing THC but to ensure that cannabis derivatives which do not contain any THC remain covered by the provisions of the Convention on Narcotic Drugs, which are not included in Framework Decision 2004/757.

137.Hungary, like many other Member States, does not subject preparations not containing THC to penalties for the sole reason that they are extracted from the cannabis plant. The technical position defended by Hungary during the discussions on the draft Council Decision adopting the Common Position was based on the fact that the recommendations do not favour access to cannabis preparations for therapeutic purposes, as this is not in any case their objective. Their purpose is to facilitate research into the use of cannabis for therapeutic purposes. However, since that amendment does not contain directly applicable provisions, Hungary considers that it is not appropriate for the purpose of achieving that objective.

138.Contrary to the Commission’s submissions, Hungary considers that the WHO and its partner organisations have not provided conclusive scientific evidence that cannabis is less harmful to health than previously thought. On the contrary, research results have shown that cannabis consumption may lead to long-term psychiatric, neurological, circulatory and respiratory problems. The European Monitoring Centre for Drugs and Drug Addiction highlighted similar long-term effects of CBD. Moreover, as several States also pointed out during the thematic debate within the Narcotic Drugs Commission, the THC content of illegally marketed cannabis plants has recently increased significantly.

139.Consequently, Hungary considers that the WHO has not provided any specific arguments, whether from a health, a social or a legal point of view, to support the practical usefulness of its recommendations. The only effect of their adoption would be to send, to the public, the message that the risks associated with cannabis for society and public health had been overestimated when the two agreements at issue were drawn up and that those agreements are therefore too strict as regards the control introduced for cannabis.

140.Furthermore, the adoption of Recommendation 5.4 would have prevented the uniform application of the law and reduced the level of international control of narcotic drugs. Apart from THC, many other cannabis plant derivatives have psychotropic effects, while others can be used as precursors. If that recommendation were adopted, it would be for each State Party to the Convention on Narcotic Drugs to decide whether the convention was intended to classify as cannabis preparations substances which do not contain THC, or which contain only traces thereof, and to apply to them the provisions relating to supervision under that convention.

141.In its rejoinder, Hungary asserts that what is important is, in any event, that, as a result of the Commission’s conduct, it was unable to challenge Decision 2021/3, with the effect that it is necessary to ask how it could have acted in accordance with the principle of sincere cooperation.

142.That principle should be interpreted in the light of the right to effective judicial protection. Where the conduct of an institution infringes the right of a Member State to effective judicial protection, the question arises as to the extent to which the requirement of sincere cooperation may be relied on against that Member State.

143.In that regard, it is important to distinguish the present case from that which gave rise to the judgment of 5 December 2017, Germany v Council. (120) The common feature of the two cases is that the Member State concerned did not have sufficient time to challenge the contested decisions or to request suspension of the operation of those decisions as an interim measure. Nevertheless, unlike the case which gave rise to that judgment, in the present case the irreversible effects caused by Decision 2021/3 during the session of the CND persist in the present case, and that circumstance infringes the right to effective judicial protection.

144.It is apparent from the wording of Article 4(3) TEU that the principle of sincere cooperation entails two positive obligations for the Member States. First, respecting and assisting the European Union ‘in carrying out tasks which flow from the Treaties’, and, second, taking all the necessary measures for the ‘fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions’.(121) Moreover, there exists a negative obligation, namely to refrain from any measure which could jeopardise the attainment of the European Union’s objectives. (122)

145.The EU principle of sincere cooperation, stemming from the German principle of federal fidelity, <i>Bundestreue</i> , and from the principle <i>pacta sunt servanda</i> , (123) has been described as the ‘inherent underlying purpose of the entire European integration project’. (124) It serves the need for corresponding cooperation between the European Union and Member States, which would be under threat if disloyalty reigned within the EU legal order.

146.In the area of external relations in particular, the principle of sincere cooperation can lead to different scenarios. If applied to the Union’s exclusive competence, it is the basis of the Member State’s obligation to implement the Union’s rules. (125) If applied to the competences of Member States, it can give rise to specific obligations such as the enforcement of EU law by national courts. (126) However, the principle of sincere cooperation can also be an autonomous obligation, the infringement of which is penalised by the Court. (127)

147.Therefore, in the present case, in the event that the Court decides that Hungary’s vote against Decision 2021/3 during the CND meeting constituted an infringement of the exclusive competence of the Union under Article 3(2) TFEU and of Decision 2021/3, in conjunction with the fourth paragraph of Article 288 TFEU, there would be no need, in my view, to examine that specific behaviour under the principle of sincere cooperation enshrined in Article 4(3) TEU. In that respect, the Court has already held that there is ‘no need’ to examine the alleged infringement of the provisions enshrining the principle of sincere cooperation when a restriction on fundamental freedoms has already been established. (128) In the present case, the alleged infringement of Article 3(2) TFEU and of Decision 2021/3, in conjunction with the fourth paragraph of Article 288 TFEU, would automatically constitute an infringement of the second positive obligation under Article 4(3) TEU, that is to say, fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions.

148.However, I take the view that it is important, for the sake of completeness, to analyse the infringements alleged by the Commission. In that respect, in <i>Commission </i> v <i> Sweden</i> , (129) the Court declared that Sweden failed to fulfil its obligations under Article 10 EC (the predecessor of Article 4(3) TEU) by unilaterally proposing an amendment to the Stockholm Convention on Persistent Organic Pollutants. While Sweden exercised a competence shared by the Member States and the European Union, the Court ruled that an obligation to cooperate stems from the requirement of unity in the international representation of the European Union. (130)

149.The Court emphasised that Member States are subject to special duties of action and abstention in a situation in which the European Union has decided to adopt a decision to act at international level, which represent the point of departure for concerted Union action. (131) However, the Court went even further, stating that, where the Commission has submitted a proposal authorising the institutions to start a concerted action of the European Union at international level, even though that proposal has not yet been adopted by the Council, Member States are subject to special duties of action and abstention, and to a duty of close cooperation to facilitate the achievement of the EU tasks. (132) That duty facilitates achievement of the European Union’s tasks and ensures the coherence and consistency of its action and its international representation. (133)

150.The present case presents certain similarities with the case that gave rise to the abovementioned judgment in <i>Commission </i> v <i> Sweden</i> in that, by adopting Decision 2021/3 on the basis of Article 218(9) TFEU, the Union had already decided to act at international level. It may be inferred a fortiori that Member States are subject not only to a duty of abstention, but to positive duty of at the very least close cooperation to facilitate the achievement of the EU tasks and thus ensure the coherence and consistency of the Union’s action and its international representation.

151.That notwithstanding, the Commission claims that Hungary also acted in breach of the principle of sincere cooperation by specific autonomous conduct. First, it committed an infringement by not voting in accordance with Decision 2021/3 and by voting so without any warning or the necessary prior consultation of the EU institutions. Second, the principle was breached when Hungary publicly expressed its disagreement with the European Union’s position. Third, another infringement consists in not taking any steps, either within the CND or thereafter, to remedy the consequences of its behaviour or at least to mitigate the consequences thereof.

152.In that respect, it is settled case-law that the principle of sincere cooperation is of general application and does not depend on whether the EU competence concerned is exclusive or not. (134) It is also important to bear in mind that it entails an enhanced obligation of good faith, which is incumbent upon Member States as regards their relations with one another and with the institutions of the European Union as a result of their membership of the European Union. (135) By way of analogy, the principle of sincere cooperation finds its ‘horizontal’ counterpart in the principle of mutual trust. (136)

153.The Commission asserts that an infringement of Article 4(3) TEU can stem from the absence of any warning to or prior consultation with the EU institutions before the unilateral conduct of the Member State on the international stage. During the hearing before the Court, Hungary confirmed that it did not take any steps before the vote at issue in order to warn or consult the EU institutions or the other Member States.

154. In that regard, it must be recalled at the outset that in <i>Commission</i> v <i>Ireland</i>

the Court found that the principle of sincere cooperation, applied to mixed agreements, involves close cooperation within the framework of those agreements entailing a duty of prior information and consultation. (137)

That being so, I would argue that giving effect to the coherence and consistency of the Union’s action and its international representation requires coordination and cooperation between the competent authorities of different Member States and the Union’s institutions. (138) Therefore, a Member State has an obligation to inform or warn the EU institutions and other Member States of the matters on which it disagrees and to consult them before taking any further action. That is what Greece did, for instance, in the context of Commission v Greece, (139) in which it invoked Article 4(3) TEU in order to argue that its proposal should have been taken into consideration before the meeting of the Maritime Safety Committee. The Court held that to fulfil its duty of cooperation under Article 4(3) TEU, the Commission could have endeavoured to submit the Greek proposal and allow a debate. The sole ground that a proposal is of a national nature is not such as to prevent the Commission from allowing that debate. (140)

As held in the landmark case Westzucker, ‘it is consonant with the very idea of [the European Union] that, within the framework of the mechanics of collective discussion …, the Member States should emphasise their interests, whilst it falls to the Commission to arbitrate, through the measures taken by it, between possible conflicts of interest’. (141) It follows that Member States have a duty to raise their differences within the institutional framework of the European Union.

Therefore, I take the view that, by failing to inform or warn the EU institutions and other Member States of its disagreements and to consult them before taking any further action, Hungary acted in breach of the principle of sincere cooperation enshrined in Article 4(3) TEU.

As regards the potential breach of the principle of sincere cooperation when Hungary publicly expressed its disagreement with the European Union’s position, it should be noted that the Court, in the judgment in Commission v Germany, found that by voting against the position laid down in a specific Council decision and publicly opposing that position, Germany failed to fulfil its obligations under that decision and under Article 4(3) TEU. (142) It was observed that, through Germany’s conduct, the effectiveness of the international action of the European Union, as well as the latter’s credibility and reputation on the international stage, was harmed. (143)

In the present case, it is common ground that Hungary voted in a manner incompatible with Decision 2021/3 and publicly distanced itself from the European Union’s position after the vote during the CND session. It can therefore be argued that, in doing so, Hungary compromised the principle of unity in the international representation of the Union and its Member States. Moreover, it jeopardised the coherence and consistency of the Union’s action and its international representation. Furthermore, it undermined the credibility of the Union itself at the international level. If follows that, in doing so, Hungary acted in breach of the principle of sincere cooperation enshrined in Article 4(3) TEU.

The Commission also contends that, by not taking any steps to remedy the consequences of its behaviour, or at least to mitigate the consequences thereof, Hungary acted in breach of the principle of sincere cooperation. In that sense, it is settled case-law of the Court that, under the principle of sincere cooperation provided for in Article 4(3) TEU, the Member States are required to eliminate the unlawful consequences of a breach of EU law and such an obligation is owed, within the sphere of its competence, by every organ of the Member State concerned. (144)

Nonetheless, it is my view that that case-law refers to situations in which the national authorities can remedy the consequences of their unilateral action. (145) In that context, the Court’s case-law imposes a duty of cooperation on the Member State to remedy the consequences of its behaviour, and failure to do so can lead to an infringement of Article 4(3) TEU.

In the present proceedings, Hungary’s unilateral action of voting against the position expressed in Decision 2021/3 could not be remedied after the vote at the CND had taken place, nor could the consequences for the coherence and consistency of the European Union’s action and its international representation be eliminated. In those circumstances, it is my view that imposing a duty on the authorities of the Member States to act in a specific way would make no sense. The action is required if it can actually remedy the negative effects on the European Union’s legal system.

Consequently, in the present case, purely because the Member State’s action cannot change, mitigate or eliminate the unlawful consequences of an infringement of EU law, the absence of action by Hungary to remedy the consequences of its behaviour did not lead to a breach of the principle of sincere cooperation under Article 4(3) TEU.

However, the fact that Hungary knew that its action in the international sphere would be irreversible could also serve as an aggravating circumstance when defining the scope of the infringement by that Member State.

As regards the alleged public distancing of itself from the joint position adopted on behalf of the European Union, it should be noted that, in its submissions, the Commission has not described what it means by such distancing. In the description of facts in the application, the Commission refers to a statement made by Hungary. (146) However, it is for the Commission to characterise the behaviour that constitutes an alleged breach. (147) In the present case, it may be inferred, in my view, from the Commission’s laconic reference to distancing that it is referring to that public statement.

Finally, as to the short timescale invoked by Hungary, as pointed out by the Commission, that Member State was already aware of the intended position to be adopted on behalf of the European Union even before the Commission’s proposal was submitted to the Council. (148) Therefore, if Hungary had genuinely intended to challenge that position, it would have had the necessary time to prepare its action for annulment. As I have stated above, in any case, even if Hungary had challenged the lawfulness of Decision 2021/3, the latter would have produced its legal effects unless that Member State had introduced a request for interim measures under Article 279 TFEU. Hungary did indeed have the possibility of requesting such measures and could have challenged the lawfulness of Decision 2021/3 in an action of annulment, but chose not to do so. (149)

In the light of the above, it is my view that the Commission’s third complaint, alleging breach of the principle of sincere cooperation enshrined in Article 4(3) TEU, is well founded. Hungary infringed both the positive obligations arising from that provision and the negative obligation to refrain from any measure which could jeopardise the attainment of the European Union’s objectives. Those infringements stemmed from the absence of warning to the EU institutions or their consultation before a unilateral action by the Member State, and from its publicly expressing its disagreement with the European Union’s position.

Under Article 138(1) of the Rules of Procedure of the Court of Justice, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has claimed that Hungary should be ordered to pay the costs and since, in my view, Hungary has been unsuccessful, I suggest that the Court order that Member State to pay the costs.

On the basis of the foregoing considerations, I am therefore of the view that the Court should:

– declare that, by voting against the position expressed in Council Decision (EU) 2021/3 of 23 November 2020 on the position to be taken, on behalf of the European Union, at the reconvened sixty-third session of the Commission on Narcotic Drugs, on the scheduling of cannabis and cannabis-related substances under the Single Convention on Narcotic Drugs of 1961, as amended by the 1972 Protocol, and the Convention on Psychotropic Substances of 1971, Hungary has infringed the exclusive external competence of the Union under Article 3(2) TFEU, has failed to fulfil its obligations under that decision, in conjunction with the fourth paragraph of Article 288 TFEU, and has acted in breach of the principle of sincere cooperation enshrined in Article 4(3) TEU;

– order Hungary to pay the costs.

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Original language: English.

The CND is one of the functional commissions of the United Nations Economic and Social Council (‘ECOSOC’).

Single Convention on Narcotic Drugs, 1961, as amended by the 1972 Protocol amending the Single Convention on Narcotic Drugs, 1961, concluded in New York on 30 March 1961 (United Nations Treaty Series, Vol. 520, No 7515).

Decision of 23 November 2020 on the position to be taken, on behalf of the European Union, at the reconvened sixty-third session of the [CND], on the scheduling of cannabis and cannabis-related substances under the [Convention on Narcotic Drugs], and the Convention on Psychotropic Substances of 1971 (OJ 2021 L 4, p. 1).

Only States, and not international or regional organisations, are parties to those conventions. See Article 40 of the Convention on Narcotic Drugs and Article 25 of the Convention on Psychotropic Substances.

Under Article 2(5) of the Convention on Narcotic Drugs, the drugs in Schedule IV are also to be included in Schedule I and subject to all measures of control applicable to drugs in the latter schedule, and in addition thereto.

Decision-making on the scope of the control of substances is called ‘scheduling’; a substance is placed under specific control by being included in a particular schedule.

See Article 8 of the Convention on Narcotic Drugs.

The Commission explained at the hearing before the Court that the CND did not vote on the WHO recommendations at its meeting in spring 2020, and that the vote was postponed to December of that year, thereby giving the Members States more time to examine those recommendations.

A preparatory body of the Council of the European Union responsible for the steering and management of the work of the Council and of the European Union on drug policy. At the hearing, the Commission stated that its proposal had been examined by the Council’s Horizontal Working Party on Drugs on 29 October 2020.

COM(2020) 659 final, p. 2.

Under Article 3(5) of that convention, ‘if the [WHO] finds that a drug in Schedule I is particularly liable to abuse and to produce ill effects … and that such liability is not offset by substantial therapeutic advantages not possessed by substances other than drugs in Schedule IV, the [CND] may, in accordance with the recommendation of the [WHO], place that drug in Schedule IV’.

27 CND Member States voted in favour of Recommendation 5.1, while 25 voted against and 1 Member State abstained.

It should be observed that, even in actions brought under Article 258 TFEU, the Court changes the order of complaints or pleas in law if it deems it necessary to do so. See, inter alia, judgment of 5 June 2023, Commission v Poland (Independence and private life of judges) (C‑204/21, EU:C:2023:442).

C‑20/09, EU:C:2011:214, paragraph 41.

C‑276/99, EU:C:2001:576, paragraph 24.

See, inter alia, judgment of 22 February 2018, Commission v Poland (C‑336/16, EU:C:2018:94, paragraphs 61 and 62 and the case-law cited).

See judgments of 13 October 1993, Commission v Spain (C‑378/92, EU:C:1993:843, paragraph 6), and of 19 January 1995, Commission v Belgium (C‑66/94, EU:C:1995:13, paragraph 6). See also Lenaerts, K., Gutman, K. and Nowak, J.T., EU Procedural Law, Oxford University Press, Oxford, 2023, paragraph 5.01, and Prete, L., ‘Enforcement actions’, in Tridimas, T. and Schütze, R., (eds), Oxford Principles of European Union Law, Oxford University Press, Oxford, 2018, p. 944.

See judgments of 3 February 2021, Commission v Hungary (Limit values – PM10)

Commission v Greece (Limit values – ΝΟ2), (C‑633/21, EU:C:2023:112, paragraph 54).

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20Opinion of Advocate General Kokott in Commission v Italy (C‑196/13, EU:C:2014:2162, point 80).

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21See Opinion of Advocate General Geelhoed in Joined Cases Commission v Germany (C‑20/01 and C‑28/01, EU:C:2002:717, point 53).

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22Judgment of 27 March 2019, Commission v Germany (C‑620/16, EU:C:2019:256, paragraph 48).

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As regards the judgment of 25 October 2001, Germany v Commission (C‑276/99, EU:C:2001:576), cited by Hungary, it should be observed that it was handed down under Article 88 of the now-redundant Treaty establishing the European Coal and Steel Community. As explained by Advocate General Szpunar in Commission v Germany (C‑620/16, EU:C:2019:3, footnote 16), under that provision, infringement procedures differed in the sense that as of the end of the pre-litigation procedure, the roles were reversed, as compared to the position under Article 258 TFEU: instead of a reasoned opinion, the Commission adopted a decision which could then be challenged by a Member State before the Court.

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24See judgments of 7 February 1973, Commission v Italy (39/72, EU:C:1973:13, paragraph 10), and of 27 March 2019, Commission v Germany (C‑620/16, EU:C:2019:256, paragraph 57).

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25Judgment of 27 March 2019 (C‑620/16, EU:C:2019:256).

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26Decision 2014/699 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).

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27Judgment of 27 March 2019, Commission v Germany (C‑620/16, EU:C:2019:256, paragraph 52). Emphasis added.

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28Ibid., paragraphs 42 to 54.

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29See judgments of 2 June 2005, Commission v Luxembourg (C‑266/03, EU:C:2005:341, paragraph 60); of 14 July 2005, Commission v Germany (C‑433/03, EU:C:2005:462, paragraph 66); and of 20 April 2010, Commission v Sweden (C‑246/07, EU:C:2010:203, paragraph 45).

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30OJ 2004 L 335, p. 8.

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31The Commission explains that, in comparison with Article 4(1) thereof, Article 4(2)(b) of Framework Decision 2004/757 imposes heavier penalties for offences referred to in Article 2(1)(a), (b) and (c) which relate to drugs ‘among the most harmful to health’.

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32Judgment of 19 November 2020, B S and C A (Marketing of cannabidiol (CBD)) (C‑663/18, EU:C:2020:938).

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33Article 3(2) TFEU, in fine, is a codification of the main thread of the case-law on the implied external powers of the Union, which has its origins in the judgment of 31 March 1971, Commission v Council (22/70, EU:C:1971:32; ‘the judgment in ERTA’).

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34Judgment of 4 September 2014, Commission v Council (C‑114/12, EU:C:2014:2151, paragraph 66).

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35Ibid., paragraph 70 and the case-law cited.

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36See, to that effect, Opinion 1/03 (New Lugano Convention) of 7 February 2006 (EU:C:2006:81, paragraph 126).

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37Opinion 2/91 (ILO Convention No 170) of 19 March 1993 (EU:C:1993:106, paragraph 25); judgment of 5 November 2002, Commission v Denmark (C‑467/98, EU:C:2002:625, paragraph 82); and Opinion 1/03 (New Lugano Convention) of 7 February 2006 (EU:C:2006:81, paragraphs 120 and 126).

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38See, to that effect, Opinion 1/03 (New Lugano Convention) of 7 February 2006 (EU:C:2006:81, paragraph 124).

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39See Opinion 1/03 (New Lugano Convention) of 7 February 2006 (EU:C:2006:81, paragraph 133); Opinion 1/13 (Accession of third States to the Hague Convention) of 14 October 2014 (EU:C:2014:2303, paragraph 74); judgment of 26 November 2014, Green Network (C‑66/13, EU:C:2014:2399, paragraph 33); and Opinion 3/15 (Marrakesh Treaty on access to published works) of 14 February 2017 (EU:C:2017:114, paragraph 108).

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40See Opinion of Advocate General Szpunar in Commission v Council (International Maritime Organisation) (C‑161/20, EU:C:2021:957, point 121), and Opinion of Advocate General Sharpston in Commission v Council (C‑114/12, EU:C:2014:224, point 89).

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41The third recital of the Convention on Narcotic Drugs.

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42The fifth recital of the Convention on Narcotic Drugs.

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43Article 3(3) of the Convention on Narcotic Drugs.

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44See Article 1 of the Convention on Narcotic Drugs.

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45Opinion 2/91, (ILO Convention No 170), of 19 March 1993, EU:C:1993:106, point 5; judgment of 12 February 2009, Commission v Greece (C‑45/07, EU:C:2009:81, paragraph 31); Opinion of Advocate General Bot in Commission v Greece (C‑45/07, EU:C:2008:642, point 47).

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46Article 31 TEU was replaced by Articles 82, 83 and 85 TFEU, and Article 34 TEU was repealed.

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47Judgment of 11 June 2020, Prokuratura Rejonowa w Słupsku (C‑634/18, EU:C:2020:455, paragraph 32). See also recital 3 of Framework Decision 2004/757.

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48Judgment of 2 February 2023, TF (Drug precursors) (C‑806/21, EU:C:2023:61, paragraph 53).

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49In particular, the first subparagraph of Article 4(1) of Framework Decision 2004/757 requires Member States to take the measures necessary to ensure that the offences referred to, in particular, in Article 2 of that framework decision are punishable by effective, proportionate and dissuasive penalties, whereas the second subparagraph of Article 4(1) of that framework decision specifically requires Member States to take the necessary measures to ensure that the offences referred to in Article 2 of that decision are punishable by penalties of a maximum of at least between one and three years of imprisonment.

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50In that regard, it should also be noted that a modification of their classification under Framework Decision 2004/757 would also change the penalty for their illicit use. That classification derives from the severity of any penalty and might also affect the course of national criminal procedures.

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51See Opinion 1/03 (New Lugano Convention) of 7 February 2006 (EU:C:2006:81, paragraph 126).

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52Opinion 2/91 (ILO Convention No 170) (EU:C:1993:106); judgment of 12 February 2009, judgment of 12 February 2009, Commission v Greece (C‑45/07, EU:C:2009:81, paragraph 31); Opinion of Advocate General Bot in Commission v Greece (C‑45/07, EU:C:2008:642, point 47).

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53Judgment of 7 October 2014 (C‑399/12, EU:C:2014:2258).

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54Ibid., paragraph 50.

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55The concept of a negative duty stems from the judgment in ERTA, in which the Court ruled that Member States are precluded from entering into international agreements in areas where the European Union has already exercised its powers (paragraph 17).

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56Article 241 EC mentioned only regulations.

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57According to Article 2 of Decision 2021/3, it is for the Member States, which are members of the CND, to express that common position.

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58See, to that effect, judgments of 23 April 1986, Les Verts v Parliament (294/83 EU:C:1986:166, paragraph 23); of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission (C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 281); and of 3 June 2021, Hungary v Parliament (C‑650/18, EU:C:2021:426, paragraph 34 and the case-law cited).

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59See, to that effect, for example, judgments of 5 December 2017, Germany v Council (C‑600/14, EU:C:2017:935, paragraph 108), and of 9 July 2020, Czech Republic v Commission (C‑575/18 P, EU:C:2020:530, paragraph 52).

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60All that a Member State needs to establish in order for its action under Article 263 TFEU to be admissible is, in principle, that an act – in the present case an act of the Council – was intended to produce legal effects vis-à-vis third parties. A Member State may therefore challenge an EU act even if that act does not produce legal effects specifically with regard to that Member State (see, for example, order of 27 November 2001, Portugal v Commission (C‑208/99, EU:C:2001:638, paragraph 23).

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The considerations on the basis of which the judgment of 9 March 1994, <i>TWD Textilwerke Deggendorf</i> (C‑188/92, EU:C:1994:90) was made (see paragraphs 16, 17 and 25), in so far as they relate to the general principle of legal certainty, are, in my view, fully transposable by analogy to the present proceedings.

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62Judgment of 16 July 1981, <i>Albini </i>v<i> Council and Commission</i> (33/80, EU:C:1981:186, paragraph 17).

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63See, to that effect, judgments of 6 March 1979, <i>Simmenthal</i> v <i>Commission</i> (92/78, EU:C:1979:53, paragraph 39); of 10 July 2003, <i>Commission</i> v <i>ECB</i> (C‑11/00, EU:C:2003:395, paragraph 75); and of 17 December 2020, <i>BP</i> v <i>FRA</i> (C‑601/19 P, EU:C:2020:1048, paragraph 26).

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64Bernhard, S., ‘Article 277 TFEU’, in Kellerbauer, M., Klamert, M. and Tomkin, J. (eds), <i>The EU Treaties and the Charter of Fundamental Rights: A Commentary</i> (Oxford Academic, online edition, pp. 1867 to 1869.

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65See, in particular, Opinion of Advocate General Mengozzi in <i>Commission</i> v <i>Council </i>(C‑91/05, EU:C:2007:528, points 36 to 54), and the Opinions of the advocates general cited in footnote 17.

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66Judgment of 10 July 2003, C‑11/00, EU:C:2003:395.

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67Under the third paragraph of Article 230 EC (now the third paragraph of Article 263 TFEU), the European Central Bank was (and still is) a semi-privileged applicant as it has standing for the purposes of protecting its prerogatives.

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68See also, judgments of 15 May 2008, <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62004CJ0442">Spain v Council</a> (C‑442/04, EU:C:2008:276, paragraph 22), and of 12 December 2019, <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62016TJ0529">Feral v Committee of the Regions</a> (T‑529/16, EU:T:2019:851, paragraph 53).

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69See, to that effect, judgments of 6 July 2006, <i>Commission</i> v <i>Portugal</i> (C‑53/05, EU:C:2006:448 and the case-law cited), and of 18 October 2012, <i>Commission</i> v <i>Czech Republic</i> (C‑37/11, EU:C:2012:640, paragraph 46).

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70Judgment of 27 March 2019, <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62016CJ0620">Commission v Germany</a> (C‑620/16, EU:C:2019:256, paragraph 90).

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71See Article 184 EEC, which became Article 241 EC and is now Article 277 TFEU.

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72See judgment of 6 March 1979, <i>Simmenthal</i> v <i>Commission</i>, 92/78 (EU:C:1979:53, paragraphs 40 and 41). The Court explained, in particular, that that wide interpretation of Article 184 EC derives from the need to provide those persons who are precluded by the second paragraph of Article 173 EC from instituting proceedings directly in respect of general acts with the benefit of a judicial review of them at the time when they are affected by implementing decisions which are of direct and individual concern to them.

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73Judgment of 8 September 2020, <i>Commission and Council</i> v <i>Carreras Sequeros and Others</i> (C‑119/19 P and C‑126/19 P, EU:C:2020:676, paragraph 69 and the case-law cited).

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74See, to that effect, judgment of 3 October 2013, <i>Inuit Tapiriit Kanatami and Others</i> v <i>Parliament and Council</i> (C‑583/11 P, EU:C:2013:625, paragraphs 58 to 61).

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75See judgments of 11 July 1968, <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:61968CJ0006">Zuckerfabrik Watenstedt v Council</a> (6/68, EU:C:1968:43, p. 415); of 5 May 1977, <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:61976CJ0101">Koninklijke Scholten Honig v Council and Commission</a> (101/76, EU:C:1977:70, paragraphs 20 to 22); of 17 June 1980, <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:61979CJ0789">Calpak and Società Emiliana Lavorazione Frutta v Commission</a> (789/79 and 790/79, EU:C:1980:159, paragraph 9); orders of 28 June 2001, <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:61999CO0352">Eridania and Others v Council</a> (C‑352/99 P, EU:C:2001:364, paragraph 42); and of 8 April 2008, <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62007CO0503">Saint-Gobain Glass Deutschland v Commission</a> (C‑503/07 P, EU:C:2008:207, paragraph 71.

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76See, on that point, among many others, judgment of 11 October 2016, <i>Commission</i> v <i>Italy</i> (C‑601/14, EU:C:2016:759, paragraph 33 and the case-law cited).

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77See point 112 et seq. below.

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78See, by way of analogy, judgments of 9 March 1994, <i>TWD Textilwerke Deggendorf</i> (C‑188/92, EU:C:1994:90), and of 15 February 2001, <i>Nachi Europe</i> (C‑239/99, EU:C:2001:101), whereby the Court examines whether the applicant in the main proceedings <i>could have brought</i> an action for annulment before the EU judicature against the act of general application at issue pursuant to the fourth paragraph of Article 263 TFEU. See also, Lenaerts, K., Gutman, K. and Nowak, J.T., <i>EU Procedural Law</i>, Oxford University Press, Oxford, 2023, paragraph 9.03.

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79In particular, the Commission’s proposal was reviewed by the Council’s Horizontal Working Party on Drugs on 29 October 2020. According to the Commission, without being contradicted by Hungary, several Member States, including Hungary, voiced their concerns in the context of that study group, particularly with respect to narcotic drugs policy. The Commission has stated, without being challenged by Hungary, that Hungary did not raise legal or procedural issues during the meeting of that group.

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80While the majority of orders for interim relief take a few months to be adopted, such orders can be adopted within days if the situation so requires (see, for example, order of the Vice-President of the Court of 10 September 2020, <i>Council </i>v<i> Sharpston</i> (C‑423/20 P(R), EU:C:2020:700), which was adopted within five days from the application for interim measures).

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81See, in particular, judgment of 2 April 2020, <i>Commission</i> v <i>Poland, Hungary and Czech Republic (Temporary mechanism for the relocation of applicants for international protection)</i> (C‑715/17, C‑718/17 and C‑719/17, EU:C:2020:257, paragraph 139).

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82See, to that effect, judgment of 12 February 2009, <i>Commission</i> v <i>Greece</i> (C‑45/07, EU:C:2009:81, paragraph 26).

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83Judgment of 7 February 1973, <i>Commission </i>v<i> Italy</i> (39/72, EU:C:1973:13, paragraph 24).

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84See, for example, Article 218(5) TFEU, which enables the Council to authorise provisional application of an agreement pending its formal conclusion. This was the situation in the cases that gave rise to the judgments of 9 April 2024, <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62021CJ0551">Commission v Council (Signing of international agreements)</a> (C‑551/21, EU:C:2024:281), and of 28 April 2015, <i>Commission</i> v <i>Council</i> (C‑28/12, EU:C:2015:282).

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85See, for example, judgment of 27 February 2014, <i>United Kingdom</i> v <i>Council</i> (C‑656/11, EU:C:2014:97). In that case, whereas the Council decision being challenged was adopted on 16 December 2011, the Joint Committee established under the Agreement between the European Community and its Member States, on 31 March 2012, adopted the decision replacing the annex on the coordination of social security schemes, which entered into force on 1 April 2012 (see paragraph 18 of that judgment). See also, judgment of 5 December 2017, <i>Germany</i> v <i>Council</i> (C‑600/14, EU:C:2017:935) in which the Council decision being challenged was adopted on 24 June 2014, that is to say, one day before the opening of the twenty-fifth session of the OTIF Revision Committee, thus leaving the Member State concerned one day to refer the matter to the Court.

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86See decisions adopted under Article 215 TFEU. See, for example, Council Decision (EU) 2015/1523 of 14 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and of Greece (OJ 2015 L 239, p. 146) and Council Decision (EU) 2015/1601 of 22 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece (OJ 2015 L 248, p. 80). See judgment of 6 September 2017, <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62015CJ0643">Slovakia and Hungary v Council</a> (C‑643/15 and C‑647/15, EU:C:2017:631). See also Article 19(1) of Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC (OJ 2016 L 251, p. 1), according to which the Council can mandate Frontex to intervene at external borders, including deploying rapid border intervention teams. See also decisions adopted under Article 122(2) TFEU in case of natural disasters.

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87Judgment of 27 March 2019, <i>Commission</i> v <i>Germany</i> (C‑620/16, EU:C:2019:256, paragraph 89).

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88Ibid., paragraph 69. See also, judgments of 18 October 2012, <i>Commission </i>v<i> Czech Republic</i> (C‑37/11, EU:C:2012:640, paragraph 46), and of 11 October 2016, <i>Commission </i>v<i> Italy</i> (C‑601/14, EU:C:2016:759, paragraph 33).

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89See, by way of analogy, judgment of 8 March 2022, <i>Commission</i> v <i>United Kingdom (Action to counter undervaluation fraud)</i> (C‑213/19, EU:C:2022:167, paragraph 169), in which the Court rejected a Member State defence on the grounds of the effectiveness of the infringement proceedings.

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90Judgment of 15 November 1983, <i>Commission </i>v<i> France</i> (52/83, EU:C:1983:328, paragraph 10). See also Sinaniotis, D., ‘The plea of illegality in EC law’, <i>European Public Law</i>, Vol. 7, Issue 1, p. 111.

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91See, to that effect, judgments of 12 December 1967, <i>Muller-Collignon</i> v <i>Commission</i> (4/67, EU:C:1967:51, p. 372); of 12 October 1978, <i>Commission </i>v<i> Belgium</i>

(156/77, EU:C:1978:180, paragraph 21); and of 23 January 1997, <i>Coen</i> (C‑246/95, EU:C:1997:33, paragraph 21).

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See, to that effect, judgments of 12 October 1978, <i>Commission </i>v<i> Belgium</i> (156/77, EU:C:1978:180, paragraph 21), and of 13 March 1985, <i>Commission </i>v<i> France </i>(93/84, EU:C:1985:114, paragraph 9).

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Judgments of 15 November 1983, <i>Commission </i>v<i> France</i> (52/83, EU:C:1983:328, paragraph 10); of 14 September 1999, <i>Commission </i>v<i> AssiDomän </i><i>Kraft Products and Others</i> (C‑310/97 P, EU:C:1999:407, paragraph 61); and of 15 November 2018, <i>Estonia </i>v <i>Commission</i> (C‑334/17 P, EU:C:2018:914, paragraph 51).

—

C‑620/16, EU:C:2019:256.

—

Ibid., paragraphs 69 to 71 and 89 to 91. See also, Lenaerts, K., Gutman, K. and Nowak, J.T., <i>EU Procedural Law</i>, Oxford University Press, Oxford, 2023, paragraph 9.12.

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See point 85 above.

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Judgment of 27 March 2019, <i>Commission</i> v <i>Germany</i> (C‑620/16 EU:C:2019:256, paragraph 89).

—

See judgment of 7 October 2014, <i>Germany</i> v <i>Council</i> (C‑399/12, EU:C:2014:2258).

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Judgment of 7 October 2014, <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62012CJ0399">Germany v Council</a> (C‑399/12, EU:C:2014:2258, paragraph 50).

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See points 63 to 65 above.

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Judgment of 12 February 2009, <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62007CJ0045">Commission v Greece</a> (C‑45/07, EU:C:2009:81, paragraphs 30 and 31); see also, to that effect, Opinion 2/91 <i>(ILO Convention No 170)</i> of 19 March 1993 (EU:C:1993:106, paragraph 5).

—

Judgments of 15 June 1994, <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:61992CJ0137">Commission v BASF and Others</a> (C‑137/92 P, EU:C:1994:247, paragraph 50); of 8 July 1999, <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:61992CJ0245">Chemie Linz v Commission</a> (C‑245/92 P, EU:C:1999:363, paragraph 95); and of 5 October 2004, <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62001CJ0475">Commission v Greece</a> (C‑475/01, EU:C:2004:585, paragraphs 19 and 20). For instance, procedural defects do not call into question the very existence of that decision (judgment of 18 October 2012, <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62011CJ0037">Commission v Czech Republic</a> (C‑37/11, EU:C:2012:640, paragraph 50).

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Judgment of 11 October 2016, <a href="https://opil.ouplaw.com/display/10.1093/law-mpeipro/e3111.013.3111/law-mpeipro-e3111">Commission v Italy (C601/14, EU:C:2016:759, paragraphs 33 and 34</a>).

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Judgment of 25 October 2017, <i>Commission</i> v <i>Council (WRC</i>‑<i>15)</i> (C‑687/15, EU:C:2017:803, paragraph 49), and Opinion 1/15 <i>(EU-Canada PNR Agreement)</i> of 26 July 2017 (EU:C:2017:592, paragraph 71).

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Judgment of 25 October 2017, <i>Commission</i> v <i>Council (WRC</i>‑<i>15)</i> (C‑687/15, EU:C:2017:803, paragraph 52).

—

Judgments of 14 June 2016, <i>Commission </i>v<i> McBride and Others</i> (C‑361/14 P, EU:C:2016:434, paragraph 48), and of 25 October 2017, <i>Commission</i> v <i>Council (WRC</i>‑<i>15)</i> (C‑687/15, EU:C:2017:803, paragraphs 52 and 55).

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Judgment of 18 October 2012<a href="https://opil.ouplaw.com/display/10.1093/law-mpeipro/e3111.013.3111/law-mpeipro-e3111"> (C37/11, EU:C:2012:640, paragraph 50).</a>

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Judgment of 5 December 2017 (C‑600/14, EU:C:2017:935, paragraph 89).

—

Ibid., paragraph 90.

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Judgments of 5 October 2004, <i>Commission </i>v<i> Greece</i> (C‑475/01, EU:C:2004:585, paragraph 18), and of 10 September 2019, <i>HTTS </i>v<i> Council</i> (C‑123/18 P, EU:C:2019:694, paragraph 100).

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Judgment of 21 September 1989, <i>Hoechst </i>v<i> Commission</i> (46/87 and 227/88, EU:C:1989:337, paragraph 64).

—

See Article 3 of Decision 2021/3.

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Judgments of 1 October 2009, <i>Commission</i> v <i>Council</i> (C‑370/07, EU:C:2009:590, paragraph 44), and of 27 March 2019, <i>Commission</i> v <i>Germany</i> (C‑620/16, EU:C:2019:256, paragraphs 78 and 82).

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As the Court emphasised in its judgment of 27 March 2019, <i>Commission</i> v <i>Germany</i> (C‑620/16, EU:C:2019:256, paragraph 85), in a European Union based on the rule of law, acts of the institutions enjoy a presumption of lawfulness. The Court added that, if the Council has adopted a decision, Member States are bound to comply with and implement it.

—

Ibid., paragraphs 47 and 50.

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Judgment of the Court of 20 April 2010. <i>Commission </i>v<i> Sweden</i> (C‑246/07, EU:C:2010:203, paragraph 73 and the case-law cited).

—

Judgment of 27 March 2019, <i>Commission</i> v <i>Germany</i> (C‑620/16, EU:C:2019:256, paragraph 94).

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Judgment of 20 April 2010, <i>Commission </i>v<i> Sweden</i> (C‑246/07, EU:C:2010:203, paragraph 71).

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C‑663/18, EU:C:2020:938.

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C‑600/14, EU:C:2017:935.

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See, to that effect, judgment of 5 December 2017, <i>Germany</i> v <i>Council</i> (C‑600/14, EU:C:2017:935, paragraph 105).

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Judgment of 7 September 2023, <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62022CJ0015">Finanzamt G (Aid development projects)</a> (C‑15/22, EU:C:2023:636, paragraph 57).

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Klamert, M., ‘Article 4 TEU’, in Kellerbauer, M., Klamert, M. and Tomkin, J. (eds), footnote 64, op. cit., p. 46 .

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Kahl, W., ‘Artikel 4 EUV’, in Calliess, C. and Ruffert, M. (eds), <i>EUV/AEUV</i>, 5th ed., C.H. Beck, Munich, 2016, point 35.

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See judgment of 12 February 2009, <i>Commission</i> v <i>Greece</i> (C‑45/07, EU:C:2009:81). It has also been argued that European remedies appear not only as litigation tools but also the path via which loyalty develops and ultimately grants legitimacy to the EU legal order (see Sarmiento, D., ‘National voice and European loyalty. Member State autonomy, European remedies and constitutional pluralism in EU law’, in Micklitz, H. and de Witte, B., <i>The European Court of Justice and the Autonomy of the Member States</i>, Intersentia, 2012, p. 345).

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See judgments of 5 October 2004, <i>Pfeiffer and Others</i> (C‑397/01 to C‑403/01, EU:C:2004:584), and of 5 March 1996, <i>Brasserie du pêcheur and Factortame</i> (C‑46/93 and C‑48/93, EU:C:1996:79). Moreover, it has been stated that Article 288 TFEU (which is the subject of the first complaint in the present case) is <i>lex specialis</i> to Article 4(3) TEU (see, Klamert, M., ‘Article 4 TEU’, in Kellerbauer, M., Klamert, M. and Tomkin, J. (eds), footnote 64, op. cit., p. 48).

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Neframi, E., ‘The duty of loyalty: Rethinking its scope through its application in the field of EU external relations’, <i>Common Market Law Review</i>, Vol. 47, 2010, p. 324.

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See, for example, judgment of 13 October 1993, <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:61992CJ0378">Commission v Spain</a> (C‑378/92, EU:C:1993:843); of 9 November 1999, <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:61997CJ0365">Commission v Italy</a> (C‑365/97, EU:C:1999:544); and of 7 October 2004, <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62003CJ0189">Commission v Netherlands</a> (C‑189/03, EU:C:2004:597).

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Judgment of 20 April 2010, <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62007CJ0246">Commission v Sweden</a> (C‑246/07, EU:C:2010:203).

—

Ibid., paragraph 73 and the case-law cited.

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Ibid, paragraph 75, and judgment of 5 May 1981, <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:61979CJ0804">Commission v United Kingdom</a> (804/79, EU:C:1981:93, paragraph 28).

132See, to that effect, judgment of 20 April 2010, <i>Commission</i> v <i>Sweden</i> (C‑246/07, EU:C:2010:203, paragraphs 74 and 75).

133Ibid.

134Judgments of 2 June 2005, <i>Commission </i>v <i>Luxembourg </i>(C‑266/03, EU:C:2005:341, paragraph 58); of 14 July 2005, <i>Commission</i> v <i>Germany</i> (C‑433/03, EU:C:2005:462, paragraph 64); and of 20 April 2010, <i>Commission</i> v <i>Sweden</i> (C‑246/07, EU:C:2010:203, paragraph 71).

135Opinion of Advocate General Mazák in <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62007CC0203">Greece v Commission</a> (C‑203/07 P, EU:C:2008:270, point 83).

136Eckes, C., ‘Mutual trust and the future of fundamental rights protection in the EU’s compound legal order, in Bhuta, N., <i>Human Rights in Transition</i>, Oxford University Press, 2024, p. 140. The author’s proposition is that, while sincere cooperation governs the (vertical) relationship between the Member States and the EU institutions, the principle of mutual trust concerns the (horizontal) relationship between Member States. The two principles are therefore interconnected.

137Judgment of 30 May 2006 (C‑459/03, EU:C:2006:345, paragraphs 179 to 181).

138See, by way of analogy, the obligation to cooperate in Title V of the TFEU, where cooperation between Member States’ authorities is a specific expression of mutual trust.

139Judgment of 12 February 2009 (C‑45/07, EU:C:2009:81).

140Ibid, paragraph 25.

141Judgment of 14 March 1973, <i>Westzucker</i> (57/72, EU:C:1973:30, paragraph 17).

142Judgment of 27 March 2019 (C‑620/16, EU:C:2019:256, paragraphs 95 and 100).

143Ibid, paragraph 98.

144Judgment of 17 December 2020, <i>Commission</i> v <i>Slovenia (ECB archives)</i> (C‑316/19, EU:C:2020:1030, paragraph 124).

145Ibid., paragraph 125.

146See Statements following the voting on the WHO scheduling recommendations on cannabis and cannabis-related substances, referred to by the Commission: <a href="https://www.unodc.org/documents/commissions/CND/CND_Sessions/CND_63Reconvened/ECN72020_CRP24_V2007524.pdf">https://www.unodc.org/documents/commissions/CND/CND_Sessions/CND_63Reconvened/ECN72020_CRP24_V2007524.pdf</a>.

147That requirement may be inferred from the Court’s case-law whereby, in proceedings for failure to fulfil obligations, it is for the Commission to prove the existence of the alleged infringement and to provide the Court with the information necessary for it to determine whether the infringement is made out, and in so doing the Commission may not rely on any presumption for that purpose (see, to that effect, judgments of 12 May 2005, <i>Commission </i>v <i>Belgium</i>, C‑287/03, EU:C:2005:282, paragraph 27 and the case-law cited, and of 19 May 2011, <i>Commission</i> v <i>Malta</i>, C‑376/09, EU:C:2011:320, paragraph 32 and the case-law cited).

148The Commission adopted a proposal on 16 October 2020 and the Council voted on that proposal on 23 November 2020.

149See point 99 above.