C-264/09 Commission v Slovakia: let bygones be bygones (yes indeed)

In its judgment of 15 September 2011, the Court of Justice followed the views expressed by GA  in his opinion (http://bxl-law.blogspot.com/2011/03/c-26409-commission-v-slovakia-let.html) and dismissed the action of the Commission.

On Article 307 TEC (now Article 351 TFEU)

Just like the GA Jääskinen, the primary issue for the Court was whether the agreement in issue should prevail over Directive 2003/54/EC (concerning common rules for the internal market in electricity) by way of Article 307 TEC, or not. Unlike the GA Jääskinen, the Court addressed the issue more comprehensively:
First, the Court recalled its general case-law on the issue (812/79 Burgoa: "the purpose of the first paragraph of Article 307 EC is to make clear, in accordance with the principles of international law, as set out in, inter alia, Article 30(4)(b) of the Vienna Convention on the Law of Treaties of 23 May 1969, that the application of the EC Treaty does not affect the duty of the Member State concerned to respect the rights of non-member countries under a prior agreement and to perform its obligations thereunder", C‑158/91 Levy: "in order to determine whether a Community rule may be deprived of effect by an earlier international agreement, it is necessary to examine whether that agreement imposes on the Member State concerned obligations the performance of which may still be required by non-member countries which are parties to it").
Second, the Court recalled the obligation of the Member States to try to eliminate incompatibilities with the EU law (reference is made to the judgment in C‑62/98 Commission v Portugal: "although, in the context of Article 307 EC, the Member States have a choice as to the appropriate steps to be taken to eliminate any incompatibilities existing between a pre-Community convention and the EC Treaty, if a Member State encounters difficulties which make adjustment of an agreement impossible, an obligation to denounce that agreement cannot be excluded").
Finally, the Court recognized that the incompatibility at issue is simply something that Slovakia cannot do anything about (see paragraphs 46 to 50 of the judgment).
Accordingly, the preferential access established by the agreement concerned prevails of the Directive (by way of Article 307.1 TEC).