56In the absence of a provision of the FEU Treaty expressly permitting it to do so, a Member State cannot, therefore, properly plead the unlawfulness of a directive addressed to it as a defence in an action for a declaration that it has failed to fulfil its obligations arising out of its failure to implement that directive. The position could be different only if the act in question contained such particularly serious and manifest defects that it could be categorised as a non-existent act, defects which the Grand Duchy of Luxembourg does not claim exist (see judgment in Commission v Austria, C‑189/09, EU:C:2010:455, paragraphs 15 to 17 and the case-law cited).
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