Principles and practices of EU external representation - TMC Asser ...

The principle of loyal co-operation: A ‘master key’ for EU external representation?
as well as an exercise of competences aiming at ensuring the unity of external
representation.
Whilst mentioning the requirement of the unity in external representation
and the international responsibility towards third parties of the Union and its
Member States, 17 this case-law was however careful to focus its attention on
the internal implications stemming from the application of the co-operation duties.
Having identified the existence of such duties, it proceeded to examine
their extent only with a view to recognizing the Court’s jurisdiction to globally
assess the implementation of the international agreements at issue, even when
they fell outside the scope of application of EU law or created rights and obligations
in a field not completely covered by EU legislation. 18
In general terms, this (‘competence-based’) approach deserves attention
since it leads to a less fragmented implementation of international obligations
by the EU Member States. The Court’s line of reasoning implies, indeed, the
incorporation of the mixed agreements into the EU legal order, and imposes
thus a centralized mechanism of enforcement of their obligations. 19 However,
the Court does not appear to provide a definitive answer to the question of the
external dimension of co-operation duties.
In fact, this question was only raised in the FAO case, 20 decided in 1996,
where the Court was asked to directly assess the impact of co-operation duties
on the implementation of a mixed agreement at international level. In particular,
the case concerned the exercise by the European Community (EC) institutions
of the decision-making power resulting from the participation in the activities
of the Food and Agriculture Organization (FAO). In its judgment, the Court held
17 Case C-13/00 Commission of the European Communities v Ireland [2002] ECR I-02943,
para. 15; Case C-239/03 Commission of the European Communities v French Republic [2004]
ECR I-09325, paras. 26-29.
18 See, for instance, Joined Cases C-300/98 and C-392/98 Parfums Christian Dior SA v TUK
Consultancy BV and Assco Gerüste GmbH and Rob van Dijk v Wilhelm Layher GmbH & Co. KG
and Layher BV [2000] ECR I-11307, paras. 36-40; Case C-13/00 Commission of the European
Communities v Ireland, supra note 17, paras. 13-19; and Case C-239/03 Commission of the European
Communities v French Republic, supra note 17, para. 29. For a more thorough analysis
of this case-law, see L.S. Rossi, ‘Conclusione di accordi internazionali e coerenza del sistema.
L’esclusività della competenza comunitaria’, 90 Rivista di diritto internazionale (2007) 1008; F.
Ippolito, ‘Giurisdizione comunitaria e accordi misti: dal criterio della competenza alla leale cooperazione’,
4 Studi sull’integrazione europea (2009) 657; E. Neframi, supra note 4, at 331.
19 On this subject-matter, see F. Casolari, L’incorporazione del diritto internazionale
nell’ordinamento dell’Unione europea, Milan: Giuffrè Editore, 2008, at 216. For E. Neframi, ‘Mixed
Agreements as a Source of European Union Law’ in E. Cannizzaro, P. Palchetti, R. A. Wessel
(eds.), supra note 15, 325, at 345, ‘[a] mixed agreement is ... a source of EU law because only
uniformity in its implementation can ensure unity in international representation’. According to this
scholar, thus, the unity in international representation constitutes a pre-requisite of the incorporation
of mixed agreements into EU law. In reality, such a requirement has been invoked by the
Court for assimilating the position of mixed agreements to that of purely EU agreements, and for
considering the former wholly part of the EU legal order. In effect, it shall be recalled that, from a
formal point of view, mixed agreements should be considered part of the EU legal order, as their
provisions fall within the competence of the Union (Case C-13/00 Commission of the European
Communities v Ireland, supra note 17, para. 14). In this respect, their incorporation is imposed
by Article 216(2) TFEU.
20 Case C-25/94 Commission of the European Communities v Council of the European Union
[1996] ECR I-01469.
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