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

CLEER WORKING PAPERS 2012/5
Van Elsuwege and Merket
referred for the first time to the unity of international representation as a ‘principle’
rather than as a ‘requirement’. 35 However, the legal foundation and nature
of this principle remain somewhat obscure and it seems difficult to regard it as
a ‘self-contained obligation’ that is disconnected from the general objectives of
the EU’s external action. 36
Intuitively, there appears to be an obvious link between the duties of cooperation
and consistency, as they are both expressions of EU solidarity that
seem essential to ensure the unity of the EU’s international representation.
Their interrelation is also clear from the wording of Article 4(3) TEU that to a
certain extent mirrors the positive and negative obligations associated with the
broad interpretation of the duty of consistency. It encompasses the negative
obligation to avoid contradictions (the Member States shall ‘refrain from any
measure which could jeopardise the attainment of the Union’s objectives’) as
well as the positive obligation to build connections and enhance compatibility
(the Union and the Member States shall ‘assist each other in carrying out tasks
which flow from the Treaties’; the Member States ‘shall take any appropriate
measure, general or particular, to ensure fulfilment of the obligations arising
out of the Treaties’; and ‘shall facilitate the achievement of the Union’s tasks’).
The addition of the revised consistency provisions to the Court’s jurisdiction
may be instrumental to make this link more explicit. In this regard, it has been
suggested that the duty of consistency could mean for the horizontal relationship
between the EU institutions and policies, what the duty of cooperation has
meant for the vertical relationship between the European Community (now
Union) and the Member States. 37 However, this does not imply that the relationship
between loyalty and consistency can be reduced to a classical distinction
between the vertical and horizontal division of competences. Indeed, the duty
of cooperation is not limited to the relationship between the Union and the
Member States and applies in a similar fashion to inter-institutional cooperation.
This was already clear from the Court’s case-law 38 and is now made explicit in
Article 13 TEU (cf. supra). In the same sense, also the duty of consistency is
of general application. 39
An alternative interpretation of the link between the duties of cooperation
and consistency is that the former governs the relationship between actors,
whereas the latter’s focus is on policy areas and initiatives. Both the actorcentred
approach of the duty of cooperation and the policy-centred approach
of the duty of consistency then apply to the so-called horizontal (between actors
and policies at EU level) and vertical relationship (between actors and policies
of the EU and the Member States).
35 Case C-246/07, Commission v Sweden [2010] ECR I-03317, para. 104.
36 A. Thies, ‘The PFOS Decision of the Court of Justice of the EU: the Member States’ Obligation
to Refrain from Unilateral External Action in Areas of Shared Competences’ in J. Díez-Hochleitner
et al. (eds.),‘Recent Trends in the Case Law of the Court of Justice of the EU (2008-2011),
Madrid: Kluwer, 2012, forthcoming.
37 C. Hillion and R. A. Wessel, op. cit. note 5; C. Hillion, op.cit. supra note 32, at 31-32.
38 Case C-204/86, op. cit. note 14.
39 C. Hillion, ‘Cohérence et action extérieure de l’Union’, in E. Neframi, (ed.), Objectifs et compétences
de l’Union européenne, Paris : Editions Bruylant /Larcier, 2012, forthcoming.
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