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

More documents

Recommendations

Info

CLEER WORKING PAPERS 2012/5 Van Elsuwege and Merket common EU rules exist, such as in the PFOS case, independent Member State action is only excluded under two conditions. First, there has to be a ‘concerted Union strategy’. Significantly, Member States always have a duty to inform the Union institutions so that a Union strategy can be adopted. Moreover, the postponement of international action can qualify as a Union strategy. Second, individual Member State action is excluded when it is liable to have negative consequences for the Union. This was obviously the case in Commission v. Sweden, taking into account the possible adoption of a rule of international law that would be binding on the Union. 60 This also explains why the Court could not accept the argument that Article 193 TFEU (ex Article 176 TEC) allows Member States to take more stringent national measures to protect the environment. 61 Contrary to a national measure, Sweden’s action could impose an internationally binding rule upon the EU and would thus compromise the exercise of Union competences. 62 Hence, the duty of loyalty can be regarded as a multifaceted legal instrument ensuring the unity of the EU’s international representation while respecting the internal division of competences. In a first step, it entails an obligation for the Member States to inform the EU institutions so that a concerted Union strategy can be contemplated. Such a duty of prior consultation has a preventive objective, i.e. to avoid future inconsistencies between Member State action and EU rules. For this reason, Member States also have to inform and consult the relevant institutions prior to instituting dispute-settlement proceedings. 63 In a further step, when individual Member State action would indeed negatively affect the Union’s tasks and objectives, the duty of loyalty effectively turns into an obligation of result. This de facto limitation of the Member States’ sovereign powers may be regarded as a natural consequence in a constitutional order where they accepted to ‘facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives’. 64 From this perspective, the, at first sight, rather ambiguous conclusion of the Court in the Inland Waterways cases is more comprehensible. In those cases, the ECJ left some flexibility regarding the concrete duties for the Member States flowing from the principle of loyalty: ‘The adoption of a decision authorising the Commission to negotiate a multilateral agreement on behalf of the Community marks the start of a concerted Community action at international level and requires for that purpose, if not a duty of abstention on the part of the Member States, at the very least a duty of close cooperation between the latter and the Community institutions in order to facilitate the achievement 60 Cf. supra note 54. 61 Case C-246/07, Commission v. Sweden [2010] ECR I-3317, para. 102. 62 Van Elsuwege, op. cit. note 53, p. 312. 63 Case C-459/03, Commission v Ireland [2006] ECR -14635, para. 179. 64 Art. 4(3) TEU. 50
The role of the Court of Justice in ensuring the unity of the EU’s external representation of the Community tasks and to ensure the coherence and consistency of the action and its international representation.’ 65 This crucial paragraph illustrates very clearly the flexible legal nature of the loyalty principle, which implies a best efforts obligation – a duty of information and consultation – that may turn into an obligation of result – a duty of abstention – if required to ensure the coherence and consistency of the EU’s international action and representation. 4.2. Obligations for the EU Institutions In Zwartveld and Others the Court made clear that the principle of sincere cooperation ‘not only requires the Member States to take all the measures necessary to guarantee the application and effectiveness of Community law […] but also imposes on Member States and the Community institutions mutual duties of sincere cooperation’. 66 It subsequently clarified that this also applies in areas of exclusive powers 67 and to the dialogue between institutions. 68 Already in its AETR judgment, the Court observed that it was for the two institutions whose powers were directly concerned, namely the Commission and the Council, ‘to reach agreement on the appropriate methods of cooperation with a view to ensuring most effectively the defence of the interests of the Community’. 69 To give another example, in the context of the EU’s participation to the Food and Agricultural Organisation (FAO), the Council and the Commission entered into a binding inter-institutional arrangement to decide who, of the Union or the Member States, should act at FAO meetings. After the Commission contested a Council decision granting the Member States the right to vote on an issue falling within the EU’s exclusive competence as regards conservation of the biological resources of the sea, the Court confirmed the conclusion of the inter-institutional arrangement as an expression of the duty of sincere cooperation and recognised its legally binding obligations in light of the requirement of unity in the EU’s international cooperation. 70 Whereas the FAO arrangement essentially concerned cooperation between the Union and the Member States, it seems logical that also classical interinstitutional cooperation agreements on, for instance, information exchange 71 can be considered as expressions of the loyalty principle. Of course, the horizontal duty of sincere cooperation does not seem to go as far as to suggest 65 Case C-266/03, Commission v Luxemburg [2005] ECR I-4805, para. 60 and Case C-433/03, Commission v Germany [2005] ECR I-6985, para. 66. 66 Case C-2/88 Imm., Zwartveld and Others [1990] ECR I-3367, para. 17. 67 Case C-45/07, Commission v Greece [2009] ECR I-701, para. 25. 68 Case C-65/93 European Parliament v Council [1995] ECR I-643, para. 23. 69 Case 22/70, Commission v Council, [1971] ECR 263, para. 87. 70 ECJ, Case C-25/94, Commission v Council [1996] ECR I-1469. 71 An example is the inter-institutional agreement between the European Parliament and the Council concerning access by the European Parliament to sensitive information of the Council in the field of security and defence policy, OJ 2002 C 298/1. 51 CLEER WORKING PAPERS 2012/5
Page 1: Founded in 2008, the Centre for the
Page 4 and 5: CLEER WORKING PAPERS 2012/5 Gosalbo
Page 10 and 11: CLEER WORKING PAPERS 2012/5 Blockma
Page 12 and 13: CLEER WORKING PAPERS 2012/5 Blockma
Page 14 and 15: CLEER WORKING PAPERS 2012/5 Casolar
Page 40 and 41: CLEER WORKING PAPERS 2012/5 Van Els
Page 62 and 63: CLEER WORKING PAPERS 2012/5 Van Voo
Page 86 and 87: CLEER WORKING PAPERS 2012/5 McArdle
Page 102 and 103:
CLEER WORKING PAPERS 2012/5 McArdle
Page 104 and 105:
CLEER WORKING PAPERS 2012/5 McArdle
Page 106 and 107:
CLEER WORKING PAPERS 2012/5 Eckes w
Page 108 and 109:
CLEER WORKING PAPERS 2012/5 Eckes d
Page 110 and 111:
CLEER WORKING PAPERS 2012/5 Eckes t
Page 112 and 113:
CLEER WORKING PAPERS 2012/5 Eckes a
Page 114 and 115:
CLEER WORKING PAPERS 2012/5 Eckes E
Page 116 and 117:
CLEER WORKING PAPERS 2012/5 Eckes w
Page 118 and 119:
CLEER WORKING PAPERS 2012/5 Eckes P
Page 120 and 121:
Page 122 and 123:
CLEER WORKING PAPERS 2012/5 Eckes i
Page 124 and 125:
Page 126 and 127:
Page 128 and 129:
Page 130 and 131:
CLEER WORKING PAPERS 2012/5 Wouters
Page 132 and 133:
Page 134 and 135:
Page 136 and 137:
Page 138 and 139:
Page 140 and 141:
Page 142 and 143:
Page 144 and 145:
Page 146:
show all

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

Create successful ePaper yourself

Delete template?

Save as template?