Principles and practices of EU external representation - Asser Institute

CLEER WORKING PAPERS 2012/5Eckesise representation in an international organisation. The Council and theCommission had concluded an inter-institutional agreement that regulated theexercise of voting rights within FAO. In the particular case, the agreement wasfound to be binding on the EU institutions. It is important to notice that the Courtdeduced the binding force of this agreement from the intention of the partiesand from the duty of sincere cooperation. 108 It ruled that from the specific termsof the agreement that the parties had intended to make the agreement a bindingcommitment and that it was a specific expression and fulfilment of the dutyof cooperation. For these reasons, the Court also enforced the arrangement.The duty of cooperation could even require the institutions to enter into a bindingarrangement on the exercise of voting rights in the Committee of Ministersor in the Parliamentary Assembly when it is dealing with issues related to theEU’s position under the Convention. 109 This might also explain the fear of non-EU Member States that the EU and its Member States might resort to blockvoting. As discussed above, the rules of the Committee of Ministers wereadopted to ensure the continuous effective functioning even if the MemberStates are under an EU law obligation to coordinate their votes.On a final note, it is important to stress that any comments about the specificscope of the duty of sincere cooperation of the Member States after theEU’s accession to the ECHR cannot be more than speculation. The Court’sinterpretation of the content of the duty of cooperation has very much beendependent on the context and circumstances of the individual case. 110 However,what is certain is that the EU’s accession to the ECHR is susceptible ofentailing different and further-going duties for the Member States under EU lawthan the Member States’ own participation entails under international law.3.3. Implications for the Union and its Court of JusticeRather than making the EU more of a ‘human rights organization’ 111 comparableto the ECHR, accession will place the EU in a position similar to the otherContracting Parties, which are all states. Hence, the EU is accepted to join onequal footing with all state parties an international instrument as important inreach and influence as the Convention. This in itself is a success for the EU,confirming – as do many interactions with international organisations and thirdcountries – its particularity as an integration organisation.Pre-accession the EU is not itself directly bound by the Convention, eitherunder international law or under EU law. However, not only has the Court ofJustice given great consideration to the Convention, but also the EU Treaties108 Commission v Council (FAO), supra note 106, paras. 49-50. See on the relevance onintention: T. Beukers, Law, Practice and Convention in the Constitution of the European Union,doctoral thesis, defended on 21 April 2011, at 212 and 242.109 With regard to the supervision of the execution of judgments of the ECtHR this might ofcourse be less relevant.110 C. Hillion, ‘Mixity and Coherence in EU External Relations: The Significance of the “Dutyof Cooperation”’, 2 CLEER Working Papers (2009), p. 8 et seq.111 A. Rosas, ‘Is the EU a Human Rights Organisation?’, 1 CLEER Working Papers (2011).120