Principles and practices of EU external representation - Asser Institute

The principle of loyal co-operation: A ‘master key’ for EU external representation?On the one hand, the principle of loyal co-operation has gained a recurrentpresence in the Court’s terminology concerning the external relations of theUnion (also in cases that do not address issues of mixity). In fact, a considerablenumber of recent judgments of the Court of Justice regarded cases wherethere was some problem concerning the respect of loyalty duties, and wherespecific questions on the implications stemming from that principle have arisen.The details of such decisions will be spelled out later. 8 At this point, suffice itto recall the MOX Plant ruling, 9 where the Court ultimately clarified that theco-operation duties between the Member States and the EU institutions inexternal relations represent a specific application of the loyalty clause set outin the founding Treaties (in Article 192 TEAEC and Article 10 TEC, respectively). 10Symbolically and substantively, such ruling marks a major advance in the judicialdiscourse on loyal co-operation. Indeed, despite early cases which maysuggest otherwise, the Court has made it clear that the co-operation dutiescannot represent self-standing commitments flowing from the ‘requirement’ ofunity in the international representation of the Union, the former being just amanifestation of loyal co-operation. 11On the other hand, the Lisbon Treaty has reshaped the pre-existing loyaltyclause, and introduced three major innovations in this respect. First, it has incorporatedthe clause of sincere co-operation into the new common platformof EU policies (Article 4(3) TEU). Secondly, it has codified the fact that thisclause constitutes a (general) principle of EU law. As a result, the duty of loyalco-operation represents today a general principle of the EU legal order, whichcovers, inter alia, all the branches of the EU external action (including the CommonForeign Security Policy). 12 Third, the Lisbon Treaty has emphasized themutual nature of the principle: indeed, according to its new formulation, loyalco-operation shall be exercised by the Member States and the EU institutions‘in full mutual respect’.In the light of the foregoing, this paper starts by giving a general overviewof the recent case-law concerning the joint representation of the Union and itsMember States at international level, such a context being, as already men-8 See sections 2, 3 and 4, infra.9 Case C-459/03 Commission of the European Communities v Ireland [2006] ECR I-04635.10 Ibid. paras. 174-175.11 See in this respect the Opinion of Advocate General Maduro in Commission v. Sweden,where he stresses that ‘[t]he unity of international representation of the Community andits Member States does not have an independent value; it is merely an expression of the dutyof loyal cooperation under Art. 10 EC’. Case C-246/07 European Commission v Kingdom ofSweden [2010] ECR I-03317; Opinion of Advocate General Poiares Maduro, 1 October 2009,para. 37. See also C. Hillion, ‘Mixity and Coherence in EU External Relations: The Significanceof the “Duty of Cooperation”’, CLEER Working Paper 2009/2, (last visited 25 July 2012), at 5, and M. Cremona,‘Case C-246/07, Commission v. Sweden (PFOS), Judgment of the Court of Justice (Grand Chamber)of 20 April 2010’, 48 Common Market Law Review (2011) 1639, at 1652.12 C. Hillion, ‘Cohérence et action extérieure de l’Union européenne’, EUI Working Papers Law2012/14, (last visited 30 July 2012), at 7. Co-operation duties between the Union and itsMember States in external relations are (directly and indirectly) stressed in many provisions of theEU Treaties: see, for instance, Art. 24(3), 32, 34, 35 TEU, and Art. 221 TFEU.13CLEER WORKING PAPERS 2012/5