Principles and practices of EU external representation - Asser Institute

CLEER WORKING PAPERS 2012/5Casolarithat an inter-institutional arrangement regarding the preparation for FAO meetings,concluded between the Council and the Commission to set up a coordinationprocedure with the Member States, represented a means to fulfill the dutyof co-operation between the Community and its Member States within theFAO. 21 Consequently, the Community institutions had to respect its content indefining the EC position. 22In its most recent case-law, the Court of Justice appears to take a similarapproach in assessing the implementation by Member States of mixed agreementsin the international arena, and, more generally, in defining the constraintson the exercise by the Member States of their external action in domains ofshared competence. , Such case-law paved the way for a global reconsiderationof the shape of co-operation duties, which takes into account, together withthe ‘competence-based’ line of reasoning of the early cases, some institutionalfacets directly linked to the participation in international agreements.The first case to be mentioned is MOX Plant. As already highlighted, theimportance of this judgment lies first in its confirmation of the fact that the dutyof co-operation between EU institutions and Member States directly stems fromthe principle of loyal co-operation, as codified by the founding Treaties. 23 Butwhat is also interesting is that the Court suggests that co-operation duties mayalso take the form of substantive obligations binding the Member States.In the judgment, the Court held that Ireland had failed to comply with itsduties of co-operation. In this respect, the Court identified two main breachesof the principle of sincere co-operation, flowing from different provisions of thefounding Treaties. The first one, which is directly linked to Article 10 TEC (nowArticle 4(3) TEU), concerns the decision by Ireland to bring proceedings underthe dispute settlement system set out in the United Nations Convention on theLaw of the Sea (UNCLOS), without having first informed and consulted thecompetent EU institutions. Here the Court merely repeated its early jurisprudence,by conceiving the principle of loyal co-operation in terms of source ofprocedural obligations imposing consultation duties upon the Member States. 24The second breach is exclusively focused on the recourse by the Member Stateto the UNCLOS dispute settlement system. What is worth mentioning in thisrespect is the fact that, according to the Court, Ireland violated ‘a specific expressionof Member States’ more general duty of loyalty resulting from Article21 Ibid. para. 49.22 Ibid. para. 50. See also C. Flaesch-Mougin, ‘Les relations avec les organisations internationaleset la participation à celles-ci’ in J. V. Louis and M. Dony (eds.), Commentaire J. MegretLe droit de la CE et de l’Union européenne – Relations extérieures, Bruxelles : Editions del’Université de Bruxelles, 2005, 337, at 425-426, and I. Govaere, J. Capiau and A. Vermeersch,‘In-Between Seats: The Participation of the European Union in International Organizations’, 9European Foreign Affairs Review (2004) 155, at 165. For other illustrations of co-operation dutiesbetween the Member States and the EU institutions within international organizations, see J.Heliskoski, ‘The ‘Duty of Cooperation’ Between the European Community and Its Member StatesWithin the World Trade Organization’, 7 Finnish Yearbook of International Law (1996) 59.23 See supra, section 1.24 Case C-459/03 Commission of the European Communities v Ireland, supra note 9, paras.172-182.16