Principles and practices of EU external representation - Asser Institute

CLEER WORKING PAPERS 2012/5Casolarithis respect. This notwithstanding, the Court does not seem prepared to attributeto this principle the role of a veritable ‘master key’ for the EU representation.In particular, while the Member States’ duties stemming from that principle areincreasingly conceived by the Court mainly in terms of abstention obligations,the corresponding duties of the EU institutions still remain unclear. Such anapproach is of course consistent with the general ‘Euro-centric’ attitude of theEuropean Court of Justice vis-à-vis international law. 113 Furthermore, it mayfacilitate the coherence of the external action of the Union: this is particularlythe case in the implementation of mixed agreements 114 or when the accessionof the Union to an international agreement/organization is precluded and theobligations flowing from the latter may influence (or undermine) EU law. Also,the major emphasis on the Member States’ loyalty duties might express thecircumstance, highlighted by von Bogdandy, that, since ‘the European legalorder ultimately rests on the voluntary obedience of its Member States, andtherefore on their loyalty, the principle of loyalty [as applicable to the EU States]has a key role in generating solutions to open questions ...’. 115On the other hand, however, the line of reasoning of the Court shows somestructural limitations, which deserve to be highlighted. First, the Court’s reluctanceto clarify the loyalty duties of the EU institutions appears not perfectlyconsistent with the new formulation of the principle of loyal cooperation by EUprimary law, which expressly makes reference to its mutual nature. In particular,such a judicial restraint may prevent the reaching of a fair balancing betweenthe position of the EU institutions and that of the Member States and thus leadto political tensions that risk undermining the mutual trust required by the LisbonTreaty. Secondly, a similar risk is found, mutatis mutandis, in the recent caselawconcerning the Member States’ position in fields of joint representation,which engenders the idea that States cannot intervene on the internationalscene even in cases where the EU indefinitely postpones its decision to act. 116Thirdly, such case-law also raises the issue of a clear distinction between theloyalty duties falling within domains of shared or exclusive competences. It isthus hoped that the Court’s case-law will further clarify the role that the principleof loyal cooperation may play to ensure a more effective standing of theEU in the multilateral arena, taking into account, together with the multifacetedsome illustrations concerning the external dimension of the EU Area of freedom, security and justice,see F. Casolari, ‘EU Member States’ international engagements in AFSJ domain: Betweensubordination, complementarity and incorporation’, in C. Flaesch-Mougin and L.S. Rossi (eds.),‘La dimension extérieure de l’Espace de Liberté, Sécurité et Justice’, Bruxelles: Bruylant, 2012,forthcoming.113 See J. Wouters, A. Nollkaemper and E. de Wet, ‘Introduction: The ‘Europeanisation’ ofInternational Law’ in J. Wouters, A. Nollkaemper and E. de Wet (eds.), The Europeanisation ofInternational Law, The Hague: T.M.C Asser Press, 2008, 1, at 9.114 See C. Hillion, supra note 11, at 35.115 A. von Bogdandy, ‘European Union: Founding Principles’ in A. von Bogdandy and J. Bast(eds.), Principles of European Constitutional Law, 2 nd ed., Oxford: Hart Publishing, 2010, 11,at 42.116 A. Delgado Casteleiro and J. Larik, supra note 32.34