Principles and practices of EU external representation - Asser Institute

The role of the Court of Justice in ensuring the unity of the EU’s external representationto ‘coherence’. 29 This at first sight rather trivial discussion may have importantlegal implications as both concepts are not interchangeable. 30 Consistency isgenerally referred to as a rather static notion aimed at avoiding contradictions(negative obligations), while coherence is more dynamic and is directed atbuilding synergies (positive obligations). 31 Taking into account the reality thatmost languages refer to the dynamic notion of coherence and, more important,based on a functional interpretation of the Treaties, there seems to be a consensusin literature that the requirement of ‘consistency’ foreseen in the Englishlanguage version entails more than avoiding legal contradictions and presupposesa quest for synergy and added value between the different actions ofthe Union. 323. The Relationship between the Duty of Cooperation andthe Duty of ConsistencyIn its initial case-law on the duty of cooperation in the context of mixed agreementsthe Court almost axiomatically stated that this duty flows from ‘the requirementof unity in the international representation of the Community’. 33 Itwas not until recently that the Court also linked this duty to the objective ofconsistency. In the so-called Inland Waterways cases, it held that the MemberStates and the EU institutions were bound by a duty of close cooperation ‘inorder to facilitate the achievement of the Community tasks and to ensure thecoherence and consistency of the action and its international representation’. 34The Court did however not further elaborate on this link, which may be due toits lack of jurisdiction over the duty of consistency prior to the entry into forceof the Lisbon Treaty. It is also noteworthy that in the PFOS case, the Court29 R. A. Wessel, ‘The Inside Looking Out: Consistency and Delimitation in EU External Relations’37(5) CML Rev. (2000), at 1150.30 By referring to both ‘coherence and consistency’ of EU action in Commission v Luxembourgthe Court seems to suggest that it indeed sees them as two distinct concepts, see CaseC-266/03, Commission v Luxemburg [2005] ECR I-4805, para. 60.31 Bart Van Vooren, for instance, distinguishes three levels of coherence: i) the absence ofcontradictions (consistency); ii) the effective allocation of tasks and iii) the achievement of positivesynergies. See: B. Van Vooren, EU External Relations Law and the European NeighbourhoodPolicy. A Paradigm for Coherence, London: Routledge, 2011, at 69. See also P. Koutrakos, Trade,Foreign Policy and Defence in EU Constitutional Law, Portland: Hart Publishing 2001, at 39. andM. Cremona, op. cit. note 19.32 C. Hillion, ‘Tous pour un, un pour tous! Coherence in the External Relations of the EuropeanUnion’, in M. Cremona (ed.), Developments in EU External Relations Law, Oxford: OxfordUniversity Press, 2008, at 12-16.33 Opinion 2/91, ILO [1993] ECR I-1061, para. 36; Opinion 1/94, WTO [1994] ECR I-5267,para. 106; Opinion 2/00, Cartagena Protocol on Biosafety [2001] ECR I-9713, para. 18. Hillionconvincingly argues that this expression was first used to transplant the duty of cooperation fromthe EAEC to the EEC context and subsequently developed, in both case-law and legal writing,into a basis for the duty of cooperation between the Community and the Member States. See C.Hillion, ‘Mixity and Coherence in EU External Relations: the Significance of the Duty of Cooperation’,CLEER Working Paper 2009/2 at 4-7.34 Case C-266/03, Commission v Luxemburg [2005] ECR I-4805, para. 60; Commission vGermany [2005] ECR I-6985, para. 66.43CLEER WORKING PAPERS 2012/5