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Published online by Cambridge University Press: 03 December 2018
A stream of recent judgments by the Grand Chamber of the European Court of Justice has shed light on the procedures that govern treaty-making by the European Union. This article explores how this case law approaches the principle of institutional balance and the duty of cooperation between the institutions. It argues that the former is construed in a balanced manner on the basis of a literal interpretation of primary law that promotes strict compliance with procedural rules and does not favour a particular institution. As for the duty of cooperation, whilst its procedural dimension is strengthened, its scope remains somewhat elusive. The analysis identifies a pragmatic streak in the Court's balanced approach, and argues that there is an inherent limit to the impact of constitutional law on inter-institutional disputes. Ultimately, the less time and energy the institutions waste on turf wars about their procedural powers, the greater their contribution to inceasing the efficiency of the Union's treaty-making practice.
Many thanks to Sir Alan Dashwood QC and the anonymous referees. All errors and omissions are my own.
1 At the time of writing, instead of any progress on the TTIP front, there is a concern about the aggresively unilateralist initiatives of the Trump administration. On 25 June 2018, the two parties agreed to negotiate about how to negotiate a closer trade relation (Joint EU-U.S. Statement following President Juncker's visit to the White House <http://trade.ec.europa.eu/doclib/press/index.cfm?id=1898>).
2 See  OJ L 11/23.
3 Following the non-binding referendum in the Netherlands, see Decision of the Heads of State or Government of the 28 Member States of the European Union, meeting within the European Council, Annexed to European Council Conclusions on Ukraine (15 December 2016).
4 Art 50 TEU that governs the Brexit negotiations states that these would be governed by art 218(3) TFEU, that is the provision pursuant to which the EU negotiates agreements with third countries. This is analysed in section III of the article. The EU rules on treaty-making will also govern the negotiation and conclusion of any agreement on the future relationship between the EU and the UK.
5 Dashwood, A, Dougan, M, Rodger, B, Spaventa, E and Wyatt, D, Wyatt and Dashwood's European Union Law (6th edn, Hart Publishing 2011) 936Google Scholar.
6 Special rules apply to the conclusion of exchange rate and monetary agreements which is governed by art 219 TFEU, and to the agreements concluded in the area of Common Commercial Policy in so far as ‘special provisions’ are provided for in art 207 TFEU.
7 Case C-425/13 Commission v Parliament (EU-Australia Trading Emissions Agreement) EU:C:2015:483, para 62. This formulation originated in Case C-327/91 France v Commission EU:C:1994:305, para 28, except that the term ‘constitutional’ had only been included in the summary of the judgment in the official Court reports.
8 See Case C-327/91 France v Commission EU:C:1994:305, para 25. See also art 46(2) of the Vienna Convention on the Law of Treaties which codifies customary international law (Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France) (2008) ICJ Rep 177.
9 For the Lisbon Treaty amendments on EU external relations provisions, see, amongst others, P Koutrakos (ed), The European Union's External Relations a Year after Lisbon (2011) CLEER Working Paper 3.
10 PJ Kuijper suggests that, at Lisbon, ‘foreign policy underwent a wave of democratization’: ‘The Case Law of the Court of Justice and the Allocation of External Relations Powers: Whither the Traditional Role of the Executive in EU Foreign Relations?’ in Cremona, M and Thies, A (eds), The European Court of Justice and External Relations Law: Constitutional Challenges (Hart Publishing 2014) 95, 113Google Scholar.
11 Case 22/70 Commission v Council EU:C:1971:32.
12 See De Witte, B, ‘Too Much Constitutional Law in the European Union's Foreign Relations?’ in Cremona, M and De Witte, B (eds), EU Foreign Relations Law (Hart Publishing 2008) 3Google Scholar.
13 See De Baere, G and Koutrakos, P, ‘The Interactions between the Legislature and the Judiciary in EU External Relations’ in Syrpis, P (ed), The Relationship between the Legislature and the Judiciary in the Internal Market (Cambridge University Press 2012) 243Google Scholar.
14 See, for instance, Opinion 2/15 EU:C:2017:376 and Opinion 3/15 EU:C:2017:114.
15 See, for instance, Van der Loo, G and Wessel, R A., ‘The Non-Ratification of Mixed Agreements: Legal Consequences and Solutions’ (2017) 54 CMLRev 735Google Scholar. For a broader and older perspective of mixity, see also Hillion, C and Koutrakos, P (eds), Mixed Agreements Revisited: The EU and Its Member States in the World (Hart Publishing 2010)Google Scholar.
16 See Dashwood, A, ‘EU Acts and Member State Acts in the Negotiation, Conclusion and Implementation of International Agreements’ in Cremona, M and Kilpatrick, C (eds), EU Legal Acts: Challenges and Transformations (Oxford University Press 2018) 189Google Scholar.
17 Case 9/56 Meroni v High Authority EU:C:1958:7, at 152.
19 See, amongst others, Jacqué, ibid; Craig, P, ‘Institutions, Power and Institutional Balance’ in Craig, P and de Burca, G (eds), The Evolution of EU Law (2nd edn, Oxford University Press 2011) 41Google Scholar; G Guillermin, ‘Le principe de l’équilibre institutionnel dans la jurisprudence de la Cour de justice des Communautés européennes’ (1992) Journal de droit International 319; Smulders, B and Eisele, K, ‘Reflections on the Institutional Balance, the Community Method and the Interplay between Jurisdictions after Lisbon’ 31 YEL (2012) 112Google Scholar.
20 Case C-70/88 Parliament v Council (re: Chernobyl) EU:C:1990:217, para 21.
21 Art 5(1)–(2) TEU.
22 Case C-70/88 Parliament v Council EU:C:1990:217, para 22; also Case C-133/06 Parliament v Council EU:C:2008:257, para 57.
23 Case C-149/85 Wubot EU:C:1986:310, para 23.
24 Writing in 2000, De Witte pointed out that the Court had not referred to the institutional balance as a principle, and argued that to have done otherwise would have suggested an unwritten higher principle of an independent content: De Witte, B, ‘The Role of Institutional Principles in the Judicial Development of the European Union Legal Order’ in Snyder, F (ed), The Europeanisation of Law: The Legal Effects of European Integration (Hart Publishing 2000) 83, 92Google Scholar. Recent case refers expressly to the principle of institutional balance: see, for instance, Case C-63/12 Commission v Parliament EU:C:2013:752 at para 73 and Case C-73/14 Council v Commission (re: ITLOS) EU:C:2015:663 at para 61.
25 Case C-73/14 Council v Commission (re: ITLOS) EU:C:2015:490, para 461; Case C-425/13 Commission v Council EU:C:2015:483, para 69; and Case C-660/13 Council v Commission EU:C:2016:616, para 32.
26 Ex art 7(1) EC.
27 See Hillion, C, ‘Conferral, Cooperation and Balance in the Institutional Framework of the EU External Action’ in Cremona, M (ed), Structural Principles in EU External Relations Law (Hart Publishing 2018) 117, 125Google Scholar.
28 Art 4(3) TEU articulates the duty in stronger terms than its precursor (art 10 EC).
30 Case C-65/93 European Parliament v Council (re: GTP) EU:C:1995:91 at para 23. See also Case 204/86 Greece v Council EU:C:1988:450, para 16; and C-65/93 Parliament v Council EU:C:1995:91, paras 23 and 27.
32 See Cremona and Thies (n 10) and De Baere and Koutrakos (n 13) 243.
33 Case C-459/03 Commission v Ireland EU:C:2006:34.
34 Case C-246/07 Commission v Sweden EU:C:2010:203.
36 See Casteleiro, A Delgado and Larik, J, ‘The Duty to Remain Silent: Limitless Loyalty in EU External Relations’ (2011) 36 ELRev 524Google Scholar; C Hillion, ‘Mixity and Coherence in EU External Relations: The Significance of the Duty of Cooperation’ in Hillion and Koutrakos (n 15) 87; Koutrakos, P, ‘In Search of a Voice: EU Law Constraints on Member States in International Law-Making’ in Liivoja, R and Petman, J (eds), International Law-Making: Essays in Honour of Jan Klabbers (Routledge 2014) 211Google Scholar; and Neframi, E, ‘The Duty of Loyalty: Rethinking Its Scope through Its Application in the Field of EU External Relations’ (2010) 45 CMLRev 331Google Scholar.
37 See Hillion (n 27) 135ff.
38 Art 218(3) TFEU also refers to ‘the Union's negotiating team’ which may relate to agreements the subject matter of which would fall within the scope of both the CFSP and other strands of the EU's external action.
39 MacLeod, I, Hendry, ID and Hyett, S, The External Relations of the European Communities (Oxford University Press 1996) 88Google Scholar. The significance of this power has become all the more apparent in the context of the Brexit negotiations under art 50 TEU (the Council's negotiating directives of 22 May 2017 for the withdrawal agreement are available at <https://www.consilium.europa.eu/media/21766/directives-for-the-negotiation-xt21016-ad01re02en17.pdf>; and for the transitional period at <http://www.consilium.europa.eu//media/32504/xt21004-ad01re02en18.pdf>).
40 EU:C:2015:483. Such agreements are envisaged in art 25 of Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading within the Community  OJ L 275/32, amended by Directive 2009/29/EC  OJ L 140/63.
41 paras 66 and 67 of the judgment respectively.
42 para 79 of the judgment.
43 para 86 of the judgment.
44 paras 89 and 90 of the judgment respectively.
45 This point is made by AG Wathelet in para 105 of his Opinion (EU:C:2015:174).
46 EU:C:2015:174, paras 193 and 126.
48 See art 18(a) Vienna Convention on the Law of Treaties. See also Case T-115/94 Opel Austria v Council EU:T:1997:3, paras 90–95.
49 Given the lack of binding effect, they are not governed by art 218 TFEU.
50 EU:C:2004:173, para 40.
53 The judgment suggests that the Council could in fact authorize the Commission to sign a non-binding agreement (para 43). This is also the Council's position: Doc No 5707/13, Council Legal Service Opinion on the procedure to be followed for the conclusion by the EU of Memoranda of Understanding, Joint Statements and other texts containing policy commitments, with third countries and international organizations (Brussels, 1 February 2013) para 12.
54 para 45 of the judgment. As AG Sharpston pointed out in her Opinion, this information had not, in fact, been laid down in the 2012 Conclusions and, therefore, the 2013 addendum did not correspond to these fully.
55 EU:C:2016:616, para 53.
56 See Schafer, A, ‘Resolving Deadlock: Why International Organisations Introduce Soft Law’ (2006) 12 ELJ 194CrossRefGoogle Scholar. For the use of soft law instruments in the European Neighbourhood Policy in particular, see Van Vooren, B, ‘Soft Law in EU External Relations: The European Neighbourhood Policy’ (2009) 34 ELRev 696Google Scholar.
57 See Dec 2013/398/EU re Euro-Mediterranean Aviation Agreement with Israel  OJ L 208/1; Dec 2012/639/EU re the Common Aviation Area Agreement with Moldova  OJ L 292/1; Dec 2012/708/EU re Common Aviation Area Agreement with Georgia  OJ L 321/1; Dec 2012/750/EU re Euro-Mediterranean Aviation Agreement with Jordan  334/1; Dec 2006/959/EC re Euro-Mediterranean Aviation Agreement with Morocco  OJ L 386/55.
58 See Dec 91/586/ECSC, EEC suspending the application of the Agreements between the EC, its Member States and Yugoslavia  OJ L 315/47; and Dec 76/755/ECSC, EEC, Euratom on practical measures of economic cooperation within the EC-Canada Joint Committee  OJ L 260/36.
59 See Dec 90/238/Euratom, ECSC, EEC adopting a 1900 to 1994 action plan in the context of the ‘Europe against Cancer’ programme  OJ L 137/31; Dec 88/351/EEC adopting a 1988 to 1989 plan of action for an information and public awareness campaign in the context of the ‘Europe against Cancer’ programme  OJ L 160/52; Dec 77/294/EEC adopting the fourth medium economic policy programme  OJ L 101/1,
60 EU:C:2015:282. They had also been raised in Case C-114/12 Commission v Council (re: broadcasting rights) EU:C:2014:2151, but the Court did not examine them, as it held that the contested measure was illegal because it violated the Union's exclusive competence (AG Sharpston, however, analysed them: EU:C:2014:224, paras 167ff).
61  OJ L 134/4, amended by a Protocol in 2010 ( OJ L 223/3).
62  OJ L 283/3.
63 Case C-28/12, para 42.
64 para 49 of the judgment.
65 In the area of trade and environmental policy, see Case C-94/03 Commission v Council EU:C:2006:2, para 51. See also Opinion 2/00 EU:C:2001:664 and Case C-281/01 Commission v Council EU:C:2002:761, analysed in Koutrakos, P, EU International Relations Law (2nd edn, Hart Publishing 2015) 54–67Google Scholar. This reluctance is also apparent in the areas of foreign policy and development cooperation: see Case C-130/10 European Parliament v Council EU:C:2012:472, para 49.
66 para 52 of Case 28/12 Commission v Council EU:C:2015:282, with reference to Case C-338/01 Commission v Council EU:C:2004:253.
67 para 55 of the judgment.
68 This option would not be without problems, given the intrinsic links between areas in transport agreements which fall within EU and national competence (AG Opinion, EU:C:2015:43, para 88).
69 This had been suggested by the Commission and, according to AG Mengozzi, it was rather ‘sensitive’ as it would give rise to legal problems given the constitutional requirements in some Member States (AG Opinion, ibid).
70 Dashwood argues that the judgment is characterized by ‘procedural purity’ (n 16) 248. He also suggests that careful drafting could address the concerns expressed in the judgment (n 16) 244–5.
71 Verellen, T, ‘On Hybrid Decisions, Mixed Agreements and the Limits of the New Legal Order: Commission v Council (‘US Air Transport Agreement’)’ (2016) 53 CMLRev 741, 741–2 and 748–53Google Scholar.
72 The Commission had suggested that reliance upon hybrid decisions would blur the autonomy of the Union's presence in international relations.
73 AG Mengozzi had argued that hybrid decisions would, amongst others, be ‘liable to weaken the EU as a full player on the world stage’ (n 68) para 86.
74 See B Kleizen, Mapping the Involvement of the European Parliament in EU External Relations: A Legal and Empirical Analysis (2016) CLEER Working Paper 4; and R Passos, ‘The European Union's External Relations a Year after Lisbon: A First Evaluation from the European Parliament’ in Koutrakos (n 9) 49.
75 Art 218(6)(a) TFEU.
76 This has been the case regarding the EU-US SWIFT Agreement (EP legislative resolution of 11 February 2010  OJ C 341 E/100); the renegotiation of PNR Agreements with Australia ( OJ L 18/4); the United States ( OJ L 174/1); and Canada (the conclusion of which the Court has recently found contrary to the Treaties: Opinion 1/15 EU:C:2016:656) and ACTA (EP legislative resolution of 4 July 2012 P7_TA (2012) 028).
79 On the issues raised by such transfer agreements, see Thym, D, ‘Piracy and Transfer Agreements Concluded by the EU’ in Koutrakos, P and Skordas, A (eds), The Law and Practice of Piracy at Sea: EU and International Perspectives (Hart Publishing 2013) 167Google Scholar.
80 Case C-658/11 European Parliament v Council, para 81.
83 EU:C:2016:435, para 82.
84 See Dashwood (n 16) 227–46.
86 It reads as follows: ‘In each of the Member States, the Union shall enjoy the most extensive legal capacity accorded to legal persons under their laws; it may, in particular, acquire or dispose of movable and immovable property and may be a party to legal proceedings. To this end, the Union shall be represented by the Commission … .’.
87 AG Sharpston in her Opinion in Case C-73/14 Council v Commission (re: ITLOS) EU:C:2015:490, para 49.
89 Case C-73/14, para 66.
90 Case C-73/14, para 55. This was also the position taken by AG Sharpston, who considered the question whether the determination of the jurisdiction of ITLOS to deliver advisory opinions was a matter exclusively for the Member States or not irrelevant (Case C-73/14 Council v Commission EU:C:2015:490 paras 51–52 of her Opinion).
91 This is in contrast to AG Sharpston who had argued that a broader construction of art 218(9) TFEU would impinge on the Commission's discretion to lodge and participate in WTO proceedings and would undermine the EU's ability to meet the strict procedural time limits laid down for international legal proceedings (EU:C:2015:490, para 78).
92 Case C-73/14, para 71.
93 Case C-73/14 Council v Commission EU:C:2015:663, para 72-4.
94 Including Reg 1005/2008 on a system of rules and procedures aiming to prevent, deter, and eliminate IIU fishing  OJ L 286/1; Reg 1006/2008 on the authorization of fishing activities by EU vessels outside EU waters and the access of third country vessels to EU waters  OJ L 286/33; Reg 1224/2009 on the enforcement of the above rules by setting out an EU control system  OJ L 343/1.
95 This point was made by AG Sharpston (EU:C:2015:490, para 84).
97 For a similar assessment of the application of the Lisbon reforms in relation to internal decision-making, see Chamon, M, ‘Institutional Balance and Community Method in the Implementation of EU Legislation Following the Lisbon Treaty’ (2016) 53 CMLRev 1501Google Scholar who is critical of both the institutions and the Court for having failed to realize Lisbon's potential.
100 See P Van Elsuwege, ‘The Potential for Inter-Institutional Conflicts before the Court of Justice: Impact of the Lisbon Treaty’ in Cremona and Thies (n 10) 115.
101 Framework Agreement on relations between the European Parliament and the European Commission  OJ L 304/50, paras 23, 25 and Annex III. On the implications of the Agreement for the secrecy that international negotiations entail, see Curtin, D, ‘Official Secrets and the Negotiation of International Agreements: Is the EU Executive Unbound?’ (2013) 50 CMRev 423Google Scholar.
102 Council of the EU, Doc 15018/10 (18 October 2010).
103 Kuijper, PJ, ‘From the Board: Litigation on External Relations Powers after Lisbon: The Member States Reject Their Own Treaty’ (2016) 43 LIEI 1, 12Google Scholar.
104 Case C-459/03 Commission v Ireland EU:C:2006:34; Case C-246/07 Commission v Sweden EU:C:2010:203; and Case C-45/07 Commission v Greece EU:C:2009:81.
105 In Case C-600/14 Germany v Council EU:C:2017:935, the duty cooperation between the EU institutions and the Member States was explored in the context of art 218(9) TFEU. The Grand Chamber examined the progress of the decision-making process that led to the adoption of a decision about the Union's position regarding the revision of the Convention concerning International Carriage by Rail (COTIF), and held that the Council had not acted in violation of the duty of cooperation (para 107 of the judgment).
106 Case C-409/13 Council v Commission (Macro-Financial Assistance to Third Countries) EU:C:2014:2470, para 98.
107 Dashwood, A: ‘The Institutional Framework and the Institutional Balance’ in Dougan, M and Currie, S (eds), 50 Years of the European Treaties: Looking Back and Thinking Forward (Hart Publishing 2009) 1, 17Google Scholar.
108 Case C-459/03 Commission v Ireland EU:C:2006:34.
109 Demedts, V and Chamon, M, ‘The Commission Back on the Leash: No Autonomy to Sign Non-binding Agreements on Behalf of the EU: Council v. Commission’ (2017) 54 CMLRev 245, 254Google Scholar.
110 Sunstein, CR, Legal Reasoning and Political Conflict (2nd edn, Oxford University Press 2018) 44Google Scholar. See also Sunstein, CR, One Case at a Time: Judicial Minimalism on the Supreme Court (Harvard University Press 1999)Google Scholar and the criticism in his ‘Beyond Judicial Minimalism’ (2008) 43 TulsaLRev 825Google Scholar.
111 Case C-246/07 Commission v Sweden EU:C:2010:203 where Sweden made a unilateral proposal that certain substances become subject to the regulatory regime laid down in the Stockholm Convention in Persistent Organic Pollutants (a mixer agreement). It had failed to convince the EU to put forward this proposal. See the analysis in Koutrakos (n 65) 191–6; and Casteleiro, A Delgado and Larik, J, ‘The Duty to Remain Silent: Limitless Loyalty in EU External Relations’ (2011) 36 ELRev 524Google Scholar.
113 See Case C-455/14P H v Council, ECLI:EU:C:2016:569 and Case C-72/15 Rosneft ECLI:EU:C:2016:381. It is noteworthy, however, that even in these cases, when it came to the substance of the case, the Court acknowledged the wide discretion of the legislature, and exercised its jurisdiction cautiously (see the analysis in Koutrakos, P, ‘Judicial Review in the EU's Common Foreign and Security Policy’ (2018) 67 ICLQ 1CrossRefGoogle Scholar).
114 Case C-284/16 Slovak Republic v Achmea BV EU:C:2018:158.
115 See Case 333/13 Dano EU:C:2014:2358; Case C-67/14 Alimanovic  EU:C:2015:597; Case C-308/14 Commission v United Kingdom  EU:C:2016:436. From the voluminous literature on the topic, see G Davies, ‘Migrant Union Citizens and Social Assistance: Trying to Be Reasonable about Self-Sufficiency’ College of Europe Research Papers in Law 2/2016 ; Shuibhne, N Nic, ‘‘‘What I Tell You Three Times Is True” – Lawful Residence and Equal Treatment after Dano’  23 MJ 908Google Scholar; Thym, D, ‘The Elusive Limits of Solidarity: Residence Rights of and Social Benefits for Economically Inactive Union Citizens’  52 CMLRev 17Google Scholar.
116 See Case C-370/12 Pringle EU:C:2012:756 and Case C-370/12 Gauweiler ECLI:EU:C:2015:400. See, amongst others, Craig, P, ‘Gauweiler and the Legality of Outright Monetary Transactions’ (2016) 41 ELRev 4Google Scholar.
117 See Case C-411/10 NS EU:C:2011:865; Case C-4/11 Puid EU:C:2013:740; Case C-394/12, Abdullahi EU:C:2013:813. For a brief comment, see Koutrakos, P, ‘ECJ, Strasbourg and National Courts: An Exercise in Guesswork?’ (2015) 45 ELRev 641Google Scholar.
118 Case C-638/16 PPU X and X EU:C:2017:173.
119 See T-192/16 NF EU:T:2017:128 ; T-193/16 NG EU:T:2017:129 ; and T-257/16 NM EU:T:2017:130.
120 Thym, D, ‘The “Refugee Crisis” as a Challenge of Legal Design and Institutional Legitimacy’ (2016) 53 CMLRev 1545Google Scholar.
122 See, for instance, Chamon (n 97); and Tovo, C, ‘Delegation of Legislative Powers in the EU: How EU Institutions Have Eluded the Lisbon Reform’ (2017) 47 ELRev 677Google Scholar.
123 See Case C-427/12 Commission v Parliament and Council (Biocides) EU:C:2014:170; and Case C-88/14 Commission v Parliament and Council (Visa Reciprocity) EU:C:2015:499.
124 See Case C-270/12 UK v Council and Commission (ESMA) EU:C:2014:18.
125 Chamon (n 97) 1543.
126 For instance, Everson argues that, to have ruled otherwise in ESMA (n 124), the Court would have shown ‘foolish judicial disregard for the vital need to ensure continuing financial stability within Europe’: ‘European Agencies: Barely Legal’ in Everson, M, Monda, C and Vos, E (eds), European Agencies in between Institutions and Member States (Kluwer Law International 2014) 50Google Scholar.
127 For the need for discretion in ensuring the financial stability of the Eurozone, see Lenaerts, K, ‘EMU and the EU's Constitutional Framework’ (2014) 39 ELRev 753Google Scholar.
128 This argument was made in the context of competence-based disputes in P Koutrakos, ‘Legal Basis and Delimitation of Competence in EU External Relations’ in Cremona and De Witte (n 12) 171.
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