Cathleen Berg, doctoral student,
University of Bayreuth
On 25 November
2021, Advocate General (‘AG’) Szpunar delivered his Opinion in an action for
annulment brought by the Commission against the Council (Case C-161/20).
The Opinion exemplifies the conflict of interests between the European Union
(‘EU’) and the Member States when it comes to exercising their external
competences within the framework of an international organisation in which the
EU can participate neither as a member nor as an observer. If the Court of Justice
follows AG Szpunar’s reasoning, the present Case will have the potential to
change the assessment as to who (the Commission or the Member States) represents
the Union interest in committees of the International Maritime Organization
(‘IMO’). Moreover, it will presumably reinforce the Commission’s ambition to strive
for a change of the IMO legal framework in order to allow the EU to become a
member or at least an observer.
Background
The issue raised by
the Commission concerns the power to submit proposals to a committee of an
international organisation in which the EU can participate neither as a member
nor as an observer. The EU cannot become an IMO member because, according to
the IMO Convention, membership is open to States only. Usually, if the EU
cannot exercise its external competence because the international organisation
does not allow it to become a member or an observer, the Member States exercise
the EU competence acting jointly in the EU interest (para 64 of the Opinion; cf.
also Opinion
2/91). In particular, Member States must refrain from submitting a
national proposal to an international committee when the proposal could affect
common rules (see Case C-45/07).
Due
to some Member States’ opposition to grant the European Community the status as
IMO observer, only the European Commission became an IMO observer in 1974 when
it concluded a Cooperation Agreement with the IMO (cf. Article 66 of the IMO
Convention). As observer, the Commission has the right to participate in
the work of the IMO and its committees. However, unlike the Member States which
enjoy full IMO membership, the Commission has no right to vote. Yet, this does
not prevent the Commission from acting as the Union representative with
reference to the sixth sentence of Article
17(1) TEU, which reads: ‘With the exception of the common foreign and
security policy, and other cases provided for in the Treaties, it [the
Commission] shall ensure the Union's external representation.’ Therefore, the
Commission consistently strives to coordinate the Member States’ positions when
EU external competence is involved and to ensure that the common position is
presented in IMO committees on the EU’s behalf. However,
Member States in practice occasionally depart from the common position.
The Commission’s action: The Commission wants the EU
interest to be included and the Member States to be excluded
In the present
case, the Marine Environment Protection Committee (‘MEPC’) of the IMO
instructed the Intersessional Working Group on Reduction of GHG Emissions from
Ships in 2019 to develop life cycle greenhouse gas (‘GHG’)/carbon intensity
guidelines for all relevant types of fuels. In the same year, the
Intersessional Working Group ‘invited interested Member States and
international organizations to cooperate and submit proposals for draft
guidelines on life cycle GHG/carbon intensity for all relevant types of fuels’
(para 29). The submissions were supposed to function as an inspiration for future
guidelines on life cycle GHG/carbon intensity which the MEPC
considered as a preparation for an implementation programme for effective
uptake of alternative low-carbon and zero-carbon fuels. In response to the
invitation, the Permanent Representatives Committee (Coreper) endorsed, on 5
February 2020, a submission
on behalf of the Member States and the European Commission. This submission was
transmitted to the Intersessional Working Group by the Presidency of the
Council shortly after. In doing so, Coreper did not follow a suggestion
by the Commission to submit a proposal for guidelines ‘by the Commission on
behalf of the European Union’, thereby leaving the Member States out. In
particular, the Commission considered that the area addressed by the proposal was
covered to a large extent by common rules of the EU and that the EU, therefore,
had the exclusive external competence under Article
3(2) TFEU (‘ERTA doctrine’). According to the Commission, a proposal ‘on
behalf of the Member States’ could not sufficiently demonstrate that the Member
States act in the Union interest.
In Case C-161/20,
the Commission challenged the Council decision endorsing the submission on two
grounds. First, the Commission argued that the proposal was submitted in breach
of the EU exclusive competence under Article 3(2) TFEU and that, therefore, the
proposal should have been issued ‘by the European Commission on behalf of the
European Union‘. The Council contended that EU exclusive competence only
covered a part of the submission, while the remainder fell under shared
competence of the EU and the Member States. Second, the Commission alleged a breach
of its institutional prerogatives under Article 17(1) TEU insofar as the Council
decision entrusted the Presidency of the Council with transmitting the
proposal.
A triviality? By no
means! Although the submission did not constitute a binding decision
establishing the positions to be adopted on the Union's behalf within the
meaning of Article
218(9) TFEU, the present case concerns the fundamental issue of the
discrepancies between the international legal order and the European Union
legal order. In his Opinion, AG Szpunar, first, addressed the alleged
infringement of Article 17(1) TEU, before turning to the question of the nature
of EU competence regarding the proposal.
Infringement of Article 17(1) TEU: EU interest vs.
obligation to exercise EU external competence in observance of international
law
The particularities
of the external representation of the Union interest in the IMO arise from the
twofold status of the Commission. On the one hand, the sixth sentence of Article
17(1) TEU, as such, only refers to the prerogatives of the Commission acting as
an EU organ. On the other hand, the Commission has the status as IMO observer,
however, without being considered to act as the representative of the EU.
AG Szpunar tried to
resolve the discrepancy between, on the one hand, the IMO rules, preventing the
EU from directly participating in the IMO, and on the other hand, the internal
rules in the Treaties on the division of external powers and their exercise, by
referring to the case-law of the Court of Justice, according to which the Union
must exercise its powers in observance of international law (para 64; see Antarctica
Cases). The AG examined whether the disputed submission could have been
transmitted as a Union act in line with the IMO rules, the Union being
represented by the Commission (para 72 et seq). However, the AG denied the
admissibility of such course of action by strictly limiting the right to
participate in the IMO to the Commission as observer. In particular, he rejected
the Commission’s argument that it can be inferred from the Lisbon Treaty, which
provided for the substitution of the European Community by the EU, that the Commission’s
status as observer means that the Commission acts as an organ of the EU and
that, therefore, proposals in the name of the Commission can be considered as
proposals of the EU (para 74 et seq). According to the AG, the invitation from
the Intersessional Working Group to submit proposals did not extend to
international organisations without any rights in the IMO. In fact, the
invitation required the power to participate effectively in the Working Group,
which the EU lacks (para 78).
Having denied the
possibility of submitting the proposal on behalf of the EU, the wording of
Article 17(1) TEU suggests that it is not applicable in the case that the EU
cannot act on its own behalf (para 81 et seq). AG Szpunar pointed out that
there is a significant difference between, on the one hand, the Member States
acting in the Union interest, but in their own name, and, on the other hand,
the Member States acting as representatives of the EU (cf. Article 7 of the Vienna
Convention on the Law of Treaties) (para 84). When the Member States act in
their own name, they are free to choose whom they want to entrust with
transmitting the proposal (in the present case, the Presidency of the Council
and not the Commission) (para 85).
Nevertheless, the
AG added that the Member States were obliged under the principle of sincere
cooperation (see Article
4(3) TEU) and the principle of acting in good faith to inform the third
parties involved that the Member States act in the Union interest (para 88).
This follows from the fact that the Member States do not act ‘fully autonomous[ly]’
when they act in the Union interest (para 88). However, the obligation to act
in the Union interest does not go as far as to oblige the Member States to include
‘on behalf of the EU’ in the heading of the submission as the external partners
could reject such a submission (para 89). It is sufficient that the external
partners can infer from the context that the Member States act in the Union
interest (para 90).
The AG’s reasoning
resembles the findings of the Court in the Antarctica Cases where the Court
held that the EU did not enjoy a fully autonomous status in the Antarctic
Treaty and that, therefore, it had to involve the Member States in
submitting a proposal in the framework of the Canberra Convention. Yet, in
contrast to the Antarctica Cases, AG Szpunar sought to restrict the scope of Member
States’ action and not the exercise of EU external competence. The Court’s
reasoning in the Antarctica Cases seems to evolve more and more into a
generally applicable standard which does not seem to be restricted to specific
cases with specific contexts (as was hoped for by many scholars). Arguably, it
is also not restricted to favouring the Member States, but can also be applied
in favour of the EU (cf. recently Opinion
1/19, where the risk of incurring international responsibility did not
preclude the Union from exercising its competence without the consent of all
Member States). The present case is based on the conflict between, on the one
hand, the protection of the EU interest and, on the other hand, the obligation
to exercise the EU external competences in observance of international law.
Both principles govern the exercise of the EU external competences. The AG favoured
the observance of international law over the protection of the EU interest (cf.
para 92). Observing international law meant, therefore, that the proposal could
not be submitted on behalf of the EU.
The (im)possibility to act on behalf of the EU does not
depend on the nature of EU competence
The AG suggested
that determining whether the EU competence was exclusive or shared with the
Member States was not important to decide whether the proposal could have been
submitted by the EU itself (paras 50, 97). Therefore, it is not a question of
competence to determine whether a proposal can be submitted on behalf of the EU.
It is rather a question of labelling a submission to the Intersessional Working
Group the right way as to reconcile the IMO rules and the rules of the
Treaties. AG Szpunar denied an ‘ERTA effect’, anyway, as there was no risk of
common rules being affected by the mere prospect that future guidelines could inspire
the EU to amend the common rules (para 153 et seq). Neither did he assume an
exclusive competence under the second part of Article 3(2) TFEU (para 158 et
seq). Consequently, he rejected the Commission’s plea alleging breach of
exclusive EU competence under Article 3(2) TFEU.
The AG’s conclusion: Rather let the Member States
represent the EU interest than the Commission?
The AG implied that
the Union has only shared competence in the area covered by the disputed
submission, without explicitly stating the legal basis for this competence
(para 164). In line with settled case-law, he concluded that the Union can
exercise the shared competence alone (para 164; see C-600/14).
However, and this seems rather puzzling, he explained that ‘the Commission’s
weaker status compared to that of the EU Member States in the IMO constitutes
an argument in favour of the participation of the Member States in the exercise
of the Union’s external competence.’ (para 164). He explicitly referred to the Antarctica
Cases where the Court held that the Union could not submit a proposal in the
framework of the Canberra Convention without the Member States due to special
obligations and responsibilities of some Member States as parties to the
Antarctic Treaty. However, comparing the status of the Member States in the IMO
with their status in the Antarctic Treaty seems questionable. In the Antarctica
Cases, the EU had acceded to the Canberra Convention whereas it cannot become an
IMO member. Furthermore, it could be argued that the Commission as such has no
right to vote in the IMO and that, therefore, it is not able to exercise the EU
competence alone in the IMO in the first place.
AG Szpunar’s
Opinion has surely dashed the Commission’s hopes of driving the Member States
out of the representation of the Union interest in the IMO. In fact, the
Commission’s status in the IMO appears to be even weaker than before. It is,
therefore, for the Court to decide on who will represent the EU interest in the
IMO in the future.
Barnard &
Peers: chapter 24
Photo credit: Tagishsimon,
via Wikicommons
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