Testing the Applicability of EU Law Abroad: The Italy–Albania Protocol in the Comeri, Sidilli, and Sedrata Hearings

 

Eleonora Celoria, Post-doctoral researcher, FIERI

Andreina De Leo*, Post-doctoral researcher, Maastricht University

Marcella Ferri, Research Fellow, Florence University

* Funded by the European Union (ERC, SoftEn project, 101165167, PI: Lilian Tsourdi). Views and opinions expressed are however those of the author(s) only and do not necessarily reflect those of the European Union or the European Research Council. Neither the European Union nor the granting authority can be held responsible for them.

Photo credit: Jorge Franganillo, via Wikimedia Commons

Introduction

On 23 and 24 March 2026, the Court of Justice of the European Union (CJEU) held two hearings in the ongoing proceedings addressing the compatibility of the Italy-Albania Protocol with EU law and the broader implications of conducting asylum and return procedures extraterritorially (Joined cases C-706/25 Comeri and C-707/25 Sidilli, and C-414/25 Sedrata).

This may appear as a déjà-vu. Less than a year ago, the extraterritorial processing of asylum under the Italy-Albania Protocol had already come before the Court in the well-known Alace and Canpelli cases (discussed on this blog by Zamboni and Favilli & Marin). The focus of those cases was, however, narrower, as it concerned the criteria to designate countries as “safe countries of origin” under the Asylum Procedures Directive (APD) and their judicial review, a classification that directly enabled the use of accelerated offshore asylum procedures in Albania. Following those rulings, the Italian Government adjusted its strategy, implementing a policy based on the relocation to Albania of returnees already detained in Italian pre-removal detention centers under the Return Directive (RD). While awaiting removal, these individuals may lodge an asylum application which, according to the Government, can then be examined in Albania. Against this backdrop, the new preliminary references raise a distinct and more direct question: whether asylum and return procedures can, as such, be carried out in a third country without breaching EU law. In doing so, they place the legality of the Protocol as a whole squarely before the Court.

More specifically, the first preliminary ruling, submitted by the Court of Cassation on 20 June 2025, asks whether Articles 3, 6, 8, 15, and 16 of the Return Directive preclude transferring a migrant subject to a return order to an extraterritorial detention centre, even without a concrete prospect of removal. It also asks whether Article 9(1) of the Asylum Procedures Directive, which requires applicants to remain on a Member State’s territory, precludes keeping asylum seekers who lodge an asylum application after being transferred to a third-country detention centre within that country (see De Leo).

The second preliminary ruling, submitted by the Rome Court of Appeal on 5 November 2025, directly questions Italy’s competence to conclude an international agreement  interfering with an area of exclusive EU competence, as laid down in Articles 4(3) TEU, 3(2) TFEU and 216(1) TFEU (see Montaldo and delli Carri). Alternatively, should the Court find that Italy has such competence, it asks whether the safeguards under the APD and the Reception Conditions Directive (RCD), as well as the Charter, particularly the rights to liberty, an effective remedy, and health, preclude transferring asylum seekers to, and detaining them in, centres outside EU territory.

It is worth recalling that the stated aim of the Protocol is to “reinforce bilateral cooperation in managing migration flows,” allowing Italy to transfer migrants to Albania solely to carry out asylum and return procedures under Italian and EU law (Art. 4(3) Protocol). These procedures remain under Italian jurisdiction and are conducted in accordance with national and EU law “to the extent compatible” (Art. 4(1), Ratification Law 14/2024).

Although raising different questions, both Italian courts focused on the same core issue: whether EU law safeguards can be effectively ensured for asylum seekers and returnees detained in a third country and whether those standards are compromised merely because detention occurs outside the territory of a Member State.

Outline of the post

While awaiting further developments, and notably the Advocate General’s opinions on 23 April (Sedrata) and 11 June (Comeri and Sidilli), this post examines the key issues raised during the hearings and outlines the main arguments on whether asylum and return procedures conducted in a third country, yet under a Member State’s jurisdiction, comply with EU law.

It first considers whether EU law applies to procedures carried out in Albania and whether such procedures may interfere with its application, summarising the positions of the Italian Government and the European Commission. Two aspects are examined: the Dublin system and its founding principle of mutual trust, and whether EU safeguards can be effectively guaranteed in detention centres abroad. Finally, the post clarifies the differences between the Albania model, the so-called “return hubs,” and the notion of a safe third country, as frequently referenced during hearings and in public debate.

EU Law Beyond Territory: Parties’ Arguments on Applicability, Compliance, and Competence in the Italy-Albania Scheme

The Italian government

To justify the compatibility of the Italy-Albania Protocol and its Ratification Law with EU law, the Italian Government advanced two alternative lines of argument. Both were aimed at demonstrating that: first, the Protocol does not risk adversely affecting the internal rules of the Union and therefore does not encroach upon an area of exclusive EU competence; secondly, that the extraterritorial application of the relevant directives in a third country does not undermine their effet utile.

First, the Government argued that the Albanian centres should be considered “representations of Member States” abroad under the APD and RCD, and that EU law applies indirectly through its incorporation via the Ratification Law. On this basis, the Government maintained that the Italy-Albania Protocol is purely technical and logistical: it does not alter the substance of the legal framework on pre-removal detention, asylum procedures or reception conditions, which remain fully applicable because the legislator has chosen to extend EU standards to the situations covered by the Protocol. By virtue of this legal extension, the Government maintained that third-country nationals detained in Albania receive treatment equivalent to that in Italy. It further argued that instruments such as the Dublin Regulation, though not explicitly mentioned in the Protocol, continue to apply because the individuals remain continuously under Italian jurisdiction. Accordingly, the Protocol would neither interfere with the Common European Asylum System (CEAS) nor encroach upon the Union’s external competences.

With respect to the RD, the Government argued that the transfer to Albania does not qualify as a “return” within the meaning of Article 3, but it rather amounts to a temporary relocation to a different pre-removal detention facility, legally assimilated to ones located on Italian territory. Accordingly, it maintained that compliance with the Directive’s objectives and provisions, including Articles 15 and 16 on detention and conditions of detention, are not undermined, as the material conditions would be fully respected. Regarding the APD, the Government contended that Article 9 is not violated when returnees apply for asylum after being transferred to Albania, since they remain under Italian jurisdiction, and thus do not risk refoulement, and continue to benefit from the full application of both the APD and RCD.

Alternatively, the Government argued that EU law could apply directly through a functional interpretation of “territory.” In the absence of a clear EU definition of “border” or “transit zones,” the centres in Albania could be regarded as a fictio iuris, functionally equivalent to transit zones located on Italian soil. On this view, the legal equivalence of procedures in Albania and Italy would justify treating the Albanian centres as falling within the scope of EU law, in the same way as their territorial counterparts.

While the Dublin Regulation was not explicitly mentioned by the referring judges, it emerged as a contentious issue. In particular, the risk of circumventing Dublin criteria for unaccompanied minors (Article 8) and family members (Articles 9–10) was debated during the Sedrata hearing. The Italian Government maintained that the Regulation remains applicable because the Albanian centres qualify as “transit zones” under Dublin III. This, however, raised a fundamental question from the bench: on what legal basis could another Member State be required to accept a Dublin transfer from a non-EU centre, and how would this not interfere with common EU rules? Questions which were left unresolved.

The European Commission

The Commission, by contrast, adopted a strict literal reading of the directives, distinguishing clearly between jurisdiction and territory. While acknowledging that the individuals remain under Italian jurisdiction, it stressed that asylum and reception rules are territorially anchored and do not apply automatically outside Member State territory. Nonetheless, the Commission did not view the Protocol as violating EU law or encroaching on exclusive EU competences, so long as the legislator’s choice to apply EU standards effectively preserves the effet utile of the acquis. Its reasoning followed two separate lines, depending on the instrument in question.

As for the RD, the Commission noted that it does not strictly define its scope in territorial terms but rather sets standards to ensure the effectiveness of returns from EU territory. Since Italy has committed to applying these standards in Albania, the Commission did not see any inherent incompatibility with the temporary transfer of returnees outside the territory pending repatriation. Yet, this conclusion was subject to strict conditions: the Commission emphasised that detention should have been previously judicially authorised, that all guarantees under Articles 15–18 of the Directive are fully respected, and that the transfer to Albania must not constitute the execution of the return decision. In essence, for the Commission the Directive does not require detention to occur on the territory of the Member State: what is rather decisive is that the Member State fully complies with its concrete obligations.

As for the APD and the RCD, the Commission rejected the qualification of the Albanian centres as “transit zones.” It stressed that the notion of territory is autonomous under EU law and cannot be extended to third countries, and that thus a “transit zone” must be located within the Union’s territory. When pressed by the bench on whether an international definition of “transit zone” exists, it indicated that this was ultimately irrelevant, as the notion must be understood as a matter of EU law. Accordingly, the Protocol cannot extend EU territory, and the direct applicability of the asylum acquis is thus excluded.

That said, the Commission did not view the mere extension, via national law, of EU standards to procedures in Albania as automatically undermining the directives’ objectives or interfering with internal EU competences under the ERTA doctrine. Such a violation would only arise if the arrangement risked affecting common EU rules: a risk the Commission considered unproven here. Article 9 APD illustrates this approach: if the asylum application is made in Italy, transfer to Albania is precluded. Conversely, if lodged only after transfer, while the Directive does not apply directly, its purpose, i.e. to prevent removal before assessing refoulement risks, is fulfilled because Italy retains jurisdiction and applies EU standards.

Regarding the Dublin system, the Commission held that the Regulation does not apply outside EU territory, revealing a potential paradox noted by Advocate General Emiliou during Sedrata: if EU law does not formally apply, can it still be circumvented?

More broadly, the question arises whether exclusion from the scope of the Regulation and Directives is merely a consequence of its incidental inapplicability in a third country, or the result of a deliberate choice by Italy, and namely, transferring individuals to Albania. In the latter scenario, how can it be argued that the Protocol and Ratification Law do not effectively allow Italy to evade its obligations under EU law?

As President Lenaerts highlighted, the key concern of the ERTA doctrine is preventing Member States from using external bilateral agreements to regulate matters that fall within EU law, in ways that could undermine its objectives. In other words, it is not enough to claim that EU law does not directly apply in a third country, but what matters is whether the external action could affect the effective internal functioning and uniformity of the EU legal framework. In this respect, the Commission’s position appeared unsatisfactory, as it failed to address the broader systemic implications for the CEAS and the structural risks of circumvention inherent in the scheme.

This brings us to our legal assessment, where we examine the unresolved issues in the approaches of the Italian Government and the Commission regarding the challenges of extraterritorialising asylum procedures and applying EU law in a third country.

Assessing the Potential Interference of Procedures Conducted in a third country with the EU Migration and Asylum Acquis

All in all, both the Italian Government and the European Commission ultimately arrive at a broadly similar conclusion: the Italy-Albania Protocol does not entail a violation of the Union’s exclusive competences, nor does it compromise the effet utile of the relevant directives, insofar as EU standards can be ensured, even in a third country. However, this conclusion leaves several key issues unresolved. First, it does not fully address the implications for the Dublin system. Indeed, the extension of Dublin obligations outside the Union could highly interfere with the CEAS and the principle of mutual trust. Second, the assumption that equivalent standards can be guaranteed extraterritorially remains highly problematic, as the territorial scope of EU asylum law reflects structural constraints necessary to ensure full compliance with procedural and substantive guarantees. These two issues will be addressed separately in the following sections.

The (application of the) Dublin system: a paradigmatic interference with the CEAS

The application of the Dublin system emerged as a highly sensitive issue during the Sedrata hearing. While EURODAC was not discussed, the reasoning for the Dublin Regulation can be extended to it, in light of recital 54 of EURODAC Regulation. The Italian Government and the Commission took sharply divergent positions: the Government qualifies the centres as “transit zones” under Dublin, a view opposed by the Commission, which raises several critical questions.

First, how can the Albanian centres be considered “representations of Member States” under the APD and the RCD, or “transit zones” under the Dublin Regulation? This argument is unpersuasive, as it would imply that the notion of “transit zone” differs across two CEAS instruments, risking to undermine the system’s internal coherence.

Secondly, if the Dublin system were applied to asylum requests lodged in the Albanian centers, other Member States would be obliged to accept transfers, as the Italian Government argued. From a theoretical perspective, this would directly interfere with the CEAS and undermine the principle of mutual trust on which it rests (Lenaerts, 2017). In fact, the presumption of compliance with EU law standards appears questionable in itself when it is applied to an asylum request lodged outside the territory of a Member State — albeit under its jurisdiction. Yet, save for specific exceptions, that principle prevents other States from verifying whether, in a given case, Italy has actually complied with EU law in processing an asylum application, notably that it has allocated responsibility in accordance with the procedural guarantees laid down in the Dublin Regulation and with the right to an effective remedy against the transfer decision. In short, extending the Regulation to applications lodged in the Italian centres in Albania would run counter to the principle of mutual trust underpinning the Dublin system and, ultimately, the CEAS.

Third, from a practical perspective, applying the Dublin Regulation outside Italy would adversely affect the rights of asylum seekers lodging an application in another Member State and seeking reunification with a family member detained in Albania (Article 10 of the Dublin Regulation). Unless the applicants were also transferred to Albania — which would amount to their de facto detention — they would remain in Italy, thereby rendering effective reunification  impossible. This impossibility, which stems directly from the detention of the family member in Albania rather than in a detention facility on Italian territory, would breach their rights to family life and to the child’s best interests, as laid down in the Dublin Regulation and in Articles 7 and 24 of the Charter.

By contrast, if, as the Commission argues, the Dublin Regulation does not apply, Italy could evade its obligations under Articles 8— 10 of the Regulation and Articles 7 and 24 of the Charter. Once again, such circumvention would be achievable simply through the deliberate extraterritorialisation of asylum procedures. In a nutshell, whether applied or not, the Dublin Regulation illustrates the systemic and structural interference with the CEAS created by the Protocol and Ratification Law.

Ensuring Effective Application of  EU Standards and Rights in a Third Country: Mission Impossibile?

We concur with the Commission that the territorial nature of EU asylum law imposes inherent limits on extending its directives beyond the Union. However, we diverge from the view that voluntarily applying EU standards abroad via national law automatically resolves compatibility concerns. This divergence is anchored in the structural reality that the territorial scope of the directives is not merely formal: it reflects the impossibility of fully guaranteeing procedural and material standards outside the Union. Applying EU law where these guarantees cannot be secured risks undermining the directives’ objectives, the uniformity of EU law, and may raise concerns under the ERTA doctrine (see: De Leo & Celoria, and Montaldo).

As highlighted by the referring judges and the lawyers representing the migrants, a central issue is the gap between the guarantees afforded to migrants detained in Italy and those in the Albanian centres. The Government asserts that procedures in Albania are identical to those in Italy, yet legal equivalence on paper does not ensure effective protection in practice. In our view, the fiction that Albanian centres are legally treated as part of a Member State is insufficient to secure genuine compliance with EU standards on the ground.

The main concerns identified by the referring courts and discussed during the hearings include: the right to liberty under Article 6 of the Charter, notably the requirement for immediate release if detention is unlawful; guarantees related to detention conditions, including access for lawyers, family members, national, international, and non-governmental organisations, and access to healthcare; and the right to a fair trial and effective remedy under Article 47, particularly the right to be “advised, defended, and represented.” As emphasized by the rapporteur judge of Comeri and Sidilli case, these discrepancies risk creating a distinction between “two types of asylum seekers,” or even “two types of detainees,” solely based on where and when an application is lodged.

Both the RD and the RCD require that a person “shall be released immediately” if detention is found unlawful (Article 15(1) RD; Article 9(3) RCD). This requirement is inherently impossible to reconcile with the Italy–Albania scheme. Under Article 6(2) of the Protocol, Italian authorities must “take the necessary measures to ensure the permanence of migrants within the areas, preventing their unauthorised exit into the territory of the Republic of Albania, both during and after the completion of administrative procedures, irrespective of the final outcome.” In practice, release on Albanian territory is impossible: individuals can only be freed once transferred back to Italy. Therefore, even when detention is considered unlawful, the person remains under continuous coercive control throughout the transfer, i.e. from the detention center to the port, during maritime transport, and until release in Italy (typically in Bari or Brindisi): a process that may last from 24 hours to several days, depending on logistical conditions. In this respect, the Italian National Guarantor has recently noted that, if transfer cannot occur the same day, the person remains in a “separate area” of the same detention centre, a practice arguably failing short of the “immediate release” requirement. During this period, individuals are subject to a “coercive measure that deprives [them] of [their] freedom of movement and isolates [them] from the rest of the population” (CJEU, FMS, para. 223). Both the Albanian centres and the transport arrangements display the defining features of detention: a closed, restricted space where movements are limited and monitored and exit is not voluntary (CJEU, FMS, para. 231). The European Court of Human Rights similarly confirms that confinement on ships may constitute de facto detention, even if nominally for the person’s interest (Khlaifia and Others v Italy, paras. 70–71). In sum, the extraterritorial setting alters the legal consequences of detention, making immediate release practically unfeasible and raising serious questions about compliance with EU law.

Extraterritoriality also affects effective access to detention centres. Under national law implementing EU standards (Articles 16(2) and (4) RD; Article 10(4) RCD), a wide range of actors, e.g. parliamentarians, national monitoring bodies, UNHCR representatives, lawyers, family members, religious ministers, and civil society organisations, should be granted access (Articles 21 DPR 394/99; 7 D.Lgs. 142/2015; Ministerial Directive 19 May 2022). By contrast, Article 9(2) of the Protocol limits access to “lawyers, their assistants” and “international organisations and EU agencies,” raising questions about the interplay of the two regimes. Even if Italy seeks to apply its broader framework, as argued during the hearing, effective implementation depends on Albanian authorities’ consent. This is because access requires entry into Albanian territory, which remains under Albanian sovereignty. Article 9(2) subjects access to “applicable EU, national and Albanian law,” while Article 6(1) confirms Albanian responsibility for public order and security outside the centres and during transfers. Consequently, Albania may lawfully restrict access based on domestic entry, residence, or public order rules, limiting in practice the actors able to monitor detention conditions. While the Italian Government argued that this poses no practical concern, citing visa-free entry for holders of Italian passports or residence permits, the effectiveness of EU law guarantees cannot depend on conditions outside the Member State’s control. Making access contingent on the rules or discretion of a third country introduces uncertainty incompatible with the requirement to ensure EU rights in an effective and uniform manner. Moreover, denials imposed by Albanian authorities cannot be effectively challenged before an Italian court, which undermines the right to an effective remedy for those having the right to access the detention centres.

Similarly, under Article 10(4) of RCD, lawyers, family members, and civil society organisations have the right to communicate with and visit detainees, and any limitations must not make access impossible or excessively difficult. In the Albanian centres, however, restrictions appear structural and generalised rather than exceptional, making them difficult to reconcile with Articles 7 and 47 of the Charter and the proportionality requirement under Article 52(1). The Government’s argument that similar limitations exist in Italy is unpersuasive: in Albania, restrictions are the norm, access is more complex, time-consuming, and costly, and a recent monitoring report by the Italian National Guarantor for the Rights of Persons Deprived of Liberty notes that some detainees were not informed of their transfer, further hindering visits. Crucially, as noted above, the ultimate decision rests with Albanian authorities, meaning that limitations stemming from a third State’s sovereignty cannot be effectively challenged or remedied in Italy, thereby weakening the effective enjoyment of EU-law-derived rights.

Additionally, discrepancies in safeguards for lawyers are particularly pronounced. In Italy, appointed lawyers can access detention centres without prior authorisation and often be appointed in person after initial telephone contact. In Albania, this is not possible, nor foreseen by the Protocol or the Ratification Law, which allows travel at public expense only “when remote connection is not feasible” during the detention validation hearing (Article 4(5), Law 14/2024). This effectively precludes in-person meetings before or after the hearing to prepare a defence or appeal a negative decision. Given the current five-day deadline to challenge a validation decision, detainees without immediate lawyer access face heightened risk of ineffective representation. In-person meetings are often essential to identify vulnerabilities or health conditions that may render detention unlawful, tasks difficult to perform remotely, particularly when access depends on the private centre manager’s discretion and mobile phone use is restricted. Physical distance, limited contacts, and communication restrictions materially weaken lawyer-client interaction, undermining the right to effective assistance and representation under Article 47 of the Charter. Remote hearings further exacerbate these issues. By analogy with the Court’s reasoning in FP and Others (C‑760/22), videoconference participation is not inherently incompatible with a fair and public hearing, but its appropriateness depends on the individual being able to follow proceedings, be heard without technical obstacles, and communicate effectively and confidentially with their lawyer. In Italy, lawyers attending remote validation hearings can choose to be in the courtroom with the judge or at the centre with their client: a flexibility that is simply unavailable for detainees in Albania, further undermining effective representation.

Finally, significant disparities exist regarding the right to health, guaranteed under Article 16(3) RD and Article 17(2) RCD. Detainees in Albania face substantial limitations in medical services, particularly psychiatric and addiction care. Unlike in Italy, where detainees are integrated into the National Health System, no equivalent framework operates in Albania, and on-site medical teams cannot provide comparable treatment. These deficiencies have already led to serious consequences, including self-harm and suicide attempts (see, report, here). A recent report by the National Guarantor for the Rights of Persons Deprived of their Liberty found that, of 26 detainees for whom updated medical assessments were requested, 25 were deemed unfit for detention and released, highlighting the centres’ inadequacy to ensure proper care. While Article 4(8) of the Protocol obliges Albanian authorities to provide treatment in emergencies beyond Italian capacity on site, healthcare in a third country is by definition different from that provided by a Member State’s National Health System.

Taken together, the disparities analysed above make detention in centres located in a third country significantly more burdensome than detention in Italy, casting doubts as for its compliance with the principle of proportionality. There is no justification for imposing a harsher coercive measure than would be applied in Italy, particularly as the transfer to Albania does not demonstrably enhance the effectiveness of return procedures under the RD. On the contrary, a report by the Italian National Guarantor for the Rights of Persons Deprived of their Liberty shows that only 56 of 192 individuals transferred to Albania were ultimately returned to their country of origin, representing a return rate of approximately 29%, which is lower than the general return rate.

Conclusion

In conclusion, while the Italian Government frames the issue in terms of formal equivalence between procedures carried out in Albania and those in Italy, and the European Commission emphasizes that the voluntary application of EU standards suffices to ensure compliance, our assessment shows that this approach does not adequately address the structural limitations inherent in the de facto extraterritorial application of EU migration and asylum law.

While awaiting the Court’s decision, we maintain that the strict territorial scope of EU law in this area is not merely formal but reflects a substantive requirement: it is meant to operate within the territory of Member States, where its guarantees can be fully implemented and monitored. Remaining under the jurisdiction of a Member State alone is insufficient to ensure compliance, as EU law cannot be effectively applied outside the Union without undermining its purpose, coherence, and the procedural and material protections that are inherently tied to the territorial context in which they are guaranteed.

Two key issues arise. First, if the Dublin Regulation applies to applications lodged in Albania, the Protocol and Ratification Law would undermine mutual trust and the functioning of the Dublin system, since other Member States cannot verify compliance with EU law outside the Union. Even if it does not apply, the deliberate delocalization of asylum procedures to a third country allows circumvention of EU obligations. Second, procedural and material safeguards ensured in Italy cannot be fully replicated in a third country.

Thus, in our view, relocating individuals to Albania undermines the effet utile of the CEAS, creating tangible discrepancies in treatment that formal equivalence cannot remedy. This, in turn, risks breaching the principle of loyal cooperation and jeopardizes both the uniform application of EU law and the trust-based cooperation that underpins the EU legal order.

A Final Note: Why Albania Is Different from Other Externalisation Models

Throughout the hearings, “return hubs” were frequently cited as a possible analogy to justify the legality of the Albania model. However, as repeatedly emphasized by all parties, the two schemes are fundamentally different from a legal perspective. The Commission’s proposed reform of the notion of a ‘return decision,’ which provides the legal basis for return hubs, presupposes a formal removal decision to a country other than the state of origin with which an agreement exists. In that context, the transfer constitutes an actual return under EU law (discussed, in this blog, here). By contrast, the Albania model does not involve a removal but a temporary relocation of the detention stage of the return procedure under the full jurisdiction of the Member State, prior to any formal removal to the individual’s country of origin or habitual residence. Consequently, it cannot be assimilated to the return hub framework.

Similarly, the Albania model cannot be framed within the reformed notion of a safe third country without a connection requirement (discussed, in this blog, here), as no inadmissibility decision is taken in Italy based on Albania’s acceptance of the asylum application. Instead, the procedure merely relocates the processing of the asylum claim to Albania while keeping the substantive application under Italian jurisdiction.

This distinction highlights that equating the Albania model with return hubs or safe third country schemes overlook its unique legal and procedural features. It underscores the complexity of assessing its compliance with EU law and why the pending preliminary rulings are essential to clarify the boundaries and practical limits of this peculiar migration management scheme.

The Brexit deal - Council legal service opinion

Here's the EU Council legal service's opinion on whether the Brexit deal can be concluded by the EU alone, or requires also the participation of its Member States (known as a 'mixed agreement'). It concludes that it can be concluded by the EU alone, because it is a mixture of competences exclusive to the EU and competences shared between the EU and its Member States. Following the case law of the CJEU, it's an option for the EU to conclude a treaty including provisions on shared competence either by the EU alone, or together with its Member States.  (The main points are also summarised in a Twitter thread). 

 

I.              Introduction

1.             At the meeting of Coreper on 23 November 2020, the representative of the Council Legal Service (CLS) made an oral intervention on the legal nature of the future agreement with the United Kingdom (UK) which was being negotiated, and more particularly on the issue of mixity and on the possible EU-only nature of that future agreement, through the exercise by the EU of its so-called potential competence. In the meantime, the Trade and Cooperation Agreement between the EU and Euratom, of the one part, and the UK, of the other, was signed on 30 December 2020 (the Trade and Cooperation Agreement).

2.             In reply to a request by several delegations, in particular at the meeting of the UK Working Party on 13 January 2021, this opinion confirms and develops in writing the answers already provided orally by the CLS. It focuses more particularly on the issue of the EU exercising externally its potential competence - i.e. the exercise of its competence in areas of shared competence which are not already subject to common rules within the meaning of Article 3(2) TFEU and the related case-law - and the legal consequences of such an exercise of competences.

3.             In view of the short time available in the ongoing conclusion process, this opinion focusses on the Trade and Cooperation Agreement and does not provide an in-depth examination of all its aspects, nor does it provide a comprehensive and detailed competence analysis.

II.           Factual and Legal BACKGROUND

4.             On 25 February 2020, the Council adopted its decision[1] authorising the opening of negotiations for a future agreement with the UK, to which the negotiating directives were annexed[2]. This decision also nominated the Commission as the EU negotiator. In parallel, the Council and the Representatives of the Governments of the Member States recorded a statement[3] to the Council minutes. In this statement, the Member States' representatives authorised the Commission to conduct negotiations in areas of the future relationship that fall within their competences and stated that the question whether the new agreement would be concluded by the EU or by the EU and its Member States remained to be determined at the end of the negotiations[4]

5.             The negotiations, which were completed on 24 December 2020, resulted in three agreements: the Trade and Cooperation Agreement; the Agreement between the EU and the UK concerning security procedures for exchanging and protecting classified information, which supplements the Trade and Cooperation Agreement; and an Agreement between the Government of the UK and Euratom for Cooperation on the Safe and the Peaceful Uses of Nuclear Energy. As indicated above, this opinion focusses on the first Agreement.

6.             Under its first Article, the Trade and Cooperation Agreement "establishes the basis for a broad relationship between the [EU and the UK] within an area of prosperity and good neighbourliness characterised by close and peaceful relations based on cooperation, respectful of the Parties' autonomy and sovereignty"[5]. When deciding to sign the Agreement, the Council characterised it as "[establishing] the basis for a broad relationship between the [EU and the UK] involving reciprocal rights and obligations, common actions and special procedures" which is the wording from Article 217 TFEU on association agreements, on the basis of which the Council chose to sign the Trade and Cooperation Agreement with the UK[6].

7.             The Trade and Cooperation Agreement with the UK sets out arrangements in a vast array of areas such as trade in goods, services, investments, digital trade, capital movements and payments, intellectual property, public procurement, energy, aviation and road transport, fisheries, social security coordination, the absence of visas for short term visits (Part Two of the Agreement), law enforcement and judicial cooperation in criminal matters (Part Three), thematic cooperation (health and cybersecurity) (Part Four) and participation in EU programmes (Part Five).

It is underpinned by provisions ensuring a common institutional framework (Part One of the Agreement), including a dispute settlement mechanism (Part Six), and a level playing field between the Parties. There are 49 annexes and three protocols to the Agreement : a Protocol on administrative cooperation and combating fraud in the field of value added tax and on mutual assistance for the recovery of claims relating to taxes and duties; a Protocol on mutual administrative assistance in customs matters; and a Protocol on social security coordination.

The Agreement provides in its second Article that future bilateral agreements between the EU and the UK "shall constitute supplementing agreements to this Agreement, unless otherwise provided for in those agreements" and that "such supplementing agreements shall be an integral part of the overall bilateral relations as governed by this Agreement and shall form part of the overall framework"[7].

8.             On 29 December 2020, the Council adopted Decision No (EU) 2020/2252, on the signing, on behalf of the Union, and on provisional application of the Trade and Cooperation Agreement and of the Security of Information Agreement ('the decision on signature')[8].

9.             Through this decision, the Council, "in view of the exceptional and unique character of the Trade and Cooperation Agreement, which is a comprehensive agreement with a country that has withdrawn from the Union (…) [decided] to make use of the possibility for the Union to exercise its external competence with regard to the [UK]" (recital 6). The Council hence made the political choice that the Trade and Cooperation Agreement was to be concluded as an EU-only agreement. This is explicitly indicated in the decision on signature.

The reasons for this political choice are explained in recital 6 - "in view of the exceptional and unique character of the [Agreement]" - but also, indirectly, in recital 16 of the decision on signature which explains the reasons for the Council deciding to provisionally apply the Agreement by the fact that that it concerns "a country that has withdrawn from the Union", the UK being therefore "in a different and exceptional situation with regard to the Union compared to other third countries". The level of cooperation between the EU and the UK was indeed going to decrease from a very high level at the end of the transition period - during which the EU acquis still applied to the UK - to a lower level of cooperation as from the end of that period, thus causing disruption the severity of which could be limited through provisional application of the Trade and Cooperation Agreement.

10.         The consequences, and limits, of having made the above political choice are expressly set out in recital 15 and in Article 10 of the decision on signature where it is stated that "the exercise of Union competences through the Trade and Cooperation Agreement shall be without prejudice to the respective competences of the Union and of the Member States in any ongoing or future negotiations for, or signature or conclusion of, international agreements with any other third country, or in relation to any future negotiations for, or signature or conclusion of, any supplementing agreements [to the Trade and Cooperation Agreement]".

11.         On 25 December 2020, the Commission submitted a proposal for a Council decision on the conclusion of the Trade and Cooperation Agreement[9]. The discussions within the Council on this proposal are ongoing.

III.        Legal Analysis

12.         The views of the CLS have been sought in relation to the legal nature of the Trade and Cooperation Agreement, and more specifically, on the issue of the EU exercising its potential competence, on the issue of the EU-only nature of the Agreement and on the issue of the legal consequences for Member States of such an exercise of competences. As indicated in paragraph 3 above, the CLS will not examine each title of the agreement or proceed to a comprehensive and detailed competence analysis.

A.           EU exclusive and shared competences, as interpreted by the Court of Justice

13.         In accordance with Article 3(1) TFEU, the EU has exclusive competence, in particular, in the following areas: customs union, the establishment of competition rules necessary for the functioning of the internal market, the conservation of marine biological resources under the common fisheries policies, and the common commercial policy.

14.         In accordance with Article 3(2) TFEU, the EU "also [has] exclusive competence for the conclusion of an international agreement (…) in so far as its conclusion may affect common rules or alter their scope". As clarified by the Court in its judgment in the Broadcasting Convention Case[10], this last limb of Article 3(2) codifies the so-called AETR, or ERTA, jurisprudence[11].

15.         On shared competences, Article 4(1) and (2) TFEU provides the following:

"1. The Union shall share competence with the Member States where the Treaties confer on it a competence which does not relate to the areas referred to in Articles 3 and 6.

2.  Shared competence between the Union and the Member States applies in the following principal areas:

(a) internal market; (…)

(e) environment;

(f)  consumer protection;

(g) transport; (…)

(i)  energy

(j)  area of freedom, security and justice

(k) common safety concerns in public health matters (…)"

16.         The Court has consistently held that there is a risk that common EU rules may be affected by commitments undertaken by Member States, or that the scope of those rules may be altered, such as to justify an exclusive external competence of the EU under Article 3(2) TFEU, where those commitments fall within the scope of the said common EU rules[12].

17.         A finding that there is such a risk does not presuppose that the area covered by the international commitments (whether actual or envisaged) and that covered by the EU rules coincide fully. In particular, the scope of common EU rules may be affected or altered by international commitments where those commitments fall within an area which is already largely covered by such rules. Furthermore, such a risk of common EU rules being affected may be found to exist where the international commitments at issue, without necessarily conflicting with those rules, may have an effect on their meaning, scope and effectiveness[13].

When analysing the relationship between the international instrument at stake and the relevant EU rules, that analysis must take into account the areas covered, respectively, by the rules of EU law and by the provisions of that instrument, their foreseeable future development and the nature and content of those rules and those provisions, in order to determine whether the said instrument is capable of undermining the uniform and consistent application of the EU rules and the proper functioning of the system which they establish[14].

B.            Consequences of EU exclusive competences on the Member States

18.         The exercise internally, by the EU, of its competence has consequences on the Member States insofar as, if the EU thereby acquires exclusive competence, Member States may no longer enter into international commitments outside the framework of the EU institutions in the areas falling within EU exclusive competence[15].

19.         Conversely, internally, where the EU has not (yet) exercised its shared competences in a given area, the Member States can continue exercising their competences in that area "to the extent that the Union has not exercised its competences" (Article 2(2) TFEU). The same is true, externally, where it would result from the analysis of an (envisaged) international commitment that the conditions for exclusivity set out in Article 3(2) TFEU, as interpreted by the Court in its extensive case-law on external competences (see paragraphs 16 and 17 above), are not met and that, as a consequence, Member States can still exercise their competences externally.

20.         By way of example, the EU has not yet adopted common internal rules with regard to air traffic rights granted to third countries. The competence to conclude agreements with third countries on such matters has therefore not become an exclusive competence of the EU[16] and can be exercised either by the Member States or by the EU[17].

C.           Mixity of international agreements: obligatory or facultative

21.         It is recalled that, in accordance with the principle of conferral (Article 5 TEU), an international agreement is mixed, i.e. it is signed and concluded both by the EU and its Member States, if it concerns competences that belong both to the EU and to its Member States.

22.         There are, in practice, two types of mixity: obligatory or facultative.

Mixity is obligatory where, in addition to areas of EU competence, the envisaged agreement covers one or several areas that fall outside EU competences, i.e. where the Treaties have not conferred competences on the EU in that particular area. In such a case, there is no political choice: the agreement must be concluded both by the EU and its Member States.

Mixity is facultative where the envisaged agreement covers one or several areas where the EU has shared competences which are potential, i.e. not yet exercised or not yet covered by EU common rules regarding which the envisaged agreement would have consequences as mentioned in Article 3(2) and the related case-law. In such a case, the agreement may be concluded either by the EU and its Member States or by the EU alone. Depending on whether the Council decides to exercise all the EU potential competences or not, the agreement will be an EU-only or a mixed agreement. This is a political choice to be made by the Council on the basis of the relevant Treaty provisions which confer competence on the EU.

23.         In its Singapore FTA Opinion,[18] the Court provided clarifications as to the division of competence between the EU and the Member States in the field of trade and investment. The Court concluded that most of the Free Trade Agreement with Singapore fell within the exclusive competence of the EU either because it was covered by the Common Commercial Policy, including on foreign direct investment, as defined in Article 207(1) TFEU, or because it was covered by the Common Transport Policy (Articles 91 and 100(2) TFEU)[19].

24.         In the same Opinion, the Court recalled that foreign direct investment is an exclusive competence of the EU. However, to the extent that the FTA provisions related to indirect investment (i.e. portfolio investment), the competence for that was "shared between the European Union and the Member States pursuant to Article 4(1) and (2)(a) TFEU"[20]. On the possible exercise of such potential shared competence, the Court clarified in its judgment in Weddell, that "(…) the mere fact that international action of the [EU] falls within a competence shared between it and the Member States does not preclude the possibility of the required majority being obtained within the Council for the [EU] to exercise that external competence alone"[21].

25.         In the case of facultative mixity, where the EU has competence for the matters covered by an agreement, of which at least some fall within its potential competence, that potential competence can still be exercised by the Member States if they wish. The Council may however decide, for a particular agreement, to exercise the potential EU competence on the basis of the relevant Treaty legal basis,[22] in accordance with the voting rules provided therein. Exercising or not the EU potential competence externally when concluding an agreement is a matter of political choice for the Council[23].

26.         This is to be distinguished from cases of obligatory mixity where the subject matter of an agreement partially covers matters for which the EU has competence, and partially matters for which the EU has no competence whatsoever. In such a situation, as said above in paragraph 22, mixity is not a political choice but a legal obligation[24].

27.         It is recalled that the conclusion of mixed agreements presents procedural and political complexity as the process relating to the conclusion of recent mixed agreements testifies. Indeed, the entry into force of a mixed agreement requires ratification not only by the EU (conclusion by the Council, usually after obtaining the consent of the European Parliament), but also by all its Member States in accordance with their constitutional requirements. As a consequence, in principle, the EU will wait for ratification by all Member States before ratifying itself. Such a process may take a long time and depends on whether the ratification runs smoothly or not in all Member States. By contrast, in order to enter into force, an 

EU-only agreement needs only to be ratified by the EU, and can in practice be concluded within a shorter period of time than a mixed agreement.

D.           The particular case of the trade and cooperation agreement with the UK

28.         While not entering into a detailed examination of its different Titles and provisions, a rapid examination of the Trade and Cooperation Agreement shows that no situation of obligatory mixity arises: the EU has competence in all the fields covered by it.

29.         The CLS recalls in this context that, by way of example, provisions related to trade or fisheries contained in Heading One of Part Two (Trade) and Heading Five of Part Two (Fisheries) are exclusive competences of the EU by virtue of Article 3(1) TFEU. Other provisions of the Agreement, for instance, Title II of Heading Two (Aviation safety) or of Part Three (Law enforcement and judicial cooperation in criminal matters), cover matters that have become exclusive by exercise or are largely covered by EU acquis that will be or risk being affected by the Agreement[25].

30.         Conversely, there are certain other provisions, for instance traffic rights in the aviation area, which belong to shared EU competences not yet exercised internally, and which are therefore only potential EU competences. In relation to these potential competences, the Council could decide, when adopting the decision on signature, that the EU would exercise this type of non‑exclusive potential competences, thus making the Trade and Cooperation Agreement an EU‑only agreement.

31.         When it adopted the decision on signature on 29 December 2020, the Council made this political choice and decided to exercise the EU competence in the areas of potential EU competence. That decision produces legal effects not least because it has entered into force on the day of its adoption by the Council (29 December 2020) and the Trade and Cooperation Agreement is being provisionally applied since 1 January 2021. It follows that the Agreement must also be concluded as an EU-only agreement.

32.         As indicated above in paragraphs 21 to 25, only where the EU is vested with the competence to do so in the Treaties, can it conclude an international agreement, in accordance with the relevant legal basis. In the case at stake, the Trade and Cooperation Agreement was signed and provisionally applied on the basis of Article 217 TFEU, as the substantive legal basis, in conjunction with the relevant procedural legal bases (Article 218(5) and (8) TFEU).

33.         Article 217 TFEU empowers the EU to conclude with a third country an agreement establishing an association involving reciprocal rights and obligations, common action and special procedure. The areas covered by such an agreement should be within the limits of the powers that the Member States have conferred on the EU in the Treaties to attain the objectives set out therein.[26] Article 217 TFEU can be used whenever there is EU competence - i.e. where the Treaty confers the appropriate competence on the EU in the different areas covered by the agreement - even if this competence has not been exercised fully or is only potential. Article 217 TFEU however is not to be used as a legal basis if there is no underlying competence, i.e. the underlying sectoral competence must exist for Article 217 TFEU to be used as a legal basis.

34.         Article 217 TFEU allows the EU to conclude, by unanimity, a wide ranging agreement on matters of EU competence without the need to identify in detail the areas where the EU has already exercised or not its competence. It can include areas of EU competence where the sectoral legal basis requires unanimity or qualified majority voting, as well as areas of potential EU competence not yet exercised internally.

E.            Exercise vis-à-vis the UK of the EU shared competence in social security coordination and aviation traffic rights

35.         By way of example, the EU has a shared competence in the area of social security coordination (Articles 48 TFEU). The EU has concluded several agreements with third countries that contain rules on the coordination of social security. This is typically the case for association agreements based on Article 217 TFEU. The lack of completion of free movement of persons is not a hindrance to the conclusion of an EU agreement in the field of social security coordination[27]. So far, agreements with third countries covering also the area of social security coordination have been generally concluded as mixed agreements. However, given that the EU has competence in this area, this is a matter of political choice. It is equally possible for the EU to choose to exercise its competence externally and to conclude such an agreement as an EU-only agreement.

36.         Similarly, the EU has shared competence in the area of air transport (Articles 91 and 100(2) TFEU). Once and to the extent that the EU exercises internally such shared competence, it becomes exclusively competent externally for matters affecting those internal rules. As the EU has not yet exercised this shared competence internally with regard to traffic rights granted to third countries, agreements with third countries on such matters are often concluded as mixed agreements (facultative mixity). The Council can choose whether or not to use it externally.

F.            Effect for Member States of the EU exercising its shared (potential) competence

37.         The external exercise of the above EU competences with regard to a given third country does not prevent Member States from exercising their competence on that same matter vis-à-vis other third countries. To take an example, the EU has an aviation agreement with Switzerland that has existed for more than 20 years[28] and which covers traffic rights. The existence of this agreement has not prevented the Member States from concluding agreements on traffic rights with other third countries.

38.         Hence, the fact that the Council has decided to opt, in the specific case of the Trade and Cooperation Agreement with the UK, for an EU-only agreement does not prevent Member States from continuing to exercise their national competences vis-à-vis other third countries in that same area of potential EU competence. Exercise by the EU of its potential competences in the concerned area vis-à-vis the UK does not trigger a situation of exclusivity as regards its relations with other third countries nor a situation of exclusivity for the area of traffic rights concerning other third countries as if that competence had been exercised internally. Therefore, Member States remain free to continue concluding international agreements in these areas of shared competence with third countries other than the UK under the same conditions as before the signature of the Trade and Cooperation Agreement. As explained above in paragraph 10, this possibility is explicitly confirmed in recital 15 and Article 10 of the decision on signature.

G.           Provisions on possible so-called "top-ups" by Member States

39.         Moreover, the Trade and Cooperation Agreement provides for, or does not exclude, the possibility for Member States to enter into bilateral agreements with the UK concerning specific matters covered by the Agreement in the areas of air transport, administrative cooperation in the field of customs and VAT and social security coordination.[29] Member States may do so provided such agreements are compatible with EU law, do not undermine the functioning of the Agreement and are otherwise compatible with the conditions set out in Articles 6 to 8 of the decision on signature, which foresees an internal mechanism of information and cooperation between the Member States and the Commission, culminating with the possibility of authorising bilateral arrangements or agreements that Member States would conclude with the UK in those areas.

40.         This internal mechanism is an expression of the duty of sincere cooperation incumbent on the Member States (Article 4(3) TEU)[30], which is of general application and does not depend on whether the competence concerned is exclusive[31]. On this basis, Member States have a duty to refrain from any action which could jeopardise the attainment of the EU objectives, and to ensure that such arrangements or agreements are compatible and do not undermine the functioning of the Trade and Cooperation Agreement. To the extent that it frames and organises the possibility of certain bilateral agreements supplementing the Trade and Cooperation Agreement (so-called 'top-ups') as allowed or not prohibited by the Agreement itself, this internal mechanism is also an expression of the fact that the Agreement is part of EU law, is binding in accordance with Article 216(2) TFEU, and has therefore primacy.

41.         The existence of the internal mechanism is independent of the nature of the competence at stake. To take the example of traffic rights, the EU is exercising in the Trade and Cooperation Agreement its external competence on certain traffic rights vis-à-vis the UK. Certain bilateral agreements supplementing the Trade and Cooperation Agreement are permitted by the Agreement itself in accordance with the conditions set out therein[32]. The Agreement itself specifically prohibits further top-ups (Article AIRTRAN.23)[33]. The internal empowerment mechanism in Article 6 of the decision on signature regulates how the permitted top-ups are going to be authorised. Therefore, at least as far as top-up agreements concerning air traffic rights are concerned, the authorisation mechanism is not only an expression of the duty of sincere cooperation. It is also necessary because the shared, previously unexercised, external competence on traffic rights vis-à-vis the UK is now governed by the provisions of the Trade and Cooperation Agreement which has primacy, and is a matter of exclusive EU competence vis-à-vis the UK. However, as stated above in paragraphs 37 to 38 and explicitly confirmed in recital 15 and Article 10 of the decision on signature, that EU competence is not exclusive vis-à-vis other third countries.

42.         Lastly, the CLS takes this opportunity to clarify, as it did in Coreper on 22 January 2021, that contrary to the statement made by the Commission to the minutes of the Council on 29 December 2020, in connection with the adoption of the decision on signature,[34] it does not see any legal obstacle for a legal act based on Articles 217 and 218 TFEU, such as the decision on signature, or the future Council decision concluding the agreements, to contain such an internal mechanism for authorisation of bilateral arrangements or agreements between individual Member States and the UK. Such internal authorisation or empowerment mechanisms may be set out either in a legal act adopted on the basis of the relevant sectoral substantial legal basis (i.e. a legislative act) or in a legal act adopted by the Council for signing and concluding international agreements[35].

IV.        Conclusion

In conclusion, the Council Legal Service confirms its view that, as it only covers areas where the EU has competence, whether exclusive or potential, the Trade and Cooperation Agreement may be concluded as an EU-only agreement on the basis of Article 217 TFEU. The Council decided to make this choice when it adopted the decision on signature on 29 December 2020.

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[1]           Council Decision (EU, Euratom) 2020/266 of 25 February 2020 authorising the opening of negotiations with the United Kingdom of Great Britain and Northern Ireland for a new partnership agreement (OJ L 58, 27.2.2020, p. 53).

[2]           Doc 5870/20 ADD 1 REV 3, Annex to Council Decision authorising the opening of negotiations with the United Kingdom of Great Britain and Northern Ireland for a new partnership agreement, 25 February 2020.

[3]           Annex B of Doc. 6239/20.

[4]           "[T]he Member States' representative authorise the Commission to conduct negotiations in areas (…) that fall within the competences of the Member States (…)" and "the question of whether the (…) agreement will be concluded by the Union or by the Union and its Member States will be determined at the end of the negotiations." (emphasis added).

[5]              See Article COMPROV.1 (Purpose) of the Agreement. This wording is similar to that in Article 8(1) TEU on the EU's relationships with neighbouring countries.

[6]              See recital 5 of Council Decision (EU) 2020/2252 of 29 December 2020 on the signing, on behalf of the Union, and on provisional application of the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part, and of the Agreement between the European Union and the United Kingdom of Great Britain and Northern Ireland concerning security procedures for exchanging and protecting classified information (OJ L 444, 31.12.2020, p. 2).

[7]           See Article COMPROV.2 (supplementing agreements).

[8]           See above footnote 7.

[9]           COM (2020) 856 final.

[10]          Case C‑114/12, Commission v. Council ('Broadcasting Convention'), judgment of the Court (Grand Chamber) of 4 September 2014, EU:C:2014:2151, paragraphs 66 and 67. See also Opinion 1/13 of the Court of Justice (Grand Chamber) of 14 October 2014, Child Abduction Convention, EU:C:2014:2303, paragraphs 69 to 74.

[11]          Case 22/70, Commission v Council ('ERTA'), judgment of 31 March 1971, EU:C:1971:32, paragraphs 17 to 19: "17. In particular, each time the Community, with a view to implementing a common policy envisaged by the Treaty, adopts provisions laying down common rules, whatever form these may take, the Member States no longer have the right, acting individually or even collectively, to undertake obligations with third countries which affect those rules. 18. As and when such common rules come into being, the Community alone is in a position to assume and carry out contractual obligations towards third countries affecting the whole sphere of application of the Community legal system. 19. With regard to the implementation of the provisions of the Treaty, the system of internal Community measures may not therefore be separated from that of external relations."

[12]          Opinion 2/91 of the Court of Justice of 19 March 1993, ILO, EU:C:1993:106, paragraph 25; Case C-467/98, Commission v Denmark ('Open Skies'), judgment of the Court of 5 November 2002, EU:C:2002:625, paragraph 82; and Opinion 1/03 of the Court of Justice (Full Court) of 7 February 2006, Lugano Convention, EU:C:2006:81, paragraphs 120 to 126.

[13]          See Opinion 2/91 ILO (op. cit. footnote 13), paragraphs 25 and 26; Judgment in 'Open Skies' (op. cit. footnote 13), paragraph 82; Opinion 1/03 Lugano Convention (op. cit. footnote 13), paragraphs 120 and 126; Judgment in 'Broadcasting Convention' (op. cit. footnote 11), paragraphs 68 to 73; as well as Joined Cases C‑626/15 and C‑659/16, Commission v Council ('Weddell') judgment of the Court (Grand Chamber) of 20 November 2018, EU:C:2018:925, paragraphs 113 and 114 and the case-law cited.

[14]          See Opinion 3/15 of the Court of Justice (Grand Chamber) of 14 February 2017, Access Rights, EU:C:2017:114, paragraph 108 and the case-law cited.

[15]             Opinion 2/91 ILO (op. cit. footnote 13), paragraphs 25 and 26; Judgment in 'Open Skies' (opt. cit. footnote 13), paragraph 82.

[16]             Judgment in 'Open Skies' (opt. cit. footnote 13), paragraphs 90 to 92.

[17]             See CLS opinion in 5990/18 on the Regulation on competition in air transport, paragraphs 23 and 24.

[18]          Opinion 2/15 of the Court of Justice (Full Court) of 16 May 2017, Singapore FTA, EU:C:2017:376.

[19]          In the case of transport services, the Court deduced this from its AETR case law: see Opinion 2/15 Singapore FTA (op. cit. footnote 19), paragraph 170 and further. Note however that air transport services were not covered in the Singapore agreement, see paragraph 63 of that Opinion.

[20]          Opinion 2/15 Singapore FTA (op. cit. footnote 19), paragraph 243.

[21]          Judgment in 'Weddell' (opt. cit. footnote 14), paragraph 126.

[22]          See CLS opinion in 12866/19 on the CETA Investment Court System (ICS), paragraph 6.

[23]          See Case C-600/14, Germany v. Council ('OTIF'), judgment of the Court (Grand Chamber) of 5 December 2017, EU:C:2017:935, paragraph 68; see also Judgment in 'Weddell' (opt. cit. footnote 14), paragraphs 126 and 127.

[24]          See Opinion 2/15 Singapore FTA (op. cit. footnote 19), paragraph 292. See also CLS opinions in 12866/19 (CETA ICS) and 6442/19 (UN Convention on Investor-State Arbitration).

[25]          See, inter alia, Regulation (EU) 2018/1139 of the European Parliament and of the Council of 4 July 2018 on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency (OJ L 212, 22.8.2018, p. 1) and Directive (EU) 2016/681 of the European Parliament and of the Council of 27 April 2016 on the use of passenger name record (PNR) data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime (OJ L 119, 4.5.2016, p. 132).

[26]          See Case C-81/13, UK v Council ('social security Turkey'), judgments of the Court (Grand Chamber) of 18 December 2014, EU:C:2014:2449, paragraphs 61 and 62.

[27]             As regards Turkey, for example, the Court compensated for the lack of completion of free movement with the addition of Article 217 TFEU to Article 48 TFEU as a substantial legal basis for the adoption of the EU position, to be taken within the Association Council set up by the EU-Turkey Association Agreement, with regard to the adoption of provisions on the coordination of social security systems (see judgment in 'social security Turkey' (op. cit. footnote 27), paragraph 63.

[28]          Agreement between the European Community and the Swiss Confederation on Air Transport, signed on 21 June 1999 (OJ L 114, 30.4.2002, p. 73).

[29]          See Article AIRTRN.3 and Article 41 of the VAT Protocol.

[30]          Article 4(3) TEU: "Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out the tasks which flow from the Treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives."

[31]          C-246/07, Commission v Sweden, judgment of the Court (Grand Chamber) of 20 April 2010, EU:C:2010:203, paragraph 71.

[32]          Article AIRTRN.3(5) TCA: "the rights mutually granted in accordance with paragraph 4 (i.e. top-ups) shall be governed by the provisions of this Title."

[33]          "The United Kingdom and a Member State may not grant each other any rights in connection with air transport to, from or within their respective territories other than those expressly laid down in this Title, save as provided for in Article AIRTRN.3 (4) and (9) [traffic rights]."

[34]          Doc. 5525/20 ADD 1.

[35]          The CLS recalls that Article 4 of the Council Decision on the conclusion of the Withdrawal Agreement establishes a similar internal mechanism in relation to agreements in areas of EU competence that certain Member States are allowed, under the conditions referred in that provision, to conclude with the UK (see Council Decision (EU) 2020/135 of 30 January 2020 on the conclusion of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, OJ L 29, 31.1.2020, p. 1).