In Wine Veritas: The Cjeu In I Lawsuit To A Greater Extent Than Strengthens The Eu’S External Role

Steve Peers

Only a few Member United States of America hit proficient wine; but it is quaffed enthusiastically inwards all of them. That unproblematic fact lies at the catch of today’s judgment inwards Germany v Council, inwards which the CJEU, consistently with a string of recent judgments, significantly strengthened the EU’s job inwards external relations.

Background

In particular, this instance concerned the province of affairs where Member United States of America are ‘trustees’ of the EU’s external competence. This occurs where (as is oftentimes the case), the European Union is non able to sign upwards to a treaty or participate inwards an international organisation, fifty-fifty though it has external competence as regards the subject-matter of that scheme or treaty. In that case, as established inwards prior instance law, Member United States of America must deed on the EU’s behalf.

However, the Treaties don’t regulate this province of affairs directly, together with before today, at that topographic point was niggling instance police pull regulating the details of such ‘trusteeship’. So the exercise of the EU’s powers inwards such scenarios tin live on awkward. For instance, before this twelvemonth the Council could non grip on a Commission proposal to coordinate Member States’ positions on behalf of the European Union as regards possible novel ILO measures regarding forced labour (see farther my blog post service on this issue).

Today’s judgment concerned the International Organisation of Vine together with Wine (OIV), an international organisation which was originally laid dorsum inwards 1924, but which was reconstituted with a novel yell inwards 2001. Its membership includes 21 Member States, including to a greater extent than or less (such as Finland) which are non known for their lineament of vino production, although the compass of the OIV also extends to grapes together with (unfortunately for small-scale children) raisins.

In practice, the top dog focus of the OIV is drafting technical resolutions on vino production together with quality. These resolutions don’t bind the members as such, so essentially constitute ‘soft law’. The OIV adopts these measures at a lengthy annual conference held each summertime inwards a rather pleasant location. There are in all probability many opportunities for delegates to sample all the latest fine wines. In short, OIV membership appears to live on a little-known – but doubtless much-loved – perk for agriculture ministers together with their officials.

But later ninety years of such genteel wine-tasting, this classy scheme was dragged into the mud of an arcane European Union inter-institutional dispute. This began when the European Union legislation establishing a mutual marketplace seat scheme for vino was amended inwards 2008, inwards social club to brand the organisation’s resolutions binding as regards European Union law. The Commission promptly proposed that the European Union exceed a fellow member of the organisation, amongst its Member States.

There was non plenty back upwards amidst Member United States of America for the Council to adopt this proposal. Instead, the private Member United States of America coordinated their voting inwards the OIV’s annual meeting. The Commission so threatened those Member United States of America with infringement actions if they continued to vote inwards the OIV to adopt measures which affected the European Union acquis. So as a compromise, the Council agreed to adopt a Decision which would coordinate their seat on behalf of the European Union as a whole.

The Council acted on the reason of Article 218(9) TFEU, which provides as follows:

The Council, on a proposal from the Commission or the High Representative of the Union for Foreign Affairs together with Security Policy, shall adopt a determination suspending application of an understanding together with establishing the positions to live on adopted on the Union’s behalf inwards a trunk laid past times an agreement, when that trunk is called upon to adopt acts having legal effects, with the exception of acts supplementing or amending the institutional framework of the agreement

Germany, supported past times several other Member States, so challenged this Decision on 2 grounds. First, it argued that Article 218(9) TFEU only permits the Council to constitute the seat of the EU as such, as distinct from the activeness of its Member States. Secondly, it argued that Article 218(9) TFEU only applies where the measures inwards enquiry are binding as a thing of international law, rather than as a thing of EU law.

The judgment

The Advocate-General’s opinion agreed with Federal Republic of Federal Republic of Germany on both points, but the Court’s judgment rejected them both. First of all, as regards the compass of Article 218(9), the Court pointed out that the words ‘on the Union’s behalf’ did non specifically bound themselves to cases where the Union was political party to the understanding inwards question. The Court did grip that the previous provisions of the external relations Title of the Treaty only referred to treaties signed past times the EU. So did the reference to suspending a treaty, laid out inwards Article 218(9) itself.

However, when it came to a determination adopted past times a trunk established past times an agreement, the intelligence ‘agreement’ had a different, wider meaning, applying non only to treaties which the European Union was a political party to, but also to treaties which only the Member United States of America (or to a greater extent than or less of them) were political party to. The Court justified this distinction on the grounds that the Treaty rules on the negotiation, conclusion or interruption of agreements only applied to the European Union itself, whereas the European Union does non accept to live on a political party to an understanding inwards social club to command Member States’ actions as regards implementing measures.

On the minute point, the Court described the soft-law decision-making procedure of the OIV, together with so noted that due to the link with OIV measures made past times European Union law, those measures ‘were capable of decisively influencing the content’ of European Union legislation. Therefore those measures had ‘legal effect’, together with the Council could rightly adopt a Decision establishing the EU’s seat on what they should be.  

Comments

The Court’s judgment agency that the European Union is inwards a strong seat to coordinate its Member States’ activeness inwards international organisations, where the Member United States of America are trustees of the Union’s external competence. In fact, as the Advocate-General’s sentiment pointed out, at that topographic point is at nowadays no existent deviation betwixt the European Union beingness a political party to the OIV together with non beingness a political party to it.

First of all, at that topographic point tin at nowadays live on no incertitude that the European Union has such a coordination power, on the reason of Article 218(9) TFEU. Secondly, since the compass of that ability is linked to the existence together with nature of the EU’s external competences, the Court’s recent judgment inwards the broadcasting rights case, giving a generous interpretation of the EU’s exclusive external powers later the Treaty of Lisbon, is relevant here.

That recent judgment is arguably also relevant past times analogy to the interpretation of the status that the planned acts must accept ‘legal effects’. This status applies, as today’s judgment makes clear, whenever European Union legislation has made an limited link to the measures which an international scheme mightiness adopt. But the Court did non bound the notion of ‘legal effects’ to such cases. The concept mightiness thus also apply where at that topographic point is only an indirect potential impact upon European Union legislation (cf the broadcasting rights case), or where the stair out inwards enquiry has number only upon 3rd parties, or inside the international scheme itself.

What does this hateful inwards practice? Where the European Union has exclusive external powers, Member United States of America can’t deed to carry on European Union law, fifty-fifty if the European Union is non a fellow member of the international scheme (see the Commission v Greece judgment, as regards the IMO). The Council Decisions coordinating Member State positions accept to include a noun legal base, so the nature of the EU’s competence is clear (CITES judgment). Even where the European Union together with the Member United States of America percentage competence, together with the European Union has non regulated the number inwards question, the existence of an European Union strategy mightiness forestall Member United States of America from acting solitary (see past times analogy Commission v Sweden, although that instance concerned a treaty which both the European Union together with its Member United States of America were parties to).

Of course, the obligation of Member United States of America to deed as trustees inwards the EU’s involvement does non hateful that they volition necessarily grip on a proposed Council Decision to coordinate their activeness (for instance, consider the illustration of the ILO forced labour measures, referred to above).

The Court’s judgment necessarily does non guide touching upon the enquiry of the procedure past times which the European Union authorises its Member United States of America to sign or conclude treaties (as distinct from acting inside an international organisation) as trustees of European Union competence. But if the judgment is read literally, it volition accept a important impact on that process. For although the judgment states that Article 218(1) to (8) TFEU only applies to the negotiation together with conclusion of agreements by the EU, the European Union practise until at nowadays is to job these provisions also to approve the negotiation together with conclusion of treaties past times the Member States, acting as trustees of the EU’s interest. (See for instance, the Council Decision concerning the domestic workers convention, based on Article 218(6) together with (8)).

Oddly, at that topographic point was no existent intelligence inwards this litigation of the possible alternative route of using the EU’s internal legislative powers to regulate Member States’ conduct inside international organisations. The Advocate-General briefly (and bizarrely) mentioned the possible job of Article 352 TFEU, the ‘residual powers’ clause inwards the Treaties, but why non simply job Article 43 TFEU, the ability relating to the mutual agricultural policy?

This would entail the adoption of a legislative act. While it mightiness live on argued that this is also cumbersome a procedure to job every fourth dimension the OIV holds an annual meeting, it mightiness instead live on possible to adopt only i legislative measure, which sets out a full general framework for coordinating Member States’ activeness as regards all hereafter OIV meetings.

Adopting a legislative deed inwards relation to an international treaty mightiness seem strange at showtime sight, but it isn’t really. It was, of course, a legislative deed that showtime gave legal number to OIV soft police pull inwards the European Union legal social club inwards the showtime place. More broadly, the European Union oftentimes adopts legislative acts to coordinate Member States’ treaty-making competence, inwards areas discipline either to European Union exclusive competence (cf investment agreements) or to shared competence, where at that topographic point is a large European Union job (cf air carry treaties).

And if the Court actually meant to say that Article 218(1) to (8) tin no longer live on used to let Member United States of America to sign together with ratify international treaties as trustees of European Union competence, so legislative acts volition accept to live on used inwards this context too. So it would accept made to a greater extent than feel for the Court to dominion that European Union internal legislative powers must live on used to regulate all aspects of Member States’ trusteeship.

Some concluding thoughts on the job of the other European Union institutions, together with the seat of non-participating Member States, next this judgment. First, the European Parliament (EP). It didn’t participate inwards the proceedings, but possibly it should accept done. As the Advocate-General pointed out, the judgment is the worst-case final result for the EP, since it did non accept the chance to approve European Union membership inwards the OIV, together with nor tin it command the Council’s adoption of measures which impact ultimately upon the interpretation of European Union legislation. In future, the EP would accept the chance to address such issues when the European Union legislation making such a link to international measures is adopted. But inwards this case, the legislation was adopted before the Treaty of Lisbon, when the EP was only consulted upon agricultural legislation. At least, as the Advocate-General pointed out, the EP must live on ‘immediately together with fully informed’ of the Council Decisions relating to Member States’ trusteeship pursuant to Article 218(10) TFEU, which the CJEU has late interpreted broadly.

As for the CJEU, it has special jurisdiction relating to envisaged international treaties pursuant to Article 218(11) TFEU. If Article 218(9) applies to Member States’ trusteeship, so for certain so does Article 218(11). Indeed, as the Advocate-General pointed out, the Court has already ruled as much. In fact, it volition imminently live on ruling i time again on such a instance (Opinion 1/13, on the Hague Convention on kid abduction). So nosotros volition live on able inwards a week’s fourth dimension to consider how the 2 judgments friction match together.

Finally, what close the seat of Member United States of America which are non members of the OIV? Actually, the operative job of the Court’s ruling makes no reference to this issue, together with the judgment is logically as applicable whether to a greater extent than or less or all Member United States of America are political party to the international understanding inwards question.

But inwards the exceptional context of the OIV, the Court’s confirmation that the Council has the ability to coordinate Member States’ positions inwards the EU’s interests makes obvious sense. Due to the link betwixt OIV resolutions together with European Union law, those resolutions impact all Member States, because they carry on the lineament together with cost of vino drunkard inwards every Member State. Furthermore, they carry on the functioning of the mutual marketplace seat inwards wine, which is paid for past times all European Union taxpayers, whether they are teetotallers or only potable beer or fifty-fifty (inexplicably) whisky.  In this light, the determination of the U.K. (not a fellow member of the OIV) to intervene, with other Member States, inwards back upwards of Germany, rather than the European Union institutions, is simply Pavlovian.

Barnard & Peers: chapter 24

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