Institutional Residual In Addition To The Negotiation Of International Agreements

Andrés Delgado Casteleiro, Lecturer at Durham Law School

Introduction

In in conclusion Thursday’s judgment on the Case C-425/13, Commission v Council, the CJEU was asked to determine the reach of the Council’s powers to number negotiating directives to the Commission in addition to the role of the special commission overseeing the Commission during the negotiations with Commonwealth of Australia concerning the linking of its emissions trading scheme with the EU.  The instance concerns the sectionalisation of powers betwixt the Council in addition to the Commission in addition to the extent to which the old tin exercise about sort of command over how the latter is conducting international negotiations.

Background

Between 2012 in addition to 2013, the Commission negotiated an understanding with Switzerland to link their emissions trading scheme to the EU’s. To endure ameliorate informed of the how the negotiations were beingness conducted, the Council develop a special commission pursuant to Article 218 (4) TFEU (the Treaty clause setting out rules on how the European Union negotiates in addition to concludes international treaties). However, the Council was non completely satisfied on how the Commission consulted this commission during the negotiations of the agreement. Certain Member States argued that the data provided yesteryear the Commission was scant. In fact, the Commission referred the Council to a website of the Swiss Federal Office for the Environment when asked to furnish an update on how negotiations were going.

In lite of what the Council regarded every bit the Commission’s failure to effectively consult the special committee, when the Council adopted the negotiating directives for the conclusion of a similar understanding with Australia, it envisaged a greater interest of the Council during the negotiations through the special committee. The Decision of the Council of the European Union of thirteen May 2013 authorizing the opening of negotiations on linking the European Union emissions trading scheme with an emissions trading scheme inwards Commonwealth of Australia (Council Decision) establishes inwards the instant judgement of Article 2 that “the Commission shall study inwards writing to the Council on the resultant of the negotiations afterwards each negotiating session and, inwards whatever event, at to the lowest degree quarterly.” Moreover, Article 1(2) of the Decision states that the Commission shall comport the negotiations inwards accordance with the really detailed negotiating directives in addition to procedures laid out inwards the Annex to the Council Decision. The annex provides, alongside other things, that detailed negotiating positions of the Union shall endure established inside the special committee.

Inasmuch every bit the Council Decision restricted the Commission’s reach of maneuver when negotiating with Australia, the Commission brought an activeness against it. The Commission’s plea boils downwardly to 2 claims. First, the obligation to study inwards writing afterwards each negotiation session or at to the lowest degree quarterly constitutes a breach of Article 13(2) TEU (role of the institutions), Article 218(2) to (4) TFEU (Treaty negotiation process), Article 295 TFEU (possibility to conclude interinstitutional arrangements) in addition to the regulation of institutional balance. Secondly, inwards in addition to thus far every bit it provides that ‘detailed negotiating positions of the Union shall endure established’ yesteryear the special commission or the Council, the Commission alleges a breach of Article 13(2) TEU, Article 218 TFEU in addition to the regulation of institutional balance.

The Judgment of the CJEU

In relation to the Commission’s laid out claim, the Court began yesteryear recalling the constitutional significance of Article 218 TFEU insofar every bit it confers specific powers on the European Union institutions with a catch to establishing a remainder betwixt those institutions during the treaty-making procedure. In practice, Article 218 TFEU gives unlike roles to each institution. Even though the Treaties cause got decided that the Commission is to human activeness every bit the negotiator in addition to to ensure the EU’s external representation (in all those areas non covered yesteryear the CFSP, reckon article 17 (1) TEU), the Council is nonetheless entrusted with the ability to sign in addition to conclude the agreement. According to the Court, inwards the context of those functions, the Council in addition to the Commission are required to comply with the instant judgement of Article 13(2) TEU, which states, “the institutions shall exercise mutual sincere cooperation.” Moreover, that cooperation becomes of crucial importance for European Union activeness at international level, every bit such activeness triggers a closely circumscribed physical care for of concerted activeness in addition to consultation betwixt the European Union institutions (para 64).

It is inwards this context of concerted activeness in addition to consultation that article thirteen (2) TEU triggers that article 218 (4) TFEU comes in, every bit the consultation in addition to cooperation betwixt the Council in addition to the Commission volition endure channeled through the special committee. Consequently, what create the obligations of cooperation in addition to consultation total to? For the Court, those obligations hateful that the Commission must furnish the special commission with all the data necessary for it to monitor the progress of the negotiations, such as, inwards particular, the full general aims announced in addition to the positions taken yesteryear the other parties throughout the negotiations. It is exclusively inwards this means that the special commission is inwards a seat to formulate opinions in addition to advice relating to the negotiations (para 66).

In whatever event, the Court also reminds the Commission that regardless of whether in that location is a special commission inwards place, it tin endure required to furnish that data to the Council every bit well. Given the role of the Council inwards the treaty-making procedure, it should possess all the necessary data to cause got clear noesis of the ongoing negotiations concerning the grooming of an understanding that volition endure submitted for its approval. Consequently, the Court concludes that an obligation such every bit the 1 enshrined inwards Article 2 of the Council conclusion which sets out the Commission’s obligation to study inwards writing to the Council on the resultant of the negotiations afterwards each negotiating session and, inwards whatever event, at to the lowest degree quarterly’, is inwards conformity with Article 218(2) in addition to (4) TFEU (para 68).

Furthermore, the Court considers that an obligation of data every bit the 1 recognized inwards Article 2 of the Council conclusion does non violate Article thirteen (2) TFEU, insofar every bit the Council’s powers to lay downwardly such an obligation of data cause got been exercised with due regard to the Commission’s ability to negotiate international agreements (para 70).

Finally, inwards relation to Article 295 TFEU concerning the obligation to consult each other in addition to yesteryear mutual understanding brand arrangements for their cooperation, the Court understands that this obligation to conclude interinstitutional arrangements does non foreclose the Council from beingness able to laid out, inwards a conclusion authorizing negotiation, arrangements relating to the data that the Commission must furnish to it periodically throughout the negotiating physical care for (para 72). Hence, the Court dismissed the Commission’s laid out claim.

In relation to the instant claim, concerning the powers of the special commission to flora detailed negotiating positions of the Union; the Court conducts its analysis inwards 2 stages. First, it examines whether the Council has the ability to develop procedures pursuant to the laid out component of Article 218 (4) TFEU, similar the 1 enshrined inwards the annex of the Council decision. Secondly, it focuses on the specific physical care for laid out inwards the annex to the Council conclusion in addition to to a greater extent than specifically the powers that were conferred upon the special committee.

In the analysis of whether the Council has the ability to develop a physical care for similar the 1 drawn upward inwards the annex of the Council Decision, the Court examines the mandate of the special committee. In this regard, it considers that the special commission designated yesteryear the Council has the mandate to follow the comport of the negotiations in addition to guide the negotiator (para 76). In addition, the Court argues that since the Council is empowered to designate a special commission in addition to the Commission is required to comport the negotiations “in consultation with” that committee, the Commission must inform the commission of all aspects of the negotiations inwards guild that it may endure properly consulted (para 77). Therefore, Article 218(4) TFEU to a greater extent than oft than non allows the Council to laid out procedural arrangements governing the physical care for for the provision of information, for communication in addition to for consultation betwixt the special commission in addition to the Commission, every bit such rules come across the objective of ensuring proper cooperation at the internal degree (para 78).

However, when analyzing the minutiae of the annex to the Council Decision, the CJEU considered that certainly parts of that annex were non designed to heighten the transfer of data in addition to the consultation betwixt the special commission in addition to the Commission. Instead, it argued that the possibility for the special commission to flora detailed negotiating positions every bit envisaged inwards the instant judgement of the laid out paragraph of the Annex seek to bind the Commission inwards contravention of article 218 (4) TFEU, Article thirteen (2) TEU in addition to the regulation of institutional balance. For the Court, the ability to flora detailed negotiating procedures goes beyond the consultative component assigned to the special committee. The annex has the number of imposing negotiating positions on the negotiator, i.e. the Commission (para 90). Therefore, the Court accepted the Commission’ instant claim in addition to partially annulled the Council Decision.

Comment

To a certainly extent, the EU’s treaty-making physical care for constitutes an instance of the Principal – Agent problem. The Council (Principal) authorizes the Commission (Agent) to negotiate on its behalf, yet it does non completely trust the Commission. The Court understands that it is the data asymmetry that fuels the Council’s lack of trust on the Commission’s role every bit a negotiator. Consequently, anything inwards the Council conclusion that mightiness overstep the obligation to inform in addition to consult would endure a breach of the regulation of institutional balance, regardless of how badly the Commission had previously complied with that obligation.

In this regard, a parallelism with Case C-658/12 European Parliament v Council (Mauritius, AKA somali Pirates) (discussed here) could endure drawn. In that instance the Court understood that yesteryear non informing the European Parliament (EP) right away in addition to fully informed concerning the conclusion of an extradition understanding with Mauritius, the Council had breached Article 218 (10) TFEU. Inasmuch every bit that provision aimed every bit ensuring that the EP could effectively exercise its powers inwards relation to the conclusion of international agreements, the Council had breached the regulation of institutional balance. In the acquaint case, the Court understands that an obligation to inform the Council on on-going negotiations is an human face of that principle. The Council also needs to endure right away in addition to fully informed throughout the negotiations of an understanding it volition destination upward concluding.

Finally, inwards the in conclusion span of years nosotros cause got witnessed an increase inwards the litigation betwixt the unlike European Union institutions concerning the exercise of their powers in addition to the fragile remainder betwixt them inwards the plain of European Union External Relations. It appears that the European Union institutions are nevertheless learning how to alive with each other afterwards the Lisbon Reform. Yet inside this learning process, it appears, that the European Union institutions seem to endure moving away from cooperation arrangements in addition to are pushing for a stiff interpretation of their respective powers. This is clearly seen inwards how the regulation of institutional remainder figures prominently inwards the acquaint instance or inwards other cases such every bit Mauritius Island, Case C-409/13 (Council v Commission) concerning the Commission’s correct to withdraw proposals (discussed here), or Case C-28/12, Commission v Council, (US Air Transport Agreement). While inwards regulation this is non per se a problem, it could indicate that an increasing institutional carve upward on the means the to comport the EU’s external representation afterwards the Lisbon Treaty is emerging.

Barnard & Peers: chapter 24

Photo credit: carbonsolutionsglobal.com

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