Competence distribution in eu external relations after Ecowas: Clarification or continued fuzziness?

Common Market Law Review

Volumn 46, Issue 2, 2009, Pages 551-586

  Hillion, Christophe ^a   Wessel, Ramses A ^b  

^a LEIDEN UNIVERSITY   (Netherlands)

^b UNIVERSITY OF TWENTE   (Netherlands)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 67649252167     PISSN: 01650750     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (85)

1. Art. 47 TEU provides that "nothing in [the TEU] shall affect the Treaties establishing the European Communities or the subsequent Treaties and Acts modifying and supplementing them". On the interpretation of the acquis communautaire, see e.g Weatherill, 'Safeguarding the acquis communautaire' in Heukels, Blokker and Brus (Eds.), The European Union after Amsterdam: A Legal Analysis (Kluwer Law International, The Hague, 1998), 153; or Curti Gialdino, "Some Reflections on the Acquis Communautaire", 32 CML Rev. (1995), 1089.
2. Art. 5 TEU.
3. Art. 3 TEU.
4. See more extensively Wessel, "The Dynamics of the European Union Legal Order: Towards Institutional and Normative Unity", (2009) EUConst, (forthcoming); and Curtin and Wessel, "Rechtseenheid van de Europese Unie? De rol van het Hof van Justitie als constitutionele rechter", (2008) SEW, 371-378
5. Case C-91/05, Commission v. Council ("ECOWAS" or "Small Arms and Light Weapons"), Grand Chamber Judgment of 20 May 2008, nyr.
6. The Court has in the past only been asked to test the compatibility of Third pillar measures with Art. 47 TEU: Case C-170/96, Commission v. Council (Airport transit visas), [1998] ECR I-2763, paras. 15-16; Case C-176/03, Commission v. Council (Environmental penalties), [2005] ECR I-7879; Case C-440/05, Commission v. Council (Ship Source Pollution), [2007] ECR I-1657
7. further, see Hillion and Wessel, "Restraining external competences of EU Member States under CFSP", in Cremona and de Witte (Eds.), EU Foreign Relations Law: Constitutional Fundamentals (Hart Publishing, Oxford, 2008), pp. 79-121.
8. In Cases T-349/99, Miskovic and T-350/99, Karic, the CFI missed the opportunity when the Council amended the decision challenged by two individuals who had been refused visas on the basis of a CFSP act
9. See also Hoffmeister, "Entwicklungszusammenarbeit und andere Politikbereiche", (2008) EuR Beiheft 2, 55-101
10. See Opinion of A.G. Mengozzi in ECOWAS para 23.
11. O.J. 2000, L 317/3; on behalf of the Community signed by the Council; Decision 2003/159/EC of the Council of 19 Dec. 2002 (O.J. 2003, L 65/27).
12. See Opinion of A.G. Mengozzi, para 23.
13. Para 36 of the judgment.
14. Para 44.
15. In particular Commission v. Council (Airport transit visas) cited supra note 6; Commission v. Council (Environmental penalties), cited supra note 6.
16. See in this respect, e.g. judgment in Case C-300/89, Commission v. Council (Titanium Dioxide), [1991] ECR I-2867, para 10: "It must first be observed that in the context of the organization of the powers of the Community the choice of the legal basis for a measure may not depend simply on an institution's conviction as to the objective pursued but must be based on objective factors which are amenable to judicial review.... Those factors include in particular the aim and content of the measure." More extensively on this issue: Van Ooik, De keuze der rechtsgrondslag voor besluiten van de Europese Unie (Kluwer, Deventer, 1999); see also Koutrakos, "Legal Basis and Delimitation of Competence in EU External Relations", in Cremona and de Witte, op. cit. supra note 6, p. 171.
17. Para 211.
18. He had already established that the ECOWAS decision aims "in a practical and direct way, to support the efforts of ECOWAS to combat the insecurity that would follow from a new accumulation of small arms and light weapons in West Africa", and that "the purpose of the contested decision appears to be mainly, if not exclusively, related to security", see paras. 204-205 of his Opinion.
19. Para 213.
20. Commission v. Council (Environmental penalties) cited supra note 6; Commission v. Council (Ship Source Pollution) cited supra note 6.
21. Para 77.
22. Para 85.
23. Para 84.
24. Para 98.
25. Para 99.
26. On the Court's jurisdiction in the CFSP field, see Garbagnati Ketvel, "The jurisdiction of the European Court of Justice in respect of the Common Foreign and Security Policy", (2006) ICLQ, 77.
27. Further: Dashwood, "The Law and Practice of CFSP Joint Actions", in Cremona and de Witte, op. cit. supra note 6, p. 53.
28. See in this regard para 60 of the judgment.
29. Case C-301/06, Ireland v. Council and Parliament, judgment of 10 Feb. 2009, nyr.
30. Emphasis added. Note that the Court refers here not to acts "capable of having legal effect" but to "acts having legal effects".
31. Case 22/70, Commission v. Council (AETR), [1971] ECR 263.
32. Case C-467/98 Commission v. Denmark ('Open Skies') [2002] ECR I-9519, paras. 110-111; see also Case C-523/04, Commission v. the Netherlands, [2007] ECR I-3267, paras. 74-75.
33. See in this respect the Court's judgment in Case 45/07, Commission v. Greece (IMO), judgment of 12 Feb. 2009, esp. paras. 20-23 also AG Maduro's Opinion of 10 July 2008 in case C-205/06 Commission v. Austria and Case C-249/06 Commission v. Sweden.
34. Cases C-355/04 P, Segi and Others v. Council [2007] ECR I-1657, para 53.
35. Case 22/70, Commission v. Council (ERTA) [1971] ECR 263, see also Case C-57/95, France v. Commission, [1997] ECR I-1627.
36. Case 294/83, Parti Ecologiste 'Les Verts' v. European Parliament [1986] ECR 1339. The application of that jurisprudence to the context of Art. 47 TEU is made legally possible, if not required, by the provisions of Art. 46 TEU.
37. See Joined Cases C-402 & 415/05 P, Kadi and Al Barakaat International Foundation v. Council and Commission, judgment of 3 Sept. 2008, nyr, at para 281.
38. Further on Common Strategies, Hillion, "Common Strategies and the Interface between EC External Relations and the CFSP: Lessons of the Partnership between the EU and Russia", in Dashwood and Hillion (Eds.), The General Law of EC External Relations (Sweet & Maxwell, London, 2000), p. 287.
39. See Art. 269 TEU (Lisbon).
40. The French version appears to be more specific than the English version of the judgment. Para 33 reads "actes dont le conseil prétend qu'ils relèvent du titre V"; while para 56 reads: "actes dont le conseil soutient qu'ils relèvent".
41. This broad formulation is used again by the Court in its judgment in Case C-301/06, Ireland v. Council and Parliament, cited supra note 29, at para 77.
42. See e.g. Les Verts, cited supra note 36.
43. Cf. also Van Ooik, "Cross-Pillar Litigation before the ECJ: Demarcation of Community and Union Competences", (2008) EuConst, 399-419. See also Case C-188/92, TWD [1994] ECR I-833, para 17.
44. It should be noted that the Court does not give a full account here of the provisions of Art. 46. The latter refers not only to the EC Treaty and also to the EAEC Treaty, thus rendering the jurisdiction of the Court in the context of Art. 47 TEU in particular, more complicated to envisage.
45. Case 314/85, Foto-Frost, [1987] ECR 4199.
46. E.g. Cases such as T-228/02, Organisation des Modjahedines du peuple d'Iran v. Council, [2006] ECR II-4665, and more recently Case T-284/08, People's Mojahedin Organization of Iran v. Council, judgment of 4 Dec. 2008, nyr.
47. Further on this point, Hillion, "The Limits to Member States Discretion in EU Enlargement Negotiations" (2007) EuConst, 269
48. On the impact of Kadi, see the recent ECJ judgment in C-47/07, Masdar, 16 Dec. 2008, nyr.
49. Further on this question, see Van Vooren, "EU/EC External competences after the Small Arms Judgment" EFA Rev. (2009), 7.
50. Art. 301 EC implies that Joint Actions can have legal effects. Further on Joint Actions, see Dashwood, op. cit. supra note 27.
51. See e.g. Opinion 1/03, Lugano Convention [2006] ECR I-1145. Further, see Holdgaard, External Relations Law of the European Community - Legal Reasoning and Legal Discourses (Wolters Kluwer, 2008), particularly Part I; Koutrakos, op. cit. supra note 15.
52. Dashwood and Heliskoski, "The Classic Authorities Revisited", in Dashwood and Hillion, op. cit. supra note 38.
53. Case C-316/91, European Parliament v. Council (EDF), [1994] ECR I-625, para 26.
54. Joined Cases C-181 & 248/91, European Parliament v. Council and Commission (Bangladesh), [1993] ECR I-3685.
55. Para 86, Opinion.
56. Para 85, Opinion.
57. This connection was reiterated since then in Case C-301/06, Ireland v. Council and Parliament, cited supra note 29 at para 76.
58. Further, Hillion, The Evolving System of EU External Relations as Evidenced in the EU Partnerships with Russia and Ukraine (Leiden, 2005).
59. See recently: Case C-155/07, Parliament v. Council, judgment of 6 Nov. 2008, nyr.
60. In Case C-268/94, Portuguese Republic v. Council, [1997] ECR I-7281.
61. At para 39, the Court held that "the fact that a development cooperation agreement contains clauses concerning various specific matters cannot alter the characterization of the agreement, which must be determined having regard to its essential object and not in terms of individual clauses, provided that those clauses do not impose such extensive obligations concerning the specific matters referred to that those obligations in fact constitute objectives distinct from those of development cooperation" (emphasis added). Further Hillion, op. cit. supra note 57, pp. 54 et seq.
62. So far the only example that can be thought of is the Schengen association agreement with Switzerland, although this agreement does not fully amount to a doubly mixed agreement as its conclusion was based on two decisions (one EC, one JHA). A similar construction has been debated for the 2006 Cooperation Agreement with Thailand. In the end, however, the agreement was concluded as a traditional Community/Member State mixed agreement; see Thym, "Die völkerrechtlichen Verträge der Europäischen Union," (2006) ZaöRV, 48. The debate returned in relation to the EU's accession to the ASEAN Treaty of Amity and Cooperation. See further Wessel, "Cross-Pillar Mixity: Combining competences in the conclusion of EU international agreements", in Hillion and Koutrakos (Eds.), Mixed Agreements Revisited (Hart Publishing, Oxford, 2009, forthcoming).
63. Commission v. Council (Ship Source Pollution) supra note 6.
64. Ibid., paras. 70-71.
65. See in this respect the Court's finding in Case 301/06, Ireland v. Council and Parliament, cited supra note 29, esp. para 83.
66. Joined Cases C-317 & 318/04, European Parliament v. Council (PNR), [2006] ECR I-4721.
67. See also Heliskoski, "Small Arms and Light Weapons within the Union's Pillar Structure: An Analysis of Article 47 of the EU Treaty", 33 EL Rev. (2008), 898. Van Ooik, op. cit. supra note 43.
68. Similarly, it could be argued that the PNR agreement was not only about peace, security, and fight against terrorism, as held by the Court. Could it not be contended that the well-functioning of the internal market was not merely incidental in this case? See European Parliament v. Council (PNR), supra note 65.
69. Cases T-306/01, Ahmed Ali Yusuf and Al Barakaat International Foundation v. Council and Commission [2005] ECR II-3353; and T-315/01, Yassin Abdullah Kadi v. Council and Commission, [2005] ECR II-3649; para 161 of Yusuf.
70. The approach recalls the Court's Tobacco Advertising case law where it was found that the Community is able to adopt common rules on the basis of Art. 95 EC which may have an impact on areas such as public health, despite restrictions to Community competence foreseen by the Treaty in the latter field, if those rules do improve the functioning of the internal market; see Case C-376/98, Germany v. Parliament and Council [2000] ECR I-8419, see also Case 301/06, Ireland v. Council and Parliament, cited supra note 29.
71. On this notion, see Weatherill, "Competence creep and competence control" 23 YEL (2004), 1-55
72. Unless the Commission can put money on the table, as it did in relation to de-mining, and which led to the Member States' accepting that the measure be adopted on the basis of the EC Treaty. The Council and the Member States may then have to pay the price for their pragmatism. Having sometimes chosen the legal basis of an EU measure on the basis of financial considerations, viz. De-mining or EUBAM, Member States created precedents now relied on by the Commission for other similar types of measures, even if, as the Court says, institutional practice does not entail that this practice is legal.
73. See e.g. the "European Council Declaration On the Common Strategy on Russia", O.J. 1999, L 157.
74. The Court's approach may not sit easily with its subsequent Kadi approach as regards the Community competence in the field of individual sanctions: in Kadi, the Court made it clear that the requirement of consistency derived from Art. 3 TEU cannot be a basis for widening the competence of the Community. In ECOWAS, the Court relies on references to Community ac tivities, made in compliance with the duty of consistency enshrined in Art. 3 TEU, to connect the measure to an EC objective, and widen the scope of EC powers possibly to cover CFSP matters.
75. A point also forcefully made by Heliskoski, op. cit. supra note 66. Further on notions of consistency and coherence, see Hillion, "Tous Pour Un, Un Pour Tous! Coherence in the External Relations of the European Union" in Cremona (Ed.), Developments in EU External Relations Law, Collected Courses of the Academy of European Law (OUP, 2008), pp. 10-36. See more generally: de Baere, Constitutional Principles of EU External Relations (Oxford University Press, Oxford, 2008).
76. See in this respect, Timmermans, "The Uneasy Relationship between the Communities and the Second Pillar: Back to the 'Plan Fouchet'", (1996) LIEI, 61-70
77. Kuijper, "Of Mixity and Double Hatting - EU External Relations Law Explained" (Vossiuspers UvA, Amsterdam, 2008)
78. On the Court of Justice and consistency, see Kronenberger "Coherence and consistency of the EU's action in international crisis management: the role of the European Court of Justice" in Blockmans (Ed.), The European Union and Crisis Management: Policy and Legal Aspects (T.M.C. Asser Press, The Hague, 2008), pp. 199-211.
79. See Case C-266/03, Commission v. Luxembourg, [2005] ECR I-4805, and Case C-433/03 Commission v. Germany [2005] ECR I-6985, and Case C-459/03, Commission v. Ireland (Mox Plant), [2006] ECR I-4635. Further, Cremona, "Defending the Community interest: The duties of cooperation and compliance" in Cremona and de Witte op. cit. supra note 6, p. 125.
80. Cf. Wessel, op. cit. supra note 61.
81. Case C-105/03, Pupino, [2005] ECR I-5285, Cases C-355/04 P, Segi and Others v. Council, [2007] ECR I-1657, Case C-303/05, Advocaten voor de Wereld, [2007] ECR I-3633. More extensively: Wessel, op. cit. supra note 4.
82. Curtin, "The Constitutional Structure of the Union: A Europe of Bits and Pieces", (1993) CML Rev., 17-69.
83. Further on the Court's post-Lisbon jurisdiction in the field CFSP: Hinarejos, "Judicial control of CFSP in the Constitution: A cherry worth picking?" (2006) YEL, 363. More generally: Jacqué, "Le traité de Lisbonne: Une vue cavalière", (2008) RTDE, 439.
84. See Timmermans' chapter in Hillion and Koutrakos, op. cit. supra note 61.
85. At para 235 of the Kadi case (supra note 37), the ECJ held that: "adding Article 308 EC to the legal basis of the contested regulation enabled the European Parliament to take part in the decision-making process relating to the measures at issue which are specifically aimed at individuals whereas, under Articles 60 EC and 301 EC, no role is provided for that institution". See also Case C-300/89, Commission v. Council (Titanium dioxide), [1991] ECR I-2867.