Structural Principles in EU External Relations Law
Seminar Spring 2014
Marise Cremona
7. Institutional balance and & the principle of sincere cooperation
25 February 2014
The principle of sincere cooperation applies also to the institutions - Art 13(2) TEU:
Each institution shall act within the limits of the powers conferred on it in the
Treaties, and in conformity with the procedures, conditions and objectives set out in
them. The institutions shall practice mutual sincere cooperation.
We see here the principle of mutual cooperation placed next to the principle of conferral as
applied to the institutions: an expression of the concept of institutional balance. The Lisbon
Treaty introduces for the first time an explicit reference to the duty of sincere cooperation
applied to the institutions, although the Court had already interpreted the duty of sincere
cooperation as applying also to the institutions (see e.g. case C-65/93).
In fact institutional cooperation in the form of an inter-institutional agreement governing
action within the FAO has been said by the Court to constitute a means of fulfilling the
Member States’ duty of cooperation: “In the present case, section 2.3 of the Arrangement
between the Council and the Commission represents fulfilment of that duty of cooperation
between the Community and its Member States within the FAO.” (case C-25/94 Commission v
Council, para 49) The Council is unhappy about some aspects of the inter-institutional
agreement of October 2010 between the Commission and the Parliament.
The concept of institutional balance in external relations is complicated by the different
actors involved, the multi-power nature of the Council and Commission (PJ Kuijper’s term)
as well as by the distinction between CFSP and non-CFSP decision-making. Not only to we
see a special role for the European Council, and perhaps a privileged role for the executive;
we also have the European External Action Service, which is there to support and assist the
High Representative (Article 27(3) TEU) and which may be seen as an opportunity – if not
the “fulfilment” – of the duty of cooperation between the Council, the Commission and the
Member States. Kuijper analyses the case law on direct effect of international agreements
(c.f. week 5) in terms of the Court’s respect for legislative and executive choice.
Article 40 TEU requires the preservation and respect for the distinct “procedures and the
extent of the powers of the institutions” under CFSP and non-CFSP competences and can
therefore be seen as an expression of the principle of institutional balance (we will discuss
Article 40 TEU next week in the context of the principle of coherence).
The institutions are starting to refer to Article 13(2) in inter-institutional litigation: see for
example the pending case C-28/12.
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What does the duty of cooperation mean for the European Parliament? What is its role as
regards the other institutions? Note the increasing importance of the EP as a litigator in the
external relations field: case C-65/93 European Parliament v Council and see also case C-130/10
European Parliament v Council (week 3).
Horsley’s paper points out that the Court of Justice is an institution too and argues that the
principle of mutual cooperation in Article 13(2) imposes limits on the Court’s interpretative
choices. Think about how this thesis might be applied in an external relations context.
Mutual cooperation also applies between national courts and the Court of Justice: Opinion
1/09 on the European Patents Court, paras 64-89.
Reading:
T Horsley, ‘Reflections on the Role of the Court of Justice as the Motor of European
Integration: Legal Limits to Judicial Law-making’ (2013) 50 CMLRev 931-964.
PJ Kuijper, ‘The Case Law of the Court of Justice of the EU and the Allocation of External
Relations Powers: whither the Traditional Role of the Executive in EU Foreign Relations?’ in
M Cremona and A Thies (eds) The European Court of Justice and External Relations Law Constitutional Challenges, forthcoming, Hart Publishing.
Case C-65/93 European Parliament v Council [1995] ECR I-643.
Council Decision 2010/427 of 26 July 2010 establishing the organisation and functioning of
the European External Action Service OJ 2010 L 201/30.
Case C-28/12: Action brought on 18 January 2012 —Commission v Council OJ 2012 C 73/23.
Framework Agreement on relations between the European Parliament and the European
Commission OJ 2010 L 304/47. Look especially at paras 23-29 and Annex III.
Council doc. 15018/10, 18 October 2010, Opinion of the Legal Service of the Council on the
Framework Agreement between the European Parliament and the Commission, and Council
doc. 15172/10, 21 October 2010, Relations between the European Parliament and the
Commission - Council statement.
Additional Reading:
Opinion 1/09 on the European Patents Court [2011] ECR I-01137.
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D Thym, ‘Parliamentary Involvement in European International Relations’ in M Cremona
and B de Witte (eds) EU Foreign Relations Law – Constitutional Fundamentals, Hart Publishing
2008.
JP Jacqué, ‘The Principle of Institutional Balance’ (2004) 41 CMLRev 383.
R Passos, ‘The European Union’s External Relations a Year after Lisbon: A First Evaluation
from the European Parliament’ in P Koutrakos (ed.) The European Union’s External Relations a
Year after Lisbon, CLEER Working Papers 2011/3.
8. Coherence
4 March 2014
Note the linguistic issue over the term consistency / coherence – check the different language
versions of the Treaties, for example Article 21(3) TEU: consistency, cohérence, Kohärenz,
coerenza, samenhang .. . Do these terms mean the same?
The need for coherence in EC external policy made its way into the Community Treaties as
an expressly stated concern at the time of the Single European Act, at a moment when
Community external action was expanding and European Political Cooperation (EPC) was
institutionalized. The Presidency and the Commission were mandated to ensure consistency
between EPC and the EC (Art 30(5) SEA). In transforming the EPC into the Common
Foreign and Security Policy (CFSP) the TEU reiterated the need for consistency between the
CFSP and the external policies of the Community, linking it to the single institutional
framework and imposing a duty on the Council and Commission to ensure consistency
specifically in relation to external activities (former Art 3 EU). The TEU at this time also
added new EC Treaty provisions on development cooperation, a competence declared to be
complementary to Member States’ development policies and requiring coordination
between the Member States and the Community. From the start, then, we can see coherence
appearing as a concern in terms of both inter-policy coherence (so-called horizontal
coherence) and coherence between the Member States and the Union (referred to as vertical
coherence).
We now find the principle in Arts 21(3) and TEU and Art 7 TFEU. It is a responsibility of the
institutions generally (Art 13(1) TEU) and the HR and Council (Arts 18(4) and 26(2) TEU)
and Commission (Art 21(3) TEU) in particular, and is linked to cooperation and
effectiveness. The Treaty of Lisbon gives the Court jurisdiction over the obligation of
coherence for the first time. How will this be used? Will the Court develop procedural
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obligations (c.f. those that materialise the duty of cooperation)? Is coherence a legal norm
and if so, of what type?
Reading:
C-130/10 European Parliament v Council, judgment 19 July 2012 [note: this case is included in
the materials for week 3].
C-658/11 European Parliament v Council, action brought on 21 December 2011, pending , OJ
2012 C 58/2. AG Bot Opinion, 30 January 2014.
L den Hertog & S Stroß, ‘Coherence in EU External Relations: Concepts and Legal Rooting of
an Ambiguous Term’, (2013) 18 European Foreign Affairs Review 373.
P Van Elsuwege and H Merket, ‘The Role of the Court of Justice in ensuring the Unity of the
EU’s External Representation’ in S Blockmans and R Wessel (eds), Principles and Practices of
EU External Representation, CLEER Working Papers 2012/5 [note: this WP is included in the
materials for Week 6].
S Blockmans & M Spernbauer, ‘Legal Obstacles to Comprehensive EU External Security
Action’ (2013) 18 (special issue) European Foreign Affairs Review 7.
Additional reading :
C Hillion,’ Tous pour un, un pour tous! Coherence in the External Relations of the European
Union’ in M Cremona (ed) Developments in EU External Relations Law, OUP 2008.
M Cremona, ‘Coherence in Foreign Policy – the Legal Dimension’ in P Koutrakos (ed)
European Foreign Policy: Legal and Political Perspectives, Edward Elgar 2011.
P Van Elsuwege, ‘EU External Action After the Collapse of the Pillar Structure: In Search of a
New Balance between Delimitation and Consistency’ (2010) 47 CML Rev. 987.
9. Transparency
11 March 2014
Article 15 TFEU establishes the principle of transparency and provides a legal basis for the
Regulation on access to documents (Reg 1049/2001). The Commission has proposed that this
Regulation be amended to make it clear that it applies also to the EEAS (COM (2011) 137).
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Alongside access to documents we have the regime for protecting and handling classified
information, so far adopted under the legal basis for Council rules of procedure (Decision
2013/488). Agreements may be concluded with third countries and other international
organisations for the handling of classified information, especially those third countries
regularly participating in EU CSDP missions.
One specific issue has concerned access by the Parliament to information concerning
international negotiations, including legal opinions from the legal services of the Council
and/or Commission (see for example the SWIFT and ACTA negotiations). In Week 7 we saw
that the Council still disagrees with the interpretation of Article 218(10) adopted in the
Framework Agreement between the Commission and the Parliament (see also the 2013
agreement between the Parliament and the Council, in Additional Reading). In addition to
this inter-institutional transfer of information there is the possibility that individual MEPs
may request public access to information under Regulation 1049/2001 (e.g. case C-301/10 In’t
Veld). Other members of the public (Besselink) and those affected (Sison) may also attempt to
use this route.
Reading:
C-266/05 P Sison v Council [2007] ECR I-1233. [Note: provided in materials for Week 3]
T-529/09 In ’t Veld v Council, judgment 4 May 2012; under appeal in:
case C-350/12 P, pending, opinion of AG Sharpston, 13 Feb 2014.
T-331/11 Besselink v Council, judgment 12 September 2013.
Regulation 1049/2001/EC of the European Parliament and of the Council of 30 May 2001
regarding public access to European Parliament, Council and Commission documents.
Framework Agreement on relations between the European Parliament and the European
Commission OJ 2010 L 304/47, Annex II on confidential information. [Note: provided in
materials for Week 7]
Council Decision 2013/488/EU on the security rules for protecting EU classified information
OJ 2013 L 274/1 (you can skip the Annexes except Annex VI).
Decision 2011/C 243/08 of the High Representative of 19 July 2011 on the rules regarding
access to documents OJ 2011 C 243/16.
D Curtin, ‘Official Secrets and the Negotiation of International Agreements: is the EU
Executive Unbound? (2013) 50 Common Market Law Rev 423.
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Additional reading:
T-301/10 In ‘t Veld v Commission, judgment 19 March 2013.
Inter-institutional agreement between the European Parliament and the Council concerning
the forwarding to and handling by the European Parliament of classified information held
by the Council on matters other than those in the area of the common foreign and security
policy, OJ 2013 C 353 E/156.
Council Decision 2005/481/CFSP of 13 June 2005 concerning the conclusion of the Agreement
between the European Union and Ukraine on the security procedures for the exchange
of classified information OJ L 172, 5.7.2005, p. 83
10. Evaluation and Conclusions
18 March 2014
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