Mateusz Milek , 22 avril 2024

As it has been long argued, the treaty-making power  ‘seems … to form a distinct department, and to belong, properly, neither to the legislative nor to the executive’ (Federalist Paper No 75). In the EU legal order, while Article 16(6) TEU vests in the Council the task to ‘elaborate the Union’s external action’, under Article 17(1) TEU, the European Commission alone is to ‘ensure the Union’s external representation’.  The blurry division between these functions led to inter-institutional disputes before the Court of Justice of the European Union. As a result, the Court was invited to clarify that while, for example, the decision concerning the signing of an even non-binding international agreement may still belong to the Council’s external policy-making function (Case C-660/13 Council v Commission ‘Swiss MoU’), the submission of written observations to an international court on behalf of the EU was to be done by the Commission alone (Case C-73/14 Council v Commission ‘ITLOS’).

In its judgment of 9 April 2024 in Commission v Council ‘Fisheries Protocol’, the Grand Chamber of the Court of Justice was invited to spell out one more time the external division of powers between the Commission and the Council. This case concerned the issuing of the ‘full powers’ designating the person empowered to sign the agreement on behalf of the EU (as referred to in Articles 2(1)(c) and 7 of the Vienna Convention on the Law of Treaties of 1969). More concretely, the case arose in the context of the signature of the Implementing Protocol to the Fisheries Partnership Agreement between the Gabonese Republic and the European Community (2021-2026). In its proposal for a decision on the signing, the Commission suggested that the Protocol was to be signed by the person indicated by the Commission. Yet, when adopting this decision, the Council altered the proposal by authorising the President of the Council to designate the person(s) empowered to sign the Protocol on behalf of the EU. Acting on this basis, the President of the Council designated the Permanent Representative of the Portuguese Republic to the European Union, which exercised the rotating presidency of the Council at that time. This decision mirrored the Council’s consistent institutional practice to regularly choose as a signatory of an international agreement the permeant representative of the Member State exercising the rotating presidency of the Council. This practice has continued despite the modifications brought by the Lisbon Treaty.

Following the adoption of the Council decision authorising the signing of the Fisheries Protocol, the Commission brough an action for annulment before the Court of Justice. It argued that while the competence to authorise the signing of an international agreement belonged to the Council, the competence to mandate the actual signing fell within the Commission’s power. In its judgment, the Court of Justice accepted that argument. It has held that pursuant to Article 218(2) and (5) TFEU, it is for the Council, on a proposal by the negotiator, to authorise the signing of an international agreement on behalf of the European Union. That decision requires a political assessment and falls, accordingly, within the Council’s policy-making function under Article 16(1) and (6) TEU. The same does not hold true, the Court continued, for the issuing of the full powers designating the person empowered to sign the agreement on behalf of the EU. 

The Court of Justice comforted this interpretation with a reference to customary international law as codified in the Vienna Convention. First, it has held that irrespectively of who is designed to sign the agreement, the legal effects of this act, as specified in Article 18 of the Vienna Convention, will be binding on the European Union in its capacity as a subject of international law. Second, it referred to Articles 2(1)(3) and 7(1)(a) of the Vienna Convention, which explicitly indicates that the person designed by a State or an international organisation to sign an international agreement is to be regarded as ‘representing’ that State or that international organisation. Accordingly, this act falls under the Commission’s power to ‘ensure the Union’s external representation’, pursuant to Article 17(1) TEU.

Lastly, the Council argued that the treaty-making procedure established under Article 218 TFEU is one of ‘other cases provided for in the Treaties’ referred to in Article 17(1) TEU. In response to that argument – and following the Opinion of AG Kokott – the Court of Justice has found that since Article 218(5) does not empower the Council to designate the signatory of an international agreement, it does not a fortiori provide for a derogation from the Commission’s power to represent the EU externally. In light of all these findings, the Court of Justice annulled partially the contested Council decision, while maintaining the legal effects of this act for reasons of legal certainty.

With no doubt, the judgment at hand will have significant consequences. It will put a stop to the Council’s old practice to designate the Council’s rotating presidency for the signature of international agreements and will vest that power in the Commission. The signing of an international agreement by the person designed by the Commission rather than a representee of a Member State will enhance the visibility of the European Union on the international scene and ensure the coherence of its external action.

Importantly, the judgment has also provided further clarifications on the horizontal division of competences in the exercise the EU’s external powers. As the previous case-law of the Court of Justice mentioned above has been already suggesting, the decisive criterion in that regard is whether the adoption of an external act entails a policy assessment of the EU’s external action. Accordingly, if an external act requires balancing different political interests and objectives, for which democratic legitimacy is essential, it will belong to the EU’s external policy-making (falling under the Council’s power under Article 16(1) and (6) TEU). Conversely, external acts lacking any political element will belong to the realm of the EU’s external representation (for which the Commission is exclusively competent under Article 17(1) TEU, subject to the exceptions provided for therein).  

Reproduction autorisée avec la référence suivante : Mateusz Miłek, Division of competences between the Council and the Commission in the signing of an international agreement on behalf of the European Union, actualité n° 14/2024, publiée le 22 avril 2024, par le Centre d’études juridiques européennes, disponible sur www.ceje.ch