Article 17(1) of the Treaty on the European Union (TUE), “[w]ith the exception of
the common foreign and security policy, and other cases provided for in the Treaties,
[the Commission] shall ensure the Union's external representation.”
19 On the other
hand, the Council, which represents the gathering of the Union and its member
States, also plays an important role in the negotiation of international treaties:
according to Article 218(2) of the TFEU, “[t]he Council shall authorize the opening
of negotiations, adopt negotiating directives, authorize the signing of agreements
and conclude them”, and following Article 192(4) of the TFEU: “[t]he European
Parliament and the Council, acting in accordance with the ordinary legislative
procedure [. . .], shall decide what action is to be taken by the Union in order to
achieve the objectives referred to in Article 191.”
20 The combination and articulation
of those articles might, then, be complicated, especially in the context of the opening
of the negotiation of a mixed treaty. In case of overlap of competences, however, the
solution is to be found in cooperation: Article 13(2) of the TUE provides for the
principle of “mutual sincere cooperation” between European institutions, which
remains the cornerstone of inter-institutional relationships.
As the future ILBI will be a mixed treaty, member States must be represented in
the negotiations, in order to protect their interests. Indeed, some substantial issues
cover shared and exclusive competences at the same time. For instance, marine
protected areas are aimed at protecting marine biological resources as well as the
marine environment in general, and can also be combined with measures related to
fisheries. The participation of member States in the discussions was stated in the
Decision of the Council authorizing the opening of negotiations on behalf of the
European Union on the elements of a draft text of an international legally binding
instrument under the United Nations Convention on the Law of the Sea on the
conservation and sustainable use of marine biodiversity of areas beyond national
jurisdiction,
21 in the context of the creation of the Preparatory Committee. The
substance of this Decision was reiterated at the opening of the “official” negotiating
process in 2018, although the relevant document is not public.
22 After recalling, in
the preamble, that “alongside its Member States, the Union should participate in the
“l’attribution des compétences à l’Union s’est faite de façon pragmatique, au fil de la révision des
traités, sans vision systématique d’ensemble, ce qui induit un manque fragrant de lisibilité. Ceci a
alimenté une crainte diffuse vis-à-vis d’un caractère de plus en plus envahissant de l’action de
l’Union.”
19 See, also, Art. 335 of the TFEU: “[i]n each of the Member States, the Union shall enjoy the most
extensive legal capacity accorded to legal persons under their laws [. . .]. To this end, the Union
shall be represented by the Commission.”
20 Art. 191 deals with the Union policy on the environment.
21 Council Decision (EU) 2016/455 of 22 March 2016 established by the General Assembly
resolution 69/292. See also, more generally, the document of the Council of the EU, EU Statements
in multilateral organizations – General Arrangements, 2 October 2011, doc. 15901/11, and
Flaesch-Mougin (2013), p. 571.
22 See the Proposition of decision from the Council of 4th of January 2018: https://eur-lex.europa.
eu/legal-content/en/ALL/?uri¼CELEX%3A52017PC0812#document2. See also the document
6841/18 of the Council of the EU, 12 March 2018, §3.
384
P. Ricard
the common foreign and security policy, and other cases provided for in the Treaties,
[the Commission] shall ensure the Union's external representation.”
19 On the other
hand, the Council, which represents the gathering of the Union and its member
States, also plays an important role in the negotiation of international treaties:
according to Article 218(2) of the TFEU, “[t]he Council shall authorize the opening
of negotiations, adopt negotiating directives, authorize the signing of agreements
and conclude them”, and following Article 192(4) of the TFEU: “[t]he European
Parliament and the Council, acting in accordance with the ordinary legislative
procedure [. . .], shall decide what action is to be taken by the Union in order to
achieve the objectives referred to in Article 191.”
20 The combination and articulation
of those articles might, then, be complicated, especially in the context of the opening
of the negotiation of a mixed treaty. In case of overlap of competences, however, the
solution is to be found in cooperation: Article 13(2) of the TUE provides for the
principle of “mutual sincere cooperation” between European institutions, which
remains the cornerstone of inter-institutional relationships.
As the future ILBI will be a mixed treaty, member States must be represented in
the negotiations, in order to protect their interests. Indeed, some substantial issues
cover shared and exclusive competences at the same time. For instance, marine
protected areas are aimed at protecting marine biological resources as well as the
marine environment in general, and can also be combined with measures related to
fisheries. The participation of member States in the discussions was stated in the
Decision of the Council authorizing the opening of negotiations on behalf of the
European Union on the elements of a draft text of an international legally binding
instrument under the United Nations Convention on the Law of the Sea on the
conservation and sustainable use of marine biodiversity of areas beyond national
jurisdiction,
21 in the context of the creation of the Preparatory Committee. The
substance of this Decision was reiterated at the opening of the “official” negotiating
process in 2018, although the relevant document is not public.
22 After recalling, in
the preamble, that “alongside its Member States, the Union should participate in the
“l’attribution des compétences à l’Union s’est faite de façon pragmatique, au fil de la révision des
traités, sans vision systématique d’ensemble, ce qui induit un manque fragrant de lisibilité. Ceci a
alimenté une crainte diffuse vis-à-vis d’un caractère de plus en plus envahissant de l’action de
l’Union.”
19 See, also, Art. 335 of the TFEU: “[i]n each of the Member States, the Union shall enjoy the most
extensive legal capacity accorded to legal persons under their laws [. . .]. To this end, the Union
shall be represented by the Commission.”
20 Art. 191 deals with the Union policy on the environment.
21 Council Decision (EU) 2016/455 of 22 March 2016 established by the General Assembly
resolution 69/292. See also, more generally, the document of the Council of the EU, EU Statements
in multilateral organizations – General Arrangements, 2 October 2011, doc. 15901/11, and
Flaesch-Mougin (2013), p. 571.
22 See the Proposition of decision from the Council of 4th of January 2018: https://eur-lex.europa.
eu/legal-content/en/ALL/?uri¼CELEX%3A52017PC0812#document2. See also the document
6841/18 of the Council of the EU, 12 March 2018, §3.
384
P. Ricard