negotiations” and that “[t]he matters covered by the negotiations may fall within the
areas of Union competence as well as within the areas of Member States competence”, the Decision of the President of the Council provides in Article 2 that “[t]he
Commission shall conduct the negotiations on behalf of the Union, as regards
matters falling within the Union's competence and in respect of which the Union
has adopted rules.”
Moreover, according to Article 4 of this mandate of negotiation, “to the extent
that the subject matter of the negotiations falls within the competences of both the
Union and its Member States, the Commission and the Member States should
cooperate closely during the negotiating process, with a view to ensuring unity in
the international representation of the Union and its Member States.” The Presidency
of the Council and the Commission were vested with distinct mandates. The
Commission was only granted a mandate of negotiation for issues deriving from
treaties (TFEU), or from its external competence.
23 Conversely, the Presidency of
the Council retains the mandate to act in all other matters, on behalf of the EU and its
member States. The Council, in document 6841/18 of 12 March 2018, stressed “the
mixed nature of the negotiations [on BBNJ] and the related duty of loyal cooperation”,
24 duty that weight on both the Commission and the Council.
In practice, in order to ensure unity and clarity in the common European position,
delegates from the Council and Commission speak with one voice and States can
only participate in the negotiation if a common position has been agreed upon. A
joint position is usually elaborated before the discussions in New York, within the
framework of the Working Party on the Law of the Sea (COMAR), which is the
European “special committee in consultation with which the negotiations must be
conducted.”
25 That process and the need to agree on a uniform position by the EU
and its member States result in some difficulties that have significant consequences
for the elaboration of the future ILBI instrument. For instance, the compromise that
has to be reached before the actual international negotiations likely leads to a
“minimum common denominator”, which can undermine the bargaining power of
the EU. It indeed appears very difficult to reach a common position for the EU
member States, due to the diversity of views expressed among European States.
26
The difficulty of reaching a common, coherent and satisfactory position of the EU
also entails a slow capacity to react. As a result, the EU position in the negotiation is
very often too soft and convoluted, as a result of an internal compromise, while the
position of other States, such as Monaco, appears more elaborate and straightforward. According to Geert De Baere, “while the position may in principle be fairly
23 According to the case ERTA, 22/70, CJEC, 31 March 1971, Commission v. Council, Rec 1971
p. 263. For a clarification of the theory of the external implicit competences of the EU, see Michel
(2006), pp. 4–8. See also Michel (2003).
24 Document 6841/18 of the Council of the EU, 12 March 2018, §3.
25 Ibid.
26 In the context, for instance, of Brexit: the United Kingdom has quite often the most “extreme”
position on certain issues, as the one of genetic resources or the principle of freedom of navigation
or access to marine genetic resources.
20 The European Union and the Future International Legally Binding Instrument on. . .
385
areas of Union competence as well as within the areas of Member States competence”, the Decision of the President of the Council provides in Article 2 that “[t]he
Commission shall conduct the negotiations on behalf of the Union, as regards
matters falling within the Union's competence and in respect of which the Union
has adopted rules.”
Moreover, according to Article 4 of this mandate of negotiation, “to the extent
that the subject matter of the negotiations falls within the competences of both the
Union and its Member States, the Commission and the Member States should
cooperate closely during the negotiating process, with a view to ensuring unity in
the international representation of the Union and its Member States.” The Presidency
of the Council and the Commission were vested with distinct mandates. The
Commission was only granted a mandate of negotiation for issues deriving from
treaties (TFEU), or from its external competence.
23 Conversely, the Presidency of
the Council retains the mandate to act in all other matters, on behalf of the EU and its
member States. The Council, in document 6841/18 of 12 March 2018, stressed “the
mixed nature of the negotiations [on BBNJ] and the related duty of loyal cooperation”,
24 duty that weight on both the Commission and the Council.
In practice, in order to ensure unity and clarity in the common European position,
delegates from the Council and Commission speak with one voice and States can
only participate in the negotiation if a common position has been agreed upon. A
joint position is usually elaborated before the discussions in New York, within the
framework of the Working Party on the Law of the Sea (COMAR), which is the
European “special committee in consultation with which the negotiations must be
conducted.”
25 That process and the need to agree on a uniform position by the EU
and its member States result in some difficulties that have significant consequences
for the elaboration of the future ILBI instrument. For instance, the compromise that
has to be reached before the actual international negotiations likely leads to a
“minimum common denominator”, which can undermine the bargaining power of
the EU. It indeed appears very difficult to reach a common position for the EU
member States, due to the diversity of views expressed among European States.
26
The difficulty of reaching a common, coherent and satisfactory position of the EU
also entails a slow capacity to react. As a result, the EU position in the negotiation is
very often too soft and convoluted, as a result of an internal compromise, while the
position of other States, such as Monaco, appears more elaborate and straightforward. According to Geert De Baere, “while the position may in principle be fairly
23 According to the case ERTA, 22/70, CJEC, 31 March 1971, Commission v. Council, Rec 1971
p. 263. For a clarification of the theory of the external implicit competences of the EU, see Michel
(2006), pp. 4–8. See also Michel (2003).
24 Document 6841/18 of the Council of the EU, 12 March 2018, §3.
25 Ibid.
26 In the context, for instance, of Brexit: the United Kingdom has quite often the most “extreme”
position on certain issues, as the one of genetic resources or the principle of freedom of navigation
or access to marine genetic resources.
20 The European Union and the Future International Legally Binding Instrument on. . .
385