“determination of the Commission to assert its newly accentuated primary role in the
international representation of the European Union.”
30 It is important to keep those
difficulties in mind while studying the relationship between the EU and the
future ILBI.
First, in the context of the advisory proceedings before the ITLOS in 2015 in
relation to the responsibility of the EU as regards illegal, unreported and unregulated
fishing in the EEZ of coastal States with whom it collaborates bilaterally,
31 members
of the EU denied to the Commission the competence to express itself on behalf of the
Union. This reflected a very tense situation between the two EU institutions. Indeed,
the Council (supported by ten member States) introduced a case before the Court of
Justice of the European Union (CJEU) in order to cancel the decision of the
Commission to produce a written contribution on behalf of the Union in the
ITLOS advisory proceedings.
32 The Council’s claim was however rejected in its
entirety.
33 The Court considered, indeed, that the questions raised in the submission
of the request for consultative opinion dealt with, at least, one area of exclusive
competence of the EU, which, as a Party of the UNCLOS, had the right to participate
in the ITLOS advisory proceedings.
34 Moreover, although Article 335 TFEU only
refers to the representative competence of the Commission before internal jurisdictions, the Court recalled that the representative competence of the EU legitimately
extended to international jurisdictions, according to the related case law.
35 It added
that the participation in a case before a jurisdiction did not fall under the definition of
a “policy” under Article 16 of the TFEU on the competence of the Council.
36 The
Commission could then exercise its exclusive competence dealing with the
30 De Baere (2013), p. 648.
31 ITLOS advisory opinion of 2 April 2015, Request for an advisory opinion submitted by the
Sub-Regional Fisheries Commission (SRFC), case no. 21.
32 See on this issue and also on the substance of the advisory opinion, Oanta (2017), p. 48 and
following.
33 High Court, 6 October 2015, Council of the European Union v European Commission, Case
C-73/14. See also Morin (2015), p. 3.
34 Council of the European Union v European Commission, Case C-73/14, Id. at §55.
35 Id. at §58: “However, it is clear from the case law of the Court that Art. 335 TFEU, although
restricted to Member States on its wording, is the expression of a general principle that the European
Union has legal capacity and is to be represented, to that end, by the Commission (see, to that effect,
judgment in Reynolds Tobacco e.a./Commission, C-131/03 P, EU:C:2006:541, paragraph 94).”
36 Id. at §63 Art. 218(9) TFEU “means that the application of that provision concerns the positions to
be adopted on behalf of the European Union in the context of its participation, through its
institutions or, as the case may be, through its Member States acting jointly in its interests, in the
adoption of such acts within the international body concerned. The European Union was invited to
express, as a party, a position ‘before’ an international court, and not ‘in’ it”. For the Chamber
Art. 218 is not applicable here: “by sending the written statement, on behalf of the European Union,
to ITLOS in Case No. 21 without having submitted its contents to the Council for approval, the
Commission did not infringe that provision” (§76).
20 The European Union and the Future International Legally Binding Instrument on. . .
387
international representation of the European Union.”
30 It is important to keep those
difficulties in mind while studying the relationship between the EU and the
future ILBI.
First, in the context of the advisory proceedings before the ITLOS in 2015 in
relation to the responsibility of the EU as regards illegal, unreported and unregulated
fishing in the EEZ of coastal States with whom it collaborates bilaterally,
31 members
of the EU denied to the Commission the competence to express itself on behalf of the
Union. This reflected a very tense situation between the two EU institutions. Indeed,
the Council (supported by ten member States) introduced a case before the Court of
Justice of the European Union (CJEU) in order to cancel the decision of the
Commission to produce a written contribution on behalf of the Union in the
ITLOS advisory proceedings.
32 The Council’s claim was however rejected in its
entirety.
33 The Court considered, indeed, that the questions raised in the submission
of the request for consultative opinion dealt with, at least, one area of exclusive
competence of the EU, which, as a Party of the UNCLOS, had the right to participate
in the ITLOS advisory proceedings.
34 Moreover, although Article 335 TFEU only
refers to the representative competence of the Commission before internal jurisdictions, the Court recalled that the representative competence of the EU legitimately
extended to international jurisdictions, according to the related case law.
35 It added
that the participation in a case before a jurisdiction did not fall under the definition of
a “policy” under Article 16 of the TFEU on the competence of the Council.
36 The
Commission could then exercise its exclusive competence dealing with the
30 De Baere (2013), p. 648.
31 ITLOS advisory opinion of 2 April 2015, Request for an advisory opinion submitted by the
Sub-Regional Fisheries Commission (SRFC), case no. 21.
32 See on this issue and also on the substance of the advisory opinion, Oanta (2017), p. 48 and
following.
33 High Court, 6 October 2015, Council of the European Union v European Commission, Case
C-73/14. See also Morin (2015), p. 3.
34 Council of the European Union v European Commission, Case C-73/14, Id. at §55.
35 Id. at §58: “However, it is clear from the case law of the Court that Art. 335 TFEU, although
restricted to Member States on its wording, is the expression of a general principle that the European
Union has legal capacity and is to be represented, to that end, by the Commission (see, to that effect,
judgment in Reynolds Tobacco e.a./Commission, C-131/03 P, EU:C:2006:541, paragraph 94).”
36 Id. at §63 Art. 218(9) TFEU “means that the application of that provision concerns the positions to
be adopted on behalf of the European Union in the context of its participation, through its
institutions or, as the case may be, through its Member States acting jointly in its interests, in the
adoption of such acts within the international body concerned. The European Union was invited to
express, as a party, a position ‘before’ an international court, and not ‘in’ it”. For the Chamber
Art. 218 is not applicable here: “by sending the written statement, on behalf of the European Union,
to ITLOS in Case No. 21 without having submitted its contents to the Council for approval, the
Commission did not infringe that provision” (§76).
20 The European Union and the Future International Legally Binding Instrument on. . .
387