Commission considered again that its competence in this field is exclusive and that
the decision, thus, must be adopted on behalf of the EU only and not of the EU and
its member States. The Council, according to the Commission, acted in opposition to
the legal context, the aim and the content of the measure contested.
41
Recalling that “[s]uch questions of competence are questions of power that have
been fiercely debated in legal proceedings for decades”,
42 the advocate general
Juliane Kokott affirmed, in its joined conclusions related to both cases, that “[t]he
Court’s judgment in these two cases will form a further piece in the complex mosaic
of the external competences of the Union and its Member States produced by the
Treaty of Lisbon.” Moreover, and more precisely, she considered that “the present
case offers an opportunity to clarify whether the existence of a competence shared
between the Union and its Member States necessarily requires joint (‘mixed’) action
by the Union and its Member States in international bodies or whether the Union is
also permitted, or even obliged, to take external action alone.”
43 The advocate
general, referring to the definition of shared competences between the EU and its
member States, concluded on the “sufficient competence” of the Commission, on
behalf of the Union only and on its own, to “participate alone in the discussions and
decisions in the CCAMLR on the establishment of marine protected areas in the
Antarctic.”
44
The CJEU did not follow the conclusions of the advocate general Kokott and the
action has been dismissed in its entirety. The Court agreed with the advocate general
on the fact that the measures contested were adopted in the context of the protection
41 Introduced 20 December 2016, European Commission v Council of the EU, C-659/16.
42 Opinion of Advocate General Kokott delivered on 31 May 2018, joint cases C-626/15 and C-659/
16, European Commission v Council of the European Union.
43 Id. at §2.
44 Id. at §§108–109. See also §117: “[a]gainst this background, the Union must be considered not
only to have had a competence in the field of environmental policy for all the measures to be
discussed or decided in the CCAMLR, but also to have exercised that competence fully. The
member States were therefore prevented, pursuant to the second sentence of Art. 2(2) TFEU, from
exercising their own competences in respect of the same subjects, even only by acting alongside the
Union in the CCAMLR”, and the conclusion §139. To decide, the advocate general relied on a
“centre of gravity approach”, which means that the judge will have to balance and choose which
competence, among the environmental, research, and fisheries fields of competences, is the “centre
of gravity”, or the closest and principal objective of the decision, leading to the determination of its
legal basis (Id. at §79). Under this approach, “the Antarctic marine protected areas to which the
contested 2015 and 2016 decisions were dedicated did not, according to their centre of gravity,
constitute fisheries policy measures with an environmental conscience, but environmental protection measures with—very serious—implications for fishing” (Id. at §97). Under this argumentation,
the Commission would be unsuccessful in its claims. However, finally, the, advocate concluded that
the Commission was competent to act on behalf of the EU on its own, even in the context of the
exercise of a shared competence: “[t]here is a need for mixed action by the Union and its Member
States on the international stage only where the Union itself does not have sufficient exclusive or
shared competences to act alone in relation to third countries or in international bodies. Only if the
Union does not have powers of its own is it absolutely necessary for the Member States to
participate alongside the Union in international matters.”
20 The European Union and the Future International Legally Binding Instrument on. . .
389
the decision, thus, must be adopted on behalf of the EU only and not of the EU and
its member States. The Council, according to the Commission, acted in opposition to
the legal context, the aim and the content of the measure contested.
41
Recalling that “[s]uch questions of competence are questions of power that have
been fiercely debated in legal proceedings for decades”,
42 the advocate general
Juliane Kokott affirmed, in its joined conclusions related to both cases, that “[t]he
Court’s judgment in these two cases will form a further piece in the complex mosaic
of the external competences of the Union and its Member States produced by the
Treaty of Lisbon.” Moreover, and more precisely, she considered that “the present
case offers an opportunity to clarify whether the existence of a competence shared
between the Union and its Member States necessarily requires joint (‘mixed’) action
by the Union and its Member States in international bodies or whether the Union is
also permitted, or even obliged, to take external action alone.”
43 The advocate
general, referring to the definition of shared competences between the EU and its
member States, concluded on the “sufficient competence” of the Commission, on
behalf of the Union only and on its own, to “participate alone in the discussions and
decisions in the CCAMLR on the establishment of marine protected areas in the
Antarctic.”
44
The CJEU did not follow the conclusions of the advocate general Kokott and the
action has been dismissed in its entirety. The Court agreed with the advocate general
on the fact that the measures contested were adopted in the context of the protection
41 Introduced 20 December 2016, European Commission v Council of the EU, C-659/16.
42 Opinion of Advocate General Kokott delivered on 31 May 2018, joint cases C-626/15 and C-659/
16, European Commission v Council of the European Union.
43 Id. at §2.
44 Id. at §§108–109. See also §117: “[a]gainst this background, the Union must be considered not
only to have had a competence in the field of environmental policy for all the measures to be
discussed or decided in the CCAMLR, but also to have exercised that competence fully. The
member States were therefore prevented, pursuant to the second sentence of Art. 2(2) TFEU, from
exercising their own competences in respect of the same subjects, even only by acting alongside the
Union in the CCAMLR”, and the conclusion §139. To decide, the advocate general relied on a
“centre of gravity approach”, which means that the judge will have to balance and choose which
competence, among the environmental, research, and fisheries fields of competences, is the “centre
of gravity”, or the closest and principal objective of the decision, leading to the determination of its
legal basis (Id. at §79). Under this approach, “the Antarctic marine protected areas to which the
contested 2015 and 2016 decisions were dedicated did not, according to their centre of gravity,
constitute fisheries policy measures with an environmental conscience, but environmental protection measures with—very serious—implications for fishing” (Id. at §97). Under this argumentation,
the Commission would be unsuccessful in its claims. However, finally, the, advocate concluded that
the Commission was competent to act on behalf of the EU on its own, even in the context of the
exercise of a shared competence: “[t]here is a need for mixed action by the Union and its Member
States on the international stage only where the Union itself does not have sufficient exclusive or
shared competences to act alone in relation to third countries or in international bodies. Only if the
Union does not have powers of its own is it absolutely necessary for the Member States to
participate alongside the Union in international matters.”
20 The European Union and the Future International Legally Binding Instrument on. . .
389