foreign policy.
19 In particular, it prepares the EU’s positions at the internal bodies of
IOs, such as the UNGA, or also at an informal international level, such as the Openended Informal Consultative Process on Oceans and the Law of the Sea (OICP).
In all these contexts, the duty of cooperation between the EU and Member States
has a peculiar importance. In the specific case, the Court of Justice of the EU (ECJ)
has indeed established specific procedural obligations that stem from the duty in
question.
20 In fact, on the one hand, the ECJ has highlighted that the coordination
has to be granted both in the negotiation and the final phase of such agreements,
stating that: “when we are faced with an agreement regarding a shared competence,
it is important to ensure cooperation and coordination both during the negotiation
and in the conclusion phase.”
21 On the other hand, considering that the UNCLOS is
one of the main examples of international mixed agreements of the EU, in the MOX
Plant case, the Court prescribed a duty of the Member States “to inform and consult”
the European Community (now EU) before launching dispute settlement procedures
against another MS.
22 Therefore, the duty of cooperation implies that Member States
should refrain from actions that “. . .call in question the EU’s capacity for independent action in its external relations. . .”.
23
Therefore, although the EU Member States are parties to the UNCLOS as
sovereign States, they are “. . .not as a mere appendage of the European Union. . .”.
24
The duty of cooperation may be read as an obligation to promote best national efforts
to try to harmonize its own positions.
In order to understand the potential future role of the EU in the negotiations in the
UNGA and its subsidiary bodies to the adoption of a new ILBI, it is important to
outline the traits of the new status that the EU has technically had since 2011 in the
UNGA and the new legal range of action.
The role of the EU has been enhanced through the adoption of UNGA’s resolution
65/276,
25 improving its own rights of participation.
The resolution in question grants a series of prerogatives that allow the EU,
despite its observer status, to participate more strongly in the work of the UNGA and
its subsidiary bodies. In fact, the resolution highlights the right of the EU to be able
to participate in the general debate, availing itself of the right to reply on the
positions taken in the discussions, making, inter alia, its documents circulate
among the individual delegates present therein and exercising, under certain
19 See Council Decision 89/392, cit., Art. 2, Annex III. Cf., Long (2014), p. 167.
20 On the duty of coordination, cf., inter alia, Cremona (2008), p. 125; Neframi (2010), p. 323.
21 Opinion n. 1/78 on Draft Convention of the International Atomic Energy Agency on the Physical
Protection of Nuclear Materials, Structures and Transport [1979] ECR I-2871, paras. 34–36.
22 Case C-459/03 Commission v. Ireland (MOX Plant) [2006] ECR I-4635, para. 179.
23 Case C-28/12 Opinion of Attorney General (AG) P. Mengozzi European Commission v. Council
of the European Union [2015] ECLI:EU:C:2015:43, para. 63. Cf., Hillion (2010), p. 87.
24 Case C-2-15 Opinion of AG E. Sharpston Conclusion of the Free Trade Agreement between the
European Union and the Republic of Singapore [2016] ECLI:EU:C:2016:992, para. 77.
25 UNGA Resolution, A/RES/65/276, Participation of the European Union in the work of the United
Nations, 3 May 2011.
406
L. Riccardi
19 In particular, it prepares the EU’s positions at the internal bodies of
IOs, such as the UNGA, or also at an informal international level, such as the Openended Informal Consultative Process on Oceans and the Law of the Sea (OICP).
In all these contexts, the duty of cooperation between the EU and Member States
has a peculiar importance. In the specific case, the Court of Justice of the EU (ECJ)
has indeed established specific procedural obligations that stem from the duty in
question.
20 In fact, on the one hand, the ECJ has highlighted that the coordination
has to be granted both in the negotiation and the final phase of such agreements,
stating that: “when we are faced with an agreement regarding a shared competence,
it is important to ensure cooperation and coordination both during the negotiation
and in the conclusion phase.”
21 On the other hand, considering that the UNCLOS is
one of the main examples of international mixed agreements of the EU, in the MOX
Plant case, the Court prescribed a duty of the Member States “to inform and consult”
the European Community (now EU) before launching dispute settlement procedures
against another MS.
22 Therefore, the duty of cooperation implies that Member States
should refrain from actions that “. . .call in question the EU’s capacity for independent action in its external relations. . .”.
23
Therefore, although the EU Member States are parties to the UNCLOS as
sovereign States, they are “. . .not as a mere appendage of the European Union. . .”.
24
The duty of cooperation may be read as an obligation to promote best national efforts
to try to harmonize its own positions.
In order to understand the potential future role of the EU in the negotiations in the
UNGA and its subsidiary bodies to the adoption of a new ILBI, it is important to
outline the traits of the new status that the EU has technically had since 2011 in the
UNGA and the new legal range of action.
The role of the EU has been enhanced through the adoption of UNGA’s resolution
65/276,
25 improving its own rights of participation.
The resolution in question grants a series of prerogatives that allow the EU,
despite its observer status, to participate more strongly in the work of the UNGA and
its subsidiary bodies. In fact, the resolution highlights the right of the EU to be able
to participate in the general debate, availing itself of the right to reply on the
positions taken in the discussions, making, inter alia, its documents circulate
among the individual delegates present therein and exercising, under certain
19 See Council Decision 89/392, cit., Art. 2, Annex III. Cf., Long (2014), p. 167.
20 On the duty of coordination, cf., inter alia, Cremona (2008), p. 125; Neframi (2010), p. 323.
21 Opinion n. 1/78 on Draft Convention of the International Atomic Energy Agency on the Physical
Protection of Nuclear Materials, Structures and Transport [1979] ECR I-2871, paras. 34–36.
22 Case C-459/03 Commission v. Ireland (MOX Plant) [2006] ECR I-4635, para. 179.
23 Case C-28/12 Opinion of Attorney General (AG) P. Mengozzi European Commission v. Council
of the European Union [2015] ECLI:EU:C:2015:43, para. 63. Cf., Hillion (2010), p. 87.
24 Case C-2-15 Opinion of AG E. Sharpston Conclusion of the Free Trade Agreement between the
European Union and the Republic of Singapore [2016] ECLI:EU:C:2016:992, para. 77.
25 UNGA Resolution, A/RES/65/276, Participation of the European Union in the work of the United
Nations, 3 May 2011.
406
L. Riccardi