CLEER paper 2017/2 - Erlbacher
Recent case law on external competences of the European Union: how Member States can embrace their own treaty
The challenges facing Europe today cannot be addressed without putting into practice one of the main objectives pursued by Member States when concluding the Treaty of Lisbon: that the Union should be capable of acting as a strong and united player on the international scene, rather than as a more or less effective coordination platform for 28 international policies. Brexit and the new administration in Washington only reinforce this finding. In order to ensure that the Union can play this role, Member States must, however, accept that the Union effectively exercises the competences that have been attributed to it. Recent Court case law regarding the scope and nature of the Union’s external competences confirm that the legal framework in force, without being complete, offers an adequate basis to that effect. This contribution offers a systematic analysis of the consequences that should be drawn from recent case law. Mostly, however, it seeks to identify possible avenues to allow legal disputes to be overcome, with a view to achieving the objectives that were pursued through the Treaty of Lisbon; in effect allowing Member States to embrace their own Treaty. Building on recent case law, and relying on the practice of the EU institutions that the author helped to shape as a Legal Advisor of the European Commission, he seeks to show that the conclusion of agreements by the Union alone (without ‘mixity’) neither leads to ‘uncontrolled power creep by Brussels’, nor to the disappearance of Member States from the international scene.
Friedrich Erlbacher is a Legal Adviser in the European Commission’s Legal Service. In recent years he has advised the European Commission in legal matters relating to EU external action and has represented the institution in a number of cases before the CJEU, some of which are analysed in this contribution. Some further insights stem from the author’s personal experience. The present article, however, reflects only the personal opinions of the author and not those of the European Commission or its Legal Service.