Court of Justice of the European Union Rules on EU Institutional Prerogatives in ITLOS Advisory Opinion

The European Union (EU) is one of the world’s leading fishing powers and is party in its own right to several dozen multilateral, regional, and bilateral agreements on the management and conservation of fisheries, an area of exclusive EU competence under the common fisheries policy. [1]  Absolute clarity regarding the prerogatives of the European institutions in the conduct of the EU’s external representation is therefore of fundamental importance for all concerned with legal proceedings in international courts and tribunals. This includes, most notably, proceedings pertaining to the interpretation and application of international fisheries agreements and related treaties.  An important milestone was achieved in this regard on October 6, 2015, when a Grand Chamber of the Court of Justice of the European Union (CJEU) rendered its judgment on the application made by the Council of the European Union (Council) seeking the annulment of the decision of the European Commission (Commission) to submit a written statement on behalf of the EU to the International Tribunal for the Law of the Sea (ITLOS) in Case No. 21.[2]

The latter case is noteworthy because it was the first advisory opinion rendered by the full Tribunal, which dealt with four questions submitted to it by the Sub-Regional Fisheries Commission (SRFC) in West Africa about the obligations, responsibilities, and liabilities of flag states, coastal states, and international organizations, in relation to illegal, unreported, and unregulated (IUU) fishing.[3]

As a contracting party to the United Nations Convention on the Law of the Sea (UNCLOS),[4] the EU was invited by ITLOS to submit written and oral statements furnishing information on the questions submitted to the Tribunal for an advisory opinion in Case No. 21.[5]  This invitation gave rise to a brief but divisive inter-institutional dispute between the Council and the Commission that ultimately led the Council to bring an annulment action before the CJEU. The CJEU reviewed the legality of the Commission’s actions in Case No. 21 and determined EU law on the Commission’s and the Council’s respective powers in relation to the ITLOS advisory opinion.

Factual and Legal Context

The dispute shone a spotlight on the complex procedures followed within EU institutions to prepare for international judicial proceedings. On receipt of the invitation from ITLOS, the Commission sent successive documents setting out the core elements of the EU position to the Council’s Law of the Sea and Fisheries Policy working groups. However, the Commission did not disclose the full text of the draft statement to the Council working groups and, after taking into account the views of a number of member states, the Commission submitted a statement on behalf of the EU to ITLOS without the prior approval of the Council.[6] This was significant because both the Council presidency and the Committee of Permanent Representatives of the member states were firmly of the view that the Council was the body empowered under the EU treaties to decide whether the EU should submit written observations and, if so, to endorse or modify the content of those observations.[7] Independently of the EU, seven member states also submitted separate statements to ITLOS in their capacities as states parties to UNCLOS.[8]

The CJEU annulment action was governed by a wide range of international and EU instruments, including the provisions in UNCLOS pertaining to ITLOS, the ITLOS Statute and Rules of Procedure, the FAO Compliance Agreement, the United Nations Fish Stocks Agreement, as well as the terms of the fisheries agreements concluded between the EU and the members of the SRFC.[9] In addition, the applicable law embraced EU secondary legislation on IUU fishing, including regulations that give effect to measures adopted by regional fisheries management organizations as regards third countries including members of the SRFC.[10]

Gravamen of the Annulment Action

The Council’s annulment action concerned the precise allocation of powers within the EU institutions in preparing and deciding the EU position in international judicial proceedings. Supported by nine EU member states,[11] the Council contended that the Commission should have requested and obtained its prior approval before submitting a written statement to ITLOS and that by failing to do so, it had breached EU treaty principles on the conferral of powers and institutional balance,[12] as well as the duty of mutual sincere cooperation that exists between EU institutions in carrying out their respective functions. [13] For its part, the Commission counterclaimed that it was legally competent under EU treaties to submit the statement without the Council’s prior approval and that it had discharged its duty of interinstitutional cooperation accordingly.[14]

Prior Approval Not Required

The CJEU found that the Commission was empowered under the EU treaties to represent the EU in international legal proceedings including advisory proceedings before ITLOS.[15] In finding that the Commission had acted within the limits of its powers and with due regard for the powers of the other institutions in preparing the EU statement in Case No. 21,[16] the Court observed that UNCLOS, the Compliance Agreement, the UN Fish Stocks Agreement, and the fisheries agreements with the SRFC, are an integral part of the EU legal order.[17] Moreover, the purpose of the EU statement was not to formulate a policy in relation to IUU fishing but to present a set of legal observations to enable ITLOS to undertake informed deliberations on the questions tendered by the SRFC.[18] On the issues of ITLOS’s general jurisdiction to render an advisory opinion and on the admissibility of the SRFC questions, the CJEU held that these were “characteristics of participation” in legal proceedings and therefore were not strategic or political choices for the Council to exercise as part of its policy making functions under the EU treaties.[19]  Accordingly, the Commission did not require the Council’s prior approval before submitting a written statement to ITLOS.[20]

Commission Cooperated with the Council

According to the CJEU, the EU treaty principle of sincere cooperation requires the Commission to consult with the Council prior to expressing EU positions before an international court.[21] The CJEU found that the Commission had discharged this obligation when it circulated to the Council various working documents pertaining to the draft statement, including drafts that took into account the views of the working groups, prior to the onward transmission of the statement to ITLOS.[22] The spirit of sincere cooperation was also evident in the neutral position adopted in the statement regarding the issue of ITLOS’s general jurisdiction to render an advisory opinion, which in the Court’s view reflected the divergent views of the member states on this issue.[23]

Consequently, the Council dismissed the annulment action in its entirety and ordered the Council and member states to pay costs.[24]

Relevance for international law

By upholding the competence of the Commission to decide the EU position in Case No. 21, largely on the basis of a somewhat perfunctory exchange of views with the Council, the CJEU clarified the respective prerogatives of the EU institutions in preparing for international legal proceedings with the Commission firmly in the vanguard to the detriment of the lesser consultative role of the Council. The annulment action thus highlights yet again the cumbersome division of competence and the tensions that exist between the European institutions and the member states on matters concerning the common fisheries policy and the law of the sea more generally.[25]

The outcome of the annulment action must also be viewed in light of the ITLOS opinion that the EU can be held liable for any breach of its international obligations arising from a fisheries agreement on the grounds that it has assumed exclusive competence in relation to fisheries.[26] The latter finding is foursquare with the position presented by the Commission in its oral pleadings in Case No. 21 and is fundamental to the effective functioning of the international dimension of the common fisheries policy, as well as to ensuring the accountability of member states within the European legal order.[27]

At a diplomatic level, the CJEU judgment is germane insofar as the Commission is committed within its work programme 2015–2020 to shaping the international ocean governance agenda at the United Nations and in other multilateral organizations, and through bilateral initiatives with key global partners in maritime affairs.[28] Indeed, at a time when the United States has yet to ratify UNCLOS and when two other permanent members of the Security Council—China and the Russian Federation— have demonstrated a notable reluctance to be bound by the compulsory dispute settlement proceedings under the Convention,[29] the Commission acting on behalf of the EU has shown a strong commitment to supporting the institutions established under UNCLOS including the dispute settlement bodies,[30] as well as facilitating ITLOS in discharging its advisory jurisdiction.

About the Author: Ronán Long holds the Jean Monnet Chair of European Law at the National University of Ireland Galway and is a Distinguished Senior Visiting Scholar at the Law of the Sea Institute at the University of California, Berkeley.