Requiring ‘unity first’ in relations with third states: the Court continues ERTA-doctrine in Opinion 1/13

 By Laurens Ankersmit

In last Tuesday’s Opinion (Grand Chamber) following an article 218 (11) request by the Commission, the Court confirmed that the acceptance of the accession of an non-Union country to the 1980 The Hague Convention on child abduction fell within the EU’s exclusive competence. As a consequence, the decision to accept accession of a third state can only be taken after the Council has taken a decision on the matter, and Member States can no longer decide that third countries can accede and establish bilateral obligations on their own. The Court rejected the position taken by 19 out of 20 Member States who submitted observations to the Court, and once again supported the view that EU Member States are required to act jointly first in matters which may affect the EU legal order. The judgment is particularly noteworthy because;

  • The Court’s interpretation on the scope and meaning of the article 218 (11) TFEU request;
  • The confirmation of the ERTA-case-law post-Lisbon.

This blogpost will consider both points in turn.


The 1980 The Hague Convention is an international agreement between States which regulates the return of abducted children and ensures that the rights of custody and access are respected by the parties to the Convention. Initially, only EU Member States were party to the Convention. Also, the EU itself cannot be a party to it, as the Convention is only open to States. After the EU acquired competence in this area, it adopted rules within this area itself, the latest being Regulation 2201/2003 (the Brussels IIa Regulation) on the recognition of judgments in matrimonial matters.

In recent years, a number of third States (such as Armenia, Albania, the Seychelles) have applied to accede to the 1980 Convention. In response to this, many Member States have – on their own and not jointly through EU procedures – accepted accession of these States. The Commission, on the other hand, had proposed to accept accession by proposing decisions to the Council for the latter to issue declarations of acceptance, as it considered that the matter fell within EU exclusive competence in light of article 3 (2) TEU. The Council did not accept these proposals as it did not see the need to do so. The Council was perfectly happy with Member States deciding on accession on their own, and rejected the view that a decision to accept accession fell within EU exclusive competence.

In light of all of this, the Commission requested an Opinion of the Court pursuant to the procedure of article 218 (11) TFEU which allows institutions and Member States to request the Court’s Opinion on whether an ‘envisaged agreement’ is EU law compatible. The Court’s subsequent Opinion hinged on two points: firstly, whether the request was admissible because several Member States had doubts as to whether the proposal by the Commission amounted to an ‘envisioned agreement’, because only States could decide on accession, because the decision on accession was not considered to constitute an international agreement, and lastly because there was nothing to ‘envision’ as Member States themselves had already decided on accession in most instances. Secondly, there was considerable disagreement whether the decision to accept accession would affect common rules or alter their scope (the ERTA doctrine) in which case the decision fell within exclusive EU competence and, as a consequence, Member States could only act after a joint decision through the EU institutional framework. 19 out of 20 Member States and the Council rejected this idea, whereas the Parliament, the Commission and the Italian Republic argued that such a decision indeed fell within exclusive EU competence.

The scope and nature of an article 218 (11) TFEU request: admissibility

The first noteworthy feature of this Opinion is that the Court is prepared to go out of its way to make an article 218 (11) TFEU request admissible. While this is not a surprise in light of the Court’s previous case-law, it remains noteworthy to see just how broad the Court construes the permissibility of such a request. Consider the following: (1) the subject matter concerns a decision to accept accession of another State; (2) the EU is not a party to the 1980 Convention; (3) Member States had already taken these decisions themselves, making the ‘envisioned’ part a bit doubtful.

Nonetheless, the Court found the request by the Commission admissible. The Court, first, held that the decision to accept accession amounted to an agreement in the sense of article 218 (11) TFEU as such a decision together with the application of the third State amounted to the ‘convergence of intent’ of two States to apply the Convention vis-a-vis each other (paras 38-42). The Court, secondly, and in line with settled case-law, refuted the argument that the request was inadmissible because the EU itself was not a party to the Convention, because the request was made to clarify the competence of the EU, not the legal obstacles the EU may face in concluding international agreements (this can be done through the Member States, paras 43-44).

On the third point, whether the agreement was ‘envisioned’ the Court noted that the Commission’s proposal was still pending (paras 46 and 49) and emphasized the right of each institution and Member State to ‘know the extent of the respective powers of the EU and the Member States before a decision relating to the agreement concerned is taken’ (para 46). The whole point of an article 218 (11) reference, moreover, was ‘to forestall the legal complications caused by situations in which the Member States enter into international commitments without the requisite authorisation when, under EU law, they no longer have the necessary legislative competence to put those commitments into effect’ (para 47). This was exactly the case here, as exclusive competence would mean that Member States can no longer act on their own. Interestingly, the Court added that this conclusion was not affected by the fact that Member States had already decided on accession by third States unilaterally:

Although it follows from the objective of the opinion procedure referred to in paragraph 47 above that the agreement concerned — in order to be classified as ‘envisaged’ — must not be concluded before the Court gives the opinion requested, the [fact of unilateral acts by Member States] alone is not such as to render the request redundant. (para. 51)

This appears to be a bit contradictory and the Court does not bother to explain its views any further. The Advocate General had conceded that the unilateral actions by Member States were, in fact, a problem for the admissibility of the request, but Opined that the request was still admissible insofar as the proposals concerned decisions on accession that had not yet been made (paras 47-48 of his Opinion).


ERTA case-law continues in light of article 3 (2) TFEU

After settling the admissibility issue, the Court had to deal with the question whether the decision to accept accession of the 1980 The Hague Convention fell within exclusive EU competence. The Opinion here is especially noteworthy because it is the first time the Court had to interpret the last part of article 3 (2) TFEU which is commonly understood as a codification of the ERTA case-law on exclusive EU external competence. Nonetheless, as being a new Treaty provision, things could have gone differently. Article 3 (2) TFEU reads:

‘The Union shall also have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union [Opinion 1/94-type exclusivity] or is necessary to enable the Union to exercise its internal competence [Opinion 1/76-type exclusivity], or in so far as its conclusion may affect common rules or alter their scope [ERTA-type exclusivity].’

The question here was whether de decision to accept accession of a third State may affect the Brussels IIa Regulation or alter its scope.

Here, the Court had absolutely no difficulty in stating that all the pre-Lisbon case-law (ERTA and Opinion 1/03 in particular) were still fully relevant. This meant that there is no need that the international agreement and EU rules coincide fully (para 72) and that rules may be affected as soon as commitments are concerned in an area which is already covered to a large extent by those rules (para 73). Moreover, a ‘comprehensive and detailed analysis’ of the relationship between the rules must be carried out which includes their foreseeable future development ‘in order to determine whether the agreement is capable of undermining the uniform and consistent application of the EU rules and the proper functioning of the system which they establish’ (para 74).

In applying this test, the Court conducted a thorough comparison between the Brussels IIa Regulation and the 1980 Convention and found that the Regulation covered to a large extent the two main procedures set up by the Convention (the procedure for returning wrongfully removed children andthe procedure for securing the exercise of rights of access; paras 75-83). In the second step, it found that there may indeed be a risk that the EU rules in place may be affected:

if the Member States, rather than the EU, had competence to decide whether or not to accept the accession of a new third State to the 1980 Hague Convention, there would be a risk of undermining the uniform and consistent application of Regulation No 2201/2003 and, in particular, the rules concerning cooperation between the authorities of the Member States, whenever a situation involving international child abduction involved a third State and two Member States, one of which had accepted the accession of that third State to the Convention whilst the other had not. (para 89)

Some concluding remarks

The Opinion of the Court stands out for two main things: the light standard of admissibility of a request pursuant to article 218 (11) TFEU and the confirmation that article 3 (2) TFEU should be interpreted fully in light of previous case-law. The light standard no doubt is the result of the Court’s wish to preserve the autonomy of the EU legal order as much as possible and it may also not come as a surprise that the Court is happy to confirm the codification of its own case-law in the TFEU. Nevertheless, the Court did have to overcome the opposition of no less than 19 Member States in this case.

The Opinion once again makes clear that the Court has a preference for EU Member States to act jointly through the EU in relations with third countries. It is not easy for Member States to ‘go unilateral’: even if there is no possible contradiction between EU rules and an international agreement, the mere risk that EU rules can no longer be uniformly applied will trigger EU exclusive competence on the basis of article 3 (2) TFEU. The message is clear: Member States should act together externally in such cases. This may affect the extension of the scope of international agreements such as the 1980 The Hague agreement: After all, a decision of the Council on the basis of a Commission proposal is needed before accession of a third State can be accepted. That being said, even if one must go through Brussels first, it might be still possible that the Council decides that Member States may individually accept accession. The difference is, of course, that the EU through its own procedures has granted Member States this possibility, and not that the Member States possess this option irrespective of decision making at EU level.