Antarctica: Has the Court of Justice got cold feet?

By Christina Eckes

In the period since the entry into force of the Lisbon Treaty, Member States have more and more often and more and more passionately challenged the Union exercise of external relations powers conferred to it under the Lisbon Treaty. In the words of Advocate-General Kokott in her Opinion in the Antarctica cases legal actions are fought with ‘astonishing passion’ and ‘allegation[s are made] that the Commission wished to do everything possible to prevent international action by the Member States’, as well as that ‘the Council [was] compulsively looking for legal bases that always permit participation by the Member States’ (para 75).

On 20 November 2018, the Court of Justice ruled in the Antarctica cases on two actions of annulment brought by the Commission against Council decisions approving the submission, on behalf of the Union and its Member States, to the Commission for the Conservation of Antarctic Marine Living Resources (‘the CCAMLR’) of a reflection paper and a common position on four proposals concerning the creation and study of marine protected areas. The Council was supported in its defence in the two cases by 9 and 10 Member States, respectively. The point of contention – as is the case in a growing body of post-Lisbon litigation – was not the substantive position but the question of on behalf of whom the paper and the positions at issue could be submitted: the Union alone or the Union together with its Member States.

The Court dismissed the Commission’s challenges and held that permitting ‘the European Union to have recourse, within the CCAMLR, to the power which it has to act without the participation of its Member States in an area of shared competence, when, unlike it, some of them have the status of Antarctic Treaty consultative parties, might well, given the particular position held by the Canberra Convention [the Convention on the Conservation of Antarctic Marine Living Resources] within the system of Antarctic agreements, undermine the responsibilities and rights of those consultative parties — which could weaken the coherence of that system of agreements […]’ (para 133).

While AG Kokott had recommended annulling both Council decisions ‘in so far as’ they specify that the reflection paper is to be submitted and the position is to be adopted ‘on behalf of the Union and its Member States, rather than on behalf of the Union alone’ (paras 124 and 139), the Court considered participation by the Member States lawful, if not desirable.

Centre of gravity test

Both AG Kokott and the Court took as a starting point that the voting requirements of Article 218(9) TFEU decisions are determined by the legal bases for the substantive matter of these decisions and that the usual centre of gravity approach applied if several legal bases are possible (AG, para 79 et seq; Court, para 77 et seq). This starting point is in line with the recent case on the EU-Kazakhstan Enhanced Partnership Agreement, in which also AG Kokott wrote the Opinion and the Court held essentially that decision-making under Article 218(9) TFEU follows a simplified procedure as compared to the conclusion of international agreements and follows the same rules for determining the appropriate legal basis as legislative activities (centre of gravity test).

Both AG Kokott and the Court conducted a detailed analysis of the ‘preponderance of the environmental link over the fisheries aspect’ (AG para 88) and the ‘exclusive or main purpose or component of the reflection paper and the envisaged measures’ (Court, para 87 et seq), respectively. Both concluded that the correct legal basis was environmental policy (AG, para 98; Court, para 97) and that as a consequence they fall within the competences shared between the Union and the Member States, that is Article 4(2)(e) TFEU (AG, para 100; Court, para 100).

The Court expressly dismissed the argument that the horizontal clause of Article 11 TFEU, which obliges the Union to integrate environmental protection requirements in all its policies, could be read as justifying the choice of a non-environmental legal basis for environmental measures (Court, para 101). AG Kokott seems to agree and this is also a convincing position. Reading Article 11 TFEU as an argument against adopting measures on an environmental legal basis would have stood in contrast to the very rationale of this provision, which is to protect the environment by ensuring that other policies do not undermine the Union’s environmental policy.

However, AG Kokott and the Court fundamentally disagreed on the consequences flowing from the conclusion that the measures fell within shared competences.

 AG Kokott reiterated the conceptually correct but practically impossible position that the centre of gravity approach should be restricted to the division of powers between the EU institutions and should not affect the distribution of powers between the Union and its Member States (Antarctica, para 82; EU-Kazakhstan PA, para 59). The choice of legal basis, including on the basis of the centre of gravity approach, determines the powers of the Union and by extension also the powers of the Member States. It determines whether a Union competence is shared or exclusive. It determines whether Member States remain competent to take parallel action. And it determines whether Member States retain the powers to adopt more stringent national measures (e.g. in the case of environmental protection, Article 193 TFEU).

Shared competences allow for mixed action

AG Kokott concluded that there was no legal necessity for the Member States to participate (AG, para 104 et seq) and then excluded any voluntary participation by individual Member States (AG, para 111). This is an attempt at limiting or even ruling out the voluntary, that is legally not necessary, adoption of mixed EU-Member State action or ‘hybrid acts’ under Article 218(9) TFEU. These hybrid acts are a parallel to the ‘facultative mixity’, that is the political decision to conclude international agreements as mixed agreements without this being legally necessary and without determining who is in charge of which part of the agreement. If anything, however, exclusion of Parliament under Article 218(9) TFEU makes the use of hybrid acts in practice even more likely than facultative mixity. This is so even if apparent arguments speak in favour of ensuring Parliament is on board at least for those decisions that later require implementation through an international agreement to which Parliament must consent.

The Council’s choice of submitting the respective documents on behalf of the Union and its Member States, that is as a hybrid act, could, on the most favourable reading, be interpreted as indicating that the Union decided ‘not to exercise its inherent powers in this area of shared competences fully, but only partially, thereby allowing scope for autonomous action by the Member States’ (AG, note 71). The Union would have this option in the context of shared competences. If this had been the reason for taking mixed action, the Union would only have occupied the field within the meaning of Art 2(2) TFEU for those parts of the contested acts that it did exercise. AG Kokott dismissed this reasoning when she stated that, without objective evidence to the contrary, we should assume that the EU fully exercised its competence (AG, paras 114-115). This appears convincing. The Commission’s proposal was to submit the contested acts (also) on behalf of the Union and the only indication to the contrary is ‘the protestations’ made by some parties to the proceedings at the hearing (AG, para 114). The Court did not expressly discuss whether a partial exercise of powers by the Union could have justified mixed action.

AG Kokott explicitly agreed with the Commission’s argument that the Council erroneously equated shared competences and mixed action (AG, para 116). The Court explicitly disagreed (Court, para 125 et seq). This was an often-discussed issue in the context of the Court’s Opinion 2/15, in which it seemed to have suggested that shared competences require mixed action (para 244 and 292).

Rereading, in the light of the Antarctica ruling, the Court’s position in Opinion 2/15, which was somewhat disguised by its confusing use of the term ‘shared’, it seems that the Court did not mean to close the door on ‘facultative mixity’– even if some commentators may have read this initially differently.

The Court explicitly confirmed in Antarctica that, in the context of Article 218(9) TFEU, shared competences, while they may not require mixed action, at least permit it. Nothing indicates that this would not be the same for the conclusion of mixed agreements; by contrast the reasoning of the Court treats the competence question for decisions under Article 218(9) TFEU according to the same rules as legislative action and the conclusion of international agreements. In other words, even where the EU could take EU-only action because it does not relate to reserved national competences beyond the reach of exclusive or shared EU competences, it can also involve the Member States, despite the fact that this is legally – in light of the competence division under EU law – not necessary.

The rationale of shared competences within the meaning of Article 2 TFEU allows for action by the Union alone. Yet it does not address and hence does not necessarily exclude mixed actions. However, as I will argue in the next section, democratic legitimacy considerations speak strongly against involving Member States unnecessarily.

Diffuse Responsibility as an obstacle to self-rule

The involvement of Member States in Article 218(9) decisions is an ill-disguised attempt to introduce the hybridity, or ambiguity of who is politically responsible, into the realm of positions on the Union’s behalf in international bodies. It comes with all the democratic legitimacy problems of mixity (see Chapter 5 of this hyperlink).

Deploring citizens’ lack of political interest and information in and about the Union’s actions has nowadays become a platitude. The same is true for pointing out that political debates are often phrased in terms of ‘more or less Europe’ rather than actual substantive policy choices. However, by blurring the division of powers between the Union and its Member States through mixed external action (‘on behalf of’ everyone) it becomes impossible to track political responsibilities between the different actors. It severs the link between the political act and the elected official, which hollows out the political choice present in voting because citizens cannot know what powers the body they elect exercises. This also stands in the way of offering justification to the electorate for any particular political position or course of action. It necessarily refocuses the debate on questions of who citizens feel better represents them – the Union or their State – and distracts from the debate on who is responsible for what political choices both in the national and EU institutional context.

Moreover, mixed action not only conceals political responsibility for the substantive content of contested acts with which some citizens may agree or disagree. It also leaves open who will exercise these powers in the future because no clarification or justification is offered for which part of the contested acts, if any, the pre-emption under Art 2(2) TFEU was triggered. Politically this creates a perpetuated ambiguity of who is in charge and carries responsibility.

EU Autonomy curtailed by international law

The Union is a party to the Canberra Convention. However, it does not have the status of Antarctic Treaty consultative party. As a regional integration organisation, it cannot obtain such status (para 130). Such formal limitations are not an untypical obstacle for the Union’s participation in international organisations – on the contrary. Member States regularly act on behalf of the Union when such limitations are present.

 The Court focused on the potential negative consequences of submitting a position on behalf of the Union only and concluded that action by the Union alone would be capable of negatively affecting the attainment of the objectives of the Canberra Convention, which are safeguarding the environment and protecting the integrity of the ecosystem of the seas surrounding Antarctica. The underlying assumption seems to be that the Union is in a less powerful position under the Canberra Convention, because it is not an Arctic Treaty consultative party. In addition, the Court emphasizes that parties to the Canberra Convention, including the Union, ‘acknowledge the special obligations and responsibilities of the Arctic Treaty consultative parties’ (para 131). The argument seems hence two-pronged. The Union should involve the Member States for reasons of effectiveness (they are more powerful actors under the Canberra Convention) and because it has under international law explicitly committed to acknowledge the powers of the Member States as consultative parties.

In light of the fact that the Union usually is a formally less powerful actor under international law, this line of argument could potentially be the beginning of a slippery slope for the Union’s position as an autonomous international actor (Chapter 1 & 6). Participation by the Member States, enjoying all the rights of recognised sovereign states under international law (Article 2(1) of the UN Charter speaks in an illustrative manner of ‘the principle of the sovereign equality of all its Members’, which must be States and can only be States), may in numerous situations be advisable if assessed in terms of formal powers under international law. Indeed, formal limitations of the Union position and powers under international law would in this light regularly require Member States’ involvement.

Furthermore, the Court’s reasoning in paras 131-133 also means that if the Union acknowledges the stronger position of the Member States, for example by joining an international organisation in which the Union itself has limited powers and the Member States have full powers, this limits Union’s ability to exercise the (limited) powers that it has within that international organisation. In the Court’s eyes, the exercise of the Union’s (limited) powers could in such circumstances amount to undermining the stronger position and powers of the Member States in that organisation.

Did the Court of Justice get cold feet in Antarctica?

In at least two respects the Court’s position in Antarctica is more cautious than its positions in earlier post-Lisbon cases on the division of competences between the Union its Member States and the autonomy of the Union as an international actor, e.g. in the OIV case. The Court seems to have taken seriously Member States’ post-Lisbon pushback through litigation. First, it explicitly allowed voluntary, that is politically rather than legally motivated, participation by the Member States in decisions under Article 218(9) TFEU. Second, it specifically held that the limitations of international law on the autonomy of the Union as an international actor must be considered when the decision is taken whether the Union acts alone or together with its Member States (paras 130-133). This is a relevant – and potentially widely applicable – limitation of the Union’s ability to exercise its external powers alone.