Happy birthday ERTA! 50 Years of the Implied External Powers Doctrine in EU Law

1. Introduction

Wednesday 31 March 2021 marks – to the day – the 50th anniversary of the delivery of the ERTA judgment (Case C-22/70, Commission v Council) by the Court of Justice of the European Union – a seminal case in the history of EU law.

On 31 March 1971, in the run-up to Easter, the Court delivered its ERTA ruling that has come to shape a fully-fledged field known as EU external relations law, and the establishment of the implied external powers doctrine, better known as the ERTA doctrine. Within EU law, the existence of ERTA is known to some extent, but half a century after its delivery, the ramifications of the ERTA doctrine are not as well understood as they ought to be beyond the niche field of EU external relations lawyers.

2. An overlooked doctrine of EU law

With due respect to the leading literature on EU law, it collectively under-appreciates how much the case contributed to the EU legal order for its constitutional, internal, and external dimension. More generally, this is striking, as – quoting former judge Allan Rosas – ‘[a]ny meaningful study of the constitutional order of the EU must include the external relations of the Union. In fact, EU external relations law offers one of the best ways of understanding the essential features of the Union legal order in general’. The ERTA judgment, and more specifically, the ERTA doctrine, is just as much an important milestone in the development of the EU legal order as other Court judgments in the earlier years, including judgments like Van Gend en Loos on direct effect, and Costa v ENEL on primacy.

The golden jubilee of ERTA is to be fittingly recalled, and more generally, better deserves to be understood within EU law for a number of reasons. Not only was ERTA the basis for the entire field of EU external relations law, but has been central to the development of internal competence battles to be resolved at the Court of Justice – both between the Member States and EU institutions; and also between the EU institutions themselves. In fact, the ERTA case has the honour of being the first ever case in which the Commission and the Council faced off squarely before the Court over a question of competence, and consequently, has contributed to EU constitutional law in similar form.

3. The ERTA case

Within the Council, the Member States were negotiating a position for a proposed international agreement. This eventually led to an agreed position of the Member States on the ratification of an international agreement that came to be known as the European Agreement concerning the work of crews of vehicles engaged in international road transport (ERTA). The Member States were of the view that this international agreement was a product of the Member States, and not the Council itself.

The negotiations leading to the ratification of the international agreement by the Member States saw concern expressed by the Commission that the Council was impinging upon an area – in this case, transport – that would affect internal EU law, given the existence of a prior Regulation in this regard. Thus, the Commission brought proceedings against the Council, on the basis that EU powers were potentially being impinged. In particular, the Council had requested the Commission to propose an amendment to the Regulation so that EU law could comply with the proposed international agreement, thus triggering the Commission’s legal service into action, and bring a case before the Court of Justice

Prior to the judgment of the Court of Justice, the Opinion of Advocate General Dutheillet de Lamothe laid the basis for the reasoning of the Court’s judgment – the Member States’ practice of negotiating an international agreement – ERTA – constituted a threat to the ‘new legal order’ that the EU, as had, at that time, only recently been stated in Van Gend en Loos. Though slightly different from the AG, the Court in ERTA, with Judge Pescatore as juge rapporteur, delivered its judgment, setting out the doctrine of implied external powers.

On the Union’s capacity to enter into international agreements, the Court read beyond the narrow treaty-basis for this, and understood that primary law thus entailed the possibility of a general treaty power. In particular, the Court said ‘regard must be had to the whole scheme of the Treaty no less than to its substantive provisions’, and that such external powers ‘may equally flow from other provisions of the Treaty and from measures adopted, within the framework of those provisions, by the Community institutions’. Further, the Court said that ‘each time the [Union], with a view to implementing a common policy envisaged by the Treaty, adopts provisions laying down common rules, whatever form these may take, the Member States no longer have the right, acting individually or even collectively, to undertake obligations with third countries which affect those rules’. The effects of what became known as ‘ERTA pre-emption’ here were manifest, with the wings of Member States in international fora being clipped in one foul swoop.

In no uncertain terms, the Court also said that ‘to the extent to which [Union] rules are promulgated for the attainment of the objectives of the Treaty, the Member States cannot, outside the framework of the [Union] institutions, assume obligations which might affect those rules or alter their scope’. This was nothing short of a revolution. At least potentially, this covered the entirety of the EU legal order, and not merely areas fused to the explicit external powers which were stipulated in the Treaty of Rome on the common commercial policy or association agreements. In other words, explicit external powers of the EU were to be supplemented by implied external powers of the EU, possibly even leading to exclusivity.

The Court unambiguously tied the internal aspects of Union law with its external aspect. It said that ‘the implementation of the provisions of the Treaty the system of internal [Union] measures may not therefore be separated from that of external relations’, thus meaning there was no clear method upon which internal and external dimensions can be clearly detached. Put another way, ERTA did something truly remarkable, for where it is established that EU competence is present, such EU competence has primacy over that of Member State’s external acts.

The Court was unwilling to accept a view of the Member States that the Council was to be a mere secretariat for their cooperation in international relations of their own individual accord. To sustain an intergovernmental view of the Council, as the Council tried to plead, would have relegated any true sense of supranationality about the nature of EU law. ERTA thus represented a further step away from the EU being a mere intergovernmental organisation, and being a more complete legal order in its own right. The external powers of the Member States individually, and collectively as the Council, were limited; and were thereafter, to function within the EU system of government.

In sum, the ERTA case made clear that international commitments undertaken by Member States could not have the potential to impinge on commitments the Member States have undertaken as regards the Union, and laid the basis for the EU to become a global legal actor.

4. Celebrating ERTA

The ERTA doctrine and the case as a whole is also a key case in understanding several fields of EU law – EU constitutional law, EU institutional law, and EU external relations law. The contemporary evidence of ERTA’s ramifications are easily seen, by reference to just a few select examples.

Firstly, the Union post-ERTA had the possibility to negotiate and conclude international agreements in an array of areas and policy fields. This allowed for affirmative safeguards on the effectiveness of EU law. Secondly, ERTA had an impact on who negotiated international agreements, which has dramatically changed over time. In the case, the Commission wanted to attend the negotiations, but the Member States ignored such requests, and did not even keep the Commission informed. By contrast, in the modern era, it is the Commission who ordinarily conducts the negotiations for international agreements within the meaning of Article 218 TFEU – be it ‘EU-only’ or mixed international agreements. Thirdly, ERTA laid the basis for potentially making the implied external powers doctrine one concerning exclusive competence of the Union. As the EU legislates internally, that in turns means there is more exclusive competence for the EU.

A codification of the basic ERTA doctrine was attempted with the Treaty of Lisbon, and seen in Article 3(2) TFEU and Article 216(1) TFEU. Despite this attempt at codification being far from perfect, and certainly dubious as regards catching the entirety of the case law in EU external relations law up to that point, this attempted (yet botched) codification, by cementing it into the EU Treaties, can be interpreted as clear acceptance by the Member States of the judge-made ERTA doctrine of implied external powers of the EU. Neither Van Gend en Loos or Costa v ENEL have ever been on the end of such clear acceptance.

In the post-Lisbon era, debate and litigation continues before the Court of Justice about the state of the implied external powers doctrine arising from ERTA, as seen in Broadcasting Organisations (C-114/12), Opinion 1/13, COTIF I (C-600/14), and Opinion 2/15, amongst others. The ERTA doctrine will continue to see litigation brought on foot of the evolving application of the doctrine to new situations. Rightly, ERTA is to be celebrated half a century on, and needs better recognition within EU law as being one of the true landmarks in the legal development of Europe.

What should one give to such an influential judgement for its 50th birthday? Together with over 100 EU law specialists (academic scholars, judges, agents of institutions and Member States, and legal practitioners in the field of EU external relations law), we decided that a book containing analyses of cases that followed ERTA, which further defined EU external relations law, would be the perfect gift.