Opinion 1/19: no common accord among the Member States required for the Council to conclude a mixed agreement
On 6 October 2021, the Court of Justice of the EU handed down Opinion 1/19 on the conclusion, on behalf of the EU, of the Council of Europe Convention on preventing and combating violence against women and domestic violence (‘the Istanbul Convention’). In its request for an opinion, the European Parliament had asked the Court three questions: one on the choice of legal basis; another on whether and, if yes, under what conditions, the Council may or even has to split a Council decision to conclude an international agreement into several separate decisions; and a third question on whether it is permissible for the Council to wait for a common accord among the Member States to crystallize before adopting the Council decision to conclude the agreement on behalf of the EU.
Opinion 1/19 has already been commented upon: Merijn Chamon has published a blog post summarizing the lengthy Opinion and providing a preliminary analysis of the Court’s answer to all three of the questions, and Gesa Kübek has published a post that focused on the third question. In this blog post, I offer my own perspective on the Court’s reply to the third question – a reply which I believe has broader implications for the vertical relationship between the EU and its Member States in the context of mixed external action.
The Court’s reply to the third question
The European Parliament had formulated the third question in the following terms (see para 1):
“Is the conclusion by the EU of the Istanbul Convention in accordance with Article 218(6) TFEU compatible with the Treaties in the absence of a common accord of all the Member States giving their consent to being bound by the convention?”
The Court’s answer to the question runs as follows (see para 338):
“Subject to full compliance, at all times, with the requirements laid down in Article 218(2), (6) and (8) TFEU, the Treaties do not prohibit the Council of the European Union, acting in conformity with its Rules of Procedure, from waiting, before adopting the decision concluding the [Istanbul Convention] on behalf of the European Union, for the ‘common accord’ of the Member States to be bound by that convention in the fields falling within their competences. However, the Treaties do prohibit the Council from adding a further step to the conclusion procedure laid down in that article by making the adoption of the decision concluding that convention contingent on the prior establishment of such a ‘common accord’.”
The Court thus holds that it is perfectly acceptable for the Council to wait with the adoption of a decision to conclude a mixed agreement until the Member States have reached a unanimous agreement to go ahead with the adoption. However, the Court qualifies this with a caveat: it is only acceptable, provided that such a Council practice is not understood as a requirement that must be met before the Council can act. The Court thus makes clear that an additional requirement of unanimous agreement within the Council would violate the applicable decision-making rules. Ultimately, this would also violate the autonomy of EU law, which requires the Council (and the Member States) to apply those decision-making rules, ‘to the exclusion, if EU law so requires, of any other law’, as the Court put it in US Air Transport Agreement on the subject of so-called ‘hybrid’ acts (see para 40).
Venturing further down the path taken in US Air Transport Agreement
Central to the Court’s reasoning is the reference in paragraph 253 of the Opinion to the Council’s rules of procedure. Which rules of procedure? The Court is likely to have had in mind Article 11 of the 2009 Rules of procedure of the Council, which in its first paragraph provides:
The Council shall vote on the initiative of its President.
The President shall, furthermore, be required to open a voting procedure on the initiative of a member of the Council or of the Commission, provided that a majority of the Council’s members so decides.
In other words, a simple majority of Member States (i.e. at least 14 out of the 27) can force a vote on the adoption of the Council decision to conclude the Istanbul Convention on behalf of the EU. If a qualified majority of Member States is in favour, then the decision is adopted, and the EU can become a party to the Convention.
This is an important clarification by the Court. In a case note on the above-mentioned US Air Transport Agreement judgment, I had previously criticized the Court for its formalism. In that judgment, the Court had held that hybrid acts, i.e. acts jointly adopted by the Council and the Member States meeting in the Council, were incompatible with the decision-making rules set out in the Treaties. In particular, by merging an EU act (formally) adopted by qualified majority vote (QMV) with an intergovernmental act adopted by unanimity, the Council had violated the decision-making rules in Article 218(2), (5) and (8) TFEU, which required the Council to act by QMV, and not unanimity (para 53).
In my view, US Air Transport Agreement was a hollow victory for the Commission (the applicant), for even if legally both acts were now to be adopted separately, in political terms the situation remained the same: the two decisions being inextricably linked, the Council was unlikely to adopt its own decision by QMV without the Member States at the same time adopting their own, intergovernmental decision by unanimity. This follows from the logic of mixity according to which the Member States and the EU act jointly. The logic of joint action imposed itself with a particular intensity in US Air Transport Agreement, which involved a bilateral agreement between the EU and its Member States on the one hand, and the United States on the other.
In Opinion 1/19, the Court nonetheless ventures further down the formalist path taken in US Air Transport Agreement by emphasizing that legally nothing prevents the Council from adopting its decision to conclude the Istanbul Convention. If a qualified majority can be found in the Council to adopt the decision, then the Council is free to do so and is under no legal obligation not to act as long as there is no common accord among the Member States. In so doing, the Court clarifies that, in a world of shared external competence, neither the duty of sincere cooperation nor the requirement of unity in the international representation of the EU and the Member States can stop the EU from exercising its competences (see para 257 of the Opinion) – in the same way, one must add, as the EU likely cannot preclude Member States from exercising (or not exercising) their own competences to conclude (or not conclude) a mixed agreement (in this sense, see Van der Loo and Wessel 2017, 745). Opinion 1/19 thus makes clear that the Court’s formalism works both ways: it may protect the autonomy of the Member States (as it did in US Air Transport Agreement), as well as that of the EU (as it does in Opinion 1/19).
A shift of emphasis
The Court’s answer to the third question put to it by the Parliament continues the shift of emphasis in the Court’s case law on the management of mixity that the Court initiated in US Air Transport Agreement: ever since Opinion 2/91 on ILO Convention Nº 170 and Opinion 1/94 on the WTO agreements, the Court had emphasized the importance of the EU and the Member States working together to ensure unity in the international representation of the EU and its Member States in mixed external action. This was important to protect the credibility of the EU on the international stage, and to avoid confusion among the EU’s treaty partners as to who is competent for what, and who is responsible in the event of non-compliance. (Nota bene, under the Vienna Convention on the Law of Treaties, by which the EU is bound as a matter of customary international law, the division of competences between the EU and its Member States is irrelevant: except if a party is manifestly acting ultra vires, the EU and the Member States are jointly responsible for the entire agreement.)
By clarifying in Opinion 1/19 that the Council is legally in its right to adopt the decision to conclude the Istanbul Convention even in the absence of a common accord among the Member States, the Court makes it explicit that is really up to the Member States in the Council to allow the EU to exercise its shared competence. The ball is, in other words, in the court of the Member States.
Are things different this time round?
Will Member States in the Council allow the EU to exercise its shared competence, however? Might a qualified majority of Member States allow the Council to adopt a decision if that majority considers that, as a matter of policy, the Istanbul Convention should be adopted? Or might some Member States – even if they favour ratification of the Convention – still refuse to vote for the adoption in the Council for fear that, on another occasion, their own veto might be overridden by a differently constituted qualified majority of Member States?
One can of course only speculate. Past institutional practice certainly suggests the latter option – hence my skepticism in the above-mentioned case note. There are, however, also indications that things might be different this time round. To start with, the Istanbul Convention is a multilateral convention which expressly allows both the EU and its Member States to become a party, alongside the non-EU members of the Council of Europe (see the Convention’s Article 75(1)). The above-mentioned logic of mixity which imposed joint decision-making to get the bilateral EU-US Air Transport Agreements ratified thus arguably imposes itself with considerably less intensity in the case of the Istanbul Convention.
Furthermore, political dynamics within the Union of 27 have changed since the time of US Air Transport Agreement, which was handed down in the spring of 2015. Polarization has increased further, and Member States appear more willing to exercise veto powers than in the past, and to accept the possibility that on another occasion they might be the ones put in the minority. This is visible both in common commercial policy, with France and Austria threatening not to ratify the EU-Mercosur deal, and in common foreign and security policy, with Cyprus blocking additional sanctions against Belarus. And, as Member State submissions to the Court show (see paras 189-190): at least three Member States have already expressed their opposition against the Istanbul Convention (a regrettable state of affairs considering the subject matter of the Convention!). Perhaps paradoxically, such growing polarization may make it more likely that Member States in the majority will make use of the opportunities offered by the Treaties to get decisions adopted by QMV – especially if the mixed agreement is a multilateral as opposed to a bilateral agreement.
Against this backdrop, it is meaningful that the Court ensures that, if and when the Council is ready to act, there are no legal roadblocks lying in its way. If the Council does indeed decide to act by QMV rather than to wait for a common accord amongst the Member States, it is worth remembering that Article 216(2) TFEU provides that the ensuing EU-only agreement is binding not only on the EU, but also on its Member States – all of them (opt-outs notwithstanding), including those that opposed it in the Council and decided not to ratify the Convention.