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. Continue reading →