The Requirement of Unity in EU International Representation: A Principle, an Objective or Nothing at All?

Table of Contents: 1. Introduction – 2. Unity in international representation: an accidental and ambivalent principle? – 3. Unity in the fragmented international representation and in the horizontal relationship?– 3.1 External representation by a panoply of actors and acts – 3.2 External representation as an executive prerogative – 3.3 Three sectors of external representation: Attribution of precise powers – 3.3.1 External representation before national and international courts and tribunals – 3.3.2 External representation by EU informal arrangements – 3.3.2 External representation through executive agreements – 4. Conclusions.

Abstract: This contribution examines the concept of unity in EU international representation and assesses whether it constitutes a principle, an objective, or remains a general aspiration in EU external relations law. The requirement of unity in international representation, while not explicitly mentioned in the Treaties, has emerged through CJEU case law in connection with the sincere cooperation principle under Article 4(3) TEU. The contribution traces the ambivalent and inconsistent application of this concept from its origins in Ruling 1/78 through the subsequent jurisdiction, revealing that the Court has not used it consistently, exceptionally characterising it as a self-standing principle, other times it appears as an objective to be achieved through the sincere cooperation and consistency principles. The contribution proceeds in two main parts. First, it assesses the vertical dimension of unity in international representation between the EU and Member States, examining how this requirement has evolved from an ‘accidental principle’ closely tied to mixed agreements and shared competences and evolving to a more developed concept linked to coherence and effectiveness in EU external action. Second, the article addresses whether unity in international representation could be exported to apply horizontally between EU institutions to bridge the fragmentation in external representation. Drawing on Advocate Opinion in the MoU Switzerland case, it examines whether the requirement of unity in international representation could infuse more coherence into the fragmented external representation system involving the Commission, Council, High Representative, and other global actors. The article ultimately questions whether unity in international representation can serve as a guidance for the application of sincere cooperation and consistency on the horizontal level under the condition of assigning precise powers to EU institutional actors.

Keywords: requirement of unity in international representation – duty of cooperation – sincere cooperation – consistency – coherence – external representation – mixed agreements. 

1.   Introduction

The requirement of unity in international representation or often the lack of this unity between EU and Member States has played a role in the negotiation and conclusion of mixed international agreements, in multilateral fora and international organisations where both EU and Member States participate. A recent example of discord involving Hungary illustrates this. The EU Member States agreed in a common position under Article 218 (9) TFEU on removing cannabis from Schedule IV of the Convention on Narcotic Drugs at a meeting of the United Nations Commission on Narcotic Drugs (CND) in December 2020. The Member States agreed by qualified majority, with only Hungary voting against this common position. Eventually, Hungary voted twice contrary to the EU common position during the vote on the World Health Organisation recommendations on cannabis and cannabis-related substances in the international forum. This friction then triggered an infringement procedure by the Commission in which the unity in international representation played a central role. And, indeed, the CJEU came to the conclusion that the situation arising is likely to compromise the principle of unity in the international representation of the European Union and its Member States and weaken the negotiating powers of the Union towards other parties. Therefore, Hungary acted in breach of the sincere cooperation principle in Article 4(3) TEU.[1]Hungary’s singular action affected the EU exclusive powers and a common strategy agreed based on common position under Article 218 (9) TFEU. This situation triggered, according to the Court, ‘special duties of action and abstention’.[2]

Other poignant examples challenging the unity between the EU and some of its Member States are found in the adoption of the UN Global Compact for Migration in 2018[3] or the multilateral Istanbul Convention (Council of Europe Convention on preventing and combating violence against women and domestic violence) which both EU and Member States due to the competence divide have to ratify as a mixed agreement. The EU has ratified the Istanbul Convention in 2023[4] − and 21 out of 27 Member States have ratified the agreement until now− but 5 Member States will not ratify and even Latvia decided to withdraw from it again.[5]

However, the requirement of unity in international or external representation could also play a role in other forms and acts of external representation. External representation, as defined by the European Commission is ‘an act of expressing the position of the Union on certain issues on the international scene’.[6] Such action not only happens on the vertical level of representation divided between EU and Member States but is also relevant in regard to the Union’s actors on the horizontal level. This latter situation addresses the question which institutions expresses positions of the Union externally. The treaty-making provision of Article 218 TFEU lays down the details in the life-cycle of an international agreement.[7] However, aside of international agreements, external representation can take the form of unilateral, bilateral and multilateral acts in which the EU participates either through statements or declarations on international events,[8] and in international fora and international organisations.[9] The bilateral instruments are international agreements but also can take the form of Memoranda of Understanding, joint statements or working arrangements.[10]

The contribution aims to assess how this requirement of unity in international representation which is not explicitly mentioned in the Treaty but mainly linked to the sincere cooperation principle under Article 4(3) TEU – has evolved in the jurisdiction, whether it is a general principle or an objective on the vertical level – between EU and its Member States and which obligations flow from it. It then, in part 3, asks the question whether it could play a role in the horizontal relationship – between EU institutions – and could infuse more unity into the fragmented external representation, so the relationship between the Commission and Council and other actors when representing the Union towards third countries and international organisations. This idea was picked up by Advocate General Eleanor Sharpston in the MoU Switzerland case on the conclusion of a non-binding MoU with Switzerland where Council and Commission disputed the correct procedure on external representation.

The Advocate General concluded:

‘It requires each institution to abstain from any measure that could jeopardise the attainment of the Union’s objectives and to contribute to facilitating the tasks of the other institutions. In the context of the principle of sincere cooperation as it applies between the Union and the Member States, the Court has said that the obligation flows from the requirement of unity of the international representation of the Union. In my view, the same applies between Union institutions’.[11]

However, the requirement or principle of unity in (or of) the international representation has found its way into the vertical relationship at best as an accidental principle to which the European Court of Justice[12] (CJEU) has been more ambivalent than committed in its early case law. Over time, however, an evolution in the case law has occurred. The contribution will discuss this under point 2. Under point 3, the article turns to the question how far unity in international representation can be borrowed for the fragmented external representation and become a requirement of unity between the EU institutions. 

2.   Unity in international representation: An accidental and ambivalent principle?

A first look at the judgments and opinions discussing unity in international representation reveals that the CJEU does not use it consistently. It is not evident whether and how far it is a self-standing principle or just explaining the circumstances of applying sincere cooperation and the duty of cooperation in the context of mixed agreements[13] or in the situation of a common strategy agreed under Article 218 (9) TFEU within an international body. 

In later judgments, the requirement of unity in international representation is better explained by the judges and focussing on the aim to ensure the achievement of Union tasks and to enable the coherence and consistency of the action and its international representation.[14] But in this context, unity in international representation appears more as an objective than a principle, meaning that sincere cooperation requires that EU and Member States cooperate to achieve the objective of unity in international representation.[15]

Unity in international representation is not explicitly mentioned in the Treaty. In Court judgments, it is closely connected to duty of close or sincere cooperation, which is built on the principle of sincere cooperation (Article 4 (3) TEU) and has more recently been connected to the principle of consistency (reflected in Article 21 TEU and Article 13 (1) TEU). Exceptionally, judgments allude to it being a self-standing principle.[16] However, it remains an ambivalent and ambiguous concept whose nature is difficult to identify, and it is questionable whether it forms a mere objective or even a principle in its own right. It starts already with its name, mainly referred to as ‘the unity in or of international representation’, but exceptionally also identified as ‘the unity in external representation’.[17] And it is, despite its ambiguous nature, often highlighted by EU institutions in the negotiating mandate for international agreements or concerning the participation in international bodies.[18]

Before the contribution starts to investigate this unity in international representation closer, an explanation is necessary on how to conceptualise principles. As the editors of this special issue have explained in the introduction, the definition of general principles remains difficult and in EU external relations law under-explored and under-theorised.[19] They explained the importance of general principles as providing justifications for the application of concrete rules, they can be used as aids to interpretation and they also act as standards for judicial review.[20]. Hence, principles can hold a supportive role in guiding legal interpretation or provide an autonomous source of primary law, but it is not always clear which exact function principles have, as Neuvonen and Ziegler observe.[21] General principles remain an important tool in constructing and articulating the EU’s distinct constitutional identity and furthering the integration project, thus expressing its core values.[22] This can be no different in EU external relations law.[23] However, one peculiarity of external relations law is the open-endedness of its objectives compared to internal policies aiming to achieve specific objectives such as the internal market or the common transport policy.[24] The difficulties in defining the content of principles in EU external relations law is addressed with typologies and categorisations. Marise Cremona divides the structural principles of EU external relations law in such a way that she speaks of relational and systemic principles.[25] Relational principles, such as the conferral of powers or the duty of cooperation, determine the relationship between actors or legal subjects. Systemic principles – in her reading – such as coherence, effectiveness and autonomy, are concerned with the operation of the system as a whole and building the EU’s identity as a global actor.[26] She also stresses that both categories of relational and systemic principles work together in building a constitutional space. 

Another distinction which is drawn for general principles (in international law) is the obligation of means or conduct versus the obligation of result. Obligations of conduct are more flexible than obligations of result. [27] Wolfrum elaborates that international obligations of result require that the State ensures the obtainment of a particular situation – a specified result – and leaves it for that State to achieve such a situation or result by means of its own choice. In other words, the distinction between obligations of conduct and those of result depends on whether the international obligation concerns the performance (or omission) of a particular act or the establishment/maintenance of a particular situation.[28]

In EU external relations law and assessing the obligations flwoing from sincere cooperation, van Elsuwege argues that when the Union is exclusively competent, the Member States are under an obligation to either follow an established Union position or do not act at all. In case of a shared competence, the duty of cooperation merely implies an obligation of conduct.[29] Cremona generally explains sincere coooperation as negative and positive but also substantive and procedural terms in form of refraining from entering into commitment interfering with the Union tasks or obligations to proceed by common action.[30] Neframi explains that the content of the duty of cooperation is an obligation of conduct and the requirement of unity in international representation is not an obligation to achieve a result but a negative obligation of Member States to abstain from any action jeopardising a Treaty objective.[31] But she also emphasises that the concretisation of the duty of close cooperation through a binding Union act – such as a common position according to Article 218 (9) TFEU, can turn the unity into a requirement to achieve a result.[32]

As it can be seen from this literature overview, unity in the international representation does not appear in the lineup of relational and systemic principles. This gap is related to its fuzzy background as it builds on sincere cooperation – a relational principle – but also is connected to coherence and effectiveness characterised as systemic principles.[33] The duty of cooperation also appears to change from an obligation of conduct to an obligation of result under special circumstances, such as in case of a commonly agreed position or a field of EU exclusive competences. The Court explained that the duty of cooperation results from the requirement of unity in the international representation.[34] This reasoning gives the impression that unity serves as a ‘principal’ principle. In later judgments, the Court explained that the duty of close cooperation or abstention applies in order to facilitate the achievement of the Community tasks and to ensure the coherence and consistency of the action and its international representation.[35] This, however, links to another self-standing principle in EU external relations – the principle of coherence or consistency. In post-Lisbon jurisdiction, the direct link between sincere cooperation and unity is emphasised, namely that the requirement of unity in the representation of the European Union arises from the obligation of sincere cooperation.[36]

This ambivalent nature of this requirement or principle derives from its fuzzy origin in the CJEU’s jurisprudence. The requirement of unity originates from Ruling 1/78, a case on the Euratom Treaty, where the Court stressed the unity and harmony of action in external relations. This explanation was linked to a reference to Article 102 Euratom Treaty in which the coordination between Member States and Community in regard to mixed agreements is emphasised.[37] Ruling 1/78 emphasised the close cooperation between the EU and Member States when mixed agreements are concluded and based it on the sincere cooperation clause found in the Euratom Treaty.[38] Interestingly, Ruling 1/78, which is seen as the starting point for the duty of cooperation concerning mixed agreements,[39] did not use the word ‘unity’ in international representation at all. It explained that the same principles that govern the distribution of powers inside the Community also govern its external relations. The Court therefore stressed the ‘harmony between international action’ by the Community and the construction of jurisdiction and powers within the Community based on the ERTA case to emphasise that the obligations arising from the Convention could be fulfilled.[40] It has been correctly argued that Ruling 1/78 prepared the ground for the synchronisation of the duty of close cooperation between the different communities[41], comparable to the ERTA judgment in relations to the parallelism between external and internal competences.[42]The driving force behind the link between Ruling 1/78 and ERTA was judge Pierre Pescatore, in both cases the judge-rapporteur, who emphasised ‘the need for the internal process of unification to progress in harmony with the right of representation.”[43]

Nevertheless, it took a while until ‘in harmony with the right of representation’ became ‘the unity in international representation’. The International Labor Organization’s (ILO) Opinion (Opinion 2/91), relied explicitly on Ruling 1/78 to explain that in case of shared competences the close cooperation between the European Community and the Member States needs to be ensured.[44] And this duty results from the requirement of unity in the international representation of the Community.[45] This argumentation was repeated in subsequent decisions, in the WTO Opinion 1/94 and the FAO ruling.[46] That this duty is anchored in the sincere cooperation principle can only at the beginning be deduced from the argument of an harmonious interpretation of principles and that the sincere cooperation clause under the Euratom Treaty was also of importance to establish the duty of cooperation in the EC Treaty.[47] Only post-Lisbon, in the COTIF I and II rulings, the Court clearly stated that the duty of cooperation flows from sincere cooperation (Article 4(3) TEU).[48] This case law reasoning lets one wonder whether the unity in international representation forms a self-standing principle or it builds on the principle of sincere cooperation and explains the raison d’etre of the duty of cooperation.

The Court itself used the expression principle for the unity in international representation in only three rulings. In the PFOS(Commission v Sweden) case, the judges spoke about the ‘principle of unity’.[49] And it was once more mentioned as a principle in the Istanbul Convention Opinion 1/19, where the Court referred to ‘the principle of the unity in the external representation of the European Union’.[50] The most recent reference to the principle of unity in the international representation is found in the Commission v Hungary case where the Court explains that Hungary’s ‘conduct undermined the effectiveness of the international action of the European Union and the latter’s credibility and reputation on the international scene.[51]

However, in the majority of cases, it is used more as a concept or requirement to indicate that the unity in international representation needs to be linked to other Treaty principles. In two decisions, Commission v Luxembourg and Commission v Germany, unity is linked with the insurance of coherence and consistency of the action.[52] Coherence or consistency, however, are separate principles and not identical to sincere cooperation, and now found in Articles 21 (3) and 13 (1) of the TEU.[53] In the seminal PFOScase, the obligation to cooperate was based on both notions: the unity in the international representation on one hand and coherence and consistency on the other. This was illustrated in the judgment in the idea that, in the case of shared competences, EU and Member States have the obligation to cooperate in the process of negotiation, conclusion and the fulfilment of commitments entered into. This cooperation obligation flows from the unity in international representation. The other situation, where the Court emphasised the unity in international representation was when that the Commission is authorised to negotiate a multilateral agreement on behalf of the Union. Then the duty of abstention by the Member States applies in line with facilitating the achievements of the Community tasks and to ensure the coherence and consistency of the action and international representation.[54] Yet, when read in this context, then the first action is an obligation of conduct and the second obligation is an obligation of result: Member States have to abstain from action. This also harks back to what van Elsuwege wrote about the relevance of the nature of competence.[55] So, exceptionally, the obligation of unity in international representation can harden and can become an obligation of result - but often remains an obligation of conduct, a best endeavour commitment.[56] In the most recent case, Commission v Hungary, and with reference to the PFOS case, special duties of action and abstention exist for a Member State once a common position has been agreed in the Council and even more in field of EU exclusive competences.[57]

When focussing on the principle of sincere cooperation, which has a more secure footing in the Treaty and case law, the Court has carved out two positive obligations for the Member States. First, respecting and assisting the European Union ‘in carrying out tasks which flow from the Treaties’, and, second, taking all the necessary measures for the ‘fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions’. Moreover, there exists a negative obligation, namely to refrain from any measure which could jeopardise the attainment of the European Union’s objectives.[58] When we see unity in international representation in light of these explanations, it is not a task or obligation deriving from the Treaty. It then could remain an objective of the Union to be achieved. [59] The attempt, however, to link it to Article 3(5) TEU[60] is far-fetched and can only be constructed by relying on another Court-created principle – namely the EU’s autonomous legal order.[61] Then the only Treaty-based obligation and principle remains consistency or coherence. Article 21 (3) TEU states that the Union shall ensure the consistency between the different areas of its external action and between these and other policies. In such the requirement of unity flows from the attainment of the objective of an coherent appearance of the Union and therefore can be linked with the coherence or consistency principle.[62]This is also strongly reflected in the COTIF II case where the court linked the unity with the consistency of the international action of the European Union.[63] This reasoning has elevated the unity in international representation as decisive in determining the purpose and effect of the duty of cooperation.[64] The Court saw a breach by a Member State by not complying with the voting decision and Article 4(3) TEU and thereby harming the effectiveness of the international action of the European Union, as well as the latter’s credibility and reputation on the international stage.[65]In conclusion, the requirement of unity in international representation is not a self-standing principle in form of a separate principle and also does not form a self-standing Treaty objective. But it is an obligation underscoring the duty of cooperation and finding its foundation in the principles of sincere cooperation and consistency of action deriving from Articles 21 (3) and 13 (1) TEU. 

In conclusion, unity in international representation has evolved in the jurisdiction, but the reasoning behind it remains obscure. Originally, the harmony between the internal and external sphere also fuelled the duty of cooperation between EU and Member States in mixed agreements of the Euratom Treaty.[66] The original idea became lost in subsequent rulings where unity became directly linked to sincere cooperation and obligations flowing from it; the relationship between the requirement of unity and sincere cooperation remained questionable. Unity in international representation explains the condition of the duty of cooperation and supports the objective of the EU to act as a coherent global actor. Overall, especially the post-Lisbon case law has reinforced the importance of the unity in international representation. For the nature of the principle of sincere cooperation – obligation of effort or result - is also decisive that the competence allocation is respected[67] or, differently put, how far the Member States interfere with an exclusive power of the Union or are already executed through common positions or concerted position of the Union in fields of shared and exclusive competences.

What the principle of consistency contributes to unity in international representation and vice versa is not yet entirely clear. The Court has only referred to it in the above-mentioned judgments, also in addition to the Tanzania case concerning the inter-institutional relationship between the Council and the EP. In the Tanzania case. the strengthening of the information requirement of the EP is necessary due to the principle of consistency and contributes to coherence and consistency of that action.[68] In the judgment, an explicit reference to the Commission v Luxembourg and PFOS cases is made where unity was linked to consistency.[69] The interpretation of this case law could see the reasoning interpreting unity as part and parcel of the consistency principle but also could be viewed more in light of a judge-made objective. 

Finally, the unity in international representation implies through the sincere cooperation principle an obligation of result when it concerns exclusive power of the Union, a concerted action has started or a common position has been taken by the Union through Article 218(9) TFEU in case of EU exclusive or shared competences. Overall, in cases involving shared competences, the Member States have an obligation of conduct or best endeavour. Even when unity is linked to coherence and consistency – it still remains unclear whether it supports this systemic principle, is part and parcel of this principle or becomes a separate objective. At best it supports the duty of cooperation deriving from the sincere cooperation principle.

3.   Unity in the fragmented international representation and in the horizontal relationship?

Unity in international representation developed in the context of the vertical relationship between Union and Member States but the contribution now turns to the question of exporting it to the horizontal relationship, so which implications does the unity in international representation hold between institutions and EU global actors in their inter-institutional relationship. This transplant could be useful because the EU external representation is split between different EU actors and is not only determined by the bipolarity of EU CFSP and non-CFSP policies but also by the ‘constitutional attribution of precise powers’.[70] International representation is not reflected in the Treaty norms, as above already explained, but ‘external representation’ as a term is often used to describe the tasks of EU institutions such as the Commission in Article 17 (1) TEU, the President of the European Council in Article 15 (6) TEU and Article 27 (2) TEU concerning the High Representative of the Union for the Foreign Affairs and Security Policy.

Transplanting the unity requirement into the horizontral relationship was picked up by Advocate General Sharpston in the MoU Switzerland case. In this case the Council challenged the Commission regarding the Addendum to the MoU with Switzerland on the financial contribution for Croatia in 2013. This concerned a financial contribution of Switzerland to the enlarged internal market and had been negotiated before and in regard to the 2004 and 2007 enlargements processes. Commission and Council were at odds concerning the procedure following Article 16 and 17 TEU. The Council conclusion mandated the Commission to conduct the negotiations with Switzerland but then the Commission signed the addendum on behalf the Union based on Article 17 TEU but without seeking prior authorisation from the Council and the Member. States. In the subsquent judgment, the Court agreed with the Council that Article 13(2) TEU was breached. The judges argued that the signing of an agreement with a third country covering an area for which the Union is competent – irrespective of whether or not that agreement is binding – requires an assessment to be made, in compliance with strategic guidelines laid down by the European Council and the principles and objectives of the Union’s external action laid down in Article 21(1) and (2) TEU, of the Union’s interests in the context of its relations with the third country concerned, and the divergent interests arising in those relations to be reconciled.[71] The Court did not address separately whether a breach of sincere cooperation occurred but the reference in the judgment to consistency indicates that unity could play a role to defend the procedural role of the Council to approve the Commission action once the Commission finalises the negotiations.[72]

Therefore, it could be a legitimate concept to import unity on the horizontal level because the institutional balance under Article 13(2) TEU is linked with sincere cooperation and its foundation is also connected to the consistency principle in the wording of Article 13 (1) TEU.[73] It could play a role in infusing more unity into the fragmented external representation of the Union, so not looking at the EU and Member States but assessing the interinstitutional relationship and how different institutions coordinate their external representation functions.

3.1.  External representation by a panoply of actors and acts

As above highlighted, external representation is reflected in the Treaties as a task of different institutions.[74] EU external representation is explictly mentioned in several primary EU Treaty norms regarding different actors[75] and further elaborated in EU secondary law.[76] The fragmentation and lack of unity in the EU’s external representation is symbolised by the panoply of external representationprovisions and multiple actors implementing this representation. The European Commission executes external representation outside the CFSP according to Article 17(1) TEU, and Article 220 TFEU covers the management of relations with international organisations by the Commission and the High Representative. The High Representative (Art.27 TEU) and the President of the European Council take the responsibility in the CFSP external representation. The CFSP representation by the High Representative is further addressed in Articles 32, 34 (in regard to international organisations and conferences), Article 35 TEU concerning diplomatic and consular missions addresses the cooperation between diplomatic and consular missions of Member States and Union delegations in third countries, international conferences and in international organisations. Article 138(2) TFEU covers the aim of a unified representation for the economic and monetary union within international organisations and conferences while Article 335 TFEU concerns the representation in judicial proceedings, including representation before international courts. Finally, the Council guides the EU’s policy-making (Art. 16 TEU) and the European Council provides the general political directions with specifically entitling its President to ensure the external representation in the CFSP (Art. 15(1) and (5) TEU). 

These multiple actors also participate in the EU’s external representation through a panoply of instruments or acts. EU legal and political commitments in the global sphere often derive from the classical external representation instruments, namely the Union concludes bilateral or multilateral international agreements with a third country or international organisation.[77] In the majority of the cases, however, external representation is conducted by EU actors through various instruments on multilateral, bilateral or unilateral basis, in written and oral form and outside the framework of international agreements and its treaty-making procedure.[78]If the example of written bilateral instruments of a non-binding nature are considered, the EU actors conclude working or administrative arrangements, memoranda of understanding, exchange of letters, letter of intents, joint declarations and statements.[79] These instruments are concluded by the Council[80], the European Council,[81] the European External Action Service (EEAS)/High Representative,[82] the European Commission[83] and some EU regulatory agencies with an external dimension (Europol, European Border and Coast Agency (Frontex) or European Aviation Safety Agency (EASA).[84] Some EU agencies, such as European Aviation Safety Agency (EASA) or the European Borders Agency (Frontex) are mandated by secondary law to enter into working arrangements – so non-binding bilateral acts - with international organisation and third countries authorities.[85]Europol and Eurojust before they became EU agencies concluded binding international agreements and this function of delegated treaty-making is still provided to the European Commission and the High Representative under exceptional and clearly prescribed circumstances (see further below at 3.3.3).[86]

However, except for the detailed inter-institutional balance displayed in Article 218 TFEU, the other norms referring to external representation, do not cover the applicable procedure or the necessary coordination between the actors. Article 17 TEU, for instance, only explains that external representation is in the hands of the European Commission with the exception of the CFSP and other cases provided for in the Treaties. In contrast, the President of the European Council conducts on his level the external representation without the prejudice of the High Representative. This indicates that the bipolarity between CFSP and non-CFSP policies determines the rough line of division in EU external representation but these two norms already show the underlying tensions. External representation by so many actors requires that the ‘attribution of precise powers’[87] has to be respected. The question arises – as Hoffmeister emphasises – whether and how to separate the question of who represents the Union externally from the question who determines the content of this representations – so the framing of the policy-making.[88]

3.2.  External representation as an executive prerogative

So who formulates and defines policy-making aspects of external representation? Policy-making is in contrast to legislation-making one of the tasks of the executive. The underlying reason for the fragmentation of EU’s external representation is not only the divide between the intergovernmental CFSP in relations to the supranational EU policies but it is caused by the institutional system created under EU law and its attribution of specific powers. The institutional balance referred to Article 13(2) TEU is not based on the separation between the three branches of government power known from the national systems but is – in the words of the Court - a ‘system of allocation of powers among the EU institutions, assigning to each institution its own role in the institutional structure of the European Union and the accomplishment of the tasks entrusted to the European Union.’[89] The necessity of a detailed allocation of powers can be linked to a contentious role of institutional balance[90] as a governing institutional principle. 

Indeed, the EU’s ‘attribution of precise powers’ in EU external relations differs from the separation of powers in national systems. When comparing the EU rules on EU treaty-making with national systems, this becomes apparent. Treaty-making making functions only rest with the national parliaments as so far as they concern important treaties, treaties which have an impact on the national legislation.[91] Otherwise, the main actor involving external action and representation remains with the national executive, the ministry of foreign affairs and its bureaucracies.[92] As above highlighted, Article 218 TFEU provides a detailed division of powers when it concerns treaty-making. Outside the framework of Article 218 TFEU, such details on procedure are missing. The Court insists to distinguish between the shaping of policy-making and the implementation of external representation: so while the European Council and Council have a determining role in the policy-making and -shaping in the CFSP and other policies, these policies are implemented by High Representative, Commission[93] and by other actors in form of the EEAS and EU agencies. Employing this distinction, raises two follow-up questions, namely whether and how a distinction between policy and external representation can be made, how detailed the policy-making has to be shaped before the act is adopted and how the external representation has to be defined in CFSP and non-CFSP matters. So in place of recognising the conduct of foreign affairs on an administrative level, ministerial and governmental level,[94] the attribution of precise powers requires to separate external representation along the lines of who is acting and under which policy and employing which tools. So multiple institutional actors perform tasks under several provisions and mandates and governed by a ‘patchwork of individual external policies’.[95] Specific powers have to come with procedures which are either agreed among the relevant actors or require a clarification by case law. Especially Commission and Council have been at odds on these questions and the Court has in several decisions on external representation carved out how the specified powers are executed.[96]

For this reason, this contribution now takes a closer look at three sectors of external representation. These areas stand out because in two examples Court decisions have set out the dividing line between policy-making and external representation. As confirmed by these Court decisions, policy-making is in the hands of Council and under the strategic guidelines of the European Council and policy-making can be differentiated from the external representation of other actors such as Commission and High Representative

3.3.  Three sectors of external representation: Attribution of precise powers 

In this subsection, I will analyse three sectors in which the EU Commission takes on the role of the EU external representation. It also investigates, how far sincere cooperation and consistency have played a role in determing the institutional balance between different actors. These exemplary sectors concern (1) the legal representation before international courts, (2) the external representation concerning non-treaty arrangements and (3) the external representation involving executive agreements.

3.3.1.    External representation before national and international courts and tribunals

Article 335 TFEU addresses that the European Commission legally represents the Union before the national courts of the Member States but also before international courts. The legal representation remained for a long time an underexplored issue but has been taken up more recently in a few CJEU decisions.[97] The Reynolds Tobacco case involved the European Commission’s action on behalf of the Union before a federal court in the US and its further appeal before the US Court of appeals. It broadened the understanding of legal representation as ‘the expression of a general principle and states that the Community has legal capacity and is, to that end, to be represented by the Commission’.[98] Consequently, the Commission can represent the EU before national and international courts, file interventions in form of amicus briefs before courts, tribunals and arbitration panels. Amicus briefs and interventions on behalf of the Union have been filed by the Commission before international courts such as the European Court of Human Rights in Strasbourg or the International Sea Tribunal, in arbitration concerning the Energy Charter Treaty and third country courts such as the US supreme court and other foreign courts.[99]

Nevertheless, the court decided a dispute between Commission and Council on the international representation. The Commission, following the exchange of views with the Council, carried out the intentions it expressed on 5 August 2013 by presenting to ITLOS in Case No 21 a written statement but which it did not submit before to the Council for approval. The Council argued with the principle of conferral of powers and the principle of institutional balance in Article 13(2) TEU. And its second plea the Council claimed an infringement of the principle of sincere cooperation . In its decision, the Court first established that this matter fell into an EU exclusive competence and that Article 335 TFEU can be applied concerning the representation before international courts. This was in the eyes of the Court a general principle that the Commission is representing the Union in is legal capacity. The Court also did not see this as a form of Council policy formulation under Article 16 TEU. Also Article 218 (9) TFEU does not applies in this situation because the EU is not expressing its position in a international body but before it.[100] The Court then separately analysed sincere cooperation and came to the conclusion that sincere cooperation has to be exercised with the powers conferred upon by the institutions and these powers cannot be changed.[101] The Commission still had an obligation to inform the Council beforehand and it complied with the information obligation. The written statement before ITCLOS expressed a neutral position reflecting the divergent views of the Member States. 

3.3.2.   External representation by EU informal arrangements 

The second example addresses the situation covered in the MoU Switzerland case, as above highlighted, namely ‘non-treaties arrangements’[102] These arrangements have in common that they fall under the category of EU external relations or international soft law because they do not fulfil the conditions associated to EU international agreements. These acts are no international agreements which are concluded between subjects under international law installed with treaty-making capacity, or concluded by the parties with the intention to create legal rights and obligations, or to establish relationships, governed by international law.[103] The ‘puzzling diversity’[104] of international soft law[105] is reflected, as above highlighted, in the EU with diverse names such as working or administrative arrangements, memoranda of understanding, exchange of letters, letter of intents, joint declarations and statements.[106]

From the perspective of the inter-institutional relationship and external representation, the question arose whether the procedure and institutional balance indicated in Article 218 TFEU can apply by analogy. Already pre-Lisbon, the Court established in the second France v Commission case that competences and institutional balance have to be respected and the treaty-making procedure, however, does not apply to such acts.[107] The latter part was also confirmed in the MoU Switzerland case but the Court also stated that the policy-making mandate of the Council requires the Commission to come back after the negotiations for the non-binding arrangements are finalised and seek the endorsement of the Council. Article 17 TEU only operates within the mandate of Article 16 TEU and the Council has to determine whether the negotiated outcome is reflecting the policy aims of the Council: ‘The signature of a non-binding agreement entails the assessment by the Union of whether the agreement still reflects its interest, as defined by the Council in particular in the decision to open negotiations on the conclusion of the agreement’.[108] In consequence, the Court did not discuss the second plea and the breach of sincere cooperation.[109] This puts the Commission on a rather short leash.[110] In the Signature case involving an international agreement, the Court further explained that the act of authorisation forms a policy-making measure and has to be separated from the actual signing of an agreement which falls under the external representation of the Commission under Article 17 TEU. And both sides have to practice, according to the Court, mutual sincere cooperation.[111]

The Commission cannot conclude non-binding arrangement which aim to bind the EU and involve policy-making without the endorsement of the Council.[112] Similar to the Commission, EU agencies and the EEAS have no EU mandate to conclude international agreements under EU law, their tasks are restricted to conclude administrative (agencies, EEAS).[113] Especially the more structured practice of the European Commission since Lisbon[114] helps to categorise these bilateral arrangements of all these actors into the two categories of administrative or working arrangements concluded on behalf of the institution or body itself, and political and legal commitments concluded on behalf the Union, as the above example of the MoU with Switzerland.[115]

Into the first category administrative arrangements fall, for instance, the one between the European Commission and the African Union on staff exchanges and is based on its administrative autonomy and this is no political act to bind the EU.[116] Such an administrative autonomy is also assigned to other institutions and is based for the Commission on Article 335 TFEU. The EU actors Commission and EU agencies also conclude administrative and working arrangements with countries and international organisation on administrative level to implement policy priorities. The agencies, however, execute their tasks even under stricter limits to cooperate with other relevant third country’s agencies and administrations and the framework for external representation is established in their founding regulations.[117]

The second category are political commitments concluded on behalf of the European Union (MoUs, Statements, joint declarations). In this field primarily the Commission is involved with MoUs, statements, joint declarations and exchange of letters. Formally, all of these measures are explicitly excluded from carrying binding effect under national and international law, as the instrument and the implementing measure adopting these instruments in EU law stipulate. [118]

As the above Court cases have highlighted, sincere cooperation has played no role in deciding or interpreting the disputes on external representation. In addition, political commitment by various EU actors demonstrate that the principle of sincere cooperation and therefore the requirement of unity in international representration is of limited value to fill the gaps. All of the provisions applied to such acts include procedural guidelines which the different actors should follow. These procedural guidelines either have developed through the constitutional practice based on the Court decision in the MoU Switzerland case (the arrangements between Secretaries General on non-binding instruments)[119] or have been set out in the founding regulations of the EU agencies.[120]Principles can only guide the conduct of the institutions when it would leave room for such guidance but in these cases a strict attribution of powers is accompanied with detailed procedural rules to follow.

3.3.3    External representation through executive agreements 

In a separate group of representation tasks the Commission concludes executive international agreements.[121] These are specific and more technical agreements where the Commission receives a mandate to conclude a binding international agreement based on EU primary law, and more frequently on international agreements provisions and secondary rules.[122]

Until now, and despite this practice, no Commissin administrative agreement has been evaluated by the Court with the exception of a competition agreement with the United States pre-Lisbon. This agreement was considered a breach of Article 218 TFEU, and more precisely a breach of the institutional balance stipulated in the treaty-making procedure. The Court denied the Commission any implied or general treaty-making power for agreements with third states based on its executive functions. However, the current practice demonstrates that the Commission remains equipped with the power to conclude international executive agreements as long as these agreements have specific mandates from the treaty-making institutions Council and EP and are based on secondary legislation defining the framework of this mandate.[123]

This practice is a form of delegated treaty-making that is in line with the institutional balance and Meroni doctrine under clearly prescribed circumstances and under the condition that it does not involve policy-making and the circumstances of delegation are clearly prescribed in the delegation.[124] Two categories of delegated treaty-making can be identified. In the first category fall the Commission Financial and Framework Agreements with third countries and international organisations[125] and the second category can be characterised as sui generis international agreements (Monetary Agreements, and Modification of Certain Types of International Agreements).[126] Another practical example also exist on side of the High Representative, namely in form of establishment agreement concluded with third countries covering the diplomatic rights applicable to the EU delegation.[127] In this case, the delegated mandate derives from the secondary EEAS decision.[128]

These clearly prescribed mandates limit also the possiblity to use sincere cooperation and do not require to use the unity in international representation as a principle or objective to curtail action. The predefined scope of action confirms the attribution of specific powers in the field of external representation. Such action, however, remains framed by mutual cooperation and the consistency of external action. In such and connected to the consistency principle in Article 21 TEU, unity in external representation is an underlying requirement to guide the action and the actors. Ultimately, unity, either connected to sincere cooperation or consistency, remains even more in the background than on the vertical level between the EU and its Member States. 

4.   Conclusions

Unity in international representation is an ambivalent concept. Its orgins in the court case law have been traced back but it remains difficult to determine the requirement as a principle or an objective. It derives initially in the case law from the duty of cooperation in the Euratom Treaty and migrated to the EC Treaty. Analysing the case law addressing unity, it is not a self-standing principle, but rather an explanatory concept that gives meaning to the duty of close cooperation flowing from sincere cooperation (Article 4(3) TEU) – a relational principle and comes more recently to life with the connection to the consistency principle (Art. 21 TEU) which is characterised as a systemic principle. 

On the vertical level, between EU and Member States, unity is connected to sincere cooperation and consistency, and is concretised in a field falling into exclusive compence or where a concerted practice has commenced. On the horizontal level, among institutions, it the question whether unity in international representation can be transposed to the horizontal relationship, encouraging more unity in a divided external representation among the EU institutions and actors. Unity could be applied with the argument that institutional balance links up to sincere cooperation in Article 13 TEU and consistency also finds its reflection in Article 13(1) TEU. Although unity in international representation is not explicit mentioned in the cases on inter-institutional disputes, consistency is, and unity can be tied to consistency principle (Art.21 TEU). Yet, because the external representation regime is based on a detailed attribution of powers to individual actors – the unity requirement cannot fill the gaps in interpretation but appears more as an objective framed by consistency to achieve the unity of international representation.

Its chameleonic character fits into the overall assessment that principles in EU external relations are open to adjustments and re-interpretation over time.[129] For instance, in the Hybrid act case[130] and the Istanbul Convention Opinion 1/19, EU Member States raised unity in international representation as an argument to justify an institutional practice on the cooperation in mixed agreements. Unity in international representation – in their reading – would aid a common intergovernmental approach used together or in parallel with EU procedures to ensure the unified representation of the European Union and its Member States in international relations.[131] So unity in international representation becomes an argument to create intergovernmental acts or accords which substitute or amend existing Treaty procedures for the sake of ensuring a common approach between the EU Member States. The Court has limited such ‘contamination of supranational procedures’ in its jurisprudence. In such, the Council cannot argue with the duty of cooperation to set itself free from compliance with the procedural rules and voting arrangements laid down in Article 218 TFEU.[132]

The bottom line ist that the unity in international representation requires Member States to cooperate in the interest of the Union and EU institutions to practice consistent and mutual cooperation. It remains less than a self-standing principle but is, based on sincere cooperation and consistency principles, clearly more than an empty phrase.