ERTA and Us: Shifting Constitutional Equilibria on the Visions of Europe

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Table of Contents: I. Introduction. – II. A constitutional moment: admissibility subordinated to competence. – III. The tension between the institutional and the organic visions of Europe: the nature of the contested act. – IV. ERTA and us: contested equilibria between the two visions of Europe? – V. Concluding remarks.

Abstract: The ERTA case marks the constitutional inception of EU external relations. It laid the foundations for the legal framework governing the exercise of the EU’s external competences and is often associated with the development of the doctrine of implied powers. The main tenets of the Court’s pronouncement continue to define the fabric of the EU’s external action. As the first Commission v Council litigation, ERTA encapsulates a still perceivable tension between two visions of Europe. One emphasises the autonomy of the EU institutional framework, the other regards the EU institutions as common organs in the hands of the Member States. ERTA’s dossier de procédure constitutes a unique laboratory to assess the development of the EU as a legal order and an international actor. Its precious documents offer new sources to appreciate the abovementioned tension and unravel the shifting constitutional equilibria emerging from the interplay between EU and Member States treaty-making powers. Building on the archival research, this Article reflects on the inner working of the Court’s judicial strategy. It seeks to shed novel light on the genealogy of the fascinating debate on the constitutional underpinnings of EU external relations.

Keywords: legal nature of the Council decisions – nature of the EU legal order – institutional and organic visions of Europe – sincere cooperation – effet utile – autonomy.

European Papers, Vol. 6, 2021, No 1, pp. 567-578
2499-8249 - doi: 10.15166/2499-8249/485

* PhD Candidate, Sciences Po Paris,


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