Table of Contents: I. Introduction. – II. Decisions authorising the signature of non-binding agreements as acts “intended to produce legal effects”. – III. Clarifying the respective scope of Arts 16 and 17 TEU. – IV. Concluding remarks.
Abstract: The increasing tendency of the EU to resort to non-binding agreements in its external action raises the sensitive and still unclear question of the distribution of powers between EU institutions when adopting them. In light of the post-Lisbon provisions of primary law in the field of external action, this Insight attempts to clarify how to interpret Arts 16 and 17 TEU when demarcating the scope both of the external representation of the Union in the hands of the Commission, and that of the decision-making power of the Council, as regards the adoption by the Union of non-binding instruments. The Opinion of Advocate General Sharpston delivered in Case C-660/13 serves as the guiding thread of this analysis. In this Opinion, it is suggested that the Court of Justice annul the Commission’s decision to authorise the signature of an addendum to the EU-Switzerland Memorandum of Understanding on a Swiss financial contribution to the new Member States of the EU, due to the breach of the principle of distribution of powers between institutions, enshrined in Art. 13, para. 2, TEU, insofar that the Commission signed this political agreement without the Council’s prior authorisation.
Keywords: non-binding agreements – external representation of the Union – distribution of powers between EU institutions – principle of institutional balance – Art. 218 TFEU – Arts 16 and 17 TEU.
* Lecturer in International law and EU law, Universidad Pontificia Comillas, Madrid, firstname.lastname@example.org.