Power struggle: Commission v Council

In opinion 1/13 (Grand Chamber, 14 October 2014), the European Court of Justice (CJEU) decided -against the submissions of 19 out of 20 member states - that it is no longer open to individual member states to agree to proposed accessions by third countries to the Hague Convention on Child Abduction of 1980.

Instead, any decision about accession must be made by the council, notwithstanding that (a) the EU is not and cannot become party to the convention, and (b) EU law is designed to be consistent with the convention.

Article 3(2) of the Treaty on the Functioning of the European Union (TFEU) provides the union "shall … have exclusive competence
for the conclusion of an international agreement … in so far as its conclusion may affect common rules or alter their scope."

Those final words reflect the court's decision in case 22/70 Commission v Council (ERTA) [1971] ECR 263. In ERTA the court held that the community (as it then was) had competence to conclude international agreements in areas where the community had a shared competence with member states. It also held that the competence might become exclusive if the community had legislated in a certain area so that an international agreement might affect its legislation.

That principle is no longer controversial. Indeed, it is now effectively embodied in the treaty, as the quotation set out above shows. But its reach may still be open to question, and that was the main substantive issue in the most recent case.

Before reaching that issue, the CJEU had to confront objections on the part of some member states, who claimed the Commission's request for an opinion was inadmissible. These objections were pushed aside. That is not really surprising. If one steps back, it is clear there was a real institutional impasse between the union institutions (Commission and parliament) claiming exclusive EU competence in this field, and the member states who wished to retain shared competence.

Substantive question

Although those member states who objected that the request for an opinion was inadmissible had quite cogent technical arguments, it would have been unfortunate if the CJEU had been unable to reach the substantive question. It is therefore not surprising it found it could do so.

On the main question, the Commission's argument was
that regulation 2201/2003 on jurisdiction in relation to matrimonial matters and parental responsibility sufficiently "occupied the field" to confer exclusive competence.

The main issue was how widely the final words of article 3(2) should be read. In concrete practical terms it seems clear that the accession of additional states to the Hague Convention will not do anything that could prejudice regulation 2201/2003, because that regulation is expressly designed to be consistent with the Hague Convention, to which all member states are parties.

But in abstract theoretical terms it is possible that obligations owed under the convention might lead to 'disuniformity' if some member states owed obligations to a particular third state and others did not, though the judgment gives no definite example which might illustrate that.

Pragmatic accommodation

The ERTA judgment itself
tends to suggest that even
a theoretical or remote risk of disuniformity is sufficient, and the CJEU decided to follow that approach. That should not be much of a surprise, perhaps. But it was not a foregone conclusion, and it tells us some interesting things.

First, the CJEU remains quite capable of standing up to the concerted voices of the member states, even in a matter (international relations) of considerable sensitivity. Nineteen of the 20 member states who submitted observations asked the court to reject the Commission's claims. They received what can only be described as a brush off in a few paragraphs of brief reasoning.

Second, it tells us that in matters concerning the jurisdiction of the union, including its exclusive competence, the court seems
to be as committed as it ever
has been to protecting the union's exclusive competence. The decision cannot truly be described as expansionary, but it can be fairly said to be expansive.

More than forty years after ERTA, the CJEU still prefers an approach which strongly
favours the transfer of power
to the union in international matters, and which resists even pragmatic accommodation of national sensibilities. SJ

Paul Stanley QC is a barrister practising from Essex Court Chambers