(Judgment of the Court of Justice of the EU in case C-425/13, Commission v Council)
Dr. Vihar Georgiev 
The Treaty of Lisbon has led to a shift in the institutional mechanism of the European Union (EU). The judgment of the European Court of Justice (ECJ) on Case C-425/13 European Commission (the Commission) v Council of the European Union (the Council) answers some questions in relation to the precise demarcation of the powers of the Commission and the Council. The judgment also clarifies the content of the principle of sincere cooperation among the institutions of the European Union.
In 2011, the Commonwealth of Australia (‘Australia’) approached the Commission with a view to starting bilateral negotiations on linking the European Union’s scheme for emission allowance trading with Australia’s system.
Article 1(2) of the Council Decision of 13 May 2013 authorising the opening of negotiations on linking the EU emissions trading scheme with an emissions trading system in Australia provides that the ‘Commission shall conduct these negotiations … in accordance with the negotiating directives set out in the [Annex] to this Decision’.
P.3 of Section A of the Annex to the decision of the Council provides that ‘Each negotiating session shall be preceded by a meeting within the special committee in order to identify the key issues and establish negotiating positions or guidance, as appropriate. Where appropriate, guidance on specific technical aspects of the linking negotiations can be sought from the Climate Change Committee, subject to prior authorisation from the special committee.’
The Commission claimed that the ECJ should annul the second sentence of Article 2 of the contested decision and Section A of the Annex thereto. The Commission stated that negotiations relating to an international agreement in areas which are not principally or exclusively related to the common foreign and security policy fall within its competence. The Commission takes the view that the power to adopt negotiating directives does not include the power to establish the conditions in which negotiation must take place, as those directives must solely define the substantive policy options and objectives to be defended during the negotiations.
The Council stated that it is for it to assess, when it adopts a decision authorising the opening of negotiations and designating the negotiator, whether it is appropriate, or even necessary, to include in the negotiating directives particulars concerning the role allotted to each institution and the procedural arrangements under which negotiation must take place. The Council submited that those procedural arrangements, set out in the negotiating directives, do not fail to have regard to the respective role of each institution or to the balance between the latter as established by the Treaties. Indeed, such arrangements are nothing more than a specific expression of how the institutions should translate the principle of sincere cooperation in the context of international negotiations.
ECJ in its judgment stipulates that Article 218 TFEU constitutes, as regards the conclusion of international treaties, an autonomous and general provision of constitutional scope, in that it confers specific powers on the EU institutions. With a view to establishing a balance between those institutions, it provides, in particular, that agreements between the European Union and one or more third States are to be negotiated by the Commission, in compliance with the negotiating directives drawn up by the Council, and then concluded by the Council, either after obtaining the consent of the European Parliament or after consulting it. The power to conclude such agreements is, however, conferred on the Council subject to the powers vested in the Commission in this field.
ECJ further points out that the Council and the Commission are nevertheless required to comply with the second sentence of Article 13(2) TEU, which states that ‘[t]he institutions shall practice mutual sincere cooperation’. That cooperation is of particular importance for EU action at international level, as such action triggers a closely circumscribed process of concerted action and consultation between the EU institutions. According to the judgment, Article 218(4) TFEU must be interpreted as empowering the Council to set out, in the negotiating directives, procedural arrangements governing the process for the provision of information, for communication and for consultation between the special committee and the Commission, as such rules meet the objective of ensuring proper cooperation at the internal level.
The ECJ states that the stipulations of Section A of the Annex to the decision of the Council constitute provisions seeking to bind the negotiator and therefore are in breach of Article 218(2) to (4) TFEU. The ECJ makes a fine distinction between providing instructions and the power to ‘establish negotiating positions’.
Based on these findings, the ECJ annulled certain provisions of Section A, entitled ‘Procedure for negotiations’, of the Annex to the contested decision of the Council.
The reviewed judgment of the ECJ provides certain clarity on the procedural guarantees for the relative independence of the Commission in the negotiations under Article 218(2) to (4) TFEU. First, the Commission is obliged to inform the Council and the committee under Article 218(2) to (4) TFEU for the progress of negotiations. The procedures under Article 218 TFEU aim to restrict the opportunities for unilateral leading of negotiations by the Commission without providing ample information to the other institutions of the European Union, and, where applicable, to receive feedback. Second, the provision of guidance by the Council and the committee under Article 218(2) to (4) TFEU, does not breach the principle of institutional balance. However, the direct establishment of negotiating positions represents a breach of Article 218 TFEU. This distinction appears to guard the Commission from the excessive influence of the Council and/or separate Member States in the process of negotiations. This distinction is of great practical significance keeping in mind the ongoing negotiations between the Commission and the government of the United States of America for the signing of the Transatlantic Trade and Investment Partnership (TTIP).
Link to the article in Bulgarian language: ИНСТИТУЦИОНАЛНИЯТ БАЛАНС И ПРИНЦИПА НА ЛОЯЛНО СЪТРУДНИЧЕСТВО МЕЖДУ ИНСТИТУЦИИТЕ НА ЕВРОПЕЙСКИЯ СЪЮЗ