Exercising EU external competence in international organizations of which the EU is not a member: Case C-161/20, Commission v Council ('IMO'), EU:C:2022:260

Abstract

Case C-161/20 was an action for annulment targeting a decision of the Permanent Representatives Committee (COREPER), the gathering of the permanent representatives of the EU Member States to the European Union which prepares the meetings of the Council. COREPER had invited Croatia to submit a proposal to a working group established within the framework of the International Maritime Organisation (IMO). (Croatia held the rotating Presidency of the Council at the time.) The European Commission considered that, by issuing this invitation, COREPER had disregarded the EU’s exclusive external competence as well as the Commission’s exclusive competence to represent the EU externally. The case is interesting for at least two reasons. Firstly, it further clarifies the role of the Commission and the Member States in the EU’s external representation in international organisations of which the EU is not a member. In particular, the Court confirms that the Commission has an exclusive competence to represent the EU externally only in so far as the relevant international legal rules allow the EU to act. If this is not the case – for example, when membership of an international organisation is open only to states and not to other international organisations – Member States are free to decide who is to defend the interests of the EU on the international stage. This can be the Commission, but it can also be a Member State, or even several Member States – each in the name of and on behalf of the EU Member States, but in the interest of the EU. The case is interesting, secondly, because it again highlights how difficult it is to apply the ERTA principle. The Commission had argued that an ‘ERTA effect’ covered the EU’s submission to the IMO working group, and that the EU thus held an exclusive external competence to make the submission. The Commission’s argument highlights a problem that is inherent to the ERTA analysis: To examine whether the EU has acquired an exclusive external competence pursuant to the ERTA principle, a detailed and comprehensive comparison of the agreement/decision and pre-existing common EU rules has to be undertaken to determine whether the former risks affecting the latter. But how to conduct such an analysis when the agreement/decision at issue does not (yet) exist? The Court avoided the issue but Advocate General Szpunar’s analysis gives a flavour of how difficult it is to conduct an ERTA analysis this early in the decision-making process at the international level.