![EU and international agreements: have diplomats given in to Eurocrats? [Promoted content] | INFBusiness.com](/wp-content/uploads/2023/10/f4dbb2140d859cae8dcabde95e88ebf6.png "Little by little, the Council, as the representative of the Member States, is abandoning the need for consensus to determine the EU’s position in international organizations and, above all, abandoning the need to validate by decision the changes made “on the spot” by the Commission. If the urgency of crises justifies adjustments, they must remain exceptional.")
Little by little, the Council, as the representative of the Member States, is abandoning the need for consensus to determine the EU’s position in international organizations and, above all, abandoning the need to validate by decision the changes made “on the spot” by the Commission. If the urgency of crises justifies adjustments, they must remain exceptional.
Benoit Le Bret is a partner in the Brussels office of Gide Loyrette Nouel.
The treaties governing the organization of the European institutions are complex ; often citizens struggle to navigate them, the common perception being that “Brussels decides”, in reference to the European Commission, whereas in most cases, the Commission “proposes“, whilst the Council – representing the States – and the Parliament – representing the citizens – “dispose“. In other words, “Brussels” doesn’t decide everything, or else “Brussels” must be understood to refer also to national ministers and MEPs.
There is one area where the division of roles is even more subtle: in international negotiations. Under the Treaties, this is still a competence of the Council, and therefore of the Member States. On the one hand, with the exception of foreign and security policy, the Commission is responsible for the Union’s external representation (Article 17 TEU), which makes sense, as the EU strives to speak with a single voice. On the other hand, the Commission only acts in this regard on foot of a mandate from the Council. The Council authorizes the negotiations, adopts the negotiating directives, authorizes signature and ultimately concludes the agreements; additionaly it can issue instructions to the negotiator at any time (Article 218 TFEU).
In other words, the Commission steers the negotiations, but must do so in the direction determined by the Council’s control tower, filled with the diplomats of Member States who serve as proverbial air traffic controllers.
In a world where, since 2008, crises have multiplied the number of international meetings and required rapid decision-making, the EU needs to be reactive. Nevertheless, protecting the interests of the Union and its Member States during negotiations means that the latter must not abdicate their control. Increasingly, however, contact appears to have been lost with the metaphorical control tower, and the pilot is left to his own devices.
Two shifts are at work. The first is the loss of consensus between Member States. It is true that, legally, this power of control over international negotiations by the Council is exercised by qualified majority except in cases when it acts unanimously (article 207(8) TFEU). Thus, in the field of commercial trade in cultural and audiovisual services or social, education and health services, the Council is supposed to decide unanimously for the negotiation and conclusion of agreements which pose a potential risk of harming cultural diversity or disrupting the organization of health services (article 207 (4) TFEU).
Naturally this is a sensitive issue. One can scarcely entertain the idea of France willingly allowing an agreement on cultural services to be adopted by qualified majority? The same would probably apply to health. With Jacques Barrot, Commissioner for Transport, to avoid the UK torpedoing the EU-US “open skies” agreement for the umpteenth time, we announced that the Commission would endorse the final agreement by qualified majority: shocking London put all its energy into saving unanimity and had none left to counter the agreement.
Until now, the Council has always favored the search for consensus, with France in particular taking care to avoid any precedent. This mechanism, which protects individual states on international issues or other sensitive subjects likely to undermine their sovereignty, has been broken, particularly under the dual effect of the migration crises and the “non-consensual” stances of Hungary and Poland. In Granada, the Heads of State and Government preferred to show their lack of consensus rather than seek a joint declaration on the subject, but they are the only ones whom the Treaties actively require to take the decisions by consensus, except where the Treaties provide otherwise (article 15(4) TEU).
The second shift, more problematic in legal terms, is the Council’s relinquishment of its power of control during international negotiations. Without prejudice to voting rules or practices (unanimity/qualified majority/consensus), the Council, as the Commission’s control tower in international bodies in which it represents the Union, “shall adopt a decision (…) establishing the positions to be adopted on the Union’s behalf in a body set up by an agreement, when that body is called upon to adopt acts having legal effects” (article 218 (9) TFEU). Although the Commission may speak, its script is written by the Member States. France in particular, the only EU Member State to hold a permanent seat at the UN, cannot afford to display in New York contradictions that are supposed to be settled in Brussels.
However, increasingly, in draft mandate decisions on the eve of negotiations, the Commission proposes and the Council validates a common position, and then states that this position may be modified during negotiations, with varying degrees of coordination, but “without a new Council decision“. The practice is now well-established, for topics as varied as the WHO’s international health regulations, the World Customs Organization’s harmonized product classification system, the Euro-Mediterranean rules of origin, or the protection of migratory animal species.
Of course, the EU needs international efficiency, as is commonly acknowledged. But it also needs safeguards. And yet, the freedom given to the Commission to distance itself from the Council’s roadmap applies even when there is no urgency such as for regular meetings; above all, initially, the Commission was authorized to adapt on the express condition of not altering the substance of the Council’s mandate. There is now a shift from the introduction of “minor changes”, or “refinements” of the initial position, to the unqualified right to execute “changes” or “adjustments”.
In extreme cases, the need to adapt the decision-making process can be understood especially given the context of the Union’s development. The was neither conceived nor designed for the collective management of crises to which States cannot respond alone. It is important to maintain the link with the treaties, and thus in international matters with the Council, which is the States’ voice and, which guarantees that they have all been able to express their views. The control tower has to adapt, but must validate any change in trajectory.
Obviously, the two issues are linked: the absence of a Council decision, in the sole favour of the Commission, eliminates consensus, or even qualified majority voting, and the debate on consensus-building itself. Large states like France have the most to lose from this setback.
The risk is both institutional and political. When the Commission official gets off the plane on his way back from an international conference where he has “changed” the EU’s position without a “decision” from the Council, skeptics in Paris or elsewhere will be right in saying “Brussels has decided”.
Source: euractiv.com
