The application of the duty of cooperation in the context of the EU The Centro-Com case evoked above emphasised that Member States have to respect

the CCP provisions when they adopt measures of foreign policy in the exercise of their national competence. As it was pointed out in chapter 2, as Parties to a mixed agreement, Member States may also act “in the framework of the EU”. As such, they are bound not only by obligations of a Community law nature including the duty of cooperation, they also have to take into account the obligations flowing from the non-

433 _{See above, section 3.1.1.}

434 _{This partly echoes the views of Ehlermann mentioned above. It should be added that the Community} is also under a duty of cooperation with the Member States, inasmuch as it should not act in a way that could lead to the liability of Member States.

EC provisions of the TEU, such as the general objectives of the Union, and the specific aims, provisions and instruments of Title V on CFSP.435

Title V contains several provisions supporting the binding nature of CFSP measures. In particular, Member States are expected to ensure that their national positions conform to common positions adopted in the context of the CFSP, and to uphold the common position in international organisations and conferences. Similarly, joint actions “commit the Member States in the positions they adopt and in the conduct of their activity”.436 _{Moreover, Title V includes what could be regarded as a principle of}

loyal cooperation. It is encapsulated in Article 11(2) TEU which provides that:

The Member States shall support the Union’s external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity.

The Member States shall work together to enhance and develop their mutual political solidarity. They shall refrain from any action which is contrary to the interests of the Union or likely to impair its effectiveness as a cohesive force in international relations.

These provisions establish a broad principle of loyalty in relation to the Union’s foreign and security policy as a whole. Not only the secondary CFSP instruments, but also the objectives of the CFSP bind the Member States in terms of public international law, despite the fact that these provisions are not judicially enforceable before the European Court of Justice.437 _{Such a CFSP principle of loyalty involves}

435 _{On the legal effects of CFSP acts, see e.g.: Koskenniemi (1998: 27), Wessel (1999: 150ff), Eeckhout} (2004: 138ff), Denza (2002: esp. chaps. 2, 4 and 9), Hendry et al (1996: 412), Koutrakos (2001: 44), Eaton (1994: 215), Weiler (1993: 53), Willaert and Marquéz-Ruiz (1995) and Jacqué (2001: 512-516). 436 _{See Arts. 15 (ex-J.5) and 14(3) (ex-J.4) TEU, respectively. Further: McLeod et al (1996: 412ff). It} has been suggested that the International Court of Justice could adjudicate on Member States disputes on compliance with CFSP obligations (….), although this option has also been assessed as not very realistic in practice (Denza, 2002: 322; Eaton, 1994: 222; Lenaerts and van Nuffel, 1999: 672).

both negative (“refrain from”) and positive (“shall support”) obligations438 _{which to a}

certain extent remind of the provisions of Article 10 EC.439

In the case of mixed agreements such as the PCAs, Member States and Community institutions are bound to cooperate, notably to ensure the full implementation of the Agreement. At the same time, Member States, “acting in the framework of the Union”, are expected to support the Union’s foreign and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity. This is particularly the case in the context of the political dialogues, where Member States, represented by the Presidency, in principle have to promote the objectives of the European Union, under the supervision of the Council.440 _{This second level of loyalty of Member States acting}

in the framework of the Union has to be combined with their Community duty of cooperation.

The presence of the two levels of Member States’ loyalty raises the question of how potential tensions or incompatibilities between provisions of the two loyalties are to be resolved. It is submitted that while conflict should be solved to the benefit of the Community, CFSP rules may nevertheless affect EC rules, without violating Community law.

To begin with, a conflict between Member States’ actions and Community law should be resolved by the principle of supremacy of EC law as developed by the Court.441

Indeed, as pointed out above, the Court has emphasised on several occasions that the powers retained by the Member States must be exercised in a manner consistent with Community law.442 _{Member States thus have to give way to the application of}

438 _{Loyalty is also formulated in Article 14(7) TEU (ex J.3(7)) concerning Joint Actions: “Should there} be any major difficulties in implementing a joint action, a Member State shall refer them to the Council which shall discuss them and seek appropriate solutions. Such solutions shall not run counter to the objectives of the joint action or impair its effectiveness.” For a critical assessment of this obligation of loyalty, see Koskenniemi (1998).

439 _{Fink-Hooijer (1994: 177).}

440 _{Art. 11(2), second indent [ex Art. J.1(4)] TUE. Wessel (1997: 119ff).}

441 _{Case 6/64 Costa (Flaminio) v ENEL; Case 106/77 Simmenthal v Amministrazione delle finanze.} 442 _{Case C-124/95 The Queen v HM Treasury and Bank of England, ex parte Centro-Com Srl.}

Community law in case of conflict with their national rules.443 _{Arguably, the same}

applies in situations of conflict between EC law and CFSP commitments. In principle, Member States should not be able to rely on CFSP to disengage themselves from their Community obligations. Save in certain limited circumstances, they cannot adopt a CFSP measure that contradicts EC law, including any EC external agreements, be they Community or mixed agreements.444 _{Indeed, the Commission would be in a}

position to sue the Member State on the basis of Article 226 EC if the latter acted, or failed to act, in breach of a Community obligation derived from an external agreement to which the Community is party. This primacy of EC law over conflicting national norms tends to be confirmed by other provisions of the TEU, as it will be seen in the next chapter.445

The difficulty appears where a CFSP measure adopted in relation to a third party affects rights and obligations of the Community, although withoutinvolving a breach of Community law. That could be the case in a situation where the CFSP instrument revisits the provisions of a pre-existing mixed agreement where such provisions fall outside the scope of Community law. It would be the case if Member States were to reinforce the political conditionality through a CFSP measure. At first sight, such a CFSP measure would neither concern nor indeed infringe Community law, given that the CFSP-inspired provisions of the mixed agreement have not become part of the Community legal order.446 _{Moreover, as a matter of Union law, Member States should}

indeed be free to adopt CFSP measures, provided they do not affect the EC Treaty or acts supplementing it.

In the light of the analysis of the previous section however, the Community rights and obligations under the mixed agreement, may be affected by the CFSP decision concerned, to the same extent as its rights and obligations could be altered by the action of Member States, acting in their own rights.447 _{In particular, the effect of the}

CFSP measure on the terms of the Agreement may lead the other party to react by

443 _{Unless Member States act on the basis of the derogatory provisions of the EC Treaty, e.g. Art. 297} EC, see case C-120/94 Commission v Greece. Further: Koutrakos (2000) and Emiliou (1996).

444 _{Article 47 TEU, see section 4.1 below.}

445 _{Case C-13/00 Commission v Ireland. Further, see Weiler (1993).} 446 _{Case 13/00 Commission v Ireland.}

adopting “appropriate measures”, on the ground that it allegedly constitutes a breach of the agreement. As suggested earlier, the third party is not necessarily deprived, in this context, of the possibility to cross-retaliate particularly if the allocation of powers is not known. For instance it can decide to suspend the provisions relating to trade in goods.448 _{The Community could thereby be indirectly affected by a CFSP decision.}449

As also submitted above, the duty of cooperation developed by the Court in the Community context entails that Member States should take all measures necessary to ensure cooperation with the Community institutions in order to guarantee full implementation of mixed agreements.450 _{In particular, Member States have a}

responsibility vis-à-vis the Community to fulfil all their obligations under the agreement, as a means to facilitate Community’s compliance with its obligations. It implies that Member States should in particular refrain from acting in a way that would be detrimental to the Community.451 _{Adopting a CFSP measure which involves}

negative consequences for the Community could thus be deemed incompatible with the duty of cooperation.

At the same time, Member States are bound by CFSP objectives and measures, which also contribute to fulfil the general objective of asserting the Union’s identity on the international scene. They are indeed bound by the CFSP principle of loyalty. It is difficult to envisage the development of a genuine foreign policy if it were to remain subject, in any case, to existing Community trade commitments. Adapting the CFSP, which arguably covers all aspects of foreign policy,452 _{to EC law could make the}

448 _{Without prejudice to the provisions of GATT, although in the case of Russia and Ukraine it would} not be too much of a concern, given they are not members yet. Further on the WTO dimension of sanctions, see Brandtner and Rosas (1999:699).

449 _{If the Member States decided to suspend the application of the Agreement, such a suspension would} still need to be compatible with the UN Charter and GATT/WTO law. The Community is bound by the two instruments, it would thus be affected by a Member States action.

450 _{As per Opinion 2/91. Bogdandy and Nettesheim (1996: 283) suggest that this cooperation might} indeed involve that when examining national implementation acts of Title V or Title VI decisions, the national courts can ask the ECJ – following the procedure of Article 234- whether the national measure, issued to implement a Council decision under a competence of Title V or VI TEU, violates Article 10 EC.

CFSP objectives and provisions become nugatory.453 _{Indeed, as suggested above, the}

duty of cooperation also binds the Community institutions vis-à-vis the Member States.

Arguably, the Court’s pronouncement in Centro-Com whereby Member States’ foreign policy measures must “respect the provisions adopted by the Community in the field of the common commercial policy”454 _{has to be nuanced, where Member}

States act in the framework of the Union. Indeed, the TEU foresees the possibility for Member States to act under Title V to establish sanctions against a third state,455 _with

subsequent obligations for the Community institutions to take measures in the context of the EC Treaty.456 _{In the same vein, human rights clauses inserted in mixed}

agreements, imply the possibility for the EU to review Community commitments vis- à-vis a third country in consideration of a change in the political situation. CFSP actions can affect Community law, without being considered to be violating EC law. It would be inconceivable that the trade commitments of the Community would prevent the Member States, acting in the framework of the Union, from reviewing the trade regime even where the other party violates principles promoted by the EU.

3.3. Conclusion

Based on the constitutional principle of loyal cooperation, the duty of cooperation is a key principle governing the interaction between the Community and the Member

452 _{Council (1994): Avis du Service Juridique: “Une position commune définie par le Conseil sur la} base de l’Article J.2 du Traité sur l’Union européenne et qui est destinée à établir une approche globale de la politique à mener par l’Union européenne à l’égard d’un pays tiers peut-elle tenir compte et mentionner les aspects (notamment économiques) des relations avec le pays tiers en cause à propos desquels la Communauté serait compétente pour adopter des mesures concrètes”. Fink-Hooijer (1994). 453 _{Art. 13 TEU points out that the Council shall ensure the “unity, consistency and effectiveness of} action of the Union.”

454 _{Case C-124/95 The Queen v HM Treasury and Bank of England, ex parte Centro-Com Srl.} 455 _{Art. 301 EC. Further: e.g. Koutrakos (2001: 67ff).}

456 _{See also the provisions of Article 20 TEU which provide that “[t]he diplomatic and consular} missions of the Member States and the Commission Delegations in third countries and international conferences, and their representations to international organisations, shall cooperate in ensuring that the common positions and joint actions adopted by the Council are complied with and implemented.”

States in the context of mixed agreements. It aims at ensuring a smooth interplay between them, with a view to ensuring the effectiveness of the Community external action, and incidentally of the overall EU external relations, particularly given the specific function of mixity, examined in the previous chapter. As such the duty of cooperation is a key principle underpinning the system of EU external relations.

In legal terms, the duty of cooperation entails an obligation of conduct which may vary depending on the nature of the mixity of the agreement concerned. It can imply uniformity in the application of provisions of a mixed agreement, where they are capable of applying at national and Community levels. Moreover, its application also concerns Member States exercising their retained competences. The application of the duty of cooperation should however be nuanced in the context of a mixed agreement where Member States act in the framework of the Union, as in the case of the PCAs. In particular, the duty of cooperation has to be reconciled with other rules and principles of the Union. On the one hand, Member States’ decision to include non-EC provisions in a mixed agreement entails, as a result of the duty of cooperation, their responsibility vis-à-vis the Community to implement all the provisions fully, in order to forestall any risk of liability on the side of the Community. On the other hand, Member States acting in the framework of the Union operate in consideration of the CFSP objectives, principles and rules, as emphasised by the CFSP principle of loyalty. As the next chapter will show, other principles underpinning the system of EU external relations also come into play to organise these interactions.

CHAPTER 4

PRINCIPLES ORGANISING INTERACTIONS BETWEEN THE SUB-