LEGAL CASE NOTE published on 08 Dec 2017 • Department / Unit Legal & Policy

CJEU decision on EU negotiation positions in international bodies

justice

The case before the Court concerned a legal dispute between the European Commission and the Council regarding which legal form the Council should use to adopt negotiation positions in international bodies such as the International Telecommunication Union (ITU). While this could be considered a rather technical and formalistic issue, it is quite relevant for the balance of power between the European Commission and the Council, and the influence of Member States in establishing EU negotiation positions.

In the case at hand, the Council had adopted (informal) Council conclusions to establish the EU negotiation position for the ITU's 2015 World Radiocommunication Conference (WRC-15). The Commission contested this way of proceeding, arguing that the Council should have adopted a formal decision, according to Art. 218 para. 9 of the Treaty on the Functioning of the EU (TFEU).

The EU Court of Justice rendered its judgment on 25 October 2017. It followed the reasoning of the European Commission and of the Advocate General (AG), finding that the Council was obliged to use the legal form of a decision to establish the negotiation position for WRC-15. This was because the choice of a legal act determines (i) the act’s legal effects (i.e. the binding nature of a decision) and (ii) the procedure to be followed for the act’s adoption (i.e. qualified majority to adopt, unanimity to oppose the decision). The Court also pointed out that the derogation from the legal form laid down by the Treaty and the failure to indicate the legal basis were a source of confusion and "apt to weaken the EU in the defence of its position at WRC-15".

One could expect the judgment to have the following practical implications for the process of establishing the negotiation position of EU Member States in future WRC negotiations:

  • More influence for the European Commission, due to its right of initiative;
  • Less influence and veto power for individual Member States, due to qualified majority voting in the Council; and
  • Less flexibility in negotiations for Member States, due to the legally binding power of formal Council decisions.

Relevant Links

CJEU decision
Advocate General Opinion

Contact detail

Michael Wagner
Head of Media and Communications Law
+41 22 717 25 11
wagner@ebu.ch
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