Opinion of the Advocate General — ECLI:EU:C:2015:490
Date: 2015-07-16
Language of the case: English
Subject matter: Provisions governing the Institutions
Procedure: Action for annulment - unfounded

Summary — Judgment of the Court (Grand Chamber), 6 October 2015 1. European Union — Representation before an international court — Submission by the Commission of written observations, on behalf of the European Union, to the International Tribunal for the Law of the Sea — Lawfulness — Council’s powers not disregarded (Art. 16(1) TEU; Arts 216(2) TFEU, 218(9) TFEU and 335 TFEU) 2. Institutions of the European Union — Obligations — Sincere cooperation — Scope — Submission by the Commission of written observations, on behalf of the European Union, to the International Tribunal for the Law of the Sea — Lawfulness — Conditions (Arts 13(2) TEU and 16(1) TEU; Art. 218(9) TFEU) 1. Article 335 TFEU, although restricted to Member States on its wording, is the expression of a general principle that the European Union has legal capacity and is to be represented, to that end, by the Commission. It follows that Article 335 TFEU provides a basis for the Commission to represent the European Union before the International Tribunal for the Law of the Sea. In that respect, by submitting to that court, on behalf of the European Union, a written statement the content of which had not been approved by the Council, the Commission did not disregard the Council’s powers under Article 218(9) TFEU and the second sentence of Article 16(1) TEU. In the first place, the reference in Article 218(9) TFEU to the positions to be adopted on the European Union’s behalf ‘in’ a body set up by an international agreement and called upon to adopt acts having legal effects means that the application of that provision concerns the positions to be adopted on behalf of the European Union in the context of its participation, through its institutions or, as the case may be, through its Member States acting jointly in its interests, in the adoption of such acts within the international body concerned. The European Union is invited to express, as a party, a position ‘before’ an international court, and not ‘in’ it. In the second place, a written statement which consists in suggesting answers to the questions raised in a case, by setting out the manner in which the European Union envisaged the interpretation and application of certain provisions of international and EU law relevant to fishing, is not intended to formulate a policy in that respect, for the purpose of the second sentence of Article 16(1) TEU, but to present to the International Tribunal for the Law of the Sea a set of legal observations aimed at enabling that court to give, if appropriate, an informed advisory opinion on the questions put to it. In that respect, considerations in the statement relating to that court’s jurisdiction to give the requested advisory opinion and the admissibility of the questions put to it are, like the observations submitted on the substance of the case in question, characteristic of participation in proceedings before a court. They cannot, in those circumstances, be regarded as policy making, within the meaning of Article 16(1) TEU. (see paras 58, 59, 62, 63, 70-73) 2. Under Article 13(2) TEU, the institutions of the European Union are to practise mutual sincere cooperation. That sincere cooperation, however, is exercised within the limits of the powers conferred by the Treaties on each institution. The obligation resulting from Article 13(2) TEU is therefore not such as to change those powers. Accordingly, since the determination of the content of a written statement submitted on behalf of the European Union to the International Tribunal for the Law of the Sea in a case pending before that court does not fall within the competence of the Council pursuant to Article 218(9) TFEU or the second sentence of Article 16(1) TEU, it cannot be claimed that the Commission failed to fulfil its obligation of sincere cooperation by not taking the initiatives entailed in the application of those two provisions. That being said, the principle of sincere cooperation requires the Commission to consult the Council beforehand if it intends to express positions on behalf of the European Union before an international court. The Commission complies with that obligation if, prior to submitting the written statement on behalf of the European Union to the International Tribunal for the Law of the Sea, the Commission sent the Council a working document setting out the principle elements of the European Union’s observations in the case in question. (see paras 84-87)