global regulatory regimes; international decisions; Comprehensive Economic and Trade Agreement (CETA)
Résumé :
[en] The legal status of binding and non-binding international decisions adopted by global regulatory bodies in EU law, their authority (as acknowledged in the case law of the CJEU) and legal effects allow one to characterise them as the external administrative layer of EU law-making.
Mega-regional agreements, of which the Comprehensive Economic and Trade Agreement (CETA)
is an instance, have the potential to expand this tier of aw. This article maps the substantive legal effects of international decisions in EU law as expounded by the CJEU, arguing that the case law the Court developed is transposable to future decisions of CETA bodies. Furthermore, it contrasts their possible substantive impact in EU law with the weaknesses of procedural controls over the exercise of public authority by those bodies.
Disciplines :
Droit public
Auteur, co-auteur :
MENDES, Joana ; University of Luxembourg > Faculty of Law, Economics and Finance (FDEF) > Law Research Unit
Co-auteurs externes :
no
Langue du document :
Anglais
Titre :
The External Administrative Layer of EU Law-making: International Decisions in EU Law and the Case of CETA
Date de publication/diffusion :
2017
Titre du périodique :
European Papers
Titre particulier du numéro :
The New Frontiers of EU Administrative Law: Is There an Accountability Gap in EU External Relations?
1 Initiated by EU directives ST 11103/13 for the negotiations for the Transatlantic Trade and Investment Partnership (TTIP) between the EU and the US, unanimously adopted by the Council on 14 June 2013 and declassified and made public by the Council on 9 October 2014 (for the current state of negotiation see trade.ec.europa.eu).
2 Council document n°10973/16, "Comprehensive Economic and Trade Agreement between Canada, of the one part, and the European Union and its Member States, of the other part", dated 14th September 2016.
3 The term "decisions” is adopted here in a broad sense, to refer to acts that can have legal effects in the sense of Art. 218, para. 9, TFEU, as established in Court of Justice, judgment of 7 October 2014, case C-399/12, Federal Republic of Germany v. Council of the European Union [GC], irrespective of the scope of their addressees. Unless otherwise specified, it encompasses formally non-binding acts, such as guidelines, recommendations, best practices, standards. It does not include decisions of a judicial or a dispute settlement body, given their specific procedure and function as resulting from a dispute arbitrated by an impartial body (on these, see P.-J. Kuijper, J. Wouters, F. Hoffmeister, G. De Baere, T. Ramopoulos, The Law of EU External Relations, Oxford: Oxford University Press, 2015, pp. 721-726).
4 At the time of the writing, the European Parliament had given its consent to the conclusion of the agreement (European Parliament Legislative Resolution of 15 February 2017 on the Draft Council Decision on the Conclusion of the Comprehensive Economic and Trade Agreement (CETA) between Canada, of the one part, and the European Union and its Member States, of the other part (10975/2016 - C80438/2016 - 2016/0205(NLE)) and the Canadian Senate had approved the implementing act required under national law, available at www.parl.ca, thus triggering the possible provisional application of the agreement under Article 30.7, para. 3, CETA. The text of the agreement is available at da-ta.consilium.europa.eu.
5 Federal Republic of Germany v. Council of the European Union [GC], cit., paras 63 and 64. At stake in this case were recommendations of a body set up by an international agreement to which the EU is not a party (21 Member States are) but in which it is a "guest” in the terms of that body’s internal rules and whose meetings the Commission attends (Federal Republic of Germany v. Council of the European Union [GC], cit., para. 5).
6 Specifically on this argument, see, J. Mendes: Rule of Law and Participation: A Normative Analysis of Internationalised Rulemaking as Composite Procedures?, in International Journal of Constitutional Law, 2014, p. 370 et seq.; Participation in a New Regulatory Paradigm: Collaboration and Constraint in TTIP’s Regulatory Cooperation, in IILJ/NYU Working Paper MegaReg Series 2016/5.
7 On mega-regional trade agreements, see R.T. Bull, N.A. Mahboubi, R.B. Stewart, J.B. Wiener, New approaches to international regulatory cooperation: the challenge of TTIP, TPP and mega-regional trade agreements, in Law and Contemporary Problems, 2015, p. 1 et seq. On the constitutional challenges that they pose, see E.-U. Petersmann, Transformative Transatlantic Free Trade Agreements without Rights and Remedies of Citizens?, in Journal of European International Economic Law, 2015, p. 579 et seq.
8 Art. 30.10, para. 4, CETA. Analysing the changes in EU trade policy and the new generation of trade agreements, and thus placing CETA in its broader context, see A.S. Serrano, From External Policy to Free Trade: The EU-Singapore Free Trade Agreement in P. Eeckhout, M. Lopez-Escudero (eds), The European Union’s external action in times of crisis, Oxford: Hart Publishing, 2016, pp. 483-507, in particular pp. 487-491.
9 Authority is understood here in the sense proposed by Armin von Bogdandy and others as the ability to affect the freedom of others in pursuance of a public interest (see, most recently, A. von Bogdandy, M. Goldmann, I. Venzke, From Public International to International Public Law: Translating World Public Opinion into International Public Authority, in European Journal of International Law, 2017, p. 115 et seq.).
10 R.B. Stewart, The Global Regulatory Challenge to U.S. Administrative Law, in NYU Journal of International Law and Politics, 2005, p. 703.
11 R.T. Bull, N.A. Mahboubi, R.B. Stewart, J.B. Wiener, New Approaches to International Regulatory Cooperation, cit., pp. 10-12.
12 Art. 21.1, CETA.
13 Ibid., Art. 21.4.
14 Ibid., Art. 21.4, let. g), ii) and iii).
15 Ibid., Arts 21.6, para. 4, let. c), and 26.2, para. 6. The Regulatory Cooperation Forum needs to report to the Joint Committee “as appropriate” and “on the results and consultations from each meeting”. The chapter on regulatory cooperation does not give the Forum the power to decide or issue recommendations (Art. 21.6, and see also Art. 26.2, let. h)). The Joint Committee, on the contrary, may take decisions “in respect of all matters when this Agreement so provides” (Art. 26.3, para. 1) and “make appropriate recommendations” (Art. 26.3, para. 2). From the combination of these provisions, it results that decisions are most likely not permissible regarding regulatory cooperation (following Art. 26.3, para. 1, that power would need to be specified in the Agreement). Art. 26.2. para. 4, raises a doubt in this respect: it enables specialised committees to propose draft decisions for adoption by the Joint Committee, but presumably only where the latter’s power to take decisions is specified in the Treaty (see e.g. Arts 2.13, para. 2, and 8.10, para. 3, the regulatory cooperation chapter does not have similar provisions).
16 Ibid., Art. 26.1, para. 5, let. a), which mentions the delegation of “responsibilities”. If the interpretation in the footnote 15 holds, the Joint Committee could only delegate the power to adopt recommendations as it would not have the power to adopt decisions in the field of regulatory cooperation. It is noteworthy that despite the reference in an official information site that the Regulatory Cooperation Forum does not have formal decision-making powers (Ministère de l’Économie, Accord économique et commercial global (AECG - en anglais CETA: Comprehensive Economic and Trade Agreement) entre l'Union européenne et le Canada - Questions & réponses, 28 January 2015, www.tresor.economie.gouv.fr, this may change by a decision of the Joint Committee, which, in addition to delegation, has the power to “change or undertake the tasks assigned to a specialised committee” - Art. 26.1, para. 5, let. g), CETA).
17 Respectively, Art. 5.14, para. 2, let. d); Arts 8.10, para. 3, 8.28, para. 88, and 8.31, para. 3; Arts 13.18, para. 2, 13.18, para. 3, let. c), and 13.21, para. 3, (among other norms in this last provision); Art. 20.22, para. 1, all CETA.
18 Ibid., Art. 26.5, para. 2, let. c).
19 Ibid., Art. 26.1, para. 1.
20 Ibid., Art. 26.2, para. 5.
21 Ibid., Art. 21.6, para. 3.
22 Ibid., Arts 26.1, para. 4, let. e), and 26.3, paras 1 and 2.
23 Ibid., Arts 26.1, para. 4, let. f), and 26.1, para. 5, let. d), e), f) and i) (emphasis added).
24 Ibid., Art. 26.1, para. 4, let. b). For the functions of the regulatory cooperation forum, see Art. 21.6, para. 2. In fact, the only specification regarding accountability of the Regulatory Cooperation Forum is its duty to report to the Joint Committee (Art. 21.6, para. 4, let. c)).
25 This part adapts and develops the analysis in J. Mendes, EU Law and Global Regulatory Regimes: Hollowing Out Procedural Standards?, in International Journal of Constitutional Law, 2012, pp. 992-995.
26 Court of Justice: judgment of 14 November 1989, case 30/88, Greece v. Commission, para. 13; judgment of 20 September 1990, case 192/89, S. Z. Sevince v. Staatssecretaris van Justitie, paras 8-9; judgment of 21 January 1993, case C-188/91, Deutsche Shell AG v. Hauptzollamt Hamburg-Harburg, para. 17.
27 In the case of S. Z. Sevince v. Staatssecretaris van Justitie, cit., a Turkish national challenged the refusal of the Dutch State Secretary of Justice to grant him a residence permit on the grounds that such refusal violated a decision of the Association Council acting under the Association Agreement with Turkey.
28 Deutsche Shell AG v. Hauptzollamt Hamburg-Harburg, cit., para. 17.
29 Ibid., para. 18.
30 By contrast to the large literature on the effects of international agreements in EU law, there are relatively few accounts of the effects of international decisions: see B. Martenczuk, Decisions of Bodies Established by International Agreements and the Community Legal Order, in V. Kronenberger (ed.), The European Union and the International Legal Order: Discord or Harmony?, The Hague: TMC Asser Press, 2001, p. 141 (noting too the marginal attention given to this topic); N. Lavranos, Decisions of International Organizations in the European and Domestic Legal Orders of Selected EU Member States, Groningen: Europa Law Publishing, 2004, ch. 3; P.J. Kuijper, Customary International Law, Decisions of International Organisations and Other Techniques for Ensuring Respect for International Legal rules in European Community Law, in J. Wouters, A. Nollkaemper, E. de Wet (eds), The Europeanisation of International Law, The Hague: TMC Asser Press, 2008, pp. 96-102; R.A. Wessel, S. Blockmans, The legal status and influence of decisions of international organisations and other bodies in the European Union, in P. Eeckhout, M. Lopez-Escudero (eds), The European Union’s external action in times of crisis, cit., pp. 223-248; focusing on procedural matters, see J. Mendes, EU Law and Global Regulatory Regimes, cit. On the case law, see section IV below.
31 Deutsche Shell AG v. Hauptzollamt Hamburg-Harburg, cit., para. 17.
32 Opinion of AG Van Gerven delivered on 15 October 1992, case C-188/91, Deutsche Shell AG v. Hauptzollamt Hamburg-Harburg, para. 10.
33 See also P. Gilsdorf, Les Organes Institués par des Accords Communautaires: Effets Juridiques de Leurs Décisions, in Revue du Marché Commun, 1992, p. 332.
34 Opinion of AG Van Gerven, Deutsche Shell AG v. Hauptzollamt Hamburg-Harburg, cit., para. 10.
35 The agreement at stake in Deutsche Shell AG v. Hauptzollamt Hamburg-Harburg was the Convention on a Common Transit Procedure, concluded on 20 May 1987 between the Republic of Austria, the Republic of Finland, the Republic of Iceland, the Kingdom of Norway, the Kingdom of Sweden, the Swiss Confederation and the European Economic Community. See also P. Gilsdorf, Les Organes Institués par des Accords Communautaires, cit., p. 332.
36 P.J. Kuijper, Customary International Law, cit., p. 101.
37 Arts 26.1, para. 4, let. a), and 26.3, para. 3, CETA. Of the specialised committees, CETA only specifies mutual consent for the adoption of decisions of the Financial Services Committee (Art. 13.18, para. 2). The other committees may define in their rules of procedure another decision-making rule, except for their agenda and meeting schedule, for which CETA determines adoption by mutual consent (Art. 26.2, para. 4).
38 See further N. Lavranos, Decisions of international organizations, cit., pp. 56-57. S. Z. Sevince v. Staatssecretaris van Justitie, cit., was a case where the Court ruled on the decision itself and it triggered a long litigation on Decision 1/80 of the Association Council established under the EEC-Turkey Association Agreement. In Court of Justice, judgment of 7 April 2016, case C-556/14 P, Holcim (Romania) S/4 v. Commission, the General Court did not appear to exclude the possibility to rule on the decision at stake, or at least that "it could be relied on before the Court" (para. 131; this point is arguably not excluded by the Court of Justice’s observation on appeal, where it underlined that the General Court had rejected the applicant’s pleas on other grounds).
39 Opinion of AG Cruz Villalón delivered on 29 April 2014, case C-399/12, Federal Republic of Germany v. Council, para. 85.
40 The case law analysed below provides examples of the first two instances. An example of the third is the international guidelines on the quality, safety and efficacy of pharmaceutical products used by the European Medicines Agency to assess the applications for the authorization of medicines and that the agency considers to reflect "the best or most appropriate way to fulfil an obligation laid down in the [Union] pharmaceutical legislation" (European Medicines Agency (EMA), Procedure for European Union Guidelines and Related Documents within the Pharmaceutical Legislative Framework, London, 18 March 2009, Doc.Ref. EMEA/P/24143/2004 REV. 1 corr (hereinafter, "EMA Procedural Guidelines"), pp. 4 and 5, paras 2.1 and 2.2.
41 Deutsche Shell AG v. Hauptzollamt Hamburg-Harburg, cit., para. 18. See also Court of Justice, judgment of 19 November 1998, case C-162/97, Criminal proceedings against Gunnar Nilsson Per Olov Hagelgren and Solweig Arrborn, para. 49.
42 Court of Justice, judgment of 4 May 2016, case C-547/14, Philip Morris Brands SARL et al. For the Directive see Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2011/37/EC.
43 See Art. 1 of Directive 2014/40/EU.
44 Philip Morris Brands SARL et al., cit., paras 108-110 and 114-115.
45 Philip Morris Brands SARL et al., cit., paras 118-120 (emphasis added). The need to adapt EU law to the guidelines was also invoked in para. 99 to support the claim that disparities were likely to occur regarding the packaging and labelling of tobacco products.
46 Ibid., paras 116-117.
47 Ibid., para. 113.
48 Ibid., para. 111.
49 Ibid., para. 112.
50 Ibid. Whether this feature will be present in other cases will largely depend on the respective constitutive agreements.
51 Ibid., para. 113.
52 Court of Justice, judgment of 7 October 2014, case C-399/12, Federal Republic of Germany v. Council of the European Union [GC].
53 In this case, one cannot read these arguments through the prism of consent, as the EU is not a party to the agreement (Federal Republic of Germany v. Council of the European Union [GC], cit., para. 52, see also para. 5; the Commission’s participation in the meetings of the International Organisation of Vine and Wine’s bodies cannot be a considered a surrogate to consent of the parties).
54 Federal Republic of Germany v. Council of the European Union [GC], cit., paras 59, 60 and 61.
55 See footnote 39.
56 Art. 26.2, para. 5, CETA.
57 Court of Justice, judgment of 5 July 2017, case C-190/16, WernerFries v. Lufthansa CityLine GmbH, paras 59-63; Opinion of AG Bobek delivered on 21 March 2017, case C-190/16, WernerFries v. Lufthansa CityLine GmbH, paras 51-52.
58 Opinion of AG Bobek, WernerFries v. Lufthansa CityLine GmbH, cit., para. 52 (emphasis added).
59 Ibid., para. 56 (enphasis added).
60 Ibid., para. 56 (emphasis added). See, too, judgment in WernerFries v. Lufthansa CityLine GmbH, cit., para. 63.
61 WernerFries v. Lufthansa CityLine GmbH, cit., para. 65 and Opinion of AG Bobek, WernerFries v. Lufthansa CityLine GmbH, cit., paras 60-61.
62 Opinion of AG Bobek, WernerFries v. Lufthansa CityLine GmbH, cit., para. 58.
63 The grounds to ascertain that quality may be feeble. In Philip Morris Brands SARL et al., cit., para. 112, the Court established that the recommendations were based on the best available scientific evidence and expertise of the Parties on the basis of the text of the guidelines themselves. In doing so, it arguably took the text at face value (see the guidelines to which the Court referred: World Health Organization, Partial Guidelines for Implementation of Articles 9 and 10 of the WHO Framework Convention on Tobacco Control, in FCTC, 2012, www.who.int.
64 Holcim (Romania) SA v. Commission, cit.
65 General Assembly, United Nations Framework Convention on Climate Change of 20 January 1994, A/RES/48/189.
66 Holcim (Romania) SA v. Commission, cit., paras 132-135.
67 Ibid., paras 6-7.
68 Ibid., para. 130.
69 This cannot be an indirect reference to Art. 218, para. 9, TFEU (on this norm, see infra, section V), since nothing in this provision requires the approval of the international decision by the Union, only the definition by the Council of the position to be negotiated on the Union’s behalf. Invoking such a dualistic system with regard to international decisions, as suggested by the Commission, see B. Martenczuk, Decisions of Bodies Established by International Agreements, cit., p. 162
70 Holcim (Romania) SA v. Commission, cit., paras 9 and 138-146.
71 The ambiguity is perhaps more evident in the French version of the texte: "[a] supposer même que l’annexe à la décision 13/CMP.1 fasse partie de l’ordre juridique de ¡'Union et soit invocable devant le Tribunal" (Holcim (Romania) SA v. Commission, cit., para. 131).
72 Holcim (Romania) SA v. Commission, cit., para. 61. See supra, section II.
73 Court of Justice, judgment of 21 December 2011, case C-366/10, Air Transport Association of America et al. v. Secretary of State for Energy and Climate Change, para. 73. In this case, the Court also held that the nature and broad logic of the Kyoto Protocol prevent it from being relied upon in the context of a preliminary reference procedure to contest the validity of an EU act (paras 73-78). The Court of Justice invoked the procedures for the implementation of the Kyoto Protocol, as established therein, and the flexibility awarded to the Parties on the implementation of their commitments to conclude that "the parties to the protocol may comply with their obligations in the manner and at the speed upon which they agree".
74 I am grateful to Marise Cremona for a discussion on this point.
75 See, inter alia, Court of Justice: judgment of 26 October 1982, case 104/81, Hauptzollamt Mainz v. C.A. Kupfberg & Cie KG a.A., paras 22 and 23; judgment of 3 June 2008, case C-308/06, The Queen, on the application of International Association of Independent Tankers Owners (Intertanko) et al. v. Secretary of State for Transport, paras 43-45 and Air Transport Association of America et al. v. Secretary of State for Energy and Climate Change, cit., paras 51-54. On these conditions, see, e.g., P. Eeckhout, EU External Relations Law, Oxford: Oxford University Press, 2011, pp. 331-355.
76 S. Z. Sevince v Staatssecretaris van Justitie, cit., paras 14-15. It is noteworthy that the particularity of decisions of Association Councils in the context of Association Agreements (see P.J. Kuijper, Customary International Law, cit.) has not prevented the transposition of that case law to a very different context (in Deutsche Shell AG v. Hauptzollamt Hamburg-Harburg, cit.). The specificity of the S. Z. Sevince v Staatssecretaris vanJustitie case may raise doubts regarding the ability to transpose that case law to other cases, as the Commission appeared to have hinted at in Holcim (Romania) SA v. Commission. However, to the author's knowledge, no subsequent case has restricted the scope of application of the S. Z. Sevince vStaatssecreta-ris van Justitie rule.
77 This reasoning follows the Opinion of AG Darmon delivered on 15 May 1990, case C-192/89, S. Z. Sevince v. Staatssecretaris van Justitie, paras 12, 19 and 33.
78 Court of Justice, judgment of 30 September 1987, Demirel and Stadt Schwdbisch Gmünd, paras 21 to 24 and S. Z. Sevince v. Staatssecretaris van Justitie, cit., paras 19 and 20. I am grateful to Marise Cremona for pointing this out.
79 Hauptzollamt Mainz v C.A. Kupfberg & Cie KG a.A., cit., para. 17.
80 See too B. Martenczuk, Decisions of Bodies Established by International Agreements, cit., p. 160. Art. 30.6, para. 1, CETA. Para. 2 adds: “A Party shall not provide for a right of action under its domestic law against the other Party on the ground that a measure of the other Party is inconsistent with this Agreement”. For a strong normative repudiation of clauses excluding direct effect in trade agreements, see E.U. Petersmann, Transformative Transatlantic Free Trade Agreements, cit.
81 Opinion of AG Darmon, S. Z. Sevince v. Staatssecretaris vanJustitie, cit., para. 12.
82 Sub-sections IV.1. and IV.3. See also The Queen, on the application of International Association of Independent Tankers Owners (Intertanko) et al. v. Secretary of State for Transport, cit., para. 52, referring to an international agreement.
83 See, e.g, Court of Justice, judgment of 18 March 2014, case C-363/12, Z v. A Government Department and The Board of management of a community School [GC], para. 75, albeit referring to consistent interpretation of EU acts with international agreements. Arguably, the principle of consistent interpretation applies irrespective of whether the EU act being interpreted was adopted to implement the international decision (P. Eeckhout, EU External Relations Law, cit., pp. 356-357).
84 Federal Republic of Germany v. Council of the European Union [GC], cit., paras 63-64.
85 J. Mendes, EU Law and Global Regulatory Regimes, cit., pp. 1016-1017.
86 S. Z. Sevince v. Staatssecretaris van Justitie, cit., paras 10-11; Deutsche Shell AG v. Hauptzollamt Hamburg-Harburg, cit., para. 19 (where, however there is no reference to the functional or other justification of jurisdiction); see also Holcim (Romania) SA v. Commission, cit., paras 132-137 and 144, simply interpreting the provisions of an international decision.
87 General Court, judgment of 22 July 2005, case T-376/04, Polyelectrolyte Producers Group v. Council of the European Union and Commission of the European Communities, para. 31. In this case, the General Court considered (in a judgment upheld on appeal) that the case law according to which the Court may rule on the validity of the internal act whereby the EU concludes an international agreement (not on the validity of the agreement itself - Court of Justice, judgment of 9 August 1994, case C-327/91, French Republic v. Commission of the European Communities, paras 13-17) could not apply in the same terms to an act establishing the EU position regarding a decision of an international body (ibid., para. 35; see too Court of Justice, judgment of 8 December 2006, case C-368/05, Polyelectrolyte Producers Group v. Council of the European Union and Commission of the European Communities, paras 50 and 55). In the case of international decisions, unlike international agreements, there is no EU act “concluding” an external act, on whose validity the Court could rule (I am grateful to Marise Cremona for a discussion on this issue). The act that may be subject to a validity challenge is the prior Council decision establishing the position of the EU (Art. 218, para. 9, TFEU), the equivalent of which in Polyelectrolyte Producers Group the Court held was lacking the requisite direct and individual concern. In the case of legislative incorporation, the EU act that applies the international decision can be challenged. It should be noted that an act of incorporation is not a necessary condition of the validity (and authority) of international decisions in EU law (see sub-section IV.2.; for a contrary view, see B. Martenczuk, Decisions of Bodies Established by International Agreements, cit., pp. 158-162, assuming that, contrary to institutional practice, a decision pursuant Art. 218, para. 9, TFEU should precede incorporation).
88 B. Martenczuk, Decisions of Bodies Established by International Agreements, cit., p. 157.
89 The views of those authors that uphold the ability of the CJEU to rule on the validity of international decisions are based on defensible normative views, but, arguably, do not reflect the current status of EU law (see P. Eeckhout, EU External Relations Law, cit., pp. 291, 275-276; similarly, K. Lenaerts, D. Arts, I. Maselis, Procedural Law of the European Union, London: Sweet & Maxwell, 2006, p. 354, cautiously setting out “an impression" that the Court also has jurisdiction to review validity matters). See, however, Opinion of AG Van Gerven, Deutsche Shell AG v. Hauptzollamt Hamburg-Harburg, cit., paras 11 and 17, stating that the Court has jurisdiction to give preliminary rulings on the interpretation and validity of international decisions. Admittedly, in S. Z. Sevince v. Staatssecretaris van Justitie, cit., the Court linked its jurisdiction to give preliminary rulings over international decisions to its jurisdiction to give preliminary rulings over international agreements, without distinguishing questions of interpretation from questions of validity, in line with Art. 267, para. 1, let. b), TFEU (see paras 10-11). Nevertheless, at stake was a matter of interpretation (in the judgment in Deutsche Shell AG v. Hauptzollamt Hamburg-Harburg, cit., it is clearer that the jurisdiction is restricted to matters of interpretation - paras 18-19; see too Court of Justice, judgment of 27 October 2016, case C-613/14, James Elliott Construction Limited v. Irish Asphalt Limited, paras 34-35, justifying jurisdiction of the CJEU to interpret acts of private standardisation bodies with the need to avoid divergent interpretations in the Member States, in line with S. Z. Sevince v. Staatssecretaris van Justitie, cit., para. 11).
90 In Court of Justice, judgment of 3 September 2008, joined cases C-402/05 P and C-415/05, Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities [GC], the Court stressed that it was reviewing the EU act implementing the UN Security Council measure, not the measure itself (paras 286-287) and asserted that the jurisdiction over international agreements, with a view to preserving the constitutional principles of the EU, covers the EU implementing act but not the agreement itself (para. 285). It is well known that UN Security Council measures are not decisions adopted by an international body set up by an international agreement. Yet, arguably, the same reasoning would apply to these cases.
91 J. Mendes: EU Law and Global Regulatory Regimes, cit.; Rule of Law and Participation, cit.
92 Federal Republic of Germany v. Council of the European Union [GC], cit., paras 63-64; Opinion AG Bobek, Werner Fries v. Lufthansa CityLine GmbH, cit., examined above.
93 See Chapter 26 on “Administrative and Institutional Provisions” and Art. 26.1, para. 2, and para. 4, let. d), CETA.
94 Ibid., Art. 26.3, para. 3.
95 Ibid., Art. 26.4.
96 As noted above, they may also acquire by delegation of the Joint Committee the power to adopt decisions.
97 Art. 5.14, paras 4-9, CETA.
98 Ibid., Art. 21.8 (emphasis added).
99 Ibid., Art. 21.6, para. 2, let. a).
100 On the different meanings of participation in the context of regulatory cooperation (analysing TTIP), see J. Mendes, Participation in a New Regulatory Paradigm, cit., section 4, p. 12 et seq.
101 Ibid.
102 Art. 27.1, para. 1, CETA.
103 Ibid., Art. 27.1, para. 2.
104 Ibid., Art. 27.3 (emphasis added). See too Arts 13.11, 15.11, para. 2, 19.17, para. 6, 23.5.
105 Ibid., Art. 27.3, let. a) and b).
106 Ibid., Art. 27.4. Art. 6.10, para. 3, demands that, in the field of customs, each Party provides for an administrative level of appeal or review “before requiring a person to seek redress at a more formal or judicial level”.
107 This provision covers also the suspension of the application of an agreement. It does not apply to “acts supplementing or amending the institutional framework of the agreement”.
108 Federal Republic of Germany v. Council of the European Union [GC], cit., paras 63-64 (see also paras 5961; contrary to the Opinion of the AG Cruz Villalón, Federal Republic of Germany v. Council of the European Union, cit., paras 84-99). The Organisation of Vine and Wine (hereafter OIV) also established that Art. 218, para. 9, TFEU is not limited to acts of bodies established by agreements of which the EU is a party.
109 Court of Justice: judgment of 1 October 2009 case C-370/07, Commission of the European Communities v. Council of the European Union; judgment of 18 December 2014, case C-81/13, United Kingdom of Great Britain and Northern Ireland v. Council of European Union [GC], para. 66 (regarding the majority necessary to adopt that the Council’s decision); judgment of 6 October 2015, case C-73/14, Commission of the European Communities v. Council of the European Union [GC], paras 63-67 (excluding from its scope the submission of statements in the framework of international judicial procedures); case C-600/14, Germany v. Council, pending (where the Court is asked to rule on the correct application of Art. 218, para. 9, TFEU in case of an international decision that amends the international agreement and on the Union’s competence to use Art 218, para. 9); Federal Republic of Germany v. Council of the European Union [GC], cit. (extending the scope of the provision to non-binding acts as acts with legal effects and establishing that the EU does not need to be a party to the agreement to trigger the application of Art. 218, para. 9, TFEU). It has also implications to the relationships between the Member States and the EU, when the Union is not a party to the agreement and its position is expressed via the Member States, or when issues of competence are at stake (as in Germany v. Council, cit.).
110 Opinion of AG Sharpston delivered on 16 July 2015, case C-73/14, Council v. Commission, para. 72 and footnote 22. A cursory reading of Art. 218 TFEU could convey that the European Parliament should be informed also of this step, given the schematic position of Art. 218, para. 10, TFEU (see J. Mendes, EU Law and Global Regulatory Regimes, cit., p. 1017). However, the history and purpose of the provision deny this interpretation (see too United Kingdom of Great Britain and Northern Ireland v. Council of European Union [GC], cit., para. 66, explicitly excluding the Parliament; and Opinion of AG Kokott delivered on 17 July 2014, case C-81/13, United Kingdom of Great Britain and Northern Ireland v. Council of European Union, footnote 63, stressing that Art. 218, para. 9, TFEU is a “separate, simplified procedure […] regulated differently from the conventional procedure for the conclusion of international agreements” - emphasis in the original). See too B. Martenczuk, Decisions of Bodies Established by International Agreements, cit., pp. 153-154, on the pre-Lisbon (pre-Nice) situation, indicating that despite the formal rights of the Parliament in some cases, the risks for the effective EU participation in international decision-making led the Council to design specific procedures for the adoption of EU positions.
111 P.-J. Kuijper, J. Wouters, F. Hoffmeister, G. De Baere, T. Ramopoulos, The Law of EU External Relations, cit., p. 86.
112 Ibid. See also references in footnote 103. A search in eur-lex.europa.eu indicates that the vast majority of Council decisions of this type was adopted since 2010.
113 The origins and purpose of Art. 218, para. 9, TFEU pointed out above may hinder an analogy with the Mauritius and Tanzania cases (Court of Justice: judgment of 24 June 2014, case C-658/11, European Parliament v. Council [GC], paras 81-86; judgment of 14 June 2016, case C-263/14, European Parliament v. Council [GC], paras 68-73) and are in tension with the argument made here. On the scope of Art. 218, para. 10, TFEU, see R. Passos, The External Powers of the European Parliament, in P. Eeckhout, M. Lopez-Escudero (eds), The European Union’s external action in times of crisis, cit., pp. 125-128, suggesting (albeit briefly) that the Parliament's future involvement in the implementation of international agreements could be envisaged in an inter-institutional agreement.
114 Art. 218, para. 6, let. a) and b), TFEU. Referring to the pre-Lisbon (and pre-Nice) situation, Mar-tenczuk argued that, if the Council would set up specific procedures for the adoption of the EU position, the Parliament should also assent to these procedures in the instances where the assent procedure applied for the conclusion of the agreement (B. Martenczuk, Decisions of Bodies Established by International Agreements, cit., p. 154). On the role of the European Parliament in the field of financial services, see M.S. Barr, G.P. Miller, Global Administrative Law: The View from Basel, in European Journal of International Law, 2006, p. 15 et seq., pp. 36 and 37.
115 Federal Republic of Germany v. Council of the European Union [GC], cit., paras 61 and 64. Arts. 21.2, para. 4, let. c), 21.2, para. 6, and Art. 21.5 CETA.
