According to Advocate General Kokott in Case C-551/21, Commission v Council (Gabon), it should not be a designated representative of an EU Member State, but rather, it should be the Commission.
The dispute between the two institutions – the Commission and the Council – considered ‘who’ signed the Implementing Protocol to the EU-Gabon Fisheries Partnership Agreement in 2021.
In a 2021 Council Decision, it had authorised the Permanent Representative of an EU Member State (the Member State holding the Presidency of the Council, which rotates), in this case Portugal, to sign the treaty with Gabon.
The Commission was unhappy about this, and thus, took an action for annulment against the Council’s authorising Decision.
In her Opinion delivered last week, Advocate General Kokott distinguished between the Council’s power to ‘authorise’ the conclusion of an international agreeement by the EU, and the Council’s power to ‘conclude’ an international agreement of the EU. She states that power to authorise does not mean it means the Council can then decide who concludes. For her, given that Article 218 TFEU does not presuppose who is to conclude/sign such an international agreement, that power therefore rests with the Commission, who is otherwise charged with the unity of the EU’s external representation.
A provisional victory for the European Commission to ensure that the Council of the European Union does not infringe on it’s powers in the external sphere.
The Opinion of Advocate General Kokott in Case C-551/21, Commission v Council (Gabon), which was delivered on Thursday 13 July 2023, can be read at the following link: https://lnkd.in/eFCew2RS
The case is also significant given the granted intervention right of the High Representative, separate from the Commission and the European External Action Service.
The judgment of the Grand Chamber should be delivered this Autumn.
Graham Butler