Analysis: “Opinion 1/19, the practice of ‘common accord’, and incomplete mixity: paving a way for concluding the Istanbul Convention?” by Gesa Kübek
The Commission’s proposal for a decision on the conclusion of the Istanbul Convention by the European Union has been stuck in the Council since 2016, with some Member States rejecting (the EU’s accession to) the Convention. On 6 October 2021, with its decision in Opinion 1/19, the Court of Justice paved a way for the EU to conclude the Istanbul Convention in the absence of a ‘common accord’ of the Member States. At the same time, it left the decision to embark on that way largely at the discretion of the Member States in the Council.
Opinion 1/19 covered several issues of particular relevance for the law of EU external relations, and a comprehensive Op-Ed on it by Merijn Chamon will soon be published on EU Law Live. This brief Analysis will focus on one central aspect of the Opinion: the Court’s conclusions on the practice of ‘common accord’ and what these conclusions imply for the (non-) ratification of the Istanbul Convention.
The practice of common accord and the Court’s conclusions
The practice of ‘common accord’ originated in Article 133(6) EC Treaty, which stipulated that the negotiations of certain trade agreements required the common accord of Member States, and that they were to be concluded jointly by the (then) EC and the Member States. While Article 133(6) EC is long overhauled, the practice of ‘common accord’ lives on. Prior to adopting a decision concluding a mixed agreement, the Council usually waits for the consent of all Member States, even if the Treaties stipulate that the conclusion decision can be taken by a qualified majority.
In Opinion 1/19, the Court declared that the Treaties prohibit the Council from making the decision concluding the Istanbul Convention contingent on the prior establishment of a ‘common accord’ of the Member States (paragraph 245). If the Member States’ ‘common accord’ were to be required prior to initiating the conclusion procedure laid down in Article 218(2), (6) and (8) TFEU, an additional procedural step would be added that is not foreseen in the Treaties. Unsurprisingly, in light of its prior case law, the Court found such a hybrid decision-making process incompatible with the Treaties. The EU’s decision to conclude a mixed agreement cannot depend entirely ‘on the Member States sovereign choices’ (paragraph 247).
Incomplete mixity as a way forward?
In paragraph 260 of the Opinion, the Court of Justice highlighted that the EU may conclude a mixed agreement with only some but not all of the Member States (‘incomplete mixity’). The EU could therefore conclude the Istanbul Convention even if some Member States were to choose not to ratify the Convention in their own right – provided that a conclusion decision would be supported by a qualified majority of Member States in the Council and the European Parliament (Article 218(6), (8) TFEU). The rejecting Member States would be bound by the Convention to the extent that it falls within EU exclusive competence (and within shared competence the Council decided to exercise but this would presumably not be the case for the Istanbul Convention) (paragraph 259).
The Court of Justice brushed aside the objection raised by the Council that EU might incur international liability if it concludes only the part of the Istanbul Convention that falls within its exclusive competence. In the Court’s view, the Council of Europe is ‘aware of the limited nature of the European Union’s competence’ (paragraph 261) and ‘it appears’ that the Council and the Parliament can opt to submit a declaration of competence (paragraph 263). The Court did not further explain how the Council of Europe’s awareness of the EU’s limited powers would circumvent the prohibition to invoke internal law as a justification for non-compliance with an international treaty (Articles 27, 46 VCLT) or how the EU could adopt a declaration of competence for international agreements not permitting reservations and lacking a REIO-clause (see paragraphs 208-210 of AG Hogan’s Opinion, analysed here).
Ratification timelines and the Council’s discretion
Despite pinpointing incomplete mixity as a way for concluding the Istanbul Convention, the Court of Justice held that, insofar as the effectiveness of Article 218(2), (6), and (8) TFEU is guaranteed, nothing precludes the Council from extending its discussions to achieve the largest majority, ‘which may involve waiting for the ‘common accord’ of the Member States’ (paragraph 253). That statement relativises the Court’s prior conclusions with regard to the practice of ‘common accord’ (see above) and equipped the Council with broad discretion over the timelines of EU treaty ratification. Yet, in accordance with Article 218(8) TFEU, the Council’s discretion ‘is to be exercised, in principle, by a qualified majority’ (paragraph 255). The Court further underlined that any Member State or the Commission may request a vote in the Council on the conclusion of an international agreement (Article 11(1) of the Council’s rules of procedure). In other words: If a qualified majority of Member States in the Council supports the EU’s accession to the Istanbul Convention, those Member States, the Commission, and the European Parliament have the legal instruments to make it happen.
Gesa Kübek is Assistant Professor in European Law at the University of Groningen.