CYIL vol. 12 (2021)

Dimitris Liakopoulos CYIL 12 (2021) retain the power to act on an external level, they are obliged to exercise it in such a way as not to jeopardize the future exercise of a competence of the Union. This leads to the emergence of obligations of abstention and consultation for the Member States. Since the early 1980s the CJEU has identified in the principle of loyalty cooperation an autonomous source of obligations for the Member States, finding the source of “special duties of action and abstention in a situation in which the EC (…) has presented to the Council proposals which (…) represent the starting point for concerted Community action (…)” 89 . The CJEU has stated that, in matters of competing external competence, the launching of a concerted international action by the Union involves, “if not a duty of abstention on the part of the Member States, at least an obligation of close cooperation between the latter and the institutions” 90 , to guarantee unity and coherence of the Union’s external action. Applying this principle to the present case, the CJEU considered that Luxembourg and Germany, by concluding and ratifying bilateral agreements without coordinating its action with the EC, although the Council had authorized the latter to negotiate an agreement on behalf of the Community, had violated the duty of loyalty cooperation 91 . This argumentative line was taken up in the so-called PFOS case 92 , relating to unilateral action by a Member State in the context of a mixed agreement 93 . In the present case, the EC had challenged Sweden that it had unilaterally proposed the inclusion of a certain chemical compound in Annex A of the Stockholm Convention on Persistent Organic Pollutants of 22 May 2001 94 which was concluded in mixed form by the Union and the Member States. According to the EC, although at the time of submission of the Swedish proposal the Council had not taken any formal decision on a proposal for inclusion of substances in the annex, a common Union strategy in this area already existed at the time. Following an attentive examination of the Council’s work, the CJEU shared this reconstruction, providing important clarifications on the emergence of the obligation to abstain from the Member States. Despite the absence of a formal decision by the Council, the CJEU has indeed considered the existence of a “common strategy” 95 , the realization of which could have been compromised by the unilateral action of the States if the subjection to an abstention obligation. 89 CJEU, C-804/79, European Commission v. United Kingdom of 5 May 1981, ECLI:EU:C:1981:93, I-01045, par. 28. MORANO-FOADI, S. NELLER, J. Fairhurst‘s law of the European Union , ed. Pearson, London, 2018. 90 CJEU, C-266/03, European Commission v. Luxembourg of 2 June 2005, ECLI:EU:C:2005:341, I-04805, par. 60ss. CJEU, C-433/03, European Commission v. Germany of 14 July 2005, ECLI:EU:C:2005:462, I-06985, par. 66. VAN VOOREN, B., WESSEL, R.W. European Union external relations law: Text, cases and materials , Cambridge University Press, Cambridge, 2014, pp. 192ss. 91 CJEU, C-266/03, European Commission v. Luxembourg , op. cit., par. 61 and C-433/03, European Commission v. Germany , op. cit., par. 69. 92 CJEU, C-246/07, European Commission v. Sweden of 20 April 2010, ECLI:EU:C:2010:203, I-03317. DE BAERE, G. O, where is faith? O where is loyalty? Some thoughts and the Union’s external co-operation competences in the light of the PFOs case, in European Law Review , 36, 2011, pp. 406ss. 93 CJEU, C-246/07, European Commission v. Sweden, op. cit., CREMONA, M. Case C-246/07, Commission v. Sweden (PFOS), Judgment of the Court of Justice (Grand Chamber) of 20 April 2010, in Common Market Law Review , 48 (5), 2010, pp. 1639 ss. VAN ELSUWEGE, P. Commission v. Sweden . Case C-246/07, in American Journal of International Law , 105 (2), 2011, pp. 308ss. KADDOUS, C. The European Union in internatonal organisations and global governance. Recent developments , Hart Publishing, Oxford & Oregon, Portland, 2015. 94 Entry in force on May 2004. H. HUNG, Ten years of global monitoring under the Stockholm Convention on Persistent Organic Pollutants (POPs): Trends, sources and transport modelling, in Environment Pollution , 2016, pp. 218ss. 95 CJEU, C-246/07, European Commisson v. Sweden , op. cit., parr. 76ss.


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