European Commission v. Council for the European Union

Australia approached the European Commission (the “Commission”) to negotiate linking the EU’s greenhouse gas emissions trading scheme with Australia’s emissions trading system. A formal recommendation authorizing the opening of negotiations with Australia was adopted by the Commission and forwarded to the Council for the EU (the “Council”). After Member States requested greater involvement in the negotiations with Australia, the Council approved negotiating directives which 1) required the Commission to “report in writing to the Council on the outcome of the negotiations after each negotiating session and, in any event, at least quarterly” and 2) laid out specific procedures for the negotiations, including allowing the Council or a special committee to establish detailed negotiating positions for the EU. The Commission brought an action to annul these sections of the negotiating directives on the basis that they exceeded the Council’s authority and encroached on the Commission’s power. The Advocate General issued an opinion finding that the Council is entitled to ask for regular reports on the negotiations process, but it may not unilaterally impose detailed procedures for the conduct of international negotiations. The Advocate General recommended that the Court annul the section of the negotiating directives requiring specific negotiating procedures. This separation of powers case arose from a decision of the EU Council relating to negotiations that the EU Commission would undertake with Australia regarding possible linkage of those jurisdictions’ emissions trading schemes. The Council’s May 2013 decision set out procedures for the negotiation, detailed negotiating positions, and designated the Council’s Working Party on the Environment to assist the Commission throughout the negotiation. The Commission challenged that decision on the grounds that it amounted to the Council assuming authority not granted by the controlling EU treaties, chiefly article 218(2)–(4) of the Treaty on the Functioning of the EU. The EU Parliament and a number of member governments intervened in the case—the Parliament in support of the Commission, most of the national governments in support of the Council. The Court, acknowledging that this was a case of first impression but also the latest in a series of disputes over the scope of authority available to EU bodies, substantially agreed with the Commission and ordered the annulment of several portions of the Council’s May 2013 decision, thereby giving the Commission a freer hand in conducting negotiations with Australia.