Who Gets to Sign EU International Agreements?

The importance of visibility in international politics cannot be overstated, including in technical realms such as the implementation of the fisheries partnership agreement (FPA) between the European Union and Gabon. This was vividly illustrated in a recent dispute between the Council and the Commission over the authority to sign international agreements on behalf of the EU, culminating in a definitive judgment by the Court of Justice on 9 April 2024 in the EU-Gabon Fisheries Protocol case. The Court established that the power to sign such agreements, or to appoint someone to do so, is vested exclusively in the European Commission, overturning a decades-long practice where the Council had assumed this role.

The dispute in Case C-551/21 centered on a protocol intended to operationalize the EU-Gabon FPA by defining the conditions under which EU vessels may fish in Gabonese waters. The European Commission had negotiated the protocol on behalf of the EU. When the time came to sign the finalized agreement, the Commission proposed to the Council that it should designate the signatory. However, the Council modified this proposal, empowering the rotating Council Presidency to appoint the signatory, who then selected Portugal’s EU representative for the task.

The judgment

The Commission challenged the Council's decision, initiating an annulment action before the Court of Justice. It argued that by allowing the Presidency to designate the signatory, the Council had encroached upon the Commission's prerogative of external representation as set forth in Article 17(1) TEU. This article endows the Commission with the duty to ensure the EU's external representation, excluding common foreign and security policy and other specified instances in the Treaties. Since Article 218(5) TFEU, concerning the signing of international agreements, does not exempt this scenario, and because signing an international agreement is recognized as an act of ‘representation’ under customary international law, the Commission sought the annulment of the Council's decision.

The Court aligned with the Commission, confirming that the authority to sign international agreements is an integral part of the Commission’s exclusive powers of external representation. This affirmation was bolstered by the recognition of customary international law, as evidenced in the Vienna Convention on the Law of Treaties, which considers the signing of an international agreement an act of ‘representation’, thereby supporting the Commission's stance.

 First assessment: building an institutional balance

This judgment did not come as a surprise, considering the Court's prior decisions that delineate the boundaries of the Commission's powers while safeguarding the Council's rights within the treaty-making framework.

In Case C-161/20 (IMO II), the Court had rejected the Commission’s altogether too ambitious claim that it holds an exclusive power to submit proposals to all international organizations, including those in which the EU does not have any status. However, in passing, the Court did refer to the Commission’s powers of external representation as ‘exclusive’ in nature, a choice of language that suggests the Court is willing to protect what it understands to be the Commission’s prerogatives in this area.

Such willingness was visible in Case C-425/13, where the Court had invalidated negotiating directives the Council had adopted and which contained binding instructions on the Commission. Issuing such binding instructions fell outside of the scope of the Council’s powers under Article 218(4) TFEU to issue negotiating directives to the Commission.

In a similar spirit, in Case C-24/20 (Geneva Act) the Court held that by authorizing not only the EU but also the Member States to accede to an international agreement on the protection of appellations of origin and geographical indications, the Council had distorted the initial Commission proposal. Here we saw the Court protecting the Commission’s power, as EU negotiator, to propose the conclusion of an international agreement under Article 218(6) TFEU.

In the present case, too, the Court strengthens the position of the Commission within the procedural framework laid down by Article 218 TFEU. However, this strengthening should be seen in conjunction with the Court’s earlier decision in Case C-660/13 (Swiss MoU), where it held that the decision to proceed to signing a non-binding agreement should always be taken by the Council. Such a decision constitutes an act of policy-making, which Article 16 TEU allocates to the Council, not the Commission. The Swiss MoU and IMO II cases make clear that the Court is concerned not only with protecting the prerogatives of the Commission, but also those of the Council in the treaty-making process.

Conclusion

The overall picture that emerges is one of a Court that aims to give full effect to all of the powers allocated to the different institutions by Article 218 TFEU and, where that provision is silent, the more general institutional provisions in Title III of the Treaty on European Union. In this picture, the Commission operates as the ‘sole voice’ vis-à-vis the outside world (see Case C-425/13 and the present case), and the Council operates as the institution that takes all the relevant decisions in the lifecycle of an international agreement (see Swiss MoU), albeit always within the contours of the Commission’s proposals (see Geneva Act). We have here the contours of an ‘institutional balance’ between the institutions in the process of negotiating and concluding international agreements.