|This is where both EU |
and Mildred's external
But first of all: what is 'the external competence of the EU'? Pursuant to Article 3(2) TFEU [which codifies the case law developed since the ERTA decision in 1971] it is the exclusive competence of the EU for the conclusion of an international agreement. Such competence may subsist in three cases, namely when: (a) the conclusion of the international agreement in question is provided for in a legislative act of the EU or (b) is necessary to enable the EU to exercise its internal competence [on which see Article 2(2) TFEU], or (c) in so far as its conclusion may affect common rules or alter their scope [this was the relevant option in this case].
And now: what was the background? As summarised by Advocate General ('AG') Sharpston in her Opinion in April last [on which see Jeremy's 1709 Blog post here], the case arose as a result of the dispute between the European Commission and the Council about the competence to negotiate a Convention of the Council of Europe [which, by the way, is not the same institution as the Council] on the neighbouring rights of broadcasting organisations.
On 19 December 2011 the Council and the Representatives of the Member States (meeting in the Council as representatives of their respective governments) had authorised the Commission to participate in the negotiations for this convention as regards matters falling within the competence of the EU, and had instructed the Presidency to negotiate on behalf of the Member States as regards matters falling within the latter's competence (the 'Decision').
|Broadcasting rights explained|
The AG agreed with the Commission and advised the CJEU to annul the Decision. And this is indeed what the Grand Chamber did today.
First, the CJEU recalled that, among the various cases of exclusive external competence of the EU, only the situation in which the conclusion of an international agreement "may affect common rules or alter their scope" was relevant here.
|Member States may have |
such persuasive negotiators,
but this is not enough for the CJEU