European Papers (Oct 2016)
On Conferral, Institutional Balance and Non-binding International Agreements: The Swiss MoU Case
Abstract
(Series Information) European Papers - A Journal on Law and Integration, 2016 1(3), 1225-1233 | European Forum Insight of 10 October 2016 | (Table of Contents) I. Introduction. - II. The Advocate General's opinion. - III. The Grand Chamber's judgment. - IV. Assessment: accountability, not only towards the Member States, but also towards the citizens of Europe. | (Abstract) In its judgment in the Swiss MoU case, the Grand Chamber of the European Court of Justice (ECJ) annuls a European Commission decision on the signing of an addendum to a Memorandum of Understanding with Switzerland on the subject of Switzerland's financial contributions to ensure that country's continued access to the internal market after Croatia's accession in 2011. In doing so, the ECJ makes a meaningful contribution to clarifying the law on the issue of the division of powers between the EU institutions with regards to the conclusion of non-binding agreements by the European Union - an issue on which the EU Treaties are silent. Unfortunately, the picture to which Swiss MoU adds a few brush strokes is one in which the power to conclude non-binding agreements is divided only between the Commission and the Council. The European Parliament, by contrast, remains invisible. This Insight argues that a more comprehensive reading of the EU Treaty is called for; one which takes into account not only the policy-making powers of the Council and the power of external representation of the Commission, but also the power of the European Parliament to exercise political control and legislative functions. Only such a reading would do justice to the dual source of democratic legitimacy of the EU: the individual EU citizens as represented in the Parliament, and the EU citizens as represented by their governments in the Council.
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