Firstly, we had better to recall the situations before Lisbon Treaty.
Article 4 of TEU of the version of Nice Treaty gave the Rotating Presidency of the Council the power to chair the European Council; article 18(1) of the same version of the Treaty codified that the Presidency (of the Council)shall represent the Union in matters coming within the common foreign and security policy; last but not the least, article 24 of that Treaty conferred on the Council the power to authorize its Presidency, although assisted by the Commission as appropriate, to open negotiations of the agreements with one or more States or international organizations in implementation of common foreign and security policy (CFSP). In general, the old story was that the Council, or more exactly its Presidency, was one of the key players of the Union at the international stage, while the Commission had played a technical role on specific issues.
At present, on behalf of the entering into force of Lisbon Treaty, the Council has been suffering of losing both the chairmanship of the European Council and representing the Union at any level. The creation of President of European
18 Joint study of CEPS, EGMONT and EPC, The Treaty of Lisbon: a second look at the
Council shows to the outside world that EU has a unified representative at the highest CFSP level from now on, and he/she is the permanent actor in international scene (Art. 15(6) TEU); the EU’s “foreign minister”, the High Representative of the Union for Foreign Affairs and Security Policy, shall represent the Union on CFSP matters to conduct dialogue and express position on EU’s behalf, which can be understood as a specific dealer on CFSP comparing with the President of European Council (Art. 27(2) TEU); the Commission shall ensure the Union’s external representation with the exception of CFSP in general, which is always the institution dealing with high political but specific questions on the Union’s part (Art. 17(1)TEU); the Union delegations, which are belongs to the system of European External Action Service (EEAS), shall represent the Union in third countries and at international organizations (Art. 221(1) TFEU).
As the consequence, there is no vacancy for the Council or its Presidency to represent EU externally in the primary law, which each actor concerning of the EU representation mentioned above has relatively clarified competence.
Therefore we can observe for instance that President Van Rompuy and Commission President Barroso were together as the EU’s representation in G20; and also it was them who were appearing at the official meeting with the head of China in February 2012 in Beijing. The former represents the foreign policy’s part and would shake hands firstly with heads of third countries, while the latter deals with the topics on trade and economic questions.
On the part of international agreement negotiation, the Council can never authorize its Rotating Presidency to undertake the task. Although the provisional expression is for the Council to nominate the Union negotiator or the head of the Union’s negotiating team, regularly the Council chooses from the Commission
and the High Representative to open the negotiation, due to the discretion of the Council on the sort of subject policy concerned. According to Art. 218(3) TFEU, the Commission would be nominated as the negotiator on the subject matters other than CFSP which is the competence of the High Representative’s.
In keeping with the previous versions of Treaty, Lisbon Treaty maintains the “special committee” composed of representatives from Member States in consultation when the negotiations are conducted (Art. 218(4) TFEU). The Commission or the High Representative shall consult this special committee constantly.
In practice, the content of the negotiation on the Union’s position is not far reaching out of the Recommendations handed over by the Commission or the High Representative before the negotiator’s nomination by the Council. During the negotiation, the special committee meets the negotiator quite regularly. Although, the special committee can not intervene in the conduct of the negotiation directly, or it cannot be understood as the double negotiator, the members of the committee often mediate and define a balance point among the Member States and also between the Member States and the third parties.19 Therefore, the general position of the Council would not be ignored in the negotiation though there is no normal role for the Council; otherwise the agreements envisaged cannot be approved by the Ministers at the first phase within the EU legislative procedure thereinafter.
There is another type of situation when the subject matters of the international agreements are within the policies of shared competence for the EU and its Member States.
The primary law does not confer the negotiating power upon the Member
19 Baroncini, L’Unione Europea e la procedura di conclusione degli accordi internationali dopo
il Trattato di Lisbona, Cuadernos de Derecho Transnacional (Marzo 2013), Vol. 5, Nº 1, pp. 5-37, p.9
States, nor can the Article 218 of TFEU be interpreted as binomial negotiators to the Commission or the High Representative and the representative of the Council (like the Rotating Presidency). Furthermore, the Commission should definitely not negotiate on the Union’s part as well as on the behalf of the Member States.
This problem came up during the negotiation of the Minamata Convention on Mercury. In May of 2010, the COREPER proposed to the Council to adopt a “hybrid act” to solve the question by authorize both the Commission and the Rotating Presidency in the negotiation concerning the policies of shared competence. The Commission was arguing the incompatibility with the Treaties. As a resolution and also a compromise, the Council adopted Decision 16632/10 addressed to the Commission: “to the extent that the subject matter of the agreement falls within the shared competence of the Union and of its Member States, the Commission and the Member States should cooperate closely during the negotiating process, with a view to aiming for unity in the international representation of the Union and its Member States”. (Council Decision 16632/10, article 1(3))
In this way, the sample might be set that the representatives of the Member States would stand at the back of the Commission following the duty of loyal cooperation to ensure the unity in the international representation of the Union.20 In practice, during the negotiations of the Anti-Counterfeiting Trade Agreement (ACTA), “the European Commission, which was responsible for conducting the negotiations, with the participation of the Presidency of the Council for matters under Member States' competence.”21
20
Baroncini, L’Unione Europea e la procedura di conclusione degli accordi internationali dopo il Trattato di Lisbona, Cuadernos de Derecho Transnacional (Marzo 2013), Vol. 5, Nº 1, pp. 5-37, p.13
21
The Council of European Union, Preliminary Draft Reply to Written Question E-001791/2012 put by Martin Ehrenhauser (NI), paragraph 2