Member States are expected to take all appropriate measures, whether general or particular, to ensure the fulfilment of obligations arising out of the EC Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community’s tasks and, they shall abstain from any measure which would jeopardise the attainment of the objectives of this Treaty.334 While the
Court has consistently refrained from mentioning it in relation to the duty of cooperation, it may be argued that this principle of loyalty is nonetheless intrinsic to the latter, as supported by the doctrine (3.1.1.1), and confirmed by legal arguments (3.1.1.2).
3.1.1.1. A connection acknowledged by the doctrine
The proposition that the duty of cooperation is derived from the general principle of loyal cooperation has been supported by the legal doctrine on various occasions. It has been suggested that the duty of cooperation is a specific application of the principle of loyal cooperation, or at least that there is a connection between the two.335 For
instance, Marise Cremona considers that the loyalty obligation enshrined in Article 10 EC “has evolved in the context of external policy” into “a duty of close cooperation” arising whenever external competence is shared between the Community and its Member States. Similarly, McLeod et al consider that the duty of close cooperation may be traced back to the Treaties themselves, and in particular to the duty of loyal cooperation derived by the Court from inter alia, Articles 192 EAEC and Article 10
334 Further on Art. 10 EC and the duty of loyal cooperation, see e.g. Mortelmans (1998), Temple Lang (1990), Constantinesco (1987: 97) and Blanquet (1994 : 417-426).
EC.336 Joni Heliskoski also finds the origins of the duty of cooperation in the Treaties
in general, and in Article 10 EC and Article 3 TEU, in particular,337 and Rachel Frid
even considers that “the [duty of cooperation] can be legally based on Article [10] EC, and complementary on Article [3] Union Treaty”.338
Elaborating on this connection, Christiaan Timmermans suggests that the duty (of Member States) to cooperate is “more specific” than the general principle of loyalty or bundestreue, under Article 10 EC. It is more specific in that it is directly linked by the Court to the “requirement of unity in the international representation of the Community”.339 In addition, he points out that the duty of cooperation is a Community law obligation which also governs the co-ordination of national competences. As a consequence, the infringement procedure of Article 226 EC should be available where Member States breach their duty of cooperation, for instance by breaking Community solidarity and acting single-handedly in the negotiation or conclusion stage.340
Recently, Piet Eeckhout related the duty of cooperation to the principle of loyal cooperation, suggesting that the principle of loyalty and the requirement of unity in the international representation of the Community can be seen as the twin foundations of this duty.341
336 They also refer, in this context, to the Court’s emphasis on the need for Community solidarity in asserting the Community’s exclusive competence; on this last point they refer to the Court’s Opinion 1/75 OECD Local Costs Standard, and Opinion 1/76 Draft Agreement on a laying up fund for the Rhine. See McLeod et al (1996: 145).
337 Heliskoski (2001: 64). 338 Frid (1995: 149).
339 Timmermans (2000: 241). On this link, see also Koutrakos (2002: 49), who writes that the principle of cooperation was articulated by the Court to ensure that mixity would not undermine the unity in the international representation of the Community.
340 He also relates the duty of cooperation to old Article 116 EEC, which was repealed by the Treaty of Maastricht. This Article provided that from the end of the transitional period onwards, Member States were, in respect of all matters of particular interest to the common market, to proceed within the framework of international organisations of an economic character only by common action. Consider also the Editorial Comments of the Common Market Law Review (1995). Takis Tridimas (2000: 59) considers that the duty of cooperation however goes further than old Article 116 EEC. The duty of cooperation seeks to exploit the collective bargaining power of the Community and the Member States in international relations in general. See also P.L.H. Van den Bossche (1997: 62) and the views of Heliskoski (1998: 276-77) and Leal-Arcas (2001).
3.1.1.2. A connection implied by the case law
More specifically, it may be argued that the duty of cooperation is derived from the principle of loyal cooperation. Indeed, the Court’s initial formulation of the duty of cooperation, in Ruling 1/78, included a direct reference to the principle of loyal cooperation.342 In Opinion 2/91, the Court imported this very duty in the context of the
EEC Treaty although, arguably, without changing its nature and ultimate legal foundation.
The terms of the Opinion suggest that it is the same duty that applies. In particular, the Court explicitly says: “[t]his duty of cooperation, to which attention was drawn in the context of the EAEC, must also apply in the context of the EEC Treaty since it results from the requirement of unity in the international representation of the Community”.343 The expression “to which attention was drawn in the context of the
EAEC” suggests that the duty of cooperation is not specific to the EAEC context; rather, “attention was drawn” in Ruling 1/78 to a general principle that transcends the boundaries of the different Community Treaties, and which belongs to the Community legal order as a whole.344
It is indeed in this perspective that the other expression “since it results from the requirement of unity in the international representation of the Community” may be understood. The latter expression is, arguably, first and foremost a justification of the fact that the duty of cooperation must also apply in the context of the EEC Treaty. The term “unity” in “requirement of unity in the international representation of the
Community” (emphasis added) appears to refer to the single international representation of the Community legal order, which involves a single set of foundations and principles, and a single set of fundamental duties for both Member
341 The author adds that, by insisting on unity, loyalty and cooperation the Court expresses a particular conception of mixed external action where competences are truly shared or joint, necessitating a common approach maintaining unity (Eeckhout, 2004: 215).
342 The general principle of loyal cooperation is articulated in Article 192 in the context of the EAEC Treaty.
343 Para. 36, Opinion 2/91. 344 Dashwood (2004b: 377).
States and Communities, despite the existence of distinct treaties establishing the Communities.345 In that sense, it is only at a later stage that the expression
“requirement of unity in the international representation of the Community” has been extracted from this initial context. It has been progressively associated with, and used as a justification for the duty of cooperation as such. It is in this perspective that it has henceforth been understood and applied, as a mechanism to administer “joint competence”. The duty of cooperation is however a principle of the Community legal order which remains ultimately based on the principle of loyal cooperation, either explicitly in the context of the EAEC, or implicitly in the context of the EC.
If, as it is asserted, the duty of cooperation derives in effect from the constitutional principle of loyal cooperation, its application should consequently be envisaged in the light of the latter. In particular, the duty of cooperation involves, in the specific context of mixed agreements, the negative and positive obligations imposed on Member States and institutions that derive from the principle of loyal cooperation.346
It means that Member States and Community institutions shall both facilitate the achievement of the Community’s external tasks, as well as abstain from any measure which would jeopardise the attainment of the objectives of Community’s external relations as derived from the EC Treaty.347 Both the general principle of loyal
cooperation and the duty of cooperation are expressions of Community solidarity,
345 In this regard, see Opinion 1/91 Draft Treaty on a European Economic Area, where the Court refers to the Community Treaties that established a new legal order for the benefit of which the Member States have limited their sovereign rights. Further: Schermers (1992) and Burrows (1992). Another authority to support this proposition is: C-221/88 European Coal and Steel Community v Faillite Acciaierie e ferriere Busseni SpA, where the Court insists on the cohesion and coherence of the Community Treaties, see paras 10-17.
346 Temple Lang (1990), Mortelmans (1998) and Wessel (1997: 120-121), citing O. Due, “Artikel 5 van het EEG-Verdag. Een bepaling met een federal karakter” (1992) SEW 82.
347 As summarised by Wessel (1997: 120), it includes more specifically: the obligation to take all appropriate measures necessary for the effective application of Community law; the obligation to ensure the protection of rights resulting from primary and secondary Community law; the obligation to act in such a way as to achieve the objectives of the Treaty, in particular when Community actions fail to appear; the obligation not to take measures which could harm the effet utile of Community law; the obligation not to take measures which could hamper the internal functioning of the institutions; and the obligation not to undertake actions which could hamper the development of the integration process of the Community.
which, as the Court has already suggested, is the basis of the whole Community system.348
The duty of cooperation, as a specific application of the principle of loyal cooperation therefore represents, as indeed suggested by various authors,349 a key legal principle
that governs and organises the interactions between the Community and the Member States externally, in the particular context of mixed agreements. The various implications of the general principle of loyal cooperation have to be kept in mind in establishing the nature of the duty of cooperation and in envisaging its application, particularly its potential enforcement.350
With respect to the nature of the duty of cooperation, a key question is whether it constitutes a political principle or a legal obligation. The answer to this question will shed further light on the rules governing the interactions between the Community and Member States in the context of the PCAs. Two judgments of the Court of Justice, in the FAO case (3.1.2) and in the Dior case (3.1.3), reveal that the duty of cooperation has indeed a legal nature. These cases concern the duty of cooperation in the context of two mixed agreements involving the Community’s participation in international organisations. The Court’s pronouncements are valid also to decrypt the duty of cooperation in the context of bilateral mixed agreements, such as the PCAs.