EU Treaty-making : a test case for mutual sincere cooperation?

Abstract

This contribution on mutual sincere cooperation between the institutions is offered in appreciation and friendship to Ricardo Gosalbo Bono who as a Director in the Council Legal Service epitomized the virtues of cooperation, respect and courtesy. The fact that many of the cases discussed here involve inter-institutional disputes is not intended as an invitation to think in terms of institutional winners or losers. Nor are such disagreements incompatible with the duty of mutual sincere cooperation. On the contrary, institutional disagreements can be valuable opportunities to debate and clarify their respective roles in the EU’s constitutional structure, and nowhere perhaps is this more apparent than in the field of external relations. Although the ‘mutual duty of sincere cooperation’ between institutions has been recognised for some time, its explicit inclusion in the Treaties in Article 13(2) TEU, together with some changes to the institutional participation in decision-making introduced by the Lisbon Treaty, has led to an increased reliance on the principle. It is increasingly referred to in inter-institutional litigation, and especially in cases concerning the exercise of external powers. The Court is starting to give some substance to the principle, as it has done over many years in dealing with Member State – EU relations. This seems a good moment, therefore, to consider the nature of the duty of mutual sincere cooperation as expressed in Article 13(2), and how it relates to other principles which govern the structure of EU external relations, such as the principles of conferral and institutional balance. The focus is mainly, though not exclusively, on treaty-making – in other words the operation of the principle of mutual sincere cooperation in the context of Article 218 TFEU.