The Court of Justice in the archives project : analysis of the ERTA case (22/70)

Abstract

Scholars and practitioners interested in the genealogy of EU external relations law will hardly find a more precious source of inquiry than the revealing pages of the ERTA dossier de procédure originale. The value of the dossier’s material primarily derives from the significance of the ERTA case for the evolution of the EU legal order. The case constitutes a fundamental moment for the definition and the development of the EU external relations law. More precisely, it inaugurated a complex strand of case law dealing with the delicate interactions between EU law and international law in the exercise of the international powers of the EU and Member States. The case concerned the ascertainment of the Community external powers based on the interpretation of the Treaty framework and previously adopted internal rules. The judgment famously marked the inception of the Community’s implied powers doctrine and the principle of parallelism. The ERTA dossier offers a rich picture to engage in the fascinating discovery of how the submissions of the parties were assessed by the Court in its legal reasoning to strike an equilibrium between the stances of the Commission and the Council. Tellingly, ERTA was the first litigation that featured the Commission versus the Council. This dispute encapsulates the confrontation involving two different visions of Europe. On the one hand, the institutional vision, promoted by the Commission, and largely endorsed by the Court, stressed the autonomy and the distinctiveness of EU law and its institutional framework. On the other hand, the organic vision, defended by the Council, was premised on the assumption that the Community institutions could be considered as organs in the hands of the Member States. The ensuing compelling debate was characterised by various nuances within the standpoint of the very protagonists of this debate. The report highlights how the distinguished scholar and practictioner Pierre Pescatore, judge rapporteur in the ERTA case, embraced different perspectives on the issue of this debate depending on whether he was positioning himself in the scholarly debate or acting in an institutional capacity. The reflection undertaken in this report reveals that many of the issues addressed in ERTA continue to be subject to litigation today. This is especially the case of the relationship between Articles 228 and 263 TFEU and the role of the decisions of the Member States acting within the Council. The paper shows that notwithstanding the constitutional maturity of today’s EU legal framework, the initial oscillation by the Court between the institutional and organic visions of Europe present during the ERTA litigation still reverberates in the contemporary features of the EU legal order.