Managing EU cooperation agreements, council discretion and legal basis : European Commission v Council of the European Union (C-180/20)

Abstract

This comment discusses case Commission v Council (CEPA) (C-180/20) in which the Commission successfully challenged the legality of two Council decisions, adopted on the procedural legal basis of art.218(9) TFEU, establishing a position to be adopted by the EU within the Partnership Council set up by the Comprehensive and Enhanced Partnership Agreement (CEPA) between the EU and Armenia. The judgment builds upon the Court’s previous case law on the legal basis for the Common Foreign and Security Policy (CFSP) component of co-operation agreements and consolidates its approach to the place of the CFSP within the EU Treaty architecture. It also, more indirectly, prompts reflection on the power of the Council to decide the form and structure of EU external action, the interaction between the Council’s policy-making prerogative and the procedural constraints under which it acts, and the procedural framework for the operation of mixed agreements.