ISEL Meeting, 10 October 2012: Recent Developments in EU External Relations Law and the Competition between the Council of Europe and the European Union in the Regulation of Broadcasting

This week’s ISEL Meeting (Institute for the Study of European Laws) was dedicated to the most recent developments in the European Union’s external relations and saw presentations on both the general aspects of this field of law (including the interinstitutional strife between the Union’s organs about questions of competence) and a very particular legal issue as well, namely the competition between the EU and the Council of Europe in regulation broadcasting across Europe.

First, Prof. Steve Peers (University of Essex) presented an overview of the most important changes in EU external relations law which were brought about by the entry into force of the Lisbon Treaty. Interestingly, these radical changes in the legal framework of EU external relations law have led to a significant increase in disputes between the Union institutions during the last three years, the bulk of them directed against the Council of the EU. This is mainly due to a shift in competences between the Union and the Member States. For instance, the Common Commercial Policy (excluding transport policy) is now covered by the Union’s exclusive competence, whereas this policy fell into the shared competence between EU and the Member States in the pre-Lisbon era.

In his analysis of the most recent cases, Prof. Peers highlighted the fact that the common factor of these disputes lay in the question of the correct legal basis for EU external relations legislation. A vivid example of such a dispute can be found in Case C‑656/11 R in which the United Kingdom requested the suspension of the operation of a Council Decision regarding the EC-Switzerland Agreement on the free movement of persons. The Council had based its decision on Art 48 TFEU, regulating social security; the United Kingdom, however, was of the opinion that this case also involved immigration and that a different legal basis would have been necessary to enact this decision, namely Title V of Part Three of the Treaty on the Functioning of the European Union. This legal basis would have allowed the United Kingdom to opt out from any decision regarding the area of freedom, security and justice (see Protocol No. 21).

Beyond that, Prof. Peers also presented topical disputes between the European Parliament and the Council on the one hand and between the Commission and the Council on the other hand. Again, these cases also involved questions of the correct legal basis and the respective distribution of competences between the EU institutions. In Case C-658/11, the European Parliament argued that a Council Decision on the signing and conclusion of the Agreement between the European Union and the Republic of Mauritius on the conditions of transfer of suspected pirates was invalid, as it did not exclusively relate to the Common Foreign and Security Policy, but also to, inter alia, development cooperation, which would entail the obligatory involvement of the Parliament in concluding this agreement in accordance with Article 218(6)(a)(v) TFEU.

Prof. Peers concluded that the sheer amount of bilateral agreements concluded by the Union with third countries would lead to more disputes between the institutions in the future, and that legal questions relating to the division of competences in the field of EU external relations law will remain an interesting topic.

In the second presentation, Dr. Daithi Mac Sithigh (University of Edinburgh) examined a recent dispute between the European Union and Council of Europe on the roles of each with respect to the regulation of broadcasting. As a consequence of this dispute, a proposed revision of the Council’s principal instrument on broadcasting, the European Convention on Transfrontier Television has not been adopted. The European Commission itself proposed a revision of EU broadcasting law, which was adopted in 2007 the Audiovisual Media Services Directive. This fact prompted the Council to put forward its own proposals, as the Convention and Directive have operated in parallel since 1989.

Dr Mac Sithigh explained that the parallel operation of the Convention and Directive has led to the question which European institution – either the Council of Europe or the European Union – should have the right to regulate transfrontier broadcasting. As a result of his research, Dr Mac Sithigh presented various documents which showed the nature of the dispute between the Commission and the Council of Europe very descriptively: in a letter to the Secretary-General of the Council of Europe, the Commission wrote that the Member States ‘may not conclude alone international agreements which cover matters falling under Community competence’. Furthermore, although stating that there are conflicts between the Convention and EU law, the Commission argues that even if there were no conflicts, member states could not ratify the Convention ‘on their own’.

Most importantly, the Commission argues that states cannot ratify the amended Convention without the agreement of the EU and adds that it has no intention of offering such agreement. Such agreement would restrict EU flexibility regarding future changes; the ‘added value’ of the Convention is limited, as almost all signatories are subject to the Directive whether through EU membership or other legal agreements.

In his conclusion, Dr. Mac Sithigh offered some solutions to this legal conflict. Inter alia, the Council of Europe could address other areas of media law and policy than the EU, for example the emerging area of internet governance or media pluralism. Moreover, it could also use Art 10 of the European Convention on Human Rights and thus the right to freedom of expression to consolidate its work on cultural policy, since a complete absence of the Council from this very field would be regrettable.
Paul Gragl, 12 October 2012

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