The Duty to Remain Silent: Limitless Loyalty in EU External Relations?
European Law Review, Issue 4, 2011, 524 -541
Posted: 14 Jun 2012
Date Written: September 13, 2011
Abstract
This article expresses a note of caution regarding the general enthusiasm surrounding the duty of sincere co-operation in the external relations of the European Union. It argues that according to the recent case law of the European Court of Justice, the duty is in practice not only first and foremost incumbent upon the Member States, but manifests itself as a strict duty to refrain from acting — a duty to remain silent — rather than a duty of best endeavors. Tracing the Court’s key judgments in this regard (Inland Waterways, IMO and PFOS), the authors conclude that in the presence of Union competence, but in the absence of a (quasi)-authorisation by the Union institutions to act, the Member States are to remain idle. While arguably necessary to safeguard the Union’s unity of international representation, this development is prone to legally favour inaction and hinder the Union’s ambitions for actual “external action”.
Keywords: Common foreign and security policy, Competence, EU institutions, EU law, External relations, International law, Member States, Silence, Sincere co-operation
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