Recent Case Law on External Competences of the European Union: How Member States Can Embrace Their Own Treaty

44 Pages Posted: 8 Feb 2018 Last revised: 22 Nov 2018

Date Written: 2017


The challenges facing Europe today cannot be addressed without putting into practice one of the main objectives pursued by Member States when concluding the Treaty of Lisbon: that the Union should be capable of acting as a strong and united player on the international scene, rather than as a more or less effective coordination platform for 28 international policies. Brexit and the new administration in Washington only reinforce this finding. In order to ensure that the Union can play this role, Member States must, however, accept that the Union effectively exercises the competences that have been attributed to it. Recent case law from the Court of Justice of the European Union regarding the scope and nature of the Union’s external competences confirm that the legal framework in force, without being complete, offers an adequate basis to that effect. This contribution offers a systematic analysis of the consequences that should be drawn from recent case law. Mostly, however, it seeks to identify possible avenues to allow legal disputes to be overcome, with a view to achieving the objectives that were pursued through the Treaty of Lisbon; in effect allowing Member States to embrace their own Treaty. Building on recent case law, and relying on the practice of the EU institutions that the author helped to shape as a Legal Advisor of the European Commission, he seeks to show that the conclusion of agreements by the Union alone (without ‘mixity’) neither leads to ‘uncontrolled power creep by Brussels’, nor to the disappearance of Member States from the international scene.

JEL Classification: K33

Suggested Citation

Erlbacher, Friedrich, Recent Case Law on External Competences of the European Union: How Member States Can Embrace Their Own Treaty (2017). T.M.C. Asser Institute for International & European Law, CLEER Paper Series 2017-02. Available at SSRN:

Friedrich Erlbacher (Contact Author)

European Commission Legal Service

rue Joseph II 99

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