The Illegality of the Use of Hybrid Acts in the Context of Mixed Agreements. Comments on CJEU Judgment of 24.04.2015 (Grand Chamber), Commission v. Council, C-28/12

Abstract

The case in C-28/12, Commission v Council, raises the question of the problematic adoption of Decision 2011/708/UE, adopted as a hybrid act both by the Council as well as by the representatives of the Governments of the Member states meeting within the Council on the signature and provisional application of the agreement on the adhesion of Norway and Iceland to the bilateral air transport agreement concluded between the EU and the US. The Commission challenged the Decision on the basis of the breach of the procedures laid down in Art. 218(2) to (5) TFEU, insofar as the voting rules within the Council had not been respected, along with the principles of institutional balance and loyal cooperation laid down in Art. 13(2) TEU. The Council rejected the claims made by the Commission and added that the adoption of a hybrid act responded to the materialisation of the duty of loyal cooperation in the field of mixed agreements. In its judgment of 24 April 2015, the Court sided with the Commission and condemned the use of hybrid acts. Furthermore, with this judgment, which must be placed in the context of the constant tensions between Commission and Parliament, on the one side, and Council and Member States, on the other side, on the conclusion of international agreements and international representation of the EU after Lisbon, the Court has been able to clarify the applicability of Art. 218 TFEU to mixed agreements.