8. opinions

Question 1

legal basis

Answer 1

Article 218 (11) TFEU

Question 2

purpose of the procedure

Answer 2

= Procedure for prior examination of compatibility with Union law of an international agreement envisaged by the Union.
–> also an examination of legality, of validity, consistency with a higher ranking rule of Union Law.

Question 3

Is it possible to obtain opinion of the court on the compatibility of the treaty, regulation or directive envisaged by the Union?

Answer 3

It is not possible to obtain opinion of the court on the compatibility of the treaty, regulation or directive envisaged by the Union - only international agreements.

Question 4

what does “envisaged” mean in Art. 218(11) TFEU?

Answer 4

Procedure for prior examination - envisaged: not yet adopted

• -> this is an ex ante function and it does not mean that later on after the opinion - Court of Justice does not conduct judicial opinions ex post.
• -> also an examination of legality, of validity, consistency with a higher ranking rule of Union Law.

Question 5

Exception in obtaining an opinion of the Court on the compatibility of the international agreement

Answer 5

Art. 218 (6) The Council shall adopt a decision concluding the agreement except where agreements relate exclusively to the common foreign security policy

Question 6

Who can bring an action before the Court?

Answer 6

There is a limited number of possible applicants:

• The European Parliament (since the Nice Treaty)
• The Council of the European Union
• The European Commission
• The Member States

Question 7

Are the applicants obliged to obtain an opinion of the Court on international agreement?

Answer 7

No - Bringing an action is optional, no one has an obligation to do that. However, e.g. Mercosur is an important agreement also to ECHR, so there is political importance

Question 8

Is it possible for the Council to conclude an agreement although the opinion is pending in the Court?

Answer 8

Yes, because the action does not have any suspending effect.

e.g. C-317/04 EP v. Council

Question 9

specific elements of the procedure

Answer 9

• The documents instituting the proceedings are served to the other potential applicants
• All these applicants may submit written observations
• Hearings may be held
• The opinion is delivered in open Court (200 RPC), the Advocate General having been heard (199 RPC).

Question 10

effect of the opinion

Answer 10

If the opinion of the Court is positive - it is compatible with the Treaty - the agreement can be concluded. However, no duty imposed to enter into the agreement.

If there is an adverse opinion, the agreement may not be entered (Art 218 para 11). The envisaged agreement may not enter into force ‘unless it is amended or the Treaties are revised’
–> there is a legal binding effect of the opinion

Question 11

the competent court?

Answer 11

Court of Justice (Art. 218 para 11)