SECTION II. S ECTION II. Institutional fragmentation in EU public health
II. Heterogeneous participation of the European Union in international organisations and agreements organisations and agreements
The institutional fragmentation surrounding EU public health extends to the external dimension of this policy due to the diverse roles that the European Union plays in health-related international organisations and agreements. Such roles rest on two different factors:317 on the one hand, non-State actors can be represented in international organisations or can conclude international agreements only if the constitution of the organisation or the terms of the agreement so permit;318 on the other hand, the policy field covered by the organisation or the agreement has to fall within the competence of the Union.319 Differences in the constitutions of health-related international organisations and in international agreements, as well as the use of different legal bases by the European Union to participate in them, create a heterogeneous environment and contribute to fragmentation.The EU status in international organisations varies from an observer to a full member with a wide range of positions in between (A). The Union is also subject to different degrees of participation in the negotiation and conclusion of international agreements (B).
A. Participation in international organisations
Most international organisations accept full members, participants, observers, and attendants, with different levels of involvement in the activities of the body. All these categories form the ‘membership statuses’ that a State or a non-State actor can hold in an international organisation.320 As a full member, the EU is mainly considered a member of the international
317 Christine KADDOUS, ‘The European Union in International Organisations’, op. cit., pp. 7-13; Bart VAN VOOREN and Ramses A. WESSEL, EU External Relations Law, op. cit., pp. 247-248.
318 Nigel D. WHITE, The Law of International Organisations (Manchester, Manchester University Press, 2nd edition, 2005), p. 115; Christine KADDOUS, ‘The European Union in International Organisations’, op. cit., p. 9.
319 Opinion of the Court of 26 April 1977 in Opinion 1/76 Draft Agreement establishing a European laying-up fund for inland waterway vessels, EU:C:1977:63; Piet EECKHOUT, EU External Relations Law (Oxford, Oxford University Press, 2011), pp. 222-223.
320 Christine KADDOUS, ‘The European Union in International Organisations’, op. cit., p. 10; Peter DEBAERE, Ferdi DE VILLE, Jan ORBIE, Bregt SAENEN and Joren VERSCHAEVE, ‘Membership. The Evolution of EU Membership in Major International Organisations’ in Amandine ORSINI (ed), The European Union with(in) International Organisations: Commitment, Consistency and Effects Across time (Surrey, Ashgate Publishing, 2014), pp. 36-37.
68 organisation just as any Member State, although some differences might remain. (1).321 As an observer, the EU has access to meetings, speaks, obtains official documentation or makes proposals or amendments during negotiations, but has no right to vote (2). The influence of the Union at the global level will vary in accordance with its status in international organisations.
1. The European Union as a full member in international organisations and its implications
The European Union has become a full member to a variety of organisations dealing with public health concerns (a). This status is however subject to practical difficulties regarding the division of competences between the EU and its Member States (b).
a. The European Union as a full member: the examples of the FAO, the Codex Alimentarius Commission and the WTO
Several international organisations are relevant in public health but only some of them have accepted the European Union as a full member. Although public health aspects can be found in the activity of barely any international organisation, three of them are of particular relevance.
The UN’s Food and Agriculture Office (FAO) aims at raising the levels of nutrition and improving the lives of rural populations. Both are goals with a straightforward impact on public health (i). The Codex Alimentarius Commission was established by the WHO and the FAO in 1963 and develops harmonised standards for internationally traded food. This organisation aims at enhancing food safety and thus protecting public health (ii). The World Trade Organization (WTO) deals with trade between nations and includes exceptions to free trade for public health reasons (iii).322
i. Food and Agriculture Organization
The FAO may admit, by a two-thirds majority of the votes cast, a regional economic integration organisation as a member.323 This provision was introduced in 1991 and allowed the European Union to become a full member to this international organisation.324 The Council adopted, in November 1991, the Decision on the accession of the European Union to the
321 Ramses A. WESSEL, ‘The Legal Framework for the Participation of the European Union in International Institutions’ (2011) 33(6) European Integration 621, p. 629.
322 See Article XX (b) General Agreement on Tariffs and Trade 1994, Marrakesh, 15 April 1994, 1867 UNTS 190 (GATT 1994); see also Article 2 (2) Agreement on Technical Barriers to Trade, Marrakesh, 15 April 1994, 1868 UNTS 120 (TBT Agreement).
323 Article II (3) Constitution of the United Nations Food and Agriculture Organization, Québec, 16 October 1945, Treaties and Other International Acts Series 1554.
324 From 1962 to 1991, the relationship between both parties was governed by an exchange of letters; see Échange de lettres entre le président de la Commission d’Euratom et le directeur général de la FAO, OJ 43 of 7 June 1962, p. 1356.
69 FAO.325 This decision was based on Articles 43, 113 and 235 EEC (now, Articles 43, 207 and 352 TFEU). Accordingly, the EU accession to the FAO was based on the Common Agricultural Policy and the Common Commercial Policy, and not on public health. This decision is coherent with the analysis developed above on the use of alternative legal bases.
The terms of Article II (3) of the FAO Constitution are so rigid that they will not allow any other non-State actor to reach the full-member status.326 Paragraph 4 of Article II (3) of the FAO Constitution requires a number of strict conditions: the regional economic integration organisation must be constituted by sovereign States; a majority of those States must be Member Nations of the FAO; the Member States must have transferred competence over a range of matters to the regional economic integration organisation within the purview of the organisation; and one of the transferred competences must be the authority to make decisions binding on its Member States in respect of those matters. It is a tailor-made provision to admit the European Union as a member of the FAO.
Although the European Union is a full member of the FAO, its participation is not as broad as that of States. It is excluded from the organisational and budgetary affairs and it is not eligible to bodies with restricted membership, including the Constitutional, Legal, Financial and Planning Committees.
ii. Codex Alimentarius Commission
A related example of full membership concerns the Codex Alimentarius Commission. The European Union became a full member to the Codex Alimentarius Commission in 2003.327 The Council decision was based on Articles 37, 95, 133 and 152 (4) EC (now, Articles 43, 114, 207 and 168 TFEU). Public health was therefore mentioned although other legal bases allowed for a stronger Union competence.
The Rules of Procedure of the Codex Alimentarius Commission were amended to allow EU accession. Membership of this organisation currently comprises ‘regional economic integration organizations members of either FAO or WHO that notify the Director-General of FAO or
325 Council Decision of 25 November 1991 on the accession of the European Community to the FAO, OJ C 326 of 16 December 1991, p. 238; see European Commission, Proposal for a Council Decision on the accession of the European Community to the FAO at the 26th session of the FAO Conference, 18 October 1991, COM(91) 387 final.
326 Peter DEBAERE, Ferdi DE VILLE, Jan ORBIE, Bregt SAENEN and Joren VERSCHAEVE, ‘Membership’, op. cit., p.
41.
327 Decision 2003/822/EC; Peter DEBAERE, Ferdi DE VILLE, Jan ORBIE, Bregt SAENEN and Joren VERSCHAEVE,
‘Membership’, op. cit., pp. 48-49.
70 WHO of their desire to be considered Members of the Commission’.328 This provision also limits the admission of regional economic integration organisations as full members of the Codex Alimentarius Commission to the European Union. Indeed, the FAO Constitution restricts full membership of regional organisations to the EU, as above mentioned, and the WHO Constitution restricts membership to States, as we shall see in the following paragraphs.
iii. World Trade Organization
Membership at the WTO is considered very diverse, as ‘it includes States but also separate customs territories; it includes all developed countries but also most developing countries; it includes the European Union but also all EU Member States; and it features multiple, often overlapping, groups, coalitions and alliances pursuing different goals’.329 EU membership differs in this organisation because the Union was one of the founders of the WTO and a major partner in the Uruguay Round that led to the establishment of the WTO.330 Consequently, the European Union is a member of the WTO from its very establishment.331 Considering the large amount of matters discussed at the WTO, the Council decision was based on a variety of legal bases, although public health was not amongst them.332
Although the European Union has acquired a full-membership status in several international organisations, this does not come without difficulties. The right to vote and the division of competences between the Union and Member States are among the more contentious issues.
b. Implications of the full-membership status
Full membership grants the EU the right to vote, but its vote cannot be added to the one of Member States. Accordingly, it is either the Union (with a weight of the number of its Member States) or the individual Member States that will vote in each case. The attribution of voting powers to one or the others will depend on where the competence lies.333 The division of competences between the Union and its Member States in international organisations thus needs
328 Rule I (3) Rules of Procedure of the Codex Alimentarius Commission in Codex Alimentarius Commission, Procedural Manual (Rome, 21st edition, 2013).
329 Peter VAN DEN BOSSCHE and Werner ZDOUC, The Law and Policy of the World Trade Organization (Cambridge, Cambridge University Press, 4th edition, 2017), p. 114.
330 Bart VAN VOOREN and Ramses A. WESSEL, EU External Relations Law, op. cit., p. 254.
331 Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994), OJ L 336 of 23 December 1994, p. 1 (Decision 94/800).
332 Articles 43, 54, 57, 66, 75, 84 (2), 99, 100a, 113, 235 EC (now, Articles 43, 50, 53, 62, 91, 100, 114 and 352 TFEU).
333 Piet EECKHOUT, EU External Relations Law, op. cit., p. 228.
71 to be clearly established. While such clarity has not been reached at the FAO (i), the situation is much easier at the WTO (ii).
i. The complex exercise of voting rights at the FAO
The General Rules of the FAO provide a system of alternative exercise of the rights attached to membership between the Union and its Member States. Before any FAO meeting, the Union and its Member States have to indicate where the competence lies regarding any specific issue that will come under discussion and who will exercise the right to vote in respect of each one of the issues in the agenda.334 When dealing with an item of shared competence, both the Union and the Member States can participate in the debate but only one of them will be allowed to vote and only the intervention of the party with the right to vote will be taken into consideration.335
In order to complement these rules, internal arrangements between the European Commission and the Council deal with the preparation for FAO meetings, statements and voting.336 These arrangements hold that in the case of a shared competence, a common position has to be reached by consensus. However, the ability to vote will depend on where the thrust of the issue lies. Where the thrust of the issue lies in an area outside the exclusive competence of the Union, the Presidency of the Council shall express the common position and Member States will vote in accordance with it. Where the thrust of the issue lies in an area within the exclusive competence of the Union, the European Commission shall express the common position and vote in accordance with it.337 In the absence of an agreement between the European Commission and the Member States on who should vote, the matter will be referred to the Permanent Representatives Committee (Coreper).338
334 Rule XLI (2) General Rules of the Food and Agriculture Organization, Basic Texts of the Food and Agriculture Organization, Vol. I, 2015 Edition, p. 17 (General Rules of the FAO).
335 Rule XLI (3) General Rules of the FAO.
336 Arrangement concerning preparation for the meetings of the FAO as well as interventions and voting, 18 December 1991, Council documents 10478/91, updated by Council document 9050/92, 7 October 1992 and Council document 8460/95, 26 June 1995 (unpublished) (FAO Arrangement), cited in Jan WOUTERS, Anna-Luise CHANÉ, Jed ODERMATT, Thomas RAMOPOULOS, ‘Improving the European Union’s Status in the United Nations and the UN System: An Objective without a Strategy?’ in Christine KADDOUS (ed), The European Union in International Organisations and Global Governance. Recent Developments (Oxford/Portland, Hart Publishing, 2015), p. 64; also cited in European Commission, The Role of the European Union in the Food and Agriculture Organisation (FAO) after the Treaty of Lisbon: Updated Declaration of Competences and New Arrangements between the Council and the Commission for the Exercise of Membership Rights of the EU and its Member States, 29 May 2013, COM(2013) 333 final (European Commission, COM(2013) 333 final).
337 Section 2 (3) of the FAO Arrangement.
338 Section 1 (12) of the FAO Arrangement.
72 The complexity of these rules has resulted in tensions between Member States and the Union.
The judgment of the Court in Commission v Council illustrates these conflicts.339 The case concerned the vote at the FAO for the adoption of the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels of the High Seas.340 Both the European Commission and the Member States recognised that this agreement concerned a shared competence but they disagreed over the question of the right to vote. The matter was sent to the Coreper, which considered that Member States should vote. Member States voted in favour of the agreement and the European Commission brought an action before the CJEU. The Union had declared that it had an exclusive competence in all matters concerning fisheries in its declaration of competence sent to the FAO when becoming a member in this international organisation.341 The first draft of the agreement essentially contained provisions on flagging, which justified concluding that the thrust of the agreement lied in an area outside the exclusive competence of the Union. However, these provisions did not exist in the final agreement. In the final version, the main object of the draft agreement was compliance with international conservation and management measures by fishing vessels on the high seas.342 The Court concluded that the agreement fell within EU competence, as the Union has an exclusive competence to enter into international commitments for the conservation of the resources of the sea.343 The Union had the authority to enter into international commitments in the field covered by the international agreement and was competent to vote.
In order to avoid similar conflicts, a new arrangement was proposed by the European Commission in 2013.344 The application of the previous arrangement ‘led to time-consuming discussions on the division of competences’ therefore not leaving enough time ‘to elaborate on the substance of the positions to be taken’.345 The main novelty in the proposed arrangement is the fact that positions to be taken by the EU, or by the EU and its Member States, will generally take the form of ‘lines to take’ and not full statements.346 Another modification concerns
339 Judgment of the Court of 19 March 1996 in Case C-25/94 Commission v Council, EU:C:1996:114; Piet EECKHOUT, EU External Relations Law, op. cit., pp. 244-246.
340 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, Rome, 24 November 1993, 2221 UNTS 91.
341 C-25/94 Commission v Council, para. 43.
342 Ibid., para. 45.
343 Ibid., para. 42. This exclusive competence is now confirmed in Article 3 (1) (d) TFEU.
344 This proposal is still under consideration in the Council. European Commission, COM(2013) 333 final; Anna-Luise CHANÉ and Jan WOUTERS, ‘The European Union in United Nations Economic Governance Fora’ in Marc Bungenberg, Markus KRAJEWSKI, Christian TAMS, Jörg Philipp TERHECHTE and Andreas R. ZIEGLER (eds), European Yearbook of International Economic Law 2017 (Cham, Springer, 2017), p. 551.
345 European Commission, COM(2013) 333 final.
346 Ibid., Annex II, para. 2 (3) (1).
73 statements to be made by Member States. In the arrangement of 1991, the Member State holding the rotating Council Presidency would exercise the speaking and voting rights when the issue to be discussed fell within Member States’ competence or, in the case of a shared competence, if the thrust of the issue fell in Member States’ competence. In the modified arrangement, an
‘entrusted Member State’ delivers a statement ‘where the common position primarily contains elements not covered by an EU position’.347 To determine when such situation arises, it will be assessed whether the policy pursued within the FAO will have its main expected impact on the EU or on its Member States.348 This has also been criticised, with a number of members of the Council willing to keep the current division of competences.349 While the Council has not adopted its final decision yet, it is therefore unlikely that the proposal of the European Commission will be fully followed. It remains to be seen whether a new arrangement is adopted or whether the old one is finally maintained. The discussion highlights some of the difficulties associated with the Union becoming a member of an international organisation where Member States are also represented. This situation contrasts with the one at the WTO.
ii. The smooth exercise of voting rights at the WTO
Both the European Union and all its Member States are members at the WTO. In contrast with the FAO, no declaration of competence is required in this organisation. The question of who should speak and vote in each case is therefore not defined. In order to solve potential challenges, the European Commission, the Council and Member States agreed on a code of conduct for the participation of the EU in WTO negotiations but this code of conduct was never concluded.350 The only rule was established by the Court in Opinion 1/94, in accordance with which the Union and Member States have to cooperate in the work of the WTO.351
Despite the lack of clear rules, no major issues have been raised in the participation of the European Union at the WTO. The easier integration of the European Union results from its status as a founding member of the WTO, its exclusive competence in the Common Commercial Policy and the expertise of the European Commission in trade matters.352 The
347 Ibid., Annex II, para. 3.3.
348 Idem.
349 Jan WOUTERS and Anna-Luise CHANÉ, ‘Brussels Meets Westphalia: The European Union and the United Nations’ in Piet EECKHOUT and Manuel LÓPEZ-ESCUDERO (eds), The European Union’s External Action in Times of Crisis (Oxford/Portland, Hart Publishing, 2016), p. 310.
350 Julija BRSAKOSKA BAZERKOSKA, ‘The European Union and the World Trade Organization: Problems and Challenges’ (2011) 7 Croatian Yearbook of European Law and Policy 277, p. 281.
351 Opinion 1/94, paras. 108-109.
352 Jan WOUTERS, Jed ODERMATT and Thomas RAMOPOULOS, ‘The EU in the World of International Organizations: Diplomatic Aspirations, Legal Hurdles and Political Realities’ in Michael SMITH, Stephan
74 European Commission acts and speaks for the European Union and all EU Member States in WTO meetings and negotiations.353 Article IX (1) of the WTO Agreement provides that ‘where the European Communities exercise their right to vote, they shall have a number of votes equal to the number of their member States which are Members of the WTO’. However, voting is rare in this organisation and this issue is more theoretical than real.354
74 European Commission acts and speaks for the European Union and all EU Member States in WTO meetings and negotiations.353 Article IX (1) of the WTO Agreement provides that ‘where the European Communities exercise their right to vote, they shall have a number of votes equal to the number of their member States which are Members of the WTO’. However, voting is rare in this organisation and this issue is more theoretical than real.354