SECTION III. S ECTION III. Impact of fragmentation on the consistency principle
I. The principle of consistency in EU law
The principle of consistency has gained an increasing relevance through the consecutive Treaty amendments. It has evolved from a single reference in the Single European Act to being repeatedly mentioned in the Treaties after the modifications brought by the Lisbon Treaty.403 While this principle was first introduced in the field of EU external relations law, it is now a horizontal principle applicable to all EU policies (A). Treaty provisions do not, however, clarify what the principle of consistency entails. A brief doctrinal analysis will guide us through the duties that this principle imposes upon the European Union (B).
A. Evolution of the principle of consistency in EU law
The first reference to the principle of consistency was introduced in the Single European Act, where it was stated that ‘the external policies of the European Community and the policies agreed in European Political Cooperation404 must be consistent’.405 The modifications brought by the Treaty of Maastricht extended the duty of consistency beyond EU external relations.
Article C TEU (Masstricht consolidated version) imposed consistency in EU external relations
402 There are linguistic differences regarding the notion of consistency. While the French, Spanish and German versions of the Treaties refer to ‘cohérence’, ‘coherencia’ and ‘Kohärenz’, the English version refers to
‘consistency’. This divergence is striking considering that, in academic works, authors often use the word
‘coherence’ in English as well. For the purposes of the thesis, we will only use the term ‘consistency’ as provided for in the Treaties. For a discussion on this matter, see Christophe HILLION, ‘Tous pour un, un pour tous! Coherence in the External Relations of the European Union’ in Marise CREMONA (ed), Developments in EU External Relations Law (Oxford, Oxford University Press, 2009), p. 12; Geert DE BAERE, Constitutional Principles of EU External Relations (Oxford, Oxford University Press, 2008), p. 251; Carmen GEBHARD, ‘The Problem of Coherence in the European Union’s International Relations’ in Christopher HILL, Michael SMITH, Sophie VANHOONACKER (eds), International Relations and the European Union (Oxford, Oxford University Press, 3rd edition, 2017), pp. 127-128; Isabelle BOSSE-PLATIÈRE, L’article 3 du traité UE : Recherche sur une exigence de cohérence de l’action extérieure de l’Union européenne (Brussels, Bruylant, 2009), p. 3; Sacha PRECHAL and Bert VAN ROERMUND (eds), The Coherence of EU Law: The Search for Unity in Divergent Concepts (Oxford, Oxford University Press, 2008).
403 Ester HERLIN-KARNELL and Theodore KONSTANTINIDES, ‘The Rise and Expressions of Consistency in EU Law: Legal and Strategic Implications for European Integration’ (2013) 15 Cambridge Yearbook of European Legal Studies 139, pp. 144-147.
404 The European Political Cooperation was transformed into the Common Foreign and Security Policy (CFSP) in the Treaty of Maastricht.
405 Article 30 (5) Single European Act.
85 law and between the different pillars of the Union. The Treaty of Maastricht also incorporated provisions requiring intra-pillar consistency.406 The Treaty of Nice further developed provisions on consistency.407 With the entry into force of the Lisbon Treaty, the consistency principle has been clarified and reinforced. Article 7 TFEU states that the EU ‘shall ensure consistency between its policies and activities, taking all its objectives into account and in accordance with the principle of conferral of powers’. This duty is enhanced in Article 13 (1) TEU.408 From an institutional point of view, Articles 16 (6) TEU and 17 (6) (b) TEU require consistency in the workings of the Council and the European Commission respectively. Consistency still plays a particular role in the EU external action. Article 18 (4) TEU requires the High Representative of the Union for Foreign Affairs and Security Policy to ensure the consistency of the EU’s external action. Article 21 (3) TEU charges the Council, the Commission and the High Representative with the duty to ensure consistency in EU external action. Article 21 (3) TEU also refers to consistency between internal and external policies. This provision reinforces the duty of consistency by linking both dimensions.
The current version of the Treaties is therefore more comprehensive in terms of consistency obligations. This principle has now been mainstreamed across all EU policies, both at the internal and at the external levels. However, Treaty provisions do not define the notion of consistency. It is argued that the principle of consistency embraces a broad range of duties that go beyond the coordination of EU policies.
B. Obligations under the principle of consistency
Treaty modifications have facilitated the mainstreaming of the principle of consistency in EU law. However, the incorporation of this principle to several Treaty provisions has not been accompanied by a clarification of its definition. It is argued that the principle of consistency in EU law entails a broad range of duties that go beyond the coordination of EU policies.
Consistency obligations can be classified in two different manners: a distinction between horizontal and vertical consistency (1) and a distinction between positive and negative consistency (2).409
406 For example, Article 165 (1) EC (now Article 181 (1) TFEU), which imposed consistency within the research and technological development policy.
407 For example, Article 181A (1) EC (now Article 212 (1) TFEU), which mandated consistency between economic, financial and technical cooperation and development cooperation; see Christian NK FRANKLIN, ‘The Burgeoning Principle of Consistency in EU Law’ (2011) 30 Yearbook of European Law 42, pp. 45-46.
408 Article 13 (1) TEU: ‘The Union shall have an institutional framework which shall aim to promote its values, advance its objectives, serve its interests, those of its citizens and those of the Member States, and ensure the consistency, effectiveness and continuity of its policies and actions’
409 Christophe HILLION, ‘Tous pour un, un pour tous !’, op. cit., pp. 17-18.
86 1. Vertical and horizontal consistency
The principle of consistency requires both vertical and horizontal consistency. Horizontal consistency involves cooperation between institutional actors involved in EU decision making and between the different policies of the European Union whereas vertical consistency refers to the prevention of conflict between the legal orders of the EU and its Member States.410
Horizontal consistency is required internally and externally in the Treaties.411 In addition to general provisions on consistency, the Treaties incorporate integration clauses that have to be applied when carrying out all policies and activities. These clauses enhance horizontal consistency. The major example in EU public health is Article 9 TFEU, requiring a high level of health protection in all policies and activities of the Union.
Vertical consistency is ensured if the Union and Member States act in accordance with the powers conferred to each of them under Article 5 (1) TEU. The distribution of powers has been clarified with the entry into force of the Lisbon Treaty, as EU Treaties now contain provisions defining each category of competence and a list of the areas covered by those categories.412 These provisions contribute to vertical consistency in EU law. The concept of vertical consistency has been further developed by the CJEU by reference to the principle of sincere cooperation.413 In the EU’s external action, this principle imposes a duty of close cooperation between the Union and its Member States to ensure unity of the Union’s international representation.414 The principle of sincere cooperation also ensures vertical consistency in international instances where the Union is not represented. Although the Union is not a member of the International Labour Organization (ILO), the Court concluded in Opinion 2/91 that Member States were to act as ‘trustees’ of the Union when negotiating a convention that concerned a matter of exclusive EU competence.415 The principle of sincere cooperation therefore applies both when the Union is represented in an international organisation or agreement and when it is not. This should facilitate consistency in areas such as public health.
410 Ester HERLIN-KARNELL and Theodore KONSTANTINIDES, ‘The Rise and Expressions of Consistency in EU Law’, op. cit., p. 142; MariseCREMONA, ‘Coherence through Law: What Difference will the Treaty of Lisbon make?’ (2008) 3 Hamburg Review of Social Sciences 11, pp. 16-25.
411 On consistency within EU policies, see Articles 21 (3) TEU and 7 TFEU; on consistency amongst EU institutions, see Articles 16 (6), 17 (6) (b), 18 (4) and 21 (3) TEU.
412 Articles 2-6 TFEU.
413 Article 4 (3) TEU.
414 Judgment of the Court of 2 June 2005 in Case C-266/03 Commission v Luxembourg, EU:C:2005:341, para. 60;
Commission v Sweden (PFOS), para. 73.
415 Opinion 2/91, para. 37; Jan WOUTERS and Bart DE MEESTER, ‘Safeguarding Coherence in Global Policy-Making on Trade and Health: The EU-WHO-WTO Triangle’ (2005) 2 International Organizations Law Review 295, p. 308.
87 The principle of sincere cooperation applies both for matters of exclusive competence416 and for matters of non-exclusive competence.417 It has been suggested that the duty of cooperation should even cover areas where the Union ‘only has limited policy-making possibilities’ such as health or social policy, that is, areas of support competence.418 There is no case law supporting this point of view. However, this conclusion is coherent with the CJEU case law on the conclusion of Member States-only international agreements in areas of retained powers. In such cases, the Court has admitted that international agreements can collide with Union law obligations and it has established a ‘duty of consistent exercise’.419 Member States have to exercise their retained powers at the international level consistently with their obligations under Union law.420 The Court makes a distinction between the existence of the competence, which is a Member States’ competence, and the exercise of it, which has to be compliant with EU law.421 As a consequence, the principle of sincere cooperation will serve as a guiding principle both when the EU is a member of an international organisation or a party to an international agreement and when it does not hold such a status, whatever the nature of the competence we are dealing with. It thus constitutes an essential element of the consistency principle.
2. Positive and negative consistency
This principle contains both negative and positive duties. From a negative perspective, consistency is achieved when there are no contradictions, while the positive side of consistency requires positive connections or the creation of an added value.422 The consistency principle thus requires the absence of contradictions but it also aims at creating a united whole.423
416 Judgment of the Court of 12 February 2009 in Case C-45/07 Commission v Greece, EU:C:2009:81.
417 Judgment of the Court of 7 October 2014 in Case C-399/12 Germany v Council, EU:C:2014:2258; Inge GOVAERE, ‘Novel Issues Pertaining to EU Member States Membership of other International Organisations: The OIV Case’ in Inge GOVAERE, Erwan LANNON, Peter VAN ELSUWEGE, Stanislas ADAM (eds), The European Union in the World: Essays in Honour of Marc Maresceau (Leiden/Boston, Martinus Nijhoff Publishers, 2014), pp. 225-244.
418 Jan WOUTERS and Bart DE MEESTER, ‘Safeguarding Coherence in Global Policy-Making on Trade and Health’, op. cit., p. 312; Markus KLAMERT, The Principle of Loyalty in EU Law, op. cit., pp. 168-171; Christophe HILLION,
‘Mixity and Coherence in EU External Relations: The significance of the “Duty of Cooperation”’ in Christophe HILLION and Panos KOUTRAKOS (eds), Mixed Agreements Revisited: The EU and its Member States in the World (Oxford/Portland, Hart Publishing, 2010), pp. 106-109.
419 Kristin REUTER, Competence Creep via the Duty of Loyalty? Article 4(3) TEU and its Changing Role in EU External Relations (Florence, European University Institute Doctoral Thesis, 2013), pp. 169-170; Judgment of the Court of 4 October 1991 in Case C-246/89 Commission v United Kingdom, EU:C:1991:375.
420 C-246/89 Commission v United Kingdom, para. 12.
421 Kirstin REUTER, Competence Creep via the Duty of Loyalty?, op. cit., p. 175.
422 Leonhard DEN HERTOG and Simona STROΒ, ‘Coherence in EU External Relations: Concepts and Legal Rooting of an Ambiguous Term’ (2013) 18(3) European Foreign Affairs Review 373, pp. 376-378.
423 Christophe HILLION, ‘Tous pour un, un pour tous !’, op. cit., pp. 13-14.
88 Negative consistency can be reached through the principle of primacy of EU law over conflicting norms of national law.424 It can additionally be pursued through the delimitation of powers between the Union and its Member States in accordance with the principle of conferral.425 The Treaty of Lisbon has strengthened negative consistency by clarifying the system of competences.426 The CJEU has also contributed in its case law to delimiting competences between the Union and its Member States. It has ruled, for example, that the delimitation of powers has to be observed even in international organisations to which the Union is not a party.427
Positive consistency requires mechanisms of cooperation between the Union and Member States and amongst EU institutions. Cooperation between the Union and Member States, on the one hand, can be reached with the proper use of the principle of sincere cooperation as illustrated above. At the external level, the adoption of common positions and coordination meetings before international negotiations are also examples of positive consistency.
Cooperation across EU policies and institutions, on the other hand, can be achieved through mainstreaming provisions such as Article 9 TFEU that requires taking public health into account in all policies and activities. It can also be achieved through the principle of institutional balance and the duty of cooperation among EU institutions.428 More generally, positive consistency across EU policies will be reached through all the above-mentioned mechanisms on horizontal consistency.
The principle of consistency thus embraces a wide number of requirements. A clear delimitation of powers and cooperation mechanisms are to be established between the Union and Member States as well as amongst EU institutions. It is now relevant to analyse whether this principle is relied upon in EU public health.