On hybrid decisions, mixed agreements and the limits of the new legal order: Commission v. Council (‘US Air Transport Agreement’)

Publishers Abstract:
ECJ Case C-28/12 ('US Air Transport Agreement') concerns the constitutionality of so-called 'hybrid decisions' adopted by the Council and the Member State governments meeting within the Council. The judgment is of interest to the student of EU foreign affairs, as it represents a shift in emphasis in the ECJ’s foreign affairs case law, away from a focus on favouring and facilitating joint EU-Member State external action, and towards a more introspective focus on the appropriate balance between unity and diversity in the foreign affairs constitution of the EU.

While this shift in emphasis is to be applauded, the ECJ’s reasoning in US Air Transport Agreement is nonetheless not immune from criticism. Over twenty years after the ECJ’s initial embrace of the technique of mixity, the Court is now being called upon to ensure the full effectiveness of the Treaty provisions on the negotiation and conclusion of international agreements in a context in which the Member States act not only as members of a union, represented in the Council, but also as sovereign States under international law.