13 Colum. J. Eur. L. 189 (2006)
Thalia Kruger. PhD, Katholieke Universiteit Leuven. Thanks to Tim Corthaut for the helpful discussions on the issues treated in this Case Note and his comments on a previous version.
This Case Note addresses the intersection between private international law and European Union institutional law, specifically the external relations of the European Union (EU).
The case discussed here is an Opinion by the European Court of Justice (ECJ or Court). An ECJ Opinion is to be distinguished from an Opinion by an Advocate General. Pursuant to Article 300(6) of the European Community Treaty (EC Treaty),’ the European Parliament, the Council, the Commission, or an EU Member State (Member State) may “obtain the opinion of the Court of Justice as to whether an envisaged agreement is compatible with the provisions of this Treaty.” Obtaining such pre-ratification approval allows EC actors to avoid the legal limbo that would arise if the ECJ, ex post facto, were to annul a decision to conclude an international agreement.
The Council sought Opinion 1/03 in 2003. At that time, the EU had only fifteen Member States. Before the matter was heard before the Court, however, the EU was enlarged. The ten new Member States had the opportunity to submit written observations and to present oral arguments before the Court. The case was heard by the full Court and all the Advocates General were heard together in a closed session.
After providing some background to the dispute that gave rise to the Opinion 1/03 and after a brief discussion of the EC’s external competence, the Case Note will turn to the Opinion itself. To provide further context, reference will also be made to an agreement between the EC and Denmark similar to the one at the heart of the dispute leading to Opinion 1/03. An analysis of the Opinion’s consequences will follow, both with respect to the application of Regulation No. 44/200 16 and the conclusion, by EU Member States, of future agreements with third states.
