EU representation of member states

Legal assistance paper

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Date produced: 18/11/2016

Can the EU representative take the floor on behalf of “the EU and its 28 members states” in the CMA (the new governing body of the Paris Agreement) although some of those member states have not yet ratified the Paris Agreement?

Summary:

Yes – unless one of the member states objects.

Advice:

All EU member states have signed, and intend to ratify the Paris Agreement. The member states and the EU institutions are bound together by a duty of cooperation, and the Council (which represents the member states) has agreed that there will be joint action. Member states which have not yet ratified the Paris Agreement are able to fully participate in the EU decision-making, through their representation in the EU institutional framework. So the EU is able to enter into binding commitments, pursuant to its own competences, and can also speak for all the member states  – as long as the latter do not object.

In its declaration, upon ratification of the Paris Agreement, the European Union, in accordance with Article 20 paragraph 3 of the Paris Agreement, declared its competence to enter into the Paris Agreement “…in accordance with the Treaty on the Functioning of the European Union, and in particular Article 191 and Article 192(1) thereof,…”. This reference effectively integrates the above complex internal decision making process into the EU’s mandate to represent member states internationally in the context of the Paris Agreement.

Article 20 paragraph 2 of the Paris Agreement explicitly states that it is for the regional economic integration organisations and their member states to decide on their respective responsibilities. While this refers to “the performance of their obligations”, it is likely to cover less important issues (a maiore ad minus) such as taking the floor too. In this respect, the Paris Agreement appears to recognise the internal EU arrangements as central for the EU competence in connection with the Paris Agreement.

This is, however, confined by the rules of the Paris Agreement. So if, for example, the internal EU decision making processes change, the EU has to inform the UN Secretary General – as Depository of the Paris Agreement – accordingly. If there was ever a vote in the CMA, the EU would only represent a number of votes equal to the number of member states that have ratified the Paris Agreement. In addition, it is questionable if and to what extent the EU may be capable of entering into new commitments on behalf of member states that have not yet ratified the agreement. This would require a legal assessment on a case by case basis.