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European Co-Ordination of Member-States at IMO

The European Commission and more recently the EU, have proposed in the past that they should become Members of the IMO. Faced by opposition from Member States and legal constraints to their accession, the issue has abated but not gone away.

However, the European Commission's efforts to co-ordinate the Member States' positions on IMO issues have never ceased. Up to 2013 the EU co-ordination on IMO issues has been covered by a Commission staff document, issued in 2005, entitled, "Procedural framework for the adoption of Community common positions for IMO related issues and rules governing their expression in the IMO". Several Member States have made many reservations against this non-legislative document. Subsequently, in April 2013, the European Commission informed Member States of "emerging changes" – a result of adapting to the requirements of the Lisbon Treaty to the EU coordination process and the scope of EU competence issues addressed in the IMO. Under the changes, EU Member States can now only make reservations on positions on issues considered to be in the competence of the Commission, and are prohibited from speaking up individually at the IMO and expressing their own views concerning such positions.

The official position for future EU coordination has yet to be decided by the Council, while a number of important maritime Member States maintain their opposition. The shipping industry strongly opposes the principle of en-bloc EU voting at the IMO, on the grounds that it convolutes the democratic process of the IMO and devalues the maritime expertise of Member States. The industry's opinion has been expressed repeatedly.

In view of the ongoing discussions about the EU's position in IMO, it is interesting to note that in April, 2014, the Advocate General of the European Court of Justice presented an opinion on a case in which Germany challenged a decision of the Council of the EU, establishing a position to be adopted by the EU with regard to certain resolutions to be voted in the framework of the International Organisation for Vine and Wine.

The opinion of the Advocate General is not binding upon the ECJ's judges but it is followed by them in many cases. In summary, the Advocate General is of the view that the decision of the Council of the EU to adopt an EU position with regard to certain resolutions from the International Organisation for Vine and Wine – a decision that was based on Article 218 (9) TFEU – should be annulled because this article was not the right legal basis for such decision.

Interestingly, the Advocate General makes a distinction between two scenarios, as follows:

A scenario where the EU cannot become member of an international organisation, either because the membership of such organisation is not open to supranational organisations such as the EU, or because the request for membership has been denied. In this scenario, the external competence of the EU should be exercised by the Member States, which act together in the interest of the EU.

A scenario where the EU can become member of an international organisation and such request for membership has not been denied as yet. In this scenario, EU access to that international organisation is a natural way to exercise the EU's competences effectively.

According to the Advocate General, case 399/12 related to the second scenario and he therefore only further developed his opinion as regards this scenario.

The Advocate General is also of the view that in order to exercise its exclusive competences, the EU should accede to an international organisation and for these competences, both the EU Institutions and the Member States are obliged to use all relevant legal and political means to ensure such EU accession.