Repercussions of Mixity for the Institutional Balance

Merijn Chamon

In legal doctrine, mixity is most often framed as a practical problem in light of the need for an efficient and effective EU external action or, at a more theoretic and constitutional level, as a problem related to the principle of conferred power. However, next to the issues related to the vertical delimitation of competences (Member States vs. EU), mixity also has repercussions for the horizontal delimitation of competences within the EU (between the EU institutions). These repercussions are much less, if at all, studied but it should be clear that the practice of mixity should conform to all of the EU's constitutional law principles, not just the principle of conferred powers. Recent jurisprudence of the Court also confirms this, as the Court in US Air Transport Agreement ruled that recourse to hybrid acts for the signature and conclusion of a mixed agreement violated Article 13(2) TEU which lays down the principle of institutional balance. The present paper will identify for the main phases in the life of an agreement (negotiation, conclusion and implementation) the consequences for the inter-institutional relations of a choice for a mixed rather than an EU-only agreement. Scrutinizing these consequences under the principle of institutional balance will then allow for an assessment of the potential of this principle to structure recourse to mixity.

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