ABSTRACT

EEC/ASEAN

I am sorry about the delay in replying to your minute of 23 September. Even now, and despite the length of this minute, I think I can only offer some general guidance, since there are still too many unknown factors to reach precise conclusions.

The first question seems to me to be whether the second paragraph of Article 229 is relevant at all to the Commission’s relations with Asean. This turns on whether Asean is an ‘international organisation’. That term must mean something, and there must be some kind of dividing line between what is and what is not such an organisation. I doubt whether the Court would take a very strict formal view of what constitutes an international organisation. But equally, I doubt whether it would be right to interpret the term as sufficiently wide and imprecise to cover any kind of informal grouping of states. The term ‘international organisation’ in its normal usage does suggest some minimum organisational requirements. One thinks, for example, of something with some kind of constitutional document, with its own organs separate from the Member States, and with some kind of legal personality separate from that of the Member States. The clear suggestion from the second paragraph of Article 229 is that the relations are with the organisation and not its Member States, and therefore at least something in the way of an organisational structure separate from the Member States seems required.

How far, then, does Asean match up to such requirements? Mr Braithwaite’s letter of 11 September suggests that Asean lacks any formal structure. If it is true – and on the face of it, it seems strongly arguable – that Asean is not a real ‘international organisation’, then certainly there is room to doubt whether Article 229 affords a relevant basis for Commission relations with Asean.

It is worth noting also that Article 229 is about the Commission’s relations with other bodies, not the Community’s (compare Article 229 with Articles 228, 230, 231 and 238). Further, the Commission is, under paragraph 1 of Article 229 only authorised to ensure relations with the organs of the UN, etc – not with the UN itself. While this does give rise to an a contrario argument in relation to paragraph 2, nevertheless, the general flabour of Article 229 as a whole seems to me to be to keep the Commission, when acting under that article, to a fairly low key role: more important matters (Articles 223, 230, 231, 238) are for the Community, not just the Commission.

148I think we also probably have a considerable interest in not allowing the term ‘international organisation’ in Article 229 to be given too loose a meaning, not only because of the implications in terms of Article 229 itself, but also because of implications which this would have for the scope of Article 116, which is already beginning to cause one or two difficulties.

If Asean is not an international organisation, then there is no scope for Commission action under Article 229.

If, however, Asean is to be considered an international organisation, then comes the question of the appropriateness of the relations established with it by the Commission. Article 229 does not say who decides what relations are ‘appropriate’. Since it is the Commission which is charged with establishing the relations, the Commission’s view on whether they are appropriate would obviously count for a lot; and they presumably do believe that what they are at present engaged on, is ‘appropriate’. But appropriateness probably needs to be considered from various points of view: eg appropriate from the point of view of (i) the Commission’s policies and interests, (ii) the general Community interest, and (iii) the other organisations’ activities and status. There is obviously a lot of scope for argument as to what is the proper interpretation and application of the term ‘appropriate relations’ in the context of Article 229, in relation to particular circumstances.

I doubt whether criticism of the Commission’s actions so far would get much support if based solely on the question of ‘appropriateness’. But if we can show that there is a risk of trespass on Article 113, then we would be on stronger and more hopeful ground in voicing criticism at the way in which the Commission behave.

Of the two particular matters which you mention, discussion of tariff points and nomenclature, seems to me probably all right, given the Commission’s role in running the common external tariff, and the summary record of the meeting does suggest in a number of places that the Commission would need to reserve certain matters for consideration by the Member States, so the role of the Member States was not totally ignored. To talk about developments in other international organisations such as the UN could, perhaps, be going a bit beyond what would be proper for the Commission to discuss, but the mere title of the agenda item probably matters less than the actual subjects discussed under that head. I think that the Commission’s activities under Article 229 need careful watching. It could easily become a back-door extension of Commission activities, by-passing that control which the Member States can expect to have under Article 113. In terms of Community extended relations generally, an extended Commission use of Article 229 goes well with an extended reliance on Article 116, of which there are already signs.