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Connected or Disconnected?The EU and International Law Lecture 3: The EU and the Law of Treaties
Prof. Pieter Jan KUIJPER
The EU and the Law of Treaties
Pure EC/EU (new) Agreements. “Old EU” Agreements
Mixed Agreements General
Bilateral
Multilateral
Disconnection clauses
Future of Mixed Agreements
The Courts and Treaty LawLecture 3: The EU and the Law of Treaties 2
Community/Union Agreements In principle familiar/acceptable to third States
Reparations for Injuries Case, ICJ 1949.
ILC Discussions on the 1986 Vienna Convention.
Art. 216 (2) TFEU and Art. 36bis of ILC draft for 1986
Convention.
Who (EU or MS) is bound with respect to whom?
Internal “constitutional position”.
External “international law position”.
Difference between the two.
Lecture 3: The EU and the Law of Treaties 3
“Old EU Agreements”
No legal personality for “old EU” Treaty-making power: old Art. 25 TEU De facto: two treaties – two international persons. Unproblematic in CFSP: technical agreements on
police operations and security exchange. Problematic in Third Pillar: touched citizens’ rights
– required national Parliaments’ approval. Highly contested agreements. PNR etc.
Lecture 3: The EU and the Law of Treaties 4
Normal Treaty Techniques. Normal Treaty Techniques available (Art 218):
Negotiation: Double-hatted or double-headed?
Signature and Provisional Application.
Conclusion (influence EP!)
Simplified procedure for small modifications
Suspension of application of the agreement
Termination of treaties (everywhere a problem!)
Position in a treaty body taking acts having legal effects (Great
problems during Doha Round neg.)
Lecture 3: The EU and the Law of Treaties 5
Special EU ‘Abnormalities’
Territorial scope of EU Treaties. Territory covered by the EU Treaties.
Exceptions: only customs territory etc
Opt-outs and Opt-ins. UK, Ireland and Dk. Which opt-outs are possible?
When is opting in possible in external instruments?
When does UK, Eire or Dk have to decide?
Lecture 3: The EU and the Law of Treaties. 6
Mixed Agreements - General
Not in TEC, TEU or TFEU, but in Euratom Treaty (Art. 102).
Why resort to “mixity” in EC/EU domain? For reasons of necessity:real problems of competence
For reasons of expediency: avoid an internal dispute
For political reasons: wish of the MS.
How do third states look at mixed agreements? Against the billiard ball approach to internat’l relations
Depends on bilateral or multilateral character
Lecture 3: The EU and the Law of Treaties 7
Mixed Agreements - Bilateral
Bilateral Character is clear from text EU/EC and its MS of the one part and country X of the other part.
Complementary character of MS and EU powers clear
Nevertheless, Third States do not invariably see it that way – they are
not used to an international personality externalizing its structural
problems.
Parallel with “federal state clause” in treaties?
Lecture 3: The EU and the Law of Treaties 8
Mixed Agreements - Bilateral 2 Problems discerned by third States
Problems related to the negotiation:
Choice for mixity made late
Who leads the negotiation?
Authentic languages
Entry into force – ratification
And to be discussed later:
Speaking, voting etc. in treaty bodies
International responsibility
Lecture 3: The EU and the Law of Treaties 9
Mixed Agreements - Multilateral
Mixity often “hidden” in multilateral treaties. Third States don’t see clearly the “EU and its MS of
the one part” in negotiations, and not at all afterwards.
Third States believe this is a normal multilateral
agreement, where treaty relations exist normally
between Member States.
That this is not so, can be made clear in two ways:
By declarations of competence
By disconnection clauses
Lecture 3: The EU and the Law of Treaties 10
Declarations of Competence
The problems of declarations of competence Externalization of “federal problems”. ECJ changes
position over time.
Opinion 1/78.
MOX Plant.
Result of internal compromises: unclear content.
General terms about evolutionary character
Reference to Treaty articles + EU legislation
Virtually never adjusted to evolutions in
external powers.Lecture 3: The EU and the Law of Treaties 11
Disconnection Clauses. A short history of disconnection clauses.
Initially in treaties where the EC/EU was not a party.
Later also in treaties where EC/EU was a party.
Totally different intention and effect.
New version of the disconnection clause.
Do disconnection clauses go too far? They are agreed by all parties to the Treaty.
The new version has a limited, but useful function
They show that the EU + MS are one “group” and
externalize “federal problems.” Declarations better?
Lecture 3: The EU and the Law of Treaties 12
Examples of Disconnection Clauses
OLD VERSION (since 1970s) In their mutual relations, Parties which are Members of the European
Economic Community shall apply Community rules and shall therefore not apply the rules arising from this Convention except in so far as there is no Community rule governing the particular subject concerned.
NEW VERSION (2005) Parties which are members of the European Union shall, in their mutual
relations apply [Community and] European Union rules in so far as there are [....] European Union rules governing the particular subject concerned and applicable in the specific case, without prejudice to the object and purpose of the present Convention and without prejudice to its full application with other Parties.Accompanied by a special declaration.
Mixed Agreements after Lisbon
Insofar as “political clauses” caused mixity, it could disappear: trans-treaty Union Agreements would take their place.
Insofar as remaining MS powers in the TFEU-context cause mixity, it cannot disappear.
Will the same dynamics that caused “political mixity”, bring about an increased CFSP influence over the TFEU-side of things?
Lecture 3: The EU and the Law of Treaties. 14
The Union Courts and the Law of Treaties Courts have a long tradition of having recourse
to the law of treaties (Vienna Convention 1969)
Basis is Art. 3(b) Vienna Convention Case C-386/08 Brita
Recourse to rules of interpretation (Art 31 ff) Agreements concluded by the Union ( no direct effect
– e.g. Case C-308/06 Intertanko)
Lecture 3: The EU and the Law of Treaties 15
The Union Courts and the Law of Treaties 2 Recourse to the law of treaties (Vienna Convention
1969) cont. Union Treaties themselves
Recourse to related documents (Cases T-187/99 and C-321/01P Agrana Zucker)
Recourse to practice (Cases C-327/91 Fr. v. Comm. and C-91/05 –Ecowas/SALW)
Good faith In treaty interpretation: Case C-268/99 Jany et al. In treaty performance: AG Colomer in C-431/05 Merck-Genericos.
Lecture 3: The EU and Law of Treaties 16
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