EU International Relations Law 9781782258964, 9781849463225

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Acknowledgements FIRST EDITION

Part of this book was written on research leave granted by the School of Law, University of Birmingham and the Department of Law, University of Durham. The latter was funded by the Arts and Humanities Research Council. The last parts of the book were written in Ann, Arbor, Michigan, where I spent six months as a Jean Monnet Research Fellow at the University of Michigan Law School. To these institutions I am grateful. Eileen Denza read parts of the book: for her comments, suggestions, corrections and kindness I am deeply grateful. Aurel Sari commented on other parts of the book and helped me enormously with his editorial assistance: I thank him very much. In Ann Arbor, I benefited from conversations with Judge Koen Lenaerts, Daniel Halberstam and Eric Stein. Frank Hoffmeister has been very helpful with a number of queries over the past two years. Sebastian Harter-Bachmann helped me efficiently at the early stages of writing. All omissions and errors are, of course, my own.

SECOND EDITION

I am grateful to Sam Parsons and Ben-Jacob Couch-Diewitz for their editorial assistance and to Niall Coghlan for his research assistance. The usual disclaimer applies.

Στη Νατάσσα

Table of Cases Table of Cases

Table of Cases

A. EUROPEAN COURT OF JUSTICE Case 10/61 Commission v Italy [1962] ECR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .322 Case 26/62 van Gend en Loos [1963] ECR 1 . . . . . . . . . . . . . . . . . . . . . . . . . 82–84, 229, 257, 322, 414 Case 6/64 Flaminio Costa v ENEL [1964] ECR 585 . . . . . . . . . . . . . . . . . . . . . . . . 14, 82, 84, 224, 322 Case 9/70 Franz Grad v Finanzamt Traunstein [1970] ECR 825 . . . . . . . . . . . . . . . . . . . . . . . . 83, 258 Case 11/70 Internationale Handelsgesellschaft mbH v Einfuhr-und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83, 85, 274 Case 22/70 Commission v Council (European Road Transport Agreement) [1971] ECR 263. . . . . 73, 77–87', 158, 165, 177, 181, 234, 240 Joined Cases 9/71 and 11/71 Compagnie d’Approvisionnement v Commission [1972] ECR 391 . .294 Joined Cases 21 to 24/72 International Fruit Company NV and Others v Produktschap voor Groenten en Fruit [1972] ECR 1219 . . . 212–13, 215, 216, 219, 235, 244, 252, 259, 261, 280–82, 303–05 Case 5/73 Balkan Import Export GmbH v Hauptzollamt Berlin Packhof [1973] ECR 1091 . . . . . .18 Case 8/73 Hauptzollamt Bremerhaven v Massey Fergusson GmbH [1973] ECR 897. . . . . . . . . . . . .19 Case 9/73 Schlüter v Hauptzollamt Lörrach [1973] ECR 1135 . . . . . . . . . . . . . . . . . . . . . 252, 281, 303 Case 167/73 Commission v France [1974] ECR 359 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119, 339 Case 181/73 R & V Haegeman v Belgian State [1974] ECR 449 . . . . . . . . . . . . . . . . . . . . . . . 210, 236 Case 2/74 Reyners v Belgian State [1974] ECR 631 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .277 Case 16/74 Centrafarm BV et Adriaan de Peijper v Winthrop BV [1974] ECR 1183 . . . . . . . . . . 271, Case 41/74 Van Duyn v Home Office [1974] ECR 1337. . . . . . . . . . . . . . . . . . . . 83, 86, 215, 226, 258 Case 38/75 Douaneagent der NV Nederlandse Spoorwegen v Inspecteur der invoerrechten en accijnzen [1975] ECR 1439 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219, 252, Case 87/75 Conceria Daniele Bresciani v Amministrazione Italiana delle Finanze [1975] ECR 129 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260–61, 267 Opinion 1/75 (OECD Local Cost Standard) [1975] ECR 1355 . . 20–25, 30–32, 34–35, 73, 137, 213, 230–31, 345 Joined Cases 3, 4 and 6/76 Cornelis Kramer and others [1976] ECR 1279 . .87–90, 94–95, 99, 101, 104, 106–07, 109, 180, 183 Case 33/76 Rewe-Zentralfinanz eG and Rewe-Zentral AG v Landwirtschaftskammer für das Saarland [1976] ECR 1989 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .255 Case 41/76 Suzanne Criel, née Donckerwolcke and Henri Schou v Rrocureur de la Republique au Tribunal de Grande Instance, Lille and Director General of Customs [1976] ECR 1921 . . . 25–26, 486, 490 Case 104/75 De Peijper [1976] ECR 613 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271, 273–74 Opinion 1/76 (Draft Agreement establishing a European laying up fund for inland waterway vessels) [1977] ECR 741 . . . . 89, 91–94, 99–100, 102, 104–08, 114, 117, 121, 123, 126, 128, 177 Case 35/76 Simmenthal v Minister for Finance [1976] ECR 1871 . . . . . . . . . . . . . . . . . . . . . . . . . . .275 Case 50/76 Amsterdam Bulb BV v Produktschap voor Siergewassen [1977] ECR 137 . . . . . . . . . .258 Case 52/77 Leonce Cayrol v Giovanni Rivoira & Figli [1977] ECR 2261 . . . . . . . . . . . . . . . . . . . . . .25 Case 65/77 Jean Razanatsiba [1977] ECR 2229 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .277

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Case 106/77 Administrazione delle Finanze dello Stato v Simmenthal SpA (Simmenthal II) [1978] ECR 629 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .83 Case 112/77 Töpfer v Commission [1978] ECR 1019 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .312 Case 113/77 NTN Toyo Bearing v Council [1979] ECR 1185 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .375 Case 118/77 Import Standard Office v Council [1979] ECR 1277 . . . . . . . . . . . . . . . . . . . . . . . 375–76 Case 119/77 Nippon Seiko v Council [1979] ECR 1303 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .375 Case 120/77 Koyo Seiko v Council [1979] ECR 1337 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .375 Case 121/77 Nachi Fujikoshi v Council [1979] ECR 1363 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .375 Opinion 1/78 (Agreement on Natural Rubber) [1979] ECR 2871 . . . . . 21–22, 24, 30, 32, 34–35, 55, 73, 95, 101, 172–73, 231, 489 Ruling 1/78 re Convention on the Physical Protection of Nuclear Materials, Facilities and Transports [1978] ECR 2151 . . . . . . . . . . . . . . . . . . . . . . . . . . .65, 166, 181, 194, 231, 256, 475 Case 34/79 R. v Maurice Donald Henn and John Frederick Ernest Darby [1979] ECR 3795 . . . .322 Case 35/79 Grosoli v Ministry of Foreign Trade [1980] ECR 177 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27 Case 44/79 Hauer v Land Rheinland-Pfalz [1979] ECR 3727 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .498 Case 140/79 Chemial Farmaceutici SpA v DAF SpA [1981] ECR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . .26 Case 812/79 Attorney General v Juan C. Burgoa [1980] ECR 2787 . . . . . . . . . 215, 322, 340–41, 349 Case 804/79 Commission v United Kingdom [1981] ECR 1054 . . . . . . . . . . . . . . . . . . . . . . . . . 89, 183 Joined Cases 256, 257, 265 and 267/80 and 5/81 Birra Wührer SpA and others v Council and Commission [1982] ECR 85 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .290 Case 270/80 Polydor Ltd and RSO Records Inc v Harlequin Records Shops Ltd and Simons Records Ltd [1982] ECR 329 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271–76 Case 17/81 Pabst & Richarz KG v Hauptzollamt Oldenburg [1982] ECR 1331 . . . . . . . . . . . . . . . .276 Case 21/81 Criminal proceedings against Daniël Bout and BV I. Bout en Zonen [1982] ECR 381 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .89 Case 104/81 Hauptzollamt Mainz v C.A. Kupferberg & Cie KG a.A. [1982] ECR 3641 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211–12, 258, 260, 262–63, 267, 272, 274, 277, 279 Case 283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health [1982] ECR 3415 . . . .251 Case 266/81 SIOT v Ministero delle Finanze [1983] ECR 731 . . . . . . . . . . . . . . . . . . . . . 252, 281, 319 Joined Cases 267/81, 268/81 and 269/81 Amministrazione delle Finanze dello Stato v SPI SpA [1983] ECR 801 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252, 281 Case 218/82 Commission v Council [1983] ECR 4063 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27 Joined Cases 239/82 and 275/82 Allied Corporation and others v Commission [1984] ECR 1005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .375 Case 264/82 Timex v Council and Commission [1985] ECR 849 . . . . . . . . . . . . . . . . . . . . . . . . . . . .375 Case 14/83 Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891 . . . . . . . . . .330 Case 59/83 Biovilac v EEC [1984] ECR 4057 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .294 Case 72/83 Campus Oil Ltd v Minister for Industry and Energy [1984] ECR 2727 . . . . 26, 476, 487 Case 59/84 Tezi Textiel BV v Commission [1986] ECR 887 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27 Case 152/84 Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching) [1986] ECR 723 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .265 Case 174/84 Bulk Oil (Zug) AG v Sun International Limited and Sun Oil Trading Company [1986] ECR 559 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 355, 490 Case 199/84 Procuratore della Republica v Migliorini [1985] ECR 3325 . . . . . . . . . . . . . . . . . . . . . . .27 Case 222/84 Marguerite Johnson v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334, 480, 506 Case 240/84 NTN Toyo Bearing Company Limited and Others v Council [1987] ECR 1809 . . . .368 Case 255/84 Nachi Fujikoshi v Council [1987] ECR 1861 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .368 Case 28/85 Deghillage v Caisse Primaire d’Assurance Maladie [1986] ECR 991 . . . . . . . . . . . . . . .233 Joined Cases 89, 104, 114, 116, 117 and 125 to 129/85 A. Ahlström Osakeyhtiö and others v Commission [1993] ECR I-1307 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .226

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Joined Cases 277/85 and 300/85 Canon v Council [1988] ECR 5731 . . . . . . . . . . . . . . . . . . . . . . . .376 Case 314/85 Firma Foto-Frost v Hauptzollamt Lübeck-Ost [1987] ECR 4199 . . . . . . . . . . . . . . . . .235 Case 12/86 Meryem Demirel v Stadt Schwäbisch Gmünd [1987] ECR 3719. . . 148, 237–41, 243–44, 267–68, 278, 280, 382 Case 45/86 Commission v Council (GSP) [1987] ECR 1493 . . . . . . . . . . . . . . . . . . . . . . . . . 35, 55, 151 Case 68/86 United Kingdom v Council [1988] ECR 855 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .50 Case 80/86 Criminal Proceedings against Kolpinguis Nijmegen BV [1987] ECR 3969 . . . . . . . . . .330 Case 81/86 De boer Buizen v Council and Commission [1987] ECR 3677 . . . . . . . . . . . . . . . . . . . .294 Joined Cases 294/86 and 77/87 Technointorg v Commission and Council [1988] ECR 6077 . . . .368 Case 299/86 Drexl [1988] ECR 1213 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .501 Case 51/87 Commission v Council [1988] ECR 5459 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27–28 Case 70/87 Fediol v Commission [1989] ECR 1781 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 301–02, 304 Case 85/87 Dow Benelux v Commission [1989] ECR 3137 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .372 Case C-87/89 Sonito and Others v Commission [1990] ECR I-1981 . . . . . . . . . . . . . . . . . . . . . . . . .290 Case C-131/87 Commission v Council [1989] ECR I-3764 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37 Case C-133/87 Nashua Corporation and others v Commission and Council [1990] ECR I-719 . .374 Case C-156/87 Gestetner Holdings v Council and Commission [1990] ECR I-781 . . . . . 368–69, 374 Case 165/87 Commission v Council [1989] ECR 5545 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30 Case 5/88 Wachauf v Bundesamt für Ernährung und Forstwirtschaft [1989] ECR 2609 . . . . . . . .498 Case 49/88 Al-Jubail Fertilizer Company and others v Council [1991] ECR 3187 . . . . . . . . . . 371–72 Case C-62/88 Greece v Council [1990] ECR 1527 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36, 55 Joined Cases C-297/88 and C-197/89 Dzodzi [1990] ECR I-3763 . . . . . . . . . . . . . . . . . . . . . . . . . . .241 Case C-323/88 Sermes v Directeur des services des douanes de Strasbourg [1990] ECR I-3027 . . . .369 Case C-106/89 Marleasing SA v La Comercial Internacionale de Alimentacion SA [1990] ECR I-4135 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .330 Case C-170/89 Bureau Européen des Unions de Consommateurs v Commission [1991] ECR I-5709 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366, 375 Case C-188/89 A. Foster and others v British Gas plc [1990] ECR I-3313 . . . . . . . . . . . . . . . . . . . .137 Case C-192/89 S.Z. Sevince v Staatssecretaris van Justitie [1990] ECR I-3461 . . . . . . . . . . . . . . . . .278 Case C-213/89 R. v Secretary of State for Transport, ex parte Factortame [1990] ECR I-2433 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251, 324 Case C-221/89 Factortame and Others [1991] ECR I-3905 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .502 Case C-231/89 Gmurzynska-Bscher [1990] ECR I-4003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .241 Case C-69/89 Nakajima v Council [1991] ECR I-2069 . . . . . . . . . . . . . . . . . . . . . . . . . 303–06, 367–68 Case C-170/89 Bureau Europeen des Unions de Consommateurs (BEUC) v Commission [1991] ECR I-5709 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366, 375 Case C-260/89 ERT [1991] ECR I-2925 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .372 Case C-300/89 Commission v Council (Titanium Dioxide) [1991] ECR I-1689 . . . . . . . . . . 54, 58, 64 Case C-358/89 Extramet Industrie v Council [1991] ECR I-2501 . . . . . . . . . . . . . . . . . . . . . . 373, 376 Case C-367/89 Criminal Proceedings against Aime Richard and Les Accessoires Scientifiques SNC [1991] ECR I-4621 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 487–88, 490–91, 500, 503 Case C-16/90 Nölle v Hauptzollamt Bremen-Freihafen [1991] ECR I-5163 . . . . . . . . . . . . . . 369, 377 Case C-18/90 Office national de l’emploi v Bahia Kziber [1991] ECR I-199. . . . . . . . . . . . . . 265, 269 Case C-163/90 Administration des Douanes et Droits Indirects v Leopold Legros and others [1992] ECR I-4625 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268, 273–75 Joined Cases C-258/90 and C-259/90 Pesquerias De Bermeo and Naviera Laida v Commission [1992] ECR I-2901 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .290 Case C-286/90 Anklagemindigheden v Poulsen and Diva Navigation [1992] ECR I-6019 . . 215, 226 Opinion 1/91 (Draft EEA Agreement) [1991] ECR I-6079 . . . . . . . . . . . . . . . . . . . . . . . . 191, 385, 414 Opinion 2/91 (Convention No 170 ILO on safety in the use of chemicals at work) [1993] ECR I-1061 . . . . . . . . . . . . . . . . . 83, 93, 98–101, 105, 118, 124, 177, 181, 196, 198, 231, 248, 341

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Case C-155/91 Commission v Council [1993] ECR I-939 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58 Case C-158/91 Ministère public and Direction du travail and de l’emploi v Levy [1993] ECR I-4287 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323, 330 Joined Cases C-181/91 and C-248/91 Parliament v Council and Commission (Bangladesh aid) [1993] ECR I-3685 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166–67, 535 Case C-207/91 Eurim-Pharm GmbH v Bundesgesundheitsaut [1993] ECR I-372 . . . . . . . . . . 273–75 Case C-316/91 Parliament v Council [1994] ECR I-625 . . . . . . . . . . . . . . . . . . . . 167, 170, 201, 535 Case C-327/91 France v Council (re: Competition Agreement with USA) [1994] ECR I-3641 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 53, 137, 158–60, 211 Case C-312/91 Metalsa [1993] ECR I-3751 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268, 272, 274 Opinion 2/92 (Third Revised Decision of the OECD on national treatment) [1995] ECR I-521 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111, 115, 233 Case C-75/92 Gao Yao (Hong Kong) Hua Fa Industrial Co. Ltd v Council [1994] ECR I-3141 . . . .369 Case C-91/92 Faccini Dori v Recreb [1994] ECR I-3325 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .266 Case C-188/92 TWD v Bundesrepublik Deutschland [1994] ECR I-833 . . . . . . . . . . . . . . . . . . . . . .377 Case C-379/92 Peralta [1994] ECR I-3453 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .214 Case C-405/92 Mondiet v Islais [1993] ECR I-6133 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .180 Case C-13/93 Office national de l’emploi v Minne [1994] ECR I-371 . . . . . . . . . . . . . . . . . . . . . . . .330 Joined Cases C-46/93 and C-48/93 Brasserie du Pecheur SA v Germany [1996] ECR I-1029 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251, 333 Case C-58/93 Zoubir Yousfi v Belgian State [1994] ECR I-1353 . . . . . . . . . . . . . . . . . . . . . . . . 265, 269 Case C-187/93 Parliament v Council [1994] ECR I-2857 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58, 66 Case C-280/93 Germany v Council [1994] ECR I-4973 . . . . . . . . . . . . . . . . . . . . . . . . . . . 281, 304, 498 Case C-360/93 Parliament v Council [1996] ECR I-1195 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72, 159 Case C-392/93 R v HM Treasury, ex p British Telecommunications plc [1996] ECR I-1631 . . . . .333 Case C-469/93 Amministrazione delle Finanze dello Stato v Chiquita Italia [1995] ECR I-4533 . . .281 Case C-473/93 Commission v Luxembourg [1996] ECR I-3207 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .323 Opinion 1/94 (WTO Agreements) [1994] ECR I-5267 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36–43, 45, 50, 52, 55, 58–59, 64, 70, 72–73, 101, 103, 105–11, 115 117–18, 126–28, 135, 161, 165, 170–71, 181–82, 202–04, 231–33, 240, 248, 341 Opinion 2/94 (Accession of the European Communities to the European Human Rights Convention) [1996] ECR I-1759 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51, 123–25, 231 Opinion 3/94 (Framework Agreement on Bananas) [1995] ECR I-4577 . . . . . . . . . . . . . . . . . . . . . .232 Case C-25/94 Commission v Council [1996] ECR I-1469 . . . . . . . . . . . . . 145, 179, 181–82, 234, 341 Case C-61/94 Commission v Germany [1996] ECR I-3989 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219, 307 Case C-70/94 Fritz Werner Industrie-Ausrüstungen GmbH v Germany [1995] ECR I-3189 . . . . . 55, 489–92, 494, 499–500, 506 Case C-80/94 Wielockx [1995] ECR I-2493 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .501 Case C-83/94 Criminal Proceedings against Peter Leifer and Others [1995] ECR I-3231 . . . . . . . . 55, 489–90, 500, 506 Case C-103/94 Krid v CNAVTS [1995] ECR I-719 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .269 Case C-107/94 Asscher [1996] ECR I-3089. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .501 Case C-120/94 Commission v Greece (re: Former Yugoslav Republic of Macedonia) [1996] ECR I-1513 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 480, 506 Case C-268/94 Portugal v Council [1996] ECR I-6177 . . . . . . . . . . . . . . . . . . . . . . . 56, 67, 69–70, 537 Case C-277/94 Taflan-Met [1996] ECR I-4085 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .280 Case C-28/95 Leur-Bloem v Inspecteur der Belastingdienst/Ondernemingen [1997] ECR I-4161 . . .241 Case C-84/95 Bosphorus Hava Yollari Turizm ve Ticaret AS v Minister for Transport, Energy and Communications and others [1996] ECR I-3953 . . . . . . . . . . . . . . . . . . . . . . . . . 497, 499, 502, 504 Joined Cases C-114/95 and C-115/95 Texaco A/S v Middelfaert Havn and others [1997] ECR I-4263 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .268

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Case C-120/95 Nicolas Decker v Caisse de maladie des employes prives [1998] ECR I-1831 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190, 501 Case C-124/95 The Queen, ex parte Centro-Com v HM Treasury and Bank of England [1997] ECR I-81 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55, 190, 323, 328, 415, 491, 499, 501–0240, 49, Case C-130/95 Giloy v Hauptzollamt Frankfurt am Main-Ost [1997] ECR I-4291 . . . . . . . . . . . . .241 Case C-150/95 Portugal v Council (oilseeds) [1997] ECR I-5863 . . . . . . . . . . . . . . . . . . . . . . . . . . . .303 Case C-177/95 Ebony Maritime SA and Loten Navigation Co. Ltd v Prefetto della Provincia di Brindisi and others [1997] ECR I-1111 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 502–03 Case C-183/95 Affish [1997] ECR I-4315 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .285 Case C-284/95 Safety-Tech Srl v S. & T. Srl [1998] ECR I-4301 . . . . . . . . . . . . . . . . . . . . . . . . . . . .308 Case C-265/95 Commission v France [1997] ECR I-6959 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .326 Case C-341/95 Giannio Bettati v Sagety Hi-Tech Srl [1998] ECR I-4355 . . . . . . . . . . . . . . . . 306, 308 Joined Cases C-364/95 and 365/95 T. Port GmbH & Co v Hauptzollampt Hamburg-Joans (T. Port III) [1998] ECR I-1023. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285, 323 Case C-22/96 Parliament v Council [1998] ECR I-3231 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .151 Case C-53/96 Hermès International v FHT Marketing [1998] ECR I-3603 . . . . . . 201, 238, 240–43, 249, 252–55, 285, 288, 308–09 Case C-147/96 Netherlands v Commission [2000] ECR I-4723 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .374 Case C-149/96 Portugal v Council [1999] ECR I-8395 . . . . . . . . . 252, 286–90, 293, 295–98,300, 308 Case C-158/96 Raymond Kohll v Union des caisses de maladie [1998] ECR I-1931 . . . . . . . 190, 501 Case C-162/96 Racke v Hauptzollampt Mainz [1998] ECR I-3655 . . . . 159, 226–27, 235, 309, 312–14 Case C-170/96 Commission v Council [1998] ECR I-2763 . . . . . . . . . . . . . . . . . . . . . . . . . . . 531, 533 Case C-262/96 Surul [1999] ECR I-2685 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .280 Case C-264/96 ICI v Colmer [1998] ECR I-4695 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .501 Case C-352/96 Italy v Council (tariff quotas on imports of rice) [1998] ECR I-6937 . . . . . . . . . . .303 Case C-355/96 Silhouette International Schmied GmbH & Co. KG v Hartlauer Handelsgeselschaft mbH [1998] ECR I-4799. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .274 Case C-104/97 P Atlanta AG v European Community [1999] ECR I-6983 . . . . . . . . . . . . . . . . 291-92 Case C-189/97 Parliament v Council [1999] ECR I-4741 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .151 Case C-269/97 Commission v Council [2000] ECR I-2257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54, 56 Case C-311/97 Royal Bank of Scotland [1999] ECR I-2651. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .501 Case C-414/97 Commission v Spain [1999] ECR I-5585 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .481 Case C-36/98 Spain v Council [2001] ECR I-779 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56, 499 Case C-37/98 Savas [2000] ECR I-2927 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 276, 293 Case C-62/98 Commission v Portugal [2000] ECR I-5171 . . . . . . . . . . . . . . . . . . . . . .326–27, 332, 339 Case C-84/98 Commission v Portugal [2000] ECR I-5215 . . . . . . . . . . . . . . . . . . . . . . . . . . 326–27, 339 C-84/98 Commission v Portugal [2000] ECR I-5171 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .321 Joined Cases C-164/97 and C-165/97 Parliament v Council [1999] ECR I-1139 . . . . . . . . . . 64, 151 Case C-170/98 Commission v Belgium (maritime transport agreement with Zaire) [1999] ECR I-5493 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323–25 Joined Cases C-171, C-201 and C-202/98 Commission v Belgium and Luxembourg (re: maritime transport agreements between the Belgo-Luxembourg Economic Union with Togo, Mali, Senegal and Cote d’Ivoire) [1999] ECR I-5517. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .323 Case C-237/98 P Dorsch Consult Ingenieurgesellschaft mbH v Council and Commission [2000] ECR I-4549 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .293 Joined Cases 300/98 and 392/98 Parfums Christian Dior SA v Tuk Consultancy BV, and Assco Gerüste GmbH, Rob van Dijk v Wilhelm Layher GmbH & Co. Kg, [2000] ECR I-11307 241–42, 247, 250, 288, 309 Case C-352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291 . . . . . . . . . . . . . . . . . .290 Case C-376/98 Germany v European Parliament and Council (Tobacco Advertising) [2001] ECR I-2247 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52

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Case C-377/98 Netherlands v Parliament and Council [2001] ECR I-7079 . . . . . . . . . . . . . . . . . . .208 Joined Cases C-397/98 and C-410/98 Metallgeselschaft and Others [2001] ECR I-1727 . . . . . . . .501 Case C-405/98 Konsumerntombudsmannen (KO) v Gourmet International Products AB (GIP) [2001] ECR I-1795 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .251 Case C-466/98 Commission v United Kingdom [2002] ECR I-9427 . . . . . . . . . . . . . . . . . . . . . 112, 118 Case C-467/98 Commission v Denmark [2002] ECR I-9519 . . . . . . . . . . . . . . . . . . . . . . . 112, 177, 342 Case C-468/98 Commission v Sweden [2002] ECR I-9575. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112, 342 Case C-469/98 Commission v Finland [2002] ECR I-9627 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112, 342 Case C-471/98 Commission v Belgium [2002] ECR I-9681 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112, 342 Case C-472/98 Commission v Luxembourg [2002] ECR I-9741 . . . . . . . . . . . . . . . . . . . . . . . . 112, 342 Case C-475/98 Commission v Austria [2002] ECR I-9797. . . . . . . . . . . . . . . . . . . . . . . . . 112, 342, 502 Case C-476/98 Commission v Germany [2002] ECR I-9855 . . . . . . . . . . 112, 114, 116, 119, 217, 342 Case C-29/99 Commission v Council [2002] ECR I-11221 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .175 Case C-89/99 Schieving-Nystad vof and Others and Robert Groeneveld [2001] ECR I-5851 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288, 310 Case C-157/99 B.S.M. Geraets-Smits and H.T.M. Peerbooms v Stichting Ziekenfonds VGZ and Stichting CZ Groep Zorgverzekeringen [2001] ECR I-5473 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .501 Case C-239/99 Nachi Europe GmbH v Hauptzollamt Krefeld [2001] ECR I-1197 . . . . . . . . . . . . . . .37 Case C-307/99 OGT v Hauptzollamt Hamburg-St Annen [2001] ECR I-3159. . . . . . . . . . . . 288, 305 Joined Cases C-414 to C-416/99 Davidoff and Levi Strauss [2001] ECR I-8691 . . . . . . . . . . . . . . .274 Opinion 1/00 (European Common Aviation Area) [2002] ECR I-3493 . . . . . . . . . . . . . . . . . . . . . . .233 Opinion 2/00 (Cartagena Protocol on Biosafety) [2001] ECR I-9713. . . 53, 55–61, 65–66, 110, 118, 138, 166, 176, 234, 523 Case C-13/00 Commission v Ireland [2001] ECR I-2943 . . . . . . . . . . . . . . . . . . . . . . . . . . . 202, 243–45 Joined Cases C-27/00 and C-122/00 Omega and Others [2002] ECR I-2569 . . . . . . . . . . . . . . . . .288 Case C-50/00 P Union de Pequeros Agricultores v Council [2002] ECR I-6677 . . . . . . . . . . . . 376–77 Case C-76/00 P Petrotub SA and Republica SA v Council and Commission [2003] ECR I-79 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305–06 Case C-112/00 Schmidberger [2003] ECR I-5659 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .499 Case C-312/00 P Commission v Camar and Others [2002] ECR I-11355. . . . . . . . . . . . . . . . . . . . .290 Case C-324/00 Lankhorst-Hohorst GmbH v Finanzamt Steinfurt [2002] ECR I-11779 . . . . . . . . .501 Case C-76/01 P Eurocoton and Others v Council [2003] ECR I-10091 . . . . . . . . . . . . . . 307, 373, 375 Case C-98/01 Commission v United Kingdom [2003] ECR I-4641 . . . . . . . . . . . . . . . . . . . . . . . . 46, 47 Case C-211/01 Commission v Council [2003] ECR I-8913 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .533 Case C-216/01 Budejovicku Budvar v Rudolf Ammersin GmbH [2003] ECR I-13617 . . 328–31, 340 Case C-281/01 Commission v Council [2002] ECR I-12049 . . . . . . . . . . . . . . . . . . . . . . . . 59, 138, 523 Case C-338/01 Commission v Council [2004] ECR I-4829 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64, 533 Case C-491/01 British American Tobacco (Investments) and Imperial Tobacco [2002] ECR I-11453 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64, 288 Joined Cases C-317/01 and C-369/01 Abatay [2003] ECR I-12301 . . . . . . . . . . . . . . . . . . . . . . . . . .276 Case C-93/02 P Biret International SA v Council [2003] ECR I-10497 . . . . . . . . . .292, 295, 296, 299 Case C-94/02 P Etablissements Biret et Cie SA v Council [2003] ECR I-10497 . . .292, 295, 296, 299 Case C-233/02 France v Commission [2004] ECR I-2759 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .137 Case C-286/02 Bellio F.Ili Srl v Prefettura di Treviso [2004] ECR I-3465 . . . . . . . . . . . . . . . . 219, 308 Case C-319/02 Manninen, [2004] ECR I-7477. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .501 Case C-334/02 Commission v France [2004] ECR I-2229 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .501 Case C-377/02 Léon Van Parys NV v Belgisch Interventie- en Restitutiebureau (BIRB) ECR, [2005] ECR I-1465 288–90, 295, 296 Opinion 1/03 (Lugano Convention) [2006] ECR I-1145 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120–23, 177 Case C-94/03 Commission v Council [2006] ECR I-1. . . . . . . . . . . . . . . . . . . . . . 61, 65, 138, 523, 533 Case C-147/03 Commission v Austria, [2005] ECR I-5969 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .323

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Case C-176/03 Commission v Council [2005] ECR I-7879 . . . . . . . . . . . . . . . . . . . . . . . . 444, 533, 535 Case C-178/03 Commission v European Parliament and Council [2006] ECR I-107 . . . . 63–64, 138 Case C-203/03 Commission v Austria [2005] ECR I-935 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .332 Case C-210/03 Swedish Match [2004] ECR I-11893 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64 Case C-239/03 Commission v France, [2004] ECR I–9325 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .245 Case C-265/03 Igor Simutenkov v Ministerio de Educación y Cultura, Real Federación Española de Fútbol, [2005] ECR I-2579 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267, 269 Case C-266/03 Commission v Luxembourg [2005] ECR I-4805 . . . . . . . . . . . . . . . . . . . . . . . 183, 341 Case C-295/03 P Allesandrini Srl and Others v Commission, [2005] ECR I-5673 . . . . . . . . . . . . . .290 Case C-347/03 Regione autonom Friuli-Venezia Giulia and ERSA v Ministero delle Politiche Agricole e Forestali ECR, [2005] ECR I-3785 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61, 67 Case C-433/03 Commission v Germany [2005] ECR I-6985 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .183 Case C-446/03 Marks & Spencer [2005] ECR I 10837 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .501 Case C-459/03 Commission v Ireland [2006] ECR I-4635 . . . . . . . . . . . . . . . . . . . . . .65, 184, 246, 341 Case C-214/04 Commission v Italy [2007] ECR I-3475 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .339 Joined Cases C – 282/04 and C-283/04 Commission v Netherlands [2006] ECR I-9141 . . . . . 46–47 Joined Cases C-317/04 and C-318/04 Parliament v Council [2006] ECR I-4721 . . . . . . . . . . . . . .444 Case C-344/04 IATA and ELFAA [2006] ECR I-403 . . . . . . . . . . . . . . . . . . . . . . . . .210, 220, 260, 337 Case C-487/04 Commission v Italy [2006] ECR I-85 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .339 Case C-522/04 Commission v Belgium [2007] ECR I-5701 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .339 Case C-524/04 Test Claimants in the Thin Cap Group litigation [2007] ECR I 2107 . . . . . . . . . . .501 Case C-16/05 Tum and Dari [2007] ECR I-7415l . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .276 Case C-91/05 Commission v Council [2008] ECR I-3651 . . . . . . . . . . . . . . . 69, 139–44, 523, 531–33 Case C-284/05 Commission v Finland [2009] ECR I-11705 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .481 Case C-294/05 Commission v Sweden [2009] ECR I-11777. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .481 Joined Cases C-402/05 P and C-415/05 P Kadi and Al-Barakaat [2008] ECR I-6351. . . . . . 67, 221, 224, 322, 505 Case C-337/05 Commission v Italy [2008] ECR I-2173 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .481 Case C-372/05 Commission v Germany [2009] ECR I-11801 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .481 Case C-378/05 Commission v Italy [2009] ECR I-11831 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .481 Case C-403/05 Parliament v Commission [2007] ECR I-9045 . . . . . . . . . . . . . . . . . . .69, 444, 539–40 Case C-409/05 Commission v Greece [2009] ECR I-11859 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .481 Case C-431/05 Merck Genéricos – Produtos Farmacêuticos Lda v Merck & Co. Inc., Merck Sharp & Dohme Ldª [2007] ECR I-7001 . . . . . . . . . . . . . . . . . . . . . . . . . . . .239, 246, 248–50 C-438/05 The International Transport Workers’ Federation and The Finnish Seamen’s Union [2007] ECR I-10779. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .501 Case C-440/05 Commission v Council [2007] ECR I-9097 . . . . . . . . . . . . . . . . . . . . .444, 533, 535–36 Case C-461/05 Commission v Denmark [2009] ECR I-11887 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .481 Joined Cases C-120/06 P and C-121/06 P FIAMM and Fedon [2008] ECR I-6513 . . . . . . 260, 292 Case C-157/06 Commission v Italy [2008] ECR I-7313 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .481 Case C-205/06 Commission v Austria [2009] ECR I-1301 . . . . . . . . . . . . . . . . . . . . . . . . . 334, 336–38 Case C-228/06 Soysal and Savatli [2009] ECR I-1031 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220, 276 Case C-239/06 Commission v Italy [2009] ECR I-11913 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .481 Case C-249/06 Commission v Sweden [2009] ECR I-1335. . . . . . . . . . . . . . . . . . . . . . . . . . 334, 336–38 Case C-308/06 Intertanko [2008] ECR I-4057 . . . . . . . . . . . . . . . . . . .214, 217–18, 220, 260, 263, 266 Joined Cases C-399/06 P and C-403/06 P Hassan and Ayadi v Council and Commission [2009] ECR I-11393. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .517 Case C-411/06 Commission v Parliament and Council [2009] ECR I-7585 . . . . . . . . . . . . . . . 66, 138 Case C-13/07 Commission v Council [2005] OJ C 115/10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52 Case C-45/07 Commission v Greece [2009] ECR I-701 . . . . . . . . . . . . . . . . . . . . . . . . . . . 197, 231, 341 Case C-118/07 Commission v Finland [2009] ECR I-10889 . . . . . . . . . . . . . . . . . . . . . . . . 334, 336–38

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Case C-188/07 Commune de Mesquer v Total France [2008] ECR I-4501 . . . . . . . . . . . . . . . 216, 316 Case C-203/07 P Greece v Commission [2008] ECR I-8161 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .313 Case C-246/07 Commission v Sweden [2010] ECR I-3317. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183, 191 Case C-370/07 Commission v Council [2009] ECR I-8917 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .156 Case C-478/07 Budĕjovický Budvar, národní podnik v Rudolf Ammersin GmbH [2009] ECR I-7721 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .329 Opinion 1/08 (GATS Schedules) [2009] ECR I-11129. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52 Joined Cases C-175/08, C-176/08, C-178/08 and C-179/08 Salahadin Abdulla and Others [2010] ECR I-0000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .218 Case C-13/08 Erich Stamm and Anneliese Hauser [2008] ECR I-11087 . . . . . . . . . . . . . . . . . . . . . .269 Case C-182/08 Glaxo Wellcome GmbH & Co. KG v Finanzamt München II [2009] ECR I-8591 . . .46 Case C-301/08 Bogiatzi [2009] ECR I-10185 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210, 213, 216 Case C-386/08 Brita [2010] ECR I-1289 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .211 Opinion 1/09 (Draft Agreement on the European and Community Patents Court) [2011] ECR I-1137 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .191 Case C-27/09 P France v OMPI, ECLI:EU:C:2011:853 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .522 Case C-31/09 Bolbol [2010] ECR I-5539 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .218 Case C-63/09 Walz [2010] ECR I-4239 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .210 Case C-70/09 Hengartner and Gasser v Landesregierung Voralberg [2010] I-7233 . . . . . . . . . . . . .269 Case C-160/09 Katsivardas [2010] ECR I-4501 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .210 Case C-240/09 Lesoochranárske zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky [2011] ECR I-1255 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249–50, 260 Joined Cases C-288/09 and C-289/09 British Sky Broadcasting Group and Pace, [2011] ECR I-2851 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .219 Case C-380/09 P Melli Bank plc, ECLI:EU:C:2012:137 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .520 Case C-548/09 P Bank Melli Iran v Council, ECLI:EU:C:2011:735 . . . . . . . . . . . . . . . . . . . . . 224, 517 Joined Cases C-7/10 and C-9/10 Staatssecretaris van Justitie v Tayfun Kahveci and Osman Inan, ECLI:EU:C:2011:673 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .267 Case C-79/10 Systeme Helmholz, ECLI:EU:C:2011:797 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .217 Case C-130/10 European Parliament v Council, ECLI:EU:C:2012:472. . . . . . . . . . . . . . . . . . . 512, 538 Case C-338/10 Grünwald Logistik Service GmbH (GLS) v Hauptzollamt Hamburg-Stadt, ECLI:EU:C:2012:158 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .370 Case C-366/10 Air Transport Association of America (ATAA) et, ECLI:EU:C:2011:864. . . . 159, 214, 216, 260, 269–70, 314, 318 Case C-376/10 P Tay Za v Council, ECLI:EU:C:2012:138 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .521 Joint Cases C-539/10 P and 550/10 P Stichting Al-Aqsa ECLI:EU:C:2012:711 . . . . . . . . . . . . . . . .522 Joined Cases C-584/10 P, C-593/10 P and C-595/10 P, Kadi II, ECLI:EU:C:2013:518. .223–25, 517, 519–20 Case C-615/10 Insinööritoimisto InsTiimi Oy, ECLI:EU:C:2012:324 . . . . . . . . . . . . . . . . . . . . . . . . .481 Case C-11/11 Air France v Folkerts, ECLI:EU:C:2013:106 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .211 Case C-35/11 Test Claimants in the FII Group Litigation v Commissioners of Inland Revenue, The Commissioners for Her Majesty’s Revenue & Customs, ECLI:EU:C:2012:707 . . . . . . . . . . . .46 Joined Cases C-320/11, C-330/11, C-382/11 and C-383/11 Digitalnet and Others [2012], ECLI:EU:C:2012:745 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .219 Case C-410/11 Espada Sánchez and Others, ECLI:EU:C:2013:479 . . . . . . . . . . . . . . . . . . . . . . . . . . .211 Case C-414/11 Daiichi Sankyo Co. Ltd Sanofi-Aventis Deutschland GmbH v DEMO Anonymos Viomichaniki kai Emporiki Etairia Farmakon, ECLI:EU:C:2013:520 . . . . . . . . . . . . 41, 44–45, 220 Case C-431/11 United Kingdom v Council, ECLI:EU:C:2013:589 . . . . . . . . . . . . . . . . . . . . . . . . . . . .386 Case C-658/11 European Parliament v Council, ECLI:EU:C:2014:2025 . . . . . . . . .143, 149, 444, 539 Case C-114/12 Commission v Council, ECLI:EU:C:2014:2151 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .140 Case C-137/12 Commission v Council, ECLI:EU:C:2013:675 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41–42

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C-239/12 P Abdulrahim, ECLI:EU:C:2013:331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .521 C-348/12 P Kala Naft, ECLI:EU:C:2013:776 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .520 C-356/12 Glatzel, ECLI:EU:C:2014:350 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .220 C-363/12 Z, ECLI:EU:C:2014:159 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220, 260 C-370/12 Pringle, ECLI:EU:C:2012:756 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169–70 C-377/12 Commission v Council, ECLI:EU:C:2014:1903 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .70 C-399/12 Germany v Council, ECLI:EU:C:2014:2258 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155–57 C-314/13 Vladimir Peftiev, ECLI:EU:C:2014:1645 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .521 C-481/13 Qurbani, ECLI:EU:C:2014:2101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .218 C-21/14 P-R Commission v Rusal Armenal, pending . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .371 C-263/14 European Parliament v Council, pending . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150, 539

B. GENERAL COURT (FORMERLY COURT OF FIRST INSTANCE) Joined Cases T-466, T-469, T-473, T-474 and T-477/93 O’Dwyer and Others v Council [1995] ECR II-2071 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .312 Case T-521/93 Atlanta AG and Others v Council [1996] ECR II-1707 . . . . . . . . . . . . . . . . . . . . . . 291 Case T-115/94 Opel Austria GmbH v Council [1997] ECR II-39 . . . . . . . . . . . . . . . .146, 227, 312–13 Case T-155/94 Climax Paper Converters Ltd v Council [1996] ECR II-873 . . . . . . . . . . . . . . . . . . .368 Case T-161/94 Sinochem Heilongjang v Council [1996] ECR II-695 . . . . . . . . . . . . . . . . . . . . . . . . .370 Case T-184/95 Dorsch Consult Ingenieurgesellschaft mbH v Council and Commission [1998] ECR II-667 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293–94 Case T-84/97 Bureau européen des unions des consommateurs (BEUC) v Commission [1998] ECR II-796 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .374 Case T- 267/97 Broome & Wellington v Commission [1998] ECR II-2191 . . . . . . . . . . . . . . . . . . . .374 Case T-34/98 Petrotub and Republica v Council [1999] ECR II-3837 . . . . . . . . . . . . . . . . . . . . 305–06 Case T-192/98 Eurocoton v Council, ECLI:EU:T:2005:104 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307, 373 Case T-3/99 Banatrading GmbH v Council [2001] ECR II-2123 . . . . . . . . . . . . . . . . . . . . 291, 304–05 Case T-18/99 Cordis Obst und Gemüse Großhandel GmbH v Commission [2001] ECR II-913 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291, 305 Case T-30/99 Bocchi Food Trade International GmbH v Commission [2001] ECR II-943 . . . . . . .291 Case T-52/99 T Port GmbH & Co KG v Commission [2001] ECR II-981 . . . . . . . . . . . . . . . 291, 305 Case T-196/99 Area Cova and Others v Council and Commission [2001] ECR II-3597 . . . . . . . .294 Case T- 69/00 FIAMM and FIAMM Technologies [2005] ECR II-5393 . . . . . . . . . . . . . . . . . . . . . .292 Case T-174/00 Biret International SA v Council [2002] ECR II-17 . . . . . . . . . . . . . . . . . . . . . . . . . .292 Case T-210/00 Etablissements Biret et Cie. SA v Council [2002] ECR II-47 . . . . . . . . . . . . . . . . . . .292 Case T-26/01 Fiocchi [2003] ECR II-3951 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .481 Joined Cases T-64/01 and T-65/01 Afrikanische Frucht-Compagnie GmbH and Internationale Fruchtimport Gesellschaft Weichert & Co v Council and Commission, [2004] ECR II-521 . . .294 Case T-135/01 Fedon & Figli and Others [2005] ECR II-29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .292 Case T-306/01 Ahmed AH Yusuf and Al Barakaat International Foundation v Council, [2005] ECR II-3533 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214, 220, 505, 514, 431 Case T-315/01 Kadi v Council and Commission [2005] ECR II-3649 . . . . . . . . . . . . . . . 214, 216, 220 Case T-228/02 Modjahedines v Council [2006] ECR II-4665 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .522 Case T-47/03 Sison v Council, [2007] ECR II-73. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 521–22 Case T-231/04 Greece v Commission [2007] ECR II-63 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .313 Case T-49/07 Fahas v Council [2010] ECR II-5555 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .521 Case T-256/07 OMPI v Council [2008] ECR II-3019 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .522 Case T-284/08 PMOI v Council [2008] ECR II-3487 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .522 Case T-85/09 Kadi v Commission [2010] ECR II-5177 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223, 516

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Case T-512/09 Rusal Armenal, ECLI:EU:T:2013:571 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .370 Case T-493/10 Persia International Bank plc, ECLI:EU:T:2013:398 . . . . . . . . . . . . . . . . . . . . . . . . . .520 Case T-256/11 Ezz et al, ECLI:EU:T:2014:93 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .521

C. INTERNATIONAL COURT OF JUSTICE Reparations for Injuries Suffered in the Service of the United Nations (1949) ICJ Rep. 174 . . . . . . .15 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (1980) ICJ Rep. 73 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .200

D. EUROPEAN COURT OF HUMAN RIGHTS Application no. 45036/98 Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v. Ireland . . . .499

E. NATIONAL COURTS Internationale Handelsgesellschaft v EVFG [1974] 2 CMLR 540 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .85 Crotty v An Taoiseach and Others [1987] 2 CMLR 666 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .413 Wünsche Handelsgesellschaft [1987] 3 CMLR 225 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .85 Brunner v European Union Treaty [1994] 1 CMLR 57 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85, 125

F. WTO DECISIONS Ireland – Measures Affecting the Grant of Copyright and Neighbouring Rights – Request for the Establishment of a Panel by the United States WT/DS82/2 of 12 January 1998 . . . . .203 European Communities – Measures Affecting the Grant of Copyright and Neighbouring Rights – Request for the Establishment of a Panel by the United States WT/DS115/2 of 12 January 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .203 European Communities – Customs Classification of Certain Computer Equipment – Report of the Panel WT/DS62/R, WT/DS67/R, WT/DS68/R of 5 February 1998 . . . . . . . . . .203 European Communities – Enforcement of Intellectual Property Rights for Motion Pictures and Television Programs – Request for Consultations by the United States WT/DS124/1 and WTO doc WT/DS125/1 respectively, both of 7 May 1998 . . . . . . . . . . . . . . . . . . . . . . . . . .203 European Communities – Customs Classification of Certain Computer Equipment – AB-1998-2 – Report of the Appellate Body WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/ AB/R of 5 June 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .203

Table of Legislation Table of Legislation

Table of Legislation

EU PRIMARY LAW

EC and EU Treaties Act of Accession (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345, 348–49 Art 6(2)–(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .346 Art 6(12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .346 Art 6(12)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .346 Treaty of Accession for Bulgaria and Romania (2005) [2005] OJ L157/4 Art 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .346 Treaty of Accession for Croatia [2012] OJ L112/10 Art 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .346 European Atomic Energy Community (EURATOM) Treaty . . . . . . . . . . . . . . . . . . .163–65, 390, 475 Art 102 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .174 Art 103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .166 Art 103–5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .230 Art 184 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 Single European Act 1986 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 411, 413–14, 423, 440 Title III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .413 Art 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .413 Art 30(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .413 Treaty Establishing a Constitution for Europe . . . .1, 7, 9, 44, 76, 381, 413, 416, 421, 425, 427, 430, 434, 449, 450, 479 Treaty Establishing the European Community (Consolidated Version) . . . . .12, 67–69, 80, 95, 124, 213, 215, 232, 260, 326 Title III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .100 Art 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 81–82, 168 Art 3(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .87 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .188, 192, 198, 269 Art 11(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .163 Art 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260–61 Art 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272, 282, 329 Art 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .272, 322, 329, 487 Art 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37 Art 44(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .390 Art 47(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .521 Art 48 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .348 Art 55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .390 Art 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .119 Art 60 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 497, 511 Art 60(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 338, 444 Art 71 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .390

xxv

xxvi

Table of Legislation

Art 74 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .78 Art 75(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .78 Art 75(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .103 Art 75(1)(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .90 Art 80(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .390 Art 84(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .112, 114–15, 117 Art 90 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272, 276 Art 93 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .390 Art 94 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .390 Art 95 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .60 Art 100 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 96 Art 100a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43 Art 100c. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .531 Art 115 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27 Art 116 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88, 173 Art 130s(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .163 Art 130u . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .68 Art 130u(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .68 Art 131 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 35 Art 132 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17 Art 133 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 52, 55, 67, 156, 164, 213, 240, 344, 390, 500 Art 133(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18 Art 133(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, Art 133(5)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .135 Art 133(6)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52 Art 133(6)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .135 Art 172 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .69 Art 174(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .56 Art 174(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55, 57, 163 Art 175(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .55, 56, 156, 1877 Art 177 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68, 69, 532 Art 177(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .68 Art 179(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .526 Art 181 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .67 Art 181a(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .526 Art 181(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .163 Art 210 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .158 Art 220 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .222 Art 228 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .215 Art 230 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233, 252, 532 Art 234 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210, 236, 238, 241, 243, 247 Art 234(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .235 Art 235 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43 Art 253 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .306 Art 281 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 Art 288 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .291 Art 296 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .481 Art 297 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .496 Art 300 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137, 159, 211, 2369, Art 300(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .192 Art 300(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .159

Table of Legislation xxvii Art 300(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .151 Art 300(3)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151, 152 Art 300(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .222, 232–34, 239 Art 300(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11, 243, 247, 250 Art 301 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215, 444, 496–97, 504, 511 Art 307 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212, 322, 327, 329, 337, 347, 501 Art 307(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .344 Art 308 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67, 68, 105, 124, 125, 240, 390, 505, 511 Art 310 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236, 237, 238 Treaty Establishing the European Coal and Steel Community (ECSC) . . . . . . . .2836, 390, 411, 448 Art 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19 Art 71 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37 Art 75(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .230 Treaty Establishing the European Economic Community (EEC) . . . . . . . . . . . 98, 163, 213, 258, 412 Part IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .261 Art 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .90 Art 110 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .212 Art 111(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .212 Art 113 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .212 Art 114 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .212 Art 115 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24–25 Treaty on European Union (Amsterdam) . . . . . . . . . . . . . . . . . . . . . . . . .31, 39, 44, 121, 427, 439, 448 Treaty on European Union (Maastricht) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 150–51, 163, 497 Art J.1(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .414 Art J.3(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .438 Art K.3(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .531 Treaty on European Union (Nice) . . . . . 12, 39–40, 44, 46, 71, 75, 133, 135, 153, 387, 439, 451–52, 463, 532, 535 Declaration 23 on the future of the Union [2001] OJ C80/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75 Treaty on European Union (TEU) (Consolidated Version) Title V . . . .10, 162, 384, 420, 422, 423, 429–30, 438, 440, 442, 444, 447, 458, 470, 511, 537, 538 Art 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12 Art 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 415 Art 3(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .135 Art 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .386 Art 4(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51 Art 4(3) . . . . .78, 81, 88, 95, 101, 145, 182, 186, 188, 192, 198, 211, 217, 251, 269, 324, 335, 341 Art 6(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124, 148 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .419 Art 11(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .534 Art 13(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .143 Art 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 341, 447 Art 17(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .141, 169, 432, 434 Art 17(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 428, 452 Art 18(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .428 Art 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .420–21, 537, 540 Art 22(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .426 Art 23(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 439, 532 Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141, 476 Art 24(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .138–39, 417, 419–21, 438, 443–44, 505, 512 Art 24(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 422, 429, 457

xxviii

Table of Legislation

Art 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .424 Art 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .427 Art 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .434 Art 28(2)–(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .423 Art 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150, 425, 539 Art 38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 454, 476 Art 46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .418, 447, 461, 531 Art 47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 158, 199–200, 416, 418, 531–33, 535 Art 48 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .189 Protocol (No 10) on permanent structured cooperation established by Article 42 of the Treaty on European Union. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .479 Protocol (No 22) on the position of Denmark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .450 Declaration No 10 (annexed to the TEU) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .163 Treaty on the Functioning of the European Union (TFEU) (Consolidated Version) Part V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9–10, 17, 76, 384 Title IV, Chapter II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39 Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 Art 2(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 Art 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .76 Art 3(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 76, 126–29, 177 Art 4(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 523, 535 Art 19(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52 Art 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260, 267, 353 Art 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272, 275, 282, 322, 329–30 Art 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .272, 274, 329, 487 Art 50(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .390 Art 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .348 Art 62 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .390 Art 63 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46, 335–36, 338 Art 64(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46, 135, 335, 338 Art 66 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 335, 338 Art 71 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 458, 495 Art 75 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 335, 405, 511–13, 538 Art 78(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218–19 Art 79(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52 Art 82 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150, 539 Art 84 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52 Art 87 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150, 539 Art 90 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .78 Art 91 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .70, 84, 91, 390 Art 94 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .78 Art 95 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78, 90 Art 95(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .78 Art 100(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112, 216, 390 Art 110 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272, 276 Art 113 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135, 390 Art 114 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41, 52, 60, 440 Art 115 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135, 390 Art 133(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .136 Art 137 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .438 Art 153 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .95

Table of Legislation xxix Art Art Art Art Art Art Art Art Art Art Art Art Art Art Art Art Art Art Art Art Art Art Art Art Art Art Art Art Art Art Art Art Art Art Art Art Art Art Art Art Art Art Art Art Art Art Art Art Art Art

153(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52, 93, 96 153(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .95 165(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .135 165(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52 166(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .136 166(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52 167(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52 168(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52 168(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .136 173(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52 189(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52 191(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56, 316–17 191(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, , 55, 57, 70, 163 192(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55, 57, 60, 62, 64 195(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52 196(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52 197(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52 206 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 17–18, 36 207 . . . 17–23, 25–26, 29, 31, 33–45, 47–48, 52, 54–55, 58, 64, 67, 70–73, 77, 103, 156, 164, 175, 213, 240, 344, 379, 390, 486, 489, 500 207(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 30–32, 38, 40–41, 44–46, 48, 52, 54, 62, 67, 524 207(2)–(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19, 133–34, 358 207(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .50 209(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .526 212 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148, 387, 526 214(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .524 214(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .134 215 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 335–36, 338–39, 341, 495, 504–05, 508, 511–13, 538 216 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 126–27 216(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .76, 127–29, 177 216(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209–12, 219, 236, 243, 254 217 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10, 75, 148, 150, 237–38, 276, 381–84, 386 218 . . . . . . . . . . . . . . . . . . . . 137, 140, 142, 148, 149–50, 164, 192, 210–11, 247, 254, 384, 444 218(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .138, 140, 141, 147 218(2)–(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .141 218(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138–41, 155, 165, 170, 431 218(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146–47, 154 218(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .147, 149–54, 382 218(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154–55 218(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .147–48, 382, 384 218(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154, 155, 192 218(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142–45, 149, 155–58 218(11) . . . . . . . . . . . . . . . . 21, 36, 55, 58, 121, 124, 149, 154, 166, 197, 201, 222, 230–39, 435 219 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .137 219(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .163 222 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 458–59 222(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .458 222(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .458 222(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .458 238(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135, 365 241 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .304

xxx

Table of Legislation

Art 257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .238 Art 258 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112, 184, 243, 245–46, 326 Art 266 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .159 Art 267 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210, 233, 235–36, 238, 239–45, 247, 251, 254, 330, 377 Art 268 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 117 Art 288 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265, 424 Art 289(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .128 Art 291(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134, 354, 358 Art 291(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134, 354, 368 Art 293(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .373 Art 340 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290–91 Art 347 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .221, 496, 506–08 Art 351 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212, 231–51, 501, 511 Art 351(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322, 330, 331, 341, 344 Art 351(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91–92, 324–27, 331–34, 337, 341, 342, 345–46, 350 Art 352 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102, 105, 124, 135, 390, 417, 505 Treaty Establishing the European Coal and Steel Community (ECSC) . . . . . . . … 37, 230, 390, 411 Art 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 Art 71 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37

International Agreements Agreement with the Caribbean, African and Pacific countries and Cooperation Agreements . . . . .244 Agreement establishing an association between the European Economic Community and Greece (Athens Agreement) [1961] OJ English Special Edition, Second Series, I External Relations (1) p 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .210 Art 53(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .276 Agreement on intellectual property rights between Austria and the Czechoslovak Socialist Republic in June 1976 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .328 Agreement between EEC and China on trade in textile products [1988] OJ L380/2 . . . . . . . . . . .43 Agreement between EEC and USSR on trade in textile products [1988] OJ L397/2 . . . . . . . . . . . .43 Agreement between EEC and Austria on the control and reciprocal protection of quality wines and ‘retsina’ wine [1989] OJ L56/2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43 Agreement Amending the Fourth ACP–EC Convention of Lomé December 1989 . . . .167–68, 277, 281 Agreement between the European Economic Community and the European Atomic Energy Community and the Union of Soviet Socialist Republics on trade and commercial and economic cooperation [1990] OJ 68/2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .390 Agreement between EC and Australia on trade in wine [1994] OJ L86/3 . . . . . . . . . . . . . . . . . . . . .43 Agreement between the French Republic, the European Atomic Energy Community and the International Atomic Energy Agency for the application of safeguards in connection with the Treaty for the Prohibition of Nuclear Weapons in Latin America and Caribbean [2000] OJ C298/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .164 Agreement between the members of the African, Caribbean and Pacific Group of States of the one part, and the European Community and its Member States, of the other part [2000] OJ L317/3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 382, 387, 532 Agreement between the European Union and Bosnia and Herzegovina (BiH) on the activities of the European Union Police Mission (EUPM) in BiH [2002] OJ L293/2 . . . . . . .474

Table of Legislation xxxi Agreement between the European Union and the Czech Republic on the participation of the Czech Republic in the European Union-led Forces in the Former Yugoslav Republic of Macedonia [2003] OJ L229/39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .471 Agreement between the European Union and the Czech Republic on the participation of the Czech Republic in the European Union Police Mission (EUPM) in Bosnia and Herzegovina (BiH) [2003] OJ L239/8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .471 Agreement between the European Union and the Government of the Swiss Confederation, represented by the Federal Department of Foreign Affairs, on the participation of Switzerland in the European Union Police Mission (EUPM) in Bosnia and Herzegovina (BiH) [2003] OJ L239/14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .471 Agreement between the European Union and the Kingdom of Norway on the participation of the Kingdom of Norway in the European Union Police Mission (EUPM) in Bosnia and Herzegovina (BiH) [2003] OJ L239/32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .471 Agreement between the European Union and the North Atlantic Treaty Organisation on the Security of Information [2003] OJ L80/36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .476 Agreement between the European Union and the Republic of Bulgaria on the participation of the Republic of Bulgaria in the European Union Police Mission (EUPM) in Bosnia and Herzegovina (BiH) [2003] OJ L239/41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .471 Agreement between the European Union and the Republic of Cyprus on the participation of the Republic of Cyprus in the European Union Police Mission (EUPM) in Bosnia and Herzegovina (BiH) [2003] OJ L239/2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .471 Agreement between the European Union and the Republic of Estonia on the participation of the Republic of Estonia in the European Union-led forces (EUF) in the Former Yugoslav Republic of Macedonia [2003] OJ L216/61 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .471 Agreement between the European Union and the Republic of Estonia on the participation of the Republic of Estonia in the European Union Police Mission (EUPM) in Bosnia and Herzegovina (BiH) [2003] OJ L239/26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .471 Agreement between the European Union and the Republic of Hungary on the participation of the Republic of Hungary in the European Union Police Mission (EUPM) in Bosnia and Herzegovina (BiH) [2003] OJ L239/20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .471 Agreement between the European Union and the Republic of Iceland on the participation of the Republic of Iceland in the European Union Police Mission (EUPM) in Bosnia and Herzegovina (BiH) [2003] OJ L239/5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .471 Agreement between the European Union and the Government of Latvia on the participation of the Republic of Latvia in the European Union-led forces (EUF) in the former Yugoslav Republic of Macedonia [2003] OJ L313/79. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .471 Agreement between the European Union and the Republic of Latvia on the participation of the Republic of Latvia in the European Union Police Mission (EUPM) in Bosnia and Herzegovina (BiH) [2003] OJ L239/17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .471 Agreement between the European Union and the Republic of Lithuania on the participation of the Republic of Lithuania in the European Union Police Mission (EUPM) in Bosnia and Herzegovina (BiH) [2003] OJ L239/11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .471 Agreement between the European Union and the Republic of Poland on the participation of Polish armed forces in the European Union force (EUF) in the former Yugoslav Republic of Macedonia [2003] OJ L285/44 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .471 Agreement between the European Union and the Republic of Poland on the participation of the Republic of Poland in the European Union Police Mission (EUPM) in Bosnia and Herzegovina (BiH) [2003] OJ L64/38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .471 Agreement between the European Union and the Republic of Slovenia on the participation of the Republic of Slovenia in the European Union Police Mission (EUPM) in Bosnia and Herzegovina (BiH) [2003] OJ L239/29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .471

xxxii Table of Legislation Agreement between the European Union and the Republic of Turkey on the participation of the Republic of Turkey in the European Union-led forces in the Former Yugoslav Republic of Macedonia [2003] OJ L234/23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .471 Agreement between the European Union and the Republic of Turkey on the participation of the Republic of Turkey in the European Union Police Mission (EUPM) in Bosnia and Herzegovina (BiH) [2003] OJ L239/35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .471 Agreement between the European Union and Romania on the participation of Romania in the European Union Police Mission (EUPM) in Bosnia and Herzegovina (BiH) [2003] OJ L239/23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .471 Agreement between the European Union and the Russian Federation on the participation of the Russian Federation in the European Union Police Mission (EUPM) in Bosnia and Herzegovina (BiH) [2003] OJ L197/38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .471 Agreement between the European Union and the Slovak Republic on the participation of the Slovak Republic in the European Union Police Mission (EUPM) in Bosnia and Herzegovina (BiH) [2003] OJ L239/44 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .471 Agreement between the European Union and Ukraine on the participation of Ukraine in the European Union Police Mission (EUPM) in Bosnia and Herzegovina (BiH) [2003] OJ L239/38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .471 Agreement between the Member States of the European Union concerning the status of military and civilian staff seconded to the institutions of the European Union, of the headquarters and forces which may be made available to the European Union in the context of the preparation and execution of the tasks referred to in Article 17(2) of the Treaty on European Union, including exercises, and of the military and civilian staff of the Member States put at the disposal of the European Union to act in this context (EU SOFA) [2003] OJ C321/6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .473 Agreement between the European Union and the Former Yugoslav Republic of Macedonia on the status and activities of the European Union Police Mission in the Former Yugoslav Republic of Macedonia (EUPOL Proxima) [2004] OJ L16/66 . . . . . . . . . . . . . . . . . . . . . . . . . . .474 Agreement between the European Union and Georgia on the status and activities of the European Union Rule of Law Mission in Georgia, EUJUST THEMIS [2004] OJ L389/42. . . . .473 Agreement between the European Union and the Kingdom of Norway on the participation of the Kingdom of Norway in the European Union Police Mission in the former Yugoslav Republic of Macedonia (EUPOL Proxima) [2004] OJ L354/86 . . . . . . . . . . . . . . . . . . . . . . . . . .471 Agreement between the European Union and the Republic of Turkey on the participation of the Republic of Turkey in the European Union Police Mission in the former Yugoslav Republic of Macedonia (EUPOL Proxima) [2004] OJ L354/90 . . . . . . . . . . . . . . . . . . . . . . . . . .471 Agreement between the European Union and Romania on the participation of Romania in the European Union-led forces (EUF) in the Former Yugoslav Republic of Macedonia [2004] OJ L120/62 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .471 Agreement between the European Union and the Slovak Republic on the participation of the armed forces of the Slovak Republic in the European Union-led Forces (EUF) in the Former Yugoslav Republic of Macedonia [2004] OJ L012/54 . . . . . . . . . . . . . . . . . . . . . . . . . . . .471 Agreement between the European Union and the Swiss Confederation on the participation of the Swiss Confederation in the European Union police mission in the former Yugoslav Republic of Macedonia (EUPOL Proxima) [2004] OJ L354/78 . . . . . . . . . . . . . . . . . . . . . . . . . .471 Agreement between the European Union and Ukraine on the participation of Ukraine in the European Union Police Mission in the former Yugoslav Republic of Macedonia (EUPOL Proxima) [2004] OJ L354/82 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .471 Agreement between the European Union and the Republic of Albania on the participation of the Republic of Albania in the European Union military crisis management operation in Bosnia and Herzegovina (Operation Althea) [2005] OJ L65/35 . . . . . . . . . . . . . . . . . . . . . . .471

Table of Legislation xxxiii Agreement between the European Union and the Kingdom of Morocco on the participation of the Kingdom of Morocco in the European Union military crisis management operation in Bosnia and Herzegovina (Operation Althea) [2005] OJ L34/47 . . . . . . . . . . . . . .471 Agreement between the European Union and the Kingdom of Norway establishing a framework for the participation of the Kingdom of Norway in the European Union crisis-management operations [2005] OJ L67/8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .477 Agreement between the European Union and New Zealand on the participation of New Zealand in the European Union military crisis management operation in Bosnia and Herzegovina (Operation Althea) [2005] OJ L127/28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .471 Agreement between the European Union and the Republic of Bulgaria establishing a framework for the participation of the Republic of Bulgaria in the EU crisis management operations [2005] OJ L46/50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .477 Agreement between the European Union and the Republic of Iceland establishing a framework for the participation of the Republic of Iceland in the European Union crisis-management [2005] OJ L67/2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .477 Agreement between the Former Yugoslav Republic of Macedonia and the European Union the security procedures for the exchange of classified information on exchange of classified information with Former Yugoslav Republic of Macedonia [2005] OJ L94/39 . . . . . . . . . . . . .476 Agreement between the European Union and Romania establishing a framework for the participation of Romania in the European Union crisis-management operations [2005] OJ L67/14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .477 Agreement between the European Union and Romania on security procedures for the exchange of classified information [2005] OJ L118/48 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .476 Geneva Agreement on Trade in Bananas [2010] OJ L141/3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .296 Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for the purposes of the Terrorist Finance Tracking Program [2010] OJ L195/5 . . . . . . . . . . . .153 Agreement on the Protection and Sustainable Development of the Prespa Park Area [2011] OJ L258/2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .163 Agreement between the United States of America and the European Union on the use and transfer of passenger name records to the United States Department of Homeland Security [2012] OJ L174/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .154 Agreement between the European Union and Australia on the processing and transfer of Passenger Name Record (PNR) data by air carriers to the Australian Customs and Border Protection Service [2012] OJ L18/4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .154 Association Agreement between the Association European Community and its Member States, of the one part, and the Republic of Chile, of the other part [2002] OJ L352/3 . . . . .382 Association Agreement concluded between the Community and its Member States and Turkey (Ankara Agreement) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236–39, 267, 276, 278 Berne Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202, 243–45 Central European Free Trade Agreement Art 6(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .345 Cooperation Agreement between the European Community and the Republic of India on partnership and development [1994] OJ L223/24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .69 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .69 Cooperation and Customs Union Agreement with San Marino [2002] OJ L84/43 . . . . . . . 146, 175 Cotonou Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .382, 387–89, 532 Dayton Peace Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .394 EC–USA Agreement on the processing and transfer of passenger name record data by air carriers to the United States Department of Homeland Security, Bureau of Customs and Border Protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .233

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Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Tunisia, of the other part [1998] OJ L97/2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .398 Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part [2000] OJ L70/2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .398 Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the State of Israel, of the other part [2000] OJ L147/3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .398 Euro-Mediterranean Agreement establishing an Association between the European Communities and their Member States, of the one part, and the Hashemite Kingdom of Jordan, of the other part [2002] OJ L129/3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 398, 399 Euro-Mediterranean Agreement establishing an Association between the European Communities and their Member States, of the one part, and the Arab Republic of Egypt, of the other part [2004] OJ L304/39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .398 Euro-Mediterranean Agreement establishing an Association between the European Communities and their Member States, of the one part, and the Republic of Algeria, of the other part [2005] OJ L265/2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .398 Euro-Mediterranean Agreement establishing an Association between the European Communities and their Member States, of the one part, and the Republic of Lebanon, of the other part [2006] OJ L143/2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .398 Euro-Mediterranean Interim Association Agreement on trade and cooperation between the European Community, of the one part, and the Palestine Liberation Organization (PLO) for the benefit of the Palestinian Authority of the West Bank and the Gaza Strip, of the other part [1997] OJ L187/3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 398, European Convention on Human Rights (ECHR) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124, 231, 269 European Economic Area Agreement (EEA) [1994] OJ L1/3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .385 Protocol 28, Article 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243–44 Framework Agreement on a Multilateral Nuclear Environmental Programme in the Russian Federation and its Protocol on Claims, Legal Proceedings and Indemnification . . . . . . . . . . .164 Free Trade Agreement with Austria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .268, 272–74, 312 Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .273 Art 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .273 Free Trade Agreement between the Community and Portugal [1972] English Special Edition L 301/165 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211, 260, 262–63, 271–72 Art 14(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .271 Art 21(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262, 267–68 Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .271 Free Trade Agreement between the Community and Sweden [1972] OJ L300/96 Art 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268, 273 Free trade Agreement between the European Union and its Member States, of the one part, and the Republic of Korea, of the other part [2011] OJ L127/6. . . . . . . . . . . . . . . . . . . . . . 380–81 Friendship, Navigation and Commerce Agreement between Germany and the United States 1954 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .343 Art 17(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .343 General Agreement on Tariffs and Trade (GATT 1947)….36, 212, 215, 259, 285–86, 298, 323, 371 Art V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281, 319 Art XI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .259 Anti-Dumping Code annex . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .304 General Agreement on Tariffs and Trade (GATT 1994) . . . 36, 203, 285–86, 288–89, 303, 305, 371 Art II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .203

Table of Legislation xxxv Art VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 357, 362 Agreement on Trade-Related Aspects of Intellectual Property Rights . . . . . . . . . . … 36, 101, 288 Agreement on Textiles and Clothing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .286 Government Procurement Agreement between EC and USA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .344 ILO Convention No 170 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93–98, 100, 196, 231 Interim Agreement on Trade and Trade-related matters between EEC and ECSC and Czech and Slovak Republic [1992] OJ L115/2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43 Interim Agreement on Trade and Trade-related matters between EEC and ECSC and Hungary [1992] OJ L116/2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43 Interim Agreement on Trade and Trade-related matters between EEC and ECSC and Bulgaria [1993] OJ L323/2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43 International Agreement on Natural Rubber . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 33, 35, 172, 489 Investment, Promotion and Protection Agreement between the UK and Paraguay Art 7(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .347 Lomé Conventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167–68, 260, 277, 281, 387 Multi-Fibre Agreement on Textiles and Clothing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .354 Memorandum of Understanding Between the European Commission and the Ministry of Commerce of the People’s Republic of China on the Export of Certain Chinese Textile and Clothing Products to the European Union, 12 June 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . .354 North East Atlantic Fisheries Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87, 183 Open Aviation Area Agreement between the EC and United States . . . . . . . . . . . . . . . . . . . . . . . . .342 Partnership and Cooperation Agreement (PCA) between the European Communities and their Member States and Belarus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .389 Partnership and Cooperation Agreement between the European Communities and their Member States, of one part, and the Russian Federation, of the other part [1997] OJ L327/3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .267, 389–90, 392 Art 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .392 Partnership and Cooperation Agreement between the European Communities and their Member States, and Ukraine [1998] OJ L49/3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 389–90, 392 Art 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .392 Partnership and Cooperation Agreement between the European Communities and their Member States and the Republic of Moldova [1998] OJ L181/3 . . . . . . . . . . . . . . . . . 389, 391–92 Partnership and Cooperation Agreement between the European Communities and their Member States and the Republic of Kazakhstan [1999] OJ L196/3 . . . . . . . . . . . . . . . . . . . . . . .389 Partnership and Cooperation Agreement between the European Communities and their Member States, of the one part, and Georgia, of the other part [1999] OJ L205/3 . . . . . . . . .389 Partnership and Cooperation Agreement establishing a partnership between the European Communities and their Member States, of the one part, and the Kyrgyz Republic, of the other part [1999] OJ L196/48 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .389 Partnership and Cooperation Agreement between the European Communities and their Member States, of the one part, and the Republic of Armenia, of the other part [1999] OJ L239/3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .389 Art 68 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .392 Partnership and Cooperation Agreement between the European Communities and their Member States, of the one part, and the Republic of Azerbaijan, of the other part [1999] OJ L246/3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .389 Art 71 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .392 Partnership and Cooperation Agreement establishing a partnership between the European Communities and their Member States, of the one part, and the Republic of Uzbekistan, of the other part [1999] 229/3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 389, 392

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Partnership and Cooperation Agreement (PCA) between the European Communities and their Member States and Turkmenistan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .389 Partnership and Cooperation Agreement (PCA) establishing a partnership between the European Communities and their Member States, of the one part, and the Republic of Tajikistan, of the other part [2009] L 350/3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 389, 392 Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the former Yugoslav Republic of Macedonia, of the other part [2004] OJ L84/13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 393–95 Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Croatia, of the other part [2005] OJ L26/3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .394 Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and Bosnia and Herzegovina, of the other part [2008] OJ L169/13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 393, 395 Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Albania, of the other part [2009] OJ L107/166 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .393 Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Montenegro, of the other part [2010] OJ L108/3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .393 Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Serbia, of the other part [2013] OJ L278/16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .393 Trade and Cooperation Agreement with the Soviet Union [1989] OJ L68/3 . . . . . . . . . . . . . . . . .390 United Nations Convention on the Law of the Sea . . . 65, 173, 175, 184–91, 227–28, 246, 263–64, 266, 315 United Nations Draft Articles on the International Responsibility of International Organisations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .200 Art 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .200 Art 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200–01 Art 6(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .201 Art 6(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .201 Vienna Convention on the Law of Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56, 146, 159, 325, 338 Art 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146, 312, 313 Art 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209, 321 Art 30(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .321 Art 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56, 336 Art 62 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227, 312, 339 World Trade Organisation Agreement. . . . . . 36, 39, 45, 73, 104, 111, 150, 166, 170, 232, 240, 242, 247, 252–253, 263, 282–87, 289, 294, 298, 300, 308, 371 Article XVI(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .295 WTO Agreement on Agriculture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37 WTO Agreement on Application of Sanitary and Phytosanitary Measures . . . . . . . . . . . 37, 285, 292 WTO Agreement on Import Licensing Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .286 WTO Agreement on Subsidies and Countervailing Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .355 WTO Agreement on Technical Barriers to Trade . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 288, 308 WTO Agreement on Textiles and Clothing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .286 WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) . . . .36, 42–46, 52, 101–02, 104–08, 110, 118, 154, 165, 201, 203, 240–43, 246–48, 252–54, 285, 288, 308–10 Art 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .309 Art 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .253

Table of Legislation xxxvii Art 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240-43, 252, 254–55, 309–10 Art 50(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240, 252–53, 309–11 Art 62 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .309 WTO Anti-Dumping Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 357–78 WTO General Agreement on Trade in Services (GATS). . . . . . . . . 36, 38–39, 41–42, 101–103, 105, 107–108, 110, 118, 127 WTO International Dairy Arrangement (IDA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219, 307 Yaoundé Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .170, 260–61, 267

SECONDARY EU LEGISLATION

EU Directives Council Directive 67/548/EEC of 27 June 1967 on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances [1967] OJ L196/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .96 Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions [1976] L 39/40 . . . . . . . . . . . . . . . . . . . . 332–34 Council Directive 79/831/EEC of 18 September 1979 amending for the sixth time Directive 67/548/EEC on the approximation of the laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances [1979] OJ L259/10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .96 Council Directive 80/1107/EEC of 27 November 1980 on the protection of workers from the risks related to exposure to chemical, physical and biological agents at work [1980] OJ L327/8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96–97 Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations [1983] OJ L109/8 . . . . . . .494 Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the Treaty [1988] OJ L178/5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46–47 Council Directive 88/379/EEC of 7 June 1988 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the classification, packaging and labelling of dangerous preparations [1988] OJ L187/14 . . . . . . . . . . . . . . . . . . . .96 First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks [1989] OJ L40/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .274 Second Council Directive 89/646/EEC of 15 December 1989 on the coordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions and amending Directive 77/780/EEC [1989] OJ L386/1 103, 127 Eleventh Council Directive 89/666/EEC of 21 December 1989 concerning disclosure requirements in respect of branches opened in a Member State by certain types of company governed by the law of another State [1989] OJ L395/36. . . . . . . . . . . . . . . . . . . . . . .103 Council Directive 90/531/EEC of 17 September 1990 on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors [1990] OJ L297/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .343 Council Directive 90/618/EEC of 8 November 1990 amending, particularly as regards motor vehicle liability insurance, Directive 73/239/EEC and Directive 88/357/EEC which concern the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance [1990] OJ L330/44 . . . . . . . . . . . . . . . . . . . . . . . . . . .103

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Council Directive 90/675/EEC of 10 December 1990 laying down the principles governing the organization of veterinary checks on products entering the Community from third countries [1990] OJ L373/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .285 Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors [1992] OJ L76/14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .343 Council Directive 92/75/EEC of 22 September 1992 on the indication by labelling and standard product information of the consumption of energy and other resources by household appliances [1992] OJ L297/16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .60 Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors [1993] OJ L199/84 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .343 Directive 98/4/EC of the European Parliament and of the Council of 16 February 1998 amending Directive 93/38/EEC coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors [1998] OJ L101/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .345 Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998 amending Directive 98/34/EC laying down a procedure for the provision of information in the field of technical standards and regulations [1998] OJ L217/18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .494 Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors [2004] OJ L134/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .481 Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts [2004] OJ L134/114 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .481 Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005 on ship-source pollution and on the introduction of penalties, particularly criminal penalties, for infringements [2005] OJ L255/11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .263 Directive 2006/93/EC of the European Parliament and of the Council of 12 December 2006 on the regulation of the operation of aeroplanes covered by Part II, Chapter 3, Volume 1 of Annex 16 to the Convention on International Civil Aviation, second edition (1988), [2006] OJ L 374/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .216 Directive 2008/101/EC of the European Parliament and of the Council of 19 November 2008 amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community [2009] OJ L8/3 . . 216, 264, 270, 314–15, 318–19 Directive 2009/43/EC of the European Parliament and of the Council of 6 May 2009 simplifying terms and conditions of transfers of defence-related products within the Community [2009] OJ L146/1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 481–82 Directive 2009/81/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities or entities in the field of defence and security, and amending Directives 2004/17/EC and 2004/18/EC [2009] OJ L216/76 . . .481 Commission Directive 2012/10/EU of 22 March 2012 amending Directive 2009/43/EC as regards the list of defence-related products [2012] OJ L85/3 . . . . . . . . . . . . . . . . . . . . . . . . . .482

Table of Legislation xxxix EU Regulations Regulation (EEC) No 950/68 of the Council of 28 June 1968 on the common customs tariff [1968] OJ L172/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .353 Regulation (EEC) No 543/69 of the Council of 25 March 1969 on the harmonisation of certain social legislation relating to road transport [1969] OJ L77/49 . . . . . . . .77–78, 81–82, 86 Regulation (EEC) No 2603/69 of the Council of 20 December 1969 establishing common rules for exports [1969] OJ English Special Ed (II) 590 . . . . . . . . . . . . . . . . . . . . . . . . . . . 486, 489 Regulation (EEC) No 2141/70 of the Council of 20 October 1970 laying down a common structural policy for the fishing industry [1970] OJ English Special Ed (III) 703 . . . . . . . . . . .88 Regulation (EEC) No 2142/70 of the Council of 20 October 1970 on the common organisation of the market in fishery products [1970] OJ English Special Ed (III) 707. . . . . . .88 Council Regulation (EEC) No 222/77 of 13 December 1976 on Community transit [1977] OJ L38/1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .487 Council Regulation (EEC) No 1468/81 of 19 May 1981 on mutual assistance between the administrative authorities of the Member States and cooperation between the latter and the Commission to ensure the correct application of the law on customs or agricultural matters [1981] OJ L144/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .502 Council Regulation (EEC) No 288/82 of 5 February 1982 on common rules for imports [1982] OJ L35/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23 Council Regulation (EEC) No 1934/82 of 12 July 1982 amending Regulation (EEC) No 2603/69 establishing common rules for exports [1982] OJ L211/1 . . . . . . . . . . . . . . . . . . . .355 Council Regulation (EEC) No 3589/82 of 23 December 1982 on common rules for imports of certain textile products originating in third countries [1982] OJ L374/106 . . . . . . . . . . . . . .24 Council Regulation (EEC) No 3420/83 of 14 November 1983 on import arrangements for products originating in State-trading countries, not liberalized at Community level [1983] OJ L346/6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23 Council Regulation (EEC) No 2176/84 of 23 July 1984 on protection against dumped or subsidized imports from countries not members of the European Economic Community [1984] OJ L201/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .303 Council Regulation (EEC) No 2641/84 of 17 September 1984 on the strengthening of the common commercial policy with regard in particular to protection against illicit commercial practices [1984] OJ L252/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302–03, 355 Council Regulation (EEC) No 3094/86 of 7 October 1986 laying down certain technical measures for the conservation of fishery resources [1986] OJ L288/1 . . . . . . . . . . . . . . . . . . . .226 Council Regulation (EEC) No 3677/86 of 24 November 1986 laying down provisions for the implementation of Regulation (EEC) No 1999/85 on inward processing relief arrangements [1986] OJ L351/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .307 Council Regulation (EEC) No 3842/86 of 1 December 1986 laying down measures to prohibit the release for free circulation of counterfeit goods [1986] OJ L357/1 . . . . . . . . . . . . .42 Council Regulation (EEC) No 4055/86 of 22 December 1986 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries [1986] OJ L378/1 . . . . . . . . . . . . . . . . . . . . . . . . . . 103, 323–27 Council Regulation (EEC) No 4058/86 of 22 December 1986 concerning coordinated action to safeguard free access to cargoes in ocean trades [1986] OJ L378/21 . . . . . . . . . 102–03 Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff [1987] OJ L256/1 . . . . . . . . . . . . . . . . . . . .353 Council Regulation (EEC) No 2423/88 of 11 July 1988 on protection against dumped or subsidized imports from countries not members of the European Economic Community [1988] OJ L209/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .303

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Council Regulation (EEC) No 2299/89 of 24 July 1989 on a code of conduct for computerized reservation systems [1989] OJ L220/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .113 Council Regulation (EEC) No 2340/90 of 8 August 1990 preventing trade by the Community as regards Iraq and Kuwait [1990] OJ L213/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .496 Council Regulation (EEC) No 3155/90 of 29 October 1990 extending and amending Regulation (EEC) No 2340/90 preventing trade by the Community as regards Iraq and Kuwait [1990] OJ L304/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .496 Commission Regulation (EEC) No 2228/91 of 26 June 1991 laying down provisions for the implementation of Regulation (EEC) No 1999/85 on inward processing relief arrangements [1991] OJ L210/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .307 Council Regulation (EEC) No 3918/91 of 19 December 1991 amending Regulation (EEC) No 2603/69 establishing common rules for exports [1991] OJ L372/31 . . . . . . . . . . . . . . 486, 489 Council Regulation (EEC) No 443/92 of 25 February 1992 on financial and technical assistance to, and economic cooperation with, the developing countries in Asia and Latin America [1992] OJ L52/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .539 Council Regulation (EEC) No 1432/92 of 1 June 1992 prohibiting trade between the European Economic Community and the Republics of Serbia and Montenegro [1992] OJ L151/4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 499–500 Council Regulation (EEC) No 2407/92 of 23 July 1992 on licensing of air carriers [1992] OJ L240/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .112 Council Regulation (EEC) No 2408/92 of 23 July 1992 on access for Community air carriers to intra-Community air routes [1992] OJ L240/8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .112 Council Regulation (EEC) No 2409/92 of 23 July 1992 on fares and rates for air services [1992] OJ L240/15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .112 Council Regulation (EEC) No 404/93 of 13 February 1993 on the common organization of the market in bananas [1993] OJ L47/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .281, 285, 291, 305 Council Regulation (EEC) No 990/93 of 26 April 1993 concerning trade between the European Economic Community and the Federal Republic of Yugoslavia (Serbia and Montenegro) [1993] OJ L102/14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 497–98, 502–03 Council Regulation (EEC) No 1461/93 of 8 June 1993 concerning access to public contracts for tenderers from the United States of America [1993] OJ L146/1 . . . . . . . . . . . . . . . . . . . . . .344 Council Regulation (EC) No 3697/93 of 20 December 1993 withdrawing tariff concessions in accordance with Article 23 (2) and Article 27 (3) (a) of the Free Trade Agreement between the Community and Austria (General Motors Austria) [1993] OJ L343/1 . . . . . . . .312 Council Regulation (EEC) No 3030/93 of 12 October 1993 on common rules for imports of certain textile products from third countries [1993] OJ L275/1. . . . . . . . . . . . . . . . . . . . . . . . . .354 Council Regulation (EEC) No 3089/93 of 29 October 1993 amending Regulation (EEC) No 2299/89 on a code of conduct for computerized reservation systems [1993] OJ L278/1 . . . .113 Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark [1994] OJ L11/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .240 Council Regulation (EC) No 517/94 of 7 March 1994 on common rules for imports of textile products from certain third countries not covered by bilateral agreements, protocols or other arrangements, or by other specific Community import rules [1994] OJ L67/1 . . . . . . .354 Council Regulation (EC) No 3286/94 of 22 December 1994 laying down Community procedures in the field of the common commercial policy in order to ensure the exercise of the Community’s rights under international trade rules, in particular those established under the auspices of the World Trade Organization [1994] OJ L349/71 . . . . . . . . . . . . . . . . .355 Council Regulation (EC) No 3381/94 of 19 December 1994 setting up a Community regime for the control of exports of dual-use goods [1994] OJ L367/1 . . . . . . . . . . . . . . . . . . . . . . 488–89

Table of Legislation xli Council Regulation (EC) no 456/95 of 20 February 1995 amending Regulation (EEC) No 3438/92 laying down special measures for the transport of certain fresh fruit and vegetables originating in Greece as regards the duration of their application [1995] OJ L47/3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .355 Council Regulation (EC) No 1488/96 of 23 July 1996 on financial and technical measures to accompany (MEDA) the reform of economic and social structures in the framework of the Euro-Mediterranean partnership [1996] OJ L189/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .399 Council Regulation (EC) No 2026/97 of 6 October 1997 on protection against subsidized imports from countries not members of the European Community [1997] OJ L288/1 . . . . .355 Council Regulation (EC) No 2666/2000 of 5 December 2000 on assistance for Albania, Bosnia and Herzegovina, Croatia, the Federal Republic of Yugoslavia and the Former Yugoslav Republic of Macedonia, repealing Regulation (EC) No 1628/96 and amending Regulations (EEC) No 3906/89 and (EEC) No 1360/90 and Decisions 97/256/EC and 1999/311/EC [2000] OJ L306/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .395 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents [2001] OJ L145/43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .472 Commission Regulation (EC) No 358/2002 of 26 February 2002 imposing a provisional anti-dumping duty on imports of certain tube and pipe fittings, of iron or steel originating in the Czech Republic, Malaysia, Russia, the Republic of Korea and Slovakia and accepting an undertaking offered by an exporting producer in Slovakia [2002] OJ L56/4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 359–60 Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan [2002] OJ L139/9. . . . . . . . .512, 515–16, 518 Council Regulation (EC) No 1972/2002 of 5 November 2002 amending Regulation (EC) No 384/96 on the protection against dumped imports from countries not members of the European Community [2002] OJ L305/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .342 Commission Regulation (EC) No 1381/2002 of 29 July 2002 laying down detailed rules for opening and administration of the tariff quotas for raw cane sugar for refining, originating in the least developed countries, for the marketing years 2002/03 to 2005/06 [2002] OJ L200/14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .356 Commission Regulation (EC) No 1401/2002 of 31 July 2002 laying down detailed rules for the opening and administration of the tariff quotas for rice, originating in the least developed countries, for the marketing years 2002/03 to 2008/09 [2002] OJ L203/42 . . . . . .356 Council Regulation (EC) No 807/2003 of 14 April 2003 adapting to Decision 1999/468/EC the provisions relating to committees which assist the Commission in the exercise of its implementing powers laid down in Council instruments adopted in accordance with the consultation procedure (unanimity) [2003] OJ L122/36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .539 Regulation (EC) No 304/2003 of the European Parliament and of the Council of 28 January 2003 concerning the export and import of dangerous chemicals [2003] OJ L63/1 . . . . . 64, 192 Council Regulation (EC) No 461/2004 of 8 March 2004 amending Regulation (EC) No 384/96 on protection against dumped imports from countries not members of the European Community and Regulation (EC) No 2026/97 on protection against subsidised imports from countries not members of the European Community [2004] OJ L77/12 . . . . .358 Council Regulation (EC) No 533/2004 of 22 March 2004 on the establishment of European partnerships in the framework of the stabilisation and association process [2004] OJ L86/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .396

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Council Regulation (EC) No 2257/2004 of 20 December 2004 amending Regulations (EEC) No 3906/89, (EC) No 1267/1999, (EC) No 1268/1999 and (EC) No 2666/2000, to take into account of Croatia’s candidate status [2004] OJ L389/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .395 Commission Regulation (EC) No 1084/2005 of 8 July 2005 amending Annexes II, III and V to Council Regulation (EEC) No 3030/93 on common rules for imports of certain textile products from third countries [2005] OJ L177/19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .354 Commission Regulation (EC) No 1478/2005 of 12 September 2005 amending Annexes V, VII and VIII to Council Regulation (EEC) No 3030/93 on common rules for imports of certain textile products from third countries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .354 Council Regulation (EC) No 2112/2005 of 21 November 2005 on access to Community external assistance [2005] OJ L344/24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .399 Council Regulation (EC) No 1085/2006 of 17 July 2006 establishing an Instrument for Pre-Accession Assistance (IPA) [2006] OJ L210/82 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 395, 525 Regulation (EC) 1638/2006 of the European Parliament and of the Council of 24 October 2006 laying down general provisions establishing a European Neighbourhood and Partnership Instrument [2006] OJ L310/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .525 Regulation (EC) No 1717/2006 of the European Parliament and of the Council of 15 November 2006 establishing an Instrument for Stability [2006] OJ L327/1 . . . . . . . . . 526–27 Regulation (EC) No 1889/2006 of the European Parliament and of the Council of 20 December 2006 on establishing a financing instrument for the promotion of democracy and human rights worldwide [2006] OJ L386/1) . . . . . . . . . . . . . . . . . . . . . . . . . . . .525 Regulation (EC) No 1905/2006 of the European Parliament and of the Council of 18 December 2006 establishing a financing instrument for development cooperation [2006] OJ L378/41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .525 Council Regulation (EC) No 1934/2006 of 21 December 2006 establishing a financing instrument for cooperation with industrialised and other high-income countries and territories [2006] OJ L405/41. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .525 Council Regulation (EURATOM) 300/2007 of 19 February 2007 establishing an Instrument for Nuclear Safety Cooperation [2007] OJ L81/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .525 Council Regulation (EC) No 450/2008 of 23 April 2008 laying down the Community Customs Code (Modernised Customs Code) [2008] OJ L145/1 . . . . . . . . . . . . . . . . . . . . . . . . .353 Council Regulation (EC) No 479/2008 29 April 2008 on the common organisation of the market in wine, amending Regulations (EC) No 1493/1999, (EC) No 1782/2003, (EC) No 1290/2005, (EC) No 3/2008 and repealing Regulations (EEC) No 2392/86 and (EC) No 1493/1999 [2008] OJ L148/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .157 Commission Regulation (EC) No 1109/2008 of 6 November 2008 amending for the 100th time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban [2008] OJ L299/23 . . . . . . . . . . . . . . . . . . . . . . .515 Commission Regulation (EC) No 1190/2008 of 28 November 2008 amending for the 101st time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban [2008] OJ L322/25 . . . . . . . . . . . . . . . . . . . . . . .516 Council Regulation (EC) No 491/2009 of 25 May 2009 amending Regulation (EC) No 1234/2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) [2009] OJ L154/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .157 Regulation (EC) No 1900/2006 of the European Parliament and of the Council of 20 December 2006 amending Council Regulation (EEC) No 3922/91 on the harmonisation of technical requirements and administrative procedures in the field of civil aviation [2006] OJ L377/176 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .216

Table of Legislation xliii Council Regulation (EC) No 260/2009 of 26 February 2009 on the common rules for imports [2009] OJ L84/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 354, 506 Regulation (EC) No 398/2009 of the European Parliament and of the Council of 23 April 2009 amending Council Regulation (EC) No 338/97 on the protection of species of wild fauna and flora by regulating trade therein, as regards the implementing powers conferred on the Commission [2009] OJ L126/5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .156 Council Regulation (EC) No 428/2009 of 5 May 2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items [2009] OJ L134/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355, 492–94 Council Regulation (EC) No 597/2009 of 11 June 2009 on protection against subsidised imports from countries not members of the European Community [2009] OJ L188/93 . . . .355 Council Regulation (EC) No 625/2009 of 7 July 2009 on common rules for imports from certain third countries [2009] OJ L185/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .354 Council Regulation (EC) No 1061/2009 of 19 October 2009 establishing common rules for exports [2009] OJ L291/1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355, 506 Council Regulation (EC) No 1225/2009 of 30 Novemeber 2009 on protection against dumped imports from countries not members of the European Community [2009] OJ L343/51 . . . .358 Council Regulation (EU) No 1286/2009 of 22 December 2009 amending Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban [2009] OJ L 346/42 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .512 Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers [2011] OJ L55/13 . . 134, 358, 365 Regulation (EU) No 511/2011 of the European Parliament and of the Council of 11 May 2011 implementing the bilateral safeguard clause of the Free Trade Agreement between the European Union and its Member States and the Republic of Korea [2011] OJ L145/19 . . . .381 Regulation (EU) No 1232/2011 of the European Parliament and of the Council of 16 November 2011 amending Council Regulation (EC) No 428/2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items [2011] OJ L326/26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .492 Regulation (EU) No 388/2012 of the European Parliament and of the Council of 19 April 2012 amending Council Regulation (EC) No 428/2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items [2012] OJ L129/12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .492 Commission Implementing Regulation (EU) No 933/2012 of 11 October 2012 amending for the 180th time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with the Al Qaida network [2011] OJ L278/11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .225 Regulation (EU) No 978/2012 of the European Parliament and of the Council of 25 October 2012 applying a scheme of generalised tariff preferences and repealing Council Regulation (EC) No 732/2008 [2012] OJ L303/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .356 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .121 Regulation (EU) No 1219/2012 of the European Parliament and of the Council of 12 December 2012 establishing transitional arrangements for bilateral investment agreements between Member States and third countries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48–49

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Council Regulation (EU) No 517/2013 of 13 May 2013 adapting certain regulations and decisions in the fields of free movement of goods, freedom of movement for persons, company law, competition policy, agriculture, food safety, veterinary and phytosanitary policy, transport policy, energy, taxation, statistics, trans-European networks, judiciary and fundamental rights, justice, freedom and security, environment, customs union, external relations, foreign, security and defence policy and institutions, by reason of the accession of the Republic of Croatia [2013] OJ L158/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .354 Commission Implementing Regulation (EU) No 793/2013 of 20 August 2013 establishing measures in respect of the Faeroe Islands to ensure the conservation of the AtlantoScandian herring stock [2013] OJ L223/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .184 Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code [2013] OJ L269/1 . . . . . . . . . . . . . . . . . . . . . . . . . .354 Regulation (EU) No 37/2014 of the European Parliament and of the Council of 15 January 2014 amending certain regulations relating to the common commercial policy as regards the procedures for the adoption of certain measures [2014] OJ L18/52. . . . . . . . . . 134, 358, 365 Regulation (EU) No 38/2014 of the European Parliament and of the Council of 15 January 2014 amending certain regulations relating to the common commercial policy as regards the granting of delegated and implementing powers for the adoption of certain measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134, 358 Council Regulation (EU) No 153/2014 of 17 February 2014 amending Regulation (EC) No 314/2004 concerning certain restrictive measures in respect of Zimbabwe and repealing Regulation (EU) No 298/2013 [2014] OJ L50/1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .505 Regulation (EU) No 231/2014 of the European Parliament and of the Council of 11 March 2014 establishing an Instrument for Pre-accession Assistance (IPA II) [2014] OJ L77/11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 395, 525 Regulation (EU) No 232/2014 of the European Parliament and of the Council of 11 March 2014 establishing a European Neighbourhood Instrument [2014] OJ L77/27 . . . .403 Regulation (EU) No 236/2014 of the European Parliament and of the Council of 11 March 2014 laying down common rules and procedures for the implementation of the Union’s instruments for financing external action [2014] OJ L77/95 . . . . . . . . . . . . . . . . 395, 525 Council Regulation (EU) No 269/2014 of 17 March 2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine [2014] OJ L78/6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 443, 505 Regulation (EU) No 599/2014 of the European Parliament and of the Council of 16 April 2014 amending Council Regulation (EC) No 428/2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items [2014] OJ L173/79 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355, 492 Commission Implementing Regulation No 447/2014 of 2 May 2014 on the specific rules for implementing Regulation (EU) No 231/2014 of the European Parliament and of the Council establishing an Instrument for Pre-accession assistance (IPA II) [2014] OJ L132/32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .395 Council Regulation (EU) No 692/2014 of 23 June 2014 concerning restrictions on the import into the Union of goods originating in Crimea or Sevastopol, in response to the illegal annexation of Crimea and Sevastopol [2014] OJ L183/9 . . . . . . . . . . . . . . . . . . . . . . . . . .443 Council Regulation (EU) No 811/2014 of 25 July 2014 amending Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine [2014] OJ L221/11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 443, 505

Table of Legislation xlv Council Regulation (EU) No 825/2014 of 30 July 2014 amending Regulation (EU) No 692/2014 concerning restrictions on the import into the Union of goods originating in Crimea or Sevastopol, in response to the illegal annexation of Crimea and Sevastopol [2014] OJ L226/2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .443 Council Regulation (EU) No 833/2014 of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine [2014] OJ L220/1 . . . . . . . .443 Commission Implementing Regulation (EU) No 896/2014 of 18 August 2014 repealing Implementing Regulation (EU) No 793/2013 establishing measures in respect of the Faroe islands to ensure the conservation of the Atlanto-Scandian herring stock [2014] OJ L244/10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .184

EU Decisions Council Decision 77/585/EEC of 25 July 1977 concluding the Convention for the protection of the Mediterranean Sea against pollution and the Protocol for the prevention of the pollution of the Mediterranean Sea by dumping from ships and aircraft [1977] OJ L240/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .245 Commission Decision 87/251/EEC of 12 March 1987 on the initiation of an international consultation and disputes settlement procedure concerning a United States measure excluding imports of certain aramid fibres into the United States of America [1987] OJ L117/18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43 Council Decision 88/540/EEC of 14 October 1988 concerning the conclusion of the Vienna Convention for the protection of the ozone layer and the Montreal Protocol on substances that deplete the ozone layer [1988] OJ L297/8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .174 Council Decision 90/160/EEC of 22 March 1990 concerning the conclusion of the Agreement between the Federal Republic of Germany and the European Economic Community, on the one hand, and the Republic of Austria, on the other, on cooperation on management of water resources in the Danube Basin [1990] OJ L90/18 . . . . . . . . . . . . . . .163 Council Decision 91/51/EEC of 18 December 1990 on the signing of the International Agreement on Jute and Jute Products, 1989 [1991] OJ L29/1 . . . . . . . . . . . . . . . . . . . . . . . . . . .178 Council Decision 93/323/EEC of 10 May 1993 concerning the conclusion of an Agreement in the form of a Memorandum of Understanding between the European Economic Community and the United States of America on government procurement [1993] OJ L125/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...344 Council Decision 93/324/EEC of 10 May 1993 concerning the extension of the benefit of the provisions of Directive 90/531/EEC in respect of the United States of America [1993] OJ L125/54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .344 Council Decision 94/578/EC of 18 July 1994 concerning the conclusion of the Cooperation Agreement between the European Community and the Republic of India on Partnership and Development [1994] OJ L223/23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67–68 Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) [1994] OJ L336/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111, 285, 287–88, 290 Commission Decision 95/119/EC of 7 April 1995 concerning certain protective measures with regard to fishery products originating in Japan [1995] OJ L80/56 . . . . . . . . . . . . . . . . . . .285

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Decision of the Council and the Commission 95/145/EC, ECSC of 10 April 1995 concerning the conclusion of the Agreement between the European Communities and the Government of the United States of America regarding the application of their competition laws [1995] OJ L95/45. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .160 Council Decision 96/191/EC of 26 February 1996 concerning the conclusion of the Convention on the protection of the Alps (Alpine Convention) [1996] OJ L61/31 . . . . . . . . .163 Council Decision 97/430/EC of 2 June 1997 concerning the conclusion of the EuroMediterranean Interim Association Agreement on trade and cooperation between the European Community, of the one part, and the Palestine Liberation Organization (PLO) for the benefit of the Palestinian Authority of the West Bank and the Gaza Strip [1997] OJ L187/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .398 Council Decision 98/416/EC of 16 June 1998 on the accession of the European Community to the General Fisheries Commission for the Mediterranean [1998] OJ L190/34 . . . . . . . . . .176 Council Decision 2001/264/EC of 19 March 2001 adopting the Council’s security regulations [2001] OJ L101/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .476 Council Decision 2001/469/EC of 14 May 2001 concerning the conclusion on behalf of the European Community of the Agreement between the Government of the United States of America and the European Community on the coordination of energy-efficient labelling programs for office equipment [2001] OJ L172/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .60 Council Decision 2001/539/EC of 5 April 2001 on the conclusion by the European Community of the Convention for the Unification of Certain Rules for International Carriage by Air (the Montreal Convention) [2001] OJ L194/38 . . . . . . . . . . . . . . . . . . . . . . . . .174 Council Decision 2001/877/EC of 24 September 2001 on the signing and conclusion on behalf of the European Community of the International Coffee Agreement 2001 [2001] OJ L326/22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .164 Council Decision 2002/628/EC of 25 June 2002 concerning the conclusion, on behalf of the European Community, of the Cartagena Protocol on Biosafety [2002] OJ L201/48 . . . . . . . . .57 Council Decision 2002/971/EC of 18 November 2002 authorising the Member States, in the interest of the Community, to ratify or accede to the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996 [2002] OJ L337/55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .196 Decision No 3/2003 of the ACP-EC Council of Ministers of 11 December 2003 on the use of resources from the long-term development envelope of the ninth EDF for the creation of a Peace Facility for Africa [2003] OJ L345/108 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .525 Council Decision 2003/106/EC of 19 December 2002 concerning the approval, on behalf of the European Community, of the Rotterdam Convention on the Prior Informed Consent Procedure for certain hazardous chemicals and pesticides in international trade [2003] OJ L63/27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62 Council Decision 2003/462/EC of 19 May 2003 on the signing on behalf of the European Community and provisional application of a Framework Agreement on a Multilateral Nuclear Environmental Programme in the Russian Federation and its Protocol on Claims, Legal Proceedings and Indemnification and approving the conclusion by the Commission on behalf of the European Atomic Energy Community of the abovementioned Agreement and its Protocol [2003] OJ L155/35 . . . . . . . . . . . . . . . . . . . . . . . .164 Council Decision 2004/246/EC of 2 March 2004 authorising the Member States to sign, ratify or accede to, in the interest of the European Community, the Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992, and authorising Austria and Luxembourg, in the interest of the European Community, to accede to the underlying instruments [2004] OJ L78/22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .196

Table of Legislation xlvii Council Decision 2004/338/EC of 22 March 2004 adopting the Council’s Rules of Procedure [2004] OJ L106/22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .472 Council Decision 2004/815/EC of 19 November 2004 amending the declaration by the European Community on the exercise of competence and voting rights submitted to the General Fisheries Commission for the Mediterranean [2004] OJ L357/30 . . . . . . . . . . . . .176 Council Decision 2005/367/EC of 14 April 2005 authorising Member States to ratify, in the interests of the European Community, the Seafarers’ Identity Documents Convention of the International Labour Organisation (Convention 185) [2005] OJ L136/1. . . . . . . . . . . . . . .196 Council Decision 2005/370/EC of 17 February 2005 on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters [2005] OJ L124/1 . . . . . .249 Council Decision 2006/515/EC of 18 May 2006 on the conclusion of the Convention on the Protection and Promotion of the Diversity of Cultural Expressions [2006] OJ L201/15 . . . . .176 Council Decision 2006/719/EC [2006] of 5 October 2006 on the accession of the Community to the Hague Conference on Private International Law [2006] OJ L297/1 . . . . . . . . . . . . . . . .176 Council Decision 2006/730/EC of 25 September 2006 on the conclusion, on behalf of the European Community, of the Rotterdam Convention on the Prior Informed Consent Procedure for certain hazardous chemicals and pesticides in international trade [2006] OJ L299/23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62 Council Decision 2007/274/JHA of 23 April 2007 concerning the conclusion of the Agreement between the European Union and the Government of the United States of America on the security of classified information [2007] OJ L115/29 . . . . . . . . . . . . . . . . . .476 Decision 2007/339/EC of 25 April 2007 of the Council and the Representatives of the Governments of the Member States of the European Union, meeting within the Council of 25 April 2007 on the signature and provisional application of the Air Transport Agreement between the European Community and its Member States, on the one hand, and the United States of America, on the other hand [2007] OJ L134/1 . . . . . . . 270, 343 Council Decision 2008/210/EC of 18 February 2008 on the principles, priorities and conditions contained in the European Partnership with Albania and repealing Decision 2006/54/EC [2008] OJ L80/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .396 Council Decision 2008/211/EC of 18 February 2008 on the principles, priorities and conditions contained in the European Partnership with Bosnia and Herzegovina and repealing Decision 2006/55/EC [2008] OJ L80/18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .396 Council Decision 2008/212/EC of 18 February 2008 on the principles, priorities and conditions contained in the Accession Partnership with the former Yugoslav Republic of Macedonia and repealing Decision 2006/57/EC [2008] OJ L80/32 . . . . . . . . . . . . . . . . . . . . . . .396 Council Decision 2008/213/EC of 18 February 2008 on the principles, priorities and conditions contained in the European Partnership with Serbia including Kosovo as defined by United Nations Security Council Resolution 1244 of 10 June 1999 and repealing Decision 2006/56/EC [2008] OJ L80/46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .396 Council Decision 2008/667/JHA of 7 April 2008 concerning the conclusion of the Agreement between the European Space Agency and the European Union on the security and exchange of classified information [2008] OJ L219/58 . . . . . . . . . . . . . . . . . . . . . .476 European Council Decision 2009/880/EU taken with the agreement of the President of the Commission of 1 December 2009 appointing the High Representative of the Union for Foreign Affairs and Security Policy [2009] OJ L315/49 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .432 European Council Decision 2009/882/EU of 1 December 2009 adopting its Rules of Procedure [2009] OJ L315/51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .425

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Council Decision 2010/314/EU of 10 May 2010 on the signing and provisional application of the Geneva Agreement on Trade in Bananas between the European Union and Brazil, Colombia, Costa Rica, Ecuador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Peru and Venezuela and of the Agreement on Trade in Bananas between the European Union and the United States of America [2010] OJ L141/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .296 Council Decision 2010/348/EC of 17 November 2009 concerning the conclusion of the Agreement between the Government of the Russian Federation and the European Union on the protection of classified information [2010] OJ L155/56 . . . . . . . . . . . . . . . . . . . . . . . . . .476 Council Decision 2010/427/EU of 26 July 2010 establishing the organisation and functioning of the European External Action Service [2010] OJ L201/30 . . . 143, 435–37, 529–30 Council Decision 2010/428/EU of 28 July 2010 authorising the placing on the market of products containing, consisting of, or produced from genetically modified maize [2010] OJ L201/41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .436 Council Decision 2010/465/EU of 24 June 2010 on the signing and provisional application of the Protocol to Amend the Air Transport Agreement between the United States of America, of the one part, and the European Community and its Member States, of the other part [2010] OJ L223/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270, 343 Council Decision 2011/265/EU on the signing, on behalf of the EU, and provisional application of the Free Trade Agreement between the EU and its Member States, on the one part, and the Republic of Korea, on the other part [2011] OJ L127/1 . . . . . . . . 258, 380 Council Decision 2011/292/EU of 31 March 2011 on the security rules for protecting EU classified information [2011] OJ L141/17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .476 Council Decision 2011/530/EU of 31 March 2011 on the signing, on behalf of the Union, and provisional application of a Memorandum of Cooperation between the European Union and the International Civil Aviation Organization providing a framework for enhanced cooperation [2011] OJ 2011/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .217 Council Decision 2011/646/EU of 23 May 2011 concerning the conclusion, on behalf of the European Union, of the Agreement on the Protection and Sustainable Development of the Prespa Park Area [2011] OJ L258/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .163 Decision 2011/708/EU of the Council and of the Representatives of the Governments of the Member States of the European Union, meeting within the Council of 16 June 2011 on the signing, on behalf of the Union, and provisional application of the Air Transport Agreement between the United States of America, of the first part, the European Union and its Member States, of the second part, Iceland, of the third part, and the Kingdom of Norway, of the fourth part; and on the signing, on behalf of the Union, and provisional application of the Ancillary Agreement between the European Union and its Member States, of the first part, Iceland, of the second part, and the Kingdom of Norway, of the third part, on the application of the Air Transport Agreement between the United States of America, of the first part, the European Union and its Member States, of the second part, Iceland, of the third part, and the Kingdom of Norway, of the fourth part [2011] OJ L283/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .147 Decision 2011/712/EU of the Representatives of the Governments of the Member States, meeting within the Council of 10 June 2011 authorising the Presidency of the Council to negotiate, on behalf of the Member States, the provisions of a legally binding agreement on forests in Europe that fall within the competences of the Member States, [2011] OJ L285/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .170 Council Decision 2011/265/EU of 16 September 2010 on the signing, on behalf of the European Union, and provisional application of the Free Trade Agreement between the European Union and its Member States, of the one part, and the Republic of Korea, of the other part [2011] OJ L127/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258, 380

Table of Legislation xlix Decision No 2012/494/EU of the Representatives of the Governments of the Member States, meeting within the Council of 23 March 2012 authorising the opening of negotiations for an international agreement on the creation of the EU-LAC Foundation as an international organisation [2012] OJ L240/2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .170 Council Decision 2012/735/EU of 31 May 2012 on the signing, on behalf of the Union, and provisional application of the Trade Agreement between the European Union and its Member States, of the one part, and Colombia and Peru, of the other part [20120] OJ L354/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258, 381 Decision No 377/2013/EU of 24 April 2013 of the European Parliament and of the Council derogating temporarily from Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading within the Community [2013] OJ L113/1 . . . . . . . . . . . . . . . .319 Council Decision 2014/15/EU of 18 November 2013 on the signing and conclusion of the Agreement between the European Union and Georgia establishing a framework for the participation of Georgia in European Union crisis management operations [2014] OJ L14/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .477 Council Decision 2014/20/EU of 23 September 2013 on the signing, on behalf of the Union, and the provisional application of the Cooperation Agreement between the European Union and its Member States, of the one part, and the Swiss Confederation, of the other, on the European Satellite Navigation Programmes [2014] OJ L15/1 . . . . . . . . . . . . . . . .146 Council Decision 2014/51/EU of 28 January 2014 authorising Member States to ratify, in the interests of the European Union, the Convention concerning decent work for domestic workers, 2011, of the International Labour Organisation (Convention No 189) [2014] OJ L32/32. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .196 Council Decision 2014/52/EU of 28 January 2014 authorising Member States to ratify, in the interests of the European Union, the Convention concerning Safety in the Use of Chemicals at Work, 1990, of the International Labour Organization (Convention No 170) [2014] OJ L32/33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .196 Council Decision 2014/241/EU of 14 April 2014 concerning the ratification of, or the accession to, the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009, by the Member States in the interests of the European Union [2014] OJ L128/45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .196 Council Decision 2014/295/EU of 17 March 2014 on the signing, on behalf of the European Union, and provisional application of the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Ukraine, of the other part, as regards the Preamble, Article 1, and Titles I, II and VII thereof [2014] OJ L161/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165, 258, 391 Council Decision 2014/451/EU of 26 May 2014 on the signing and conclusion of the Participation Agreement between the European Union and the Swiss Confederation on the participation of the Swiss Confederation in the European Union Integrated Border Management Assistance Mission in Libya (EUBAM Libya) [2014] OJ L205/2 . . . . . . . . . . . . .471 European Council Decision 2014/638/EU of 30 August 2014 electing the President of the European Council [2014] OJ L262/5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .427 European Council Decision 2014/639/EU of 30 August 2014 appointing the High Representative of the Union for Foreign Affairs and Security Policy [2014] OJ L262/6 . . . . .433

EU Joint Actions Joint Action 96/197/JHA of 4 March 1996 adopted by the Council on the basis of Article K.3 of the Treaty on European Union on airport transit arrangements [1996] OJ L63/8 . . . .531

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Council Joint Action 2000/717/CFSP of 16 November 2000 on the holding of a meeting of Heads of State or of Government in Zagreb (Zagreb Summit) [2000] OJ L290/54. . . . . . .394 Council Joint Action 2002/210/CFSP of 11 March 2002 on the European Union Police Mission [2002] OJ L70/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .467 Council Joint Action 2002/589/CFSP of 12 July 2002 on the European Union’s contribution to combating the destabilising accumulation and spread of small arms and light weapons and repealing Joint Action 1999/34/CFSP [2002] OJ L191/1 . . . . . . . . . . . . . . . 532, 534 Council Joint Action 2003/423/CFSP of 5 June 2003 on the European Union military operation in the Democratic Republic of Congo [2003] OJ L143/50 . . . . . . . . . . . . . . . . . . . . .465 Council Joint Action 2003/681/CFSP of 29 September 2003 on the European Union Police Mission in the Former Yugoslav Republic of Macedonia (EUPOL ‘Proxima’) [2003] OJ L249/66 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 467, 527 Council Joint Action 2004/523/CFSP of 28 June 2004 on the European Union Rule of Law Mission in Georgia, EUJUST THEMIS [2004] OJ L228/21. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .468 Council Joint Action 2004/551/CFSP of 12 July 2004 on the establishment of the European Defence Agency [2004] OJ L245/17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .479 Council Joint Action 2004/570/CFSP of 12 July 2004 on the European Union military operation in Bosnia and Herzegovina [2004] OJ L252/10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .465 Council Joint Action 2004/638/CFSP of 13 September 2004 amending Joint Action 2004/523/ CFSP on the European Union Rule of Law Mission in Georgia, EUJUST THEMIS [2004] OJ L291/7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .468 Council Joint Action 2004/789/CFSP of 22 November 2004 on the extension of the European Union Police Mission in the Former Yugoslav Republic of Macedonia (EUPOL PROXIMA) [2004] OJ L348/40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .467 Council Joint Action 2004/847/CFSP of 9 December 2004 on the European Union Police Mission in Kinshasa (DRC) regarding the Integrated Police Unit (EUPOL Kinshasa) [2004] OJ L367/30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .467 Council Joint Action 2005/355/CFSP of 2 May 2005 on the European Union mission to provide advice and assistance for security sector reform in the Democratic Republic of the Congo (DRC) [2005] OJ L112/20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .467 Council Joint Action 2005/643/CFSP of 9 September 2005 Union Monitoring Mission in Aceh (Indonesia) (Aceh Monitoring Mission – AMM) [2005] OJ L234/13 . . . . . . . 452, 468, 527 Council Joint Action 2005/557/CFSP of 18 July 2005 on the European Union civilianmilitary supporting action to the African Union mission in the Darfur region of Sudan [2005] OJ L188/46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .465 Council Joint Action 2005/797/CFSP of 14 November 2005 on the European Union Police Mission for the Palestinian Territories [2005] OJ L300/65 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .467 Council Joint Action 2005/824/CFSP of 24 November 2005 on the European Union Police Mission (EUPM) in Bosnia and Herzegovina (BiH) [2005] OJ L307/55 . . . . . . . . . . . . . . . . . .527 Council Joint Action 2005/826/CFSP of 24 November 2005 on the establishment of an EU Police Advisory Team (EUPAT) in the Former Yugoslav Republic of Macedonia (fYROM) [2005] OJ L307/61 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .467 Council Joint Action 2005/889/CFSP of 12 December 2005 on establishing a European Union Border Assistance Mission for the Rafah Crossing Point (EU BAM Rafah) [2005] OJ L327/28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .468 Council Joint Action 2006/319/CFSP of 27 April 2006 on the European Union military operation in support of the United Nations Organisation Mission in the Democratic Republic of the Congo (MONUC) during the election process [2003] OJ L116/98 . . . . . . . .465 Council Joint Action 2006/413/CFSP of 12 June 2006 amending and extending Joint Action 2005/190/CFSP on the European Union Integrated Rule of Law Mission for Iraq, EUJUST LEX [2006] OJ L163/17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .468

Table of Legislation li Council Joint Action 2006/607/CFSP of 7 September 2006 amending and extending Joint Action 2005/643/CFSP on the European Union Monitoring Mission in Aceh (Indonesia) (Aceh Monitoring Mission AMM) [2006] OJ L246/16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .468 Council Joint Action 2007/245/CFSP of 23 April 2007 amending Joint Action 2005/557/CFSP on the European Union civilian-military supporting action to the African Union mission in the Darfur region of Sudan with regard to the inclusion of a military support element providing assistance to the setting up of the African Union Mission in Somalia (AMISOM) [2007] OJ L106/65 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .465 Council Joint Action 2007/369/CFSP of 30 May 2007 on establishment of the European Union Police Mission in Afghanistan (EUPOL AFGANISTAN) [2007] OJ L139/33 . . . . . . . .467 Council Joint Action 2007/405/CFSP of 12 June 2007 on the European Union police mission undertaken in the framework of reform of the security sector (SSR) and its interface with the system of justice in the Democratic Republic of the Congo (EUPOL RD Congo) [2007] OJ L151/46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .467 Council Joint Action 2007/677/CFSP of 15 October 2007 on the European Union military operation in the Republic of Chad and in the Central African Republic [2007] OJ L279/21 [200] OJ L279/21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .465 Council Joint Action 2007/887/CFSP of 20 December 2007 repealing Joint Action 2005/557/CFSP on the European Union civilian-military supporting action to the African Union missions in the Darfur region of Sudan and in Somalia [2007] OJ L346/28 . . . . . . . .465 Council Joint Action 2009/795/CFSP of 19 October 2009 repealing Joint Action 2007/677/CFSP on the European Union military operation in the Republic of Chad and in the Central African Republic [2009] OJ L283/61 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .465 Council Joint Action 2008/112/CFSP of 18 May 2008 amending Joint Action 2008/112/CFSP on the European Union mission in support of security sector reform in the Republic of Guinea-Bissau [2008] OJ L40/11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .467 Council Joint Action 2008/760/CFSP of 25 September 2008 appointing the European Union Special Representative for the crisis in Georgia [2008] OJ L259/16 . . . . . . . . . . . . . . . . . . . . . .468 Council Joint Action 2008/851/CFSP of 10 November 2008 on a European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast [2008] OJ L301/33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .465

EU Common Positions Common Position 1999/345/CFSP of 17 May 1999 adopted by the Council on the basis of Article 15 of the Treaty on European Union, concerning a Stability Pact for South-Eastern Europe [1999] OJ L133/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .394 Common Position 2001/869/CFSP of 6 December 2001 on participation by the European Union in the Korean Peninsular Energy Development Organisation (KEDO) [2001] OJ L325/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .178 Common Position 2001/931/CFSP of 27 December 2001 on the application of specific measures to combat terrorism [2001] OJ L344/93 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .522 Council Common Position 2008/109/CFSP of 12 February 2008 concerning restrictive measures imposed against Liberia [2008] OJ L38/26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .509 Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment [2008] OJ L335/99 . . . . . 492, 509–11

lii Table of Legislation EU Common Strategies Common Strategy 1999/414/CFSP of the European Union of 4 June 1999 on Russia [1999] OJ L157/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .390 Common Strategy 1999/877/CFSP of the European Council of 11 December 1999 on Ukraine [1999] OJ L331/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .390 Common Strategy 2003/471/CFSP of the European Council of 20 June 2003 amending Common Strategy 1999/414/CFSP on Russia in order to extend the period of its application [2003] OJ L157/ 68 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . … 390 Common Strategy 2003/897/CFSP of the European Council of 12 December 2003 amending Common Strategy 1999/877/CFSP on Ukraine in order to extend the period of its application [2003] OJ L333/96 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .390

Other CFSP Acts Council Decision 94/942/CFSP of 19 December 1994 on the joint action adopted by the Council of the basis of Article J.3 of the Treaty on European Union concerning the control of exports of dual-use goods [1994] OJ L367/8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 488–89 Council Decision 95/127/CFSP of 10 April 1995 amending Decision 94/942/CFSP on the joint action adopted by the Council on the basis of Article J.3 of the Treaty on European Union concerning the control of exports of dual-use goods [1995] OJ L90/2 . . . . . . . . . . . . .488 Council Decision 95/128/CFSP of 10 April 1995 amending Decision 94/942/CFSP on the joint action adopted by the Council on the basis of Article J.3 of the Treaty on European Union concerning the control of exports of dual-use goods [1995] OJ L90/3 . . . . . . . . . . . . .488 Council Decision 96/423/CFSP of 27 June 1996 amending Decision 94/942/CFSP on the joint action adopted by the Council on the basis of Article J.3 of the Treaty on European Union concerning the control of exports of dual-use goods [1996] OJ L176/1 . . . . . . . . . . . .488 Council Decision 96/613/CFSP of 22 October 1996 amending Decision 94/942/CFSP on the joint action adopted by the Council on the basis of Article J.3 of the Treaty on European Union concerning the control of exports of dual-use goods [1996] OJ L278/1 . . .488 Council Decision 97/100/CFSP of 20 January 1997 amending Decision 96/613/CFSP on the joint action adopted by the Council on the basis of Article J.3 of the Treaty on European Union concerning the control of exports of dual-use goods [1997] OJ L34/1 . . . .488 Council Decision 97/419/CFSP of 26 June 1997 amending Decision 94/942/CFSP on the joint action adopted by the Council on the basis of Article J.3 of the Treaty on European Union concerning the control of exports of dual-use goods [1997] OJ L178/1 . . . . . . . . . . . .488 Council Decision 97/633/CFSP of 22 September 1997 amending Decision 94/942/CFSP on the joint action adopted by the Council on the basis of Article J.3 of the Treaty on European Union, concerning the control of exports of dual-use goods [1997] OJ L266/1. . .488 Council Decision 98/106/CFSP of 26 January 1998 amending Decision 94/942/CFSP on the joint action adopted by the Council on the basis of Article J.3 of the Treaty on European Union concerning the control of exports of dual-use goods [1998] OJ L32/1 . . . .488 Council Decision 98/232/CFSP of 16 March 1998 amending Decision 94/942/CFSP on the joint action adopted by the Council on the basis of Article J.3 of the Treaty on European Union concerning the control of exports of dual-use goods [1998] OJ L92/1 . . . .488 Council Decision 1999/54/CFSP of 18 January 1999 amending Decision 94/942/CFSP on the joint action adopted by the Council on the basis of Article J.3 of the Treaty on European Union, concerning the control of exports of dual-use goods [1999] OJ L18/1 . . . .488

Table of Legislation liii Council Decision 2000/243/CFSP of 20 March 2000 amending Decision 94/942/CFSP on the Joint Action concerning the control of exports of dual-use goods [2000] OJ L82/1. . . . .488 Council Decision 2000/402/CFSP of 22 June 2000 repealing Decision 94/942/CFSP on the joint action concerning the control of exports of dual-use goods [2000] OJ L159/218 . .492 Council Decision 2001/78/CFSP of 22 January 2001 setting up the Political and Security Committee [2001] OJ L27/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .454 Council Decision 2001/79/CFSP of 22 January 2001 setting up the Military Committee of the European Union [2001] OJ L27/4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .455 Council Decision 2001/80/CFSP of 22 January 2001 on the establishment of the Military Staff of the European Union [2001] OJ L27/7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .455 Council Decision 2002/845/CFSP of 30 September 2002 concerning the conclusion of the Agreement between the European Union and Bosnia and Herzegovina (BiH) on the activities of the European Union Police Mission (EUPM) in BiH [2002] OJ L293/1 . . . . . . .474 Council Decision 2003/157/CFSP of 19 December 2002 concerning the conclusion of the Agreement between the European Union and the Republic of Poland on the participation of this State to the European Union Police Mission (EUPM) in Bosnia and Herzegovina [2003] OJ L64/37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .471 Council Decision 2003/202/CFSP of 18 March 2003 relating to the launch of the EU military operation in the Former Yugoslav Republic of Macedonia [2003] OJ L76/43 . . . . . .465 Council Decision 2003/211/CFSP of 24 February 2003 concerning the conclusion of the Agreement between the European Union and the North Atlantic Treaty Organisation on the Security of Information [2003] OJ L80/35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .476 Council Decision 2003/222/CFSP of 21 March 2003 concerning the conclusion of the Agreement between the European Union and the Former Yugoslav Republic of Macedonia on the status of the European Union-led Forces (EUF) in the Former Yugoslav Republic of Macedonia [2003] OJ L82/45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .474 Council Decision 2003/563/CFSP of 29 July 2003 on the extension of the European Union military operation in the Former Yugoslav Republic of Macedonia [2003] OJ L190/20 . . . . .465 Council Decision 2003/582/CFSP of 21 July 2003 concerning the conclusion of the Agreement between the European Union and the Russian Federation on the participation of that State in the European Union Police Mission (EUPM) in Bosnia and Herzegovina [2003] OJ L197/37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .471 Council Decision 2003/624/CFSP of 15 July 2003 concerning the conclusion of the Agreement between the European Union and the Republic of Estonia on the participation of the Republic of Estonia in the European Union-led forces (EUF) in the Former Yugoslav Republic of Macedonia [2003] OJ L216/60 . . . . . . . . . . . . . . . . . . . . . . . .471 Council Decision 2003/650/CFSP of 26 May 2003 concerning the conclusion of the Agreement between the European Union and the Czech Republic on the participation of the Czech Republic in the European Union-led Forces in the Former Yugoslav Republic of Macedonia [2003] OJ L229/38 . . . . . . . . . . . . . . . . . . . . . . . . . . . .471 Council Decision 2003/661/CFSP of 19 May 2003 concerning the conclusion of the Agreement between the European Union and the Republic of Lithuania on the participation of the Republic of Lithuania in the European Union-led forces (EUF) in the Former Yugoslav Republic of Macedonia [2003] OJ L234/18 . . . . . . . . . . . . . . . . . . . . . . . .471 Council Decision 2003/662/CFSP of 26 May 2003 concerning the conclusion of the Agreement between the European Union and the Republic of Turkey on the participation of the Republic of Turkey in the European Union-led forces in the Former Yugoslav Republic of Macedonia [2003] OJ L234/22 . . . . . . . . . . . . . . . . . . . . . . . . . . . .471

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Council Decision 2003/663/CFSP of 10 December 2002 concerning the conclusion of the Agreements between the European Union and Bulgaria, Cyprus, the Czech Republic, Estonia, Hungary, Iceland, Latvia, Lithuania, Norway, Romania, the Slovak Republic, Slovenia, Switzerland, Turkey and Ukraine on the participation of these States to the European Union Police Mission (EUPM) in Bosnia and Herzegovina [2003] OJ L239/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 471–72 Council Decision 2003/781/CFSP of 29 September 2003 concerning the conclusion of the Agreement between the European Union and the Republic of Poland on the participation of Polish armed forces in the European Union-led forces (EUF) in the former Yugoslav Republic of Macedonia [2003] OJ L285/43 . . . . . . . . . . . . . . . . . . . . . . . . . . . .471 Council Decision 2003/832/CFSP of 26 May 2003 concerning the conclusion of the Agreements between the European Union and the Government of Latvia on the participation of the Republic of Latvia in the European Union-led forces (EUF) in the former Yugoslav Republic of Macedonia [2003] OJ L313/78 . . . . . . . . . . . . . . . . . . . . . . . . .471 Council Decision 2003/202/CFSP of 18 March 2003 relating to the launch of the EU military operation in the Former Yugoslav Republic of Macedonia [2003] OJ L76/43 . . . . . .465 Council Decision 2003/222/CFSP on the conclusion of the Agreement between EU and FUROM on the status of the European Union-led Forces in the Former Yugoslav Republic of Macedonia [2003] OJ L82/45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . …. 474 Council Decision 2004/61/CFSP of 26 May 2003 concerning the conclusion of the Agreement between the European Union and the Slovak Republic on the participation of the armed forces of the Slovak Republic in the European Union-led Forces (EUF) in the Former Yugoslav Republic of Macedonia [2004] OJ L12/53 . . . . . . . . . . . . . . . . . . . . . . .471 Council Decision 2004/75/CFSP of 11 December 2003 concerning the conclusion of the Agreement between the European Union and the Former Yugoslav Republic of Macedonia on the status and activities of the European Union Police Mission (EUPOL Proxima) in the Former Yugoslav Republic of Macedonia [2004] OJ L16/65 . . . . . . . . . . . . . .474 Council Decision 2004/197/CFSP of 23 February 2004 establishing a mechanism to administer the financing of the common costs of European Union operations having military or defence implications [2004] OJ L63/68 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .464 Council Decision 2004/392/CFSP of 19 May 2003 concerning the conclusion of the Agreement between the European Union and Romania on the participation of Romania in the European Union-led forces (EUF) in the Former Yugoslav Republic of Macedonia [2004] OJ L120/61 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .471 Council Decision 2004/809/CFSP of 5 July 2004 concerning the conclusion of the Agreement between the European Union and the Swiss Confederation on the participation of the Swiss Confederation in the European Union Police Mission (EUPOL “Proxima”) in the former Yugoslav Republic of Macedonia [2004] OJ L354/77 . . . . . . . . . . . . . . . . . . . . . . . . . . . .471 Council Decision 2004/810/CFSP of 5 July 2004 concerning the conclusion of the Agreement between the European Union and Ukraine on the participation of Ukraine in the European Union Police Mission (EUPOL ‘Proxima’) in the former Yugoslav Republic of Macedonia [2004] OJ L354/81 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .471 Council Decision 2004/811/CFSP of 5 July 2004 concerning the conclusion of the Agreement between the European Union and the Kingdom of Norway on the participation of the Kingdom of Norway in the European Union Police Mission (EUPOL ‘Proxima’) in the former Yugoslav Republic of Macedonia [2004] OJ L354/85 . . . . . . . . . . . . . . . . . . . . . . . . . . . .471 Council Decision 2004/812/CFSP of 19 July 2004 concerning the conclusion of the Agreement between the European Union and the Republic of Turkey on the participation of the Republic of Turkey in the European Union Police Mission (EUPOL ‘Proxima’) in the former Yugoslav Republic of Macedonia [2004] OJ L354/89 . . . . . . . . . . . . .471

Table of Legislation lv Council Decision 2004/833/CFSP of 2 December 2004 implementing Joint Action 2002/589/CFSP with a view to a European Union contribution to ECOWAS in the framework of the Moratorium on Small Arms and Light Weapons [2004] L 359/65 . . . . . . . . . . . . . . . 532, 534 Council Decision 2004/843/CFSP of 26 July 2004 concerning the conclusion of the Agreement between the European Union and the Kingdom of Norway on security procedures for the exchange of classified information [2004] OJ L362/28. . . . . . . . . . . . . . . . .476 Council Decision 2004/924/CFSP of 22 November 2004 concerning the conclusion of the Agreement between the European Union and Georgia on the status and activities of the European Union Rule of Law Mission in Georgia, EUJUST THEMIS [2004] OJ L389/41. . .473 Council Decision 2005/109/CFSP of 24 January 2005 concerning the conclusion of the Agreement between the European Union and the Kingdom of Morocco on the participation of the Kingdom of Morocco in the European Union military crisis management operation in Bosnia and Herzegovina (Operation Althea) [2005] OJ L34/46 . . . .471 Council Decision 2005/134/CFSP of 20 December 2004 concerning the conclusion of the Agreement between the European Union and the Republic of Bulgaria establishing a framework for the participation of the Republic of Bulgaria in the European Union crisis management operations [2005] OJ L46/49 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .477 Council Decision 2005/191/CFSP of 18 October 2004 concerning the conclusion of agreements between the European Union and the Republic of Iceland, the Kingdom of Norway and Romania establishing a framework for the participation of the Republic of Iceland, the Kingdom of Norway and Romania in the European Union crisis-management operations [2005] OJ L67/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .477 Council Decision 2005/199/CFSP 31 January 2005 concerning the conclusion of the Agreement between the European Union and the Republic of Albania on the participation of the Republic of Albania in the European Union military crisis management operation in Bosnia and Herzegovina (Operation Althea) [2005] OJ L65/34 . . . . . . . . . . . . . . . . . . . . . . . . . .471 Council Decision 2005/296/CFSP, JHA of 24 January 2005 concerning the conclusion of the Agreement between the European Union and the former Yugoslav Republic of Macedonia on the security procedures for the exchange of classified information [2005] OJ L94/38. . . .476 Council Decision 2005/364/CFSP of 12 April 2005 concerning the conclusion of the Agreement between the European Union and Romania on security procedures for the exchange of classified information [2005] OJ L118/47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .476 Council Decision 2005/365/CFSP of 14 April 2005 concerning the conclusion of the Agreement between the European Union and the Republic of Bulgaria on security procedures for the exchange of classified information [2005] OJ L118/52. . . . . . . . . . . . . . . . .476 Council Decision 2005/386/CFSP of 14 March 2005 concerning the conclusion of the Agreement between the European Union and New Zealand on the participation of New Zealand in the European Union military crisis management operation in Bosnia and Herzegovina (Operation Althea) [2005] OJ L127/27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .471 Council Decision 2005/395/CFSP of 10 May 2005 amending Decision 2001/80/CFSP on the establishment of the Military Staff of the European Union [2005] OJ L132/17 . . . . . . . . . . . .455 Council Decision 2005/447/CFSP of 14 March 2005 concerning the conclusion of the Agreement between the European Union and the Argentine Republic on the participation of the Argentine Republic in the European Union military crisis management operation in Bosnia and Herzegovina (Operation Althea) [2005] OJ L156/21 . . . . . . . . . . . . . . . . . . . . . .471 Council Decision 2005/481/CFSP Council Decision 2005/481/CFSP of 13 June 2005 concerning the conclusion of the Agreement between the European Union and Ukraine on the security procedures for the exchange of classified information [2005] OJ L172/83 . .476

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Council Decision 2005/495/CFSP of 11 October 2005 concerning the conclusion of an Agreement in the form of an Exchange of Letters between the European Union and Brunei, Singapore, Malaysia, Thailand and the Philippines on the participation of those States in the European Union Monitoring Mission in Aceh (Indonesia) (Aceh Monitoring Mission — AMM) [2007] OJ L273/8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .471 Council Decision 2005/593/CFSP of 18 July 2005 concerning the conclusion of the Agreement between the European Union and the Republic of Chile on the participation of the Republic of Chile in the European Union military crisis management operation in Bosnia and Herzegovina (Operation ALTHEA) [2005] OJ L202/49 . . . . . . . . . . . . . . . . . . . . . .471 Council Decision 2005/680/CFSP of 12 August 2005 concerning the Conclusion of the Agreement between the European Union and the Democratic Republic of the Congo on the status and activities of the European Union Police Mission in the Democratic Republic of the Congo (EUPOL Kinshasa) [2005] OJ L256/57 . . . . . . . . . . . . . . . . . . . . . . . . . .473 Council Decision 2005/765/CFSP of 3 October 2005 concerning the conclusion of the agreement in the form of an Exchange of Letters between the European Union and the Government of Indonesia on the tasks, status, privileges and immunities of the European Union Monitoring Mission in Aceh (Indonesia) (Aceh Monitoring Mission — AMM) and its personnel [2005] OJ L288/59 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .473 Council Decision 2005/851/CFSP of 21 November 2005 concerning the conclusion of the Agreement between the European Union and Canada establishing a framework for the participation of Canada in the European Union crisis management operations [2005] OJ L315/20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .477 Council Decision 2005/966/CFSP of 14 November 2005 concerning the conclusion of an Agreement between the European Union and the Swiss Confederation on the participation of the Swiss Confederation in the European Union Monitoring Mission in Aceh (Indonesia) (Aceh Monitoring Mission — AMM) [2005] OJ L349/30 . . . . . . . . . . . .471 Council Decision 2006/201/CFSP of 27 February 2006 concerning the extension of the agreement in the form of an Exchange of Letters between the European Union and the Government of Indonesia on the tasks, status, privileges and immunities of the European Union Monitoring Mission in Aceh (Indonesia) (Aceh Monitoring Mission — AMM) and its personnel [2006] OJ L71/53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .473 Council Decision 2006/317/CFSP of 10 April 2006 concerning the conclusion of the Agreement between the European Union and the Republic of Croatia on security procedures for the exchange of classified information [2006] OJ L116/73. . . . . . . . . . . . . . . . .476 Council Decision 2006/448/CFSP of 7 June 2006 concerning the extension of the Agreement in the form of an Exchange of Letters between the European Union and the Government of Indonesia on the tasks, status, privileges and immunities of the European Union Monitoring Mission in Aceh (Indonesia) (Aceh Monitoring Mission — AMM) and its personnel [2006] OJ L176/107 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .473 Council Decision 2006/467/CFSP of 21 November 2005 concerning the conclusion of the Agreement between the European Union and the Republic of Iceland on security procedures for the exchange of classified information [2006] OJ L184/34. . . . . . . . . . . . . . . . .476 Council Decision 2006/475/CFSP of 12 June 2006 concerning the conclusion of the Agreement between the European Union and the Gabonese Republic on the status of the European Union-led forces in the Gabonese Republic [2006] OJ L187/42 . . . . . . . . . . . . . . . .473 Council Decision 2006/477/CFSP of 30 June 2006 concerning the conclusion of the Agreement between the European Union and the former Yugoslav Republic of Macedonia on the participation of the former Yugoslav Republic of Macedonia in the European Union military crisis management operation in Bosnia and Herzegovina (Operation ALTHEA) [2006] OJ L203/11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .471

Table of Legislation lvii Council Decision 2006/482/CFSP of 10 April 2006 concerning the conclusion of the Agreement between the European Union and the Republic of Turkey establishing a framework for the participation of the Republic of Turkey in the European Union crisis management operations [2006] OJ L89/16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .477 Council Decision 2008/568/CFSP of 24 June 2005 concerning the conclusion of the Agreement between the European Union and the Swiss Confederation on security procedures for the exchange of classified information [2008] OJ L181/57. . . . . . . . . . . . . . . . .476 Council Decision 2007/665/CFSP of 28 September 2007 concerning the conclusion of the Agreement between the European Union and the Republic of Croatia on the participation of the Republic of Croatia in the European Union Police Mission in Afghanistan (EUPOL AFGHANISTAN) [2007] OJ L270/72. . . . . . . . . . . . . . . . . . . . . . . . . . . . .471 Council Decision 2006/666/CFSP of 15 September 2006 concerning the extension of the Agreement in the form of an Exchange of Letters between the European Union and the Government of Indonesia on the tasks, status, privileges and immunities of the European Union Monitoring Mission in Aceh (Indonesia) (Aceh Monitoring Mission — AMM) and its personnel [2006] OJ L273/8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .473 Council Decision 2007/670/CFSP of 1 October 2007 concerning the conclusion of an Agreement between the European Union and New Zealand on the participation of New Zealand in the European Union Police Mission in Afghanistan (EUPOL AFGHANISTAN) [2007] OJ L274/17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .471 Council Decision 2006/676/CFSP of 10 August 2006 concerning the conclusion of the Agreement in the form of an Exchange of Letters between the European Union and the Government of the Swiss Confederation on the participation of the Swiss Confederation in the European Union military operation in support of the United Nations Organisation Mission in the Democratic Republic of the Congo (MONUC) during the election process (Operation EUFOR RD Congo) [2006] OJ L276/10 . . . . . . . . . . .471 Council Decision 2008/101/CFSP of 28 January 2008 on the launching of the European Union military operation in the Republic of Chad and in the Central African Republic [2008] OJ L34/39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .465 Council Decision 2008/178/CFSP of 28 January 2008 concerning the conclusion of the Agreement between the European Union and the Republic of Cameroon on the status of the European Union-led forces in transit within the territory of the Republic of Cameroon [2008] OJ L57/30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .473 Council Decision 2008/266/CFSP of 28 January 2008 concerning the conclusion of the Agreement between the European Union and the Republic of Chad on the status of the European Union-led forces in the Republic of Chad [2008] OJ L83/39 . . . . . . . . . . . . . . . . . . .473 Council Decision 2008/389/CFSP of 7 April 2008 concerning the conclusion of the Agreement between the European Union and the Central African Republic on the status of the European Union-led forces in the Central African Republic [2008] OJ L136/45 . . . . .473 Council Decision 2008/665/CFSP of 9 June 2008 concerning the conclusion of the Agreement between the European Union and the Republic of Albania on the participation of the Republic of Albania in the European Union military operation in the Republic of Chad and in the Central African Republic (Operation EUFOR Tchad/RCA) [2008] OJ L217/18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .471 Council Decision 2008/666/CFSP of 24 July 2008 concerning the conclusion of an Agreement between the European Union and the Swiss Confederation on the participation of the Swiss Confederation in the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO [2008] OJ L217/24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .470

lviii Table of Legislation Council Decision 2008/669/CFSP of 16 June 2008 concerning the conclusion of the Agreement between the European Union and the Republic of Guinea-Bissau on the Status of the European Union Mission in Support of Security Sector Reform in the Republic of Guinea-Bissau [2008] OJ L219/65 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .473 Council Decision 2008/783/CFSP of 15 September 2008 concerning the conclusion of the Agreement between the European Union and the Republic of Croatia on the participation of the Republic of Croatia in the European Union military operation in the Republic of Chad and in the Central African Republic (Operation EUFOR Tchad/RCA) [2008] OJ L268/32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .471 Council Decision 2008/814/CFSP of 13 October 2008 concerning the conclusion of an Agreement between the European Union and the United States of America on the participation of the United States of America in the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO [2008] OJ L282/32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .470 Council Decision 2008/868/CFSP of 13 October 2008 concerning the conclusion of the Agreement between the European Union and the Russian Federation on the participation of the Russian Federation in the European Union military operation in the Republic of Chad and in the Central African Republic (Operation EUFOR Tchad/RCA) OJ L307/15 . . .471 Council Decision 2008/877/CFSP of 24 October 2008 concerning the conclusion of the Agreement between the European Union and Georgia on the status of the European Union Monitoring Mission in Georgia [2008] OJ L310/30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .473 Council Decision 2008/887/CFSP of 25 September 2008 concerning the conclusion of an Agreement between the European Union and the Republic of Croatia on the participation of the Republic of Croatia in the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO [2008] OJ L317/19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .470 Council Decision 2009/88/CFSP of 22 December 2008 concerning the conclusion of the Agreement between the European Union and the Republic of Djibouti on the status of the European Union-led forces in the Republic of Djibouti in the framework of the EU military operation Atalanta [2009] 33/41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .473 Council Decision 2009/293/CFSP of 26 February 2009 concerning the Exchange of Letters between the European Union and the Government of Kenya on the conditions and modalities for the transfer of persons suspected of having committed acts of piracy and detained by the European Union-led naval force (EUNAVFOR), and seized property in the possession of EUNAVFOR, from EUNAVFOR to Kenya and for their treatment after such transfer [2009] OJ L79/47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .478 Council Decision 2009/558/CFSP of 16 March 2009 concerning the conclusionof the Agreement on security procedures for exchanging classified information between the European Union and Israel [2009] OJ L192/63 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .476 Council Decision 2009/597/CFSP of 27 July 2009 on the signing and provisional application of the Agreement between the European Union and the Republic of Croatia on the participation of the Republic of Croatia in the European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast (Operation Atalanta) [2009] OJ L202/81 . . . . . . . . . . . . . . . . . . .470 Council Decision 2009/916/CFSP of 23 October 2009 concerning the signing and conclusion of the Agreement between the European Union and the Republic of Seychelles on the status of the European Union-led force in the Republic of Seychelles in the framework of the EU military operation Atalanta [2009] OJ L323/12 . . . . . . . . . . . . . . . . . . . . . . . . . 473, 478 Council Decision 2010/53/CFSP of 30 November 2009 concerning the conclusion of the Agreement between Australia and the European Union on the security of classified information [2010] OJ L26/30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .476

Table of Legislation lix Council Decision 2010/199/CFSP of 22 March 2010 on the signing and conclusion of the Agreement between the European Union and Montenegro on the participation of Montenegro in the European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast (Operation Atalanta) [2010] OJ L88/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .470 Council Decision 2010/298/CFSP of 25 May 2010 amending and extending Joint Action 2008/112/CFSP on the European Union mission in support of security sector reform in the Republic of Guinea-Bissau (EU SSR GUINEA-BISSAU) [2010] OJ L127/16 . . . . . . . . . . .467 Council Decision 2010/404/CFSP of 14 June 2010 concerning the signing and conclusion of the Agreement between the European Union and the Principality of Liechtenstein on security procedures for exchanging classified information [2010] OJ L187/1 . . . . . . . . . . . . . .476 Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP [2010] OJ L195/39 . . . . . . . . . . . . . . . .505 Council Decision 2010/464/CFSP of 6 August 2010 on the signing and conclusion of the Agreement between the European Union and the Republic of Uganda on the Status of the European Union-led Mission in Uganda [2010] OJ L221/1 . . . . . . . . . . . . . . . . . . . . . . . . . .474 Council Decision 2010/587/CFSP of 14 June 2010 concerning the signing and conclusion of the Agreement between the European Union and Montenegro on security procedures for exchanging and protecting classified information [2010] OJ L260/1 . . . . . . . . . . . . . . . . . . . . . .476 Council Decision 2010/686/CFSP of 13 September 2010 concerning the signing and conclusion of the Agreement between the European Union and the Islamic Republic of Afghanistan on the Status of the European Union Police Mission in Afghanistan (EUPOL AFGHANISTAN) [2010] OJ L294/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .473 Council Decision 2010/766/CFSP of 7 December 2010 amending Joint Action 2008/851/CFSP on a European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast [2010] OJ L327/49. . . .465 Council Decision 2011/210/CFSP of 1 April 2011 on a European Union military operation in support of humanitarian assistance operations in response to the crisis situation in Libya (EUFOR Libya) [2011] OJ L89/17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 465, 470 Council Decision 2010/755/CFSP of 6 December 2010 amending Decision 2009/906/CFSP on the European Union Police Mission (EUPM) in Bosnia and Herzegovina (BiH) [2010] OJ L320/10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .467 Council Decision 2011/133/CFSP of 21 February 2011 on the signing and conclusion of the Agreement between the European Union and Montenegro establishing a framework for the participation of Montenegro in European Union crisis management operations [2011] OJ L57/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .477 Council Decision 2011/168/CFSP of 21 March 2011 on the International Criminal Court and repealing Common Position 2003/444/CFSP [2011] OJ L76/56 . . . . . . . . . . . . . . . . . . . . . . . . . .424 Council Decision 2011/318/CFSP of 31 March 2011 on the signing and conclusion of the Framework Agreement between the United States of America and the European Union on the participation of the United States of America in European Union crisis management operations [2011] OJ L143/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .477 Council Decision 2011/361/CFSP of 20 December 2010 on the signing and conclusion of the Agreement between the European Union and the Republic of Serbia establishing a framework for the participation of the Republic of Serbia in European Union crisis management operations [2011] OJ L163/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .477 Council Decision 2011/514/CFSP of 22 November 2010 concerning the signing and conclusion of the Agreement between the European Union and the Republic of Serbia on security procedures for exchanging and protect in classified information [2011] OJ L216/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .476

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Council Decision 2011/640/CFSP of 12 July 2011 on the signing and conclusion of the Agreement between the European Union and the Republic of Mauritius on the conditions of transfer of suspected pirates and associated seized property from the European Union-led naval force to the Republic of Mauritius and on the conditions of suspected pirates after transfer [2011] OJ L254/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .478 Council Decision 2011/764/CFSP of 28 November 2011 repealing Decision 2011/210/CFSP on a European Union military operation in support of humanitarian assistance operations in response to the crisis situation in Libya (EUFOR Libya) [2011] OJ L314/35 . . . . . . . 465, 470 Council Decision 2012/173/CFSP of 23 March 2012 on the activation of the EU Operations Centre for the Common Security and Defence Policy missions and operation in the Horn of Africa [2012] OJ L89/66 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .466 Council Decision 2012/174/CFSP of 23 March 2012 amending Joint Action 2008/851/CFSP on a European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast [2012] OJ L89/69 . . . . .465 Council Decision 2012/281/CFSP of 29 May 2012 in the framework of the European Security Strategy in support of the Union proposal for an international Code of Conduct on outerspace activities [2012] OJ L140/68 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .424 Council Decision 2012/312/CFSP of 18 June 2012 on the European Union Aviation Security CSDP Mission in South Sudan (EUAVSEC-South Sudan) [2012] OJ L158/17 . . . . . . . . . . . . .468 Council Decision 2012/315/CFSP of 19 December 2011 on the signing and conclusion of the Agreement between the European Union and New Zealand establishing a framework for the participation of New Zealand in European Union crisis management operations [2012] OJ L160/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .477 Council Decision 2012/344/CFSP of 23 March 2012 on the signing and conclusion of the Agreement between the European Union and the Republic of Albania establishing a framework for the participation of the Republic of Albania in European Union crisis management operations [2012] OJ L169/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .477 Council Decision 2012/372/CFSP of 10 July 2012 amending and extending Decision 2010/330/CSFP on the European Union Integrated Rule of Law Mission for Iraq, EUJUST LEX-IRAQ [2012] OJ L179/22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .468 Council Decision 2012/389/CFSP of 16 July 2012 on the European Union Mission on Regional Maritime Capacity Building in the Horn of Africa (EUCAP NESTOR) [2012] OJ L187/40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .469 Council Decision 2012/391/CFSP of 16 July 2012 amending Decision 2010/279/CFSP on the European Union Police Mission in Afghanistan (EUPOL AFGHANISTAN) [2012] OJ L187/47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .467 Council Decision 2012/392/CFSP of 16 July 2012 on the European Union CSDP mission in Niger (EUCAP Sahel Niger) [2012] OJ L187/48. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .468 Council Decision 2012/421/CFSP of 23 July 2012 in support of the Biological and Toxin Weapons Convention (BTWC), in the framework of the EU Strategy against Proliferation of Weapons of Mass Destruction [2012] OJ L196/61 . . . . . . . . . . . . . . . . . . . . . . .423 Council Decision 2012/422/CFSP of 10 March 2012 in support of a process leading to the establishment of a zone free of nuclear weapons and all other weapons of mass destruction in the Middle East [2012] OJ L196/67 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .424 Council Decision 2012/486/CFSP of 23 July 2012 concerning the signing and conclusion of the Agreement between the Organisation for Joint Armament Cooperation and the European Union on the protection of classified information [2012] OJ L229/1 . . . . . . . . . . . .476 Council Decision 2013/34/CFSP of 17 January 2013 on a European Union military mission to contribute to the training of the Malian Armed Forces (EUTM Mali) [2013] OJ L14/19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .465

Table of Legislation lxi Council Decision 2013/87/CFSP of 18 February 2013 on the launch of a European Union military mission to contribute to the training of the Malian Armed Forces (EUTM Mali) [2013] OJ L46/27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .465 Council Decision 2013/178/CFSP of 25 February 2013 on the signing and conclusion of the Agreement between the European Union and the Republic of Mali on the status in the Republic of Mali of the European Union military mission to contribute to the training of the Malian Armed Forces (EUTM Mali) [2013] OJ L106/1 . . . . . . . . . . . . . . . . . . . . . . . . . . .474 Council Decision 2013/183/CFSP of 22 April 2013 concerning restrictive measures against the Democratic People’s Republic of Korea and repealing Decision 2010/800/CFSP [2013] OJ L111/52 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .509 Council Decision 2013/233/CFSP of 22 May 2013 on the European Union Integrated Border Management Assistance Mission in Libya (EUBAM Libya) [2013] OJ L138/15 . . . . . . . . . . . .468 Council Decision 2013/446/CFSP of 6 September 2013 amending Decision 2010/452/CFSP on the European Union Monitoring Mission in Georgia (EUMM Georgia) [2013] OJ L240/21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .468 Council Decision 2013/450/CFSP of 22 July 2013 on the signing and conclusion of the Agreement between the European Union and the Republic of Niger on the status of the European Union CSDP mission in Niger (EUCAP Sahel Niger) [2013] OJ L242/1 . . . . . . . .474 Council Decision 2013/468/CFSP of 23 September 2013 amending and extending Decision 2010/565/CFSP on the European Union mission to provide advice and assistance for security sector reform in the Democratic Republic of the Congo (EUSEC RD Congo) OJ L252/29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .467 Council decision 2013/467/CFSP of 23 September 2013 amending and extending Decision 2010/576/CFSP on the European Union police mission undertaken in the framework of reform of the security sector (SSR) and its interface with the system of justice in the Democratic Republic of the Congo (EUPOL RD Congo) [2013] OJ L252/27 . . . . . . . . . . . . .467 Council Decision 2013/725/CFSP of 9 December 2013 amending and extending Decision 2012/173/CFSP on the activation of the EU Operations Centre for the Common Security and Defence Policy missions and operation in the Horn of Africa [2013] OJ L329/39 . . . . .466 Council Decision 2013/729/CFSP of 9 December 2013 amending Decision 2013/34/CFSP on a European Union military mission to contribute to the training of the Malian Armed Forces (EUTM Mali) [2013] OJ L332/18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .465 Council Decision 2013/798/CFSP of 23 December 2013 concerning restrictive measures against the Central African Republic [2013] OJ L352/51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .509 Council Decision 2014/42/CFSP of 28 January 2014 amending Decision 2012/281/CFSP in the framework of the European Security Strategy in support of the Union proposal for an international Code of Conduct on outer-space activities [2014] OJ L26/42 . . . . . . . . . . . . . . .424 Council Decision 2014/71/CFSP of 18 November 2013 on the signing and conclusion of the Agreement between the European Union and the Republic of Chile establishing a framework for the participation of the Republic of Chile in European Union crisis management operations [2014] OJ L40/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .477 Council Decision 2014/73/CFSP of 10 February 2014 on a European Union military operation in the Central African Republic (EUFOR RCA) [2014] OJ L40/59] . . . . . . . . . . . . .465 Council Decision 2014/75/CFSP of 10 February 2014 on the European Union Institute for Security Studies [2014] OJ L41/13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .424 Council Decision 2014/145/CFSP of 17 March 2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine [2014] OJ L78/16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 424, 443

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Council Decision 2014/181/CFSP of 10 March 2014 on the conclusion of the Agreement in the form of an Exchange of Letters between the European Union and the Central African Republic on the status in the Central African Republic of the European Union military operation in the Central African Republic (EUFOR RCA) [2014] OJ L98/1 . . . . . . . . . . . . . .474 Council Decision 2014/198/CFSP of 10 March2014 on the signing and conclusion of the Agreement between the European Union and the United Republic of Tanzania on the conditions of transfer of suspected pirates and associated seized property from the European Union-led naval force to the United Republic of Tanzania [2014] OJ L108/1 . . . .478 Council Decision 2014/219/CFSP of 15 April 2014 on the European Union CSDP mission in Mali (EUCAP Sahel Mali) [2014] OJ L113/21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .469 Council Decision 2014/293/CFSP of 15 April 2014 on the signing and conclusion of the Agreement between the European Union and the Swiss Confederation on the participation of the Swiss Confederation in the European Union military mission to contribute to the training of the Malian Armed Forces (EUTM Mali) [2014] OJ L151/16 . . . .471 Council Decision 2014/326/CFSP of 28 January 2014 on the signing and conclusion of the Agreement between the European Union and the Republic of Korea establishing a framework for the participation of the Republic of Korea in European Union crisis management operations [2014] OJ L166/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .477 Council Decision 2014/447/CFSP of 9 July 2014 amending Decision 2013/354/CFSP on the European Union Police Mission for the Palestinian Territories (EUPOL COPPS) OJ L201/28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .467 Council Decision 2014/482/CFSP of 22 July 2014 amending Decision 2012/392/CFSP on the European Union CSDP mission in Niger (EUCAP Sahel Niger) [2014] OJ L217/31 . . . . . . .468 Council Decision 2014/386/CFSP of 30 July 2014 amending Decision 2014/386/CFSP concerning restrictions on goods originating in Crimea or Sevastopol, in response to the illegal annexation of Crimea and Sevastopol [2014] OJ L183/70 . . . . . . . . . . . . . . . . . . . . . . . . .443 Council Decision 2014/430/CFSP of 3 July 2014 amending Joint Action 2005/889/CFSP on establishing a European Union Border Assistance Mission for the Rafah Crossing Point (EU BAM Rafah) [2014] OJ L197/75 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .468 Council Decision 2014/449/CFSP of 10 July 2014 concerning restrictive measures in view of the situation in South Sudan [2014] OJ L2003/100 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .509 Council Decision 2014/485/CFSP of 22 July 2014 amending Decision 2012/389/CFSP on the European Union Mission on Regional Maritime Capacity Building in the Horn of Africa (EUCAP NESTOR) [2014] OJ L217/39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .469 Council Decision 2014/508/CFSP of 30 July 2014 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine [2014] OJ L226/23 . . . . . . . . .443 Council Decision 2014/507/CFSP of 30 July 2014 amending Decision 2014/386/CFSP concerning restrictions on goods originating in Crimea or Sevastopol, in response to the illegal annexation of Crimea and Sevastopol [2014] OJ L226/20 . . . . . . . . . . . . . . . . . . . . .443 Council Decision 2014/512/CFSP of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine [2014] OJ L229/3 . . . . . . . . . . . . . . . . . .443

EU Miscellaneous Council statement concerning the framework agreement on relations between the European Parliament and the Commission [2005] OJ C161/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .145 Joint Declaration of the Paris Summit for the Mediterranean Union of 13 July 2008, 11877/08 (Presse 213) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .400

Table of Legislation lxiii Joint statement by the Council and the representatives of the governments of the Member States meeting within the Council, the European Parliament and the Commission on European Union Development Policy: ‘The European Consensus’ [2006] OJ C46/1 . . . . 9, 70, 525 Joint statement by the Council and the representatives of the governments of the Member States meeting within the Council, the European Parliament and the Commission on European Union Development Policy: ‘The European Consensus on Humanitarian Aid’ [2008] OJ C25/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .139 Internal agreement between the representatives of the governments of the Member States, meeting within the Council, on measures to be taken and procedures to be followed for the implementation of the ACP-EC Partnership Agreement [2000] OJ L317/376 . . . . . . . . . .178 Notice of initiation of an ‘illicit commercial practice’ procedure concerning the unauthorised reproduction of sound recordings in Indonesia [1987] OJ C136/3. . . . . . . . . . . . . . . . . . . . . . . .43

MISCELLANEOUS

National Instruments Republic of Slovenia, Negotiating Positions of the Republic of Slovenia for Negotiations on Accession to the European Union (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .346 House of Lords Select Committee on the European Union, “Open Skies” or Open Markets? The Effect of the European Court of Justice (ECJ) Judgments on Aviation Relations Between the European Union (EU) and the United Stated of America (USA), Session 2002-03, Seventeenth Report (HL 92) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .342 House of Lords Select Committee on the European Union, The Treaty of Lisbon: an impact assessment, Session 2007-08, Tenth Report (HL 62) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .416

United Nations Security Council Resolutions Security Security Security Security Security Security Security

Council Council Council Council Council Council Council

Resolution Resolution Resolution Resolution Resolution Resolution Resolution

1244 1441 1730 1735 1822 1904 2161

(1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .396 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .441 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .225 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .225 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .225 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .225 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .225

United Nations General Assembly Resolutions General Assembly Resolution A/RES/65/276 (2011), Participation of the European Union in the work of the United Nations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .162

Introduction Introduction

Introduction In the second edition of his study on treaty law, Anthony Aust notes that ‘[a]nything to do with the European Communities is complex, and this is particularly so for the law governing their external relations’.1 When I was writing this book, not a day went by when this observation was not on my mind. And yet, this area of endless fascination for academic lawyers has become central to discussions about the about the future of the European Union at various levels. The long process leading to the signing of the Treaty establishing a Constitution for Europe made academic lawyers focus on the pillar structure of the Union and examine ways which would facilitate the conduct of the Union’s international relations, whilst respecting the rights of Member States to act as fully sovereign subjects of international law. The uncertain fate of the Constitutional Treaty made politicians wonder about the future role of the Union on the international scene. The war in Iraq raised questions about the commitment of national governments to a truly common EU foreign policy. And Robert Kagan’s discussion about Americans and Europeans and Mars and Venus2 made lawyers, politicians and the public wonder about the distinctiveness of the EU international identity. Indeed, the question whether Europeans are from Venus appears to be raised in every discussion about the Union’s international actions. This is a question which this book will try to avoid. This is mainly because such thesis is as ubiquitous as it is impervious to the rationale, dynamics, development and interactions of legal mechanisms.3 This book will focus on these mechanisms.

This is how the first edition of this book in 2006 started. Since then, a lot has happened. The Constitutional Treaty died a long and painful death and its successor, the Lisbon Treaty, entered into force not without problems. Iraq keeps exercising policy-makers, albeit for different reasons and in a different context. The Union’s neighbourhood is again a source of conflict and destabilisation: Russia is spreading its threatening shadow and has invaded Ukraine, and northern Africa and the Middle East have experienced upheavals for which the international community appeared unprepared. Against this background, the Union has faced a financial crisis which threatened the euro, raised the possibility of sovereign default within the eurozone and, ultimately, acquired an existential dimension. This internal development had implications for the Union’s international relations. According to an editorial in the Financial Times, ‘the EU’s effectiveness as an international actor has been battered by the Eurozone crisis, its political will sapped by economic austerity and by growing public disaffection with the entire European project’.4 In the nine years since the publication of the first edition of this book, the international role of Union law been at the centre of any debate about the future of the Union and has 1 A Aust, Modern Treaty Law and Practice, 2nd edn (Cambridge, Cambridge University Press, 2000) 55. (In the third edition, the second part of the sentence, about EU external relations, is dropped. It is suggested that this may not be because EU external relations law has become straightforward.) 2 R Kagan, Paradise and Power, America and Europe in a New World Order (New York, Knopf, 2003). 3 For an analysis of the oversimplifications of this thesis from an international relations perspective, see T Garton Ash, Free World (London, Penguin, 2005). 4 Financial Times, 23 February, 2014.

1

2

Introduction

also bred considerable interest amongst legal scholars. The days when EU international relations law was merely a footnote in EU law textbooks are gone. Leaving aside books on specific topics of EU international relations, a healthy stream of general analyses has emerged, including a new edition,5 collections of text and materials, 6 monographs,7 and edited collections.8 In line with its first edition and the constantly evolving nature of the EU’s external action, this book constitutes work in progress and aims to provide an analysis of the legal mechanisms pursuant to which the Union relates to the rest of the world. It does not aim to produce an encyclopaedia of all areas of EU international relations law, neither does it seek to provide an exhaustive analysis of specific external policies. Instead, it is selective and organised on the basis of criteria which are both shamelessly subjective (ie the personal interests of its author) and objective (it seeks to examine areas of legislative activity that have provided fertile ground for legal and policy disputes). Two characteristics of the first edition are maintained: the book seeks to examine the law against the practice of the EU’s external action and to highlight the threads which underpin the different strands of that action. Finally, the last part of the book draws on my The EU Common Security and Defence Policy (Oxford, Oxford University Press, 2013)—and I am grateful to Oxford University Press for allowing me to do so.

STRUCTURE

The book is structured in five parts. The first part deals with the regulation of the Union’s international relations law. Its main focus is on the constitutional foundations of the Union’s external action. Chapter 1 sets out the general scheme of the rules which govern the EU as an international actor and outlines the constitutional reconfiguration of the external relations provisions in primary law. Chapter 2 focuses on the Common Commercial Policy (CCP). It analyses the notion of exclusivity in a twofold manner. On the one hand, it examines the legal context within which the Court articulated exclusivity and the ways in which it has applied it over the years. On the other hand, it sets out the approach of the EU institutions and the Member States to the regulation of the CCP and the ways in which it has evolved in parallel with the process of the establishment of the internal market and the international economic environment. The picture of the policy which emerges is characterised by a considerable degree of subtlety and variation. The analysis also tackles the scope of the CCP as set out in the Lisbon Treaty and against the background of the case-law of the Court of Justice. Chapter 3 analyses the implied 5

P Eeckhout, EU External Relations Law (Oxford, Oxford University Press, 2011). See P J Kuijper, J Wouters, F Hoffmeister, G De Baere and T Ramopoulos, The Law of EU External Relations—Cases, Materials and Commentary on the EU as an International Legal Actor (Oxford, Oxford University Press, 2013); B Van Vooren and R Wessel, EU External Relations—Text, Cases and Materials (Cambridge, Cambridge University Press, 2014). 7 G De Baere, Constitutional Principles of EU External Relations (Oxford, Oxford University Press, 2008); R  Holdgaard, External Relations Law of the European Community—Legal Reasoning and Legal Discources (Alphen aan den Rijn, Kluwer, 2008). 8 See amongst others M Cremona and B De Witte (eds), EU Foreign Relations Law—Constitutional Fundamentals (Oxford, Hart Publishing, 2008); A Dashwood and M Maresceau (eds), Law and Practice of EU External Relations—Salient Features of a Changing Landscape (Cambridge, Cambridge University Press, 2008); B Van Vooren, S Blockmans and J Wouters (eds), The EU’s Role in Global Governance—The Legal Dimension (Oxford, Oxford University Press, 2013). 6

Introduction 3 competence of the Union to act on the international scene. Originating in the early 1970s, this principle has had major implications not only for the external dimension of the Union legal order but also the constitutional relationship between the Member States and the Union. Focusing on the evolution of this principle on the basis of the case-law of the Court of Justice and the effort of the drafters of the Lisbon Treaty to articulate it, this chapter examines the various ways in which its application determines the interaction between the Union and national actors. The second part of this book is dedicated to the management of the EU international relations. The term ‘management’ is used in its broadest sense and refers to the various ways in which the Union and the Member States, on the one hand, and the Court of Justice, on the other, translate the constitutional principles of external competence into practice. Chapter 4 examines the processes under which the Union assumes, negotiates and concludes international agreements and participates in international organisations. Chapter 5 focuses on the coexistence of the EU and the Member States in the negotiation, conclusion and implementation of international agreements. This phenomenon of mixity, much-maligned in the academic literature, is assessed in the light of the legal, political and practical mechanisms which have underpinned its application over the years. The analysis also examines its implications for the Member States which have become all the more apparent in the last few years. The third part of the book examines the relationship between international and EU law. Chapter 6 analyses the status of international law within the EU legal order and covers both international agreements and customary international law. Chapter 7 explores the approach of the Court of Justice to the existence and exercise of its jurisdiction over international agreements, including mixed agreements. Chapter 8 examines the enforcement of international law as a matter of EU law and analyses the different ways, direct and indirect, in which international agreements and customary law may penetrate the EU legal order. It identifies different categories of international rules and examines the rights of individuals as well as Member States to invoke them before national courts and the EU judiciary. It also examines the approach of the EU courts to the application of rules adopted within the framework of the World Trade Organization. Tracing its origins back in the interpretation given to GATT rules, this chapter studies the various factors underpinning the Court’s approach and identifies their interrelation with other strands of its case-law. Chapter 9 examines the legal position of international agreements concluded by Member States prior to their membership of the European Union. The significance of this topic is highlighted by recent case-law of the Court and initiatives undertaken by the EU institutions. This chapter will examine their implications for the development of the Union legal order in general and the role of national courts in particular. The fourth part of the book provides an overview of the substantive content of the Union’s international relations. Chapter 10 deals with the CCP. After a brief introduction to the main imports and exports rules, the ‘Everything But Arms’ initiative and the trade policy instruments, it focuses on one of the most popular of the latter, namely the rules on anti-dumping. The chapter summarises the ways in which the discretion of Union institutions to make substantive policy choices has been construed and juxtaposes it with the degree of intensity of judicial control in procedural and other aspects of that policy. It also provides an overview of the recent initiatives to reform it. Chapter 11 provides an overview of the various links which the Union has forged with third countries, either on its own or with its Member States. Its particular focus is on the Partnership and

4

Introduction

Cooperation Agreements with members of the ex-Soviet Union, the Stabilisation and Association Agreements with countries in the West Balkans and the Euro-Mediterranean Agreements. Rather than providing an exhaustive analysis of their content, this chapter seeks to assess them within the context of the Union’s gradually evolving approach as presented in the European Neighbourhood Policy. The final part analyses the political aspects of the international relations of the European Union and the interactions between different strands of external policies. Chapter 12 studies the Common Foreign and Security Policy. It examines the legal rules underpinning its development and the constitutional and political factors which affect the Union’s effort to assert its identity on the international scene. Chapter 13 analyses the Common Security and Defence Policy. It examines the legal rules laid down in the Treaty on European Union and assesses them in the context of the economic and political parameters which determine their effectiveness. It also examines the practice of the Union’s conduct in the area and explores the issues which underpin its effectiveness, namely the capabilities offered by the Member States. Chapter 14, the last chapter, analyses the interactions between different external policies. It focuses on the linkages between trade and foreign policy, examines the legal rules governing sanctions and describes the development of the common rules on exports of dual-use goods. It also examines the interactions between development co-operation and the Common Security and Defence Policy and explores the ways in which they have been managed as a matter of practice and the issues which they have raised before the Court of Justice.

The European Union in the World

1 The European Union in the World 1. INTRODUCTION Introduction

T

HE CAPACITY OF the European Union to engage with third countries and international organisations has been at the centre of the debates about the EU’s constitutional identity and future that began in the early 2000s. In December 2001, the European Council adopted the Laeken Declaration, which initiated the long and unpredictable process that led to the drafting, negotiation and early death of the Treaty Establishing a Constitution for Europe, followed by the drafting, ratification, adjustment and entry into force of the Lisbon Treaty. The international role of the EU featured prominently in the Declaration, which raised the question: Does Europe not, now that is finally unified, have a leading role to play in a new world order, that of a power able both to play a stabilising role worldwide and to point the way ahead for many countries and peoples?1

Throughout the process, which led, ultimately, to the entry into force of the Lisbon Treaty, the international role of the Union never ceased to be one of the core areas of attention for the negotiators. For instance, in the Declaration responding to the negative referendums in France and the Netherlands, European leaders underlined the need for the Union ‘to respond to the challenges of globalisation [and] to safeguard internal and external security’.2 After all, the reform of the EU’s institutional and legal framework to which the EU elites aspired was deemed essential to the role of the Union on the world stage and had been articulated in grand terms in the Laeken Declaration. The Lisbon Treaty, as well as its precursor, was drafted, negotiated and ratified amidst great hopes as to its impact in the area of foreign affairs, and was received with the expression of even greater relief and anticipation. The then President of the Commission, Romano Prodi, on the day of the signing of the Constitutional Treaty, declared: ‘[T]oday, Europe is reaffirming the unique nature of its political organisation in order to respond to the challenges of globalisation, and to promote its values and play its rightful role on the international scene.’3 Launching the Intergovernmental Conference (IGC), which led to the adoption of the Lisbon Treaty, the European Council stated that ‘[i]n order to secure our future as an active player in a rapidly changing world and in the face of evergrowing challenges, we have to maintain and develop the European Union’s capacity to 1

Conclusions of the Laeken European Council (14–15 December 2001), Annex I, 2. Declaration by the Heads of State or Government of the Member States of the European Union on the Ratification of the Treaty Establishing a Constitution for Europe, European Council, SN 117/05 (Brussels, 16–17 June 2005), 2. 3 Speech delivered in Rome at the ceremony on the signing of the Constitutional Treaty (www.europa.eu) (last accessed 25 October 2012). 2

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The European Union in the World

act’.4 The European Council claimed that the Lisbon Treaty ‘will bring increased efficiency to our external action’.5 In its Opinion for the IGC, which led to the Lisbon Treaty, the European Commission expressed the view that the latter ‘will give Europe a clear voice in relations with our partners worldwide, and sharpen the impact and visibility of our message.  … This will mean an EU able to play a more responsive and effective part in global affairs.’6 And the Commission President, José Barroso, in addressing the European Parliament, said that, ‘[w]ith the Reform Treaty, Europe will have the conditions and the instruments to shape globalisation’.7 Therefore, it was expected that the legal mechanisms set out in primary law would enable the Union to assume a central actor on the world stage. This role is defined by the Union itself with ambition and confidence.

2. THE INTERNATIONAL ROLE OF THE EUROPEAN UNION The International Role of the European Union

The Laeken Declaration stated: Now that the Cold War is over and we are living in a globalised, yet also highly fragmented world, Europe needs to shoulder its responsibilities in the governance of globalisation. The role it has to play is that of a power resolutely doing battle against all violence, all terror and all fanaticism, but which also does not turn a blind eye to the world’s heartrending injustices. In short, a power wanting to change the course of world affairs in such a way as to benefit not just the rich countries but also the poorest. A power seeking to set globalisation within a moral framework, in other words to anchor it in solidarity and sustainable development.8

Two years later, in December 2003, the European Council endorsed the European Security Strategy, drawn up by the then High Representative for the Common Foreign and Security Policy, Javier Solana.9 Prepared when the world was still trying to come to terms with the implications of the 9 September 2001 terrorist attacks, this document identifies the main tenets of the Union’s understanding of its internal role. Its starting point is the success of the project of European integration—its first sentence is: ‘Europe has never been so prosperous, so secure nor so free.’10 Its success on the internal plane should be translated into international action: The increasing convergence of European interests and the strengthening of mutual solidarity of the EU makes us a more credible and effective actor. Europe should be ready to share in the responsibility for global security and in building a better world.11

Given the wide range of policies in which it engages (economic, social, political, security) and the wide range of global threats, the European Security Strategy suggests that the 4

Presidency Conclusions, June 2007, 2nd para. EU Declaration on Globalisation, annexed to Brussels European Council Presidency Conclusions, December 14, 2007, at 25. 6 Opinion of the European Commission, pursuant to Article 48 of the Treaty on European Union, on the Conference of representatives of the governments of the Member States convened to revise the Treaties, 13 July 2007, Council 11625/07 POLGEN 83, 8. 7 Speech/07/469 (23 October 2007). 8 Conclusions of the Laeken European Council (14–15 December 2001), Annex I, at 2 9 A Secure Europe in a Better World—European Security Strategy (Brussels, 12 December 2003). 10 Ibid, 1. 11 Ibid. 5

External Action 9 Union ‘is particularly well equipped to respond to such multi-faceted challenges’.12 It refers in detail to the need for strengthening an international order based on effective multilateralism, and concludes as follows: This is a world of new dangers but also of new opportunities. The European Union has the potential to make a major contribution, both in dealing with the threats and in helping realise the opportunities. An active and capable European Union would make an impact on a global scale. In doing so, it would contribute to an effective multilateral system leading to a fairer, safer and more united world.

These documents are striking for both the ambition they convey and the strong sense of global responsibility for the Union that they articulate. This is consistent with the tenor of other policy documents of the period, such as the Report on the Implementation of the European Security Strategy endorsed by the European Council in December 200813 and the European Consensus on Development, drawn up by the Council, the Commission, and the European Parliament, as well as the representatives of the governments of the Member States meeting within the Council.14 The wide range of policies carried out by the Union and the variety of techniques with which it interacts with the rest of the world feed these expectations. Cremona identifies a number of roles which the Union has assumed: laboratory and model, market player, role generator, stabiliser, and magnet and neighbour.15 Political scientists have also been attracted to the different functions which the EU assumes as a global actor.16

3. EXTERNAL ACTION External Action

After Lisbon, the Union’s primary law refers to ‘external action’ rather than ‘external policies’. The use of the word ‘action’ in the singular connotes commonality of purpose and implies coherence and consistency. This was one of the main aims of the drafting of the Constitutional Treaty and the Lisbon Treaty which also intended to enhance the effectiveness of the Union’s international role. The term ‘external action’ is used in the Treaties to describe all policies carried out on the international scene, irrespective of their position in the supranationalism–intergovernmentalism spectrum. Whereas prior to the Lisbon Treaty they were scattered in different parts of primary law, under the current constitutional arrangements all but one of these policies are grouped together in Part V of the Treaty on the Functioning of the European Union (TFEU). These policies are  Common Commercial Policy (Articles 206–07 TFEU);  development cooperation (Articles 208–11 TFEU);  economic, financial and technical cooperation with third countries (Articles 212–13 TFEU); 12

Ibid, 7. S407/08 (Brussels, 11 December 2008). 14 [2006] OJ C46/1. 15 M Cremona, ‘The Union as a Global Actor: Roles, Models and Identity’ (2004) 41 Common Market Law Review 553. 16 See the overview in I Manners, ‘Global Europa: Mythology of the European Union in World Politics’ (2010) 48 Journal of Common Market Studies 67. 13

10 The European Union in the World  humanitarian aid (Article 214 TFEU);  restrictive measures (Article 215 TFEU);  international agreements (Articles 216–19 TFEU). The only strand of the Union’s external action not included in Part V TFEU is the Common Foreign and Security Policy (CFSP) and the Common Security and Defence Policy (CSDP) which are governed by provisions laid down in Title V TEU. This separation is significant in legal terms and will be explored in Chapters 12 and 13. The original Treaty of Rome only referred to the Common Commercial Policy and the negotiation and conclusion of association agreements, ie agreements establishing an association between the Community and one or more states or international organisations ‘involving reciprocal rights and obligations, common action and special procedure’ (Article 217 TFEU). The other policies were added in subsequent Treaty amendments. In addition to the strands of external action grouped together in Title V TFEU, there are TFEU provisions for other forms of international cooperation. In the area of the environment, the Union is endowed with express treaty-making competence (Article 191(4) TFEU). The Union is also competent to establish ‘all appropriate forms of cooperation’ with the organs of the United Nations and its specialised agencies, the Council of Europe, the Organisation for Security and Cooperation in Europe (OSCE), the OECD and to maintain ‘such relations as are appropriate’ with any other international organisation (Article 220(1) TFEU). In the areas of education (Article 165(3) TFEU), vocational training (Article 166(3) TFEU), culture (Article 167(3) TFEU) and public health (Article 168(3) TFEU), the Union is expressly competent to foster cooperation with third countries and international organisations. In the area of trans-European networks (TENS) (Article 171(3) TFEU), the Union is competent to cooperate with third countries to promote projects of mutual interest and to ensure the interoperability of networks. In the area of research, Article 186 TFEU provides that, in the context of its multiannual framework programme, the Union may provide for cooperation with third countries and international organisations. These are the areas where the Treaties grant the Union a specific external role. However, they by no means provide the only terrain where the Union may act in the world. In areas where internal policies are carried out, the Union is often required to act externally too. In fact, a considerable part of its external activities fall within this category of implied competence. The legal issues which are raised in these areas are examined below in Chapter 3. A question central to the Union’s external action is the nature of its competence. In the light of its implications for the powers of both the EU and the Member States, this is a question of utmost significance. Originally, primary law was silent about it and it was left to the Court of Justice to answer it on a case-by-case basis. However, one of the aims of the constitutional process which led to the entry into force of the Lisbon Treaty was the introduction of a clearer division of competence. To that effect, different categories of competence are set out in the TFEU. Exclusive competence in a specific area entails that ‘only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts’.17 These areas are set out in Article 3(1) TFEU and include the Common Commercial Policy. 17

Art 2(1) TFEU.

Principles and Objectives

11

Shared competence in a specific area denotes the coexistence of EU and national power. Under Article 2(2) TFEU, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.

The areas covered by shared competence are set out in Article 4(2) TFEU and include development cooperation and humanitarian aid where the exercise of the Union’s competence ‘shall not result in Member States being prevented from exercising theirs’.18 The Union is also endowed with the competence to introduce arrangements aiming to coordinate the economic and employment policies of the Member States in accordance with Article 5 TFEU.19 In addition, competence is also granted to support, coordinate or supplement the actions of Member States in the areas set out in Article 6 TFEU. A considerable part of the Union’s external action is covered by competence which is set apart from the above categories. This is the Union’s competence to carry out the CFSP and CSDP and is laid down in Article 2(4) TFEU. This is distinguished from all other types of competence because the rules and procedures governing the CFSP and CSDP are similarly distinguished from all other external policies in terms of their legal characteristics and implications, as well as their position in primary law. This issue will be explored in Chapter 12. Finally, in Article 216 TFEU, the Treaty endows the Union with a specific competence to negotiate and conclude international agreements and defines the circumstances under which this competence is exclusive in Article 3(2) TFEU. These provisions are intended to codify the case-law of the Court of Justice in the area and, in doing so, their wording raises more questions than it answers. These are explored in Chapter 3.

4. PRINCIPLES AND OBJECTIVES Principles and Objectives

The reorganisation of the various strands of the Union’s external action is not the only structural innovation introduced at Lisbon. For the first time, a set of common principles and objectives was introduced to govern the entire spectrum of what the Union does in the world. Under the previous constitutional arrangements, no special attention was paid as to the elaboration of specific common objectives and principles which would govern the conduct of external policies. Instead, the drafters of the Treaties were mainly preoccupied with ensuring that, in the light of their subject-matter, external relations provisions were assigned to the appropriate legal framework, and with setting out general constitutional principles aiming to govern their interactions. To that effect, external trade, development, humanitarian aid, and economic, financial and technical cooperation with third countries, as well as the conclusion of association agreements, were all part of the EC Treaty, while foreign and security policy were part of the Treaty

18 19

Art 4(4) TFEU. Art 2(3) TFEU.

12 The European Union in the World on the European Union. As to their overall conduct, this was governed by the principle of coherence.20 The common principles governing the Union’s external action are set out in Article 21(1) TEU: The Union’s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principle of equality and solidarity, and respect for the principles of the United Nations Charter and international law.

These are the very principles which the Union has sought to apply in its policies over the years. For instance, the enlargement process, the various rounds of which dominated the Union’s activities in the latter part of 1990s and 2000s, is based on criteria for EU membership, some of which echo these principles.21 These principles also emerge as the main cornerstones of the Union’s security policy as set out in the European Security Strategy. The reference to respect for the UN Charter and international law is noteworthy as it reflects the increasing emphasis on multilateralism, which has characterised the Union’s external policies ever more prominently since the terrorist attacks of 9/11.22 The principles that guide the EU’s external action under Article 21(1) TEU are based on the foundation values of the Union which are set out in Article 2 TEU: The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

The position of these values within the Union’s external action23 is articulated in Article 3(5) TEU, which reads as follows: In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter.

The objectives of the EU’s external action are set out in Article 21(2) TEU: (a) safeguard its values, fundamental interests, security, independence, and integrity;

20 Art 3 TEU (Nice) referred to the requirement of consistency regarding the activities carried out within the EU legal order. In relation to external relations specifically, in a second subparagraph it stated that the Union ‘shall in particular ensure the consistency of its external activities as a whole in the context of its external relations, security, economic and development policies’. The Council and the Commission were responsible for ensuring that this requirement was met. 21 These were the criteria set out by the Copenhagen European Council in June 1993 and which included references to democracy, the rule of law and human rights (Presidency Conclusions, 21–22 June 1993). See further M Cremona (ed), The Enlargement of the European Union (Oxford, Oxford University Press, 2003) and C Hillion (ed), EU Enlargement—A Legal Approach (Oxford, Hart Publishing, 2004). 22 See eg COM(2003) 526 final, The European Union and the United Nations: The Choice of Multilateralism. 23 See M Cremona, ‘Values in EU Foreign Policy’ in M Evans and P Koutrakos (eds), Beyond the Established Legal Orders—Policy Interconnections Between the EU and the Rest of the World (Oxford, Hart Publishing, 2011) 275.

Principles and Objectives

13

(b) consolidate and support democracy, the rule of law, human rights and the principles of international law; (c) preserve peace, prevent conflicts and strengthen international security, in accordance with the purposes and principles of the United Nations Charter, with the principles of the Helsinki Final Act and with the aims of the Charter of Paris, including those relating to external borders; (d) foster the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty; (e) encourage the integration of all countries into the world economy, including through the progressive abolition of restrictions on international trade; (f) help develop international measures to preserve and improve the quality of the environment and the sustainable management of global natural resources, in order to ensure sustainable development; (g) assist populations, countries and regions confronting natural or man-made disasters; and (h) promote an international system based on stronger multilateral cooperation and good global governance.

These objectives are remarkably broad: they are of a political, security, economic and social nature, and cover activities within the entire range of what the EU may do under any of the legal arrangements set out in primary law. Their main characteristic is their application throughout the entire range of the Union’s external action. In accordance with Article 21(3) TEU: The Union shall respect the principles and pursue the objectives set out in paragraphs 1 and 2 in the development and implementation of the different areas of the Union’s external action covered by this Title and by Part Five of the Treaty on the Functioning of the European Union, and of the external aspects of its other policies.

This provision brings together the different strands of the Union’s external policies, irrespective of their position in the Treaties, within a single set of principles and objectives. Therefore, the latter applies both to the aspects of the external action set out in TFEU (pursuant to Article 206 TFEU), as well as the CFSP/CSDP (pursuant to Article 23 TEU). This is also the main innovation introduced by the reconfiguration of the Union’s constitutional order at Lisbon. The imperative for this change is not difficult to grasp: the articulation of a common set of objectives which would be achieved by whatever it is the Union does in the world would prevent policy fragmentation, enhance coherence and facilitate coordination. To that effect, Article 21(3) TEU provides as follows: The Union shall ensure consistency between the different areas of its external action and between these and its other policies. The Council and the Commission, assisted by the High Representative of the Union for Foreign Affairs and Security Policy, shall ensure that consistency and shall cooperate to that effect.

However, the EU’s legal order is multilevel and idiosyncratic and its structure aims to meet a variety of interests which a range of actors are keen to protect. Different policies are subject to different substantive and procedural rules and this applies to the various strands of the Union’s external action. Therefore, whilst the articulation of common objectives may make sense in principle, the choice amongst them is bound to be far from straightforward given the different legal implications that different legal bases have. These difficulties are compounded by the increasing interactions between different policies, such as trade and environment, trade and foreign policy, or security and defence

14 The European Union in the World policy and development cooperation. The analysis in this book will explore these questions in detail.24

5. LEGAL PERSONALITY Legal Personality

At the core of its international role is the Union’s legal power to act on the international scene. In the briefest of provisions, the Treaty on the European Union addresses the issue of the legal personality of the Union. According to Article 47 TEU: The Union shall have legal personality.

Since its establishment under the Treaty of Rome, the European Economic Community, and then the European Community, had international legal personality. The express provision for the Community’s legal personality was one of the factors illustrating the unique nature of the Community legal order and its ensuing supremacy over national law. In its oft-quoted ruling in Costa in the mid-1960s, the Court stated that: By creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity, and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the states to the Community, the Member States have limited their sovereign rights, albeit within limited fields and have thus created a body of law which binds both their nationals and themselves.25

However, when the Union was established under the Maastricht Treaty, it was not endowed with express legal personality, as the areas of foreign policy, security, defence, and judicial and police cooperation in criminal matters, in other words those areas covered in the second and third pillars, were considered by Member States too close to the core of national sovereignty. Instead, and gradually, the Union was granted a treatymaking capacity the exercise of which gave rise to a debate as to whether the EU enjoyed implied legal personality. In the light of Article 47 TEU, this debate is now irrelevant.26 Express legal personality is also provided for in the European Atomic Energy Community27 and in the now expired European Coal and Steel Community.28 When the Lisbon Treaty entered into force, the EU succeeded the EC in all its international obligations. This is made clear in Article 1(3) TEU and has also been communicated in a number of notes verbales which the EU sent to third countries and international organisations such as the Council of Europe. These suggest that the EU is now responsible for the obligations already assumed by both the EC and the EU. This change has been accepted by the Union’s international partners. According to the principles of public international law, the Union’s legal personality 24

See Chapters 2 and 14. Case 6/64 Costa v ENEL [1964] ECR 585 at 593. 26 For the different views on the debate, see U Khaliq, ‘Treaty Conflict and the European Union, or Conflicting Perspectives on the European Union’ (2012) European Law Review 495, 498–99; N Neuwahl, ‘A Partner with a Troubled Personality: EU Treaty-Making in Matters of CFSP and JHA after Amsterdam’ (1998) 3 European Foreign Affairs Review 177; A Sari, ‘The Conclusion of International Agreements in the Context of the ESDP’ (2008) 57 International and Comparative Law Quarterly 53. 27 Art 184 EURATOM 28 Art 6 ECSC. 25

Conclusion

15

entails a number of powers, such as the right to negotiate, conclude and implement international agreements; the right of legation; the right to present international claims by diplomatic procedures or in other available forms and the capacity to be the subject of such rights; and the existence of liability for any breach of international law.29 The precise scope of the powers and duties of the Union is determined pursuant to its primary law. As the International Court of Justice put it in the seminal case on the legal personality of international organisations: Whereas a State possesses the totality of international rights and duties recognised by international law, the rights and duties of an entity such as the [United Nations] Organization must depend upon its purposes and functions as specified or implied in its constituted documents and developed in practice.30

In addition, it was held that ‘[u]nder international law the organization must be deemed to have those powers which, though not expressly, provided in the charter, are conferred upon it by necessary implication as being essential to the performance of its duties’.31 In terms of their acts in the area of EU external relations, the Union’s institutions do not enjoy any autonomous power. Instead, they are to comply with the provisions set out in EU primary law. As the Court put it, it is the Community alone, having legal personality pursuant to Article [281] of the Treaty, which has the capacity to bind itself by concluding agreements with a non-member country or an international organization.32

6. CONCLUSION Conclusion

This chapter has provided an introduction to the general scheme of the legal framework governing the Union’s international relations. The implications of the relevant rules and the procedures which apply in different areas will be explored in the following chapters. In doing so, the analysis will be constantly referring to two major factors. The first is the role of the Court of Justice: already familiar from the development of the constitutional fabric of the Union as well as the internal market, this role has been pivotal to the genesis and gradual emergence of the Union’s international action. The second factor is the dynamic nature of that action and the constant interplay of its rules and procedures with the political dimension of European integration. Whilst apparent in any area of EU law, this characteristic is even more so in EU international relations law.

29 See I Brownlie, ‘International Law at the Fiftieth Anniversary of the United Nations—General Course on Public International Law’ (1995) 25 Recueil des Cours 9, 52, 63–65. 30 Reparations for Injuries Suffered in the Service of the United Nations [1949] ICJ Rep 174, 179–80. 31 Ibid, 182. See also M Rama-Montaldo, ‘International Legal Personality and Implied Powers of International Organizations’ (1970) 44 British Year Book of International Law 111 and K Skubiszewski, ‘Implied Powers of International Organizations’ in Y Dinstein (ed), International Law at a Time of Perplexity (Dordrecht, Martinus Nijhoff, 1989) 855. 32 Case C-327/91 France v Council (re: Competition Agreement with USA) [1994] ECR I–3641, para 24.

Common Commercial Policy

2 Common Commercial Policy: History, Theory and Practice of Exclusivity

1. INTRODUCTION Introduction

T

HE COMMON COMMERCIAL Policy (CCP) is one of the very few areas of external policies expressly provided for in the Treaty of Rome. Its long life, and gradual consolidation through a number of successive Treaty amendments, make it the nucleus of the Union’s external action.

2. THE MAIN LEGAL FEATURES OF THE CCP The Main Legal Features of the CCP

The provisions governing the CCP are set out in Part V of the TFEU which brings together all the TFEU provisions on the Union’s external action. The CCP rules and procedures are laid down in Title II of Part V and cover Articles 206–07 TFEU. The current version of the CCP provisions is streamlined and leaner. The Lisbon Treaty removed provisions which had become irrelevant1 and had no practical significance.2 The basis for the CCP is the establishment of a customs union between the Member States. This is made clear in Article 206 TFEU, which reads as follows: By establishing a customs union in accordance with Articles 28 to 32, the Union shall contribute, in the common interest, to the harmonious development of world trade, the progressive abolition of restrictions on international trade and on foreign direct investment, and the lowering of customs barriers. 1 Prior to the entry into force of the current rules, Art 131 EC (now Art 206 TFEU) included a second subparagraph which read as follows: ‘The common commercial policy shall take into account the favourable effect which the abolition of customs duties between Member States may have on the increase in the competitive strength of undertakings in those States.’ 2 Such as Art 132 EC which read as follows: ‘Without prejudice to obligations undertaken by them within the framework of other international organisations, Member States shall progressively harmonise the systems whereby they grant aid for exports to third countries, to the extent necessary to ensure that competition between undertakings of the Community is not distorted.’ The Council was given the power to adopt the necessary directives by qualified majority following a proposal by the Commission. An exception was also provided, in certain circumstances, for a drawback of customs duties or charges having equivalent effect, and the repayment of indirect taxation including turnover taxes, excise duties and other indirect taxes as is allowed when goods are exported from a Member State to a third country. On the application of this provision, see M-L Houbé-Masse, La CEE et les crédits à l’exportation: l’intégration en question (Rennes, Apogée, 1992). The Lisbon Treaty also deleted Art 134 EC which was about the necessary measures in case of trade diversion or economic difficulties in the light of the conduct of the CCP.

17

18 Common Commercial Policy The wording of Article 206 TFEU indicates that the establishment of the CCP follows from the establishment of a customs union. The latter is set out in Article 28(1) TFEU, which reads as follows: The Union shall comprise a customs union which shall cover all trade in goods and which shall involve the prohibition between Member States of customs duties on imports and exports and of all charges having equivalent effect, and the adoption of a common customs tariff in their relations with third countries.

By framing the development of the CCP within the context of the customs union, Article 206 TFEU highlights the link between the internal and external spheres of EU action. This is a first indication of a thread which underpins both the substantive and procedural aspects of the CCP and the articulation of the EU’s international action. As such, it will emerge in different ways in different parts of this analysis. The reference to foreign direct investment in Article 206 TFEU finds its way into a Treaty for the first time at Lisbon. Another change in the wording of this provision is a reference to the Union, whereas, under the previous constitutional arrangements, the precursor to Article 206 TFEU referred to the Member States. It is also worth noting the wording used in Article 207 TFEU in relation to the achievement of the objectives of the CCP: the Union ‘shall contribute’ to it. This is a change from the previous Treaties, according to which the Member States ‘aim to contribute’.3 It is yet unclear whether this change in the wording signifies a stronger commitment which would be enforceable before the Court of Justice.4 Under the previous rules, it was accepted that no precise legal obligation was imposed upon the EU institutions. This was indicated early on in an action against Union measures imposing import levies on agricultural products.5 The applicant argued that such levies were very high and, hence, in violation of the principles laid down in the precursor to Article 206 TFEU. The Court held that the relevant measures ‘do not contravene Article [206], since it has not been established, nor has there been any offer to do so, that by adopting such measures the Council overstepped the wide power of assessment conferred on it by this provision’.6 Therefore, the commitment of the Union institutions to trade liberalisation, as expressed in Article 206 TFEU and illustrated by the adoption of unilateral as well as conventional measures, constituted a policy choice not amenable to judicial review. It is Article 207 TFEU which provides for the core of the CCP. Its first paragraph reads as follows: The common commercial policy shall be based on uniform principles, particularly in regard to changes in tariff rates, the conclusion of tariff and trade agreements relating to trade in goods and services, and the commercial aspects of intellectual property, foreign direct investment, the achievement of uniformity in measures of liberalisation, export policy and measures to protect trade such as those to be taken in the event of dumping or subsidies. The common commercial policy shall be conducted in the context of the principles and objectives of the Union’s external action. 3

ex Art 133 subparagraph 1 EC. For an affirmative view, see A Dimopoulos, ‘The Effects of the Lisbon Treaty on the Principles and Objectives of the Common Commercial Policy’ (2010) 15 European Foreign Affairs Review 153, 155–57 and M Krajewski, ‘The Reform of the Common Commercial Policy’ in A Biondi, P Eeckhout and S Ripley (eds), EU Law After Lisbon (Oxford, Oxford University Press, 2012) 292, 295. 5 Case 5/73 Balkan Import Export GmbH v Hauptzollamt Berlin Packhof [1973] ECR 1091. 6 Ibid, para 27. 4

The History of Exclusivity in the CCP

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This provision raises various questions about the scope of the activities to which it refers. These will be examined later in this chapter. At this juncture, the focus of the analysis is on the genesis and development of the exclusive nature of the Union’s competence in the CCP. It is recalled that this is clearly set out in Article 3(1)(e) TFEU. However, for more than fifty years, from the establishment of the European Economic Community until the entry into force of the Lisbon Treaty on 1 December 2009, the Union’s primary rules were silent on this matter. It was for the Court of the Justice to rule on this issue in a number of controversial judgments. In telling this story, this chapter will adopt a twofold approach: on the one hand, it will examine its interpretation by the Court of Justice as it developed from the early 1970s to the present; on the other hand, it will set it against the evolution of the approach adopted by the Union institutions in that period. This is essential to the proper understanding of the competence assumed by the Union which proved to be neither static in nature nor one-dimensional in its implications. For the purposes of its analysis, suffice it to point out two central aspects of the CCP. The first is about its scope: the CCP covers both unilateral measures adopted by the Union institutions and conventional measures negotiated with third countries and international organisations. As the Court pointed out in Massey Fergusson, the proper functioning of the customs union ‘justifies a wide interpretation of Articles [amongst others, 207] of the Treaty and of the powers which these provisions confer on the institutions to allow them thoroughly to control external trade by measures taken both independently and by agreement’.7 The second significant feature of the CCP is related to decision-making: the Council is to adopt legislation implementing the policy by qualified majority (Article 207(2) and (4) TFEU) following a proposal by the Commission. This supranational feature marks the significance of the CCP for the establishment of the internal market. This became all the more important when the Court articulated the legal position of the Member States in the areas covered by Article 207 TFEU. This will be the focus of the following analysis.

3. THE HISTORY OF EXCLUSIVITY IN THE CCP The History of Exclusivity in the CCP

The provision of exclusivity in Article 3(1)(e) TFEU formalises what has always been the nature of the Union’s competence in the CCP. It was the Court of Justice which first introduced exclusivity in the early 1970s and then articulated its implications in the context of the evolving external relations of the then European Economic Community. The historical and policy context within which the exclusivity of the EU’s competence emerged is worth setting out for four reasons. First, it illustrates clearly the contested nature of and different interests that underpin the way in which the Union exercises the competences granted under primary rules. Secondly, it highlights the central role of the EU’s judiciary in shaping the Union’s external action. Thirdly, it underlines the incremental nature of the framework within which the EU formulates and carries out its external policies. Fourthly, it suggests that the development of legal rules in the area of EU international relations is incremental and multilayered and may only be understood properly in the light of the policy considerations which shape their application as a matter of practice. 7

Case 8/73 Hauptzollamt Bremerhaven v Massey Fergusson GmbH [1973] ECR 897, para 4.

20 Common Commercial Policy 3.1 Introducing Exclusivity In Opinion 1/75 the Court of Justice was asked to rule on a draft Understanding on a Local Cost Standard, an agreement drawn up under the auspices of the Organisation of European Economic Co-operation and Development.8 This agreement was about credits for the financing of local costs linked to export operations. The Court had to address two questions, namely whether the subject-matter of the Agreement fell within the scope of the CCP; and, if so, whether the competence of the Community was exclusive. The former will be examined below in this chapter. As for the latter question, the Court approached it on the basis of ‘the manner in which [the CCP] is conceived in the Treaty’.9 Having concluded that financing local costs linked to export operations fell within the scope of the CCP, the Court held as follows: [The Common Commercial Policy] is conceived in [Article 207 TFEU] in the context of the operation of the Common Market, for the defence of the common interests of the Community, within which the particular interests of the Member states must endeavour to adapt to each other. Quite clearly, however, this conception is incompatible with the freedom to which the Member States could lay claim by invoking a concurrent power, so as to ensure that their interests were separately satisfied in external relations, at the risk of compromising the effective defence of the common interests of the Community. In fact, any unilateral action on the part of the Member States would lead to disparities in the conditions for the grant of export credits, calculated to distort competition between undertakings of the various Member states in external markets. Such distortion can be eliminated only by means of a strict uniformity of credit conditions granted to undertakings in the Community, whatever their nationality. It cannot therefore be accepted that, in a field such as that governed by the Understanding in question, which is covered by export policy and more generally by the common commercial policy, the Member States should exercise a power concurrent to that of the Community, in the Community sphere and in the international sphere. The provisions of Article [133] show clearly that the exercise of concurrent powers by the Member States and the Community in this matter is impossible. To accept that the contrary were true would amount to recognising that, in relations with third countries, Member States may adopt positions which differ from those which the Community intends to adopt, and would thereby distort the institutional framework, call into question the mutual trust within the Community and prevent the latter from fulfilling its task in the defence of the common interest. 10

The various justifications in the Opinion for the exclusive nature of the competence of the Community were characterised by a clear emphasis on the link between the then emerging policy and the operation of the common market: this link is expressed both in general terms, ie the requirement for the defence of the common interests of the Community, and in specific terms, ie the danger of distortion of competition between undertakings of the Member States in external markets. In practical terms, the link between 8

Opinion 1/75 (re: OECD Local Cost Standard) [1975] ECR 1355. Ibid, 1363. 10 Ibid, 1364. 9

The History of Exclusivity in the CCP

21

the CCP and the common market is apparent in the light of the operation of the Community on the basis of a customs union and the ensuing application of a common customs tariff in the relations between Member States and third countries. It was within this context that the Treaty rules on the abolition of both fiscal and non-fiscal impediments to trade were to apply not only to products originating in Member States but also those coming from third countries which are in free circulation in the Union. In other words, the complete abolition of impediments to trade internally requires the adoption and application of common rules in relation to trade in those goods externally. It is this link between the CCP and the internal market which may explain the force with which the Court chose to articulate the foundation of exclusivity (and may also explain why the wording of the CCP provision was only one of the last reasons to be mentioned in the Opinion—after all, it did not appear to provide any indication regarding exclusivity). This force becomes all the more remarkable in the light of the earlier part of the ruling where the scope of the CCP was construed very widely (and which will be examined below in this chapter). Whilst bolstering the foundation of exclusivity, the link between the CCP and the common market also serves to highlight the limits of the former by drawing upon practice under the latter. Indeed, the very development of the common market and the processes of establishing and managing the internal market attest to the paramount importance of observing the dividing line between Union and national competence: this line has not only been extremely fine but has also proved to be in need of constant redefinition. In other words, to construe the CCP as the necessary adjunct to the establishment of the internal market was tantamount to implying the existence of inherent limitations to the exercise of the express competence granted to the Union. This became apparent, albeit rather controversially, only three years later. In Opinion 1/78, another request by the Commission pursuant to Article 218(11) TFEU, the main question was whether the conclusion of a commodity agreement fell within the exclusive nature of the Union.11 The construction of exclusivity three years earlier in Opinion 1/75 and the uncompromising language used by the Court had rendered this issue central to the conduct of EU external relations in general and the concerns of the institutions to enhance their input in decision-making in particular. Having interpreted the scope of the precursor to Article 207 TFEU in wide terms, the Court went on to examine the mechanism set up under the Agreement with the aim of ensuring the financing of the buffer stock. The relevance of this had been highlighted by the Member States. In particular, they had argued that, under the International Agreement on Natural Rubber, the buffer stock would be financed by public funds which, in their view, justified their participation in the conclusion of the Agreement. On the other hand, the Commission had argued that the financial arrangements regarding the implementation of an international agreement should be irrelevant to the more general issue of competence. The Court deemed the financing arrangements central to the very application of the Agreement. Not only were they ‘an essential feature of the scheme for regulating the market [to be set up by the Agreement]’, but also their specific implications for the participation of the Member States would have had an impact on the actual application of the mechanism established thereunder. It noted that ‘the financial structure which [the Agreement] is proposed to set up will make necessary  … co-ordination between the 11

Opinion 1/78 [1979] ECR 2871.

22 Common Commercial Policy use of the specific financial means put at the disposal of the future International Rubber Council and those which it might find in the Common Fund which is to be set up’. The Court then concluded as follows: If the financing of the agreement is a matter for the Community the necessary decisions will be taken according to the appropriate Community procedures. If on the other hand the financing is to be by the Member States that will imply the participation of those States in the decisionmaking machinery or, at least, their agreement with regard to the arrangements for financing envisaged and consequently their participation in the agreement together with the Community. The exclusive competence of the Community could not be envisaged in such a case.12

The thrust of the Court’s ruling in Opinion 1/78 highlighted the first crack in the principle of exclusivity which, according to Opinion 1/75, had been one of the pillars of the CCP. In essence, the Court indicated that, whilst in existence a priori, the exclusive competence of the Union in the area of the CCP did not necessarily entail the conclusion of an agreement exclusively by the Union. Put another way, Member States are not necessarily precluded from concluding, along with the Community, an agreement falling within the scope of Article 207 TFEU despite the fact that their exclusion is inextricably linked to the nature of the Union’s competence in that area. This illustration of pragmatism appeared curious given the link the Court had made earlier between the CCP and the common market and the uncompromising language in which that had been articulated. If the exclusive nature of the competence bestowed upon the Union was as essential to the functioning of the common market as the Court had implied in Opinion 1/75, how could it be diluted simply because the Member States would choose to finance the application of the Agreement? After all, the financial aspects of an Agreement to be concluded under Article 207 TFEU had been expressly deemed irrelevant to the issue of competence three years before. What was it that justified the opposite view in Opinion 1/78? Given that finance was allowed to determine competence, would it not be open to the Member States to instrumentalise the financing of the mechanisms set up by commodity agreements in order to ensure their participation in their conclusion along with the Union? The Court’s approach was criticised for ‘putting the cart before the horse’.13 Cut to its bare essentials, the ruling appeared to suggest that the degree of national involvement in the practical components of what is deemed central to the implementation and application of an international agreement should be relevant to the exercise of the express competence over the CCP. This acknowledgement of the implications of the pronounced role enjoyed by the Member States in the management of areas of activity where their competence had been transferred to the Union echoed the pronounced role that the Member States actually played in the regulation of the CCP during that period. In order to appreciate this parallelism between judicial construction and political reality, an overview of the historical development of the CCP is useful.

12

Para 60. JHH Weiler, ‘The External Legal Relations of Non-Unitary Actors: Mixity and the Federal Principle’ in HG Schermers and D O’Keeffe (eds), Mixed Agreements (Daventer, Kluwer, 1981) 35, 72; reprinted in JHH. Weiler, The Constitution of Europe (Cambridge, Cambridge University Press 1999) 130, 174. 13

The History of Exclusivity in the CCP

23

3.2 Diversity in the Early Conduct of the CCP Article 207 TFEU as well as its precursors make it clear that the CCP would be carried out on the basis of uniform principles. This uniformity is not to be confused with the common interests of the Union which, according to the Court in Opinions 1/75 and 1/78, should be defended. The former served to highlight the nature of the CCP as a necessary component of the common market and to indicate the modus operandi of the emerging policy; the latter served to justify what the Court considered the necessary component of that policy, namely the exclusive nature of the Union’s competence. The early years of the CCP were characterised by considerable lack of uniformity. For instance, in the area of imports, the relevant rules acknowledged the existence of national quotas in specific cases.14 The management of this system required an annual review of the quotas opened to the Member States. Another popular practice consisted of division of quotas on imports of products from third countries to the Union into national sub-quotas. In terms of the relationship between the EU and third countries, this method often consisted of the negotiation, conclusion and application/of voluntary export restraints. These proved to be quite popular in relation to categories of products for which national industries were deemed to be too weak to face foreign competition and too sensitive for their Member States to subject them to it. Such areas included the textiles sector15 and the automobile industry (the latter was considered by Member States too weak to be subject to competition from Japan).16 In the light of the above, a significantly differentiated approach to the CCP emerged that reflected a highly fragmented policy. As far as the introduction of national subquotas was concerned, the practice was significant for both policy and legal reasons. On the one hand, it reflected the concern of the Member States to ensure that their industries would be protected from what they deemed to be unrestrained competition from imported products. Therefore, national interests did affect the determination of what the Court referred to in Opinion 1/75 as ‘the common interests of the Community’. On the other hand, these interests were protected by means of EU legislation, thus enabling the Community institutions to allow Member States to do legally within the CCP framework what they might choose to do illegally beyond it. The existence of national quotas on imports proved to be a popular practice in the late 1970s and throughout the 1980s.17 It would be too easy to dismiss this practice as overtly

14 See Reg 288/82 on common rules on imports [1982] OJ L35/1 and Reg 3420/83 on import arrangements for products originating in state-trading countries [1983] OJ L346/6. 15 The Multi-Fibre Arrangement, a voluntary restraint agreement, was negotiated within the GATT with major supplying countries and, within that Arrangement, a number of agreements were concluded with Asian and South American countries. See P Eeckhout, The European Internal Market and International Trade: A Legal Analysis (Oxford, Oxford University Press, 1994) 186–97 and RJPM van Dartel, ‘The EEC’s Commercial Policy Concerning Textiles’ in ELM Völker (ed), Protectionism and the European Community, 2nd edn (Deventer, Kluwer, 1983) 121. 16 In fact, voluntary restraint agreements, negotiated by the industry and applied informally, had already been in existence in various Member States. Such an agreement had been concluded between the British Society of Motor Manufacturers and the Japanese Automobile Manufacturers Association. See MCEJ Bronckers, ‘A Legal Analysis of Protectionist Measures Affecting Japanese Imports into the European Community’ in Völker, ibid, 57, 79 and Eeckhout, ibid, 197–225. 17 In the early 1990s, approximately 10,000 quotas were estimated to be in existence in individual Member States: see R Madelin, ‘Trade Policy—Opening World Markets for Business’ in M Darmer and L Kuyper, Industry and the European Union—Analysing Policies for Business (Cheltenham, Elgar, 2000) 155, 160.

24 Common Commercial Policy protectionist and indicative of the inertia which underpinned decision-making within the Community legal order. However, a number of other economic and international factors need to be taken into account. During the Tokyo Round, for instance, the international economic arena was facing a considerable expansion of protectionist practices throughout the world. This was largely due to increasing oil prices, structural changes in various industrial activities, floating exchange rates and rising unemployment.18 Therefore, far from constructing a ‘fortress Europe’ by favouring wildly divergent national interests, the Community’s practice was consistent with the patterns characterising the policies of its major trading partners. It also suggested that a truly uniform CCP would only emerge incrementally.19 This gradual process20 did not just render the application of the ‘uniform principles’ an objective of the emerging policy rather than a condition sine qua non; it also necessitated the adoption of further measures which had the potential to undermine the common market. This was because a Member State in whose territory the importation of certain products was subject to a quota would have to ensure that this quota would not be undermined by the import of the same products from another Member State where they had been imported from a third country either freely or subject to a higher quota. Therefore, divergence in import conditions entailed divergence in the operation of intraUnion trade, a practice acknowledged at the time in primary law which also provided for a specific procedure managed by the Commission.21 The national deviations approved by the Commission reaching their peak in the period between 1978 and 1987.22 Against this background, the forceful construction of exclusivity by the Court in the early 1970s took a different dimension: instead of seeking to exclude Member States from the regulation and management of trade relations with the rest of the world, it served to highlight the essential role played by the emerging policy in achieving the main objectives of the Treaty. Such an approach was all the more necessary in the light of the stagnation which characterised decision-making following the ‘Luxembourg compromise’. In theoretical terms, if examined against the antithesis between normative and decisional supranationalism articulated early on by Weiler,23 the approach adopted in Opinion 1/75 is easily explained. However, it also risks losing its iconic role as the foundation for an external policy developed to be supranational par excellence. The first indication that exclusive competence over the content of the CCP did not necessarily entail exclusivity in the conclusion of an international agreement became apparent in Opinion 1/78. Subsequent case-law confirmed this by sanctioning the various arrangements which, as applied by the Community institutions and the Member States, were to 18 See M Elsig, The EU’s Common Commercial Policy—Institutions, Interests and Ideas (Aldershot. Ashgate, 2002) 28. 19 This was acknowledged expressly in secondary legislation: see eg Council Reg 3589/82 on common rules on imports on certain textile products originating in third countries [1982] OJ L374/106. 20 See M Cremona, ‘The Completion of the Internal Market and the Incomplete Commercial Policy of the European Community’ (1990) 15 European Law Review 283. 21 See Art 115 EEC of the Treaty Rome as amended at Maastricht, analysed in P Vogelenzang, ‘Two Aspects of Article 115 EEC Treaty: Its Use to Buttress Community-set Sub-quotas, and the Commission’s Monitoring System’ (1981) 18 Common Market Law Review 169. 22 The maximum number approved by the Commission was 260 in 1979: see the table in BT Hanson, ‘What Happened to Fortress Europe? External Trade Policy Liberalization in the European Union’ (1998) 52 International Organization 55, 69. 23 JHH Weiler, ‘The Community System: The Dual Character of Supranationalism’ (1981) 1 Yearbook of European Law 267.

The History of Exclusivity in the CCP

25

render the notion of ‘uniform principles’ provided for in the precursors to Article 207 TEU very flexible indeed. In a judgment delivered only a year after Opinion 1/75 the Court articulated the practical implications of exclusivity in terms of the position of the Member States. In Donckerwolcke the subject-matter of the dispute was the legality of a French law requiring that importers declare the ultimate origin of products in free circulation, ie products imported into France from another Member State into which they had been imported from a third country.24 Such measures were considered necessary to enable the French authorities to decide whether to exercise the exceptional powers granted under the original Treaty of Rome about deflection of trade. The Court pointed out that, in terms of intra-Union trade, any import restrictions on products in free circulation were contrary to the principle of free movement of goods, provided that these goods were imported under the procedures laid down in what is now Article 29 TFEU: all import formalities should have been complied with, any customs duties or charges of equivalent effect should have been levied in the importing state, and the products in question should not have benefited from a total or partial drawback of such duties or charges. However, the Court observed that, despite the expiry of the transitional period, the CCP had not in fact been complete, as it was possible for different rules to apply to products originating in a third country when they originally entered the Union. It was precisely this disparity which raised the possibility of deflections of trade and which underpinned the exceptional clause of ex Article 115 EEC. In this context, the right of Member States to deviate from the CCP was acknowledged, albeit not unconditionally: As full responsibility in the matter of commercial policy was transferred to the Community by means of Article [207(1) TFEU] measures of commercial policy of a national character are only permissible after the end of the transitional period by virtue of specific authorization by the Community.25

On the facts of the case, the Court concluded that national measures requiring that an importer declare the actual origin of products even when the latter were in free circulation would be consistent with Union law. However, the importer would be required to comply with them only ‘in so far as he knows [the origin] or may reasonably be expected to know it’.26 Furthermore, non-compliance should not give rise to any administrative or penal measures which would be disproportionate to the offence. The judgment in Donckerwolcke highlighted the construction of the CCP as intrinsically linked to the establishment of the common market.27 In doing so, the Court did not take the principle of uniformity, laid down in what is now Article 207 TFEU, as a given but took into account what the state of the policy was. By pointing out the incomplete nature of the CCP, the Court did not hesitate to acknowledge the central role retained by the Member States in the area in question. In doing so, it exhibited a considerable degree 24 Case 41/76 Suzanne Criel, née Donckerwolcke and Henri Pchou v Procureur de la République au Tribunal de Grande Instance, Lille and Director General of Customs [1976] ECR 1921. 25 Ibid, para 33. 26 Ibid, para 35. See also Case 52/77 Leonce Cayrol v Giovanni Rivoira & Figli [1977] ECR 2261. 27 See M Cremona, ‘The External Dimension of the Single Market: Building (on) the Foundations’ in C  Barnard and J Scott (eds), The Law of the Single European Market—Unpacking the Premises (Oxford, Hart Publishing, 2002) 352 for a detailed analysis of how limits of uniformity in external commercial policy reflected the limits of uniformity in the establishment and functioning of the internal market.

26 Common Commercial Policy of pragmatism: it would have been highly problematic for the Court to seek to bolster the exclusive nature of the Union in an area where the EU institutions had either been very slow to act or very cautious in taking national policy concerns into account. Viewed from this angle, the judgment in Donckerwolcke was based on a teleological approach which, actually, favoured the Member States rather than the Union. However, legal constraints were set: on the one hand, the exercise of the national power to deviate from the CCP had become an issue of Union law in so far as the Member State seeking to rely upon it should do so pursuant to a ‘specific authorization by the [Union]’;28 on the other hand, the determination of how ‘specific’ the relevant Union authorisation should be became a matter ultimately to be determined by the Court. A similar approach was applied in Bulk Oil.29 The subject-matter of this case was a British policy that aimed to control the export of crude oil by confining this only to a number of countries other than Member States. As there already existed Community rules on exports adopted in the context of the CCP which, exceptionally, allowed national restrictions on crude oil, the question was whether this exception constituted a ‘specific authorisation’ in the meaning of Donckerwolcke. The Court answered this question in the affirmative. It also acknowledged the power of the Council to restrict the scope of CCP measures: Having regard to the discretion which it enjoys in an economic matter of such complexity, in this case the Council could, without contravening Article [207 TFEU], provisionally exclude a product such as oil from the common rules on exports to non-member countries, in view in particular of the international commitments entered into by certain Member States and taking into account the particular characteristics of that product, which is of vital importance for the economy of a State and for the functioning of its institutions and public services.30

In acknowledging, albeit provisionally, the fact that the common rules on exports may not be all that common the Court interprets the requirement for a ‘specific Community law authorisation’ widely.31 The specific factual context of the case, however, is noteworthy: crude oil is a sensitive issue which had already given rise to an equally pragmatic approach by the Court in the area of free movement of goods: in Campus Oil it was held that a measure of equivalent effect to quantitative restriction was justified as necessary and proportionate to protect public security, even in the presence of Community legislation in the area, as the latter could not ensure sufficient supplies for Member States in all eventualities.32 Therefore, the Court’s approach to the commercial treatment of that specific product in the area of external trade was not all that different from that already adopted in the process of the establishment of the common market. In addition to further highlighting the link between the regulation of the CCP and that of the common market, the judgment in Bulk Oil also served to illustrate a practical consideration: it was vital that the specific interests of the Member States should have been 28 29

n 24 above, para 33. Case 174/84 Bulk Oil (Zug) AG v Sun International Limited and Sun Oil Trading Company [1986] ECR

559. 30

Ibid, para 36. This interpretation was criticised as ‘extremely generous’: CWA Timmermans, ‘Community Commercial Policy on Textiles: A Legal Imbroglio’ in Völker, n 15 above, 159, 161. See also the criticism in EML Völker, ‘Annotation on Bulk Oil’ (1987) 24 Common Market Law Review 99. 32 Case 72/83 Campus Oil Ltd v Minister for Industry and Energy [1984] ECR 2727. In the context of indirect taxation, see Case 140/79 Chemial [1981] ECR 1. 31

The History of Exclusivity in the CCP

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seen to be adequately protected at Community level. Had this not been the case, and in the light of the highly protectionist and unpredictable international economic climate of that period, the national administrations would have been very reluctant to cooperate in the establishment of even an incomplete CCP. A similar approach was applied in the context of another sensitive product, namely textiles, in Tezi Textiel.33 The Court sanctioned the lack of common rules on imports of textiles and the legality of a Community measure imposing quotas, dividing them in national and regional sub-quotas. What emerges from the above overview is an approach that both acknowledges the reality of the absence of uniformity in the application of CCP rules and sanctions the right of the Community and the Member States to tackle the ensuing practical repercussions by deviations from the existing rules. Whilst not uncontroversial at the time,34 this approach ought to be viewed within the political climate in the Community, the prevailing international economic climate at the time, and the level of development of the Community legal order: during the period in question, the national administrations were faced with the steady process of the constitutionalisation of EU law. To ignore national concerns as well as the repercussions of a very difficult international economic cycle and frustrate the efforts of the Union’s executive to pursue a gradually evolving, yet balanced, policy would have been counterproductive.35

3.3 The Early Development of the CCP The success of the approach adopted by the legislature and sanctions by the Court was borne out in practice.36 And over the years, this approach evolved and the Court made it clear that the institutions would not be given a carte blanche. In Case 51/87 Commission v Council the Court held that the Community’s system of tariff preferences on textile products, which had been applied since the early 1970s, did not meet the administrative, technical or economic requirements which would justify the maintenance of national sub-quotas.37 The judgment suggests that the approach of the Court to the discretion enjoyed by the legislature in the CCP is sufficiently flexible to adjust to evolving policy realities: whilst acknowledging discretion as necessary in order to facilitate the adjustment of ultimate objectives set out in primary law to the political realities of the time, it may be curtailed in order to prevent the perpetuation of old policies. In fact, the Court 33 Case 59/84 Tezi Textiel BV v Commission [1986] ECR 887. See also the limits highlighted both in this judgment and in Case 35/79 Grosoli v Ministry of Foreign Trade [1980] ECR 177, Case 218/82 Commission v Council [1983] ECR 4063 and Case 199/84 Procuratore della Repubblica v Migliorini [1985] ECR 3325. 34 See eg the Opinion of AG VerLoren van Themaat in Case 5/84 Tezi Textiel, ibid, 904. 35 As was pointed out in relation to the position of any given Member State in the 1970s and 1980s, ‘if its only choice is between its own national measures that provide national protection, and accepting a Community regime denying national protection, the choice will inevitably be against the Community regime. Only a nonuniform Community regime that provides for national protection will induce that Member State to give up its own national regime. One may regret the failure of such a common commercial policy to reflect the uniform principles mandated by Article [133]; but unavailability of the intermediate option of a common policy along non-uniform lines will frustrate the development of any common policy’: Vogelenzang, n 21 above, 175–76. 36 In the late 1980s, national deviations were gradually reduced. In 1989, for instance, the Commission approved 119 requests for an authorisation under ex Article 115 EC as opposed to 260 in 1979: see Answer by the Commission to Written Question 2133/90 [1991] OJ C85/29. 37 Case 51/87 Commission v Council [1988] ECR 5459.

28 Common Commercial Policy appeared quite astute in Case 51/87 Commission v Council as it had been made clear that the deviation from the CCP which had been the subject-matter of the dispute had ceased to attract consensus amongst the Community actors as its function was no longer regarded as necessary and uncontroversial. The history of the construction of exclusivity in the CCP is noteworthy for the dexterity that characterises the approach of the Court of Justice. On the one hand, the Court itself acknowledged the practice of a non-uniform policy which had no foundation in primary law and enabled the Community to achieve its objectives in the only manner which its institutions deemed realistic. On the other hand, it articulated the principle of exclusive Union competence in that policy in forceful terms, hence laying the foundation for what became the nucleus of the EU’s international relations. In engaging in this imaginative course of action, the Court was not alone. The gradual development of the CCP highlights various instances where the Union institutions appeared willing to try new methods of establishing a CCP as a common policy. A case in point was the importation of cars from Japan. The 1970s saw a very considerable rise in these imports throughout the Community, causing alarm to national industries about the impact on labour forces and competitiveness and, ultimately, raising the prospect of significant market losses. The extent to which national industries were affected varied considerably: in 1980, for instance, Japanese firms had approximately 43% of the automobile market in Greece and only 0.14% in Italy. Depending on the strength of individual domestic industries, each Member State sought to resist the penetration of its market by Japanese imports pursuant to arrangements negotiated individually. These arrangements took the form of national quotas and voluntary export restraints, the terms of which varied: in 1977, for instance, France imposed a limit on Japanese products of 3% of its market, whereas Portugal only allowed the importation of 20,000 passenger cars.38 This overtly protectionist policy was, at that time, justified in the light of the importance of domestic automobile industries to the economies of Member States.39 In 1991, after three years of negotiation, an agreement was concluded between the Commission and the Japanese Ministry of Trade and Industry. The agreement, entitled ‘Elements of Consensus’, aimed at establishing the progressive and complete liberalisation of the importation of Japanese cars, off-road vehicles and light commercial vehicles by the beginning of 2000. For the period until the end of 1999, it provided for a regulated regime for imports in the five most important European motor vehicle markets, namely France, Italy, Spain, Portugal and the United Kingdom, albeit on the basis of substantially increased quotas. This development should not be seen in isolation; instead, it was part of a broader relaxation of the attitude of the Union and its Member States towards their economic relations with Japan.40 A detailed examination of the content of this agreement is beyond the scope of this analysis.41 It is worth pointing out that, whilst not introducing common rules applicable immediately throughout the Community market, the Commission sought to merge a 38 See M Mason, ‘Elements of Consensus: Europe’s Response to the Japanese Automotive Challenge’ [1994] Journal of Common Market Studies 433, 436. 39 See Hanson, n 22 above, 75. 40 See M Johnson, European Community Trade Policy and the Article 113 Committee (London, Royal Institute of International Affairs, 1998) 42. 41 See Hanson, n 22 above, 74–80; Mason, n 38 above; CRA Swaak, European Community Law and the Automobile Industry (The Hague, Kluwer, 1999) 187–204.

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number of disparate individual national policies into a common, albeit provisionally diverse, policy negotiated and administered at Community level. Therefore, it represented a significant step forward, not only for reducing the scope of diversity within the common market and rendering complete liberalisation a concrete objective, but also for subjecting diversity to a Community discipline in order to create a common policy. Furthermore, it illustrated clearly the evolving nature of the CCP and its continuous link with the common market. The internal market project and the concrete goal of achieving by 1992 what should have been achieved years previously questioned the role of pre-existing and individually negotiated national arrangements in the area of the CCP. Therefore, the impetus underpinning the completion of the internal market had rendered the case for an incomplete CCP untenable. In substantive terms, Elements of Consensus took the interests of the major national industries into account and protected them. Viewed from this angle, the agreement illustrated two broader points: exclusivity in the CCP did not necessarily render national interests irrelevant, neither did it ignore them; the exercise of exclusive competence in the CCP did not necessarily entail the substitution of national concerns for an inflexible and centrally designed policy model. In political and practical terms, the negotiation and conclusion of Elements of Consensus might not have been possible had it not been for the gradual evolution of the CCP: the acknowledgement of national concerns by the Union’s institutions and the sanctioning of the ensuing policies by the EU’s judiciary had created the political environment necessary both for the Commission to step in and seek to address national concerns within a common framework, and for the Member States to entrust the defence of their interests to the EU’s executive. In other words, the implied acknowledgement by the Court in the 1970s and early 1980s both that the CCP was not a genuinely common policy and Union exclusive competence was not truly exclusive was central to the development of that policy. Viewed from this angle, the contribution of the Court of Justice to the development of EU international relations was no less significant than that underpinning the establishment of the single market pursuant to its construction of the principles of free movement.

3.4 Identifying the Main Threads This section told the story of a conversation. The main interlocutors were the Union’s judiciary, on the one hand, and the Union’s legislature and executive, on the other. The topic of this conversation was the competence of the Union to articulate and carry out its external trade policy and its impact on the extent to which Member States were allowed to act on the international scene in order to protect their interests in the area. Placed in their specific legal and political context, the originally bold statements of the Court of Justice were applied in a flexible manner so that the parallel existence of the Member States was not necessarily excluded. To that effect, the policy laid down in the precursors to Article 207 TFEU has been viewed as less common than originally envisaged. Not only did the Union’s institutions, the Member States and the Union’s judicature appear to share this view of the CCP, but they also interacted in indirect ways in order to shape incrementally a regulatory space which was expressly provided for under primary law as complete by the end of the transitional period. These different interlocutors were

30 Common Commercial Policy acutely aware of the practical considerations that underpinned the application of the principal normative characteristic of the CCP, namely the exclusive nature of the Union’s competence. This conversation between the main EU institutional actors shapes the development of the CCP as an incremental process, the pace and intensity of which depends on a number of factors, law being but one of them. The dynamic character of this process becomes all the more noteworthy if viewed in the broader context of the drafting and entry into force of the Lisbon Treaty. This section focused on one aspect of it, namely what preceded the express acknowledgement of the EU’s exclusive competence in Artcle 3(1)(e) TFEU. The following sections will examine another dimension of the construction of the CCP as an adjunct to the establishment of the internal market and its relation to the other sources of external competence by focusing on the scope of the policy.

4. THE SCOPE OF THE CCP The Scope of the CCP

The exclusive competence of the Union rendered the issue of the definition of the scope of the CCP of considerable practical significance: the wider the scope of the policies it covered, the less control the Member States would be able to exercise in the area of external trade and the more significant the powers of the Union institutions. This was all the more so in the light of the qualified-majority voting introduced by Article 207(4) TFEU.

4.1 The Treaty Provision The central provision of the CCP merely refers to a number of activities which fall within the scope of the CCP: The common commercial policy shall be based on uniform principles, particularly in regard to changes in tariff rates, the conclusion of tariff and trade agreements relating to trade in goods and services, and the commercial aspects of intellectual property, foreign direct investment, the achievement of uniformity in measures of liberalisation, export policy and measures to protect trade such as those to be taken in the event of dumping or subsidies. The common commercial policy shall be conducted in the context of the principles and objectives of the Union’s external action.

The wording of Article 207(1) TFEU indicates that this list is non-exhaustive, a conclusion confirmed by the Court’s case-law.42 As to the type of measures which may be adopted pursuant to that provision, both unilateral measures adopted by the Union alone and international agreements concluded with third countries and international organisations are covered. The Court points out that: A commercial policy is in fact made up by the combination and interaction of internal and external measures, without priority being taken by one over the others. Sometimes agreements are concluded in execution of a policy fixed in advance, sometimes that policy is defined by the agreements themselves.43 42 43

Opinion 1/78, n 11 above, para 45; Case 165/87 Commission v Council [1989] ECR 5545, para 15. Opinion 1/75, n 8 above, 1363.

The Scope of the CCP

31

4.2 The Historical Context of Defining the Scope of the CCP When the European Economic Community was established, of the fields currently set out in Article 207 TFE, only trade in goods was mentioned expressly in the Treaty of Rome (ie changes in tariff rates, the conclusion of tariff and trade agreements relating to trade in goods, the achievement of uniformity in measures of liberalisation, export policy, and measures to protect trade such as those to be taken in the event of dumping or subsidies). The references to services, intellectual property and investment did not find their way into the primary rules until decades later. In fact, the scope of the CCP did not change until the entry into force of the Treaty of Amsterdam in 1999—and even then, it did so tentatively, as the analysis later in this chapter will show. Therefore, the wording of the Treaty did not get policy-makers very far in terms of the definition of the scope of the CCP. The only tools they had were confined to the activities expressly mentioned in the precursor to Article 207 TFEU, the fact that these were set out in a non-exhaustive matter and the implementation of the CCP pursuant to the adoption of both unilateral and conventional measures. It was only a matter of time before this issue was brought before the Court of Justice. The ensuing disputes and the case-law of the Court make for a story worth telling. This is the case not only in order to describe the historical context within which the current provision of Article 207(1) TFEU was drafted, but also in order to highlight the issues that underpinned the development of the CCP. These issues are sensitive, as they touch upon the extent to which Member States have given up some of their powers in their conduct of foreign affairs, and their impact on the ways in which the Union shapes its external trade policy is ever present. The issue of the scope of the CCP arose for the first time in Opinion 1/75, in which the Court was asked to rule on a draft Understanding on a Local Cost Standard, an agreement drawn up under the auspices of the Organisation of European Economic Cooperation and Development.44 This agreement was about credits for the financing of local costs linked to export operations. Asked to rule on its consistency with the Union legal order, the Court referred to the CCP as follows:45 [Measures concerning credits for the financing of local costs linked to export operations] constitute an important element of commercial policy, that concept having the same content whether it is applied in the context of the international action of a State or to that of the Community.

This broad reading of the scope of what is now Article 207 TFEU was accompanied by the construction of a dynamic policy: The common commercial policy is above all the outcome of a progressive development based upon specific measures which may refer without distinction to ‘autonomous’ and external aspects of that policy and which do not necessarily presuppose, by the fact that they are linked to the field of the common commercial policy, the existence of a large body of rules, but combine gradually to form that body.46

The combined implications of these statements are very significant. The definition of the 44

Ibid. Ibid, 1362. 46 Ibid, 1363. 45

32 Common Commercial Policy scope of the CCP with reference to that of the external commercial policy of a state may appear to render the former potentially unlimited; furthermore, its development independently of the adoption of internal harmonising legislation not only highlights the central powers of the Union institutions in that area but also brings the Court of Justice to the very centre of the conduct of international trade relations. Indeed, an ill-defined external policy which falls within the exclusive nature of the Union was likely to render the Union judicature the ultimate arbiter in an area challenging directly the autonomy of Member States to act on the international economic arena. The significance of this dynamic definition of the CCP in Opinion 1/75 is further highlighted by the remaining part of the ruling. As analysed above in this chapter, the Court went on to articulate the exclusive nature of the competence which the Union enjoys a priori. Its raison d’être was to ensure that the institutional framework of the Community would not be distorted, the mutual trust within the Union would not be called into question and the Union would not be prevented from fulfilling its task in the defence of the common interest. Viewed in this context, Opinion 1/75 appeared to lay down the foundation of one of the most supranational policies of the Union. It has been argued, for instance, that the CCP ‘represents the EC at the height of its legal powers, control, and supremacy over the member states’.47 A number of subsequent rulings appeared to support such views. In Opinion 1/78 the Court was asked to rule on whether the Community was exclusively competent in the context of the CCP to conclude an agreement aimed at the stabilisation of prices of natural rubber by means of setting up a buffer stock.48 The Agreement aimed at achieving two objectives: on the one hand, to serve the interests of the exporting states by guaranteeing stable export earnings, and, on the other hand, to serve the interests of the importing states by ensuring reliability of supplies at a fair price level. The Contracting States would meet those objectives by building up a buffer stock purchased when prices were in decline and then sold when prices were rising. The effect of this arrangement would be to contain the price of natural rubber within a predetermined fluctuating margin. The wide interpretation put forward by the Court in Opinion 1/75 was the canvas on which the Commission and the Council, the latter supported by a number of Member States, developed two contrasting lines of reasoning as to the proper definition of the scope of the CCP. The agreement in question was a commodity agreement; therefore its aim was to regulate rather than liberalise international trade. The Commission viewed such agreements as necessary for the complete and consistent management of international trade and argued that the CCP should be construed widely enough to cover them. In this way, the EC would be able to use trade instruments already at the disposal of states. Therefore, it viewed the instruments listed in the original precursor to Article 207(1) TFEU as classic mechanisms of international trade relations with which it sought to contrast a modern and dynamic policy, mainly on the basis of the earlier pronouncement of the Court in Opinion 1/75. This argument led to what has been known as the instrumentalist approach to the CCP according to which the character of a given legal measure would determine whether it should be covered by the CCP and, hence, the

47 48

D McGoldrick, International Relations Law of the European Union (London, Longman, 1997) 70. See n 11 above.

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33

exclusive competence of the Union: if that measure was an instrument regulating international trade, then it should be deemed to fall within its scope. The Council, on the other hand, articulated an objective approach, according to which the question whether a given legal measure should be adopted pursuant to the CCP would be determined on the basis of its objective: any measure whose aim was to influence the volume or flow of trade should be considered as a commercial policy measure, hence falling within the scope of Article 207 TFEU. This approach was underpinned by the concern that, in the alternative, there would be no limit on what the Union institutions could do in the area of external trade relations. Furthermore, the Council pointed out that the negotiation and conclusion of the International Agreement on Natural Rubber had been carried out within a distinctly political context. In particular, rubber was a strategic raw material whose regulation had been attempted as a matter of general economic policy and not trade policy, the former remaining within the sphere of national responsibility. Furthermore, the international regulation of natural rubber had been attempted within the context of the responsibilities which Member States had towards developing countries independently of the Union. This approach was also supported by the British and French governments. In its ruling, the Court did not address the merits and drawbacks of these approaches in a comprehensive manner.49 Instead, having identified the main features of the International Agreement on Natural Rubber, it acknowledged both the distinct nature of commodity agreements in the context of international economic relations and their comprehensive scope. It stated the following: As an increasing number of products which are particularly important from the economic point of view are concerned, it is clear that a coherent commercial policy would no longer be practicable if the Community were not in a position to exercise its powers also in connexion with a category of agreements which are becoming, alongside traditional commercial agreements, one of the major factors in the regulation of international trade.50

Having construed the CCP in the light of this particular type of agreements, the Court went on to articulate its scope in the following terms: [I]t seems that it would no longer be possible to carry on any worthwhile common commercial policy if the Community were not in a position to avail itself also of more elaborate means devised with a view to furthering the development of international trade. It is therefore not possible to lay down, for Article [207 TFEU], an interpretation the effect of which would be to restrict the common commercial policy to the use of instruments intended to have an effect only on the traditional aspects of external trade to the exclusion of more highly developed mechanisms such as appear in the agreement envisaged. A common commercial policy understood in that sense would be destined to become nugatory in the course of time. Although it may be thought that at the time when the Treaty was drafted liberalization of trade was the dominant idea, the Treaty nevertheless does not form a barrier to the possibility of the 49 See JHJ Bourgeois, ‘The Common Commercial Policy: Scope and Nature of the Powers’ in Voelker (ed), n 15 above, 1 who points out that, if the approach adopted by the Council were to be taken to its logical conclusion, measures inherent in the conduct of commercial policy such as rules of origin would not be covered by Art 133 EC (at 5). See also P Gilsdorf, ‘Portée et délimitation des compétences communautaires en matière de politique commerciale’ [1989] Revue du Marché Commun 195 and CWA Timmermans, ‘Common Commercial Policy (Article 113 EEC) and International Trade in Services’ in F Capotorti et al (eds), Du droit international au droit de l’intégration Liber Amicorum Pierre Pescatore (Baden-Baden, Nomos, 1987) 675. 50 n 11 above, para 43.

34 Common Commercial Policy Community’s developing a commercial policy aiming at a regulation of the world market for certain products rather than at a mere liberalization of trade.51

And as if the point had not been brought home, the Court went on to rule that the precursor to Article 207 TFEU made it clear that ‘the question of external trade must be governed from a wide point of view and not only having regard to the administration of precise systems such as customs and quantitative restrictions’.52 The above approach of the Court of Justice might appear to bring the principles introduced in Opinion 1/75 to their logical conclusion: being defined in parallel to the external commercial policy of a state, the CCP should be dynamic and construed in wide terms in order for it to be ‘worthwhile’ as well as ‘coherent’ and ‘practicable’. However, when viewed in the light of the legal and political context in which the Court was called upon to rule, a more nuanced picture emerges. The type of agreement which formed the subject-matter of the request for an Opinion rendered any outcome other than that reached by the Court difficult to justify. There was an increasing tendency in international economic relations in 1970s towards developing a regulatory approach to international trade. This aimed at taking into account, amongst others, the emerging concerns of developing countries. Both the establishment of systems of export credits and the conclusion of commodity agreements were part of this approach. To exclude them from the scope of the CCP would not only illustrate a short-sighted view of international trade but would also indicate a reading of the Treaty so restrictive as to run counter to the essence of the clearly non-exhaustive enumeration of activities laid down therein. Viewed from this angle, in Opinions 1/75 and 1/78 the Court was asked to adjudicate on ‘normal instrumentalities of commercial policy’.53 Furthermore, both rulings were delivered in the period of stagnation which characterised the Community legal system following the so-called ‘Luxembourg compromise’. Against this political background, the Court of Justice sought to define the normative foundation of the Community’s external trade policy and ensure that its legal implications for the Member States would be accepted. In this respect, it is recalled that the twin principles of the CCP, namely its wide scope and the exclusive nature of Community competence, were introduced in what appeared to be quite uncompromising terms in Opinion 1/75. The Court’s preoccupation with shaping as solid a foundation for the CCP as possible was illustrated by the express linkages made in its rulings with the internal market. In Opinion 1/78, for instance, it was pointed out that ‘a restrictive interpretation of the concept of common commercial policy would risk causing disturbances in intra-Union trade by reason of the disparities which would then exist in certain sectors of economic relations with non-member countries’.54 Made in order further to justify the need for a dynamic interpretation of the scope of the external trade policies of the Union, this link reminds one of the similar link which the Court had already made three

51

Ibid, para 44. Ibid, para 45. 53 E Stein, ‘External Relations of the European Community: Structure and Process’ (1990) 1 Collected Courses of the Academy of European Law 115, 137. 54 n 11 above, para 45. 52

The Scope of the CCP

35

years earlier in order to justify the need for the competence of the Community to be exclusive.55 Whilst the principles purporting to lay down the foundation of the CCP were put forward in uncompromising terms, in fact the Court adopted a more flexible approach to its application. In Opinion 1/78, for instance, it is recalled that the assertion of the exclusive nature of the Community notwithstanding, the participation of the Member States in the conclusion of the International Agreement in Natural Rubber was sanctioned.56 This illustration of pragmatism on the facts of the case57 does not only suggest that the ramifications of exclusivity may not be as severe as they appeared originally; it also questions whether the uncompromising terms in which the broad scope of the CCP was construed should be taken, in fact, at face value. Instead of abating the debate about the scope of CCP, the pronouncements of the Court of Justice were so general that they enabled the Council, the Commission and the Member States to put forward their contrasting approaches in a number of subsequent cases. In Generalised Tariff Preferences the Commission challenged the adoption of two Council regulations applying generalised tariff preferences to a number of industrial and textile products originating in developing countries.58 It argued that the contested measures should have been adopted by the Council under the CCP rules. The Council defended the absence of a reference to a precise legal basis in the contested measures as well as their adoption by unanimity. It argued that they pursued commercial aims as well as aims of development policy. It was for that reason that the CCP had been considered irrelevant to the establishment of a system of generalised tariff preferences. This line of reasoning was rejected by the Court of Justice. Having noted that a system of generalised tariff preferences was based on changes in tariff rates, it opined that it fell within the scope of the indicative list of activities laid down in the precursor to Article 207 TFEU. Therefore, it was undoubtedly covered by the CCP. The Court then repeated that the CCP should have the same content as that of national commercial policy and proceeded as follows: The link between trade and development has become progressively stronger in modern international relations. It has been recognized in the context of the United Nations, notably by the United Nations Conference on Trade and Development (UNCTAD), and in the context of GATT.59

Against this legal and political background, the Union system of generalised preferences was seen as reflecting ‘a new concept of international trade relations in which development aims play a major role’.60 This construction of the CCP was also justified in the light of ex Article 131 EC which referred to the ‘harmonious development of world trade’ as one of the objectives of the CCP.61 In the Generalised Tariff Preferences judgment the Court was faced with the considerable difficulty of delineating a commercial policy broadly understood in the light of its 55

Opinion 1/75, n 8 above, 1364. Opinion 1/78, n 11 above. 57 See T Tridimas and P Eeckhout, ‘The External Competence of the Community and the Case-Law of the Court of Justice: Principle versus Pragmatism’ (1994) 14 Yearbook of European Law 143. 58 Case 45/86 Commission v Council (re: GSP) [1987] ECR 1493. 59 Ibid, paras 17. 60 Ibid, para 18. 61 Ibid, para 19. This objective has been repeated in the Treaty ever since, currently in Art 206 TFEU. 56

36 Common Commercial Policy interactions with other policies with which it shared legal instruments to a considerable extent. It did so by relying upon the expansive statements it had made in the previous decade about the parallelism between the content of the CCP and the external commercial policy of a state. The judgment in Generalised Tariff Preferences illustrated the difficulties that the Court would have to face in order to delineate a widely construed CCP in the light of its interactions with a number of other policies over which the competence enjoyed by the Union was not exclusive. The most prominent examples were provided in the context of the interaction between trade and foreign policy in 1990s. In the light of the specific legal and constitutional issues raised by the regulation of trade policy with foreign policy or security implications, the relevant body of case-law will be analysed in a separate chapter.62 Individual Member States were also keen to advocate a commercial policy restrictively construed for the Community. The Greek government, for instance, sought the annulment of a CCP Regulation setting out the conditions of imports of agricultural products originating in third countries following the Chernobyl accident.63 The Court rejected that action on the basis that, in the light of its objective and content, the contested measure was clearly intended to regulate trade between the EC and third countries. By doing so, it supported the argument put forward by Advocate General Darmon in his Opinion, according to which the definition of conditions of imports of products originating in a non-Member State was a CCP measure by its very nature.64

5. TRADE IN GOODS Trade in Goods

At the time of the drafting of the Treaty of Rome, trade in goods constituted the almost exclusive focus of international trade. This was also reflected by the establishment of the General Agreement on Tariffs and Trade (GATT) concluded in 1947. However, the proliferation of international law-making raised questions as to the scope of activities which would be covered by trade in goods in the meaning of Article 207 TFEU. These were addressed by the Court in the context of the WTO. In 1994, the Commission submitted to the Court a request for an Opinion under what is now Article 218(11) TFEU about the competence of the Union to conclude a number of agreements annexed to the Agreement establishing the WTO. In particular, the Commission argued that the Union was exclusively competent to conclude the following: the General Agreement on Tariffs and Trade (GATT 1994) as far as products covered by the European Coal and Steel Community and the Euratom Community were concerned; the General Agreement on Trade in Services (GATS) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs).65 The Union institutions and the Member States had chosen to set aside the issue of Union competence during the period of the negotiation of the WTO Agreements in order to enhance the effectiveness of the representation of the Union interests. Therefore, whilst they had authorised the Commission to act as the sole negotiator on behalf of the Union and the Member States, they had done so without

62

See Chapter 14 below. Case C-62/88 Greece v Council [1990] ECR 1527. 64 Ibid, para 32 of his Opinion. 65 Opinion 1/94 (WTO Agreements) [1994] ECR I-5267. 63

Trade in Goods

37

prejudice to the determination of the Union and national competence on issues covered by those agreements. As far as the Multilateral Agreements on Trade in Goods were concerned, the exclusive nature of the Union was affirmed in rather uncompromising terms. First, the Court ruled, rather uncontroversially in the light of the absence of any argument to the contrary, that it covered Euratom products. Secondly, as to trade in ECSC products, a number of Member States and the Council argued that national competence was retained in the light of Article 71 ECSC, which provided that the powers of the Member States in matters of commercial policy would not be affected by the conclusion of that Treaty. However, the Court addressed this argument by interpreting the scope of that provision in very restrictive terms, namely as confined to international agreements relating specifically to ECSC products. Furthermore, it referred to Opinion 1/75, where it had been concluded that Article 71 ECSC should not be interpreted in a way which would render the CCP ‘inoperative’.66 In the light of this wide reading of Article 207 TFEU following the very strict reading of Article 71 ECSC, the Court concluded that the exclusive nature of the Union’s competence to conclude the Multilateral Agreements on Trade in Goods ‘cannot be impugned on the ground that they also apply to ECSC products’.67 Thirdly, in relation, specifically, to the Agreement on Agriculture, the Court ruled that Article 207 TFEU was the appropriate legal basis for its adoption. This was the case despite the fact that it had already ruled on the specific Treaty provision on agriculture, ie Article 43 TFEU:68 this was considered the appropriate legal basis for secondary legislation on the conditions under which products, including those originating in nonMember States, could be marketed.69 This was because the Agreement on Agriculture did not aim at pursuing any of the Common Agricultural Policy (CAP) objectives; instead, its objective was ‘to establish, on a worldwide basis, “a fair and market-oriented agricultural trading system”’.70 The fact that the Union would have to comply with its obligations under that Agreement by adopting internal legislation pursuant to the CAP was deemed irrelevant.71 Fourthly, the Agreement on the Application of Sanitary and Phytosanitary Measures was also deemed to fall within the scope of Article 207 TFEU in the light of its objective, namely the establishment of a legal framework which would ‘minimize [the] negative effects [of the development, adoption and enforcement of such measures] on trade’.72 Finally, in relation to the Agreement on Technical Barriers to Trade, the Court rejected the argument of the Netherlands government that, in the absence of either current or prospective complete harmonisation, it should be concluded by the Member States. Instead, it ruled that its conclusion was a CCP measure because its objective was ‘merely to ensure that technical regulations and standards, along with the procedures underpinning their adoption, would not create unnecessary obstacles to international trade’.73

66

n 8 above, 1365. n 65 above, para 27. 68 ex Art 37 EC. 69 See Case C-131/87 Commission v Council [1989] ECR I-3764. 70 Preamble to the Agreement, as referred to in Opinion 1/94, n 65 above, para 29. 71 Ibid. 72 Preamble to the Agreement, as referred to in Opinion 1/94 (ibid) para 31. 73 Ibid, para 33. 67

38 Common Commercial Policy 6. TRADE IN SERVICES Trade in Services

The reference to services in the CCP was absent from the Treaty until the late 1990s. This may be explained in the light of the policy and legal context prevailing at the time. However, technological progress and economic development brought services gradually to the centre international trade. In legal terms, this was reflected by the establishment of the WTO in 1994, the most ambitious framework for the liberalisation of international trade. The inclusion of services in the scope of the CCP needs to be understood against the protracted dispute amongst the European institutions and the Member States about the proper scope of CCP which was long, intense and led to Opinion 1/94, one of the most important rulings of the Court of Justice on EU external relations. In order to appreciate both the significance of the dispute and the intensity with which the EU actors participated in it, two points are worth making. First, the procedural dimension of the CCP is central to the divergence of approaches to the construction of the CCP. Decision-making by qualified majority facilitates the adoption of legislation and may explain the energy and time with which the Commission became involved. This becomes all the more significant given the absence of formal role for the European Parliament under the pre-Lisbon constitutional arrangements. It also explains the strong reaction of the Council and various Member States to what they perceived as the overreaching of the scope of CCP. Secondly, the endowment of the Union with exclusive competence raised the stakes of the disputes pertaining to the proper delimitation of CCP. In principle, a narrow approach to the scope of the policy entailed greater protection for individual interests of Member States and increased their impact on the conduct of the policy. It is in the light of these procedural and political dimensions that the story of the development of CCP needs to be understood. As mentioned above, the subject-matter of Opinion 1/94 was the competence of the Union to conclude a number of agreements annexed to the Agreement establishing the WTO. Amongst the most contentious was the GATS. The Commission had argued that the precursor to Article 207 TFEU was applicable because trade in services was a CCP measure. To that effect, it advanced three main arguments. The first one was the broad construction of the CCP introduced by the Court of Justice in the 1970s and consolidated in the 1980s. The second was of a practical nature, namely the close link between trade and services: it was argued that, in a globalised economy, services had become the main focus of international economic activity. Therefore, it was increasingly difficult to distinguish between trade in goods and trade in services. The final argument was of a contextual nature: the purpose of GATS was to lay down rules aimed at the regulation and liberalisation of trade in services; in addition, the instruments that the Contracting Parties would be called upon to adopt would be of a commercial nature. As such, they would be covered by the instrumentalist approach which the Commission deemed to have been sanctioned by the Court in Opinions 1/75 and 1/78 as well as the GSP judgment. All these arguments were rejected by the Court of Justice. The starting point for its ruling was to accept the main premise of the Commission’s analysis: the non-exhaustive nature of the activities set out in Article 207(1) TFEU and the principle that the scope of the CCP be interpreted widely, both articulated in past case-law, were reaffirmed. The increasing economic significance of trade in services and its central position on the international economic arena was not only acknowledged but also viewed as borne out

Trade in Services 39 by the WTO Agreement and its annexes. However, its conclusion was significantly more nuanced: [I]t follows … that trade in services cannot immediately, and as a matter of principle, be excluded from the scope of Article [207].74

Whilst in accordance with the main contention of the Commission about trade in services in general, this statement was clearly of a negative character, not only in its wording but also its tone. What the Commission saw as sufficient to bring GATS within the scope of the CCP, the Court saw as insufficient to exclude it from it a priori. This rather cautious approach was illustrated by the convoluted statement which followed: 75 [O]ne must take into account the definition of trade in services given in GATS in order to see whether the overall scheme of the Treaty is not such as to limit the extent to which trade in services can be included within Article [207].

The Court identified the four modes of supply of services covered by GATS as follows: cross-frontier supply not involving the movement of a person; consumption abroad entailing the movement of a consumer in the territory of a WTO party where the supplier is established; commercial presence, ie the presence of a subsidiary or branch in the territory of the WTO party where the service is rendered; the presence of natural persons from a WTO member country, enabling a supplier from one member country to supply services within the territory of any other member country. Of these four modes of supplies, only the first, involving no movement of a natural or legal person, was deemed to fall within the scope of Article 207 TFEU on the ground of its similarity to trade in goods. The supply of a service involving the physical movement of a natural person, either as a supplier or a consumer, was viewed as beyond the scope of the CCP,76 hence bringing the treatment of third-country nationals on crossing the external frontiers of Member States beyond the Article 207 TFEU. The same conclusion was reached about the movement of legal persons, as the Court noted the existence of a specific Treaty chapter on the matter.77 Following the ruling in Opinion 1/94, the EU institutions and the Member States agreed on the need to reform the CCP. However, there was considerable disagreement as to the scope and pace of this reform. The Amsterdam Treaty provided for the possibility of a unanimous Council decision extending the scope of the CCP to cover international agreements on services, as well as intellectual property rights.78 The amendment was the result of a compromise that did not satisfy the Commission, a member of which at the time viewed it as ‘tremendously disappointing’, adding that ‘the States sinned for lack of vision and showed an entirely deplorable mistrust towards the institutions’.79 Quite how acute the difficulties underlying the position of services within the CCP actually were became clear by the further amendments introduced by the Nice Treaty. 74

Ibid, para 41. Ibid, para 42. 76 This conclusion found textual support in Art 3 EC which set out the activities of the EU and distinguished clearly between the CCP and measures concerning the entry and movement of persons. 77 Namely Ch 2 of Title IV TFEU. 78 Art 133(5) EC (Amsterdam). See O Blin, ‘L’Article 113 CE après Amsterdam’ (1998) 420 Revue du Marché commun et de l’Union européenne 447. 79 Statement by then Commissioner Oreja before a parliamentary committee: Agence Europe, No 7012, 9 July 1997, 2. 75

40 Common Commercial Policy These went a step further and actually rendered this, along with the commercial aspects of intellectual property rights, within the scope of Article 207 TFEU expressly for the first time. However, the Nice Treaty did so in a heavily circumscribed manner, introducing a number of substantive and procedural qualifications and exceptions. The drafting of these provisions was characterised by neither clarity nor elegance, and contained a number of cross-references which raised as many questions as they answered. Aiming to strike a balance between the competing readings of what type of external trade policy the Union required and the Member States were prepared to grant, the Nice version of the CCP consisted of a disconcertingly complex set of provisions.80 It was in the light of Opinion 1/94 and the gradual, albeit ambivalent, revisions at Amsterdam and Nice that Article 207 TFEU was drafted at Lisbon. This historical and legal context must be taken into account in the process of interpretation and application of this provision, as the latter marks the final stage of a considerable policy shift: from the absence of trade in services in the CCP (pursuant to the Treaty of Rome) to the acknowledgement of its existence provided that no movement of persons is involved (following Opinion 1/94) to the possibility of a future inclusion (at Amsterdam) to the partial and circumscribed inclusion (at Nice) to their final assimilation to other areas covered by Article 207 TFEU (at Lisbon). The wording of Article 207(1) TFEU may appear to confine services (and intellectual property rights, for that matter) as the subject-matter of international agreements only, and not unilateral measures. This interpretation should be rejected.81 First, the Lisbon Treaty refers to these fields in the same context as it does with trade in goods. In doing so, it uses the former two areas of activity the wording in which the core of the CCP has been couched since its establishment with the Treaty of Rome. This constitutes a change: under the Nice Treaty, services and the commercial aspects of intellectual property were regulated separately in the precursor to Article 207 TFEU, the wording of which made it clear that they could only be the subject-matter of international agreements. Both the new position of services and intellectual property in Article 207(1) TFEU and the reorganisation of Article 207(4)–(6) TFEU suggest that it was not the intention of the drafters of the Lisbon Treaty to restrain the impact of the Union’s external action in these fields in such a manner. Secondly, it is recalled that one of the main tenets of the construction of the CCP is the non-exhaustive nature of its activities. Given the normalisation of the position of services in the CCP it would be counterintuitive if a restriction was envisaged on the form of the Union’s action rather than its existence. Thirdly, the wording of Article 207(1) TFEU suggests that, if services were viewed as confined to the conclusion of international agreements, this would also apply to goods, a conclusion which would be so bizarre as to render its rebuttal unnecessary. The provisions of Article 207 TFEU do not define the concept of services. If its interpretation was based on EU internal market law, it should be pointed out that the latter approaches services not only as distinct from establishment but also as the subject-matter 80 See M Cremona, ‘A Policy of Bits and Pieces? The Common Commercial Policy after Nice’ (2001) 4 Cambridge Yearbook of European Legal Studies 61; C Herrmann, ‘Common Commercial Policy after Nice: Sisyphus Would Have Done a Better Job’ (2002) 39 Common Market Law Review 7; and HG Krenzler and C Pischas, ‘Progress or Stagnation? The Common Commercial After Nice’ [2001]  European Foreign Affairs Review 291. 81 To that effect, see M Cremona, ‘The Union’s External Action: Constitutional Perspectives’ in G Amato, H Bribosia and B de Witte (eds), Genesis and Destiny of the European Constitution (Brussels, Bruylant, 2007) 1173, 1214.

Trade in Services 41 of a residual freedom. This distinction between services and establishment does not appear in GATS, whose wide definition of services covers establishment (for which GATS uses the term ‘commercial presence’). Should the term ‘services’ in Article 207(1) TFEU be interpreted strictly or widely? In the light of the ever-present link between the expansion of the scope of the CCP and GATS following the establishment of the WTO and the ruling of the Court of Justice in Opinion 1/94, it would be wrong to interpret ‘services’ under Article 207(1) TFEU consistently with the strict definition afforded within the Union legal order.82 In Case C-137/12 Commission v Council the Court held that the CCP covered the conclusion of the European Convention on the legal protection of services based on, or consisting of, conditional access.83 This convention was about access to television and radio broadcasting as well as information society services subject to remuneration (eg watching films for a subscription fee). The Union had already adopted Directive 98/84/ EC which had introduced a system of protection in the area under what is now Article 114 TFEU.84 In essence, the Convention extended the regime set out in the Directive to the members of the Council of Europe. Whilst the Commission suggested that the Convention be concluded as a CCP measure, the Council chose to conclude it as an internal market measure pursuant to Article 114 TFEU. Following the judgment in Case C-414/11 Daiichi Sankyo where it had ruled on the definition of the commercial aspects of intellectual property rights,85 the Grand Chamber held that the term ‘services’ in Article 207 TFEU should be interpreted in its context, ie the CCP, and, therefore, could be relied upon in relation to trade with third countries and not in the internal market. It then held that ‘those acts of the European Union with a specific link to international trade are capable of falling within the field of the common commercial policy’.86 The Court pointed out that the objective of the Convention was to extend the protection already introduced by the Directive to European non-member countries in order to promote the supply of services based on, or consisting of, conditional access to those states by EU service-providers. Therefore, this objective ‘had a specific connection with international trade in those services, by dint of which it can legitimately be linked to the common commercial policy’.87 The Council had objected to the conclusion of the Convention as a CCP measure, arguing that it would also harmonise legal protection of these services within the EU. The Court rejected this argument. The Convention contained a ‘disconnection clause’, ie a provision often found in Council of Europe agreements, which enables the Member States to apply in relations between them EU law rather than the provisions of the agreements.88 The Court held that,

82 See Cremona, n 80 above, 72; and R Passos and S Marquardt, ‘International Agreements—Competences, Procedures and Judicial Control’ in Amato et al (eds), ibid, 875, 902. 83 Case C-137/12 Commission v Council ECLI:EU:C:2013:675. 84 [1998] OJ L320/54. 85 Case C-414/11 Daiichi Sankyo Co Ltd Sanofi-Aventis Deutschland GmbH v DEMO Anonymos Viomichaniki kai Emporiki Etairia Farmakon, ECLI:EU:C:2013:520. See the analysis in the following section. 86 Case C-137/12 Commission v Council, n 83 above, para. 58. 87 Ibid, para 65. 88 A disconnection clause was also relevant in the contact of Opinion 1/03 (Lugano Convention) [2006] ECR I-1145, analysed in Chapter 3. On disconnection clauses, see M Cremona, ‘Disconnection Clauses in EU Law and Practice’ in C Hillion and P Koutrakos (eds), Mixed Agreements Revisited—The EU and its Member States in the World (Oxford, Hart Publishing, 2010) 160.

42 Common Commercial Policy since the approximation of the legislation of Member States in the field concerned has already been largely achieved by Directive 98/84, the primary objective of the Convention is not to improve the functioning of the internal market, but to extend legal protection of the relevant services beyond the territory of the European Union and thereby to promote international trade in those services.89

7. TRADE IN INTELLECTUAL PROPERTY RIGHTS Trade in Intellectual Property Rights

As was the case with trade in services, the Treaty of Rome made no reference to intellectual property rights. Their relevance for the CCP became apparent during the negotiation of the Agreement which established the WTO. In fact, the competence of the Union to conclude the Agreement on Trade Related Intellectual Property Rights was, along with the GATS, the most controversial aspect of Opinion 1/94. The Commission had argued that trade in intellectual property rights was part of the CCP in the light of the very close link between intellectual property rights and trade in the products and services to which they apply. This link was deemed so strong as to bring them within the scope of Article 207 TFEU and render the conclusion of TRIPs a matter covered by the Union’s exclusive competence. In response to this argument, the Court’s approach was developed in a manner similar to that already articulated in relation to GATS. First, it started off by making a distinction similar to that underpinning its analysis of GATS: it identified a specific area of trade-related intellectual property rights covered by TRIPs which was closely linked to trade in goods already regulated under Article 207 TFEU. This was about measures for the prohibition of the release for free circulation of counterfeit goods. Such measures, applied by customs officials at the external frontiers of the Union, had been laid down in Regulation 3842/86.90 Then, the Court accepted the main premise upon which the Commission’s contention was based, ie the link between trade in goods and the enforcement of intellectual property rights. However, this was deemed to be insufficient to bring them within the scope of Article 207 TFEU as ‘intellectual property rights do not relate specifically to international trade; they affect internal trade just as much, if not more than, international trade’.91 The Court further substantiated its conclusion as to the inapplicability of Article 207 TFEU to the conclusion of TRIPs by relying upon the internal effects of that agreement within the Union legal order. Having identified the main objective of TRIPs as the world-wide strengthening and harmonisation of the protection of intellectual property, it pointed out that its conclusion would introduce harmonisation within the Union system too, hence affecting the establishment and functioning of the internal market. Whilst competent to adopt such harmonising legislation internally, the Union could only do so under the internal market harmonising clauses, namely Article 122 TFEU or Article 89

Case C-137/12 Commission v Council, n 83 above, para 67. [1986] OJ L357/1 repealed by Council Reg 3295/94 laying down measures to prohibit the release for free circulation, export, re-export or entry for a suspensive procedure of counterfeit and pirated goods [1994] OJ L341/8 (which was then repealed by Council Reg 1383/2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights [2003] OJ L196/7). 91 n 65 above, para 57. 90

Trade in Intellectual Property Rights 43 268 TFEU.92 However, the procedural requirements laid down in these provisions were different from those under Article 207 TFEU, namely unanimity and consultation with the Parliament in the case of Articles 122 and 268 EC. The Court concluded as follows:93 If the Community were to be recognized as having exclusive competence to enter into agreements with non-member countries to harmonize the protection of intellectual property and, at the same time, to achieve harmonization at Community level, the Community institutions would be able to escape the internal constraints to which they are subject in relation to procedures and to rules as to voting.

Having ruled out the existence of exclusive Union competence on the basis of the insufficient link between intellectual property and trade in goods and the disparities between the international effects of TRIPs and the procedural constraints laid down in primary EU law, the Court went on to dismiss specific examples of secondary legislation affecting protection of IP rights as irrelevant. First, measures adopted in the context of the socalled new commercial policy instrument in order to protect the intellectual property interests of the Union were ‘unrelated to the harmonization of intellectual property protection which is the primary objective of TRIPs’.94 Secondly, the fact that the Union has suspended generalised tariff preferences in response to discrimination by a third state as regards protection of intellectual property rights was also irrelevant to the competence of the Union to conclude an agreement aiming at international harmonisation of intellectual property protection: ‘[S]ince the grant of generalized preferences is a commercial policy measure …, so too is their suspension.’95 Thirdly, provisions on the protection of intellectual property rights in a number of agreements with third countries96 were ‘extremely limited in scope’97 and, therefore, ‘ancillary’.98 They either provided merely for consultations or called on the Union’s partners to raise the level of protection of intellectual property within their territory. Fourthly, the inclusion in agreements with third countries of provisions reserving the names of specific regions exclusively to producers of those countries99was ‘directly linked’ to CAP measures on wine and winegrowing and, in any case, too specific in scope to be relevant to the conclusion of an Agreement as wide in scope as TRIPs.100 Following the ruling of the Court in Opinion 1/94, the story of the gradual inclusion of trade in intellectual property rights in the CCP followed the same pattern as that of trade in services. Therefore, what was written above about the ambivalent approach 92

Arts 100 and 235 EC, respectively. The Court also referred to Art 100a EC. n 65 above, para 60. 94 Ibid, para 63. The Commission had referred to Commission Decision 87/251 on the initiation of an international consultation and disputes settlement procedure concerning a US measure excluding imports of certain aramid fibres into the USA [1987] OJ L117/18, Notice of initiation of an illicit commercial practice procedure concerning the unauthorised reproduction of sound recordings in Indonesia [1987] OJ C136/3 and a similar notice regarding piracy of Community sound recordings in Thailand [1991] OJ C189/26. 95 Ibid, para 65. 96 The Commission referred to the Agreements with China and the then USSR on trade in textile products [1988] OJ L380/2 and [1989] OJ L397/2 respectively and three interim Agreements with Hungary [1992] OJ L116/2, the Czech and Slovak Republic [1992] OJ L115/2 and Bulgaria [1993] OJ L323/2. 97 n 65 above, para 67. 98 Ibid, para 68. 99 The Commission mentioned the Agreement with Austria on the control and reciprocal protection of quality wines and ‘retsina’ wine [1989] OJ L56/2 and the Agreement with Australia on trade in wine [1994] OJ L86/3. 100 n 65 above, para 70. 93

44 Common Commercial Policy under the Amsterdam Treaty and the complex arrangements under the Nice Treaty applies here too. It is noteworthy that, since their reference in primary law for the first time at Amsterdam, trade in intellectual property rights is confined to their ‘commercial aspects’. This is a term that attracted criticism for its ambiguities during the drafting of the Constitutional Treaty.101 Any attempt to interpret it must start with TRIPs as this has been the main point of reference for the gradual inclusion of trade in intellectual property rights in the CCP. Whilst there appears to be a textual difference,102 this is by no means significant. Indeed, the term used in the French version of both texts is almost identical.103 The use of the term ‘commercial aspects of intellectual property’ appears to achieve three objectives. First, it avoids an all-encompassing definition of intellectual property rights, hence seeking to impose a limit on how far this area of law is covered by the CCP. Secondly, it establishes an immediately recognisable link with TRIPs, the conclusion of which gave rise to the very inclusion of intellectual property rights within the scope of Article 207 TFEU. Thirdly, it articulates a constant point of reference for the conclusion of international agreements in the area, hence requiring a trade policy context as a necessary requirement for reliance upon the provisions of Article 207 TFEU. However, the above do not necessarily make the interpretation of the scope of the commercial aspects of intellectual property any easier. In his Opinion in Case C-414/11 Daiichi Sankyo, Advocate General Cruz Villalón viewed the term ‘commercial aspects’ as ‘peculiar’ and pointed out that its application involved ‘interpretative difficulties [which] are formidable’.104 The Daiichi Sankyo case was a preliminary reference by a Greek court of first instance about a patent dispute. Its subject-matter was the patentability of a medicinal product trademarked in Greece. Greek legislation provided for the granting of national patents for the method of production of pharmaceutical products but not for the pharmaceutical products themselves. The question which arose was whether Greek legislation was contrary to WTO law, in particular Article 27(1) TRIPs which provides that ‘patents shall be available for any inventions, whether products or processes’. The central issue in this dispute was whether, following the entry into force of the Lisbon Treaty on 1 December 2009, the reference to ‘the commercial aspects of intellectual property rights’ in Article 207(1) TFEU rendered application of TRIPs to patent law in a Member State a matter of exclusive Union competence. The Commission argued that this question should be answered in the affirmative. It pointed out the similarity between the term used in Article 207(1) TFEU and the title of TRIPs and stressed that the scope of intellectual property as set out in the former coincides with that of the latter. Therefore, it argued, the application and interpretation of Article 27(1) TRIPs are a matter of the EU’s exclusive competence. On the other hand, nine governments intervened in this case and argued that the scope of the commercial aspects of intellectual property under Article 207(1) TFEU is narrower than that of TRIPs. Therefore, they claimed, whether a specific issue of intellectual property regulated by TRIPs falls within the scope of the 101 See the references in M Krajewski, ‘External Trade Law and the Constitution Treaty: Towards a Federal and More Democratic Common Commercial Policy?’ (2005) 42 Common Market Law Review 91, 110–11. 102 TRIPs refers to ‘trade-related intellectual property rights’, whereas Art 207(1) TFEU refers to ‘the commercial aspects of intellectual property rights’. 103 In its French version, Art 207(1) TFEU refers to ‘des aspects commerciaux de la la propriété intellectuelle’ and TRIPs refers to ‘les aspects des droits de propriété intellectuelle qui touchent au commerce’. 104 Case C-414/11 Daiichi Sankyo Co, n 85 above, paras 64 and 65 of his Opinion.

Trade in Intellectual Property Rights 45 CCP is a matter to be determined on a case-by-case basis. In relation to Article 27 TRIPs in particular, they argued that it was about substantive patent law and not the commercial aspects of intellectual property and, therefore, it was for each Member State to determine how to apply it within its legal order. The Court of Justice pointed out that, in the light of the new wording of Article 207(1) TFEU, Opinion 1/94 on TRIPs had become irrelevant. It then focused on the definition of the term ‘commercial aspects of intellectual property rights’ and held that it should be construed within its specific context, ie Article 207 TFEU. As the latter is about the CCP, a measure would fall within ‘the commercial aspects of intellectual property rights’ in the meaning of Article 207(1) TFEU if it had ‘a specific link to international trade’.105 It concluded that TRIPs met this criterion for various reasons. First, this Agreement constitutes an integral part of the WTO system and any violation of its provisions may give rise to suspension of concessions fall other WTO Agreements. Secondly, the wording of the term ‘commercial aspects of intellectual property’ in Article 207(1) TFEU corresponds almost exactly to the title of TRIPs. Thirdly, the objective of TRIPs is to strengthen and harmonise the protection of intellectual property worldwide, and not just in the European Union. This suggests that the scope of this Agreement is covered by the CCP and not the internal market provisions of the TFEU which may be relied upon for intellectual property harmonisation within the Union. Therefore, the scope of the commercial aspects of intellectual property in Article 207(1) TFEU is construed broadly and covers the entire scope of TRIPs. The Court did not follow the advice of Advocate General Cruz Villalón. He had suggested that a balance should be struck between the effectiveness of Article 207(1) TFEU, which required that the commercial aspects of intellectual property should necessarily cover some substantive law rules, and the need to avoid an overly broad interpretation which would render the choice of the term ‘commercial aspects’ irrelevant. He had concluded that the provisions on patents in Article 27 TRIPs did not fall within the scope of Article 207(1) TFEU and therefore were not covered by the Union›s exclusive competence. The judgment in Daiichi Sankyo adjusts the interpretation of CCP to the evolving context which emerges from the new provisions of the Lisbon Treaty. In doing so, it is entirely consistent with the earlier case-law examined above in this chapter as it reflects similar pragmatism to the construction of the scope of the policy. However, the judgment does not address the question of which aspects of protection of intellectual property rights would not be characterised as ‘commercial’. Neither does it explain the relationship between the exercise of exclusive competence under Article 207 TFEU leading to international harmonisation and the exercise of shared internal competence under Article 108 TFEU leading to EU harmonisation. In Daiichi Sankyo it was pointed out that: [I]t remains altogether open to the European Union, after the entry into force of the FEU Treaty, to legislate on the subject of intellectual property rights by virtue of competence relating to the field of the internal market. However, acts adopted on that basis and intended to have validity specifically for the European Union will have to comply with the rules concerning the availability, scope and use of intellectual property rights in the TRIPs Agreement, as those rules

105

Ibid, para 51.

46 Common Commercial Policy are still, as previously, intended to standardise certain rules on the subject at world level and thereby to facilitate international trade.106

The judgment does not explain why TRIPs-based harmonisation does not impinge on the internal powers of EU institutions to adopt EU-wide harmonisation.107

8. FOREIGN DIRECT INVESTMENT Foreign Direct Investment

Investment was covered by the CCP for the first time at Lisbon. Whilst it had referred to services and the commercial aspects of intellectual property, the broader, albeit convoluted and cumbersome, CCP provision introduced by the Nice Treaty had not mentioned investment.108 Article 207(1) TFEU refers specifically to foreign direct investment. However, this term is not defined in the Treaty. The term ‘foreign’ refers to investment from a Member State to a third country or from a third country to a Member State. As for the term ‘direct’, things are somewhat unclear. The Court of Justice has defined direct investment as ‘the form of participation in an undertaking through the holding of shares which confers the possibility of participating effectively in its management and control’.109 It has done so in the context of free movement of capital. This is the only other concept where the EU’s primary rules refer to direct investment. In particular, Article 64(1) TFEU acknowledges the imposition of restrictions on free movement of capital to third countries and therefore a deviation from the principle of Article 63 TFEU, provided that these ‘exist on 31 December 1993 under national or Union law adopted in respect of the movement of capital to or from third countries involving direct investment—including in real estate—establishment, the provision of financial services or the admission of securities to capital markets’. There is also provision for the power of the EU institutions to introduce restrictions ‘on the movement of capital to or from third countries involving direct investment—including investment in real estate—establishment, the provision of financial services or the admission of securities to capital markets’.110 The definition on direct investment was not put forward by the Court in a vacuum. It was first found in Directive 88/361 on capital movement which defines the term in its explanatory notes as

106

Ibid, para 59. See also A Dimopoulos and P Vantsiouri, ‘Of TRIPs and Traps: The Interpretative Jurisdiction of the Court of Justice of the EU over Patent Law’ (2014) 39 European Law Review 210. 108 For an earlier proposal for the inclusion of investment in the CCP, see M Cremona, ‘EC External Commercial Policy after Amsterdam: Authority and Interpretation within Interconnected Legal Orders’ in JHH Weiler (ed), The EU, the WTO, and NAFTA: Towards a Common Law of International Trade? (Oxford, Oxford University Press, 2000) 5, 13–17. 109 See Case C-35/11 Test Claimants in the FII Group Litigation v Commissioners of Inland Revenue, The Commissioners for Her Majesty’s Revenue & Customs, judgment of 13 November 2012, not yet reported, at para. 102. See also Case C-81/09 Idrima Tipou [2010] ECR I-10161, para 48; Case C-182/08 Glaxo Wellcome GmbH & Co KG v Finanzamt München II [2009] ECR I-8591, para 40; Case C-222/97 Trummerand Mayer [1999] ECR I-1661, para 21; Case C-483/99 Commission v France [2002] ECR I-4781, paras 36 and 37; Case C-98/01 Commission v United Kingdom [2003] ECR I-4641, paras 39 and 40; and Joined Cases C-282/04 and C-283/04 Commission v Netherlands [2006] ECR I-9141, para 19. 110 Art 64(2) TFEU. 107

Foreign Direct Investment 47 [i]nvestments of all kinds by natural persons or commercial, industrial or financial undertakings, and which serve to establish or to maintain lasting and direct links between the person providing the capital and the entrepreneur to whom or the undertaking to which the capital is made available in order to carry on an economic activity.111

The definition of direct investment offered by the EU legislature and articulated by the Court is consistent with the approach adopted by other international actors. These include the OECD112 and the International Monetary Fund.113 Direct investment is to be distinguished from portfolio investment, which is about the movement of private equity for personal gain where the element of lasting influence is absent.114 This distinction is widely accepted. The Commission adopted a communication on investment policy in 2010 in which it defined foreign direct investment in these terms.115 The exclusion of portfolio investment from the scope of Article 207 TFEU does not rule out the existence of an EU competence in the area, as such competence may arise from the TFEU provisions of the free movement of capital pursuant to the principle of implied competence.116 However, the distinction between foreign direct investment and portfolio investment does not get us very far, as, in order to determine the scope of investment policy in the meaning of Article 207 TFEU, it is necessary to identify the type of measures that would fall within the scope of direct foreign investment. To that effect, three points are worth making. First, this is not an exercise which may be carried out in the abstract. Instead, the definition of the typology of measures pertaining to foreign direct investment is to be carried out in relation to specific actions which the Union or the Member States envisage in the context of specific relationships with third countries or international organisations. This is all the more so given that, as a matter of practice in international relations, foreign direct investment is provided for with other forms of foreign investment. Second, the Bilateral Investment Treaties (BITs) which Member States have concluded as a matter of course include measures of such wide scope as not to be covered entirely by Article 207 TFEU. They include rules on the admission of foreign investment covering capital movements and the establishment of foreign investors, as well as rules on the

111

Council Dir 88/361 for the implementation of Art 67 of the Treaty [1988] OJ L178/5, 11. See eg OECD Benchmark Definition of Foreign Direct Investment, 4th edn (2008) 1.4.11. 113 See eg IMF Balance of Payments and International Investment Position Manual, 6th edn ( Washington, DC, International Monetary Fund) where direct investment is defined as ‘a category of cross-border investment associated with a resident in one economy having control or a significant degree of influence on the management of an enterprise that is resident in another economy’ (para 6.8). 114 The Court refers to it, rather succinctly, as ‘acquiring shares without seeking to influence the way in which the company is managed’ (Case C-98/01 Commission v UK [2003] ECR I-4641, para 20) and elsewhere as ‘the acquisition of shares on the capital market solely with the intention of making a financial investment without any intention to influence the management and control of the undertaking’ (Joined Cases C-282/4 and C283/04 Commission v Netherlands [2008] ECR I-9141, para 19). According to the IMF, portfolio investment is defined as ‘crossborder transactions and positions involving debt or equity securities, other than those included in direct investment or reserve assets’ (ibid, para 6.54). 115 COM(2010) 343 final Towards a Comprehensive European International Investment Policy (Brussels, 7 July 2010) 2–3. 116 See Commission, ibid, 8. See also A Dimopoulos, EU Foreign Investment Law (Oxford, Oxford University Press, 2011) 104–05; and A De Luca, ‘New Developments on the Scope of the EU Common Commercial Policy under the Lisbon Treaty’ in KP Sauvant (ed), Yearbook on International Investment Law and Policy 2010–2011 (Oxford, Oxford University Press, 2012) 165, 182–95. For the contrary view, see M Krajewski, ‘The Reform of the Common Commercial Policy’ in A Biondi, P Eeckhout and S Ripley (eds), EU Law after Lisbon (Oxford, Oxford University Press, 2012) 292, 302. On the principle of implied competence, see Chapter 3. 112

48 Common Commercial Policy post-admission treatment and operation of foreign investments which include clauses about Most Favoured Nation, national treatment, fair and equitable treatment, and full protection and security.117 It has been argued that the scope of foreign direct investment under Article 207(1) TFEU should be read restrictively and exclude post-admission measures aiming to protect investors.118 However, this approach has been viewed as undermining the effectiveness of the inclusion of foreign direct investment within the scope of the CCP.119 Third, the lack of clarity that characterises the scope of foreign direct investment under Article 207 TFEU is compounded by the very considerable number of BITs maintained by the Member States. Even the most restrictive reading of the former would have rendered parts of the latter contrary to EU law as of the entry into force of the Lisbon Treaty. However, practical exigencies would have rendered the possibility of a Member State revoking parts of its BITs in the light of the Union’s exclusive competence and in anticipation of a Union approach inconceivable. Investors could not possibly be left in a vacuum and legal uncertainty would undermine investor confidence. The Commission seems to accept that a degree of pragmatism is required in the exercise of the Union’s foreign investment policy. In a communication it adopted in July 2010, it suggested that the determination of the latter is a ‘gradual and targeted’ process which requires time and needs to take a number of factors into account:120 While it is the Union’s responsibility to promote the European model and the single market as a destination for foreign investors,  … it seems neither feasible nor desirable to replace the investment promotion efforts of Member States, as long as they fit with the common commercial policy and remain consistent with EU law.121

Is it noteworthy that, in its document, the Commission avoids engaging in a definition of the scope of its competence in foreign direct investment pursuant to Article 207(1) TFEU.122 Instead, its effort to develop the Union’s foreign direct invstment policy is based on a two-pronged approach, namely the management of the existing BITs concluded by Member States and the request for a wide mandate from the Council for the negotiation of international agreements. The former consists of the establishment of transitional arrangements for bilateral investment agreements between Member States and third countries adopted in 2010. Following a proposal by the Commission,123 the Council and the Parliament adopted Regulation 1219/2012, which provides for the maintenance in force and amendment of existing, as well as the negotiation and conclusion of new, BITs under certain 117

See Dimopoulos, ibid, 49–61 See Krajewski, n 116 above, 303–04 who bases this view on the context, purpose and negotiating history of Art 207(1) TFEU. 119 See P Eeckhout, EU External Relations Law, 2nd edn (Oxford, Oxford University Press, 2011) 64–65. 120 n 115 above, 2. 121 Ibid, 6. 122 See A Dimopoulos, ‘The Development of EU Trade and Investment Policies: Drawing Lessons from Past Experiences’ in Sauvant (ed), n 116 above, 243, 262. 123 COM(2010) 344 final Proposal for a Regulation of the European Parliament and of the Council establishing transitional arrangements for bilateral investment agreements between Member States and third countries (Brussels, 7 July 2010). For an analysis of the proposal, see G De Baere and P Koutrakos, ‘The Interactions between the European Court of Justice and the Legislature in the European Union’s External Relations’ in P Syrpis (ed), The Relationship between the Judiciary and the Legislature in the Internal Market (Cambridge, Cambridge University Press, 2012) 243, 258 et seq. 118

Foreign Direct Investment 49 conditions.124 The Regulation establishes a procedural framework controlled by the Commission itself which considers its role in the area as an illustration of its responsibilities as the guardian of the Treaty. This mechanism revolves around two procedures dealing with the authorisation of existing agreements and the amendment of existing or the conclusion of new agreements. The authorisation of existing BITs is granted following their notification by all the Member States to the Commission. Such authorisation would be granted notwithstanding the Union’s competence in the area,125 and without prejudice to other EU law obligations of the Member States.126 The Commission would review the agreements in order to assess whether they are compatible with EU law, overlap with an agreement which the Union negotiates, or constitute an obstacle to the development and implementation of the Union’s investment policies. These would also constitute grounds for withdrawal of an authorisation by the Commission. As for the authorisation to amend existing or conclude new BITs, this would follow a notification by the Member State concerned (covering the provisions to be addressed in the negotiations, the objectives of the negotiations and any other relevant information) at least five months prior to the commencement of the negotiations. This information would then be disseminated to the other Member States, and, within three months, the Commission would ascertain whether the authorisation to open formal negotiations would be granted. Such an assessment would depend on whether the opening of negotiations would be in conflict with EU law, whether it would be superfluous in the light of imminent negotiations of an EU agreement, whether it is inconsistent with the EU’s principles and objectives for external action, or constitute a serious obstacle to the negotiation or conclusion of BITs with third countries by the EU. All BITs notified to the Commission are published annually.127 The adoption of Regulation 1219/2012 is noteworthy for the considerable intensity and scope of the interaction between Member States and the Commission. It refers, not only to the opening of negotiations, and the signing and conclusion of BITs, but also the application of such agreements. In relation to the first two, separate authorisations would be required, each of which would depend on two separate assessments pursuant to the information provided by the notifying Member State. In the process of the negotiation of a BIT, the Commission could require the Member State to include any appropriate clauses, and could request to participate in the negotiations. As for the application of the agreement, the Commission proposes specific obligations on Member States. For instance, the Commission would be kept informed without undue delay of all meetings under existing BITs and would be entitled to require that the Member State concerned take a particular position. Similarly, any dispute which might arise about the application of a BIT would have to be notified to the Commission which may even go as far as to require that it participate in any settlement procedure. Its agreement would also be required prior to the activation of any dispute settlement mechanisms included in the BIT by the Member State concerned. Rather than reserving for itself the role of a distant and neutral assessor, the

124 Reg 1219/2012 establishing transitional arrangements for bilateral investment agreements between Member States and third countries [2012] OJ L351/40. 125 See preamble 3 and Art 1 of Reg 1219/2012. 126 Ibid, Art 3. 127 See [2014] OJ C169/1.

50 Common Commercial Policy Commission enables itself to be quite intrusive in all phases of the negotiation, conclusion and application of BITs concluded by Member States. The second strand of the Commission’s approach to the development of the Union’s foreign direct investment policy is about seeking wide negotiating mandates. Since the entry into force of the Lisbon Treaty, it has asked the Council for permission to broaden the scope of ongoing trade negotiations with Singapore and India in order to include investment protection clauses.128 In July 2013, the EU and the United States started negotiating a Transatlantic Trade and Investment Partnership which includes a chapter on investment. This has been controversial. In particular, the negotiation of an investor– state dispute settlement has been met with hostile reaction both amongst governments (in Germany, for instance) and civil society. In August 2014, the negotiations for a free trade agreement with Canada including a chapter on investment were concluded.129 In November 2013 negotiations for an investment agreement with China were launched. This would be the first ever standalone investment treaty negotiated by the Union since the entry into force of the Lisbon Treaty.

9. TRANSPORT Transport

The provision of transport services is not covered by the CCP. This is confirmed by Article 207(5) TFEU which reads as follows: The negotiation and conclusion of international agreements in the field of transport shall be subject to Title VII of Part Three and to Article 218 and Article 300 EC.

This provision is hardly controversial as it reflects the conclusion reached by the Court of Justice in Opinion 1/94, where it pointed out both the existence of a specific set of Treaty provisions on transport and the fact that the principle of implied external competence had been introduced in relation to transport services. It is interesting that, arguing in Opinion 1/94 for a broad CCP which would cover transport services, the Commission had referred to economic sanctions imposed by the Union which had also covered transport services. The Court held that that example could not substantiate the position of transport within the scope of the CCP. On the one hand, it pointed out that the suspension of transport services had been the necessary adjunct to the principal sanctions, as its absence would have undermined the effectiveness of any type of trade sanctions. On the other hand, it held that ‘a mere practice of the Council cannot derogate from the rules laid down in the Treaty and cannot, therefore, create a precedent binding on Community institutions with regard to the correct legal basis’.130

128 See F Hoffmeister, ‘The European Union’s Common Commercial Policy a Year After Lisbon—Sea Change or Business as Usual?’ in P Koutrakos (ed), The European Union’s External Relations a Year after Lisbon (2011) CLEER Working Paper No 3, 83, 86. 129 See A Tzanakopoulos, ‘National Treatment and MFN in the (Invisible) EU Model BIT’ (2014) 15 Journal of World Investment and Trade 484. 130 n 65 above, para 52 with reference to Case 68/86 UK v Council [1988] ECR 855.

Article 207(6) TFEU

51

10. ARTICLE 207(6) TFEU Article 207(6) TFEU

The main legal characteristics of CCP, namely the exclusive competence of the Union and decision-making by qualified majority voting, have placed it traditionally close to the supranational end of the spectrum of principles governing international action. Over the years, the wide construction of its scope by the Court of Justice have strengthened their impact further. This is why the broadening of the scope of the policy by amending primary rules has been accompanied by a reminder of the role of the Member States in external relations. The emergence of this counterpoint to the supranational features of the CCP takes both substantive and procedural dimensions. In substantive terms, the Treaty defines a general limit to what the Union may achieve by its conduct of CCP. This is set out in Article 207(6) TFEU which reads as follows: The exercise of the competences conferred by this Article in the field of the common commercial policy shall not affect the delimitation of competences between the Union and the Member States, and shall not lead to harmonisation of legislative or regulatory provisions of the Member States insofar as the Treaties exclude such harmonisation.

This clause has also been called ‘the no-circumvention rule’.131 The first limb of the above paragraph appears to draw upon the principle of limited powers enshrined in Article 5 TEU. In doing so, it may appear to add nothing to the legal framework of EU external relations. There has been no doubt as to the scope of the fundamental principle of limited powers: indeed, in Opinion 2/94, the Court had held that the principle of conferred powers ‘must be respected in both the internal action and the international action of the Community’.132 The significance that the drafters of the Treaty attached to this principle is highlighted by the greater emphasis which is apparent in the Lisbon Treaty. Article 4(1) TEU, for instance, provides that ‘competences not conferred upon the Union in the Treaties remain with the Member States’. However, there may be another dimension in the reference to the delimitation of competences in the first limb of Article 207(6) TFEU. It is conceivable that its main intention is not so much to restrict the ability of the Union to conclude international agreements but to highlight the implications of the exercise of the Union’s CCP competence for internal competence. It has been argued that the expansion of trade in services, the commercial aspects of intellectual property rights and foreign direct investment may well enable the Union to conclude an agreement certain provisions of which the Union might not have the competence to adopt pursuant to internal measures. This reading of Article 207(6) TFEU suggests that the conclusion of any such agreement would not endow the Union with a corresponding internal competence.133 It is noteworthy that the original draft of Article 207(6) TFEU as agreed upon by the Convention on the Future of Europe referred to ‘internal competences’ specifically.134 It is also interesting that the Nice provision in which Article 207(6) TFEU originates, and which was quite clear about the

131 A Dashwood, M Dougan, B Rodger, E Spaventa and D Wyatt, Wyatt and Dashwood’s European Union Law, 6th edn (Oxford, Hart Publishing, 2011) 948. 132 Opinion 2/94 (ECHR) [1996] ECR I-1759, para 24. 133 See R Gosalbo Bono, ‘The Organization of the External Relations of the European Union in the Treaty of Lisbon’ in Koutrakos (ed), n 128 above, 13, 17–18 and Krajewski, n 101 above, 115–8. 134 See Cremona, n 81 above, 1216.

52 Common Commercial Policy parallelism alignment between the scope of the Union’s competence in the CCP and that of its internal competences, was not maintained at Lisbon.135 The second limb of Article 207(6) TFEU aims to prevent the instrumentalisation of the conclusion of international agreements in order to bypass the prohibition of harmonisation laid down in primary law. Harmonisation is expressly excluded in a number of areas, such as education and vocational training,136 culture137 and public health.138 This provision reflects the concern of the Member States that Article 207 TFEU should not be interpreted so broadly as to undermine their rights as sovereign subjects of international law. It also aims to preserve the delicate balance between EU competence and national prerogatives which the drafting of specific internal market legal bases seeks to strike. The concerns of the Member States pertaining to Article 207(6) TFEU are long standing and have not been ignored by the Court of Justice. It is recalled, for instance, that, in Opinion 1/94, the Court proved unwilling to interpret ex Article 133 EC (now Article 207 TFEU) as a general external economic relations policy. Similarly, and in relation to the internal sphere of EU activities, the express prohibition of harmonisation sets a clear limit beyond which the Court would not go. This was made clear for the EU institutions in the Tobacco Advertising judgment, where the Court stressed that the express prohibition on harmonisation in the area of public health, enshrined in Article 168(5) TFEU, could not be circumvented by reliance upon the general decision-making clause of Article 114 TFEU.139 It would be in this vein that the express prohibition on harmonisation could not be circumvented by reliance upon Article 207 TFEU. This was a position also taken in Opinion 1/94, even though there had been no express provision to that effect in the Treaty. It is recalled that the Court had held that the conclusion of TRIPs did not fall within the scope of the CCP in its entirety because the harmonising effect of that Agreement could not be achieved in the Union legal order in a manner which would render irrelevant the internal constraints laid down in primary law.

11. CHOICE OF LEGAL BASIS Choice of Legal Basis

The analysis above of the fields set out in Article 207(1) TFEU illustrates the issues raised by our effort to define the scope of the CCP. Such interpretative difficulties are not confined to the definition of the fields of activities set out in the Treaty, and cover the interactions between these fields and other areas of external action. After all, external trade is intrinsically linked with other areas of economic and political activity. For instance, the development of trade relations brings states closer together and enhances

135 This was ex Art 133(6) subparagraph 1 EC which provided that ‘[a]n agreement may not be concluded by the Council it if includes provisions which would go beyond the Community’s internal powers’. This was relied upon in Case C-13/07 Commission v Council about the conclusion of the agreement on the accession of Vietnam to the WTO. The Court did not rule on this, as the case was withdrawn. Advocate General Kokott delivered her Opinion on 26 March 2009. See also Opinion 1/08 [2009] ECR I-11129. 136 Arts 165(4) and 166(4) TFEU. 137 Art 167(5) TFEU. 138 Art 168(5) TFEU. Other areas include anti-discrimination policy in relation to incentive measures (Art 19(2) TFEU), the integration of immigrants (Art 79(4) TFEU), crime prevention (Art 84 TFEU), social policy cooperation (Art 153(2) TFEU), industry (Art 173(2) TFEU), space (Art 189(2) TFEU), tourism (Art 195(2) TFEU), civil protection (Art 196(2) TFEU) and administrative cooperation (Art 197(2) TFEU). 139 Case C-376/98 Germany v Parliament and Council (re: Tobacco Advertising) [2001] ECR I-2247.

Choice of Legal Basis

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their political ties. Furthermore, trade brings populations out of poverty and supports the development of poor states. Therefore, while poverty breeds political tensions and upheavals, trade may facilitate political stability. In addition, trade is linked to, and may clash with, policies aiming at protecting the environment and public health. For instance, a long-standing area of tension between the United States and the European Union has been the strict restrictions on trade in genetically modified plants and foods imposed by the latter. A measure which the European Union considers essential in order to protect public health may be viewed as a protectionist trade restriction. In other words, to distinguish between external trade and other areas of external action in practical terms is far from easy and becomes even more so in the globalised international environment where the interdependence between states and groups of states is increasingly pronounced. And yet this exercise is vitally important in legal terms, as measures falling within the scope of different, albeit interrelated, areas of activity are adopted under different legal bases.

11.1 The Significance of the Choice of Legal Basis The implications of the choice of the appropriate legal basis are considerable in practical terms, as the latter determines the procedures whereby secondary measures are adopted and the input of the Union institutions in decision-making. However, the significance of this exercise is far wider for the EU legal order. As the Court of Justice pointed out in Opinion 2/00, ‘the choice of the appropriate legal basis has constitutional significance’.140 It indicates compliance with the principle of limited powers, enshrined in Article 5 TEU, and determines the nature and extent of Union competence. In the words of the Court of Justice,141 to proceed on an incorrect legal basis is … liable to invalidate the act concluding the agreement and so vitiate the Community’s consent to be bound by the agreement it has signed. That is so in particular where the Treaty does not confer on the Community sufficient competence to ratify the agreement in its entirety, a situation which entails examining the allocation as between the Community and the Member States of the powers to conclude the agreement that is envisaged with non-member countries, or where the appropriate legal basis for the measure concluding the agreement lays down a legislative procedure different from that which has in fact been followed by the Community institutions.

In the case of an agreement deemed to be concluded by the Union pursuant to an incorrect legal basis, the Union measure concluding the Agreement would be invalidated whilst the Agreement would be binding on the EU under international law.142 This would necessitate not only the adoption of a new measure but also, where appropriate, the submission of an amended declaration of competence. The analysis so far referred to specific examples of links between the CCP and other policies and the difficulties of choosing the appropriate legal basis (eg regarding the choice between the CCP, on the one hand, and internal market provisions as well as development cooperation, on the other hand). One policy area that illustrates the problems of 140

Opinion 2/00 [2001] ECR I-9713, para 5. Ibid. 142 Case C-327/91 France v Commission [1994] ECR I-3641, para 25. 141

54 Common Commercial Policy delineating the CCP is the environment. Over the years, a number of disputes between the European Union institutions have highlighted both the strong disagreements to which the interpretation of Article 207(1) TFEU gives rise as well as the various linkages between external trade and environmental policy. It is recalled that, whilst avoiding the debate about the instrumental or objective approach advocated by the Commission and the Council, the Court made it clear in the 1990s that the CCP was far from unlimited in scope. And yet, the interaction between external trade and environmental policy provided the background for a number of interinstitutional disputes, the outcome of which has not settled things. In order to appreciate the implications of the cases examined in this section about whether an EU measure should be adopted as a CCP or an environmental law one and to understand the rigour with which EU institutions pursue legal basis disputes before the Court of Justice, two points are worth making. First, when these disputes were brought before the Court of Justice, the procedure governing decision-making in these two areas differed, as they were adopted under the pre-Lisbon constitutional arrangements. Therefore, CCP measures were adopted without the formal input of the Parliament, whereas environmental law measures were adopted under what is now the ordinary legislative procedure. The Lisbon Treaty has done away with this distinction as Article 207 TFEU is now governed by the ordinary legislative procedure too. Secondly, the nature of the Union competence in these two areas differs: whilst exclusivity defines the conduct of the CCP, the Union shares with the Member States the competence to carry out an environmental policy. Prior to analysing the links between external trade and environmental policy, it is worth setting out the main two principles on the basis of which the Union institutions decide under which legal basis a given measure should be adopted. The first is the objective nature of this choice. According to the standard formulation put forward by the Court of Justice, ‘the choice of the legal basis for a [Union] measure must rest on objective factors amenable to judicial review’.143 It is in the light of this principle that ‘the fact that an institution wishes to participate more fully in the adoption of a given measure, the work carried out in other respects in the sphere of action covered by the measure and the context in which the measure was adopted are irrelevant’.144 The second is linked to the objective nature of the choice of the appropriate legal basis and is the notion of the institutional balance. Based on ‘a system for distributing powers among the different [Union] institutions, assigning to each institution its own role in the institutional structure of the [Union] and the accomplishment of the tasks entrusted to the [Union]’,145 the principle of institutional balance is intrinsically linked to the prerogatives of the various institutions and entails that ‘each of [them] must exercise its powers with due regard for the powers of the other institutions’.146

11.2 Delineating between the CCP and Environmental Policy The first case in which the Court was asked to rule on the diving line between external trade and environmental policy was when the Union was called upon to conclude the 143

Case C-300/89 Commission v Council (re: titanium dioxide) [1991] ECR I-1689. Case C-269/97 Commission v Council (re: beef products regulation) [2000] ECR I-2257, para 44. 145 Case C-70/88 European Parliament v Council [1990] ECR I-2041, para 21. 146 Ibid, para 22. 144

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Cartagena Protocol on Biosafety. This Protocol was adopted in January 2000 within the framework of the Convention on Biological Diversity.147 The Cartagena Protocol concerned the biosafety, in particular as regards to transboundary movement, of any living modified organisms (LMOs) resulting from modern biotechnology that might have adverse effect on the conservation and sustainable use of biological diversity.148 The Protocol was adopted unanimously by the Council on the environmental legal basis of the Treaty149 even though the Commission had proposed that it be adopted as both a CCP and an environmental law measure.150 Following this deviation from its proposal, the Commission requested an Opinion pursuant to Article 218(11) TFEU.151 This case attracted considerable interest amongst the Member States: in addition to the European Parliament and the Council, seven governments submitted observations.152 The main objective of the Commission was to clarify a matter of principle, namely to ‘ensure a framework of legal certainty for management of the Protocol, in particular when voting rights are exercised’. Indeed, the divergence of views with the Council was irrelevant in procedural terms in so far as the Council would have to act by qualified majority voting under either of the above options. The line of reasoning put forward by the Commission was centred around the contention that the Protocol fell predominantly within the scope of the CCP because of its objective and content. Whilst it accepted that a number of issues fell within the powers retained by the Member States, it argued that those were limited in scope and were confined to measures not affecting trade in LMOs: they covered the application of safety conditions to the development, transport, use, transfer and release of any LMOs outside international trade and those covering unintentional transboundary movement of LMOs. The line of reasoning followed by the Commission in Opinion 2/00 typifies an expansive view of the CCP, one which appears to take the statements of the Court of Justice in the 1970s at face value. In addition to the above, it argued that the CCP had been held to be broadly construed and had, in fact, been construed widely enough to cover trade measures pursuing, amongst others, objectives related to public health protection,153 development cooperation,154 foreign and security policy,155 and agricultural policy.156 Finally, the conclusion of the Cartagena Protocol as a CCP measure was seen as necessary for the effectiveness of Union action on the international scene. 147 See B Chaytor, R Gerster and T Herzog, ‘The Convention on Biological Diversity—Exploring the Creation of a Mediation Mechanism’ (2002) 5 Journal of World Intellectual Property 157; and D Thieme, ‘European Community External Relations in the Field of the Environment’ (2001) 10 European Environmental Law Review 252, 260 et seq. 148 See PWB Phillips and WA Kerr, ‘The WTO versus the Biosafety Protocol for Trade in Genetically Modified Organisms’ (2000) 34 Journal of World Trade (JWT) 63; and O Rivera-Torres, ‘The Biosafety Protocol and the WTO’ (2003) 26 Boston College International and Comparative Law Review 263. 149 Art 175(1) EC (now Art 192(1) TFEU). 150 The Commission’s proposal was based on ex Art 133 EC (now Art 207 TFEU) and ex Art 174(4) EC (now Art 191(4) TFEU). The latter provides for the cooperation between the EU and Member States and third countries and international organisations in the area of environmental protection. 151 Opinion 2/00, n 140 above. 152 Namely the Danish, Greek, Spanish, French, Italian, Austrian and British. 153 Case C-62/88 Greece v Council, n 63 above. 154 Opinion 1/78, n 11 above, Case 45/86 Commission v Council, n 58 above. 155 Case C-70/94 Werner [1995] ECR I-3189; Case C-83/94 Leifer and Others [1995] ECR I-3231; Case C-124/95 Centro-Com [1997] ECR I-81. This case-law is examined in Chapter 14. 156 Opinion 1/94, n 65 above, paras 28–30.

56 Common Commercial Policy For the purpose of this analysis, the ruling of the Court in Opinion 2/00 may be divided into three parts. The first one deals with the issue of legal basis in general. Having reaffirmed the principle that its choice should be determined on the basis of ‘objective factors  … amenable to judicial review’ which should include ‘in particular the aim and the content of the measure’,157 the Court ruled that that also covered EU measures adopted in order to conclude an international agreement. The Court then referred to the rule of interpretation laid down in the Vienna Convention on the Law of Treaties (VCLT): according to Article 31 thereof, ‘a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’. In relation to the Cartagena Protocol in particular, the Court defined the essential question as whether the Protocol, in the light of its context, its aim and its content, constitutes an agreement principally concerning environmental protection which is liable to have incidental effects on trade in LMOs, whether, conversely, it is principally an agreement concerning international trade policy which incidentally takes account of certain environmental requirements, or whether it is inextricably concerned both with environmental protection and with international trade.158

In the second part of its ruling, the Court analysed the context, the objectives and the content of the Protocol. It reached the conclusion that the former should be determined on the basis of the Convention on Biological Diversity, within the framework of which it had been drawn up in the first place. It was pointed out that the environmental nature of that instrument was apparent: it had been adopted under the environment legal basis (current Article 192 TFEU) and, in its first Article, it referred to its objectives as ‘the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilisation of genetic resources’.159 As to the Protocol’s purpose, the Court noted that it was ‘clear beyond doubt’ that it pursued an environmental objective: its Article 1 refers to Principle 15 of the Rio Declaration on Environment and Development dealing expressly with environmental protection; it mentions the precautionary principle which is a fundamental principle of environmental protection laid down in ex Article 174(2) EC;160 its title illustrates its objective of ensuring an adequate level of protection in the field of the safe transfer, handling and use of LMOs which is also underlined in its preamble.161 Finally, in dealing with the substantive content of the Cartagena Protocol, the Court ruled that its environmental aim was clearly reflected in the fundamental obligation it imposed on the parties: this was to prevent or reduce the risk to biological diversity in the development, handling, transport, use, transfer and release of any LMOs.162 A number of provisions clearly illustrated the predominantly environmental character of the Protocol: control mechanisms, some

157 n 140 above, para 22 with reference to Case C-268/94 Portugal v Council [1996] ECR I-6177, para 22; Case C-269/97 Commission v Council [2000] ECR I-2257, para 43; and Case C-36/98 Spain v Council [2001] ECR I-779, para 58. 158 n 140 above, para 25. 159 Ibid. Furthermore, the Protocol included various references to the Convention and the Conference of the Parties. 160 Now Art 191(2) TFEU. See ibid, para 29. 161 In particular, reference is made to risks to human health from biotechnology, the need for biotechnology to be used with adequate safety measures for the environment and human health and the crucial importance to humankind of centres of origin and centres of genetic diversity. 162 See Art 2(2) of the Cartagena Protocol.

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of which were typically associated with environmental policy, were established in order to enable the parties to adhere to their obligations; the Protocol deals with the assessment and management of risks associated with the use, handling and transboundary movement of LMOs, unintentional transboundary movements and emergency measures, the handling, transport, packaging and identification of LMOs; the substantive duties imposed upon the contracting parties cover any kind of transboundary movement. In the light of the above, the Court had no difficult concluding that the Protocol’s ‘main purpose or component is the protection of biological diversity against the harmful effects which could result from activities that involve dealing with LMOs, in particular from their transboundary movement’.163 In the final part of its ruling in Opinion 2/00 the Court dealt with the specific arguments put forward by the Commission. Having held that ‘the Protocol is, in the light of its context, its aim and its content, an instrument intended essentially to improve biosafety and not to promote, facilitate or govern trade’,164 it ruled that, in dealing with transboundary movement of LMOs, the Protocol covered not only trade in but also any form of movement of LMOs between states: these included illegal and unintentional movement and movement for charitable or scientific purposes or serving public interest. As to the wide interpretation advocated by the Commission, the Court held that if accepted, [the Commission’s interpretation] would effectively render the specific provisions of the Treaty concerning environmental protection policy largely nugatory, since, as soon as it was established that Community action was liable to have repercussions on trade, the envisaged agreement would have to be placed in the category of agreements which fall within commercial policy.165

The ‘effectiveness’ argument had the same fate as it was pointed out that practical difficulties associated with the implementation of mixed agreements, ‘whatever their scale, … cannot be accepted as relevant when selecting the legal basis for a Community measure’.166 Following the ruling in Opinion 2/00, the Council Decision concerning the conclusion, on behalf of the Union, of the Cartagena Protocol was adopted solely as an environmental measure.167 In its preamble, it pointed out that the Protocol ‘contributes to the achievement of the objectives of the environmental policy of the [Union]’. As the Court held correctly in Opinion 2/00, both the wording and the substantive content of the Cartagena Protocol were hardly unclear as to its predominantly environmental character.168 In order to establish this, the Court engaged in an exercise that 163

n 140 above, para 34. Ibid, para 37. As to the choice between ex Arts 174(4) and 175(1) EC (now Arts 191(4) and 192(1) TFEU), the Court concluded in para 43 that the latter was the correct legal basis. This was because the Cartagena Protocol did not merely provide for cooperation arrangements, as required under the former provision, but set out precise rules on control procedures regarding transboundary movements, risk assessment and management, handling, transport, packaging and identification of LMOs. Finally, the Union was held not be exclusively competence under ex Art 175(1) EC, as ‘the harmonisation achieved at Community level in the Protocol’s field of application covers … only a very small part of such a field’ (para 46). 165 Ibid, para 40. 166 Ibid, para 41. 167 Dec 2002/628 [2002] OJ L201/48. 168 This point was also borne out by the Protocol’s negotiating history: see C Bail, J-P Decaestecker and M Joergensen, ‘European Union’ in C Bail, R Falkner and H Marquard (eds), The Cartagena Protocol on Biosafety—Reconciling Trade in Biotechnology with Environment and Development? (London, The Royal Institute 164

58 Common Commercial Policy would appear to present problems similar to those facing any judicial body. In fact, on the internal plane, the Court had been familiar with delineating the relationship between trade and environmental policies: a case in point is the Titanium Dioxide case,169 a central case in the legal basis debate.170 However, whilst not uncontroversial in the context of the internal market, the choice of legal basis in the area of external relations is all the more complex in the light of the involvement of third states. In addition, it is the constitutional underpinnings of the regulation of different policies under the Treaty that render this task even more fraught with problems: it is recalled that, in the case of the CCP, the Court had sought to foster its normative foundation on the basis of a priori exclusivity for the Union’s competence over a widely construed commercial policy. An interesting feature of the ruling is the rejection by the Court of the Commission’s view that the CCP should be construed too widely. There are three issues which emerge. First, in response to the Commission’s emphasis on the effectiveness of the EU’s external action, the Court stressed that the choice of legal basis could not be influenced by the practical difficulties associated with the implementation of mixed agreements, ‘whatever their scale’.171 In doing so, it followed its approach in Opinion 1/94, where it had pointed out that, whilst ‘quite legitimate’, practical problems about shared competence could not render the Union’s competence exclusive.172 It is noteworthy that, in its ruling, the Court is as elaborate in articulating the alternatives to the CCP as it is forceful in rejecting the requirement for recourse to Article 207 TFEU as a matter of necessity. For instance, having pointed out that the delineation of powers shared by the Union and the Member States exceeded its jurisdiction under Article 218(11) TFEU, it held that: In any event, where it is apparent that the subject-matter of an international agreement falls in part within the competence of the Community and in part within that of the Member States, it is important to ensure close cooperation between the Member States and the Community institutions, both in the process of negotiation and conclusion and in the fulfillment of the commitments entered into. That obligation to cooperate flows from the requirement of unity in the international representation of the Community.173

It is recalled that an elaborate reference to that duty had concluded the ruling in Opinion 1/94, where the Court had rejected the Commission’s claim for exclusivity on almost all grounds. In other words, Opinion 2/00 constitutes the natural continuation of the ruling in Opinion 1/94 in a twofold manner: on the one hand, it makes it clear that neither legal nor practical reasons may justify the transformation of the widely construed CCP into an all-encompassing external economic relations policy; on the other hand, instead of treating mixity as a legal abomination, it highlights the emergence of general principles which may address any ensuing complications. Therefore, the line of reasoning in Opinion 2/00 was consistent both with the Court’s approach to the overall system of EU external relations. of International Affairs, 2002) 166, 168: all three authors were involved in the negotiations, the first leading the Commission delegation. 169

Case C-300/89 Commission v Council, n 143 above. See the criticism in S Crosby, ‘The Single Market and the Rule of Law’ (1991) 16 European Law Review 451. The Court then dealt with the issue of the interaction between trade and environmental policies in Case C-155/91 Commission v Council [1993] ECR I-939 and Case C-187/93 Parliament v Council [1994] ECR I-2857. 171 n 140 above, para 41. 172 See Opinion 1/94, n 65 above, para 107. 173 n 140 above, para 18. 170

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Secondly, the Commission’s arguments in Opinion 2/00 about the relationship between trade and environment effectively undermined the EU provisions on environmental protection. It was for that reason that the language in which the Court stressed the position of environmental policy in the Treaty was identical to that used twenty-five years earlier in relation to the CCP itself.174 Thirdly, the line of reasoning put forward by the Commission and rejected by the Court appeared to read literally the Court’s general pronouncements on the interpretation of the CCP.175 In doing so, it failed to place them in their specific context: this covered not only the substantive content of the agreements in relation to which those pronouncements had been made, but also the emerging character of the CCP, its pronounced linkages with the internal market and the period of stagnation in decisionmaking in the EU at large. As has been pointed out, Opinion 1/94 contains no reference to the substantive parallelism between the content of the CCP and that of the external trade policy of a state;176 the same is true of Opinion 2/00. There is no such reference because there is no need for one: the principle of the dynamic interpretation of this policy and the exclusive nature of the Union competence were by then well entrenched in Union vocabulary. The development of the international economic arena should also be taken into account when assessing the approach of the Court: whilst the negotiation and conclusion of commodity agreements was part of mainstream international practice in the 1970s and early 1980s, the 1990s saw the collapse of commodity prices and the marginalisation of commodity agreements.177 Viewed from this angle, to argue that a worthwhile, widely construed commercial policy is all-encompassing in scope is a logical misnomer: the dynamic development of a policy requires its construction in a manner that is sufficiently consistent to accommodate international developments and flexible to take into account the constitutional underpinnings of the legal system within which it is bound to be carried out. In the light of this, it is noteworthy that the scope of the CCP was articulated in Opinion 2/00 in a manner which, whilst broad in nature, was distinguished from the early pronouncements of the 1970s: it aims at governing agreements which, in the light of their context, aim and content, are intended essentially to promote, facilitate or govern trade. Another case where there was strong disagreement as to whether an international agreement was mainly about trade or environment was in the Energy Star Agreement case.178 This was about the conclusion of a US–EU agreement on the coordination of energy-efficient labelling programmes for office equipment. This programme, called the ‘Energy Star Programme’, originated in United States and aimed at encouraging manufacturers to introduce energy-saving features and at raising consumer awareness of the energy losses of office equipment in stand-by mode. In doing so, it introduced a logo, the Energy Star logo, for the labelling of equipment which adhered to the relevant rules. This 174

Ibid, para 40. For a more detailed critique of the Commission’s arguments, see P Koutrakos, ‘“I Need to Hear You Say It”: Revisiting the Scope of the EC Common Commercial Policy’ (2003) 22 Yearbook of European Law 407, 420 et seq. 176 See J Dutheil de la Rochère, ‘L’ ère des compétences partagées’ [1995] Revue du Marché Commun et de l’Union européenne 461, 469. 177 See A Maizels, Commodities in Crisis (Oxford, Clarendon Press, 1992) 5–22; and C Michalopoulos, Developing Countries in the WTO (Basingstoke: Palgrave, 2001) 32–33. 178 Case C-281/01 Commission v Council [2002] ECR I-12049. 175

60 Common Commercial Policy programme proved to be very popular with manufacturers around the world, including the Community. This prompted the Commission to adopt it. Following its signature, the relevant Agreement was approved on behalf of the Union by Decision 2001/469179 based on Article 192(1) TFEU. The Commission challenged that Decision on the ground that it constituted a CCP measure. The Court repeated the need for the choice of legal basis to rest on objective factors amenable to judicial review, and then noted that the Energy Star Agreement ‘simultaneously pursues a commercial-policy objective and an environmental-protection objective’:180 the former on grounds of its aim to coordinate energy-efficient labelling programmes which ‘necessarily facilitates trade inasmuch as manufacturers henceforth need to refer to just one standard as regards labeling and to comply with just one registration procedure with a single management entity in order to sell equipment bearing the Energy Star logo on the European and American markets’;181 the latter because, ‘on reading the preamble to the Energy Star Agreement and Article I thereof,  … by stimulating the supply of and demand for energy-efficient products, the labeling programme in question is intended to promote energy savings’.182 As to its predominant aim, the Court concluded that the Agreement was ‘[a]n instrument having a direct impact on trade in office equipment’.183 It did accept that ‘in the long term  … the programme should have a positive environmental effect’. However, it went on to conclude that that ‘is merely an indirect and distant effect, in contrast to the effect on trade in office equipment which is direct and immediate’.184 The Council had sought to underline the environmental character of the Energy Star Agreement by referring to various internal EU measures concerning the award of voluntary eco-labels which had been adopted as environmental instruments. This argument was rejected by the Court, which suggested that the legal basis of those measures had been justified in the light of their intra-Union scope. Those measures were not ‘sufficient to establish that the same basis must be used when approving an international agreement with similar subject-matter’.185 Whilst the judgment in the Energy Star Agreement case might appear to be at odds with the ruling in Opinion 2/00, it is suggested that this is not the case. On the facts of the case, the conclusion reached by the Court is entirely justified: whereas the aim of the Energy Star Programme was to promote energy-efficient equipment, that of the Energy Star Agreement was, as far as the Union was concerned, to facilitate the commercial activities of traders originating in the Member States, hence enabling them to penetrate foreign markets more efficiently. This objective distinction, apparent in the judgment

179

[2001] OJ L172/1. n 178 above, para 39. 181 Ibid, para 37. 182 Ibid, para 38. 183 Ibid, para 40. 184 Ibid, para 41. The optional character of the Energy Star Programme was deemed irrelevant to the commercial-policy objective of the Agreement, not only because the latter was ‘none the less designed to have a direct impact on trade in office equipment’ (para 44) but also because ‘nonbinding labelling provisions may constitute an obstacle to international trade’ (para 45). 185 Ibid, para 46. To that effect, the Court mentioned Dir 92/75 on the indication by labelling and standard product information of the consumption of energy and other resources by household appliances [1999] OJ L297/16, adopted under ex Art 95 EC (now Art 114 TFEU) due to its link to the establishment of the internal market. 180

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itself,186 was central to the Court’s reasoning. This was also implied by Advocate General Alber, who referred to the exploratory memorandum accompanying the Commission’s proposal for the contested Decision: this viewed the Energy Star logo as the ‘de facto required standard for office equipment sold on the United States market. In addition, the Energy Star requirements were becoming the applicable standard world-wide and therefore in the Union as well’.187 Viewed from this angle, what was truly at the core of the matter was the extent to which market access could be guaranteed to EU traders of products falling within the scope of the Programme. Indeed, in his Opinion, Advocate General Alber implied a similarity between the Energy Star Agreement and technical standards agreements.188 Therefore, the subject-matter of the Energy Star Agreement case is altogether different from that in Opinion 2/00. The principles determining the choice of legal basis in EU international relations, as elaborated in the Energy Star judgment, have been applied by the Court in the context of protection and control of wine names. The Union relied upon the CCP legal basis and concluded such an agreement with Hungary in 1993 that, protected, amongst others, the Hungarian geographical indication ‘Tokaj’. In implementing its provisions, the Italian authorities prohibited the use in Italy of the grape variety names ‘Tocai friulano’ and its synonym ‘Tocai italico’ on wine labels with effect from 2007. The autonomous region where these varieties are produced, and an organisation called the Regional Agency for Rural Development, challenged this prohibition before the Italian courts. One of their arguments was that the Agreement with Hungary should not have been adopted as the Union did not have exclusive competence to protect intellectual property rights. In its judgment, the Court dismissed this argument.189 It applied the line of reasoning put forward in the Energy Star case, and noted that the specific objective of agreements on the protection and control of wine names is to guarantee reciprocal protection for certain geographical indications which are mentioned on the labelling. These are used to market the wines in the Union and in the third country concerned. Therefore, such agreements constitute an instrument directly affecting trade in wines. So far, this analysis has examined an agreement which was mainly about the environment even though it had an indirect impact on trade (Cartagena Protocol) and an agreement mainly about trade that had an indirect impact on the protection of the environment (Energy Star Agreement). In the following case, the Court identified a different type of agreement. In Case C-94/03, the Commission brought an action against the Council challenging the conclusion of the Rotterdam Convention on the Prior Informed Consent Procedure for certain hazardous chemicals and pesticides in international trade.190 The Council Decision approving the conclusion of the Convention on behalf

186 According to the Court, the US Energy Star Programme ‘was devised in order to stimulate the supply of, and demand for, energy-efficient products and therefore to promote energy conservation’, an objective which the extension of the Agreement to the EU would ‘undoubtedly help’ (ibid, para 42). The Energy Star Agreement ‘does not contain new energy-efficiency requirements’, hence ‘merely render[ing] the specifications initially adopted by the [Programme] applicable on both the American market and the European market and mak[ing] their amendments subject to the agreement on both contracting parties’ (ibid). 187 Quoted in para 66 of this Opinion (ibid). 188 See para 74 of his Opinion (ibid). 189 Case C-347/03 Regione autonom Friuli-Venezia Giulia and ERSA v Ministero delle Politiche Agricole e Forestali [2005] ECR I-3785. 190 Case C-94/03 Commission v Council [2006] ECR I-1.

62 Common Commercial Policy of the Union was adopted unanimously as an environmental measure,191 whereas the Commission had proposed its adoption as a trade measure in the context of the CCP. The Rotterdam Convention describes its objective in Article 1 as follows: ‘to promote shared responsibility and cooperative efforts among Parties in the international trade of certain hazardous chemicals in order to protect human health and the environment from potential harm and to contribute to their environmentally sound use’. This objective is to be achieved ‘by facilitating information exchange about [the] characteristics [of those chemicals], by providing for a national decision-making process on their import and export and by disseminating these decisions to Parties’. The defining characteristic of the Convention is the application of the prior informed consent procedure to exports and imports of certain hazardous chemicals and pesticides. This procedure applies to products listed in an annex to the Convention as well as other ‘banned or severely restricted chemicals’ and ‘severely hazardous pesticide formulations’. A system of information is established whereby the parties communicate, through a Secretariat, their decision to ban or severely restrict trade in hazardous chemicals and pesticides and the importing parties communicate their decision as to whether to consent to future imports of such products. In its judgment, the Court held that the protection of human health and the environment was ‘the most important concern in the mind of the signatories of the Convention’, a fact which was ‘clearly apparent’ and ‘unequivocally confirm[ed]’ in the preamble and the wording of the Convention.192 However, it pointed out that its provisions ‘also contained rules governing trade in hazardous chemicals and having direct and immediate effects on such trade’.193 The Court noted the reference to ‘trade’ in the title of the Convention and observed that, whilst typically an instrument of environmental policy, the prior informed consent procedure would be applicable to products subject to trade. Deemed to establish ‘a specific link between trade and the environment’,194 the Convention was viewed by the Court as providing for a number of measures ‘“governing” or “regulating” international trade … and therefore fall[ing] within the scope of the common commercial policy’.195 In the light of the above, it was held that the Convention had been wrongly concluded on behalf of the Union as an environmental measure. Instead, it should have been concluded under both the CCP and the environmental policy legal bases (now Articles 207(1) and 192(1) TFEU), as it includes, both as regards the aims pursued and its contents, two indissociably linked components, neither of which can be regarded as secondary or indirect as compared with the other, one falling within the scope of the common commercial policy and the other within that of protection of human health and the environment.196

The Rotterdam Convention judgment is not easy to reconcile with the previous case-law on the interactions between trade and environmental policy. Its conclusions are based on

191

Council Dec 2003/106 [2003] OJ L63/27. n 190 above, para 37 of the judgment. 193 Ibid, para 42. 194 Ibid, para 44. 195 Ibid, para 46. 196 Ibid, para 51. Following the judgment, the Rotterdam Convention was concluded under Council Dec 2006/730/EC [2006] OJ L299/23 where reference to the judgment (preamble, paras 2 and 3). 192

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a narrow and selective reading of the Convention.197 The judgment referred, for instance, to the preamble to the Convention, according to which ‘trade and environmental policies should be mutually supportive with a view to achieving sustainable development’, whilst ignoring the identically expressed provision in the preamble to the Cartagena Protocol198 which had been held to illustrate its environmental nature. The judgment distinguishes the Convention from the Cartagena Protocol on the basis that, contrary to the latter, it is characterised by ‘an explicit link between trade and the environment’.199 Whilst the Rotterdam Convention is applicable to imports and exports of chemicals and the advance informed agreement procedure set out in the Cartagena Protocol is applicable to transboundary movement of living modified organisms in general, that is including, in the Court’s own words, ‘illegal and unintentional transboundary movements, movements for charitable or scientific purposes and movements serving the public interest’, to focus on the need for this ‘explicit link’ is unduly formalistic. The application of the Convention to products whose movement is subject to export and import rules does not necessarily render its provisions of a trade nature. In fact, the Convention sets out a procedural framework aiming at enabling the importing countries to make an informed choice as to the harmful effects that the import and export of certain chemicals and pesticides would have on human health and the environment.200 Furthermore, the judgment in Rotterdam Convention ignores both the origins of the Convention and the policy context within which it developed. Negotiated in the context of the Rio and 2002 Johannesburg Conferences and following up from international frameworks which had been drawn up under the Food and Agriculture Organisation (namely the Code of Conduct on the Distribution and Use of Pesticides) and the United Nations Environment Programme (namely the London Guidelines for the Exchange of Information on Chemicals in International Trade), the Convention draws upon and develops further an incrementally developed body of principles and procedures firmly established within the sphere of environmental policy. The narrow, selective and formalistic interpretation of the Rotterdam Convention sets the judgment in this case apart from the other judgments on the relationship between trade and environment. This gives rise to considerable uncertainty as to the choice of the legal basis on which an agreement with a trade and environmental law dimension should be concluded by the Union.201 In its judgment, the Court held that the Decision concluding the Rotterdam

197 For a detailed analysis of the judgment, see P Koutrakos, ‘Annotation on Case C-94/03 Commission v Council and Case C-178/03 Commission v Parliament and Council’ (2007) 44 Common Market Law Review 171. 198 See para 9 of the preamble. The Court also ignored a number of statements underlying the environmental focus of the Convention. For instance, in the preamble to the Convention, the Parties express their ‘desir[e] to ensure that hazardous chemicals that are exported from their territory are packaged and labelled in a manner that is adequately protective of human health and the environment, consistent with the principles of the Amended London Guidelines and the International Code of Conduct’. 199 n 190 above, para 44. 200 In her Opinion, AG Kokott points out that the PIC procedure can only have indirect effects on trade, either by facilitating trade in hazardous chemicals by increasing transparency of the relevant rules or by making trade more expensive for an exporter and concludes that ‘no commercial policy rules’ fall within the scope of the Convention (n 190 above, para 39 of her Opinion). 201 See M Cremona, ‘External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Effects of International Law’, EUI Working Papers LAW No 206/22, n 50 who notes that, the existence of relevant case-law notwithstanding, ‘it does not  … seem any easier to predict the outcome of a future case on the same issue’.

64 Common Commercial Policy Convention on behalf of the Union should be annulled: in the new Decisions, the CCP legal basis should be added to the environmental law one in order to reflect the dual focus of the Decision. It is settled case-law that recourse to a dual legal basis is not possible in a case where the decision-making procedures laid down therein are incompatible with each other or liable to undermine the rights of the European Parliament.202 Indeed, this principle was restated by the Court in the Rotterdam Convention judgment, which then pointed out that the addition of the CCP legal basis along with the environmental law one (now Article 192(1) TFEU) would not change the voting procedure (both require qualified majority voting) and would not undermine the role of the European Parliament (as, at that time, the former provision provided for no formal role for it, whereas the latter provided for consultation).203 Given that the addition of the CCP legal basis would add nothing in procedural terms, why was the annulment of the Decision concluding the Rotterdam Convention on behalf of the Union necessary? The fact that recourse to a dual legal basis, rather than the single one originally envisaged, is legally possible in institutional and procedural terms does not necessarily entail the annulment of the measure in question. In other cases where the Court rules that a new legal basis should be added to the one pursuant to which a measure under review was adopted, the Court held that the annulment of the latter is not necessary as ‘such an error in the legal basis relied on for a Community measure is no more than a purely formal defect’.204 In other words, recourse to the inappropriate legal basis does not question the procedure for adopting the measure in question when the legislative procedure actually followed satisfies the requirements of the legislative procedure which ought to have been applied under the correct legal basis. This was also the conclusion suggested by Advocate General Kokott in her Opinion.205 In the light of the above, the ruling that the Decision concluding the Rotterdam Convention should be annulled was puzzling. It is not necessarily explained by the judgment in Case C-178/03 Commission v Parliament and Council, delivered on the same day as the one in the Rotterdam Convention case. In that judgment, the Court held that Regulation 304/2003 implementing the Rotterdam Convention should also have been based on what is now Article 207 TFEU along with the environmental legal basis and, for that reason, it was necessary that it be annulled. However, the conclusion of an international agreement and the adoption of the implementing measure are two acts that may well be adopted on different legal bases.206 What may shed light on the Court’s reasoning is this extract from the Rotterdam Convention judgment: [I]t is important to note that, by basing the decision approving the Convention on the dual legal basis of [Article 207 TFEU] and Article [192175(1) TFEU], the [Union] is also giving indications to the other parties to the Convention both with regard to the extent of [Union] competence in relation to that Convention which … falls both within the scope of the common

202

See Case C-300/89 Titanium Dioxide, above n 143, paras 17–21. n 190 above, para 52. Now both Arts 207 and 192 TFEU provide for the ordinary legislative procedure. 204 See Case C-210/03 Swedish Match [2004] ECR I-11893, para 98. See also Case C-491/01 BAT [2002] ECR I-11453. 205 See paras 52–54 with reference to Joined Cases C-164/97 and C-165/97 Parliament v Council (Forest protection case), [1999] ECR I-1139, para 14, and Case C-338/01 Commission v Council [2004] ECR I-4829, para 57. 206 See Opinion 1/94, above n 65, para 29. 203

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commercial policy and within that of competences between the [Union] and its Member States, a division which must also be taken into account at the stage of implementation of the agreement at Community level.207

The focus of the above extract on the interests of the third parties, to such an extent as to necessitate the annulment of the Union measure concluding the Rotterdam Convention on behalf of the Union, is at variance with one of the main tenets of EU external relations, namely the internal function of the choice of the appropriate legal basis. This was articulated clearly in the late 1970s, where the Court pointed out that: [I]t is not necessary to set out and determine, as regards other parties to the Convention, the division of powers  … between the Community and the Member States, particularly as it may change in the course of time. It is sufficient to state to the other contracting parties that the matter gives rise to a division of powers within the Community, it being understood that the exact nature of that division is a domestic question in which third parties have no need to intervene.208

The above position was later reaffirmed in Opinion 2/00.209 In the light of the above, the conclusion in the Rotterdam Convention judgment that the Decision be annulled on the basis of the interests of the Union’s international partners is puzzling. The internal function of the choice of legal basis for the conclusion of international agreements follows directly from the constitutional function of this choice and is related to its objective nature. After all, these are the main normative characteristics of the choice of the appropriate legal basis.210 By introducing the interests of third parties as an additional factor in the process of the choice of legal basis, the Court rendered a process already fraught with problems even more difficult to predict. As Cremona puts it: [T]here is a danger, if decisions as to legal base are seen as a signal to third countries, that the issue of choice of legal base will become even more politicised than it is already, making it more difficult to base that choice purely on ‘objective factors which are amenable to judicial review’.211

Another way of understanding the relevant part of the Rotterdam Convention judgment may be its focus on the submission of a new declaration of competence. In this respect, the emphasis also placed on the declaration of competence submitted by the Community to the UN Convention on the Law of the Sea in the Mox Plant judgment is interesting.212 Therefore, the Court may be seen to suggest that more attention should be paid to the uncertainty that third parties often face when dealing with the Union and its Member States in the context of multilateral international agreements. This state of uncertainty may appear more significant as it is linked to the question of responsibility for the implementation of such agreements. This aspect of the Union’s engagement in international

207

Case C-94/03 Commission v Council, above n 190, para 55. Ruling 1/78 (re: Draft Convention of the International Atomic Energy on the Physical Protection of Nuclear Materials, Facilities and Transports), [1978] ECR 2151, para 35. 209 Opinion 2/00, above n 140, para 17. 210 See P Koutrakos, ‘Legal Basis and Delimitation of Competence in EU External Relations’ in M Cremona and B De Witte (eds), EU Foreign Relations Law- Constitutional Fundamentals (Oxford, Hart Publishing, 2008) 171, 172–74. 211 Cremona, above n 201, 10. 212 Case C-459/03 Commission v Ireland [2006] ECR I-4635. 208

66 Common Commercial Policy relations will be examined later in this book.213 At this juncture, suffice it to point out that, in fact, a declaration of competence does not always assist third countries in their understanding of who does what and who is responsible for what under EU law in the context of an international agreement.214 In Case C-411/05 Commission v Council the Grand Chamber of the Court reverted to a less controversial interpretation.215 The dispute was about the conclusion of the Basel Convention on the control of transboundary movements of hazardous waste and its disposal, signed in 1989. The Convention was concluded by the Union as an environmental measure under the precursor to Article 192 TFEU and the EU legislature adopted a regulation implementing it similarly under the same legal basis. A few years later, the Council and the Parliament updated this measure by means of Regulation 1013/2006 on shipments of waste which was also adopted as an environmental measure.216 The Regulation applied to shipment of waste both within the Union and between the Union and the rest of the world. The Commission challenged the latter Regulation and argued that it should have been adopted under both the CCP and the environmental policy legal bases because both its purpose and content related to trade and the protection of the environment and neither component could be considered as secondary to the other. The Grand Chamber of the Court rejected this argument. It held that the main objective of the Convention was to protect human health and the environment against the potentially adverse effects of cross-border shipments of waste. This was expressly acknowledged in the recitals of the Regulation, none of which referred to the pursuit of objectives falling within the CCP. It was also confirmed by the content of the Regulation which established a mechanism centred on the prior written notification and consent procedure. Consistent with Opinion 2/00, the Court described this as a typical instrument of environmental policy. The legislative context of Regulation 1013/2006 was also viewed as underlining its environmental dimension. It was adopted in order to implement the Basel Convention, a predominantly environmental law measure which had been characterised by the WTO itself as a multilateral environmental agreement. It was also adopted in order to update a regulation, the adoption of which as an environmental measure had been endorsed by the Court of Justice.217 As for the shipment of waste itself, Regulation 1013/2006 did not distinguish between waste shipped for commercial purposes and waste shipped for other purposes: the prior written notification and consent procedure applied across the board in order to protect against risks to human health and the environment applied to such shipments. This overview of the case-law on the links between external trade and environmental policies illustrates three points. First, as a matter of law, the rules governing the choice of legal basis appear clear and aim to rule out subjective factors that may undermine the carefully calibrated institutional balance in the Union constitutional order. On the one hand, the choice of legal basis is to be based on objective criteria amenable to judicial review and, on the other hand, in relation specifically to external trade, a Union measure 213

See Chapter 5. On the declarations of competence, see J Heliskoski, ‘EU Declarations of Competence and International Responsibility’ in M Evans and P Koutrakos (eds), The International Responsibility of the European Union— European and International Perspectives (Oxford, Hart Publishing, 2013) 189. 215 Case C-411/06 Commission v Parliament and Council [2009] ECR I-7585. 216 [2006] OJ L190/1. 217 See Case C-187/93 Parliament v Council [1994] ECR I-2857. 214

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falls within the competence in the field of the common commercial policy provided for in Article [207 TFEU] only if it relates specifically to international trade in that it is essentially intended to promote, facilitate or govern trade and has direct and immediate effects on trade in the products concerned.218

Secondly, the application of these principles as a matter of practice is far from straightforward. The case-law examined in this section does not provide the clarity that the constitutional implications of the choice of legal basis would warrant and that the institutional actors involved in the decision-making process would expect. This problem becomes more pronounced in the light of the vague wording of Article 207(1) TFEU and its procedural and normative character which render this provision too difficult for the Commission to resist as a sole legal basis. Thirdly, the constantly evolving international geopolitical and economic environment and its interdependent nature render strict categorisations of legal measures somewhat elusive and challenge our natural quest for certainty in legal basis queries. They also make lawyers all the more uneasy given the political underpinnings of this area: as in the Union legal order the institutional balance is ill-defined and, at times, incrementally redefined, the choice of legal basis is, in any case, a potentially politicised matter.219

11.3 The CCP and Other External Economic Policies A question that often arises is whether there should be strict correlation between each and every provision of an international agreement and the legal bases for the conclusion of the latter, or whether it is the intensity of the obligations imposed by these provisions which would determine the need to include the corresponding legal basis. The Court dealt with this issue in Case C-268/94 Portugal v Council.220 Portugal challenged Council Decision 94/578 concluding the Cooperation Agreement with India on Partnership and Development.221 That Decision had been adopted by qualified majority voting pursuant to ex Article 133 EC (now Article 207 TFEU) and ex Article 181 EC (now Article 209 TFEU). Portugal objected to a number of clauses contained in the Agreement for which, it argued, the EC Treaty provisions on the CCP and development cooperation did not endow the Community with competence. These clauses provided for respect for human rights and democratic principles, cooperation in the areas of energy, tourism and culture, drug abuse control, and intellectual property. In relation to the human rights clause, Portugal claimed that it should have been adopted by the Community only unanimously pursuant to ex Article 308 EC (now Article 358 TFEU). Whilst accepting the significance of respect for human rights and acknowledging the reference to it in the EC Treaty, Portugal argued that the latter specified no powers of action. The human rights clause constituted an essential element of the Cooperation Agreement with India. Portugal argued that such a provision was contrary 218 Case C-347/03 Regione autonoma Friuli-Venezia Giulia and ERSA, n 189 above, para 75 and Joined Cases C-402/05P and C-415/05 P Kadi and Al-Barakaat [2008] ECR I-6351, para 183. 219 See H Cullen and A Charlesworth, ‘Diplomacy by Other Means: The Use of Legal Basis Litigation as a Political Strategy by the European Parliament and Member States’ (1999) 36 Common Market Law Review 1243. 220 Case C-268/94 Portugal v Council [1996] ECR I-6177 annotated by S Peers (1998) 35 Common Market Law Review 539. 221 [1994] OJ L223/23.

68 Common Commercial Policy to the programmatic nature of the statements included in the EC Treaty in general and ex Article 130u(2) EC in particular. This argument was rejected by the Court, which pointed out that ex Article 177(2) EC required the Community to take account of the objective of respect for human rights when it adopts measures in the field of development cooperation. According to the Court, this wording entailed that the Community should adapt its development policy to that requirement. The fact that respect for human rights had been rendered an essential element of an international agreement did not go beyond that requirement. The Court pointed out that respect for human rights was subordinate to development policy as it was merely one of the factors which ought to be taken into account before the Community exercised its right to suspend or terminate the Agreement with India. It also held that both the context and wording of the human rights clause made it clear that it did not constitute a specific field of cooperation provided for by the Agreement. In relation to the other specific forms of cooperation, Portugal argued that Member States retained competence in the areas of intellectual property, drug abuse control, tourism and culture; therefore, their inclusion in an international agreement by the Community required their participation. As to cooperation in the area of energy, in the absence of any specific provision, action could only be taken under ex Article 308 EC (now Article 358 TFEU). The Court acknowledged that the Community’s express competence in the area of development cooperation was complementary to that of the Member States. It then pointed out that the objectives of this policy as defined in the Treaty (ex Article 130u EC) were ‘broad’ and entailed action covering ‘a variety of specific matters’, in particular in the case of an agreement establishing the framework of such cooperation.222 In practical terms, this meant that to require a development cooperation agreement concluded between the Community and a non-member country to be based on another provision as well as on Article [177] and, possibly, also to be concluded by the Member States whenever it touches on a specific matter would in practice amount to rendering devoid of substance the competence and procedure prescribed in [ex] Article [177 EC].223

It was for that reason that the Court ruled as follows: [T]he fact that a development cooperation agreement contains clauses concerning various specific matters cannot alter the characterization of the agreement, which must be determined having regard to its essential object and not in terms of individual clauses, provided that those clauses do not impose such extensive obligations concerning the specific matters referred to that those obligations in fact constitute objectives distinct from those of development cooperation.224

The Agreement with India provided the framework of cooperation between the parties and did not define specific courses of action: ‘[T]hose provisions establishing the framework of cooperation between the contracting parties  ... contain nothing that prescribes in concrete terms the manner in which cooperation in each specific area envisaged is to

222

n 220 above, para 37. Ibid, para 38. 224 Ibid, para 39. 223

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be implemented’.225 In relation to other provisions of the Agreement which suggest the possibility of further cooperation in specific areas, the Court noted the following:226 The mere inclusion of provisions for cooperation in a specific field does not  … necessarily imply a general power such as to lay down the basis of competence to undertake any kind of cooperation action in that field. It does not, therefore, predetermine the allocation of spheres of competence between the Community and the Member States or the legal basis of Community acts for implementing cooperation in such field.

In examining the specific clauses to which Portugal had objected, the Court concluded that, on the one hand, they served the objectives of development cooperation policy and, on the other hand, they could be concluded under the legal basis for that policy as they merely set out a framework for cooperation. This was the case with the clauses on energy, tourism and culture. As for the clauses on drug abuse control, the Court pointed out that the production of narcotics, drug abuse and related activities could constitute serious impediments to economic and social development. The relevant provisions laid down in the Agreement with India were properly concluded under the legal basis of development cooperation because they merely provided for a declaration of intent. Finally, the clause providing for the improvement in protection of intellectual property rights was relevant to the EC Treaty objective of smoothly and gradually integrating the developing countries into the world economy. As for its content, it merely laid down an obligation ‘of a very limited scope and is ancillary in nature, even in relation to the substance of intellectual property protection’.227 In the EC–India Cooperation judgment the Court construed the scope of development cooperation, and therefore the scope of the Community’s shared competence in the area, in broad terms.228 This is an approach that is borne out in subsequent case-law.229 However, this is not unqualified. The judgment ignored the enthusiastic statements about the protection of human rights as part of development cooperation advanced by Advocate General La Pergola230 and used rather general and non-prescriptive language about quite how the objective of respect for human rights ought to be given substance in the agreement. In this respect, it is interesting that the starting point for the relevant part of the judgment is expressed in negative terms: the ‘mere fact’ that the human rights clause constituted an ‘essential element’ of the Agreement did ‘not justify the conclusion that that provision [went] beyond the objective stated in [ex] Article [172 EC]’. Similarly, the inclusion in the Agreement of the other contested clauses was sanctioned because their content entailed no specific legal duty or course of action. The emphasis on their 225

Ibid, para 45. Ibid, para 47. Ibid, para 75. Art 10 of the Agreement with India provided as follows: ‘The Contracting Parties undertake to ensure as far as their laws, regulations and policies allow that suitable and effective protection is provided for intellectual property rights, including patents, trade or service marks, copyright and similar rights, geographical designations (including marks of origin), industrial designs and integrated circuit topographics, reinforcing this protection where desirable. They also undertake, wherever possible, to facilitate access to the data bases of intellectual property organizations’: [1994] OJ L223/24. 228 In his Opinion, AG La Pergola had argued that ‘it is clear that the objectives laid down in Article [177 EC] reflect a complex vision of development, the product of interaction between its economic, social and political aspects’: Case C-268/94 Portugal v Council, n 220 above, para 13. 229 See Case C-403/05 Parliament v Commission (Philippines Borders) [2007] ECR I-9045 and Case C-91/05 Commission v Council (ECOWAS) [2008] ECR I-3651. See the analysis in Chapter 14. 230 Case C-268/94 Portugal v Council, n 220 above, para 29 of his Opinion. 226 227

70 Common Commercial Policy limited effect underpinned the entire judgment. After all, as the Court underlined, the Agreement with India was a framework agreement which merely set out the context within which specific cooperation was to be carried out. This approach reflects the Court’s reluctance to construe external competence so broadly as to affect the constitutional balance of powers in internal decision-making: the Court noted that the contested clauses did not constitute ‘general enabling powers for their implementation’.231 There are two threads which link this judgment with other strands of EU international relations law. First, another express competence, ie the CCP, had also been construed in Opinion 1/94 in such a manner as to address the concern about the parallelism between the exercise of external competence and the internal rules and procedures. Secondly, in practical terms, the judgment facilitates the exercise of the Union’s concurrent competence on a pragmatic basis, reflecting the multifarious dimensions of both external policy objectives and policy-making: it is recalled that the exercise of exclusive external competence in the CCP was sanctioned even when it included ancillary provisions for the organisation of purely consultative procedures.232 The broad scope of development cooperation has been acknowledged by the Union’s policy-makers over the years. This becomes apparent in The European Consensus on Development, a document drawn by the Council, the Commission, the Parliament, and the representatives of the governments of the Member States meeting within the Council,233 where the various political, economic, social and security dimensions of development are set out. This broad construction has given rise to legal basis disputes, in particular regarding the relationship between development cooperation and security and defence policy. These are examined in Chapter 14. It has also questioned the principles set out in the EC–India Cooperation judgment. These principles were applied to the Partnership and Cooperation Agreement with the Philippines in Case C-377/12 Commission v Council.234 The Agreement was mixed and signed in 2012 pursuant to a variety of legal bases: Articles 207 TFEU (CCP), 209 TFEU (development cooperation), 91 TFEU and 100 TFEU (transport), 191(4) TFEU (environment), and 79(3) TFEU (readmission of third-country nationals). In relying upon these provisions, the decision signing the Agreement deviated from the Commission’s proposal which had suggested that the CCP and development cooperation were the only relevant legal bases. This was the subject-matter of the annulment action brought by the Commission. Following the advice of Advocate General Mengozzi, the Grand Chamber of the Court agreed with the Commission. The starting point for the judgment was the wide construction of the scope of development cooperation. It was pointed out that, whilst its primary objective is the eradication of poverty, this policy also pursues the other objectives of the Union’s external action set out in Article 21(2) TEU, including fostering the sustainable economic, social and environmental development of developing countries.235 This was relied upon to address the main contention of the Council that treaty-making practice had evolved since the EC–India Cooperation judgment and that the Agreement 231

Ibid, para 67. See Opinion 1/94, n 65 above, at para 68 to which the ruling in C-268/94 Portugal v Council, n 220 above, referred in para 77. 233 [2006] OJ C46/1. 234 Case C-377/12 Commission v Council ECLI:EU:C:2014:1903. 235 Art 21(2)(d) TEU. 232

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with the Philippines could not be compared to the Agreement with India. The Court pointed out that the notion of development had evolved too and, to that effect, referred to the European Consensus on Development which construes development in broad terms and anchors it on sustainable development activities. The Court, then, stressed the central role of development in the Agreement with the Philippines. Whilst the word ‘development’ does not appear in the title and is the subject of only one article, the preamble, general objectives and other provisions of the Agreement leave no doubt about it. As for the provisions of the Agreement on environmental protection, transport and readmission of third-country nationals, the Court held that these were couched in such terms as to make it clear that they contributed to the pursuit of the objectives of development cooperation. In addition, the extent of the duties they set out was narrow. For instance, the transport and environmental provisions referred to declarations of the parties on the aims that their cooperation should pursue without determining in specific terms the manner of implementation. As for the readmission of nationals of the parties, whilst specific obligations were mentioned in Article 26(3) of the Agreement, there were no detailed provisions about their implementation. In fact, Article 26(4) of the Agreement merely commits the parties to conclude a readmission agreement very soon. Therefore, the provisions on transport, environmental protection and readmission of nationals of the contracting parties ‘do not contain obligations so extensive that they may be considered to constitute objectives distinct from those of development cooperation that are neither secondary nor indirect in relation to the latter objectives’. In the Philippines Agreement the mixed nature of the Agreement was not in dispute. Instead, it was the addition of a number of legal bases to the CCP and development cooperation provisions which was challenged. The principles set out in the EC–India Cooperation judgment were not changed and applied to the Union’s concurrent competence to carry out a development cooperation policy, even though the latter was construed ever more broadly. And whilst the logic of the EC–India Cooperation Agreement judgment remains intact, so does our uncertainty about its precise implications: whilst we know which type of commitment would not necessitate reliance upon a specific legal basis, we are still not clear as to what type of provision would.

12. CONCLUSION Conclusion

The Lisbon Treaty reforms the CCP in various ways. First, it streamlines the provisions of Article 207 TFEU significantly. By abandoning the disconcertingly complex set of rules previously laid down under the Nice Treaty, it makes for a more coherent set of rules. Secondly, it expands the scope of the CCP by bringing fully within it services, the commercial aspects of intellectual property and foreign direct investment, hence developing substantially the process which had started timidly and somewhat ambiguously at Amsterdam. Thirdly, it adjusts the CCP to the constantly evolving international trade environment, it highlights the outward nature of the policy, and reflects the evolution of its scope articulated early on by the Court of Justice in its case-law, which laid down the foundations of CCP. The analysis in this chapter illustrated how the development of the legal framework governing the CCP has been a continuous and incrementally developed process which

72 Common Commercial Policy has been shaped as much by the drafters of the Union’s primary rules as by the case-law of the Court of Justice. Already apparent in relation to the articulation and interpretation of the principle of exclusivity, the role of the Court also emerged clearly in the light of Opinion 1/94 and its impact on the reform of CCP. It is worth recalling that the reception to Opinion 1/94, whose conclusions were subsequently affirmed in the Public Procurement Agreement judgment,236 was hostile.237 It was seen as ‘fatal for the coherence of the Union’238 and, famously, a ‘programmed disaster’.239 Pescatore’s attack was quite violent: the Court’s analysis was seen as ‘lopsided’, its logic ‘disconcerting’ and its arguments ‘microscopic’.240 The Court’s conclusions were seen as a step back with respect to the definition of the CCP because, whilst repeating earlier statements about a wide interpretation, they rendered them redundant in practice.241 In essence, the criticism levelled against the Court was focused on the following two charges: first, the Court adopted an inward approach in defining the scope of CCP which ignored both the context of the agreements concluded under the umbrella of WTO and the evolution of that framework; secondly, the construction of CCP was interpreted in such narrow terms as to undermine the effective pursuit of the Union interest on the international scene. It cannot be denied that, set against earlier case-law, the ruling in Opinion 1/94 is characterised by a shift of emphasis: the former was focused on the establishment of the normative foundation of the CCP through the principle of exclusivity and the consolidation of its dynamic construction within an evolving international framework; the latter is focused on the internal constitutional ramifications, ie within the Union legal order, of that construction in a particular case. This shift of emphasis might be seen to confirm the assumption, widely shared in the late 1980s and 1990s, that the Court responded to the progress towards the establishment of the internal market by adopting a more cautious approach to the construction of the powers of the Community.242 However, the above shift could also be seen as an adjustment of the earlier principles to their proper constitutional setting. In essence, the main premise of Opinion 1/94 is the Court’s refusal to separate the exercise of the powers conferred by Article 207 TFEU from the internal system of the Union and the division of powers established therein. This should not have come as a surprise. After all, the introduction of the main principles 236 Case C-360/93 Parliament v Council [1996] ECR I-1195 annotated by M Cremona in (1997) 34 Common Market Law Review 389 and AJ Halford in (1996) 21 European Law Review 478. 237 See eg A Appella, ‘Constitutional Aspects of Opinion 1/94 of the ECJ concerning the WTO Agreement’ (1996) 45 International and Comparative Law Quarterly 440; N Emiliou, ‘The Death of Exclusive Competence?’ (1996) 21 European Law Review 294; D Chalmers, ‘Legal Base and the External Relations of the European Community’ in N Emiliou and D O’Keeffe (eds), The European Union and World Trade Law after the GATT Uruguay Round (Chichester, Wiley, 1996) 46, 59–60; T Flory and FP Martin, ‘Remarques à propos des Avis 1/94 et 2/92 de la Cour de Justice des Communautés Européennes au regard de la Notion de Politique Commerciale Commune’, [1996] Cahiers de Droit European 376; M Hilf, ‘The ECJ’s Opinion 1/94 on the WTO—No Surprise, but Wise?’ (1995) 6 European Journal of International Law 45. 238 A Maunu, ‘The Implied External Competence of the European Community after the ECJ Opinion 1/94— Towards Coherence or Diversity?’ (1995) 22 Legal Issues of Economic Integration 115, 124. 239 P Pescatore, ‘Opinion 1/94 on Conclusion of the WTO Agreement: Is There an Escape from a Programmed Disaster? (1999) 36 Common Market Law Review 387. 240 Ibid, 401, 398 and 400 respectively. 241 JHJ Bourgeois, ‘The EC in the WTO and Advisory Opinion 1/94: An Echternach Procession’ (1995) 32 Common Market Law Review 763, 779. 242 See the argument about ‘legal minimalism’ underpinning the Court’s case-law in T Koopmans, ‘The Role of Law in the Next Stage of European Integration’ (1986) 35 International and Comparative Law Quarterly 925.

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of the CCP was based on the express link between that policy and the internal market: the exclusive nature of Union competence, for instance, had been read into Article 207 TFEU because the policy laid down in that provision ‘is conceived  … in the context of the operation of the Common Market, for the defence of the common interests of the Community’;243 a restrictive interpretation of the CCP had been rejected because it ‘would risk causing disturbances in intra-Community trade by reason of the disparities which would then exist in certain sectors of economic relations with non-member countries’.244 Viewed from this angle, the constitutional approach underlying the reasoning in Opinion 1/94 amounts to no more than bringing the main tenets of earlier case-law, ie the main principles of the CCP, to their logical conclusion. An external commercial policy dissociated from the internal system of the Union would lead, inevitably, to a construct developed far beyond the system to which it owed its existence. This would entail a fundamental change in the logic underlying that system, which would, then, become an independent policy aimed at accommodating the development of international trade rather than enabling the Union to respond to them in a manner consistent with its constitutional structure. This is the main flaw in the sustained attack against Opinion 1/94. For instance, the argument that the Court ignores the context of WTO Agreements and the evolution of the framework they established245 approaches the CCP as an independent, fully fledged policy originating in a constitutional vacuum. More importantly, it requires that the Court act as an international tribunal entrusted with the task of furthering the development of international trade, whereas, in fact, its function is only related to the application of EU law. Therefore, what was viewed as ‘inward-looking vision’ in the Court’s reasoning246 constituted no more than the performance of the function laid down in Article 19(1) TEU and the judicial acknowledgement of the constitutional parameters of the conduct of EU international relations. There is another problem with the above criticism against the Court in that it treats the CCP as the only legal framework within which the Union may carry out its external relations. It is a truism that the decision-making procedure for the CCP laid down in the Treaty at the time and the exclusive competence of the Union facilitated such action considerably. However, account should be taken of the extent to which the legal alternative to CCP, ie the negotiation, conclusion and implementation of international agreements pursuant to the formula of mixity, could provide a viable framework for the conduct of external relations. Prior to the development of the main characteristics of the CCP, the Court had already introduced the existence of the Union’s implied competence in the AETR case and had recognised the conditions under which it could be rendered exclusive.247 The CCP was not the only strand of the Union’s external action that developed gradually and incrementally. In parallel, other external policies, such as in the area of development and environment, developed over the years. Viewed from this broad perspective, the emphasis on the ‘devastating’ and ‘catastrophic’ consequences

243

Opinion 1/75, n 8 above, 1363–64. Opinion 1/78, n 11 above, para 45. 245 See Bourgeois, n 241 above; Pescatore, n 239 above. 246 Pescatore, ibid, 391. 247 Case 22/70 Commission v Council [1971] ECR 263. 244

74 Common Commercial Policy of the ruling248 were exaggerated, but also highly questionable in so far as it viewed the construction of the CCP in isolation from the overall system of EU external relations. The impact of the Court of Justice in the process of shaping the normative features and substantive contours of the CCP should be viewed in tandem with the role of the Union’s legislature in the process of gradually reforming the legal framework governing this policy. These two central actors in the EU constitutional life have been in a constant dialogue as to how best to adjust the Union’s external trade policy in a manner that would respond to the changing international trade environment whilst reflecting the constitutional idiosyncrasies of the EU.249 Their interactions will also emerge as a central theme in the development of the Union’s external implied competence. This is the subject-matter of the following chapter.

248 249

Pescatore, n 239 above, 389. See the analysis in De Baere and Koutrakos, n 123 above.

Implied Competence

3 Implied Competence 1. INTRODUCTION Introduction

T

HE ANALYSIS IN this book has focused so far on express external competence in general and, in particular, the CCP, one of the very few areas where the Union has been endowed with express competence to act since the establishment of the European Economic Community under the Treaty of Rome. This chapter will analyse the circumstances under which the Union’s external competence may be implied. The existence of the implied competence of the Union to act externally, along with the legal implications of its exercise, has formed the subject-matter of a line of rulings by the European Court of Justice stretching back to the early 1970s. Whilst not quite voluminous, the relevant case-law has given rise to controversy as to its repercussions and even more considerable academic debate as to its precise meaning. It has also led to its acknowledgement in primary rules by the Lisbon Treaty, albeit in a manner that raises many questions. This chapter will tell this story by examining the relevant provisions of the Lisbon Treaty and by analysing the genesis, development and application of the principle of implied competence by the Court of Justice.

2. COMPETENCE TO CONCLUDE INTERNATIONAL AGREEMENTS IN THE LISBON TREATY Competence to Conclude International Agreements in the Lisbon Treaty

Some stories need to be told from the end. The application of the principle of the implied competence of the Union to negotiate and conclude international agreements is such a story and the analysis in this chapter starts with the Lisbon Treaty. It is recalled that the Declaration on the Future of the Union, annexed to the Nice Treaty, identified four issues on which reform should be undertaken, one of which was about ‘how to establish and monitor a more precise delimitation of powers between the European Union and the Member States, reflecting the principle of subsidiarity’.1 This was taken up by the Laeken Declaration on the Future of the European Union which stressed that ‘the important thing is to clarify, simplify and adjust the division of competence between the Union and the Member States in the light of the new challenges facing the Union’.2 It was in this context that the Treaty of Lisbon inserted for the first time provisions on the competence of the EU to conclude international agreements in general.3 These 1

Declaration 23 on the future of the Union, Treaty of Nice [2001] OJ C80/1. Presidency Conclusions of the Laeken European Council (14–15 December 2001): Annex I—Laeken Declaration on the Future of the European Union, 3. 3 The competence to conclude association agreements had been expressly granted under the Treaty of Rome (the current legal basis is provided in Art 217 TFEU). 2

75

76 Implied Competence are intended to answer the questions: when does the Union have the competence to conclude an international agreement? And when is this competence exclusive? The former question is addressed in Part V of the TFEU, which brings together all the provisions about the Union’s external action and, in particular, in Article 216(1) TFEU. This reads as follows: The Union may conclude an agreement with one or more third countries or international organisations where the Treaties so provide or where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union’s policies, one of the objectives referred to in the Treaties, or is provided for in a legally binding act of the Union or is likely to affect common rules or alter their scope.

The question about the circumstances under which the Union is endowed with exclusive competence to conclude an international agreement is addressed in Article 3 TFEU. Having set out in the first paragraph the policy areas where the competence of the Union is exclusive, Article 3(2) TFEU reads as follows: The Union shall also have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or insofar as its conclusion may affect common rules or alter their scope.

Therefore, the Lisbon Treaty introduces two provisions about the external competence of the Union, one about its existence (Article 216(1) TFEU) and another about its nature (Article 3(2) TFEU). Their wording is similar but by no means identical. The wording is also quite vague. For instance, when is the conclusion of an international agreement ‘necessary’ for the Union to exercise its internal competence? Is this the case when it makes it easier for the internal competence to be exercised? If so, on the basis of which criteria is this to be assessed? If not, what other conditions would need to be met? Similarly, when does the conclusion of an agreement by the Union ‘affect’ common rules? Is it when it makes their application more difficult? If so, what is the threshold of difficulty that is required to be met? If not, might it be when the scope of the agreement coincides with that of common rules? If so, should they coincide completely? And what is the definition of ‘common rules’? The interpretation of Articles 216(1) and 3(2) TFEU raises a host of such questions. These may not be addressed other than against the case-law of the Court of Justice. This is supported by the wording of these provisions which reproduces the formulation of some seminal principles articulated by the Court. It is also supported by the preparatory work of the Convention on the Future of Europe which led to the drafting of the Treaty Establishing a Constitution for Europe on which the Lisbon Treaty is based. The Working Group on External Action, which prepared the drafting of these provisions, pointed out that it ‘saw merit in making explicit the jurisprudence of the Court to facilitate the action of the Union in a globalised world, in particular when dealing with the external dimension of internal policies and action’.4 Therefore, the case-law of the Court constitutes the constant point of reference for the interpretation and application of Articles 216(1) and 3(2) TFEU. It is for this reason that 4 CONV 459/02, Final Report of Working Group VII on External Action (Brussels, 16 December 2002) para 18. See P Craig, The Lisbon Treaty—Law, Politics, and Treaty Reform (Oxford, Oxford University Press, 2010) 398–99.

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the examination of this case-law and the principles to which it has given rise ought to precede the analysis of the TFEU provisions.

3. THE FOUNDATION PERIOD: THE AETR PRINCIPLE The Foundation Period: The AETR Principle

The first time the implied competence of the Union to act in international relations was raised was in Case 22/70 Commission v Council (re: European Road Transport Agreement) (AETR).5 The subject-matter of this case was transport policy. The Member States had participated in the conclusion of the European Transport Road Agreement. This agreement regulated the work of crews engaged in international transport and was signed in 1970 under the auspices of the UN Economic Commission for Europe. The Member States passed a resolution within the Council stating that they would conclude the Agreement. The Commission challenged the legality of that measure, claiming that it was the Union which should conclude the agreement rather than the Member States; this argument was based on the assumption that competence in the field of transport had passed on to the Union following the adoption of Regulation 543/69 concerning the harmonisation of certain social provisions in the field of road transport.6 The AETR judgment introduced the principle of implied powers in the external action of the Union according to which the conferment of internal competence in a specific area of activities upon the EU by the Treaty implies the conferment of external competence in that area. The relevant extract of the judgment is worth citing in full: 12. In the absence of specific provisions of the Treaty relating to the negotiation and conclusion of international agreements in the sphere of transport policy—a category into which, essentially the AETR falls—one must turn to the general system of Community law in the sphere of relations with third countries. 13. Article 210 provides that ‘The Community shall have legal personality’. 14. This provision, placed at the head of Part Six of the Treaty, devoted to ‘General and Final Provisions’, means that in its external relations the Community enjoys the capacity to establish contractual links with third countries over the whole field of objectives defined in Part One of the Treaty, which Part Six supplements. 15. To determine in a particular case the Community’s authority to enter into international agreements, regard must be had to the whole scheme of the Treaty no less than to its substantive provisions. 16. Such authority arises not only from an express conferment by the Treaty—as is the case with Articles 113 [now 207 TFEU] and 114 [now deleted] for tariff and trade agreements and with Article 238 [now 272 TFEU] for association agreements—but may equally flow from other provisions of the Treaty and from measures adopted, within the framework of those provisions, by the Community institutions. 17. In particular, each time the Community, with a view to implementing a common policy envisaged by the Treaty, adopts provisions laying down common rules, whatever form these may take, the Member States no longer have the right, acting individually or even collectively, to undertake obligations with third countries which affect those rules. 5 6

Case 22/70 Commission v Council (re: European Road Transport Agreement) [1971] ECR 263. [1969] OJ L77/49 (subsequently repealed by Council Reg 3820/85 [1985] OJ L370/1).

78 Implied Competence 18. As and when such common rules come into being, the Community alone is in a position to assume and carry out contractual obligations towards third countries affecting the whole sphere of application of the Community legal system. 19. With regard to the implementation of the provisions of the Treaty the system of internal Community measures may not therefore be separated from that of external relations. 20. Under [ex] Article 3(e), the adoption of a common policy in the sphere of transport is specially mentioned amongst the objectives of the Community. 21. Under Article 5 [now Article 4(3) TEU], the Member States are required on the one hand to take all appropriate measures to ensure fulfilment of the obligations arising out of the Treaty or resulting from action taken by the institutions and, on the other hand, to abstain from any measure which might jeopardize the attainment of the objectives of the Treaty. 22. If these two provisions are read in conjunction, it follows that to the extent to which Community rules are promulgated for the attainment of the objectives of the Treaty, the Member States cannot, outside the framework of the Community institutions, assume obligations which might affect those rules or alter their scope. 23. According to Article 74 [now Article 94 TFEU], the objectives of the Treaty in matters of transport are to be pursued within the framework of a common policy. 24. With this in view, Article 75 (1) [now Article 95(1) TFEU] directs the Council to lay down common rules and, in addition, ‘any other appropriate provisions’. 25. By the terms of subparagraph (a) of the same provision, those common rules are applicable ‘to international transport to or from the territory of a Member State or passing across the territory of one or more Member States’. 26. This provision is equally concerned with transport from or to third countries, as regards that part of the journey which takes place on Community territory. 27. It thus assumes that the powers of the Community extend to relationships arising from international law, and hence involve the need in the sphere in question for agreements with the third countries concerned. 28. Although it is true that Articles 74 [now Article 90 TFEU] and 75 [now Article 95 TFEU] do not expressly confer on the Community authority to enter into international agreements, nevertheless the bringing into force, on 25 March 1969, of Regulation no 543/69 of the Council on the harmonization of certain social legislation relating to road transport (OJ L 77, p 49) necessarily vested in the Community power to enter into any agreements with third countries relating to the subject-matter governed by that Regulation. 29. This grant of power is moreover expressly recognized by Article 3 of the said Regulation which prescribes that: ‘the Community shall enter into any negotiations with third countries which may prove necessary for the purpose of implementing this Regulation’. 30. Since the subject-matter of the AETR falls within the scope of Regulation no 543/69, the Community has been empowered to negotiate and conclude the agreement in question since the entry into force of the said Regulation. 31. These Community powers exclude the possibility of concurrent powers on the part of Member States, since any steps taken outside the framework of the Community institutions would be incompatible with the unity of the common market and the uniform application of Community law.

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The Court makes a distinction between the ‘capacity’ of the Community to negotiate and conclude international agreements and its ‘authority’ to do so: the former stems from the Community’s legal personality; the latter refers to whether it is legally possible for the Community to exercise this authority in relation to a specific subject-matter and is determined on the basis of specific provisions of primary and secondary EC law. From a theoretical perspective, this distinction, elaborated upon in the judgment as the starting point for the introduction of the principle of implied powers, is significant: it aims at reconciling that principle with that of limited powers currently laid down in Article 5(2) TEU. Whilst the Union ‘shall act within the limits of the powers conferred upon it by the Member States in the Treaties to attain the objectives set out therein’, the Court seeks to assuage fears that the principle of implied powers would lead to the extension of the Union’s competence.7 Central to the operation of the principle of implied competence is the distinction between the issue of the existence and nature of that competence. The former indicates whether, consistently with the principle of limited powers, the Union has the authority, ie the competence, to conclude an international agreement: the latter determines whether that competence is exclusive or merely coexistent with a parallel competence enjoyed by the Member States. This is a distinction to which the AETR judgment does not appear to adhere very strictly. Indeed, the judgment is surprising short on its analysis of the existence of implied competence and the circumstances in which this may arise. A close analysis of the judgment will reveal that this is not its only shortcoming.

3.1 The General Formulation: Existence and Nature of the Competence (paragraphs 15–19) Having stated that the Union’s competence to act externally ‘may flow’ from primary or secondary EU law, the Court sought, in just one paragraph, to define the fundamental parameters of the principle of exclusivity. On the one hand, it addressed the question when is the Union’s implied competence exclusive, the answer to which is ‘each time the EU, with a view to implementing a common policy envisaged by the Treaties, adopts provisions laying down common rules, whatever form these may take’; on the other hand, in explaining what exclusivity means, it held that ‘the Member States no longer have the right, acting individually or even collectively, to undertake obligations with third countries which affect those rules’. The corollary of this was spelled out in the following paragraph, hence bringing the point home: ‘[T]he Community alone is in a position to assume and carry out contractual obligations towards third countries affecting the whole sphere of application of the Community legal system.’ These two paragraphs leave open as many questions as they seek to answer. First, is the term ‘common policy envisaged by the Treaty’ in relation to which the Union’s authority may become exclusive to be interpreted literally? If the answer is affirmative, the implications of exclusivity would be very limited indeed, as it would be confined to the common agricultural and transport policies. However, it is not only for the effet utile of this new doctrine that this question should be answered in the negative: according to 7 A Dashwood and J Heliskoski, ‘The Classic Authorities Revisited’ in A Dashwood and C Hillion (eds), The General Law of EC External Relations (London, Sweet & Maxwell, 2000) 3, 7.

80 Implied Competence the judgment, it is only ‘in particular’ with regard to a common policy that the Union’s authority may become exclusive. This implies that other instances are envisaged. Secondly, the opening words of paragraph 17 as to when exclusivity may arise raise another question: exactly how wide is the scope for the implied competence to become exclusive? In other words, is exclusivity dependent upon the adoption of ‘provisions laying down common rules’ or may it arise independently of the adoption of secondary legislation? Are there Treaty provisions which may constitute the inherent source of external competence which is both implied and exclusive? Are there circumstances under which the implied competence conferred by an EC Treaty provision or secondary legislation, whilst initially shared, should be exercised exclusively by the Union? Thirdly, what is the scope of ‘common rules’ that may give rise to exclusivity? Should they completely harmonise the subject-matter they intend to cover? The determination of this issue was directly relevant to the assessment of the impact of exclusive implied competence, all the more so in the light of the regulatory model prevailing at that time. Indeed, when the Court delivered the judgment in AETR, the establishment of the internal market was based on the notion of complete harmonisation which underpinned the introduction of secondary legislation. Is this what the term ‘common rules’ entailed? And if so, is its definition static or should it vary according to the regulatory mode prevailing at the time? If the latter were the case, then to define that term so as to encompass the model of minimum harmonisation followed in the mid-1980s would be tantamount to construing exclusivity in rather wide terms. Would such an interpretation be appropriate merely on the basis of a judgment delivered in quite opaque terms in the early 1970s? Fourthly, what exactly are the implications of exclusivity on Member States in practical terms? Whilst the judgment views its effect arising ‘as and when  … common rules come into being’, it does not define quite how national action should affect common rules. It is clear that Member States are prevented from assuming international obligations which would undermine the existing obligations of the Union or its negotiating position. But what about obligations which, when assumed by the Member States, do not raise any threat whatever for the Union’s interests? Is the possibility of a future conflict sufficient to deprive Member States of their freedom to engage in contractual relations with third countries in areas where the EU has adopted ‘common rules’? If so, would that mean that there would be no scope whatever for Member States to act in a field occupied by common rules? In other words, how severe are the legal implications of exclusivity actually in terms of their effect on the positions of the Member States? Fifthly, what exactly is the source of the existence of the Union’s implied competence? Is it the EC Treaty provision itself enabling the Union to act internally from which the external competence ‘flows’? In its judgment, the Court refers to Treaty provisions not expressly providing for external competence ‘and … measures adopted, within the framework of those provisions, by the Community institutions’.8 If the existence of external competence were implied from Treaty provisions, why was the reference to secondary law adopted pursuant to those provisions necessary? Would it not be more accurate to argue that the external competence may flow from either primary or secondary EU law? The reference to ‘common rules’ in the subsequent paragraph seems to suggest that ‘measures adopted within the framework of  … other provisions of the Treaty’ would be 8

n 5 above, para 16

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relevant to the nature of the Union’s competence rather than its existence, hence determining whether it would be exclusive or not. The above questions notwithstanding, the raison d’être of exclusivity lies in the link between secondary law adopted internally and external relations: the former may not be separated from the latter. This abstract formulation of the principle of implied powers is followed by three paragraphs in which a reformulation, adjusted to Treaty provisions, is being presented. However, this reformulation is even less revealing than the original one. On the basis of the insertion of transport policy amongst the Treaty objectives and the duty of cooperation laid down in Article 4(3) TEU, the Court infers that ‘Member States cannot, outside the framework of the Community institutions, assume obligations which might affect [those Community rules promulgated for the attainment of Treaty objectives] which might affect those rules or alter their scope’.9 The above extract is puzzling in so far as it puts forward a construction of exclusivity which differs from that already laid down in paragraph 17: according to the former, Member States would be prevented from ‘assum[ing] obligations which might affect [EU rules] or alter their scope’; according to the latter, Member States would be prevented from undertaking obligation which ‘affect [common] rules’. Two definitions of the same duty in six brief consecutive paragraphs are rather puzzling. Furthermore, it is not immediately apparent why the above construction of exclusivity ‘follows’ from a combined reading of ex Article 3 EC (which set out transport policy as a Community objective) and the duty of cooperation (currently set out in Article 4(3) TEU); this is all the more so in the light of the construction of exclusivity in relation to ‘Community rules promulgated for the attainment of the objectives of the Treaty’ rather than ‘common rules’. Apart from further obscuring the requirements for and implications of exclusivity, the above extract from the AETR judgment adds to the theoretical foundation of the principle of implied powers by referring to Article 4(3) TEU. The reference to the duty of solidarity serves two purposes: on the one hand, it justifies the apparently severe implications of exclusivity by rendering it an extension of the core of national duties under primary EU law; on the other hand, it adds yet another layer to the constitutional foundation of the exclusive nature of the Union’s implied competence.

3.2 The Application of the Principle (paragraphs 23–31) What follows in paragraphs 23–31 of the judgment is the application of the principle on the basis of the specific EU provisions on transport. Perhaps not unsurprisingly, this part of the judgment is as fraught with problems as these preceding it. The Court refers to two types of EU rules, namely the provisions of the Treaty on transport and Regulation 543/69. Whilst it acknowledges that the relevant Treaty provisions assume the extension of the Union’s power to cover the negotiation of international agreements, the Court goes on to argue that the adoption of Regulation 543/69 ‘necessarily vested in the Community power’ to negotiate agreements within the scope of that Regulation. In this part of the judgment, the Court appears to be referring to the issue of the existence of the implied competence of the Community. If that is the case, the question which is raised is why it deemed the reference to secondary legislation necessary. It had already been 9

n 5 above, para 22.

82 Implied Competence established that external competence need not be expressly conferred; does it not follow that such competence ‘flows’ from the transport legal basis in the Treaty , all the more so in the light of the reference in that provision to international transport? The adoption of Regulation 543/69 is relevant only to the assessment of the nature of Union’s competence and, yet, this is not what paragraphs 23–28 are about. Therefore, it is arguable that the reference to the adoption of Regulation 543/69 serves to reinforce the point about the existence of the Community’s competence. This appears to be supported by the wording of the following paragraph which refers to ‘this grant of power’ which ‘is moreover recognised by Article 3’ of the Regulation.10 If the power, that is to say the authority of the Community, followed from the transport legal basis in the Treaty, let alone ex Article 3 EC, was the reference to the specific provisions of the secondary measure necessary? It is suggested that the answer is negative: not only is reference to that provision the very last reference of the Court, but it was also viewed as ‘recognis[ing]’, ie not granting or conferring or even implying, the Union’s power. What makes that paragraph of the judgment all the more interesting is the specific content of Article 3 of that Regulation which enables the EU to negotiate with third countries, if that were to prove necessary, in order to implement Regulation 543/69. In other words, the specific legal context is presented in such a way as to leave no doubt as to the existence of the Union’s external competence: it ‘flows’ from primary law and is ‘expressly recognised’ by secondary law. And yet, the Court goes on to state that the EU had been ‘empowered’ to negotiate the AETR agreement since the entry into force of Regulation 543/69. This is as redundant in the context of the establishment of the Community’s implied competence as it is unhelpful for the determination of the latter’s nature. Instead, the explanation given for the exclusivity enjoyed by the Union in the area covered by Regulation 543/69 is devoid of any analysis: it follows from the existence of Community powers ‘since any steps taken outside the framework of the Community institutions would be incompatible with the unity of the Common Market and the uniform application of Community law’.11 The Court made no reference whatever to how collective action by the Member States would undermine the Union’s policies in the area covered by the Agreement.

3.3 An Overall Comment The introduction of the principle of implied powers has been described as ‘a purely judicial construction’.12 The teleological undertones of the concept, along with its implications for the right of the Member States to negotiate and conclude international agreements, are similar to the tone which had already defined the introduction of the major constitutional principles of the Union legal order. Indeed, the judgment in AETR should be examined in the broader context of the introduction of the principle of supremacy of EU law in Costa13 and direct effect in van Gen en Loos.14 Delivered in the very early 1970s, it followed from the constitutional milestones produced by the Court in order to 10

Emphasis added. n 5 above, para 31. A Dashwood, ‘Implied External Competence of the EC’ in M Koskenniemi (ed), International Law Aspects of the European Union (The Hague, Kluwer Law International, 1998) 113. 13 Case 6/64 Costa v ENEL [1964] ECR 585. 14 Case 26/62 van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1. 11 12

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consolidate the foundations of the new legal order which was in search of a normative identity.15 In fact, by articulating the exclusive nature of the Union’s implied external competence, the Court essentially applies the principle of supremacy broadly understood in so far as the exercise of the internal competence pre-empts Member States from acting either internally or externally.16 In the area of EU external relations, it is this feature which distinguishes the exclusive nature of express competence from that of implied competence: the former is deemed as an a priori concept which produces its legal effects irrespective of any Union action.17 Viewed from this angle, the introduction of the AETR principle and the provision for the exclusivity of the Union’s implied competence appear to be yet another illustration of the elaborate ‘response’ of the Court of Justice to the policy paralysis originating in the Luxembourg Accord. That infamous compromise, a deviation from primary law which lacked Treaty status, had occurred only six years earlier.18 In his earlier work, Weiler juxtaposed decisional supranationalism, ie transfer of powers from the Member States to the Community pursuant to secondary legislation, and normative supranationalism, ie empowerment of the Union structures pursuant to legal principles introduced by the Court; he showed how, in the period of legislative stagnation following the Luxembourg compromise, when decisional supranationalism was malfunctioning, the Court was quite active and innovative.19 Indeed, the case-law of that era was of major constitutional significance: the wide scope of the principle of supremacy of Union law had been clearly affirmed20 and its considerable implications for national courts spelled out;21 the principle of direct effect had already been introduced22 and would be extended to directives23 not too long after the AETR judgment. Therefore, the AETR judgment appeared to be linked organically with the constitutional case-law of the Court of that time. And yet, there is something deeply troubling about the lack of clarity and consistency of the line of reasoning followed in AETR: as has been pointed out, the part of the judgment dealing with the specific issue of competence to conclude the AETR agreement ‘reads as if separate versions had been written and then patched together rather untidily’.24 Indeed, in setting out the definition, scope and implications of the principle of implied powers, the AETR judgment follows three degrees of abstraction: first, it does not refer to any Treaty provision at all (paragraphs 15–18); secondly, it refers to the general provision of Article 3 which mentions transport amongst the Union’s objectives (paragraphs 20–22); finally, it refers to the specific primary and secondary rules on 15 For criticism of the principle and its foundations, see T Hartley, Constitutional Problems of the European Union (Oxford, Hart Publishing, 1999) 35 et seq. 16 For an analysis of this judgment, along with the subsequent line of case-law, as an illustration of the principle of pre-emption, see R Schütze, ‘Parallel External Powers in the European Community: From “Cubist” Perspectives Towards “Naturalist” Constitutional Principles?’ (2004) 23 Yearbook of European Law 225. 17 This would be made clearer in the subsequent ruling in Opinion 2/91 (re Convention No 170 ILO on safety in the use of chemicals at work) [1993] ECR I-1061. 18 See Bull EC 3–1966, 9. 19 See JHH Weiler, ‘The Community System: The Dual-Character of Supranationalism’ (1981) 1 Yearbook of European Law 267. 20 Case 11/70 Internationale Handelsgesellschaft v Einfuhrund Vorratstelle für Getreide und Futtermittel [1970] ECR 1125. 21 Case 106/77 Administrazione delle Finanze dello Stato v Simmenthal SpA (Simmenthal II) [1978] ECR 629. 22 Case 26/62 van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1; Case 9/70 Grad v Finanzamt Traunstein [1970] ECR 825. 23 Case 41/74 Van Duyn v Home Office [1974] ECR 1337. 24 Dashwood and Heliskoski, n 7 above, 7.

84 Implied Competence transport (paragraphs 23–31). This structure of the judgment, the underlying confusion between the issues of the existence and the nature of the Union’s implied competence and the lack of clarity as to the implications of the positions laid down in each of the above parts of the judgment, all make the whole very difficult to read. This is illustrated not only by the number of questions outlined above but also by the reception the new doctrine received. Pescatore even turned the confusion between existence and exercise which seemed to permeate the judgment into a principle. Writing in an extra-judicial capacity, he argued that: [I]t appears, on balance, that though the Court does by no means disregard the fact that a given agreement may in some of its parts pertain to the province of the Union and in part to the jurisdiction of the Member States, there is no place in the system for the construction of ‘concurrent’ or ‘parallel’ powers. In other words, whenever and so far as the matter belongs to the Community’s sphere, jurisdiction over it is exclusive of any concurrent power of Member States.25

This was a remarkable position to take as it was based on a homogenised conception of competence with no place for more subtle understanding of external relations. Admittedly, a fully articulated analysis of all the implications of a legal doctrine rarely accompanies its very introduction, desirable though this might be. After all, the function of a judgment is to apply the law to the specific set of circumstances surrounding a specific legal question; the full details of the implications of that doctrine may be irrelevant to the questions sought to be addressed by the Court and unknown to the judges at the time of the judgment. However, even with this qualification in mind, the inconsistencies in which the judgment in AETR is shrouded and the lack of coherence of its structure are striking. This is all the more so when assessed against the judgments introducing the main constitutional principles of Union law which the AETR principle purports to follow. The overtly teleological approach, articulated in the early parts of Costa and van Gend en Loos, was clear in providing the foundation for the constitutionalisation of the EU legal order.26 Controversial though it may be, what Pescatore famously defined as ‘une certaine idée de l’Europe’27 provided those judgments with a degree of internal coherence which one is longing to find in AETR. The deficiencies of the judgment in AETR illustrate the highly controversial nature of the principles it sought to articulate. This had already become apparent before the Court. In his Opinion, Advocate General Dutheillet de Lamothe had asked the Court to declare the action inadmissible and concluded that ‘it appears clear from the general scheme of the Treaty of Rome that its authors intended strictly to limit the Community’s authority in external matters to the cases which they expressly laid down’.28 He objected to the construction of the precursor to Article 91 TFEU as the basis for implied external competence,29 arguing that the reference to ‘any other appropriate measures’ was too vague a term to be capable of bestowing such important and specific power to the Union. 25 P Pescatore, ‘External Relations in the Case-Law of the Court of Justice of the European Communities’ (1975) 12 Common Market Law Review 615, 624. 26 For the elements of this process, see C Timmermans, ‘The Constitutionalization of the European Union’ (2002) 21 Yearbook of European Law 1. 27 P Pescatore, ‘The Doctrine of “Direct Effect”: An Infant Disease of Community Law?’ (1983) 8 European Law Review 155, 157. 28 n 5 above, 293. 29 Ibid, 290.

The Foundation Period: The AETR Principle

85

Having pointed out that there were various Treaty provisions on commercial policy with general stipulations which were similar to that of the transport legal basis, he stated that ‘it is certain that the authors of the Treaty did not consider that such provisions were sufficient to provide a basis for a Community authority in external affairs’.30 He also argued, ‘albeit with some regret’,31 that not even the adoption of secondary legislation should be deemed as implying a corresponding external competence for the Union.32 This position was not unique. In the early days of European integration, one of its most prominent advocates, and a subsequent member of the Court which delivered the judgment in AETR, had argued for a restrictive reading of the external competence of the EU.33 The significance of the new principle was not lost on the wider public either: for instance, it was met with an editorial in Le Monde which expressed grave reservations about what was viewed as a supranational step par excellence.34 The specific challenges that the introduction of the principle of implied powers posed may also be understood in the light of another factor which placed the Court firmly within the territory of political controversy, namely the third states and international organisations with which the Union may enter into contractual relations. Whilst the application of constitutional principles and decision-making procedures in the internal sphere may be underpinned by legal disputes regarding the equilibrium of power between Members States and the EU, the involvement of third parties places these disputes in an entirely different context. It adds an international dimension which renders internal disputes about competence and procedure of a rather secondary nature. The legal obligations assumed by the Union and its Member States have specific legal consequences for the third countries and international organisations with which the EU negotiates; these consequences are not altered simply because of a dispute between the Community institutions or the Member States. The addition of this international dimension in the constitutionalisation of EU law introduces an element of irreversibility which renders the construction of the principles underlying the Union’s external relations all the more significant. Finally, when the Court of Justice delivered the AETR judgment, the first signs of the reactions that the principle of supremacy of Union law would provoke amongst national courts had appeared. The German Administrative Court had already referred the question of the relationship between Community law and the protection of human rights under national constitutional law and the Court had responded with the seminal Internationale Handelsgesellschaft judgment.35 That judgment was to place the symbiosis of the Court of Justice with the German Constitutional Court upon a basis of doctrinal ambivalence for a long period of time.36 30

Ibid. Ibid, 291. 32 Ibid, 291–2. 33 P Pescatore, ‘Les relations exterieures des communautés européennés’ (1961) 103/II Recueil des Cours de l’Academie de Droit International de la Haye 1, 97 which he later reconsidered expressly in n 25 above, at n 5. 34 Reference to that editorial in JA Frowein, ‘The Competences of the European Community in the Field of External Relations’ in J Schwarze (ed), The External Relations of the European Community, in particular EC–US Relations (Baden-Baden, Nomos, 1989) 29. 35 n 20 above. 36 See the judgment of the Federal Constitutional Court (Bundesverfassungsgericht) in Internationale Handelsgesellschaft v EVFG [1974] 2 CMLR 540. That period appeared to have come to an end with the judgment of the Bundesverfassungsgericht in Wüensche Handelsgesellschaft [1987] 3 CMLR 225, only to get into a new phase with the landmark judgment in Brunner v European Union Treaty [1994] 1 CMLR 57. On the relationship 31

86 Implied Competence The above considerations may explain the deficiencies of the reasoning and structure of the judgment in AETR. They may even suggest that the distinct emphasis of the judgment on the exclusive nature of the implied competence and its lingering confusion with the issue of existence might have been seen as necessary in order to buttress the introduction of this new principle in the Community legal order. The combined effect of these factors shed some light on the principal messages that the ruling in AETR conveys. First, the ‘system of external relations’37 of the Union is not immune to the constitutionalising process of the EU legal order. Instead, it is intertwined with the establishment of the internal market and stems from its regulation. Secondly, the reality of international relations may affect the application of legal principle. On the substance of the dispute, the Commission’s action was dismissed. The negotiations for the conclusion of the AETR Agreement were viewed by the Court as merely another part of the negotiating process which had already produced an agreement as early as in 1962, albeit one which had not been ratified. As Regulation 543/69 had not been adopted then, the competence of the Member States in the area covered by the Agreement had not been given up. Therefore, whilst the Agreement originated in and had been negotiated at a period when the Member States were competent in the area covered therein, at the time of its conclusion that competence had been transferred to the Union. However, this legal development had to be assessed in its factual context in relation to which the Court ruled as follows: At that stage of the negotiations, to have suggested to the third countries concerned that there was now a new distribution of powers within the Community might well have jeopardized the successful outcome of the negotiations, as was indeed recognized by the Commission’s representative in the course of the Council’ s deliberations.38

It was for that reason that the solution articulated in the Resolution challenged by the Commission was sanctioned and the action dismissed. The application of strict and broadly worded principles in a restrictive manner is not a novelty in the Court’s constitutional case-law. It is recalled, for instance, that the introduction of the controversial principle of direct effect of directives in Van Duyn was of no help to Mrs van Duyn.39 In their influential critique, Tridimas and Eeckhout showed that the balance between legal principle and pragmatism illustrated in AETR constituted a common theme underlying the Court’s case-law on EU international relations.40 In terms of this analysis, suffice it to point out the following: its deficient reasoning and problematic structure notwithstanding, the judgment in AETR made it clear that, in its international relations, the exclusive nature of the Union’s implied competence would not necessarily exclude the Member States from negotiating and concluding international agreements. This is a point which would re-emerge in subsequent case-law.

between the Court of Justice and national courts more generally, see M Claes, The National Courts’ Mandate in the European Constitution (Oxford, Hart Publishing, 2006) and A-M Slaughter, A Stone Sweet and JHH Weiler (eds), The European Court of Justice and National Courts: Doctrine and Jurisprudence (Oxford, Hart Publishing, 1998). 37 n 5 above, para 19. 38 Ibid, para 86. 39 Case 41/74 Van Duyn v Home Office [1974] ECR 1337. 40 T Tridimas and P Eeckhout, ‘The External Competence of the Community and the Case-Law of the Court of Justice: Principle versus Pragmatism’ (1995) 14 Yearbook of European Law 143.

Building upon the Foundation 87 4. BUILDING UPON THE FOUNDATION Building upon the Foundation

The messages conveyed by the judgment in AETR were also present in the judgment delivered in Joined Cases 3, 4 and 6/76 Cornelis Kramer and others.41 These were references from Dutch district courts about the application of the 1959 North East Atlantic Fisheries Convention. All but two of the then Member States were parties to the Convention the aim of which was ‘to ensure the conservation of the fish stocks and the rational exploitation of the fisheries of the North-East Atlantic Ocean and adjacent waters’. The Convention set out a specific institutional framework: a Fisheries Commission was established in order to make recommendations to the Contracting States on measures falling within the scope of the Convention. Pursuant to a measure adopted in 1970, the Commission became responsible for recommending measures aimed at the regulation of the amount of total catch and fishing effort and the allocation of those amounts to Contracting States. Each Contracting State was under a legal duty to give effect to those recommendations adopted under certain procedural requirements unless an objection was raised within a set period. The references from the Dutch courts were about criminal proceedings initiated against fishermen on grounds of violation of Netherlands rules implementing a recommendation about fishing for sole and plaice. One of the questions referred to the Court of Justice was about competence: did the Union alone have the competence to enter into commitments such as those undertaken by most of its Member States under the system established by the North-East Atlantic Fisheries Convention? In addressing this question, the Court followed the path already set in AETR five years previously. In the absence, at that time, of a Treaty provision endowing the Union with express external competence, regard should be had to the ‘general system of Community law’. Its express legal personality entailed the Community’s capacity to enter into contractual relationships with third countries and international organisations over the whole field of objectives set out in the Treaty; it is ‘the whole scheme of [Union] law’ and ‘its substantive provisions’ which establish the competence of the Union in a particular case; that competence ‘may equally flow implicitly’ from other provisions of the Treaty and from measures adopted by the Union institutions within the framework of those provisions. It is in this last limb of its line of reasoning that the Court deviates slightly from its AETR judgment by adding the Act of Accession to the measures which may establish the external competence.42 The Court then stated that the Community did have the competence ‘on the internal level  … to take any measures for the conservation of the biological resources of the sea, measures which include the fixing of catch quotas and their allocation between the different Member States’.43 This ‘follows’ from a number of primary and secondary EU rules, along with the Act of Accession, ‘taken as a whole’.44 Primary rules cover ex Article 3(e) EC including the adoption of a common agricultural and fisheries policy in the Union’s objectives; current Article 38(3) TFEU and current Annex I to TFEU on fishery products; Article 39 TFEU specifying the rationalisation of production and the guarantee of availability of supplies as objectives of CAP; Article 40(1)–(3) TFEU requiring the establishment of a common organisation of

41

Joined Cases 3, 4 and 6/76 Cornelis Kramer and others [1976] ECR 1279. Ibid, paras 19–20. 43 Ibid, paras 30–33. 44 Ibid. 42

88 Implied Competence agricultural markets and current Article 43(2) TFEU authorising the Council to adopt secondary rules to that effect. Finally, secondary rules include Regulations 2141/7045 and 2142/7046 which authorise the Council ‘to adopt the necessary conservation measures’ in cases where ‘there is a risk of over-fishing of certain stocks in the maritime waters’ under the sovereignty of a Member State. Finally, the Act of Accession expressly enables the Council to ‘determine conditions for fishing with a view to ensuring protection of the fishing grounds and conservation of the biological resources of the sea’.47 The Court held that the authority of the Union was not confined to the sea under the sovereignty of its Member States; instead, it extended to fishing on the high seas, a conclusion deemed to ‘follow’ from the objectives of Regulation 2141/70 and Article 102 of the Act of Accession and ‘moreover from the very nature of things’.48 This assertion led to the following conclusion: The only way to ensure the conservation of the biological resources of the sea both effectively and equitably is through a system of rules binding on all the states concerned, including nonmember countries. In these circumstances it follows from the very duties and powers of the Community on the internal level that the Community has authority to enter into commitments for the conservation of the resources of the sea.49

Having established the existence of the Union’s competence, the Court went on to assess whether the Member States retained the power to assume international obligations in the area of fisheries conservation. The starting point for its analysis was the fact that, when the Netherlands gave effect to international duties adopted within the framework of the 1959 Convention, the authority of the Union to adopt similar measures, whilst in existence, had not been exercised, at least ‘not … fully’.50 Indeed, the secondary measures adopted within the fisheries framework had merely enabled the Union to adopt legislation in order to regulate the areas subsequently regulated by the Member States under the framework of the 1959 Convention. It was in the absence of EU action that the Member States retained their power to act externally, hence under the 1959 Convention too, and subsequently ensure compliance with their international obligations by adopting internal legislation. However, the national competence, whilst retained, was qualified in two ways: on the one hand, it was of a transitional nature because it would come to an end at the date on which, according to Article 102 of the Act of Accession, the Council would have adopted internal legislation for the conservation of the resources of the sea; on the other hand, it was held that ‘the Member States are now bound by Community obligations in their negotiations within the framework of the Convention and of other comparable agreements’.51 Those obligations were based on the duty of loyal cooperation laid down in Article 4(3) TEU and the, now repealed, duty of common action in international organisations of an economic character.52

45

[1970] OJ Spec Ed (III) 703. n 41 above, 707. 47 Art 102 of the Act of Accession. 48 n 41 above, paras 30–33. 49 Ibid. 50 Ibid, para 39. 51 Ibid. 52 This duty had been laid down in Art 116 EC. 46

Reinforcing the Principle of Implied Competence 89 The first interesting feature of the judgment in Kramer was the wide construction of the scope of the Union’s competence. The reference to the aim of ‘encouraging rational use of ’ and the ‘conservation of the biological resources of the sea’ in secondary legislation and the Act of Accession respectively was viewed as extending the material scope of EU competence to fishing on the high seas, too. That conclusion was reached not only on the basis of the wording of the above provisions but also ‘from the very nature of things’. It might appear curious that the judgment in Kramer should be as much about internal competence as about external one—and yet, it was the emphasis on the teleological interpretation of the former that led to the equally teleological interpretation of the latter. This is what has been called ‘the principle of complementarity’.53 In terms of the construction of the Community’s competence to conclude the Agreement, the tone of the judgment is similar to that in AETR: whilst widely defined and forcefully articulated, the external competence had not as yet excluded Member States from negotiating international agreements. In a clear illustration of the dynamic nature of the Union’s international relations, that effect was to come about three years later: in an action by the Commission against the United Kingdom, the Court opined that the expiry of the transitional period of the provision of the Act of Accession of Denmark, Ireland and the United Kingdom on fisheries conservation had affected the position of the Member States: these had become ‘no longer entitled to exercise any power of their own in the matter of conservation measures in the waters under their jurisdiction’ as ‘the adoption of such measures, with the restrictions which they imply as regards fishing activities, is a matter … of Community law’.54

5. REINFORCING THE PRINCIPLE OF IMPLIED COMPETENCE (OPINION 1/76) Reinforcing the Principle of Implied Competence

In introducing the principle of implied competence in AETR, the Court drew upon the link between the internal and external powers of the Union in order to establish exclusivity. Combined with the confusion between the issues of the existence and nature of external competence, this raised questions about the Community’s competence in areas where there had been no internal legislation. Such questions were addressed in Opinion 1/76.55 The Commission asked the Court to rule on the compatibility of a draft Agreement establishing a European laying-up fund for inland waterway vessels with the Union’s primary rules. The Agreement aimed at setting out a system which would eliminate the disturbances arising from the surplus carrying capacity for goods by inland waterway in the Rhine and Moselle basins and by the Dutch waterways and the German inland waterways linked to the Rhine basin. It was negotiated by the Commission, on behalf of the Community pursuant to a Council Decision, and Switzerland. In addition, six Member States, namely Belgium, Germany, France, Luxembourg, the Netherlands and Great Britain, participated, as they had already been parties either to the revised Convention for the Navigation of the Rhine, signed in 1868, or to the Convention for the Canalization of the Moselle signed in 1956. What was at the core of the Commission’s 53

Dashwood and Heliskoski, n 7 above, 10. Case 804/79 Commission v United Kingdom [1981] ECR 1054, para 18. See also Case 21/81 Criminal proceedings against Daniël Bout and BV I Bout en Zonen [1982] ECR 381, para 6. 55 Opinion 1/76 (re: Draft Agreement establishing a European laying-up fund for inland waterway vessels) [1977] ECR 741. 54

90 Implied Competence request was the provision in the draft Agreement for a decision-making and adjudicating system which involved for the EU a certain delegation of powers to bodies independent from the Union institutions. The Commission argued that that delegation was compatible with the Union’s primary rules and its request for an Opinion was merely based on its concern for legal certainty. The issue which first arose was whether the Union had the competence to conclude that Agreement in the absence of internal legislation on the matter. The Court ruled as follows: 1. The object of the system laid down by the draft agreement and expressed in the statute Annexed thereto is to rationalize the economic situation of the inland waterway transport industry in a geographical region in which transport by inland waterway is of special importance within the whole network of international transport. Such a system is doubtless an important factor in the common transport policy, the establishment of which is included in the activities of the Community laid down in Article 3 of the EEC Treaty. In order to implement this policy, [ex] Article 75 of the Treaty [now Article 95 TFEU] instructs the Council to lay down according to the prescribed procedure common rules applicable to international transport to or from the territory of one or more Member States. This Article also supplies, as regards the Community, the necessary legal basis to establish the system concerned. 2. In this case, however, it is impossible fully to attain the objective pursued by means of the establishment of common rules pursuant to [ex] Article 75 of the Treaty [now Article 95 TFEU], because of the traditional participation of vessels from a third state, Switzerland, in navigation by the principal waterways in question, which are subject to the system of freedom of navigation established by international agreements of long standing. It has thus been necessary to bring Switzerland into the scheme in question by means of an international agreement with this third state. 3. The power of the Community to conclude such an agreement is not expressly laid down in the Treaty. However, the court has already had occasion to state, most recently in its judgment of 14 July 1976 in Joined Cases 3, 4 and 6/76, Cornelis Kramer and Others, (1976) ECR 1279, that authority to enter into international commitments may not only arise from an express attribution by the Treaty, but equally may flow implicitly from its provisions. The court has concluded inter alia that whenever Community law has created for the institutions of the Community powers within its internal system for the purpose of attaining a specific objective, the Community has authority to enter into the international commitments necessary for the attainment of that objective even in the absence of an express provision in that connexion. 4. This is particularly so in all cases in which internal power has already been used in order to adopt measures which come within the attainment of common policies. It is, however, not limited to that eventuality. Although the internal Community measures are only adopted when the international agreement is concluded and made enforceable, as is envisaged in the present case by the proposal for a Regulation to be submitted to the Council by the Commission, the power to bind the Community vis-à-vis third countries nevertheless flows by implication from the provisions of the Treaty creating the internal power and in so far as the participation of the Community in the international agreement is, as here, necessary for the attainment of one of the objectives of the Community.

The Court went on to apply these principles to the specific primary provisions on transport. It interpreted ex Article 75(1)(d) EC, according to which the Council has the power to lay down ‘any other appropriate provisions’ in order to attain the common transport policy, as entailing that

Reinforcing the Principle of Implied Competence 91 the Community is  … not only entitled to enter into contractual relations with a third country in this connexion but also has the power, while observing the provisions of the Treaty, to cooperate with that country in setting up an appropriate organism such as the public international institution which it is proposed to establish under the name of the ‘European Laying-up Fund for Inland Waterway Vessels’.56

The main contribution of Opinion 1/76 to our understanding of the principle of implied competence is the dissociation of its existence from the exercise of the internal competence. This was a welcome clarification of the application of the doctrine of implied competence. Viewed from this angle, the principles articulated by the Court may be summarised as follows: a system of rationalisation of the inland waterway transport industry such as the one laid down in the Draft Agreement was an important factor in the Common Transport Policy covered by Article 91 TFEU which also provides the legal basis for its establishment. However, the adoption of common rules under that provision would not ‘fully attain the objective pursued’ for practical reasons. That turns out not to be a problem because the Union has the power to conclude international agreements ‘whenever Community law has created for the institutions of the Community powers within its internal system for the purpose of attaining a specific objective’ provided that the conclusion of such agreement is ‘necessary for the attainment of that objective’.57 A first reading of the Opinion reveals the absence of any reference to the nature of the Union’s competence: the part of the Court’s ruling dealing with the general principle of external competence (paragraphs 1–5) appears to refer only to the existence of implied competence. This is all the more striking in the light of the confusion between the issues of existence and nature of the implied competence which had underpinned the AETR judgment. In Opinion 1/76, the participation of the six Member States was sanctioned. The reason for this was the substantive context of the Agreement: the mechanism which it aimed at establishing entailed the amendment of provisions of two pre-existing Agreements, namely the Convention of Manheim for the Navigation of the Rhine and the Convention of Luxembourg on the Canalization of the Moselle. As these agreements had been concluded in 1868 and 1956 respectively, their amendment could only be achieved by the Member States which had concluded them. After all, Article 351(2) TFEU requires that Member States take all appropriate measures to eliminate incompatibilities between agreements they had concluded prior to their accession to the Union and EU law. The amendment of those pre-existing duties was laid down in Article 3 of the Agreement and undertaken by the six Member States. It was for this reason that the participation of Member States along with the Union was sanctioned by the Court. In order to bring this point home, the Court went on to stress that ‘the participation of these States in the Agreement must be considered as being solely for this purpose and not as necessary for the attainment of other features of the system’.58 To summarise, the participation of a number of Member States in the conclusion of the Agreement in question was sanctioned only because the conclusion of the latter would bring about the amendment of obligations already assumed by those States prior to the establishment of the Union. Whilst avoiding the reference to the term ‘exclusivity’, the line of reasoning followed by the Court may appear to be couched in such terms. 56

Ibid, para 5. Ibid, para 3. 58 Ibid. 57

92 Implied Competence Followed up to its logical conclusion, it appears to suggest that, had there been no prior legal regime binding on Member States and affected by the Draft Agreement, the participation of those Member States would not have been considered necessary for the establishment of the new navigation system and, hence, their participation in the conclusion of the Agreement would not have been sanctioned. Is the above not an acknowledgement of exclusivity? Whilst the line of reasoning put forward in Opinion 1/76 appears to provide an affirmative answer,59 it is difficult to see how such conclusion might be sustained. As the common transport policy does not fall within the exclusive competence of the Union, it is difficult to see how, in the absence of common rules, the Member States would have violated their Union law obligations had they concluded an agreement with Switzerland in the area covered by the Rhine Convention.60 What complicates matters further is the Court’s apparent effort to present the participation of Member States as legally necessary when, in fact, this is questionable. Indeed, the duty of Member States to comply with Article 351(2) TFEU does not necessarily entail their participation in an Agreement: instead, the Member States could have amended the pre-existing Manheim and Luxembourg Conventions unilaterally on the basis of public international law. Furthermore, were it accurate, the above reading of the ruling in Opinion 1/76 would be tantamount to suggesting a potential expansion of the scope of exclusivity. Could that have been the intention of the Court in delivering only its third ruling on what appeared to be a highly controversial principle? This question would arise again in subsequent case-law. At this juncture, suffice it to point out that what emerges from the above is a picture of fragmentation: the first part of the judgment appears to refer to the existence of the Union’s implied external competence, whereas the second part appears to make a leap to a rather convoluted articulation of the nature of that competence. The confusion as to the precise implications of the principles laid down in Opinion 1/76 is compounded by yet another piece of the ‘implied competence puzzle’, that of necessity. It is recalled that the Court ruled that, in the absence of internal legislation, the Union’s external competence is implied ‘in so far as the participation of the Community in the international agreement is … necessary for the attainment of one of the objectives of the Community’.61 Whilst ruling that it was applicable on the conclusion of the Agreement in question, the Court did not elaborate on the definition of this term: would it be subject to an inherently indeterminate policy assessment?62 To what extent would considerations related to the political expedience or efficiency be relevant? The lack of clarity underlying the Court’s line of reasoning is striking.63 And in a perverse way, it also provides the link between Opinion 1/76 and the judgment in AETR: in both, the Court seeks to set out the principles pursuant to which the external competence of the Union may be exercised within the framework of a legal order functionally understood; in neither is there a consistent normative foundation for the 59

See eg T Tridimas, ‘The WTO and OECD Opinions’ in Dashwood and Hillion, n 7 above, 48, 55. Tridimas and Eeckhout, n 40 above, 167; Dashwood and Heliskoski, n 7 above, 13. 61 n 55 above, para 4. 62 See eg M Hardy, ‘Opinion 1/76 of the Court of Justice: The Rhine Case and the Treaty-Making Powers of the Community’ (1977) 14 Common Market Law Review 561. 63 However, it has been pointed out that it reflects the substance of the request before the Court, ie whether the participation of Member States in the Agreement on navigation on the Rhine which had already been decided to be concluded by the Community would produce undermining effects: see Dashwood and Heliskoski, n 7 above, 14. 60

The Period of Adjustment: In Search of Limits 93 newly introduced principles articulated or a coherent account of their legal implications provided. These deficiencies notwithstanding, the principal message conveyed in both rulings is clear: widely though the competence of the Union to act externally may be construed, it does not necessarily prevent the Member States from participating in the conclusion of international agreements along with the Union as a matter of fact.

6. THE PERIOD OF ADJUSTMENT: IN SEARCH OF LIMITS (OPINION 2/91) The Period of Adjustment: In Search of Limits

The construction of the principle of implied competence, as introduced in AETR and further developed in Opinion 1/76, was outlined above as based upon two assumptions: the forceful articulation of the presence of the Union’s external competence coexisted with the parallel presence of the Member States in the context of the negotiation and conclusion of international agreements. However, that presence was attributed to the specific practical and legal contexts raised before the Court, whilst their normative foundation, precise preconditions and general legal implications were left unclear. In the early 1990s, the case-law of the Court of Justice appeared to be more focused on the clarification of the application of the principle of implied competence. This became apparent in Opinion 2/91.64 The subject-matter of this request was the conclusion of a Convention signed in 1990 under the auspices of the International Labour Organization (ILO) on safety in the use of chemicals at work. The Commission argued that the Community alone was competent to conclude the agreement on the basis of its internal competence on health and safety under Article 153(2) TFEU (ex Article 118a EC). Whilst not a party to the ILO Convention, the Union has observer status. However, its participation in the implementation of the Convention had already been an issue of contention. Any controversies had been addressed on the basis of ad hoc procedural arrangements which appeared to come to an end when the Council, with the agreement of the Commission, adopted a decision in December 1986. That measure set out a procedural mechanism whose objective was the general management of the participation of the Community and the Member States in the ILO framework. The material scope of this arrangement is strictly confined to areas falling within the exclusive competence of the Union. In terms of decision-making, it provided that the Community would reply to the ILO questionnaires by means of a Council decision following a proposal from the Commission. In terms of representation, it provided that the Commission would speak on behalf of the Community in the Conference and act in close consultation with the Member States whilst the latter could retain their right to speak at the plenary sessions of the Conference. It was on the basis of that Decision that the Commission submitted a proposal to the Council in relation to an ILO questionnaire on Convention No 170. Various Member States chose to reply to the ILO directly, hence deviating from the system set out in the above Decision. The reason for this was the Member States’ contention that the subject-matter of the Convention was not covered by the Union’s exclusive competence. The Commission then requested that it be authorised to negotiate the Convention on behalf of the Union. The Council gave its agreement. The decision adopted to that effect also required that the Commission be in close consultation with the Member States and provided that the latter would retain their right 64

Opinion 2/91 (re: Convention No 170 ILO on safety in the use of chemicals at work) [1993] ECR I-1061.

94 Implied Competence to express views on aspects of the Convention which fell within their competence. Following the adoption of Convention No 170, the Commission informed the Council that it was under a legal duty to inform the International Labour Office that, in terms of the ILO Constitution, the competent authorities were the Community institutions. It was following that request that the dispute about the nature of the Community competence resurfaced, as a number of Member States did not accept that Convention No 170 fell within the scope of the Community’s exclusive competence. The objective of Convention No 170 was to protect workers against the harmful effects of using chemicals in the workplace. Its content sought to achieve this in various ways: it set out consultation procedures between Contracting States and representative organisations of employers and workers, it authorised national authorities to prohibit, restrict or regulate the use of hazardous chemicals, it laid down rules on the classification of chemical products and their transport, labelling and marketing, it defined the relevant responsibilities of employers and the duties and rights of workers.

6.1 Restating the General Principles The core of the substantive issues raised by the Commission in its request for an Opinion was whether the conclusion of Convention No 170 fell within the competence of the Union and, if so, whether that competence was exclusive. In approaching this issue, the Court deemed it necessary to articulate the general premises on which the Community’s implied competence may arise and the circumstances in which that competence may become exclusive. It did so in a distinct part of its ruling which reads like a summary of the general principles of EU external relations in the light of the pre-existing case-law. The Court’s analysis may be divided into three parts. First, it dealt with the issue of the existence of implied competence using its ruling in Opinion 1/76 as the starting point of its analysis: [A]uthority to enter into international commitments may not only arise from an express attribution by the Treaty, but may also flow implicitly from its provisions. The Court concluded, in particular, that whenever Community law created for the institutions of the Community powers within its internal system for the purpose of attaining a specific objective, the Community had authority to enter into the international commitments necessary for the attainment of that objective even in the absence of an express provision in that connection. At paragraph 20 in its judgment in  … Kramer and Others  …, the Court had already pointed out that such authority could flow by implication from other measures adopted by the Community institutions within the framework of the Treaty provisions or the acts of accession.65

Secondly, the Court examined the issue of the nature of the Union’s external competence and makes a distinction: when expressly provided for in the EU’s primary rules, that competence is exclusive; as regards its implied competence, its exclusive nature may  … depend on the scope of the measures which have been adopted by the Community institutions for the application of [primary law] provisions and which are of such kind as to deprive the Member States of an area of competence which they were able to exercise previously on a transitional basis.66 65 66

Ibid, para 7. Ibid, para 9.

The Period of Adjustment: In Search of Limits 95 The foundation for that proposition is the AETR statement: ‘[W]here Community rules have been promulgated for the attainment of the objectives of the Treaty, the Member States cannot, outside the framework of the Community institutions, assume obligations which might affect those rules or alter their scope.’67 In addition, the Court for the first time expressly clarified the material scope of exclusivity in relation to the Union’s implied powers: it is not only in relation to common policies that the Member States are precluded from acting when the Community’s competence has become exclusive. This conclusion was based on two premises: on the one hand, the broad material scope of the requirement of loyalty laid down in current Article 4(3) TEU covers ‘all the areas corresponding to the objectives of the Treaty’;68 on the other hand, there was the need to ensure that the Union’s ‘tasks and the objectives of the Treaty would [not] be compromised if Member States were able to enter into international commitments containing rules capable of affecting rules already adopted in areas falling outside common policies or altering their scope’.69 Thirdly, the Court dealt with the cases where the Union’s implied competence is not exclusive. As that competence ‘is shared between the Community and the Member States’, ‘negotiation and implementation of the agreement require joint action by the Community and the Member States’.70

6.2 Applying the Principles to Convention No 170 ILO In approaching the specific question of competence raised by the Commission, the Court started off by identifying the objective of Convention No 170, namely to prevent or reduce the incidence of chemically induced illnesses and injuries at work. It, then, noted that that also fell within the social provisions of the EC Treaty. Indeed, the improvement of the working environment to protect workers’ health and safety is defined in current Article 153(1)(a) TFEU as an area where the Union supports and complements national actions by means of directives setting out minimum standards. Having established the existence of internal competence over the areas covered by Convention No 170, the Court had no difficulty in asserting the existence of an external implied competence, albeit not without pointing out that the subject-matter of that Convention coincided with that of several directives adopted under the above Treaty provision.71 The analysis, then, turned to whether the implied external competence was exclusive. The Court focused on the effects of the rules laid down in Convention No 170. In the light of the fact that the adoption of internal legislation pursuant to current Article 153(4) TFEU would ‘not prevent any Member State from maintaining or introducing more stringent protective measures compatible with the Treaties’, the Court ruled as follows: [T]he provisions of Convention No 170 are not of such a kind as to affect rules adopted pursuant to Article [153 TFEU]. If, on the one hand, the Community decides to adopt rules which are

67

Ibid, referring to para 22 of the judgment in AETR (n 5 above). Ibid, para 10. 69 Ibid, para 11. 70 Para 12 with reference to Kramer (n 41 above, paras 39–45) and Opinion 1/78 [1979] ECR 2871, para 60. 71 Ibid, para 17. 68

96 Implied Competence less stringent than those set out in an ILO convention, Member States may, in accordance with Article [137(4) TFEU], adopt more stringent measures for the protection of working conditions or apply for that purpose the provisions of the relevant ILO convention. If, on the other hand, the Community decides to adopt more stringent measures than those provided for under an ILO convention, there is nothing to prevent the full application of Community law by the Member States under Article 19(8) of the ILO Constitution, which allows Members to adopt more stringent measures than those provided for in conventions or recommendations adopted by that organization.72

In other words, ILO Convention No 170 did not fall within the exclusive competence of the Union because its conclusion by the Member States could not affect the content of secondary legislation to be adopted pursuant to what is now Article 153(2) TFEU. This was a conclusion which the Commission had sought to challenge on the basis of two further arguments. The first one was of a practical nature: it would be difficult to assess whether a specific provision would be more favourable for the protection of working conditions or not; therefore, in order to avoid a violation of the ILO Convention, Member States might become reluctant to adopt measures necessary for the working environment under what is now Article 153(2) TFEU, hence impairing the development of Union law. The legal argument put forward by the Commission consisted of an alternative foundation for exclusivity, namely secondary legislation adopted under Article 100 EC. Both arguments were rejected by the Court. The practical one was dismissed in a rather summary manner: ‘[D]ifficulties, such as those referred to by the Commission, which might arise for the legislative function of the Community cannot constitute the basis for exclusive Community competence.’73 As for the legal argument, the Court pointed out that the secondary provisions adopted under Article 100 EC laid down minimum requirements, with specific reference to legislation on the protection of workers from the risks related to exposure to chemical, physical and biological agents at work74 and other detailed directives adopted pursuant to this.

6.3 A Foundation for Exclusivity However, the Court identified a specific area which fell within the exclusive competence of the Community. The basis for this conclusion was a number of directives whose subject-matter fell within that covered by Part III of ILO Convention No 170. The main characteristic was the introduction of more than minimum requirements. Reference was made to Union rules on the classification, packaging and labelling of dangerous substances75 and dangerous preparations,76 adopted under Articles 100 EC and 100a EC, respectively. The Court observed that these rules were, in certain respects, more favourable for workers, and their content was quite detailed. Having pointed out that the scope of ILO Convention No 170 was wider than that of the above-mentioned Directives, the Court went on to opine as follows:

72

Ibid, para 18. Ibid, para 20. 74 Dir 80/1107/EEC [1980] OJ L327/8. 75 Dir 67/548/EEC [1967] OJ Spec Ed 234, amended by Dir 79/831/EEC [1979] OJ L259/10. 76 Dir 88/379/EEC [1988] OJ L187/14. 73

The Period of Adjustment: In Search of Limits 97 While there is no contradiction between these provisions of the Convention and those of the directives mentioned, it must nevertheless be accepted that Part III of Convention No 170 is concerned with an area which is already covered to a large extent by Community rules progressively adopted since 1967 with a view to achieving an ever greater degree of harmonization and designed, on the one hand, to remove barriers to trade resulting from differences in legislation from one Member State to another and, on the other hand, to provide, at the same time, protection for human health and the environment. In those circumstances, it must be considered that the commitments arising from Part III of Convention No 170, falling within the area covered by the directives cited above in paragraph 22, are of such a kind as to affect the Community rules laid in those directives and that consequently Member States cannot undertake such commitments outside the framework of the Community institutions.77

6.4 Other Areas of Shared Competence Finally, in examining the content of ILO Convention No 170, the Court identified other areas which fell within the joint competence of the Union and the Member States. These are included in the general principles relating to the implementation of the Convention laid down in its Part II. Whilst general in nature, it was held that they fell within the Community’s competence ‘in so far as it has been established that the substantive provisions of Convention No 170 come within the Union’s sphere of competence’.78 These provisions are about the development of cooperation between organisations of employers and workers as regards the adoption and periodical review of safety measures on the use of chemicals at work. The Court then pointed out the following: Admittedly, as Community law stands at present, social policy and in particular cooperation between both sides of industry are matters which fall predominantly within the competence of the Member States. This matter, has not, however, been withdrawn entirely from the competence of the Community. It should be noted, in particular, that, according to Article 118b of the Treaty, the Commission is required to endeavour to develop the dialogue between management and labour at European level. Consequently, the question whether international commitments, whose purpose is consultation with representative organizations of employers and workers, fall within the competence of the Member State or of the Community cannot be separated from the objective pursued by such consultation.79

Similarly, the Union was competent over the assumption of supervisory powers aimed at ensuring compliance with the substantive content of the Convention even if those powers were to be exercised by national authorities. After all, even on the internal plane, Member States could be authorised to exercise supervisory powers in areas covered by EU law.80 The logic of this provision is clear: once competence over the substantive content of an international agreement has been established, that competence is presumed 77

n 64 above, paras 25–26. Ibid, para 28. 79 Ibid, paras 30–32. 80 The Court referred to Dir 80/1107, n 74 above, and the provision of Art 4. 78

98 Implied Competence to extend to the supervisory framework designed to ensure compliance with that agreement. However, this should not be viewed as an unqualified statement. The wording of the ruling infers that the extent of those powers could be central to the issue of competence; it might be the case that, if the supervision of the agreement were to be exercised entirely by the Member States, the Union’s competence would not extend over the relevant provisions.

6.5 The Duty of Cooperation Having established that the conclusion of ILO Convention No 170 fell within the joint competence of the Union and its Member States, the Court went on to point out the following: [I]t is important to ensure that there is close association between the institutions of the Community and the Member States both in the process of negotiation and conclusion and in the fulfilment of the obligations entered into. This duty of cooperation, to which attention was drawn in the context of the EAEC Treaty, must also apply in the context of the EEC Treaty since it results from the requirement of unity in the international representation of the Community. In this case, cooperation between the Community and the Member states is all the more necessary in view of the fact that the former cannot, as international law stands at present, itself conclude an ILO convention and must do so through the medium of the Member States.

6.6 Comment on Opinion 2/91 In its ruling, the Court sought for the first time to articulate the principles underpinning the Union’s external competence with a certain degree of clarity. In so doing, it clarified a number of issues pertaining to the implied competence: its exclusive nature may follow from the adoption of internal legislation in areas not falling within the common policies; whilst the scope of Union legislation adopted pursuant to the exercise of the internal competence would determine whether the external competence became exclusive, when the former consists of minimum rules the latter would be shared with the Member States. This function of Opinion 2/91 was highlighted by the clear division between the issues of existence and exercise of the Union’s external competence which underlies the Court’s analysis. The clarification of certain issues notwithstanding, the Court’s line of reasoning did not provide complete clarity. One feature of the ruling is the Court’s attempt to avoid a detailed analysis of the internal rules whose scope was deemed to give rise to exclusivity externally. Indeed, whilst reference was made in general ‘to a number of directives adopted in the areas covered by the ILO Convention No 170’ which ‘contain rules which are more than minimum requirements’, specific analysis was provided only ‘for instance’ to two such measures.81 What light does this shed to the correlation between the scope of internal legislation and the nature of external competence? Is the existence of merely a handful of secondary measures sufficient to give rise to exclusivity? Indeed, the Court 81

n 64 above, para 22 (emphasis added).

The Period of Adjustment: In Search of Limits 99 further pointed out that the external competence becomes exclusive when the subjectmatter of the agreement to be concluded falls within an area which is ‘already covered to a large extent by Community rules progressively adopted  … with a view to achieving an ever greater degree of harmonization’.82 This formula may appear problematic in so far as it does not provide for a clear test which would allow the Union institutions and the Member States to ascertain the nature of their competence. How advanced should harmonisation be in order to give rise to exclusivity, and on which criteria should this assessment be based? Whilst this process may be fraught with uncertainty and subject to a qualitative judgment, the Court’s ruling appears to suggest a rather automatic deduction. It is noteworthy that this line of reasoning corresponds with the regulatory climate of the era: in the light of the status of minimum harmonisation legislation as the cornerstone of the single market project, to have concluded otherwise would have been tantamount to rendering exclusivity the norm in the Union’s external relations; on the other hand, in those specific areas which appear to be subject to detailed regulation, the external competence should be presumed to be exclusive. Be that as it may, compared to the judgment in AETR, the Court’s approach in Opinion 2/91 suggests a stricter definition of the conditions under which the Union’s implied competence may become exclusive. It also suggests that, once it has arisen, exclusivity produces its effects in a rather automatic manner. What is noteworthy in the ruling is the absence of any assessment as to whether unilateral action by the Member States might, in fact, undermine the exercise by the Union of its implied competence. In Opinion 2/91 the Court accepted that such an assessment was not necessary, hence construing the effect of national action in very broad terms.83 If this analysis is correct, then a point of convergence between express and implied competence of the Union emerges. It is recalled that, in its ruling, the Court suggested that the exclusive nature of the express competence follows precisely from its express provision—this is what has been described as ‘pre-emptive exclusivity’.84 In the case of implied competence, once the internal competence has been exercised in a detailed manner, the exclusive nature of the external competence follows from the harmonising effect of internal legislation, the absence of a specific contradiction notwithstanding. In both cases, the assessment of the nature of the external competence is independent of a substantive determination of whether exclusivity is in fact essential for the protection of the acquis communautaire pursuant to the characteristics of the specific case under review. Another interesting feature of Opinion 2/91 is the light it appears to shed on the doctrine of necessity already elaborated in Opinion 1/76. It is noteworthy that, in the first part of the ruling, the starting point for the Court’s analysis of the general principles of external competence was Opinion 1/76 rather than the AETR judgment.85 This might appear to provide a link with the rationale underpinning the argument that the

82

Ibid, para 25 (emphasis added). See D O’Keeffe, ‘Exclusive, Concurrent and Shared Competence’ in Dashwood and Hillion, n 7 above, 179, 187. 84 Dashwood and Heliskoski, n 7 above, 16. 85 Dashwood and Heliskoski point out that ‘the principle is cited in a context which shows the intention of the Court to disconnect it from the unusual circumstances of both Opinion 1/76 and, previously, Kramer. Paragraph 3 is evidently to be taken as an expression of the normal (though not necessarily the only) way in which external competence may arise for the Community in the absence of explicit attribution’ (n 7 above, 15). 83

100 Implied Competence conclusion of ILO Convention No 170 falls within the scope of Union competence. It is recalled that the Court referred to the internal competence of the Community to adopt legislation in the area of health and safety requirements for workers under Article 154 TFEU. In that regard, Dashwood and Heliskoski have suggested that the principle of necessity may explain this conclusion: [P]ossession of treaty-making power by the Community facilitates the adoption of such measures: for instance, the raising of minimum standards for Community workers may prove more easily acceptable if the possibility exists of negotiating a similar improvement in third countries, thereby countering so-called ‘social dumping’. The test applied in practice by the Court may, we suggest, be formulated thus: does the Community need treatymaking power to ensure the optimal use, over time, of its expressly conferred internal competence?86

Whilst the first part of the above extract is undoubtedly true, the second is less so in so far as it appears to view ‘necessity’ in the light of what is desirable in policy terms. Such an interpretation is not supported by the relevant part of the Court’s ruling which contains no suggestion as to whether policy-oriented consideration should apply. Indeed, the wording of the ruling suggests a rather automatic process: once the subject-matter of the Convention has been identified as within Chapter 1 of Title III EC Treaty which confers on the Union an internal legislative competence in the area of social policy, it is immediately concluded that ‘consequently, Convention No 170 falls within the Union’s area of competence’.87 Would this be taken to imply that the Union enjoys external competence in all areas over which it is endowed with internal legislative competence? The Court is careful not to make such a statement. Indeed, the affirmation of the existence of the external competence in Opinion 2/91 is accompanied by reference to the fact that the subject-matter of Convention No 170 coincides with that of several directives adopted pursuant to the exercise of the internal legislative competence. This illustrates a tendency which characterises all rulings of the Court affirming the existence of external competence, including the AETR judgment. The above analysis highlights the specific implications of the Court’s ruling for the construction of the Union’s implied competence: the introduction of a stricter definition of the AETR test coupled with a broader reading of the effects of exclusivity points towards the most important function of Opinion 2/91, ie the implicit sanctioning of mixity. More importantly, the message conveyed by the ruling is that, in EU bilateral and multilateral relations, mixity is the rule. Indeed, the starting point for the Court’s analysis appears to be the presumption that the Member States could participate in the conclusion of the agreement, albeit one that may be rebutted. In this respect, two points need to be made. First, whilst in AETR and Opinion 1/76 the participation of Member States along with the Community in the negotiation and conclusion of the Agreements in question had been sanctioned for reasons related to the practical realities of international negotiations, Convention No 170 ought to be concluded by both because the competence over its content was shared. This indicates a shift in emphasis from the application of mixity as a matter of practice to its articulation as a matter of principle and legal logic.

86 87

Dashwood and Heliskoski, n 7 above, 16. n 64 above, para 17 (emphasis added).

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Secondly, the principle of shared competence is accepted by the Court without taking account of the practical problems to which it may give rise. The ruling in Opinion 2/91 constituted the first time where arguments to that effect submitted by the Commission were rejected; this would become quite prominent in subsequent disputes where arguments about the practical problems regarding the international representation of the Union and the Member States in the case of mixed agreements would have the same fate. This suggests the emergence of a practice which confines the determination of the nature of the Community’s external competence to legal issues pertaining to the implementation of the Treaties rather than practical considerations. That is not to say that the Court appears oblivious to the reality of the conduct of international relations. In its ruling in Opinion 2/91, it makes reference to the duty of cooperation which is deemed binding both on the Union institutions and the Member States in the process of the negotiation, conclusion and implementation of international agreements over which they share competence. The significance of this principle cannot be overstated: it is being set out in a distinct manner in the concluding part of the Court’s ruling and it is sanctioned by the Court in the context of both the Union’s express and implied competence.88 Most importantly, its construction suggests a duty which is distinct from the general duty of loyalty laid down in Article 4(3) TFEU. Indeed, the duty of cooperation to which the Court refers in Opinion 2/91 is viewed as stemming from the requirement of unity in the international representation of the Union. As such, it is not merely a procedural instrument aimed at mitigating any undermining effects that may follow from mixity; it is also a legal principle which makes the executive authorities of the Union and the Member States assume responsibility for the conduct of EU external relations. In that regard, it is true that the duty of cooperation appears to be quite vague and the Court offered no indications of the specific ways in which it could be construed. However, whilst its supervision is entrusted to the Court of Justice, its prominent position in the ruling also indicated that the locus of power in the conduct of EU external relations lies with the legislative and executive institutions of the Union and the Member States and the way in which they would manage their coexistence. All in all, by clarifying the conditions giving rise to exclusivity, ruling on the effects of internal legislation introducing minimum standards and focusing on the function of the duty of cooperation, Opinion 2/91 offered the first illustration of the Court’s approach to the principle of mixity. In its subsequent case-law, the Court elaborated upon the duty of cooperation and transformed it into one of the cornerstones of the Union’s external economic policies. In other words, Opinion 2/91 contains the seeds of what is to become the constitutional core of EU external relations.

7. THE CONTROVERSIAL OPINION 1/94 The Controversial Opinion 1/94

In Opinion 1/94 the Court was asked to rule on the competence of the Union to conclude, amongst others, the General Agreement on Trade in Services (GATS) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs).89 In Chapter 2, it was examined how the Court, in rejecting the principal contention by the Commission, ruled 88 89

Reference is made to Kramer, n 41 above, paras 39–45 and Opinion 1/78, n 70 above, para 60. Opinion 1/94 (WTO Agreements) [1994] ECR I-5267.

102 Implied Competence that the content of those agreements fell beyond the scope of the Common Commercial Policy and, therefore, was not covered by the Union’s exclusive competence.90 The Court, then, dealt with the alternative submission, namely that the conclusion of the GATS and TRIPs impliedly fell within the Union’s exclusive competence. This submission was based on three main arguments, namely the effect of the AETR principle, the effect of the necessity principle laid down in Opinion 1/76 and, finally, the effect of the general clauses laid down in Articles 114 and 352 TFEU.

7.1. The Application of the AETR Principle As far as the AETR principle was concerned, the Commission argued that it was applicable to both the GATS and TRIPs. In relation to the former, the Commission focused on a number of areas covered by the Agreement over which the Union enjoyed competence to adopt rules internally, namely the right of establishment, the freedom to provide services and transport. It claimed that internal competence had given rise to exclusive external competence. In relation to TRIPs, it was argued that a number of secondary provisions adopted by the Union institutions internally would be affected were the Member States to participate in its conclusion. This line of reasoning was rejected by the Court. As far as transport was considered: [T]he Community’s exclusive external competence does not automatically flow from its power to lay down rules at internal level. As the Court pointed out in the AETR judgment  …, the Member States, whether acting individually or collectively, only lose their right to assume obligations with non-member countries as and when common rules which could be affected by those obligations come into being. Only in so far as common rules have been established at internal level does the external competence of the Community become exclusive. However, not all transport matters are already covered by common rules.91

The absence of common rules on all transport matters was the first point the Court made in order to reject exclusivity. The second point had to do with the practical reasons for which the Commission had argued for exclusivity. In particular, it had been argued that, in the absence of exclusive Union competence, the authority of Member States to conclude individually international agreements with third countries would ‘inevitably lead to distortions in the flow of services and will progressively undermine the internal market’.92 The Court rejected that practical argument on the basis of a legal principle: [T]here is nothing in the Treaty which prevents the institutions from arranging, in the common rules laid down by them, concerted action in relation to non-member countries or from prescribing the approach to be taken by the Member States in their external dealings.93

That conclusion was supported by reference to specific secondary rules on transport which provided for such arrangements: Regulation 4058/86, for instance, deals with the possibility of third states restricting free access by shipping companies of Member States

90

See Chapter 2.3. n 89 above, para 77. 92 Ibid, para 78. 93 Ibid, para 79. 91

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to the transport of linear cargoes by enabling the Council to decide on coordinated action.94 Having rejected the exclusive nature of the Union’s external competence on transport, despite the reference in ex Article 75(1)(a) EC to ‘relationships arising from international law’, the Court had no difficulty reaching the same conclusion in relation to the right of establishment and the freedom to provide services. The Court pointed out that ‘the sole objective of [the chapters on the above freedoms] is to secure the right of establishment and freedom to provide services for nationals of Member States’.95 It then, went on to point out that: They contain no provision on the problem of the first establishment of nationals of nonmember countries and the rules governing their access to self-employed activities. One cannot infer from those chapters that the Community has exclusive competence to conclude an agreement with non-member countries to liberalize first establishment and access to service markets, other than those which are the subject of cross-border supplies within the meaning of GATS which are covered by Article [207 TFEU].96

However, the fact that the Union did not enjoy exclusive competence externally to conclude an agreement on the rights of third-country nationals in the above areas should not be taken to mean that the Union is prevented from relying upon the powers conferred by the relevant provisions in order to specify the treatment which is to be accorded to such nationals. In a later part of its judgment, the Court returns to this issue to point out that that power has actually been exercised by the inclusion of external relations provisions in secondary rules adopted by the Council pursuant to Articles 50 and 53 TFEU. Such provisions may serve different objectives: disclosure requirements imposed on branches established by companies governed by the laws of third countries were included in secondary legislation in order to avoid disparities with similar requirements imposed on companies governed by the laws of a Member State;97 the Second Banking Directive included a specific Title III for credit institutions in third countries setting out various measures which rendered reliance by them upon the system introduced therein conditional upon obtaining comparable competitive opportunities for Union credit institutions in those countries;98 the same applied to secondary rules in the area of insurance.99 However, that was not sufficient to endow the Union with exclusive competence. The relevant part of the Court’s ruling is worth citing in full: 95. Whenever the Community has included in its internal legislative acts provisions relating to the treatment of nationals of non-member countries or expressly conferred on its institutions powers to negotiate with non-member countries, it acquires exclusive external competence in the spheres covered by those acts.

94 [1986] OJ L378/21, Art 3. The Court also referred to Reg 4055/86 [1986] OJ L378/1 on the freedom to provide services to maritime transport between Member States and third countries which requires that Member States phase out or adjust existing cargo-sharing arrangements, as their conclusion became subject to a Community authorisation procedure. 95 n 89 above, para 81. 96 Ibid. 97 Art 54 of Council Dir 89/666 [1989] OJ L395/36 mentioned in para 92. 98 Council Dir 89/646 [1989] OJ L386/1. 99 See eg Council Dir 90/618 [1990] OJ L330/44, amongst other measures mentioned in para 93.

104 Implied Competence 96. The same applies in any event, even in the absence of any express provision authorising its institutions to negotiate with non-member countries, where the Community has achieved complete harmonization of the rules governing access to a self-employed activity, because the common rules thus adopted could be affected within the meaning of the AETR judgment if the Member States retained freedom to negotiate with nonmember countries. 97. That is not the case in all service sectors, however, as the Commission has itself acknowledged.

It was on similar grounds that the Court rejected the Commission’s claim to exclusivity for the Union of TRIPs. It pointed out that ‘the harmonization achieved within the Community in certain areas covered by TRIPs is only partial and  …, in other areas, no harmonization has been envisaged’.100

7.2 The Application of the Necessity Principle Pursuant to Opinion 1/76 The alternative claim for exclusivity put forward by the Commission was based on the principle of necessity elaborated upon in Opinion 1/76. In particular, it was argued that exclusivity was necessary at both internal and external levels for different reasons: in terms of the former, it would maintain the coherence of the internal market, whereas, in terms of the latter, it would enable the Union to remain active, as the need for the conclusion of the WTO Agreements was not in itself disputed. The Court rejected both arguments on the basis that they did not reflect the issues raised in Opinion 1/76. The latter was viewed as a case where the objective of the Draft Agreement was impossible to be achieved in any way other than by concluding an international agreement; similarly, in Kramer, the objective of conservation of biological resources of the high seas ‘would hardly be effective’ if not applicable to non-Union vessels. It was in that context that ‘external powers may be exercised, and thus become exclusive, without any internal legislation having first been adopted’.101 The Court, then, made a distinction: That is not the situation in the sphere of services: attainment of freedom of establishment and freedom to provide services for nationals of the Member States is not inextricably linked to the treatment to be afforded in the Community to nationals of non-member countries or in nonmember countries to nationals of Member States of the Community.102

The same conclusion applied to TRIPs in relation to which the Court was quite direct: ‘[U]nification or harmonization of intellectual property rights in the Community context does not necessarily have to be accompanied by agreements with non-member countries in order to be effective.’103

100 n 89 above, para 103. As examples of partial harmonisation, the Court mentioned trademark law, whereas the areas of undisclosed technical information, industrial designs and patents are cited as examples of absence of harmonising legislation. 101 Ibid, para 85. 102 Ibid, para 86. 103 Para 100.

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7.3 The Application of the General Clauses of Articles 95 and 308 EC (now 114 and 352 TFEU) The Commission’s last resort in order to claim exclusivity was to rely upon the general clauses laid down in Articles 95 and 308 EC (now Articles 114 and 352 TFEU). Their wording was deemed sufficiently broad to be construed as giving rise to exclusivity under the circumstances: the former enables the Council to adopt by qualified majority harmonising measures ‘which have as their object the establishment and functioning of the internal market’, whereas the latter enabled the Council to adopt unanimously the measures ‘necessary to attain, in the course of the operation of the common market, one of the objectives set out in the Treaties’ in cases where the latter ‘have not provided the necessary powers’. However, both provisions were held to be insufficient in themselves to render the Union’s external competence exclusive. The Court ruled that only the exercise of the internal competence conferred therein could give rise to exclusive external competence.

7.4 Comment on the Construction of the AETR Principle The ruling of the Court in Opinion 1/94 appeared to be a remarkable defeat for the Commission: the core of its line of reasoning, in all its forms, was rejected in a manner which was as comprehensive as it was forceful. It was pointed out in Chapter 2 that, in dissociating the conclusion of the GATS and TRIPs from the CCP, the Court attracted heavy criticism. The parts of the Court’s judgment rejecting the Commission’s claim for exclusivity pursuant to the principles laid down in AETR and Opinion 1/76 were no less controversial. Its line of reasoning was seen as couched in open-ended terms with a propensity to vagueness.104 Its forceful sanctioning of shared competence was seen as undermining the coherence of the external representation of the Union, and its emphasis on the duty of cooperation was seen as an inadequate remedy for potential inter-institutional conflicts.105 The interpretation of the necessity principle was seen as unduly restrictive and the construction of exclusivity pursuant to the AETR principle as undermining the very raison d’être of the latter’s introduction.106 In the context of the implied competence of the Union pursuant to the AETR principle, exclusivity was construed in strict terms: rather than arising from the existence of ‘common rules’ (AETR) or even ‘Community rules covering an area to a large extent’ (Opinion 1/76), it required the existence of complete harmonisation following the exercise of the Union’s internal competence. This formulation appeared to mark the apogee of a progressive tightening of the criteria laid down by the Court over the years. Does this mean the logic underpinning the ruling in Opinion 1/94 is markedly different to that of previous case-law? A close examination of the ruling suggests a negative answer. After all, Opinion 2/91 had already made it clear that internal rules introducing minimum standards would 104

See N Emiliou, ‘The Death of Exclusive Competence?’ (1996) 21 European Law Review 294, 310. See A Maunu, ‘The Implied External Competence of the European Community after the ECJ Opinion 1/94—Towards Coherence or Diversity?’ (1995) 22 Legal Issues of Economic Integration 115, 123 et seq. 106 JHJ Bourgeois ‘The EC in the WTO and Advisory Opinion 1/94: An Echternach Procession’ (1995)32 Common Market Law Review 763, 780 et seq. 105

106 Implied Competence not give rise to exclusive competence externally. In any case, to view the reference to complete harmonisation as a departure from the broader conditions of exclusivity laid down in earlier case-law presumes that the latter actually sanctioned such a liberal reading of the competence of the Union to negotiate and conclude international agreements to the exclusion of the Member States. However, the analysis of the rulings in AETR, as well as those in Kramer and Opinion 1/76, earlier in this chapter, showed that that had not been the case. In fact, in both legal and practical terms the definitions given by the Court in those cases suggested a positively compromised reading of exclusivity: on the one hand, the examination of the nature of implied competence was intertwined with that of its existence to such an extent that no safe assumption could be made about its legal requirements; on the other hand, the participation of Member States along with the Union had been sanctioned, the ‘broad’ construction of the latter’s exclusive competence notwithstanding. In other words, the requirement in Opinion 1/94 that complete harmonisation be present internally in order for exclusivity to arise externally provides a clarification of, rather than a departure from, the previous statements of the law. Admittedly, such an interpretation of Opinion 1/94 is possible, at least partly, with the benefit of hindsight. However, to argue that the approach adopted in Opinion 1/94 would render it very difficult for exclusivity to arise is to ignore that, under the previous case-law, exclusivity had not, in fact, excluded Member States from participating in the negotiation and conclusion of the Agreements examined by the Court. In other words, far from construing implied competence in too restrictive terms, the ruling in Opinion 1/94 interpreted exclusivity in the light of the context within which it had been intended to function. Viewed from this angle, the criticism levelled against the Court appears to be based on assumptions about exclusivity which had no actual foundation in the Court’s case-law. This argument highlights a link between the Court’s approach in Opinion 1/94 to the nature of implied competence and the construction of the scope of the Common Commercial Policy. It is recalled that, in its ruling, the Court held that TRIPs was excluded from the scope of CCP because, otherwise, the harmonising effect of the TRIPs provisions would be binding upon the Union in deviation from its internal rules. This concern that the external competence of the Union should not produce effects which the Member States had been unable or unwilling to sanction internally is also present in the construction of implied competence. Indeed, the requirement that exclusivity arise following complete harmonisation internally is aimed at addressing precisely that concern. Viewed from this angle, the ruling in Opinion 1/94 is characterised by a degree of internal coherence which, in the light of prior case-law, is both surprising and welcome. To argue that harmonisation of national laws has always been a politically charged issue is to state the obvious: the evolving institutional balance addressed in the TFEU legal bases and the long process of transformation from complete to minimum harmonisation indicate that the adoption of harmonising rules constitutes a political choice left to the Union institutions and implemented on the basis of legal rules laid down in primary law. It is difficult to see how the Court could sanction a practice whereby such a choice is made by bypassing the internal legislative system. This point is brought home by the express reference in the ruling to one example, namely the protection of undisclosed technical information as regards industrial designs. Whilst the Commission had put forward proposals in this area, the legislative process provided internally had been far from complete. In fact, had the assessment of exclusivity been dissociated from

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the existence of internal harmonising legislation, the effectiveness of the Union’s implied competence would have been undermined. Indeed, faced with the possibility of engaging in international negotiations which might lead to a choice of legal regulation deemed unsatisfactory internally, the Council would become increasingly reluctant to give the Commission a negotiating mandate. Furthermore, the construction of exclusivity in Opinion 1/94 is consistent with the logic of the doctrine as introduced in the early 1970s. As the Union’s implied competence was deemed to flow from the existence of the internal competence in order to pursue the Union’s objectives, a different definition of exclusivity in Opinion 1/94 would have rendered that principle an alternative instrument of internal regulation rather than the inevitable consequence of supremacy. In this respect, it is hardly surprising that what underpins the parts of the ruling dealing with external competence pursuant to the AETR doctrine is the linkage between the internal and external competences. In treating it as critical to the definition of the nature of the latter, the Court follows closely the approach it had adopted since the genesis of its relevant case-law. Indeed, so central was that link in AETR that, as mentioned above, the whole judgment was characterised by a distinct confusion between the issue of the existence of the Union’s implied competence and that of its nature.

7.5 Comment on the Construction of the Opinion 1/76 Principle In terms of the interpretation of the principle first introduced in Opinion 1/76, the Court’s approach raises certain questions. In its effort to clarify the vague concept of ‘necessity’, the Court introduced an equally vague one: the conclusion of the GATS was not ‘necessary’ for the attainment of freedom of establishment and freedom to provide services for nationals of the Member States because the latter was not ‘inextricably linked’ to the scope of that Agreement which covered the treatment to be afforded to nationals of third countries. In so far as it required to be further clarified, the purported clarification of the ‘necessity’ doctrine is regrettable. And yet, the ruling in Opinion 1/94 does shed some light on how ‘necessity’ is to be understood in so far as the link it suggests between the fulfilment of the Community’s objectives and the exercise of the external competence is considerably closer than originally assumed. It is in order to highlight this point that the Court juxtaposes the GATS with the issues of the navigation of the Rhine and fisheries conservation which had arisen in Opinion 1/76 and Kramer respectively: the relevant objectives, as laid down in TFEU, could not possibly have been achieved unless an international agreement had been concluded. However, the question is not completely answered: how close should this link be and on what basis should it be assessed? Would the conclusion of an international agreement be inextricably linked to the optimal use of the exercise of the internal competence? In relation to TRIPs, the relevance of the ‘necessity’ principle was ruled out in a very short paragraph where it was held that ‘unification or harmonization of intellectually property rights in the Union context does not necessarily have to be accompanied by agreements with non-member countries in order to be effective’.107 Can this be taken to suggest that, after all, there might be scope for a teleological assessment of whether the exercise of 107

n 89 above, para 100.

108 Implied Competence the Union’s implied competence would be effective?108 This question might appear all the more justifiable in the light of the French wording of the Opinion which refers to the ‘effet utile’ of internal legislation. A second question regarding the construction of the principle of ‘necessity’ in Opinion 1/94 is related to the subject-matter of that notion. What the clarifications in the relevant parts of the ruling do not clarify is whether they refer to the existence of the Union’s implied competence or its nature. In that respect, the ruling compounds the confusion originating in Opinion 1/76. The paragraph rejecting the Commission’s claim in relation to TRIPs appears to refer to the need for the Agreement to be concluded, whereas the relevant section of the ruling concludes on the shared competence of the Union and the Member States. However, if the clarification of the principle of ‘necessity’ refers to the nature of the Union’s competence, it provides no explanation of why this should be assumed to be exclusive.109 Indeed, the questions about this issue raised in relation to Opinion 1/76 are still pertinent. There is one formulation of the doctrine of necessity in Opinion 1/94 which is noteworthy. When applying it to the GATS, the Court concludes that ‘external powers may be exercised, and thus become exclusive, without any internal legislation having first been adopted’.110 Applying the objective definition of necessity, this appears to suggest the following: as the internal competence cannot possibly be exercised except through the conclusion of an international agreement, that is through the exercise of the external competence, the legal implications for the position of the Member States would be determined by approaching the provisions of that agreement as if it provided for internal rules. Therefore, as the exercise of the internal competence would have given rise to exclusivity externally and, therefore, prevented the Member States from acting, so would the exercise of the external competence. However, to identify the effects of the exercise of external competence in an Opinion 1/76 senario with those of the exercise of the internal competence is problematic: it does not follow that the latter would give rise to exclusivity externally because it does not follow that it would produce complete harmonisation. After all, this is one of the main tenets of the ruling in Opinion 1/94. The answer to the above two questions, namely the precise definition of the ‘necessity’ requirement along with its material scope, may be interrelated. In other words, the interpretation of the principle originating in Opinion 1/76 should be taken to refer to the exclusivity of the Union’s competence, albeit in circumstances very strictly construed. In other words, rather than being dependent upon a subjective value judgement as to what is desirable in policy terms, the notion of ‘necessity’ is to be applied as an objective one, hence referring to what is factually a sine qua non for the exercise of the internal competence. All in all, the ruling in Opinion 1/94 appears to suggest that arguments as to the desirability, in policy terms, of the conclusion of an international agreement as a facilitator of the attainment of internal objectives are irrelevant to the application of the ‘necessity’ principle. Instead, what really matters is whether the conclusion of that agreement is the only way for the internal competence to be exercised.

108 For a different view, see Dashwood ‘The Attribution of External Relations Competence’ in Dashwood and Hillion, n 7 above, 115 133–34. 109 See P Eeckhout, EU External Relations, 2nd edn (Oxford, Oxford University Press, 2011) 91–92. 110 n 89 above, para 85.

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7.6 An Overall Comment on Opinion 1/94 It is noteworthy that the Court is distinctly reluctant to say anything not strictly necessary on the existence of the Union’s implied competence. As a result, there is a lingering uncertainty about the precise preconditions for and implications of the principles governing that type of competence. At the very core of this lies the apparent confusion between the existence and the nature of that competence, an unfortunate characteristic that the ruling in Opinion 1/94 shares with past case-law. This is partly due to the maximalistic claims of the Commission that the Union’s competence was exclusive on all possible grounds. However, it is noteworthy that, more than 30 years following the introduction of implied external competence in our legal vocabulary, the relevant rulings should still generate conflicting readings of such fundamental a question as that related to its existence.111 This uncertainty notwithstanding, the ruling is not only clearer in its emphasis but also characterised by a degree of internal coherence. This is illustrated, for instance, in rendering the notion of ‘necessity’ an instrument aimed at the factual assessment of whether the internal competence may be exercised only through the exercise of the external competence. At the core of both the application of the AETR principle and the interpretation of the ‘necessity’ doctrine is the exercise of the internal competence or, in the case of the latter doctrine, the impossibility thereof. By focusing on this link between the internal and external rules, the ruling highlights the normative characteristics of the Union’s external competence within the broader context of the EU legal order: in the absence of an expressly provided competence, any other external competence is implied because of its position as a necessary adjunct to the establishment of the single market and the attainment of the Treaties objectives. Indeed, it had been pointed out in Kramer that the competence of the Community to enter into international commitments for the conservation of the resources of the sea ‘follows from the very duties and powers which Community law has established and assigned to the institutions of the Community on the internal level’.112 Put in another way, the conduct of the EU external relations by the Union itself, rather than being an aim in itself, is developed because it has been conceived as instrumental to the exercise of the internal competences. Viewed from this angle, the general statement included in the AETR judgment according to which ‘with regard to the implementation of the provisions of the Treaty the system of internal Community measures may not  … be separated from that of external relations’ is less maximalistic than it might have originally appeared: far from being construed in isolation and developed into a free-standing system, the latter cannot possibly be conceived and carried out but in the light of the former. Therefore, to view the thrust of Opinion 1/94 as a curtailment of the scope of the AETR principle and the ‘necessity’ doctrine is tantamount to dissociating the Court’s earlier, albeit admittedly vague and at times confusing, pronouncements from their specific legal context and attributing to them a meaning which they were not intended to carry. This approach to the Court’s judgments is hardly novel. It is recalled that the general statements about the scope of the Common Commercial Policy contained in the rulings delivered in the 1970s and 1980s were often misconstrued and interpreted 111 112

See eg Dashwood, n 108 above, 130; Tridimas, n 59 above, 54. n 41 above, para 33.

110 Implied Competence in a maximalistic manner, so much so that, even after the ruling in Opinion 1/94, the Commission insisted on invoking them in its quest for an all-encompassing CCP.113 In its more recent case-law, the Court clarified the scope of those early pronouncements and, therefore, that of the Union’s express external competence. It was in the same vein that implied competence was construed by the Court in Opinion 1/94, hence enabling that ruling to unify different strands of the EU external relations case-law. Another point which is noteworthy in Opinion 1/94 is the distinct reluctance of the Court to delineate which areas of the GATS and TRIPs fall within whose competence. It is quite forceful in its articulation of which areas do not fall within the exclusive competence of either the Union or the Member States: in the case of the latter, for instance, the ruling leaves no doubt as to the fact that no domaine réservé for the Member States exists in relation to a number of issues covered by TRIPs, such as procedural rules for violations of intellectual property rights or interim measures and the award of damages. There is also no doubt as to the existence of the Union’s internal competence to introduce harmonising legislation in those areas. However, having ruled out the exclusive competence of either the Union or the Member States, the Court moves on to make two points. The first is that any problems which may arise in the process of the negotiation of a mixed agreement in terms of coordination between the Member States and the Commission and their effect on the Union’s unity of action may not possibly justify exclusivity. The second related point is that both the Member States and the Union institutions are bound by a duty of cooperation. The Court dedicates a separate section, the final one of its Opinion, to that duty compliance with which is deemed ‘essential’ and which is viewed ‘all the more imperative’114 in the WTO context, where the possibility of cross-retaliation should make it possible for either the Community or the Member States to be able to retaliate in an area of GATS or TRIPs falling beyond their competence. In this phase of maturity of the main tenets of the EU external relations principles, the more the exclusive implied competence appears to be the exception rather than the rule, the more the duty of cooperation becomes a focal point in the Court’s rulings. This duty might appear to be a procedural tool too vague to be of any practical significance in the conduct of international relations. However, to dismiss it in those terms would be a mistake. Close cooperation between the Union institutions and the Member States is an obligation imposed upon them pursuant to Union law, and compliance with it is a matter falling within the jurisdiction of the Court of Justice. To argue that the establishment of the internal market and the development of the EU legal order owe a great debt to the development of legal principles based upon broadly worded Union law duties is to state the obvious. In the context of international agreements, the gradual realisation that mixity is the rule will not only reinforce the central position of the duty of cooperation but will also render its construction by the Court essential to the development of the law of EU international relations. This point will be further analysed later in this book. In emphasising the central position of the duty of cooperation in Opinion 1/94, the Court seeks to convey its second message to the Member States and the Community institutions: having already made it clear that, in essence, it is for them to render the external competence of the Union exclusive by exercising its internal competence in 113 See Chapter 2 above, in particular in relation to Opinion 2/00 (re: Cartagena Protocol) [2001] ECR I-2793. 114 n 89 above, para 109.

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order to adopt harmonising rules, it makes it equally clear that, in the absence of such development, it is for them to ensure the Union’s unity of action. In essence, the ruling in Opinion 1/94 may be seen as an important part of the dialogue in which the Court of Justice engages with the Union’s institutions and the Member States. To define the approach of the Court as a mere illustration of judicial restraint is to ignore the subtle terms in which the above dialogue is carried out. Whilst ruling out maximalistic conceptions of exclusivity and underlining the decisive role of the Member States and the Union legislature, by providing, in return, a general duty as a remedy for any ensuing practical difficulties, the Court reserves for itself a position at the very centre of the conduct of EU international relations. Indeed, it will be the elaboration of the implications of that duty in specific cases which will define the legality of the external action of the Member States. In other words, far from being a conditio sine qua non for the curtailment of any unilateralist and divisive initiatives that Member States might wish to undertake, exclusivity is not the only way for the unity of the Union’s external representation to be ensured. Instead, it will be the construction of the alternative substantive and procedural instruments developed by the Court that will contribute to the achievement of that objective. If this analysis of Opinion 1/94 is correct, the ruling is significant not only for what it rejected, that is broad readings of exclusivity, but also for what it suggested with considerable clarity by bringing the conduct of both Union institutions and Member States in areas of shared competence within a Community law framework at the centre of which stands the Court itself. This was an unequivocal sanctioning of the parallel existence of the Union and the Member States and, accordingly, a call for attention to the phenomenon of mixity.

8. CONSOLIDATING THE PRINCIPLES: THE OPEN SKIES JUDGMENTS Consolidating the Principles: The Open Skies Judgments

The Court’s ruling in Opinion 1/94 appeared to render any paean to the indispensable nature of exclusivity broadly construed redundant. Drawing upon prior case-law, it also consolidated the position of implied competence in the EU international relations framework. This consolidating function is reflected by its acceptance by the Community institutions. In its Decision concluding the WTO Agreements, for instance, the Council expressly referred to it: Whereas the competence of the Community to conclude international agreements does not derive only from explicit conferral by the Treaty but may also derive from other provisions of the Treaty and from acts adopted pursuant to those provisions by Community institutions.115

The position articulated in Opinion 1/94 was also confirmed in Opinion 2/92, where the Court held that the conclusion of the Third Revised Decision of the Organisation for Economic Cooperation and Development fell within the competence of both the Union and its Member States.116 However, the questions it left unanswered regarding the preconditions for and implications of exclusivity were raised by the Commission in a series 115 Council Dec 94/800 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986–1994) [1994] OJ L336/1. 116 Opinion 2/92 (re: OECD) [1995] ECR I-521, Part V, paras 31 et seq.

112 Implied Competence of enforcement proceedings it initiated against Member States pursuant to Article 258 TFEU. The subject-matter of those actions was a number of bilateral agreements concluded by eight Member States with the United States in the 1990s.117 The judgments of the Court of Justice attracted considerable attention, not only for the further clarification of the state of the law in the area of EU international relations but also for their implications for policy-making in the area of international aviation.118

8.1 The Legal Background Whilst the EU primary provisions on transport apply to transport by rail, road and inland waterway, ex Article 84(2) EC gave the Council to power to decide ‘whether, to what extent and by what procedure appropriate provisions may be laid down for sea and air transport’.119 In the area of air transport, EU rules were adopted in the form of three separate legislative initiatives.120 The so-called ‘third package’ was adopted by the Council in 1992. Regulation 2407/92 set out a regime under which carrying passengers, mail and cargo by air for remuneration or hire within the Union territory was subject to the appropriate operating licence.121 Such licence would be granted by national authorities only to undertakings which are majority owned and effectively controlled by Member States or their nationals and whose principal place of business and registered office are in the territory of the authorising Member State. Once granted an operating licence, such undertakings are deemed to be Community air carriers within the meaning of Regulation 2408/92122 and may exercise traffic rights on routes within the Community. Member States may regulate the distribution of traffic between their airports without discrimination on grounds of nationality or identity of the air carriers. The establishment of fares and rates charged by Community air carriers for carriage wholly within the Community is subject to Regulation 2409/92,123 the latter expressly being inapplicable to fares and rates charged by non-Community air 117 Case C-466/98 Commission v UK [2002] ECR I-9427; Case C-467/98 Commission v Denmark [2002] ECR I-9519; Case C-468/98 Commission v Sweden [2002] ECR I-9575l Case C-469/98 Commission v Finland [2002] ECR I-9627; Case C-471/98 Commission v Belgium [2002] ECR I-9681; Case C-472/98 Commission v Luxembourg [2002] ECR I-9741; Case C-475/98 Commission v Austria [2002] ECR I-9797; Case C-476/98 Commission v Germany [2002] ECR I-9855. 118 See L Heffernan and C McAuliffe, ‘External Relations in the Air Transport Sector: The Court of Justice and the Open Skies Agreements’ (2003) 28 European Law Review 601; PJ Slot and J Dutheil de la Rochère, annotation on Open skies agreements judgments (2003) 40 Common Market Law Review 697; R Greaves, ‘The Community’s External Competence: Air Transport Services’ (2003) 52 International and Comparative Law Quarterly 499; R Holdgaard, ‘The European Community’s Implied External Competence after the Open Skies Cases’ (2003) 8 European Foreign Affairs Review 365; R Abeyratne, ‘The Decision of the European Court of Justice on Open Skies and Competition Cases’ (2003) 26 World Competition 335; H Wassenbergh, ‘A Mandate to the European Commission to Negotiate Air Agreements with Non-EU States: International Law versus EU Law’ (2003) 28 Air & Space Law 139; N Lavranos, annotation on Open Skies judgments (2003) 30 Legal Issues of Economic Integration 81. 119 Under the current arrangements, Art 100(2) TFEU provides that ‘[t]he European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may lay down appropriate provisions for sea and air transport. They shall act after consulting the Economic and Social Committee and the Committee of the Regions.’ 120 See PS Dempsey, European Aviation Law (The Hague, Kluwer, 2004) ch VI. 121 [1992] OJ L240/1. 122 [1992] OJ L240/8. 123 [1992] OJ L240/15.

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carriers. Furthermore, the right to introduce new products or lower fares than the ones existing for identical products was expressly reserved for Community air carriers. In addition, common rules had already been set out regarding computerised reservation systems (CRSs)124 as well as the allocation of slots at Community airports.125 Against that background, a number of bilateral aviation agreements had been concluded between individual Member States and United States. All but one, that concluded with United Kingdom, were Open Skies Agreements which provided for the exchange of certain rights to be exercised by airlines designated by one contracting party and authorised by the other. These Open Skies Agreements shared a number of features including the following:  free access to all routes between all points situated within the territory of the parties, without limitation of capacity or frequency and with all desired combinations of aircraft;  opportunities for the designated airlines to conclude code-sharing agreements;  provisions for furthering competition or non-discrimination in relation to, amongst others, computerised reservation systems;  exchange of third freedom, ie the right for an airline to carry passengers from its home country to another country;  exchange of fourth freedom, ie the right to carry passengers from another country to the home country;  exchange of fifth freedom, ie the right for an airline to carry passengers to a third country provided that the flight had originated in one of the contracting parties;  a clause on airline ownership and control according to which the authorisation required for the airlines designated by one of the parties to exercise the rights laid down in the agreement would be subject to the condition that a substantial part of the ownership and effective control of that airline be vested in the contracting party designating the airline or/and nationals of it;  a minority shareholders provision according to which United States had the right to withhold or revoke the necessary authorisation to airlines designated by the other contracting party in which citizens of or legal persons based in that party hold less than 50% of its capital. Against this background of extensive secondary legislation on air transport and the conclusion of individual bilateral aviation agreements, the Commission had consistently sought to obtain a mandate by the Council to negotiate an air transport agreement with the United States. Its first two efforts in 1990 and 1992 were rebuffed. A third request in 1995 was met with granting a limited mandate in 1996 confined to specific matters,126 albeit one which did not result in the conclusion of an agreement. The Commission decided to attack all the Open Skies Agreements with the United States concluded by Member States, along with the more limited aviation agreement 124

See Reg 2299/89 [1989] OJ L220/1, amended by Reg 3089/93 [1993] OJ L278/1. [1993] OJ L14/1. 126 These covered competition law, airline ownership and control, computerised reservation systems, codesharing, dispute resolution, leasing, environmental clauses and traditional measures. Pursuant to a later request, these matters were extended to cover state aids, slot allocation at airports, economic and technical fitness of airlines, security and safety clauses, safeguard clauses and any other matter relating to the regulation of the sector. 125

114 Implied Competence between the United Kingdom and the United States. As far as the law of EU international relations is concerned, the main charge levelled by the Commission was that, in negotiating and concluding Open Skies Agreements, the Member States had exercised a competence which they did not have. Instead, the subject-matter of the Agreements fell within the scope of the competence of the Union which was exclusive on two grounds: on the one hand, it was necessary, in the meaning of Opinion 1/76, for the Union to undertake the commitments laid down in the Open Skies Agreements; on the other hand, those commitments affect, within the meaning of the AETR principle, the existing EU rules governing that area.

8.2 The Judgments The Court’s rulings on the Open Skies Agreements were identical in substance. The following analysis will be referring to that delivered in the case against Germany. The Court first qualified the existence of the Community’s competence in the area of international aviation. It was pointed out that the relevant Treaty provision, namely ex Article 84(2) EC, made the power of the Union to act in the area of external aviation dependent on a prior Council decision. This makes it clear that although that provision may be used by the Council as a legal basis for conferring on the Community the power to conclude an international agreement in the field of air transport in a given case, it cannot be regarded as in itself establishing an external Community competence in that field.127

The interpretation of the ‘necessity’ doctrine put forward by the Commission was rejected. The conclusion of an aviation agreement with the USA was not ‘necessary’ in order to achieve the aims of the Treaty in the area of air transport because these aims could be achieved by the establishment of autonomous rules: [T]here is nothing in the Treaty to prevent the institutions arranging, in the common rules laid down by them, concerted action in relation to the United States of America, or to prevent them prescribing the approach to be taken by the Member states in their external dealings, so as to mitigate any discrimination or distortions of competition which might result from the implementation of the commitments entered into by certain member states with the United States of America under ‘open skies’ agreements.128

This point was brought home by reference to the establishment of the internal market in air transport pursuant to the ‘third package’: it was the principle of free movement of services which made this possible rather than any negotiation of an agreement with the United States. In fact, it was following the exercise of the internal competence that the question of the exercise of the external one arose when the Commission was granted a limited negotiating mandate. The second argument put forward by the Commission was that the conclusion of Open Skies Agreements by the Member States was contrary to the competence of the Community, which had been rendered exclusive pursuant to the adoption of internal legislation establishing an internal market in air transport. The starting point for the Court 127 128

Case C-476/98 Commission v Germany, n 117 above, para 81. Ibid, para 85.

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was to assess whether the principle emerging from its post-AETR case-law, namely that the adoption of internal measures entailed recognition of exclusive external competence for the Union, was also applicable to the specific provision of ex Article 84(2) EC; this was necessary because the competence to act, both internally and externally, was subject to a Council decision providing ‘whether, to what extent and by what procedure’ Union rules would be adopted. This question was answered in the affirmative on the basis of the, by now familiar, effet utile rationale.129 The Court, then, went on to summarise the state of the law in a concise manner which makes the relevant extract worth citing in full: 107 It must next be determined under what circumstances the scope of the common rules may be affected or distorted by the international commitments at issue and, therefore, under what circumstances the Community acquires an external competence by reason of the exercise of its internal competence. 108 According to the Court’s case-law, that is the case where the international commitments fall within the scope of the common rules (AETR judgment, paragraph 30), or in any event within an area which is already largely covered by such rules (Opinion 2/91, paragraph 25). In the latter case, the Court has held that Member States may not enter into international commitments outside the framework of the Community institutions, even if there is no contradiction between those commitments and the common rules (Opinion 2/91, paragraphs 25 and 26). 109 Thus it is that, whenever the Community has included in its internal legislative acts provisions relating to the treatment of nationals of non-member countries or expressly conferred on its institutions powers to negotiate with non-member countries, it acquires an exclusive external competence in the spheres covered by those acts (Opinion 1/94, paragraph 95; Opinion 2/92, paragraph 33). 110 The same applies, even in the absence of any express provision authorising its institutions to negotiate with non-member countries, where the Community has achieved complete harmonisation in a given area, because the common rules thus adopted could be affected within the meaning of the AETR judgment if the Member States retained freedom to negotiate with non-member countries (Opinion 1/94, paragraph 96; Opinion 2/92, paragraph 33). 111 On the other hand, it follows from the reasoning in paragraphs 78 and 79 of Opinion 1/94 that any distortions in the flow of services in the internal market which might arise from bilateral ‘open skies’ agreements concluded by Member States with non-member countries do not in themselves affect the common rules adopted in that area and are thus not capable of establishing an external competence of the Community. 112 There is nothing in the Treaty to prevent the institutions arranging, in the common rules laid down by them, concerted action in relation to non-member countries or to prevent them prescribing the approach to be taken by the Member States in their external dealings (Opinion 1/94, paragraph 79).

The Court went on to repeat its dictum in Opinion 1/94: [A]ny distortions in the flow of services in the internal market which might arise from bilateral ‘open skies’ agreements concluded by Member States with non-member countries do not in 129 The Court pointed out that ‘if the Member States were free to enter into international commitments affecting the common rules adopted on the basis of [ex] Article 84(2) of the Treaty, that would jeopardise the attainment of the objective pursued by those rules and would thus prevent the Community from fulfilling its task in the defence of the common interest’ (ibid, para 105).

116 Implied Competence themselves affect the common rules adopted in that area and are thus not capable of establishing an external competence of the Community.130

Instead, what needs to be established is whether the common rules adopted internally are capable of being affected by the international commitments undertaken by the Member States in the context of their Open Skies Agreements. The Court, then, dealt with the general argument put forward by the Commission that the cumulative effect of the Open Skies Agreements would give rise to discrimination and distortions of competition which would, then, affect the normal functioning of the internal market in air transport. That was dismissed: the Court repeated that distortions alone were not capable of affecting the common rules. According to the Court, this clearly indicated that the Third Package did not, in fact, establish complete harmonisation in the area of air transport. Instead, what was required was a detailed assessment of the specific issues covered by the Open Skies Agreements and their effect, or lack thereof, on the common rules laid down in the Third Package. The fifth-freedom rights conferred upon American airlines were deemed not to affect the Union’s competence because they fell beyond the scope of the common rules. Indeed, the latter did not apply to non-EU air carriers operating within the EU.131 On the other hand, the common rules did lay down a number of provisions applicable to third countries and their carriers. These included the introduction of new products or fares lower than the ones existing for identical products and the provision for access to computerised reservation systems. The former was confined to Union air carriers, whereas the latter was also applied to third-country air carriers subject to reciprocity. Therefore, by extending those rights to US air carriers, the Member States had acted in an area which had fallen within the Union’s exclusive competence. The latter was also deemed to cover the allocation of slots at EU airports.132 Finally, the Court went on to conclude that the ownership control clause of the Open Skies Agreements was contrary to the principle of free movement of services.

8.3 Comment on the Open Skies Judgments A noteworthy, albeit not surprising, feature of the Court’s rulings is the confusion between the issues of the existence and nature of the Union’s external competence.133 The parts of the judgment examining the applicability of the ‘necessity’ doctrine and the AETR principle are preceded by a heading referring to the ‘alleged existence of an external Community competence’.134 On the one hand, the Court started off its analysis of whether the Union’s external competence exists at all in the light of the specific wording of ex 130

Ibid, para 111 (emphasis added). Ibid, para 118 where it was pointed out that ‘the international commitments in issue do not fall within an area already covered by [those regulations and, therefore,] cannot be regarded as affecting [them]’. 132 However, the Commission’s claim that the Member States had violated that competence was dismissed as unfounded because no commitments undertaken under the Agreements were identified by the Commission as capable of affecting the relevant rule of Reg 95/93. 133 See R Holdgaard, ‘The European Community’s Implied External Competence after the Open Skies Cases’ (2003) 8 European Foreign Affairs Review 365, 388–89. 134 Case C-476/98 Commission v Germany, n 117 above, paras 71 et seq and 91 et seq. 131

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Article 84(2) EC and in the absence of internal rules;135 on the other hand, it concluded that part of the judgment by ruling out the Community’s ‘exclusive external competence within the meaning of Opinion 1/76’.136 More than thirty years since the recognition of the implied external competence of the Community, such confusion is striking. However, in order to appreciate the implications of this apparent confusion, the main thrust of the judgments in the Open Skies cases need to be examined first. In terms of the principle of necessity as first elaborated in Opinion 1/76, the judgments in Open Skies leave no doubt as to the strictly defined circumstances under which it would apply: it is only in so far as the objectives of the Union may not possibly be achieved pursuant to the exercise of the internal competence that the external one applies. In its judgment, the Court’s determination to confirm the objective definition of ‘necessity’ was at the expense of a clearer definition of exclusivity. In his Opinion, Advocate General Tizzano had argued against the assumption that the competence of the Community would become exclusive automatically when necessary. Relying upon a clear parallelism between the internal and external spheres, he had argued for the ‘proceduralisation’ of necessity, that is its assessment by the EC institutions pursuant to the procedures laid down in the EC Treaty for the exercise of the internal competence or, in the absence thereof, under Article 268 TFEU.137 This analysis was ignored. Instead, the line of reasoning followed by the Court was characterised by a distinct determination to construe necessity in objective terms, with no scope for policy-oriented and inevitably subjective considerations to be taken into account. This approach has been viewed as not only unduly restrictive of the scope of the Opinion 1/76 principle138 but also as making it virtually impossible for the implied competence to arise under such circumstances.139 Be that as it may, it is worth pointing out that the ruling in the Open Skies litigation is consistent with the logic underpinning the ruling in Opinion 1/94 in so far as both are centred around the link between the internal and the external spheres of Union action. This takes various forms. At the constitutional level, this is manifested by approaching implied external competence as an adjunct to the ultimate exercise of internal competence, hence rendering it an instrument for pursuing the EU objectives. The primary objective of the establishment of the internal market in air transport, for instance, is the freedom of the nationals of Member States to provide services: an international agreement regulating the legal treatment of EU nationals in a non-Member State or that of third-country nationals in the Community would be necessary within the meaning of Opinion 1/76 only if the freedoms of the nationals of Member States could not be achieved except through the conclusion of such agreement. After all, had the exercise of the internal competence been possible separately from the external, the latter would have become exclusive pursuant to the AETR principle. The above construction of the relationship between internal and external competence is also evident in the Court’s application of the AETR principle. It is recalled that potential distortions in the internal market which might arise following the conclusion 135

Ibid, paras 81 and 82. Ibid, para 89. 137 See paras 47–57 of his Opinion. 138 See L Grard, ‘La Cour de justice des Communautés européennes et la dimension externe du marché unique des transports aériens—A propos des huit arrêts du 5 novembre 2002 dans l’affaire dite “open skies”’ [2002] Cahiers de Droit Europeen 695. 139 See Eeckhout, n 109 above, 104. 136

118 Implied Competence of bilateral agreements by Member States were considered insufficient to establish exclusive competence in the absence of internal harmonisation. This strict approach has been criticised as too deferential to the Member States and dismissive of the realities of the regulation of international aviation.140 However, the approach adopted in the Open Skies judgments should be viewed in the light of two principal considerations. The first has to do with the line of reasoning upon which the Commission had sought to base its claim to exclusivity, that is arguments of a practical nature and clearly policy-oriented: domestic and international aviation was presented as incapable of being separated either economically or legally and purely internal measures were deemed ineffective in the light of the international character of the activities carried out. It is not the first time the Commission put forward this type of reasoning in order to suggest that exclusivity was essential to the conduct of the Union’s external relations: similar arguments had supported its claims in relation to the GATS and TRIPs in Opinion 1/94 as well as a very broadly defined CCP both in that case and in Opinion 2/00. Indeed, its construction of the CCP, and the exclusive competence underlying its exercise, has been based on precisely such assumptions about the effectiveness of internal rules and the dynamic nature of international trade.141 In adopting this approach so consistently, the Commission appears to view exclusivity as an instrument for effective Union policy-making on the international scene. This is diametrically opposed to the Court’s rationale of exclusivity which has been the attainment of the Union’s objectives and the supremacy of Community law. As Dashwood pointed out, the AETR principle ‘is derived, not from the elusive notion of l’effet utile, but from the fundamental constitutional principle that Community rules prevail over national ones’.142 It is noteworthy that the point of departure in the Court’s judgment appears entirely different from that of the Commission: whereas the latter relies upon the problems raised by the external actions of the Member States as evidence of the need for exclusive Union competence, the Court approaches these problems as merely practical issues which need to be tackled. This approach is explained by the strict construction of the implications of exclusivity. It is recalled that in Opinion 2/91 it had already been made clear that, once the Union competence has been rendered exclusive, any action undertaken by the Member States individually or collectively beyond the Community framework would be contrary to EU law, irrespective of whether its content would be compatible or not with that of the relevant internal rules. In the Open Skies litigation, the Court confirmed this strict construction of exclusivity: a Member State may not argue, in its defence, that the substance of the international commitments it undertook individually was not in conflict with internal common rules; or that there is a provision in the bilateral international agreement requiring that Community measures in existence at that time be complied with. As a matter of principle, Community law is deemed to have been violated and the Member State concerned to have failed to fulfil its obligations by undertaking international

140 See Slot and de la Rochère, n 118 above, 709–10; L Grard, ‘L’Union européenne et le droit international de l’aviation civile’ (2004) 49 Annuaire Français de Droit International 492, 498. 141 See Chapter 2 above. 142 A Dashwood, ‘The Attribution of External Relations Competence’ in Dashwood and Hillion (eds), n 7 above, 115, 135.

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commitments without authorisation even if the substance of that commitment does not necessarily conflict with Community law.143 This rather automatic conclusion as to the illegality of national action is not dissimilar to the approach adopted by the Court in other enforcement procedures initiated by the Commission against Member States: the Court has been particularly sceptical of the various defences put forward by the defendant states in general, all the more so in particular cases where national law maintains ‘an ambiguous state of affairs’ in relation to compliance with Union law.144 However, it should be stressed that the implications of exclusivity would not be of a sweeping scope; the judgments in Open Skies make it clear that the international obligations undertaken by Member States would be examined against existing Union legislation not as a whole but in relation to particular, individually assessed matters. As for the concerns regarding the so-called ‘timid’ approach to national competence, it should be stressed that the Court’s line of reasoning on the issue of competence should not be dissociated from the overall legal context within which the judgments were delivered. It is recalled that the Member States were found to have violated Article 56 EC on the free movement of services by agreeing upon an ‘ownership and control’ clause with the United States. The Court did reject the Commission’s claim to exclusivity over the totality of the Open Skies Agreements as well as the determination of routes, that is their most central aspect. However, by carving out what were considered a number of peripheral issues145 and asserting the exclusive nature of the Union’s competence over the negotiation of their content, the Court created the momentum for which the Commission had been looking for years. Without the right to negotiate on computerised reservation systems, slot allocation and pricing, the negotiation of international aviation agreements unilaterally by individual Member States became a distinctly unattractive option.146 The developments following the judgments illustrate the point made above. Within less than two weeks after the judgments had been delivered, the Commission issued a Communication in which it laid down its policy objectives in the area of international aviation.147 It argued for a unified approach which would enable the Community to negotiate air transport agreements of a broad scope, covering not only the areas which the Court had held to be covered by the Union’s exclusive competence but also areas falling within shared competence such as safety, competition and the environment. It also made it clear that it expected the Member States to denounce their Open Skies Agreements.148 The following year the Commission, again, urged the Council to grant it a general mandate for EU negotiations with third countries which was viewed necessary in policy terms and desirable for rendering the bilateral agreements compatible with Union

143 In relation to the right to charge lower fares or introduce new products, see Case C-476/98 Commission v Germany, n 117 above, para 127; in relation to computerised reservation systems, see ibid, para 131. 144 See eg Case 167/73 Commission v France [1974] ECR 359, para 41. 145 See Grard, n 139 above, 722. 146 As Slot and de la Rochère put it, ‘without the possibility to discuss slots, CRS’s and prices and with the duty to allow other Community carriers to share traffic rights, negotiating and concluding agreements with third countries is no longer an attractive option’: n 118 above, 711. 147 COM(2002) 649 final: On the consequences of the Court judgments of 5 November 2002 for European air transport policy. 148 See also Answer by Commissioner de Palacio in Written Question E-3511/02, [2003] OJ C161E/98.

120 Implied Competence law.149 In particular, the Commission envisaged the conclusion of an agreement which would establish a Transatlantic Aviation Area the aim of which would be ‘to go beyond the current “open skies” agreements and to eliminate fragmentation of the European market that results from existing bilateral agreements and create more operational and financial flexibility for Community airlines’.150 It is beyond the scope of this chapter to analyse how the process of the redefinition of the international aviation policy has developed and to examine the outcome of the negotiation with the United States.151 What is noteworthy in terms of this analysis is that, in approaching the implied competence of the Union from the angle of its intrinsic link with the internal market and construing it in a pragmatic manner, the Court continues to set the tone and pace of the development of the EU international relations. It is difficult to imagine how the implications of its rulings would have been more profound in practical terms had they defined exclusivity in bolder terms. All in all, the construction of the exclusive nature of implied competence is by no means the most decisive factor in the framework within which the Union is called upon carry out its international relations. It is also the legal effects of the fundamental principles of the internal market and the evolving and interdependent international environment which shape the ways in which the EU acts.

9. CONSOLIDATION AND FURTHER QUESTIONS IN OPINION 1/03 Consolidation and Further Questions in Opinion 1/03

The fundamental principles of the Union’s implied external competence were revisited by the Court in Opinion 1/03.152 The subject-matter of the ruling was the Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. This was based on the original Lugano Convention concluded between EU Member States and European Free Trade Association (EFTA) states.153 The aim of the Convention was to create a system of jurisdiction and enforcement of judgments which would mirror that applied within the Union and which would govern the relationships between EU and EFTA states. The EU system was originally laid down in the Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters concluded in 1968.154 In the light of the increased competence in the area of judicial cooperation in civil matters with which the Union was endowed under

149 Declaration on relations between the Community, its Member States and third countries in the field of air transport [2003] OJ C69/03 and COM(2003) 94 final: Communication on relations between the Community and third countries in the field of air transport. On the practical problems of EC–US negotiations of an aviation agreement of a broad scope, see Wassenbergh, n 118 above. 150 Answer to Written Question E-3510/02 [2003] OJ C222E/78. 151 See the overview in Chapter 9, section 4. See also the interesting account provided in C Woll, Transatlantic Relations as a Catalyst to European Integration—The Activism of the European Commission in the Case of International Aviation (Washington, DC, American Institute for Contemporary German Studies, The Johns Hopkins University, 2003). On the negotiating mandates given to the Commission, see CNK Franklin, ‘Flexibility vs Legal Certainty: Article 307 EC and Other Issues in the Aftermath of the Open Skies Cases’ (2005) 10 European Foreign Affairs Review 79, 103–14. 152 [2006] ECR I-1145. 153 [1988] OJ L319/9. The contracting parties which are not EU Member States are now Iceland, Norway, and Switzerland. The new text of the Convention, which was examined by the Court in Opinion 1/03, is published in [2009] OJ L147/5. 154 [1972] OJ L299/32.

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the Treaty of Amsterdam, the system of the Brussels Convention was amended and set out in Council Regulation 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (known as ‘the Brussels Regulation’).155 As the original Lugano Convention drew on the Brussels Convention, the transformation of the latter in the Brussels Regulation required the revision of the former. The later Lugano Convention largely reproduced the provisions of the Brussels Regulation. It was the outcome of this process that led to the request to the Court of Justice by the Council for an opinion under Article 218(11) TFEU. The question was whether the conclusion of the Convention fell within the exclusive competence of the Union or whether the competence to conclude it was shared between the Union and the Member States. Its significance was illustrated by the fact that 14 national governments submitted observations to the Court. In its Opinion, the Court of Justice distinguished clearly between the existence of the Union’s external competence and its nature. In doing so, it departed from the earlier rulings which had established the main parameters of the EU’s implied external competence and which had somehow failed to treat these two points separately. The Court, then, revisited and clarified the foundations of implied external competence. It clarified, for instance, its ruling in Opinion 1/76156 and made it clear that the principle it had articulated therein gave rise to exclusive competence even though this was not spelled out in that ruling.157 It then summarised the circumstances under which such competence may arise. With reference to Opinion 1/94158 and the Open Skies judgments,159 it identified three situations in which exclusive Union competence may arise: [W]here the conclusion of an agreement by the Member States is incompatible with the unity of the common market and the uniform application of [Union] law ([AETR], paragraph 31), or where, given the nature of the existing [Union] provisions, such as legislative measures containing clauses relating to the treatment of nationals of non-member countries or to the complete harmonisation of a particular issue, any agreement in that area would necessarily affect the [Union] rules within the meaning of the [AETR] judgment.160

However, the Court made it clear that ‘those three situations  …are  …only examples, formulated in the light of the particular contexts with which the Court was concerned’.161 In elaborating on how the AETR principle would apply, the Court held that: [T]he assessment must be based not only on the scope of the rules in question but also on their nature and content. It is also necessary to take into account not ony the current state of [Union] law in the area in question but also its future development, insofar as that is foreseeable at the time of that analysis.162

This is, arguably, a broader test than that set out in previous case-law. The rationale was explained as follows:

155 [2001] OJ L12/1, recast by Reg 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2012] OJ L351/1. 156 See n 55 above. 157 See para 115 of Opinion 1/03, n 152 above. 158 See n 89 above. 159 n 117 above, 160 See Opinion 1/03, n 152 above, para 122. 161 Ibid, para 121. 162 Ibid, para 126.

122 Implied Competence [I]t is essential to ensure a uniform and consistent application of the [Union] rules and the proper functioning of the system which they establish in order to preserve the full effectiveness of [Union] law.163

In concluding its consolidation of the principles governing the Union’s implied external competence, the Court pointed out that a comprehensive and detailed analysis must be carried out to determine whether the [Union] has the competence to conclude an international agreement and whether that competence is exclusive. In doing so, account must be taken not only of the area covered by the [Union] rules and by the provisions of the agreement envisaged, insofar as the latter are known, but also fo the nature and content of those rules and those provisions, to ensure that the agreement is not capable of undermining the uniform and consistent application of the [Union] rules and the proper functioning of the system which they establish.164

On the specific subject-matter of the request, the Court concluded that the Union’s competence to conclude the Lugano Convention was exclusive. This was preceded by a detailed analysis of the rules and procedures laid down in the Convention. The Court pointed out the ‘uniform and coherent nature of the system of rules’ set out in the Brussels Regulation165 and the fact that the purpose of the Convention and the wording of its provisions were based on the Regulation. It then referred to the disconnection clause contained in the Convention. Such clauses are included in multinational agreements where the Member States participate either on their own or along with the Union and prevent the application of the provisions of the agreement amongst Member States. Such clauses, which became popular since the 1980s and are to be found particularly in agreements concluded within the context of the Council of Europe, aim to ensure that EU law applies instead in the relationships between Member States.166 The existence of this clause (in Article 54B of the Lugano Convention) was presented to the Court as evidence that the conclusion of the latter by the Member States would not have had an effect on the application of EU law. However, the Court rejected this approach and held that ‘such a clause may provide an indication that that agreement may affect the [Union] rules’.167 It pointed out that the clause included exceptions168 which might prevent the application of the rules of jurisdiction laid down in the Brussels Regulation.

163

Ibid, para 128. Ibid, para 133. 165 Ibid, para 148. 166 See M Cremona, ‘Disconnection Clauses in EU Law and Practice’ in C Hillion and P Koutrakos (eds), Mixed Agreements Revisited—The EU and its Member States in the World (Oxford, Hart Publishing, 2010) 160; C Economides and A Kolliopoulos, ‘La clause de deconnexion en faveur du droit communautaire: Une Pratique critiquable’ (2006) 110 Revue Générale de Droit International Public 273; and M Smrkolj, ‘The Use of the ‘Disconnection Clause’ in International Treaties: What Does it tell us about the EC/EU as an Actor in the Sphere of Public International Law?’ (14 May 2008), available at SSRN: http://ssrn.com/abstract=1133002. 167 Opinion 1/03, n 152 above, para 154. 168 Art 54B(2)(a) of the Convention provides that the provisions of the latter apply in any event where the defendant is domiciled in the territory of the a Contracting State which is not an EU Member State and that Art 16 (on exclusive jurisdiction) and 17 (on the prorogation of jurisdiction) of the Convention confer a jurisdiction on the courts of a Contracting State which is not an EU Member State. Art 54(B)(2)(b) provides that the Convention rules on lis pendens or related actions apply to proceedings instituted in a Contracting State which is not an EU Member State and in a Contracting State which is an EU Member State. 164

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In the light of its line of reasoning and conclusion, Opinion 1/2003 was seen as ‘a bold assertion of exclusivity’.169 In the light of its effort to consolidate and clarify the principles governing the Union’s implied external competence, it may appear to introduce a broader assessment of whether the Union’s implied competence to conclude an international agreement is exclusive under the AETR principle. The implications of this reformulation are not clear. Interpreted literally, consideration for the future development of Union law in the area may extend the scope of the principle unduly. However, such an interpretation would be unwarranted and there is not much in the ruling itself to support it. In fact, the Court reminds us: [T]he [Union] enjoys only conferred powers and  …, accordingly, any competence, especially where it is exclusive and not expressly conferred by the Treaty, must have its basis in conclusions drawn from a specific analysis of the relationship between the agreement envisaged and the [Union] law in force and from which it is clear that the conclusion of such an agreement is capable of affecting the [Union] rules.170

Furthermore, the specific context within which Opinion 1/03 was rendered should not be ignored. Not only did the Lugano Convention largely duplicate the content of the Brussels Regulation, but both measures were also about the development of a body of judicial authority which would be recognised and enforced within the territorial scope of their application. Furthermore, both measures were based on a system of rules and procedures which were detailed, coherent and developed. Therefore, whilst signifying ‘a bold assertion of exclusivity’, the approach in Opinion 1/03 needs to be examined in its proper context.171 The ruling in Opinion 1/03 was rendered thirty-five years following the judgment in AETR. During this time, this principle, along with the doctrine of necessity articulated in Opinion 1/76, was introduced, developed, adjusted to the Union’s constantly evolving constitutional framework, and applied to specific sets of circumstances. It is a testament to the dynamic nature of the Union’s idiosyncratic legal order that its institutions should have developed such a rich and multilayered presence in the world on the basis of constitutional principles which are shrouded in considerable ambiguity and the main tenets of which are articulated gradually and somewhat elliptically. And yet, it is regrettable that, after so may years, the Court should not resist the temptation to accompany its clarifications of the previous case-law with yet more ambiguity and to introduce new parameters in the application of exclusivity for the Union’s implied external competence.

10. FURTHER LIMITS ON IMPLIED COMPETENCE

The above analysis on the interpretation of the Union’s implied competence focused on the construction of exclusivity as this has been the aspect upon which the Court has placed considerable emphasis. However, there are also limits to the very existence of implied competence. This became clear in Opinion 2/94, where the Court dealt with

169 See M Cremona, ‘External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Effects of International Law’ (2006) EUI Working Paper No 22, 5. 170 n 152 above, para, 124. 171 See Cremona, n 169 above.

124 Implied Competence the question of the Union’s accession to the European Convention on Human Rights.172 This should be examined in its legal context, which differs from the current one. At the time, human rights were protected solely as part of the Community’s general principles of law and there was no Charter of Fundamental Human Rights of the European Union. Following the entry into force of the Lisbon Treaty, the subject-matter of Opinion 2/94 is dealt with under Article 6(2) TEU, which endows the Union with express competence to accede to the Convention.173 The request for this Opinion was made by the Council and was focused on the compatibility of accession with the EU primary law. The significance of the issue discussed was illustrated by the fact that, in addition to the Commission and the European Parliament, 11 governments submitted observations. The ruling of the Court on the substance of the request was quite brief. First, it referred to the principle of conferred powers currently enshrined in Article 5 TEU and pointed out that it should be respected in both the internal and the international action of the Community. It, then, restated the main principles of implied powers with reference to Opinion 2/91 and pointed out that: [N]o Treaty provision confers on the Community institutions any general power to enact rules on human rights or to conclude international conventions in this field.174

The Court went on to examine whether such competence might be based on the general clause of Article 308 EC (now Article 352 TFEU). That provision reads as follows: If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures.

The Court was keen not to render Article 308 EC (now 352 TFEU) an instrument which would extend the Community’s competence unduly: That provision, being an integral part of an institutional system based on the principle of conferred powers, cannot serve as a basis for widening the scope of Community powers beyond the general framework created by the provisions of the Treaty as a whole and, in particular, by those that define the tasks and the activities of the Community. On any view, Article [308] cannot be used as a basis for the adoption of provisions whose effect would, in substance, be to amend the Treaty without following the procedure which it provides for that purpose.175

In its ruling, the Court emphasised the special significance of respect for human rights in Community law: not only was this expressly mentioned in the preamble to the Single European Act, as well as the TEU and the EC Treaty, but it had also been well established in the case-law of the Court. Indeed, fundamental human rights formed an integral part of the general principles of law the observance of which the Court ensures ‘by drawing

172 Opinion 2/94 (re: Accession of the European Communities to the European Human Rights Convention) [1996] ECR I-1759 173 At the time of writing, a draft agreement between the EU and the Council of Europe is being considered by the Court of Justice for its legality under EU law in accordance with Art 218(11) TFEU. On the accession, see P Gragl, The Accession of the European Union to the European Convention on Human Rights (Oxford, Hart Publishing, 2013). 174 n 172 above, para 27. 175 Ibid, para 30.

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inspiration from the constitutional traditions common to the member States and from the guidelines supplied by the international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories’.176 However, the fact that respect for human rights constituted a condition of the legality of Community law did not entail the Community’s competence to accede to ECHR: Accession to the Convention would  … entail a substantial change in the present Community system for the protection of human rights in that it would entail the entry of the Community into a distinct international institutional system as well as integration of all the provisions of the Convention into the Community legal order. Such modification of the system for the protection of human rights in the Community, with equally fundamental institutional implications for the Community and the Member States, would be of constitutional significance and would therefore be such as to go beyond the scope of Article [308]. It could be brought about only by way of Treaty amendment.177

In terms of the human rights policy of the Community, the ruling gave rise to a healthy academic debate.178 In terms of the construction of implied competence, the overall tone as well as the substance of the line of reasoning followed by the Court highlighted its emphasis on the limits of such powers. This was consistent with the overall tenor of the external relations case-law in the 1990s which was also more explicit in articulating the limits to the function and implications of external competence. In addition, the question of the limits of Community’s competence had recently acquired considerable weight following the ruling of the German Federal Constitutional Court in Brunner and its emphasis on the significance of the principle of conferred powers.179 Whilst ruling out the existence of implied competence in the area of human rights as primary law stood then, the Court was careful not to make a general pronouncement on the external competence of the Community to act in that area pursuant to Article 308 EC: having identified the limits imposed by the principle of limited powers upon the function of that provision, it proceeded to reject the Community’s competence to accede to the ECHR on the basis of its implications upon the constitutional and institutional system of the Union. This left open the question of reliance upon Article 308 EC for other external activities on human rights.180 It is not only constitutional limits which define the Union’s competence. The latter is also subject to the procedural rules set out in primary law and the powers which they allocate to different institutions in a manner which reflects the Union’s idiosyncratic constitutional order. These are explored in Chapter 4.

176

Ibid, para 33. Ibid, paras 34–35. 178 See AM Arnull, ‘Left to its Own Devices? Opinion 2/94 and the Protection of Fundamental Rights in the European Union’ in Dashwood and Hillion, n 7 above, 61; M Cremona, ‘The EU and the External Dimension of Human Rights Policy’ in S Konstadinidis (ed), A Peoples’ Europe—Tuning a Concept into Content (Aldershot, Ashgate, 1999) 155; and JHH Weiler and SC Fries, ‘A Human Rights Policy for the European Community and Union: The Question of Competences’ in P Alston (ed), The EU and Human Rights (Oxford, Oxford University Press, 1999) 147. 179 See n 36 above. 180 See L Bartels, Human Rights Conditionality in the EU’s International Agreements (Oxford, Oxford University Press, 2005) ch 7; E Cannizzaro, ‘The Scope of the EU Foreign Policy Power—Is the EC Competent to Conclude Agreements with Third States Including Human Rights Clauses?’ in E Cannizzaro (ed), The European Union as an Actor in International Relations (The Hague, Kluwer, 2002) 296; Eeckhout, n 109 above, 86. 177

126 Implied Competence 11. INTERPRETING THE LISBON PROVISIONS ON EXTERNAL COMPETENCE Interpreting the Lisbon Provisions on External Competence

The analysis in this chapter began by setting out the provision of Article 216 TFEU about the circumstances under which the Union is endowed with the competence to conclude an international agreement and that of Article 3(2) TFEU about the circumstances under which such competence is exclusive. It was pointed out that the wording of both drew upon the case-law of the Court of Justice and its analysis ought to take that into account. It is recalled that Article 216 TFEU sets out the following four cases where the EU has external competence to conclude an international agreement: (a) where the Treaties so provide; (b) where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union’s policies, one of the objectives referred to in the Treaties; (c) where the conclusion of an agreement is provided for in a legally binding act; (d) where the conclusion of an agreement is likely to affect common rules or alter their scope. The first case is straightforward and refers to the Union’s express external competence. The second appears to refer to the principle of necessity introduced in Opinion 1/76. However, examined against that principle and the case-law which has clarified its application, certain issues arise. On the one hand, it is recalled that the necessity principle has been interpreted extremely strictly so that it only applies where the conclusion of an international agreement is inextricably linked to the achievement of an objective for which an internal competence has been granted and which may not possibly be attained by establishing autonomous rules. In fact, so restrictively has the principle been construed that it has only been applied once, in the Opinion 1/76 which also introduced it. Any reference to this context is missing in Article 216 TFEU—and yet, this context is essential for our understanding of the principle. Interpreted literally, with no reference to the case-law of the Court, the second case in Article 216 TFEU might lead to broadening up the scope of the application of the necessity principle considerably. In relation still to case (b) above, Article 216 TFEU does not confine the application of the necessity principle to the specific objectives set out in a specific legal basis which confers on the Union a specific internal competence. Instead, it may suggest that any matter ‘within the framework of the Union’s policies’ which aims to achieve ‘one of the objectives referred in the Treaties’ may be seen rendering the conclusion of an international agreement ‘necessary’. Such interpretation would not only transform Article 216 TFEU into an autonomous substantive legal basis, but would also render the reference to express external competence in Article 216 TFEU redundant. It would also run counter to the case-law of the Court and would deprive the principle of necessity of its highly exceptional status.181 The third case set out in Article 216 TFEU appears to refer to a set of circumstances which was not articulated by the Court in the early 1970s in the context of either the AETR or the necessity principle. In fact, it was in Opinion 1/94 that the Court referred to secondary legislation providing for the conclusion of an international agreement. It is

181 See A Dashwood, M Dougan, B Rodger, E Spaventa and D Wyatt, Wyatt and Dashwood’s European Union Law, 6th edn (Oxford and Portland, OR, Hart Publishing, 2011) 920–21.

Interpreting the Lisbon Provisions on External Competence 127 recalled that, in ascertaining whether the conclusion of GATS fell within the exclusive competence of the Union. the Court stated that: Whenever the Community has included in its internal legislative acts provisions relating to the treatment of nationals of non-member countries or expressly conferred on its institutions powers to negotiate with non-member countries, it acquires exclusive external competence in the spheres covered by those acts.182

This was preceded by references to such measures.183 It is noteworthy that Article 216(1) TFEU refers only to the latter possibility envisaged by the Court (namely the express conferral in an internal legislative act of the competence to negotiate an agreement) and makes no reference to the former (ie the provision in a legislative act on the treatment of nationals of non-Member States). In any case, the formulation in Article 216 TFEU may appear to imply an unlimited power for the EU institutions to include in secondary measures provisions which would bestow upon the Union the competence to conclude international agreements. Such interpretation would ignore the specific context in Opinion 1/94 within which the Court made the above statement and which made it clear that the conclusion of international agreements was the necessary corollary for the application of internal market legislation.184 It would also run counter to the principle of conferred powers.185 The last case mentioned in Article 216 (1) TFEU appears to reflect the principle first set out in AETR. It is recalled that one of the characteristics of that judgment was the confusion between the existence and the nature of the Union’s implied external competence. Viewed from this angle, a reference to the principle in the context of the existence of external competence may be seen as introducing a degree of conceptual clarity lacking in the relevant case-law. And yet, if the conditions mentioned in Article 216(1) TFEU were met, ie if the conclusion of an international agreement ‘is likely to affect common rules or alter their scope’, then the competence of the Union to conclude would be exclusive. This is at the core of the AETR principle and this is precisely the issue with which the Court dealt in the Open Skies cases and in Opinion 2/03. Therefore, what Article 216(1) TFEU mentions as the foundation of the existence of the Union’s external competence is what the Court has viewed as the foundation of the Union’s exclusive competence. It is somewhat ironic that the introduction of a new provision aiming to codify a complex line of case-law has ended up complicating things further. Whilst Article 216(1) TFEU aims to set out the set of circumstances in which the Union has competence to conclude an international agreement, Article 3(2) TFEU sets out the three circumstances under which the EU has exclusive competence to do so: (a) where its conclusion is provided for in a legislative act of the Union; (b) where its conclusion is necessary to enable the Union to exercise its internal competence; 182

Opinion 1/94, n 89 above, para 95. For instance, Second Council Directive (89/646/EEC) of 15 December 1989 on the coordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions and amending Directive 77/780/EEC [1989] OJ L386/1. 184 In fact, Dashwood views this formulation as a case of the application of the principle of necessity and finds its inclusion in Article 216 TFEU ‘redundant and misleading’: n 181 above, 921. 185 See M Cremona, ‘The Union’s External Action: Constitutional Perspectives’ in G Amato, H Bribosia and B de Witte (eds), Genesis and Destiny of the European Constitution (Brussels, Bruylant, 2007) 1173, 1184. 183

128 Implied Competence (c) insofar as its conclusion may affect common rules or alter their scope. It becomes immediately apparent that the wording of the two provisions is similar, if not almost identical. Of the cases mentioned in Article 3(2) TFEU, the first corresponds to the dictum of the Court in Opinion 1/94, the second to the principle of necessity introduced by Opinion 1/76 and the third to the AETR principle (which are reflected by the third, second and last set of circumstances set out in Article 216(1) TFEU, respectively). And yet, there is no cross-reference between them in the Treaties, neither is there any indication of their application within the same substantive context. Their textual similarity notwithstanding, the provisions of Article 3(2) TFEU are not entirely identical to those of Article 216(1) TFEU. Article 3(2) TFEU provides for exclusivity in cases where the conclusion of an international agreement is laid down in a legislative act, whereas Article 216(1) TFEU provides for the existence of the Union’s external competence in cases where the conclusion of an agreement is provided for in a legally binding act. The term ‘legislative’ act has a specific meaning in the Lisbon Treaty and connotes any measure adopted by the EU institutions pursuant to the ordinary or a special legislative procedure.186 Another difference is about the articulation of the AETR principle (case (c) above): Article 3(2) TFEU provides for exclusive competence in cases where the conclusion of an agreement by the Union ‘may affect common rules or alter their scope’, whilst Article 216(1)TFEU refers to a situation where the conclusion of an agreement ‘is likely’ to produce such effect. Furthermore, in articulating the principle of necessity (case (b) above), Article 3(2) TFEU refers to the requirement that the conclusion of the agreement be necessary in order to enable the Union to exercise its internal competences, a provision that is missing from Article 216(1) TFEU. Given their largely similar wording, it is by no means clear what are the practical implications of these differences.187 The interpretation of Article 3(2) TFEU gives rise to problems similar to those set out above in relation to Article 216(1) TFEU. For instance, the articulation of the principle of necessity fails to convey the strict construction adopted by the Court over the years and the very specific context within which this has been applied. Read literally, this provision of Article 3(2) TFEU may appear to broaden up the scope of the Union’s exclusive competence to an extent which is clearly at odds with the genesis and interpretation of the principle of necessity. As for the articulation of the AETR principle, the wording of Article 3(2) TFEU, as well as that of Article 216(1) TFEU, appears to reverse the test introduced in the principle, namely whether the conclusion of an international agreement by the Member States, rather than the Union, would affect common rules or alter their scope. Similarly, there is nothing to suggest that the term ‘common rules’ ought to be defined along the lines suggested in the case-law of the Court. Interpreted literally, it may lead to increase the scope of the Union’s exclusive competence. There is another problem which emerges from the relationship between Articles 3(2) and 216(1) TFEU. Their textual similarity suggests that, whilst they are envisaged as serving different purposes, in fact they render the distinction between the existence and the nature of the Union’s external competence even more elusive. The analysis in this chapter has highlighted the distinct reluctance of the Court of Justice to dwell on this 186

See Art 289(3) TFEU. Craig argues that these are not significant: P Craig, The Lisbon Treaty—Law, Politics and Treaty Reform (Oxford, Oxford University Press, 2010) 400. 187

Conclusion

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distinction. And yet, in Opinion 1/03 the Court approached it with a degree of clarity. It is unfortunate that the Union’s primary rules should perpetuate the ambiguities which their drafting sought to address.188 It follows from the above that the interpretation of the Union’s primary rules on the competence to conclude international agreements is far from straightforward. On the one hand, they conflate the issue of the existence and nature of external competence by couching the relevant provisions in largely similar terms. On the other hand, if construed independently from the case-law of the Court of Justice, they may give rise to exclusivity in cases where the Member States never envisaged the Union to exercise such competence. However, a literal interpretation of Articles 216(1) and 3(2) TFEU, independently from the Court’s case-law so far, and the ensuing broadening up of the Union’s external competence would be inconsistent with the intentions of the drafters of the Treaties and would raise questions for the constitutional balance of power in the Union’s carefully calibrated legal order. Therefore, it is unlikely. This state of affairs may be inevitable where primary law seeks to capture the application of legal principles developed over the years by the judiciary. These principles are still developing incrementally in Luxembourg and the primary law as set out in the Lisbon Treaty does not make it clear how it relates to this process. The case-law on external relations has developed incrementally, changing its emphasis in order to respond to the evolving constitutional order of the Union and the changes in the European and international political landscape, and seeking to strike the balance between legal principle and pragmatism. In the light of the increasing interdependence of the globalised community, the interactions between the economic, political and social dimensions of international challenges, the emphasis which the Union has placed on its international role more recently and the wider range of activities it is prepared to carry out, the external relations case-law of the Court of Justice is constantly evolving. In their effort to reflect the law as it stands, Articles 216(1) and 3(2) TFEU fail to capture the subtlety and the dynamic nature of the Court’s interpretation of competence and risk introducing generalisations in an area that least requires them. Their drafting underlines further the role of the Court of Justice in this area. Already responsible for both the genesis and development of the principles governing implied external competence, the Union’s judiciary is now expected to introduce some order and clarity in the disorder that the drafters of the Treaties imposed in their effort to clarify the state of the law.

12. CONCLUSION Conclusion

The legal rules governing the existence and exercise of the Union’s implied external competence are complex; so much so that any attempt to reformulate them succinctly without reference to their specific legal and factual context runs the risk of missing the subtleties of their construction. This is illustrated by the relevant provisions of the TFEU. It is a measure of the complexity of their articulation that, whilst deeply entrenched in our EU law vocabulary, their fundamental aspects still remain somewhat contested. It is due to this complexity and the controversy it still generates that this chapter 188 See also G de Baere, Constitutional Principles of EU External Relations (Oxford, Oxford University Press, 2008) 70.

130 Implied Competence engaged in a detailed analysis of the relevant case-law. The approach of the Court to EU international relations emerges as pragmatic: its emphasis is on the intrinsic link between the nature of the implied competence of the Union and the content of the internal policies, the objectives of the Union at the core of the construction of the issue of competence, and the strict construction of the doctrine of necessity. And yet, pragmatism, accurate though it is in this context, does not quite capture the subtleties of the overall approach to the conduct of EU international relations. It is not only what is sensitive in political terms or desirable in practical terms that appears to be addressed in the case-law. As the scope of internal legislation constitutes the criterion for exclusivity externally, it follows that the construction of the nature of implied competence will require continuous redefinition. This in itself renders the exercise of external competence a matter of a constantly evolving legal context. However, it is not only the construction of competence which renders the conduct of EU international relations dynamic in nature: it is also the rapidly evolving international climate where regulation becomes steadily globalised and the areas it seeks to cover not only diverse but also increasingly interdependent. As exclusivity becomes a concept requiring constant redefinition, the Union institutions and the Member States should draw their attention to the management of their parallel presence on the international scene. It is recalled that, in the context of the case-law examined in this chapter, even the confirmation of the Union’s exclusive competence did not necessarily exclude the Member States as a matter of practice. In fact, the case-law examined in this chapter alludes to the need for the effective management of the parallel existence of the EU and the Member States in international relations by emphasising the role of the duty of cooperation in areas where the EU is not exclusively competent to act. This is an area with its own complexities and will be examined in Chapter 5.

Decision-making in EU International Relations

4 Decision-making in EU International Relations 1. INTRODUCTION Introduction

T

HE ANALYSIS IN Chapters 2 and 3 examined the circumstances under which the European Union may exercise its external competence and the legal and policy issues raised by the choice of its institutions to do so. This chapter focuses on the procedural rules that govern what the Union does in the world. These shape the ways in which the Union may exercise its external competence and impose procedural constraints on the EU’s external action. As their foundation lies on the EU primary rules, they constitute internal constraints which are to be added to the substantive limitations on the exercise of treaty-making power.

2. CCP DECISION-MAKING CCP Decision-making

The main rules governing decision-making concerning the CCP were originally extremely straightforward: the Council decided by majority voting whilst the European Parliament had no formal role. In fact, it was the simplicity of the procedure, along with the exclusive nature of the Union’s competence, which rendered the CCP such an attractive framework for the conduct of foreign affairs according to the Commission’s view. The amendments introduced at Nice tinkered with this model and introduced exceptions from the principle of majority voting. Whilst it maintains certain exceptions, the Lisbon Treaty simplifies them considerably. It also formalises the role of the European Parliament and the considerable increase of its powers. The procedure for the adoption of autonomous measures is laid down in Article 207(3) TFEU. This reads as follows: The European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall adopt the measures defining the framework for implementing the common commercial policy.

The application of the ordinary legislative procedure is introduced at Lisbon for the first time. Its provision brings the CCP into the mainstream of other EU policies in terms of decision-making. In doing so, it maintains the qualified majority voting at the Council and effectively renders the European Parliament co-legislature. This is a significant change, given that under all previous constitutional arrangements, from the Treaty of Rome up to and including the Nice Treaty, the Parliament was not mentioned at all in relation to the CCP. Whilst its input was sought by the Council and the Commission 133

134 Decision-making in EU International Relations as a matter of practice, at no point was this formalised in primary rules. Therefore, the change introduced at Lisbon changed the status of the Parliament fundamentally. This development and its implications are examined in detail below. Whilst it refers specifically to the adoption of ‘measures defining the framework for implementing the common commercial policy’, Article 207(3) TFEU does not define this type of measure. The only other context in which this wording is used is in relation to humanitarian aid.1 There is no indication as to how the term ‘framework measures’ is to be interpreted,2 but it is assumed that it defines measures which set out the main parameters of the Union’s approach to external trade. As for the implementation of such measures, it is to be carried out by measures adopted under the procedure provided for the implementing acts generally which is laid out in Article 291(2) TFEU. This procedure grants the Commission implementing powers and only exceptionally does it enable the Council to exercise such powers.3 The Lisbon Treaty amended the rules on implementing acts so that the Commission acts under the control of the Member States, rather than the Council and the Parliament. This amendment is laid down in Article 291(3) TFEU and necessitated a change in the legal regime pursuant to which the Commission exercised its implementing powers. This change was brought about by Regulation 182/2011.4 In 2014, the Council extended the application of this system to the CCP by adopting Regulation 37/2014 (the ‘Omnibus I Regulation’).5 Decision-making by the Council is by qualified majority voting. This applies both to the adoption of autonomous framework measures under Article 207(2) TFEU and the negotiation and conclusion of international agreements pursuant to Article 207(4) subparagraph 1 TFEU. In relation to international agreements in particular, the other aspects of decision-making, such as the interaction between the Commission and the Council, are laid down in Article 207(3) TFEU. This will be analysed later in this chapter. There are three exceptions to this principle where decision-making at the Council is by unanimity. The first case is the negotiation and conclusion of international agreements in the fields of trade in services, the commercial aspects of intellectual property and foreign direct investment ‘where such agreements include provisions for which unanimity is required for the adoption of internal rules’ (Article 207(4) subparagraph 2 TFEU). The unanimous adoption of internal rules on services is still provided in areas for which the 1 Art 214(3) TFEU provides that the Parliament and the Council, ‘acting in accordance with the ordinary legislative procedure, shall establish the measures defining the framework within which the Union’s humanitarian aid operations shall be implemented’. 2 See R Gosalbo Bono, ‘The Organization of the External Relations of the European Union in the Treaty of Lisbon’ in P Koutrakos (ed), The European Union’s External Relations a Year after Lisbon (2011) CLEER Working Paper No 3, 13, 18. 3 See Art 291(2) TFEU which refers to ‘duly justified specific cases and in the cases provided for in Articles 24 and 26’ TEU, the latter referring to the CFSP. For an overview of this provision, see P Craig, EU Administrative Law, 2nd edn (Oxford, Oxford University Press, 2012) 126 et seq; H Hofmann, ‘Legislation, Delegation and Implementation under the Treaty of Lisbon: Typology Meets Reality’ (2009) 15 European Law Journal 482; and R Schütze, ‘Delegated’ Legislation in the (New) European Union: A Constitutional Analysis’ (2011) 74 Modern Law Review 661, 687 et seq. 4 Reg 182/2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers [2011] OJ L55/13. 5 Reg 37/2014 amending certain regulations relating to the common commercial policy as regards the procedures for the adoption of certain measures [2014] OJ L18/1. For similar amendments to the regime governing the exercise of delegated powers by the Commission, see Reg 38/2014 amending certain regulations relating to the common commercial policy as regards the granting of delegated and implementing powers for the adoption of certain measures [2014] OJ L18/52.

CCP Decision-making

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establishment of the internal market and development of European integration have yet to assuage national concerns, such as tax harmonisation pursuant to Article 113 TFEU. They also cover Treaty provisions the wording of which has been deemed by Member States to be too broad, such as Article 115 TFEU on the approximation of national laws and the residual clause of Article 352 TFEU. Unanimity is also required under Article 64(2) TFEU on movement of capital to and from third countries when new restrictions are introduced.6 This provision maintains a degree of procedural parallelism between international and internal decision-making. It is recalled that one of the main points made by the Court of Justice in Opinion 1/94 was that the CCP procedures should not be relied upon in order to circumvent the decision-making rules which govern the adoption of internal legislation under the Treaty. By aligning the procedural requirements laid down for the conclusion of an international agreement in the areas mentioned in Article 207(4) subparagraph 1 TFEU, this provision reflects the logic articulated by the Court with stark clarity in its seminal ruling. The second exception to the qualified-majority rule applies for the negotiation and conclusion of international agreements ‘in the field of trade in cultural and audiovisual services, where these agreements risk prejudicing the Union’s cultural and linguistic diversity’ (Article 207(4)(a) TFEU). This is the so-called cultural exception and has found its place in primary law, albeit in different form, since the first time when services were covered expressly by the CCP. In fact, the Lisbon Treaty confines the cultural exception to decision-making. This is in contrast to the Nice Treaty, according to which trade in cultural and audiovisual services fell within the scope of the shared competence of the Union and the Member States and the negotiation of international agreements covering them was subject to the common accord of the Member States.7 Therefore, under the pre-existing constitutional arrangements, this particular type of services occupied a sui generis position within the CCP as it deviated from its most fundamental legal characteristics. Whilst maintaining a cultural exception, by circumscribing its scope considerably, the Lisbon Treaty reflects the normalisation of the position of services within the contours of the CCP. The cultural exception ought to be understood in the light of the political sensitivity which underpins its retention in the Union’s primary rules. Its main proponent is France and the passion and commitment with which it is protected cannot be overstated. However, the wording of Article 207(4)(a) TFEU rules out an overly broad interpretation of this exception. As it is confined to a particular set of circumstances, namely where the agreement ‘risk[s] prejudicing the Union’s cultural and linguistic diversity’, its application requires an assessment of whether the latter condition is met. To characterise such an assessment as difficult would be an understatement. The Treaty provides no guidance as to how to define ‘the Union’s cultural and linguistic diversity’. The only other context where this term is used is in Article 3(3) subparagraph 4 TEU where respect for the EU’s ‘rich cultural and linguistic diversity’ is included in the Union’s objectives.8 Given 6 Under the Nice Treaty, unanimity also applied ‘where it relates to a field in which the Community has not yet exercised the powers conferred upon it by this Treaty by adopting internal rules’ (ex Art 133(5)(2) EC). 7 ex Art 133(6) subpara 2 EC. It is recalled that common accord is the most onerous voting procedure for decision-making, as an abstention prevents the adoption of a rule; this is not the case with unanimity, which merely connotes the absence of negative votes (see Art 238(4) TFEU). 8 Art 165(1) TFEU, on the other hand, refers to the cultural and linguistic diversity of the Member States and their right to protect it in the context of education policy.

136 Decision-making in EU International Relations the paucity of criteria of its definition, and the politically sensitive nature of the overall issue, the assessment of whether the condition set out in the Treaty is met may appear inherently indeterminate. And yet, it is subject to interpretation by the Court of Justice. Quite how charged is the context within which Article 207(a) TFEU applies is illustrated by the process of negotiation of a trade agreement between the EU and the USA. Prepared carefully over the years and touted as potentially the most important trade partnership ever,9 the two parties started negotiating a Transatlantic Trade and Investment Partnership in July 2013. However, there was considerable disagreement between Member States as to the content of the negotiating directives given to the Commission by the Council. In particular, the French government was adamant that the regulation of trade in cultural and audiovisual services would be excluded from the negotiations. The issue attracted considerable publicity. Alain Juppé, a former Prime Minister and Foreign Secretary, called the President of the European Commission José Manuel Barroso ‘archaic’ for his unsympathetic approach to trade relations.10 Wim Wenders, the German director of two wonderful films, Paris, Texas and The Wings of Desire, and many other unwatchable ones, stated that dropping the cultural exception would be tantamount to ‘burning our books, closing our museums, cutting our thumbs, sacrificing our first-born, rebuilding the Berlin Wall’.11 A compromise was finally reached, whereby audiovisual services would not be part of the mandate, but it would be possible for the Commission to request additional negotiating directives from the Council at a later stage.12 The seriousness of the French commitment to protect the cultural exception becomes all the more apparent in the light of the considerable importance that both the EU and the US leadership attach to the successful conclusion of the Agreement—so much so that US President Barack Obama referred to it expressly and in strong terms in his 2013 State of the Union Address.13 The third exception to the qualified majority voting rule applies to the negotiation and conclusion of international agreements in the field of trade in social, education and health services ‘where these agreements risk seriously disturbing the national organisation of such services and prejudicing the responsibility of Member States to deliver them’ (Article 133(4)(b) TFEU). The political sensitivity of these types of services is apparent and is also reflected by the legal rules and procedures that govern the adoption of internal rules too. For instance, EU law respects the responsibilities of the Member States to define their health policy and determine how best to organise and deliver health services and medical care.14 It also respects the responsibility of Member States for the content and organisation of vocational training.15 As is the case with the cultural exception, the

9 According to a study by the UK-based Centre for Economic Policy Research, a deal could benefit the EU’s economy by €119 bn a year and that of the United States by €95 bn: see https://www.gov.uk/government/ uploads/system/uploads/attachment_data/file/198115/bis-13-869-economic-impact-on-uk-of-tranatlantic-tradeand-investment-partnership-between-eu-and-us.pdf. 10 Financial Times, 3 July 2013, 6. 11 ‘Charlemagne: L’Exception Française’ The Economist, 14 June 2013, 38. 12 ‘The Commission will, in a spirit of transparency, regularly report to the Trade Policy Committee on the course of negotiations. The Commission, according to the Treaties, may make recommendations to the Council on possible additional negotiating directives on any issue, with the same procedures for adoption, including voting rules, as for this mandate’ (MEMO/13/564, Brussels, 15 June 2013). 13 See www.whitehouse.gov/state-of-the-union-2013. 14 Art 168(7) TFEU. 15 Art 166(1) TFEU.

International Agreements 137 application of Article 207(4)(b) TFEU is subject to conditions the assessment of which is fraught with problems.

3. INTERNATIONAL AGREEMENTS International Agreements

The main procedural rules which govern the assumption of international obligations pursuant to international agreements by the Union are set out in Article 218 TFEU. These apply to all agreements except, partly, for those concluded in the context of the CCP and agreements on monetary policy (which are governed by Article 219 TFEU). Therefore, Article 218 TFEU becomes the main locus for the procedural rules which govern the Union’s treaty-making activities in relation to almost all the strands of its external action.16 This development reflects at the procedural level the theme of integration that underpins the constitutional revamping put forward by the Lisbon Treaty. The question of what constitutes an international agreement has been answered broadly by the Court. In relation to the Understanding on a Local Cost Standard, negotiated under the auspices of the OECD, it ruled that ‘the formal designation of the agreement envisaged under international law is not of decisive importance’. The Court pointed out that ex Article 300 EC (now Article 218 TFEU) ‘uses the expression in a general sense to indicate any undertaking entered into by entities subject to international law which has binding force, whatever its formal designation’.17 In essence, the intention of the parties is the decisive criterion for determining whether or not a document is binding. In annulment proceedings brought in Case 233/02 France v Commission the Court examined the nature of a document entitled ‘Guidelines on Regulatory Cooperation and Transparency’.18 This was drawn up between the Commission and the US authorities in the context of the Transatlantic Economic Partnership Action Plan. The French government argued that the Commission was not competent to conclude the contested measure because, under ex Article 300 EC (now Article 218 TFEU), the conclusion of international agreements is a matter falling within the competence of the Council. In its judgment, the Full Court rejected that argument. It noted that the intention of the parties left no doubt as to the non-binding nature of the Guidelines. Therefore, their conclusion fell beyond the scope of ex Article 300 EC. By focusing on the nature of the measure as the criterion for the applicability of Article 218 TFEU, the Court is adopting a functional approach to the scope of that provision. This is not unique in the case-law on international relations. It is recalled, for instance, that in the case-law on direct effect, the possibility of relying on directives as against the state or the emanation of the state is dependent upon the specific functions and status of the body in question rather than its designation under national law.19

16 Dashwood describes Art 218 TFEU as the ‘procedural code’ of the EU’s treaty-making: A Dashwood, M Dougan, B Rodger, E Spaventa and D Wyatt, Wyatt and Dashwood’s European Union Law, 6th edn (Oxford, Hart Publishing, 2011) 936. 17 Opinion 1/75 (re: OECD Local Cost Standard) [1975] ECR 1355, 1359–60 reaffirmed in Case C-327/91 France v Commission [1994] ECR I-3641, para 27. 18 Case C-233/02 France v Commission [2004] ECR I-2759. 19 See Case C-188/89 Foster and others v British Gas plc [1990] ECR I-3313, para 18. See P Craig and G de Búrca, EU Law, 5th edn (Oxford, Oxford University Press, 2011) 196–99.

138 Decision-making in EU International Relations 4. NEGOTIATION OF INTERNATIONAL AGREEMENTS Negotiation of International Agreements

Article 218(2) TFEU provides that international agreements may be negotiated by the Union only following authorisation by the Council. In fact, it is the latter which is responsible not only for the authorisation of the opening of negotiations, but also for the adoption of negotiating directives, the authorisation of the signing of agreements and for their conclusion. In other words, the Council is responsible for any stage in the life of an international agreement which would bind the Union towards its international interlocutors.

4.1 Who Proposes the Negotiation of International Agreements? The negotiation itself of international agreements is carried out by the Commission or the High Representative of the Union for Foreign Affairs and Security Policy who are responsible for recommending to the Council whether an agreement should be negotiated.20 Article 218(3) makes a distinction: the High Representative will propose the negotiation ‘where the agreement envisaged relates exclusively or principally to the common foreign and security policy’; in all other cases, it follows that it is the Commission which will make the proposal. Therefore, the delineation of the scope of an international agreement determines the institutional actor responsible for proposing the negotiation of the agreement. The principle underpinning this formulation and its expression in Article 218(3) TFEU reflects the case-law of the Court of Justice. In cases where an international agreement covers different areas in which the Union is endowed with different powers, the Court identifies the correct legal basis for the negotiation and conclusion of the agreement by examining which area forms the predominant part of the agreement.21 The provision of Article 218(3) TFEU also acknowledges the likelihood of the Union negotiating agreements the subject-matter of which would be covered by different types of competence. The role of the High Representative is envisaged in this provision in the light of the distinct nature of the competence of the Union to conduct its CFSP and CSDP from the other types of competence set out in the Treaties, as well as the rule that the conduct of the latter is ‘subject to specific rules and procedures’.22 However, to ascertain whether an agreement is ‘exclusively or principally’ about the CFSP is by no means a straightforward exercise. Two points are worth making. First, the difficulty of determining whether an international agreement ‘relates exclusively or principally’ to a given policy is illustrated with painful clarity by past experience in relation to agreements with no CFSP dimension. For instance, inter-institutional disputes about

20

Art 218(3) TFEU. In the case of agreements with both trade and environmental policy implications, for instance, see Opinion 2/00 (re: Cartagena Protocol on Biosafety) [2001] ECR I-9713; Case C-281/01 Commission v Council (re: Energy Star Agreement) [2002] ECR I-12049; Case C-94/03 Commission v Council [2006] ECR I-1; Case C-178/03 Commission v Parliament and Council [2006] ECR I-107; and Case C-411/06 Commission v Council and Parliament [2009] ECR I-7585. 22 Art 24(1) subpara 2 TEU. 21

Negotiation of International Agreements 139 the extent to which international agreements relate to trade or environmental policy have been frequent, and the case-law of the Court of Justice not easy to follow or apply.23 Secondly, the very nature of the CFSP renders the application of Article 218(3) TFEU even more complex. Quite apart from the fact that the scope of the CFSP is construed in strikingly broad terms in the Treaties,24 the notion of security, which underpins the conduct of the CFSP in general and the CSDP in particular,25 is also construed broadly by the EU institutions.26 Therefore, its multifarious dimensions are linked to other EU external policies, such as development, trade, environment, energy, humanitarian aid and organised crime. These links are made clear in the European Security Strategy,27 and also emerge in the 2008 Report on the Implementation of the European Security Strategy.28 The increasingly direct interactions between security and other external policies are also acknowledged in policy documents which were adopted in order to enhance the ensuing need for coherence in decision-making and implementation, a case in point being development and humanitarian aid.29 To acknowledge these interactions is to accept that, to a considerable extent, the EU external action has a distinct security dimension, and that the Union’s security and defence policy is instrumental in the effective conduct of the other strands of the Union’s external action. The above analysis suggests that the application of the provision laid down in Article 218(3) TFEU may be fraught with problems. An argument against this scepticism may be the specificity of security and defence policy. In other words, it may be argued that, its broad construction notwithstanding, security and defence policy lack the degree of osmosis which characterises trade and environment. In relation to the proliferation of small arms and light weapons, for instance, the Court of Justice referred to the grant of political support for a moratorium or the collection and destruction of weapons as measures which ‘fall rather within action to preserve peace and strengthen international security or to promote international cooperation, being CFSP objectives stated in [primary law]’.30 This may seem to suggest that, even in the light of the multifarious links between the CFSP and other EU external policies and the ensuing difficulty of defining their respective scope, one would be able to recognise the objectives of the former. However, the very dispute in ECOWAS, and the judgment rendered by the Court of Justice, suggest that this, almost intuitive, approach would be misguided. This issue is further explored in Chapter 14. It follows that the determination of who makes the proposal to the Council for the initiation of negotiation of an international agreement may be contentious. The institutional configuration of the High Representative, in terms of her role as Vice President of the Commission, may, in fact, reduce the scope for disputes. In other words, given

23 See the analysis in Chapter 2. See also P Eeckhout, EU External Relations Law, 2nd edn (Oxford, Oxford University Press, 2011) 42 et seq. 24 Art 24(1) TEU. 25 Art 42(1) TEU provides that the CSDP ‘shall be an integral part of the common foreign and security policy’. 26 See P Koutrakos, The EU Security and Defence Policy (Oxford, Oxford University Press, 2013) ch 4. 27 A Secure Europe in a Better World—European Security Strategy (Brussels, 12 December 2003). 28 Providing Security in a Changing World—Report on the Implementation of the European Security Strategy (Brussels, 11 December 2008). 29 See The European Consensus on Development [2006] OJ C646/1, and The European Consensus on Humanitarian Aid [2008] OJ C25/1. 30 Case C-91/05 Commission v Council (re: ECOWAS) [2008] ECR I-3651, para 105.

140 Decision-making in EU International Relations that any agreement would be negotiated by a Commission member anyway, whether that person would be the High Representative or another Commissioner might be considered of secondary importance. However, this is not the case. It is precisely because of the different functions of the High Representative that the question of who proposes the negotiation of an agreement is bound to be scrutinised closely by the Council. It is interesting, in this respect, that an early draft of what is now Article 218(3) TFEU, in its previous incarnation in the Treaty Establishing a Constitution for Europe, provided for a joint recommendation from the Commission and the Union Minister for Foreign Affairs.31 However, this possibility did not find its way into the text of the Treaties.32

4.2 What Form Should the Decision Authorising the Negotiation Take? Another issue about this juncture of the procedure is the form and content of the Council Decision authorising the negotiation of an international agreement. This may arise in cases where the Council believes that an agreement for which the Commission has requested an authorisation to negotiate falls within the competence of both the EU and the Member States. Does Article 218(2) TFEU provide the legal basis for a decision adopted both by the Council and the Representatives of the Member States meeting in the Council to authorise the negotiation of the agreement in question? This question has arisen in Case C-114/12 Commission v Council in relation to the negotiation of a Convention of the Council of Europe on the protection of the rights of broadcasting organisations. The Commission’s proposal was based on the assumption that the Union was exclusively competent to negotiate and conclude the Agreement. The Council differed and, in a decision adopted along with the Representatives of the Member States meeting in the Council in December 2011, it authorised the Commission to negotiate on behalf of the Union as regards matters falling within the EU’s competence and the Member States to participate on their own behalf in relation to matters falling within their competence. The Commission brought an annulment action against the Decision, arguing that it violated the procedure and the conditions for authorising negotiations of international agreements by the EU, the voting rules in the Council, the objectives of the Treaties and the principle of sincere cooperation. In her Opinion, Advocate General Sharpston agreed that the provisions of Article 218 TFEU had been violated, as the latter is exclusively about the right of the Council to authorise the negotiation of an international agreement by the EU.33

4.3 Who Negotiates International Agreements? A related issue is about the negotiator of an international agreement. Article 218(3) TFEU provides that, once it has received the proposal from the Commission, the Council 31 CONV 685/03 Draft Articles on External Action in the Constitutional Treaty (Brussels, 23 April 2003), Art 33(3). 32 See R Passos and S Marquardt, ‘International Agreements—Competences, Procedures and Judicial Control’ in G Amato, H Bribosia and B De Witte (eds), Genesis and Destiny of the European Constitution (Brussels, Bruylant, 2007) 875, 900. 33 Case C-114/12 Commission v Council, ECLI:EU:C:2014:2151, Opinion of AG Sharpston, delivered on 3 April 2014.

Negotiation of International Agreements 141 nominates ‘the Union’s negotiator or the head of the Union’s negotiating team’. The reference to ‘the Union’s negotiator’ and ‘the Union’s negotiating team’ finds its way in the text of the Treaties for the first time at Lisbon. This formulation is vague and lacking in detail as to which institutional actor is to negotiate each type of agreement. The choice of words is intended be broad enough to cater for all the permutations of representation which the subject-matter of an agreement might require in the process of its negotiation on behalf of the EU. It follows from the structure and logic of Article 218(3) TFEU that, if it is principally or exclusively related to the Union’s policies other than the CFSP/CSDP, then it is to be negotiated by the Commission; if it is exclusively or principally related to the CFSP/CSDP, it is to be negotiated by the High Representative; if it is related to both the CFSP/CSDP and other EU policies, then, in principle, it is to be negotiated by both the Commission and the High Representative.34 In effect, the provision for a negotiating team follows from the abolition of the pillar structure of the Union, the deletion of the separate treaty-making procedure set out therein,35 and the introduction of a single procedure for treaty-making by the EU. In doing so, the reference to the Union’s negotiating team in Article 218(3) TFEU addresses the concern that the distinct nature of the CFSP/CSDP may be overlooked in cases where a CFSP/CSDP dimension, while not central, is present in an agreement pertaining mainly to other EU policies, and which, therefore, is to be negotiated by the Commission. The existence of a negotiating team ensures the participation of the High Representative, and is therefore intended to safeguard the special interests which underpin the CFSP/CSDP. This does not answer the question: who is the head of the negotiating team in any given case? The formulation of Article 218(3) TFEU leaves this question open. A requirement that the head should be the High Representative even if the CFSP/CSDP dimension is incidental would be unduly formalistic. Given that the High Representative would participate in the negotiating team, it is entirely proper that the determination of the centre of gravity of the agreement’s scope also determines the head of the team appointed to negotiate that agreement. To that effect, the logic of the Court’s case-law on the conclusion of international agreements serving a variety of objectives may be applied: if the agreement relates principally to the CFSP/CSDP, the High Representative would be appointed as the head of the negotiating team; if that dimension is marginal, it would be the Commissioner responsible for the policy area which covers the main thrust of the agreement who would head the negotiating team.36 Another consideration which favours this view is the role of the Commission set out in Article 17(1) TEU, according to which, with the exception of the CFSP, the Commission ‘shall ensure the Union’s external representation’. The analysis so far suggests that, given the constitutional idiosyncrasies of the Union and the complexities of treaty-making, the interpretation and application of Article 218(2)–(4) TFEU are far from uncontroversial. This was illustrated clearly by the dispute between the Commission and the Member States in relation to the Union’s participation in the negotiations for an internationally binding instrument on the use of mercury under the auspices of the UN Environment Programme. In July 2009 the Commission 34 See also M Gatti and P Manzini, ‘External Representation of the European Union in the Conclusion of International Agreements’ (2012) 49 Common Market Law Review 1703, 1708–09. 35 Ex Art 24 TEU. 36 See also Gosalbo Bono, n 2 above, 32.

142 Decision-making in EU International Relations submitted its proposal, which was based on the assumption that the Union was exclusively competent to negotiate such an instrument. The Council did not share this view, as it argued that the scope of the negotiations fell within both EU and national competence and, therefore, they should be carried out by both the Commission and the Presidency. When it became apparent that the Council would adopt a decision along with the Representatives of the Member States acting within the Council, the Commission withdrew its proposal. It is noteworthy that no provision for withdrawal is made in Article 218 TFEU. For the next few months, the Member States and the Commission engaged in an antagonistic and public effort before the intergovernmental negotiating committee set up by the UN Environment Programme to protect their speaking prerogatives.37 A compromise was reached in November 2010 whereby the Commission was authorised to negotiate on behalf of the Union for matters falling in the latter’s competence. The negotiations led to the adoption of an agreement in January 2013. This episode reflects the legal and political difficulties which underpin any efforts of the drafters of the Treaties to draw up comprehensive and exhaustive arrangements about treaty-making. This is all the more so given the absence of any substantive disagreement between the Commission, the Council and the Member State about the urgent need for mercury to be regulated at international level.

4.4 How Are International Agreements Negotiated? As mentioned above, once the Council has decided to authorise the initiation of negotiation of an international agreement, it also adopts the relevant negotiating directives.38 It may also ‘designate a special committee in consultation with which the negotiations may be conducted’.39 The negotiating directives are confidential. It is clearly apparent that publicising the negotiating objectives of the Union would not enhance the bargaining power of its negotiator. This practice seems to have been broken recently when an activist network got hold of the negotiating directives issued by the Council in relation to the Transatlantic Trade and Investment Partnership (TTIP) which it then made available on its website.40 The negotiation of TTIP has attracted considerable criticism which focused on its implications for social interests and the perceived lack of transparency with which the Commission carried out its mandate. So intense has the reaction been that the Commission declassified its negotiating mandate and released a number of negotiating documents. The Lisbon Treaty strengthens considerably the role of the European Parliament in decision-making in external relations. Article 218(10) TFEU provides that the Parliament ‘shall be immediately and fully informed at all stages of the procedure’. The Declaration on political accountability by the High Representative of the Union for the Foreign 37 See the detailed analysis in G De Baere, ‘Mercury Rising: The European Union and the International Negotiations for a Globally Binding instrument on Mercury’ (2012) 37 European Law Review 640 who describes this episode as ‘unedifying’ (653). 38 Art 218(2) TFEU. 39 Art 218(4) TFEU. 40 The text of the directives was leaked by this NGO: www.s2bnetwork.org/fileadmin/dateien/downloads/ EU-TTIP-Mandate-from-bfmtv-June17-2013.pdf

Negotiation of International Agreements 143 Affairs and Security Policy, accompanying the Council Decision on the establishment and functioning of the European External Action Service,41 makes it clear that this provision covers CFSP agreements too.42 The wording of Article 218(10) TFEU is sufficiently broad to cover the negotiating stage too. It is also sufficiently strong to suggest that the obligation to consult the Parliament may not be a mere formality. This is borne out by the general duty of cooperation which binds all institutions in their interactions, as set out in Article 13(3) TEU. The scope of the duty set out in Article 218(10) TFEU was explored in Case C-658/11 European Parliament v Council.43 This was about the conclusion of a transfer agreement between the EC and Mauritius. The Council sent the Parliament the decision concluding the agreement more than three months after its adoption and the signing of the agreement, and 17 days after its publication. The Court held that the right of the Parliament to be informed under Article 218(10) TFEU ‘is an expression of the democratic principles on which the European Union is founded’.44 It ruled that the exclusion of the Parliament from the decision-making procedure which governs the negotiation and conclusion of CFPS agreements does not rule out the Parliament’s rights of scrutiny: If the Parliament is not immediately and fully informed at all stages of the procedure in accordance with Article 218(10) TFEU, including that preceding the conclusion of the agreement, it is not in a position to exercise the right of scrutiny which the Treaties have conferred on it in relation to the CFSP or, where appropriate, to make known its views as regards, in particular, the correct legal basis for the act concerned. The infringement of that information requirement impinges, in those circumstances, on the Parliament’s performance of its duties in relation to the CFSP, and therefore constitutes an infringement of an essential procedural requirement.45

The Court held that the Council violated its duty under Article 218(10) TFEU and gave short shrift to its argument that, whilst slightly longer than usual, this period was still reasonable, given that it included the summer break. In 2010, almost a year following the entry into force of the Lisbon Treaty, the Parliament and the Commission adopted a Framework Agreement on their relations.46 Having made it clear that the duty of Article 218(10) TFEU applies not only to the process of the negotiation of an international agreement but also that of the definition of negotiating directives,47 it provides that the Commission would forward information to the Parliament ‘in sufficient time for it to be able to express its point of view if appropriate, and for the Commission to be able to take the Parliament’s views as far as possible into account’.48 Such information is normally provided to the responsible parliamentary committee and, ‘where appropriate’, at a plenary sitting.49 Inevitably, this interaction between the two institutions gives rise to issues of confidentiality.50 These are dealt with on the

41

Council Dec 2010/427/EU [2010] OJ L201/30. [2010] OJ C210/1 (and corrigenda in [2010] OJ C217/12) para 2. 43 Case C-658/11 European Parliament v Council ECLI:EU:C:2014:2025. 44 Ibid, para 81. 45 Ibid, para 86. 46 [2010] OJ L304/47. 47 Point 23. 48 Point 24. 49 Ibid. 50 See D Curtin, ‘Official Secrets and the Negotiation of International Agreements: Is the EU Executive Unbound?’ (2013) 50 Common Market Law Review 423, 443 et seq. 42

144 Decision-making in EU International Relations basis of ‘appropriate procedures and safeguards’51 determined on the basis of principles set out in Annex II to the Framework Agreement. Following the conclusion of the Framework Agreement, the Parliament amended its own security rules in order to dispel any concerns that the Commission and the Council may have about giving it access to classified and sensitive information.52 Similarly, it has also concluded with the Council an inter-institutional agreement about the handling of classified information.53 The temporal scope of the Commission’s duty to provide information is broad—it applies from the time the draft negotiating directives are presented to the Council, covers the entire period during which the agreement is negotiated, and extends to its initialling,54 its provisional application,55 suspension56 and modification.57 As for the material scope of the interactions between the two institutions, the Framework Agreement construes them widely: in relation to the negotiation process, for instance, it provides that the Commission shall explain ‘whether and how Parliament’s comments were incorporated in the texts under the negotiation and if not why’.58 The significance of Article 218(10) TFEU also emerges on practical grounds. As will be shown below, the very final outcome of the negotiation of an international agreement in most cases depends on the willingness of the European Parliament to give its consent. One does not need to be an expert in The Prince to appreciate that, given its role in the conclusion of international agreements, the Parliament’s good will is essential to the success of the negotiation process. Therefore, if they chose not to provide sufficient information, the Union’s negotiators would do so at their peril. This point is made clear in Annex III to the Framework Agreement which makes the distinction between international agreements, the conclusion of which requires the consent of the Parliament, and agreements, which do not. In the case of the former, it provides that the Commission shall forward during the negotiation process all relevant information that it provides to the Council or the special committee appointed by the Council. This includes draft amendments to adopted negotiating directives, draft negotiating texts, agreed articles, the agreed date for initialling the agreement, the text of the agreement to be initialled, as well as any relevant documents received from third parties which it also submits to the Council or the special committee appointed by the Council.59 In addition, the Commission keeps the responsible parliamentary committee informed about developments in the negotiation and is expected to explain how the Parliament’s views have been taken into account.60 As for international agreements the conclusion of which is not subject to the 51

n 48 above. Decision of the Bureau of the European Parliament of 6 June 2011 concerning the rules governing the treatment of confidential information by the European Parliament [2011] OJ C190/2. The Bureau of the Parliament is a body entrusted to lay down rules which govern the Parliament’s conduct. It comprises of the President and the Vice-Presidents and represents the majority of the political groups. 53 Interinstitutional Agreement of 12 March 2014 between the European Parliament and the Council concerning the forwarding to and handling by the European Parliament of classified information held by the Council on matters other than those in the area of the common foreign and security policy [2014] OJ C95/1. 54 Art 4 of Annex III. 55 Art 7 of Annex III. 56 Art 8 of Annex III. 57 Art 9 of Annex III. 58 Ibid. 59 Art 5 of Annex III. 60 Ibid. 52

Negotiation of International Agreements 145 Parliament’s consent, the interactions between the Commission and the Parliament are outlined in less detailed terms: the former provides the latter with information that should cover ‘at least’ the draft negotiating directives, the adopting directives, the subsequent conduct of negotiations and the conclusion of the negotiations.61 Two aspects of the Framework Agreement are noteworthy. The first is its detail in setting out the scope of the general provision of Article 218 (10) TFEU about the role of the European Parliament. Rather than maintaining a degree of uncertainty as to how the latter would be construed in relation to the different stages of the life of an international agreement, potentially opening up the whole area to the possibility of endless interinstitutional disputes, it seeks to flesh out specific and practical arrangements. Whilst by no means removing the possibility of squabbles about the precise scope of the Parliament’s input, the Agreement reflects the realisation that inter-institutional practice ought to adjust to the new legal reality set out in the Lisbon Treaty. The second interesting feature of the Agreement follows from the above and is about the very adoption of these arrangements as a specific illustration of the duty of cooperation laid down in Article 4(3) TEU. This duty, along with its specific incarnation which the Court of Justice introduced and developed in the context of mixed agreements, features prominently in the law of EU external relations. Emphasis has been placed on its restraining impact on Member States in order to protect the Union’s interest.62 The conclusion of the Framework Agreement, which refers specifically to ‘the general principle of good cooperation between the institutions’,63 illustrates the function of the duty in the context of inter-institutional interactions. In relation to mixed agreements in particular, the significance of procedural arrangements agreed upon between EU institutions, as well as Union institutions and Member States, was stressed by the Court in the FAO case.64 The function of the Framework Agreement is broader as it aims to flesh out a Treaty provision which, whilst indicative of a radical redrawing of the institutional balance in the area of external relations, is also vague in its scope. The external relations provisions of the Framework Agreement discussed above are not the first example of inter-institutional cooperation in the area. The previous Agreement, concluded in 2005, also included a section on external relations and provided for information sharing, consultation and participation of members of the European Parliament in Commission delegations, albeit in less detail. Another difference is the reaction of the Council to the 2005 Framework Agreement. Following a recommendation by COREPER (Committee of Permanent Representatives), it issued a statement published in the Official Journal in which it expressed its concern about what it viewed as ‘a shift in the institutional balance resulting from the Treaties in force’.65 It expressed regret that

61

Art 6 of Annex III. See M Cremona, ‘Defending the Community Interest: The Duties of Cooperation and Compliance’ in M Cremona and B De Witte (eds), EU Foreign Relations Law (Oxford, Hart Publishing, 2008) 125; C Hillion, ‘Mixity and Coherence in EU External Relations: The Significance of the “Duty of Cooperation”’ in C Hillion and P Koutrakos (eds), Mixed Agreements Revisited—The EU and its Member States in the World (Oxford, Hart Publishing, 2010) 87; and P Koutrakos, ‘In Search of a Voice: EU Constraints on Member States in International Law-making’ in R Liivoja and J Petman (eds), International Law-making—Essays in Honour of Jan Klabbers (Routledge, 2014) 211. 63 Point 27 of the Framework Agreement. 64 Case C-25/94 Commission v Council (FAO) [1996] ECR I-1469. See the analysis in Chapter 5. 65 Council statement concerning the framework agreement on relations between the European Parliament and the Commission [205] OJ C161/1. 62

146 Decision-making in EU International Relations it had not been informed earlier, it made it clear that the arrangements between the Commission and the Parliament would not be enforced against it, and reserved the right to respond should the application of these arrangements impinge upon the institutional balance laid down in the Treaties. The Council did not respond in such a polemical manner to the 2010 Framework Agreement. This may be explained in the light of the redrawn institutional landscape and the strengthened role of the Parliament pursuant to the Lisbon Treaty. At this juncture, it is worth pointing out that the interactions between the Commission and the Parliament are not confined to consultation and information sharing. The Framework Agreement provides for the inclusion of a Parliamentary delegation as observers in EU delegation in international conferences.66 Aiming to ensure that the Parliament is immediately and fully informed about the conference proceedings, this arrangement is at the Parliament’s request and ‘subject to the legal, technical and diplomatic possibilities’, whilst it is made clear that its members may not participate directly in the negotiations.67 Similar arrangements also apply to meetings of bodies set up by multilateral international agreements involving the EU, whenever such bodies are called upon to take decisions which require the Parliament’s consent or the implementation of which may require the adoption of legislation pursuant to the ordinary legislative procedure.68

5. SIGNING AND PROVISIONAL APPLICATION OF INTERNATIONAL AGREEMENTS Signing and Provisional Application of International Agreements

International agreements are signed pursuant to a Council decision adopted following a proposal by the EU negotiator (Article 218(5) TFEU). By signing an agreement, the Union is bound by international law not to engage in acts or omissions that would defeat the object and purpose of the agreement.69 Article 218(5) TFEU also provides for the provisional application of agreements prior to their entry into force. The Council decision authorising the signature of an agreement may also provide for the provisional application of the parts of the agreement that fall within the Union’s competence pending the completion of the ratification procedures in all Member States.70 This is by no means rare in EU external relations practice and concerns the whole agreement to be applied in accordance with Article 25 of the VCLT. A comparable role is played by interim agreements in the context of mixed agreements: as the entry into force of the latter requires their conclusion by both the EU and the Member States, considerable delays may ensue.71 66

Point 25 of the Framework Agreement. Ibid. The practicalities of the Parliament’s participation are set out in Point 27 of the Framework Agreement. 68 Point 26 of the Framework Agreement. 69 See Art 18(a) VCLT. To that effect, see Case T-115/94 Opel Austria v Council [1997] ECR II-39, paras 90–95. 70 See eg Council Decision 2014/20/EU of 23 September 2013 on the signing, on behalf of the Union, and the provisional application of the Cooperation Agreement between the European Union and its Member States, of the one part, and the Swiss Confederation, of the other, on the European Satellite Navigation Programmes [2014] OJ L15/1. 71 A notorious example of such delays is the Cooperation and Customs Union Agreement with San Marino which entered into force more than ten years following its approval by the contracting parties ([2002] OJ L84/43). 67

Conclusion of International Agreements 147 The procedure for the signing of international agreements may raise inter-institutional disputes. This is illustrated in Case C-28/12 Commission v Council where the Commission sought the annulment of the Decision of the Council and of the Representatives of the Governments of the Member States meeting within the Council on the signing and provisional application of the Agreement on the accession of Iceland and Norway to the EU–USA Air Transport Agreement.72 The Commission argued that the adoption of this hybrid decision was contrary to Article 218(2) and (5) TFEU as it should have been adopted by the Council alone. It also argued that it violated the decision-making rules laid down in Article 218(8) TFEU, the objectives of the Treaties and the principle of sincere cooperation laid down in Article 13(2) TEU. The importance that Member States attach to the issues raised in this case is illustrated by the fact that twelve governments have intervened in support of the Council.

6. CONCLUSION OF INTERNATIONAL AGREEMENTS Conclusion of International Agreements

6.1 The Role of the Council In relation to the conclusion of international agreements, Article 218(6) TFEU assigns this role to the Council. In EU law practice, the term ‘conclusion’ is equivalent to national ratification or accession. In concluding an international agreement, the Council carries out two functions: on the one hand, it signifies the assumption of the international obligations laid down in the agreement in question, hence binding the Community under international law; on the other hand, it acts under the constitutional powers given in the Treaties and under the procedure laid down therein. These internal and external functions are carried out by means of a Council decision annexed to which is the text of the agreement in question. As for decision-making, the Treaty sets out the presumptive rule for all international agreements, which is qualified majority voting under Article 218(8) TFEU, but provides for unanimity as an exception in certain cases. These include the following four cases: (i) Agreements Covering a Field for which Unanimity is Required for the Adoption of an EU Act This case is laid down in Article 218(8).73 If, for instance, an agreement relates exclusively or principally to the CFSP/CSDP, and given that the rule in decision-making in these areas is unanimity and that majority voting is very clearly circumscribed and mainly following the adoption of unanimous measures,74 it must be concluded unanimously. Another area where unanimity is also required is taxation. The question is whether unanimity is also required for agreements that are not related exclusively or principally to the CFSP/CSDP but have a CFSP/CSDP dimension. A strict reading of Article 218(8) TFEU suggests an affirmative answer. This provision refers to 72 [2011] OJ L283/1. The Decision was also about accession to the Ancillary Agreement to the Air Transport Agreement. 73 Art 218(8) second subpara first indent TFEU. 74 See Art 31(1)–(3) TEU. See also Art 31(4) TEU which rules out the exceptions to the unanimity rule for decisions having military or defence implications.

148 Decision-making in EU International Relations an agreement which covers ‘a field for which unanimity is required for the adoption of an act of the Union’, a statement which is not qualified in any way. However, such a conclusion would run counter to the logic of Article 218 TFEU as a whole. The latter sets out the unitary framework for treaty-making on behalf of the European Union, and distinguishes the CFSP areas only with reference to agreements which relate ‘exclusively or principally’ to them. Furthermore, the broad construction of security which the EU institutions have endorsed over the years, and its increasing interactions with the other strands of the EU’s external action,75 might render unanimity the rule, rather than the exception. This cannot have been the intention of the drafters of the Lisbon Treaty.76 Therefore, the crucial issue is the extent to which the CFSP/CSDP provisions cover the agreement in question. (ii) Association Agreements This type of agreement constituted one of the two instances for which the original Treaty of Rome endowed the European Economic Community with express external competence (the other being the CCP). Governed by Article 217 TFEU, such agreements are concluded with third countries or international organisations in order to establish ‘an association involving reciprocal rights and obligations, common action and special procedure’. The wording of this legal basis has always been somewhat opaque and the case-law of the Court of Justice has not clarified it considerably. In Case C-12/86 Demirel the Court defined association agreements by reference to the establishment of special and privileged links and the participation of the associated state, at least to a certain extent, in the Union legal system.77 In practical terms, such agreements have proved a popular instrument for the Union’s external relations and their content varies depending on the associated country. (iii) Agreements on Economic, Financial and Technical Cooperation with Countries which Are Candidates for Accession Such agreements are governed by Article 212 TFEU and cover economic, financial and technical cooperation measures, including assistance, in particular financial assistance, with third countries other than developing countries. Their conclusion is unanimous under Article 218(8) TFEU only in cases where they are concluded with countries which are candidates for accession to the Union. (iv) Accession of the EU to the ECHR The Union’s accession to the ECHR is provided for expressly at Lisbon, for the first time in Article 6(2) TEU. In the summer of 2013, the negotiations between the EU and the Council of Europe led to the adoption of a draft agreement which, at the time of writing

75

See Koutrakos, n 26 above, ch 4 and 8. Cf Dashwood et al, n 16 above, 938. 77 [1987] ECR 3719, para 9. For the range of association agreements, see Chapter 11, section 2.2. 76

Conclusion of International Agreements 149 of this chapter, is being examined by the Court of Justice pursuant to the procedure laid down in Article 218(11) TFEU.78

6.2 The Role of the European Parliament So far, this analysis has focused on the role of the Council in the conclusion of international agreements. This needs to be examined alongside the role of the European Parliament which is set out in Article 218 (6) TFEU.79 This provision defines the role of the Parliament in three sets of circumstances. The first is about agreements ‘which relate exclusively to the common foreign and security policy’. The Parliament has no formal input in the conclusion of such agreements. This does not suggest that the Parliament has no role at all in the process leading to their conclusion. On the one hand, its rights laid down in Article 218(10) TEU are still relevant and, therefore, the Parliament is to be immediately and fully informed at all stages of the procedure. On the other hand, the general, albeit limited, provisions about parliamentary involvement in the conduct of the CFSP pursuant to Article 36 TEU also apply: the Parliament is consulted by the High Representative ‘on the main aspects and the basic choices of the common foreign and security policy’, it is ‘informed  … of how those policies evolve’, its views ‘are duly taken into consideration’ and ‘may ask questions of the Council or make recommendations to it and the High Representative’. Furthermore, in cases of international agreements which do not relate exclusively to the CFSP but have a CFSP component, legal bases laid down in TFEU would need to be relied upon and would also determine the role of the Parliament. The determination of whether an agreement relates exclusively to the CFSP for the purposes of Article 218(6) TFEU has given rise to disputes. In Case C-658/11 European Parliament v Council the legality of the conclusion of the transfer agreement between the EU and Mauritius was challenged.80 This had been concluded as an agreement which related exclusively to the CFSP pursuant to Article 218(6) TFEU and, therefore, the Parliament had not been involved. The Parliament argued that, as the agreement was about the transfer of suspected pirates with a view to their prosecution, it also related to judicial cooperation in criminal matters, police cooperation and development cooperation. Given that the ordinary legislative procedure applied to decision-making in these areas, the Parliament argued that the agreement should have been adopted under Article 218(6)(a)(v) TFEU and should have required the consent of the Parliament. This was the main thrust of its argument, even though the Parliament accepted that the non-CFSP aspect of the agreement was incidental to its CFSP dimension. The Grand Chamber of the Court rejected the Parliament’s argument. It held that the decision-making procedure for the conclusion of international agreements in Article 218 TFEU reflects the division of powers between institutions that applies internally. 78 On the accession more generally, see P Cragl, The Accession of the European Union to the European Convention on Human Rights (Oxford, Hart Publishing, 2013). 79 For a pre-Lisbon analysis of the role of the Parliament, see D Thym, ‘Parliamentary Involvement in European International Relations’ in Cremona and De Witte (eds), n 62 above, 201. For an assessment of the post-Lisbon involvement of the Parliament, see R Passos, ‘The European Union’s External Relations a Year after Lisbon: A First Evaluation from the European Parliament’ in Koutrakos (ed), n 2 above, 49. 80 Case C-658/11 European Parliament v Council ECLI:EU:C:2014:2025.

150 Decision-making in EU International Relations Therefore, the substantive legal basis of the decision concluding the agreement also determines the type of procedure applicable under Article 218 TFEU. As the decision concluding the transfer agreement with Mauritius had been adopted solely as a CFSP measure, the agreement related exclusively to the CFSP in the meaning of Article 218(6) TFEU. Accordingly, the Parliament’s consent was not required. The Court held that this symmetry between substantive legal basis and decision-making procedure was justified in the light of the principles of legal certainty and consistency. At the time of writing, there is another case pending where the Parliament has challenged the adoption of the EU–Tanzania transfer agreement as an agreement which related exclusively to the CFSP and argued that it should have been adopted jointly under Articles 37 TEU (CFSP), 82 TFEU (judicial cooperation in criminal matters) and 87 TFEU (police cooperation).81 The second set of circumstances where the role of the Parliament arises is set out in Article 218(6)(a) TFEU which provides that the Parliament give its consent to five types of international agreements. These are as follows: (i) association agreements The conclusion of association agreements has required the Parliament’s consent since the entry into force of the Single European Act (the term ‘consent’ is introduced at Lisbon and replaces the term ‘assent’ which was used under the previous Treaties). (ii) agreement on Union accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms. This is examined above. (iii) agreements establishing a specific institutional framework by organising cooperation procedures The conclusion of such agreement has required the Parliament’s consent (known as ‘assent’ under the pre-Lisbon rules) since the entry into force of the Maastricht Treaty. This type of agreement is not defined further in primary law. The wording of Article 218(a)(iii) TFEU may appear not entirely dissimilar to that of Article 217 TFEU which refers to association agreements. However, as the latter are mentioned specifically in Article 218(a)(i) TFEU, it follows that a different type of relationship is envisaged, albeit one the contours of which are ill defined. It is argued that such agreements would cover the WTO Agreements or the Agreement establishing the European Economic Area.82 The scope of this category is flexible enough to encompass our evolving understanding of the structures of international cooperation which are necessary to tackle increasingly complex policy realities.

81 82

Case C-263/14 European Parliament v Council, pending. Dashwood et al, n 16 above, 938.

Conclusion of International Agreements 151 (iv) agreements with important budgetary implications for the Union The conclusion of international agreements with important budgetary implications for the Union has required the Parliament’s consent (or rather ‘assent’) since the entry into force of the Maastricht Treaty. This is another type of agreement the definition of which is not clear. However, the Court of Justice provided some guidance as to its scope in Case C-189/97 Parliament v Council.83 This case was about the conclusion of a fisheries agreement between the European Community (now EU) and Mauritania which would enable EU fishermen to fish in waters under the jurisdiction of Mauritania. In return, the Union would grant financial compensation and support at its own expense. The Council concluded the Agreement by merely consulting the Parliament, hence relying upon the rule under the precursor to Article 218(6) TFEU (ex Article 300(3)(1) EC). The Parliament brought annulment proceedings against the Council, arguing it ought to have been asked to give its assent. The line of reasoning put forward by the Parliament was based on both principle and practice. In relation to the former, it argued that its involvement in the conclusion of international agreements should be interpreted broadly, as the Maastricht Treaty had increased its powers substantially. According to the Parliament, this indicated that its position was closer to that of national parliaments and it was the latter which ought to be the main point of reference in relation to the Parliament’s own powers in the field. As for the practical argument, the Parliament stressed its role as a constituent part of the budgetary authority regarding the law of the internal market and suggested a number of specific criteria that would determine whether the conclusion of an agreement would have important budgetary implications. On the other hand, rather predictably, the Council put forward a strict interpretation of this procedural deviation from the consultation principle and suggested that the implications of an agreement be assessed against the overall budget of the Union. Having repeated the well-established principle that the choice of legal basis is determined by objective factors amenable to judicial review,84 the Court went on to rule out the Council’s suggestion: a comparison between the annual financial cost of an agreement and the overall Community budget ‘scarcely appears significant’ and ‘might render the relevant wording of the second subparagraph of [ex Article 300(3), now Article 218(6) (a)(iv) TFEU] of the Treaty wholly ineffective’.85 Instead, the financial implications of an agreement should be examined in the context of EU external relations in particular. Therefore, expenditure under the agreement should be set against the amount of the appropriations designed to finance the Union’s external operations. The Court then held as follows: This test is intended to apply in a flexible manner, account being taken of the specific nature of the agreement and the circumstances surrounding its implementation. To that effect, whether expenditure under the agreement is spread over several years is an issue which should be taken into account as the total amount may end up representing a significant budgetary outlay. Equally, in relation to sectoral agreements, an additional comparison may be carried out between the 83

Case C-189/97 Parliament v Council [1999] ECR I-4741. Reference was made to Case 45/86 Commission v Council [1987] ECR 1493, para 11; Case C-22/96 Parliament v Council [1998] ECR I-3231, para 23; and Joined Cases C-164/97 and C-165/97 Parliament v Council [1999] ECR I-1139, para 12. 85 n 83 above, para 26. 84

152 Decision-making in EU International Relations expenditure entailed by the agreement and the whole of the budgetary appropriations for the sector in question, the latter including both its internal and external aspects. However, this comparison may only be secondary in nature in so far as its findings may not render the financial implications of an agreement significant if they do not represent a significant share of the appropriations designed to finance the Union’s external operations.86

On the basis of those considerations, the Court concluded that the Fisheries Agreement with Mauritania did not have significant financial implications: it was concluded for five years, ie a not particularly lengthy period of time, and it provided for financial compensation which represented barely more than 1% of the whole of the payment appropriations allocated for the Community’s external operations. This proportion was seen as ‘far from negligible’, yet one which ‘can scarcely be described as important’.87 This was deemed to be the case despite the fact that it exceeded 5% of expenditure on fisheries in general. The judgment of the Court is sensible in its assessment of the circumstances under which an agreement is to be deemed to be of significant financial implications. In particular, it is entirely consistent with the degree of significance suggested by Article 218(6) (a)(iv) TFEU which is more clearly borne out in its French version referring to financial implications as ‘notables’.88 However, whilst providing a more solid basis on which the character of an international agreement should be assessed, the Court’s approach did not articulate a set of strict rules which would form part of the relevant test. This flexibility is inevitable, as the application of the test set out in the Treaty may only be determined by practice. The judgment in EC–Mauritania Fisheries Agreements is also interesting for a point of principle about the Parliament’s general role in treaty-making. Drawing a parallel with relying upon the powers of national parliaments in treaty-making, the Parliament argued for broad powers in the area, a position which was rebuffed by the Court in strong terms: [T]he scope [of ex Article 300(3) second subparagraph, current Article 218 (6)(a)(iv) TFEU] …, as set out in the Treaty, cannot, despite what the Parliament suggests, be affected by the extent of the powers available to national parliaments when approving international agreements with financial implications.89

Made in the concluding paragraph of the judgment, the above statement reminds the Parliament in particular, and the Union’s institutional actors in general, that the only criteria for determining the role of institutions in treaty-making are the Union’s primary rules. Under the pre-Lisbon constitutional arrangements, the claim of the Parliament was clearly maximalistic and was rightly dismissed. (v) agreements covering fields to which either the ordinary legislative procedure applies, or the special legislative procedure where consent by the European Parliament is required This provision aligns the powers of the Parliament over the adoption of internal legislation with those over the conclusion of international agreements. This parallelism 86

Ibid, paras 29 and 32. Ibid, para 33. 88 See also C Flaesch-Mougin, ‘Le Traité de Maastricht et les compétences externes de la Communauté européenne: à la recherche d’une politique externe de l’Union’ (1993) 29 Cahiers de Droit Européen 351, 386. 89 n 83 above, para 34. 87

Conclusion of International Agreements 153 between internal and external decision-making procedures renders the Parliament a central player in the Union’s treaty-making activity. It is recalled that, after Lisbon, the ordinary legislative procedure now applies to most areas of decision-making internally, hence consolidating the role of the Parliament as co-legislature.90 The implications of the introduction of this provision at Lisbon become apparent if one were to compare it to the previous arrangements: under the Nice Treaty, the assent of the Parliament was required, amongst others, for agreements which constituted an amendment of an act already adopted pursuant to the co-decision procedure (ie the precursor to the ordinary legislative procedure). A concern about the management of the consent procedure is that it might delay the entry into force of international agreements. Article 218(6) TFEU provides that, in urgent situations, the Parliament and the Council may agree a time limit. All international agreements not mentioned above, namely those concluded beyond the CFSP framework and those which do not require the Parliament’s consent under Article 218(6)(a)(i)–(v) TEU, are concluded after consulting the Parliament. This procedure is the last remnant of the pre-Lisbon arrangements and now applies to only a small number of agreements. It is provided that, to streamline the procedure, the Council may, depending on the urgency of the matter, set a time limit within which the Parliament ought to deliver its opinion. If the latter fails to deliver an opinion within that time limit, the Council may conclude the Agreement on its own. The strengthening of the role of the Parliament in the reformed landscape of EU external relations is one the main innovations of the Lisbon Treaty. Following its entry into force, it did not take long for the Parliament to show that it was prepared to use its new-found powers. It did so in a fairly spectacular manner in February 2010 when it refused to give its consent to the EU–United States Agreement on the Society for Worldwide Interbank Financial Telecommunications (SWIFT). The SWIFT Agreement aimed to allow US authorities to have access to the banking details of millions of EU citizens for anti-terrorist purposes. It was viewed by the Parliament as imposing intolerable restrictions on human rights. This incident attracted considerable attention. The US Vice-President Joseph Biden and the then Secretary of State Hillary Clinton called the President of the European Parliament to urge that the Agreement should enter into force without delay. It was only after the Agreement had been renegotiated that the Parliament granted its consent.91 Two further incidents made it clear that the European Parliament and its consent required for the conclusion of international agreements had to be taken seriously. The first was about Agreements on Passenger Name Records (PNR) with the United States, Australia and Canada. In May 2010, the Parliament was asked to give its consent to their conclusion (the latter two had been applied provisionally since 2006). However, it required that they be renegotiated as it felt that their provisions did not provide 90 On the ordinary legislative procedure, see K Lenaerts and P Van Nuffel, European Union Law, 3rd edn (London, Sweet & Maxwell, 2011) 663–69. 91 Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for the purposes of the Terrorist Finance Tracking Program [2010] OJ L195/5. For an analysis of this episode, see J Santos Vara, ‘The Role of the European Parliament in the Conclusion of the Transatlantic Agreements on the Transfer of Personal Data after Lisbon’, CLEER Working Papers 2013/2. See also J Monar, ‘The Rejection of the EU–US SWIFT Interim Agreement by the European Parliament: A Historic Vote and Its Implications’ (2010) 15 European Foreign Affairs Review 143.

154 Decision-making in EU International Relations sufficient guarantees for the protection of fundamental human rights. The Commission started negotiations in January 2011 which, in the case of Australia and United States, were concluded in September 2011. The Parliament gave its consent to the conclusion of the EU–Australia Agreement,92 but required changes in the case of the EU–USA Agreement.93 Once these changes had been agreed upon, the new version of the Agreement was given the Parliament’s consent in April 2012 and entered into force on 1 July 2012.94 As for the EU–Canada PNR Agreement, it has now been signed by the Council and awaits the consent of Parliament.95 Another opportunity for the Parliament to flex its muscle was the conclusion of the international Anti-Counterfeiting Trade Agreement (ACTA). Negotiated from 2008 to 2010 between the EU and ten other countries,96 the ACTA drew upon the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) and was about the enforcement of the intellectual property rights laid down therein.97 The Agreement was presented to the Parliament in early 2012 amidst considerable controversy in the EU and the United States about its impact on trade in generic drugs and its implications for fundamental human rights. When it became apparent that the fate of the Agreement was far from certain, the Commission decided in April 2012 to refer it to the Court of Justice under the procedure laid down in Article 218(11) TFEU. Nonetheless, the Parliament proceeded to reject it in July 2012. A few months later, in December 2012, the Commission withdrew its application.

7. MODIFICATION OF INTERNATIONAL AGREEMENTS Modification of International Agreements

In accordance with Article 218(7) TFEU, when concluding an agreement, ‘the Council may  … authorise the negotiator to approve on the Union’s behalf modifications to the agreement where it provides for them to be adopted by a simplified procedure or by body set up by the agreement.’ Article 218(7) adds that the Council ‘may attach specific conditions to such authorisation’. This provision aims to prevent the modification of an agreement from being slowed down by inter-institutional interactions in cases where the substance of the amendments would not warrant reliance upon the procedures set out in Article 218(5), (6) and (9) TFEU. However, in the absence of an authorisation pursuant

92 Agreement between the European Union and Australia on the processing and transfer of Passenger Name Record (PNR) data by air carriers to the Australian Customs and Border Protection Service [2012] OJ L18/4. 93 In doing so, it was not alone as it was joined by the Commission legal service. 94 Information concerning the date of entry into force of the Agreement between the United States of America and the European Union on the use and transfer of passenger name records to the United States Department of Homeland Security [2012] OJ L174/1. 95 See COM(2013) 528: Proposal for a Council Decision on the conclusion of the Agreement between Canada and the European Union on the transfer and processing of Passenger Name Record data (Brussels, 18 July 2013). 96 Australia, Canada, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the United States. 97 For an analysis of the ACTA from the view point of the Union’s participation in global trade governance, see M Cremona, ‘The EU’s International Regulatory Policy, Democratic Accountability and the ACTA: A Cautionary Tale’ in M Cremona and T Takacs (eds), Trade Liberalisation and Standardisation—New Directions in the ‘Low Politics’ of EU Foreign Policy (The Hague, TMC Asser Instituut, 2013) CLEER Working Papers 2013/6, 67.

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to Article 218(7) TFEU, the agreement may be modified in accordance with the procedure that would govern its conclusion.

8. SUSPENSION OF INTERNATIONAL AGREEMENTS

The application of an international agreement may be suspended in accordance with the procedure laid down in Article 218(9) TFEU. This provision was introduced in the light of the increasingly prominent role of the protection of human rights in the Union’s treaty-making practice. It became customary in the 1990s for economic agreements to include a human rights clause which enabled the Union to suspend or terminate the agreements in the case of violation of fundamental human rights.98 Suspension of an international agreement by the Union requires a Council decision adopted on a proposal from the Commission or the High Representative. Article 218(9) is silent on which of the latter actors would have the right of initiative. This suggests that this matter would be addressed pursuant to Article 218(3) TFEU, hence ensuring that the scope of the agreement would determine the institutional actor responsible for taking the initiative to propose its suspension.99 In the light of the central role of the European Parliament in the conclusion of international agreements, the absence of any reference to it in relation to the suspension of an agreement is striking. This may be explained on two grounds. First, the suspension of the application of an international treaty is a heavily politicised act which is intrinsically linked to the conduct of foreign policy. For instance, following the revelations by Edward Snowden about the US National Security Agency’s tapping of EU citizens’ bank data, the European Parliament adopted a non-binding resolution urging the EU to suspend the application of the SWIFT Agreement which the Union had concluded with the United States.100 Given the sensitivity of the underlying issues, the Member States are keen to ensure that the Council would be in control of the procedure. Secondly, and following from the above, time is of the essence in cases where the suspension of an international agreement is deemed by the Council a foreign policy tool worth using. The participation of the Parliament would slow this process down. It does not follow from the above that the Parliament is excluded entirely. Its role as set out in Article 218(10) TFEU is still relevant and the other participating institutions have a duty to keep it informed immediately and fully.

9. EU POSITION IN A BODY SET UP BY AN INTERNATIONAL AGREEMENT EU Position in a Body Set Up by an International Agreement

Under Article 218(9) TFEU, the procedure which governs the suspension of international agreements also applies to establishing the positions to be adopted on the Union’s 98 See L Bartels, Human Rights Conditionality in the EU’s International Agreements (Oxford, Oxford University Press 2005); and B. Brandter and A. Rosas, ‘Human Rights and the External Relations of the European Community’ (1998) 9 European Journal of International Law 468. See also the Opinion of AG Cruz Villalón in Case C-399/12 Germany v Council ECLI:EU:C:2014:289, para 64. 99 See also Dashwood et al, n 16 above, 938. 100 European Parliament resolution of 23 October 2013 on the suspension of the TFTP agreement as a result of US National Security Agency surveillance (2013/2831(RSP)).

156 Decision-making in EU International Relations behalf in a body set up by an agreement, when that body is called upon to adopt acts having legal effects. This provision exempts acts supplementing or amending the institutional framework of the agreement.101 Again, there is no reference to any input by the Parliament. In the light of the considerable number of acts adopted as a matter of course by bodies set up by international agreements, practical considerations may explain this choice. Article 218(9) TFEU provides the procedural basis on which the Council can adopt a decision. It does not provide a substantive legal basis which would establish the competence of the Union to act in the policy area covered by the decisions of the bodies set up by an international agreement envisaged under Article 218(9) TFEU. Therefore, any Council decision adopted pursuant to the latter provision must include a reference both to it and the relevant substantive Treaty provision. The nature of the Council decision adopted under Article 218(9) TFEU was explored in Case C-370/07 Commission v Council.102 This was about a dispute regarding the Union’s position in the context of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). The aim of CITES, which entered into force in 1975, is to protect wild fauna and flora threatened with extinction. It does so mainly by limiting or regulating trade in those species. The EU is not party. Instead, it has observer status. However, it has adopted secondary legislation in order to implement CITES within the EU legal order.103 In 2007 the Council adopted a decision on the Union’s position at the 14th meeting of the Conference of the Parties to CITES. Whilst the Commission had proposed that the decision be adopted on the basis of the Treat’s legal basis on environmental protection and the CCP104 and what is now Article 218(9) TFEU, the Council adopted it without any reference to its legal basis. In its judgment, the Court held that a decision adopted under Article 218(9) TFEU is ‘a measure which produces binding legal effects  … and which is binding in nature, first, with respect to the Council and the Commission and, second, with respect to the Member States inasmuch as it obliges them to defend that position’.105 It was then concluded that such a decision must be reasoned and must also indicate the legal basis on which it is founded. As the contested measure had failed on both grounds, it was annulled. It is recalled that CITES was a convention to which the Union was not a party and that the decision annulled by the Court had failed to provide any legal basis for its adoption. Is it to be inferred by the CITES judgment that Article 218(9) TFEU applies to any international agreement the scope of which falls within the Union’s competence, irrespective of whether the EU is a party to it? This question was raised in Case C-399/12 Germany v Council.106 This dispute arose in the context of the International Organisation for Vine and Wine (OIV). Whilst the

101 See J Heliskoski, ‘Adoption of Positions under Mixed Agreements (Implementation)’ in Hillion and Koutrakos (eds), n 62 above, 138. 102 Case C-370/07 Commission v Council ECLI:EU:C:2009:590. 103 See Council Reg 338/97 on the protection of species of wild fauna and flora by regulating trade therein [1997] OJ L61/1 and amended by, amongst others, Reg 398/2009 [2009] OJ L126/5. 104 Art 175(1) EC and ex Art 133 EC (now Art TFEU and 207 TFEU). 105 Case C-370/07 Commission v Council EU:C:2009:590, para 44. 106 Case C-399/12 Germany v Council ECLI:EU:C:2014:2258.

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Organisation provides for membership by transnational organisations, the Union is not a party. In 2008, the Council failed to reach agreement and adopt the proposal to authorise the Commission to negotiate the Union’s accession. Twenty-one Member States have acceded to the IOV.107 Since 2008, Union legislation on the common organisation of the market in wine has made direct references to resolutions adopted by OIV organs, providing that EU standards and processes follow those determined by the latter.108 In June 2012, the Council adopted a decision establishing the position to be adopted on behalf of the European Union with regard to certain resolutions to be voted in the framework of the OIV.109 The Decision was adopted by qualified majority voting under Article 218(9) TFEU. The German government brought an annulment action against the Council measure arguing that the latter was based on an incorrect legal basis on two grounds. First, decisions adopted by bodies set up by an agreement which the Member States had adopted fell beyond its scope of application; put differently, Article 218(9) TFEU applied only in the context of agreements concluded by the Union. Instead, the German government argued that the Member States ought to have coordinated their position in the OIV on the basis of the duty of cooperation. Secondly, as Article 218(9) TFEU is only applicable to decisions that are ‘legally binding’, it would only apply to decisions that are binding under international law. The decisions adopted in the context of the OIV were not binding under international law and, therefore, the Union’s position on such decisions could not be determined pursuant to Article 218(9) TFEU. In his Opinion, Advocate General Cruz Villalón agreed with the submissions of the German government. He concluded that the history, the wording, the context and objective of Article 218(9) TFEU, all suggested that the latter provision applied only in the context of international agreements to which the Union itself was a party. He also argued that the wording, the context and the telos of the provision confined its application to legally binding acts under international law. Finally, Advocate General Cruz Villalón dismissed the argument by the Council and the Commission that the provision should also apply, by analogy, in the context of an agreement the scope of which fell within the Union’s exclusive competence. He argued that, should this position be accepted, the Union would pick and choose to which organisations to accede and in the context of which organisation to rely upon Article 218(9) TFEU in order to protect its interests. However, such a state of affairs would not be in accordance with the institutional balance in the Union’s constitutional order and would undermine the input of the Parliament in treaty-making.

107 Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Finland, France, Germany, Greece, Hungary, Italy, Luxemburg, Malta, the Netherlands, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden. 108 See Council Reg 479/2008 on the common organisation of the market in wine, amending Regulations (EC) No 1493/1999, (EC) No 1782/2003, (EC) No 1290/2005, (EC) No 3/2008 and repealing Regulations (EEC) No 2392/86 and (EC) No 1493/1999 [2008] OJ L148/1, and Council Reg 491/2009 amending Regulation (EC) No 1234/2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) [2009] OJ L154/1. 109 Council Doc 11436/12 of 12 June 2012.

158 Decision-making in EU International Relations 10. THE SIGNIFICANCE OF DECISION-MAKING PROCEDURES The Significance of Decision-making Procedures

As the constitutional idiosyncracies of the Union are reflected by its institutional structure and the underlying allocation of different tasks to different actors depending on the subject-matter of the measure to be adopted, compliance with decision-making procedures ensures respect for the institutional balance. It is also about compliance with Article 13(2) TEU which requires that each institution ‘shall act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them’. To that effect, Article 13(2) TEU adds that the institutions ‘shall practice mutual sincere cooperation’. In the case of treaty-making by the European Union, compliance with the applicable procedures is all the more important as the stakes are higher. This is because the repercussions of a violation of procedural rules are not confined to the internal plane but can produce international law effects. This issue was examined by the Court in Case C-327/91 France v Commission.110 This was an annulment action in which the French government sought the annulment of an international agreement with the United States about the application of competition rules which had entered into force in September 1991. Its controversial aspect was the fact that it was actually signed by the European Commission represented by its then Vice-President, Sir Leon Brittan. Aiming at promoting cooperation and coordination between the US competition authorities and the Commission, the Agreement set out certain mechanisms that would minimise the possibility of differences between them in the application of their competition laws.111 The main objection put forward by the French government was that the conclusion of the Agreement by the Commission was contrary to the rule now set out in Article 218(5) TFEU. It is recalled that this provision expressly reserves such power to the Council and confines the role of the Commission to the negotiation of international agreements. The Commission counter-argued that the Agreement was in fact one of an administrative nature which it had the right to conclude. To that effect, it argued that non-compliance with the Agreement would not render the Union liable; instead, it would merely result in its termination. According to the Commission, this ‘secondary’ nature of the Agreement was further illustrated by a clause which precluded the parties from interpreting its provisions in a manner inconsistent with their own laws. This defence was summarily rejected by the Court, which relied upon its well-established functional test in order to determine whether the contested act produced legal effects.112 Having answered the question in the affirmative, the Court held as follows: [I]t is the Community alone, having legal personality pursuant to Article 210 of the Treaty [now Article 47 TEU], which has the capacity to bind itself by concluding agreements with a non-member country or an international organization.113

There is no doubt, therefore, that the Agreement is binding on the European Communities. 110

Case C-327/91 France v Commission [1994] ECR I-3641. These included the following: the notification of measures taken in the enforcement of competition law which might affect important interests of the other party; the exchange of information related to matters of mutual interest pertaining to the application of competition laws; coordination of enforcement activities; reciprocal consultation procedures; cooperation regarding anti-competitive activities in the territory of one party that adversely affect important interests of the other party. 112 This test was elaborated upon in Case 22/70 Commission v Council [1971] ECR 263. 113 Case C-327/91 France v Commission, n 109 above, paras 24–25. 111

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It falls squarely within the definition of an international agreement concluded between an international organisation and a state, within the meaning of Article 2(1)(a)(i) VCLT. In the event of non-performance of the Agreement by the Commission, therefore, the Community could incur liability at international level. The Court also ruled that the specific role of the Commission in the area of competition law, namely to ensure the application of the principles laid down in primary and secondary law, by no means implied the conferment of the power to conclude international agreements in that area. As it put it: [T]he internal power [in a field covered by the Agreement] is not such as to alter the allocation of powers between the Community institutions with regard to the conclusion of international agreements, which is determined by Article 300 of the Treaty [now Article 218 TFEU].114

The judgment illustrates a faithful reading of the procedural rules governing treatymaking. It also reflects the significance of the implications of the non-compliance with such rules which are both internal and external. As far as the former are concerned, the EU act pursuant to which the agreement is concluded would be void since its adoption and the institutions involved ‘shall be required to take the necessary measures to comply with the judgment of the Court of Justice’ in accordance with Article 266 TFEU.115 As far as the latter is concerned, the agreement concluded pursuant to the EU act annulled by the Court still stands under international law and, as such, it binds the Union. According to the 1986 VCLT, [A]n international organisation may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of the rules of the organization regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of fundamental importance.116

As this provision lays down customary international law,117 which is binding on the Union,118 this rule would render an agreement concluded in violation of the treaties binding on the EU under international law. Article 46 VCLT provides for an exception to Article 27 VCLT in so far as it refers to a violation of internal rules on competence to conclude treaties which is ‘manifest’ and concerns ‘a rule of … internal law of fundamental importance’. However, given the complexity of the EU rules on external competence, the relevance of this exception would be difficult to envisage in this context.119 In any case, in Case C-327/91 France v Commission the validity of the Agreement had not been disputed. In order to reconcile the internal and external implications of non-compliance with treaty-making procedural rules, the Union must either terminate the agreement in 114 Ibid, para 41. The Commission also relied upon ex Art 300(2) EC which it viewed as the legal basis for its competence to conclude international administrative agreements. The Court rejected that argument too. On the conclusion of administrative agreements under the pre-Lisbon arrangements, see I MacLeod, ID  Hendry and S Hyett, The External Relations of the European Communities (Oxford, Oxford University Press, 1996) 95. 115 The temporal effect of the act may be limited: see Case C-360/93 Parliament v Commission (re: government procurement agreement with USA) [1996] ECR I-1195. 116 Art 46(2): [1986] ILM 543. 117 See Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France) (2008) ICJ Rep 177. 118 Case C-162/96 Racke [1998] ECR I-3655 and Case C-366/10 Air Transport Association of America and Others ECLI:EU:C:2011:864. 119 See A Aust, Modern Treaty Law and Practice, 3rd edn (Cambridge, Cambridge University Press, 2013) 274

160 Decision-making in EU International Relations question in accordance with the rules about termination laid down therein or renegotiate it. This is what happened in Case C-327/91 France v Commission where, following the judgment, the Agreement was renewed by the Council.120

11. CONCLUSION Conclusion

Decision-making in the European Union is complex as it reflects the constitutional idiosyncrasies of its legal order. In the case of EU international relations, this complexity is compounded by the external implications of the Union’s action. This chapter provided an overview of the procedural rules which govern what the Union does in the world and explained them in the context of the Union’s evolving institutional structure. As with so much about EU international relations, the implications or the scope of some of these rules are still not clear. Whilst it is, ultimately, for the Court of Justice to interpret them, it is also for the Union institutions to rely upon them in a constructive manner and without wasting too much energy and time antagonising one another.

120

See Council Dec 95/145 [1995] OJ L95/45.

International Commitments and the Management of Mixity

5 International Commitments and the Management of Mixity 1. INTRODUCTION Introduction

T

HE ANALYSIS IN this book of the case-law on the constitutional foundations of EU external action has shown that the European Union and the Member States coexist in international relations both as a matter of law and practice. In the context of international agreements, this gives rise to the concept of mixity. A phenomenon that reflects the constitutional peculiarities of the EU legal order, mixed agreements have proved a source of endless fascination for EU and international lawyers alike.1 The position of such agreements within the system of EU international relations raises questions about their modus operandi (how are they negotiated, concluded and applied), their interpretation (the relationship between the jurisdiction of the Court of Justice and that of national courts), their implications for the right of Member States to conduct their international relations, and the international responsibility to which their violation may give rise. With the exception of the issue of jurisdiction, which is examined in Chapter 8, this chapter will examine these questions and will highlight the unique position of mixed agreements in the Union’s system of international relations law.

2. INTERNATIONAL COMMITMENTS AND INTERNATIONAL ORGANISATIONS International Commitments and International Organisations

The previous chapter analysed the procedural rules which govern the negotiation and conclusion of international agreements by the EU. In addition to the internal substantive rules which are applicable, these impose certain limitations on the exercise of the Union’s treaty-making powers. There is also a third type of limitation on the EU’s external action which is objective in nature and relates to participation in international organisations. The overwhelming majority of such organisations confine membership to states. In fact, the Union is a party to only a small number of international organisations, such as the World Trade Organization (membership of which gave rise to the seminal Opinion 1/94),2 the Food and Agricultural Organization (FAO), the European Bank for Reconstruction and Development (EBRD), the Codex Alimentarius Commission, and 1 See, amongst others, MJFM Dolmans, Problems of Mixed Agreements—Division of Powers within the EEC and the Rights of Third States (The Hague, TMC Asser Instituut, 1985); C Hillion and P Koutrakos (eds), Mixed Agreements Revisited—The EU and its Member States in the World (Oxford, Hart Publishing, 2010); E Neframi, Les accords mixtes de la Communauté européenne, aspects communautaires et internationaux (Brussels, Bruylant, 2007); D O’Keeffe and HG Schermers (eds), Mixed Agreements (Deventer, Kluwer, 1983). 2 Opinion 1/94 [1994] ECR I-5267. This is analysed in Chapters 2 and 3.

161

162 International Commitments and the Management of Mixity the Hague Conference on Private International Law.3 The EU holds only observer status in the other Specialised Agencies of the United Nations including the International Monetary Fund and the World Bank. In other words, whilst the EU institutions and the Member States have spent considerable energy seeking to define it, the competence of the Union by no means determines in itself membership of international organisations In relation to the United Nations, for instance, the Union is not a party and is, instead, an observer. Over the years, its interests have been presented through its Member States pursuant to the specific provisions set out in Title V TEU.4 In particular, the Union was represented in the UN General Assembly by the EU Presidency. Following the entry into force of the Lisbon Treaty, the post of the High Representative was designed, amongst others, to raise the visibility of the EU as an international actor and enhance its effectiveness and coherence. To that effect, the EU sought to upgrade its role, an objective which it achieved, not without difficulties, pursuant to Resolution 65/276 adopted by the UN General Assembly on 3 May 2011.5 This provides for enhanced rights, such as the right to be inscribed on the list of speakers along with the representatives of major groups, and the right to have its communications circulated directly as documents of the UN General Assembly. The Union may also present proposals and amendments, albeit ‘as agreed by the States members of the European Union’ and which may be put to a vote only at the request of a Member State.6 It has become apparent that there are two types of questions raised by the EU’s participation in international organisations. The first is about the exercise of its role and the issues which arise from its coexistence with the Member States. The second is about the relationship between the EU and its Member States in the context of organisations which the former is prevented from joining whereas the latter are parties. These will be explored in the following sections.

3. THE VARIOUS GUISES OF MIXITY The Various Guises of Mixity

Mixity may be defined as the legal formula enabling the Union and the Member States to negotiate, conclude and implement an international agreement whose subject-matter falls within the competence of both. In its conception and implications, the phenomenon of mixity is multidimensional: aiming at facilitating the coexistence of the Union and the Member States in international contractual relations, it manifests itself in various ways and contexts. The definition of mixity may be as complex as its application. Rosas articulates a 3 See E Denza, ‘The Community as a Member of International Organizations’ in E Emiliou and D O’Keeffe (eds), The European Union and World Trade Law After the GATT Uruguay Round (Chichester, Wiley, 1996) 3; F Hoffmeister, ‘Outsider or Frontrunner? Recent Developments under International and European Law on the Status of the European Union in International Organizations and Treaty Bodies’ (2007) 44 Common Market Law Review 41; and J Sack, ‘The European Community’s Membership of International Organizations’ (1995) 32 Common Market Law Review 1227. 4 See Chapter 12 below. See K Lenaerts and E de Smijter, ‘The United Nations and the European Union: Living Apart Together’ in K Wellens (ed), International Law: Theory and Practice—Essays in Honour of Eric Suy (The Hague, Kluwer, 1998) 439; and J Wouters, F Hoffmeister and T Ruys (eds), The United Nations and the European Union: An Ever Stronger Partnership (The Hague, TMC Asser Press, 2006). 5 UNGA A/RES/65/276 (2011). See the analysis in PA Serrano de Haro, ‘Participation of the EU in the Work of the UN: General Assembly Resolution 65/276’, CLEER Working Papers 2012/4. 6 UNGA A/RES/65/276 (2011), Annex, Art 1(d).

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detailed typology of mixity,7 distinguishing first between parallel and shared competence: the former denotes cases where the Union is competent to conclude an agreement in its entirety, whilst the Member States have the competence to do so too;8 the latter denotes cases where an agreement falls partly within the competence of the Union and partly within that of the Member States. He then focuses on shared competence which gives rise to mixity stricto sensu and distinguishes between coexistent or concurrent competence: the former denotes cases where distinct parts of an agreement fall within the competence of either the Union or the Member States in a way which ‘could, in fact, be seen as two different treaties presented in one and the same document’;9 the latter denotes cases where both the Union and the Member States have competence to conclude an agreement in its entirety without, however, either being, in principle, exclusive. The competences first conferred upon the European Economic Community by the Single European Act and the European Community by the Maastricht Treaty in the areas of environment10 and development cooperation11 expressly provide for the concurrent existence of national competence. The same applies to the area of the economic and monetary union.12 Eeckhout correctly points out that the various ways in which the coexistence of the Union and the Member States is organised in international practice are difficult to capture in detailed, yet easily accessible, categorisations.13 For the purpose of this analysis, suffice it to point out that, in practical terms, mixity may take various forms. It may involve the negotiation and conclusion of an international agreement by the Union and only a number of Member States. In the pre-Lisbon days, this was the case of the Convention on the Protection of the Alps which was concluded by the Community pursuant to Article 130s(1) EC because its subject-matter was deemed ‘a major challenge to all Member States owing to the cross-frontier nature of the economic, social and ecological problems of the Alpine area’;14 the Member States which concluded the Convention were Germany, Italy, France and Austria. Another such example was the agreement on cooperation on management of water resources in the Danube basin concluded in 1990 between Germany and the then EEC, on the one hand, and Austria, on the other hand.15 More recently, the Union has concluded an agreement with Greece, Albania and the Former Yugoslav Republic of Macedonia on the protection and sustainable development of the Prespa Park area.16 This possibility is also provided under the law of the European

7 A Rosas, ‘The European Union and Mixed Agreements’ in A Dashwood and C Hillion (eds), The General Law of EC External Relations (London, Sweet & Maxwell, 2000) 201, 203–07. 8 The example given by Rosas is that of the Agreement establishing the European Bank for Reconstruction and Development: ibid, 203. In that case, the coexistence of the Community and the Member States is not legally necessary as a matter of Community law and entails no division of duties between them. 9 Ibid, 204. 10 Art 174(4) EC (now Art 191(4) TFEU). 11 Art 181(2) EC (now Art 211 TFEU). 12 Art 11(5) EC (now Art 219(5) TFEU). However, Declaration No 10 annexed to the TEU at Maastricht made it clear that those three provisions ‘do not affect the principles resulting from the judgment handed down by the Court of Justice in the AETR case’. 13 P Eeckhout, EU External Relations Law, 2nd edn (Oxford, Oxford University Press, 2011) 213. For an excellent typology of bilateral agreements, see M Maresceau, ‘A Typology of Mixed Bilateral Agreements’ in Hillion and Koutrakos (eds), n 1 above, 11. 14 Council Dec 96/191/EC [1996] OJ L61/31 third recital. 15 See Council Dec 90/160/EEC [1990] OJ L90/18. 16 [2011] OJ L258/2 (concluded, on behalf of the EU, by Council Dec 2011/646/EU [2011] OJ L258/1).

164 International Commitments and the Management of Mixity Atomic Energy Community.17 Furthermore, it is also possible for the Union to conclude an agreement along with a number of Member States and the European Atomic Energy Community.18 Mixity enables the Union institutions and the Member States to avoid debates about the legal bases of envisaged agreements and arguments about the precise delineation of competences. Rosas refers to ‘mixity at all costs’ in cases where clauses about political dialogue are inserted in international agreements so as to render the participation of Member States uncontroversial.19 This practice reflects the wish of the Member States to remain visible international actors. It also illustrates the internal difficulties which shape the Union’s international action and which are additional to the external difficulties which the Union faces in its interactions with third parties.20 In certain cases, the participation of Member States in addition to that of the Union is deemed necessary for practical reasons. In the pre-Lisbon days, for instance, this was the case with the International Coffee Agreement 2001 which was concluded by the Community under Article 133 EC (now Article 207 TFEU): the relevant Decision provided that notwithstanding the exclusive Community competence in this matter, and in order to avoid certain temporary operational difficulties, it is appropriate to authorise the Member States to conclude the Agreement at the same time as the Community and to participate on a temporary basis in the new arrangement.21

The entry into force of the Lisbon Treaty raised the question of the form of agreements covering issues which, under the pre-Lisbon constitutional arrangements, had been governed by both European Community and CFSP rules. For example, would an agreement on trade in goods and CFSP matters need to be negotiated and concluded as a mixed agreement? This is the phenomenon referred to as ‘cross-pillar mixity’ in order to reflect the Union’s constitutional structure prior to the entry into force of the Lisbon Treaty.22 Dashwood uses the term ‘CFSP/TFEU mixity’ to describe this type of mixity.23 The reform of the procedural rules for the negotiation of international agreements under Article 218 TFEU24 may be viewed as ruling out recourse to mixity in such cases. After all, there is express provision for the involvement of the High Representative of the 17 See eg the Agreement between the French Republic, the European Atomic Energy Community and the International Atomic Energy Agency for the application of safeguards in connection with the Treaty for the Prohibition of Nuclear Weapons in Latin America and Caribbean [2000] OJ C298/1. 18 See eg the Framework Agreement on a Multilateral Nuclear Environmental Programme in the Russian Federation and its Protocol on Claims, Legal Proceedings and Indemnification concluded by Council Dec 2003/462/EC [2003] OJ L155/35. 19 A Rosas, ‘Mixed Union—Mixed Agreements’ in M Koskenniemi (ed), International Law Aspects of the European Union (The Hague, Kluwer, 1998) 125, 145. 20 For criticism of these ‘false mixed agreements’, see PJ Kuijper and E Paasivirta, ‘EU International Responsibility and its Attribution: From the Inside Looking Out’ in M Evans and P Koutrakos (eds), The International Responsibility of the European Union—European and International Perspectives (Oxford, Hart Publishing, 2013) 35, 44–45. 21 Fifth preamble to Council Dec 2001/877/EC [2001] OJ L326/22. Issues relating to voting procedures and membership of the Executive Board had not been finalised between the Commission and Member States in time for signing the Agreement. It was for this reason that the membership of the Member States was provided for a period of up to one year. 22 See RA Wessel, ‘Cross-pillar Mixity: Combining Competences in the Conclusion of EU International Agreements’ in Hillion and Koutrakos (eds), n 1 above, 30 23 A Dashwood, ‘Mixity in the Era of the Lisbon Treaty’ in Hillion and Koutrakos (eds), n 1 above, 351, 354. 24 See the analysis in Chapter 4 above.

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Union for Foreign Affairs and Security Policy in the negotiation of international agreements dealing ‘exclusively or principally’ with CFSP matters.25 There is also provision for a negotiating team, which would allow for the participation of the High Representative in cases where an international agreement deals with CFSP matters incidentally. In the latter case, the agreement would be negotiated by the Commission. On the other hand, the distinct nature of the CFSP26 may suggest that the Member States would still be keen to assert their international stature in shaping the Union’s treaty relations with third parties in cases where foreign and security issues are involved.27 However, there are examples in the post-Lisbon practice which suggests that mixity is not relied upon in such cases. In May 2014 the Union concluded negotiations with Kosovo for a Stabilisation and Association Agreement. These were led by the Commission, while the High Representative negotiated the issues pertaining to the CFSP and political dialogue. Another relevant case is the Association Agreement with Ukraine. Whilst concluded as a mixed agreement, its provisional application is provided for the parts of it ‘to the extent that they cover matters falling within the Union’s competence, including matters falling within the Union’s competence to define and implement a common foreign and security policy’.28 The sensitivities underpinning these issues are illustrated by the preamble to the Decision which concludes the Agreement with Ukraine and which states that: ‘The provisional application of parts of the Agreement does not prejudge the allocation of competences between the Union and its Member States in accordance with the Treaties.’29 The allocation of competence within mixed agreements is a complex exercise that has given rise to considerable litigation and endless debates amongst practitioners and scholars. As indicated in the analysis of the case-law on the Union’s external competence in Chapter 3, the Court is reluctant to engage in a detailed delineation of areas of competence where it can avoid it: once the issue of the exclusive competence of the Union has been addressed and the nature of the agreement as mixed ascertained, the definition of precise demarcation lines appears to the Court a far less attractive prospect than academic lawyers might wish. The tone had been set quite early on in the AETR judgment, where the line of reasoning for the recognition of implied competence was underpinned by confusion between the questions of its existence and nature.30 The ruling in Opinion 1/94 illustrates that approach. It appears to carry out three main functions: first, to define the limited areas of the WTO framework which fell within the Community’s (now Union’s) exclusive competence; then, to put forward a detailed examination of the reasons for which the GATT and TRIPs as a whole fell beyond that competence as well as clarifying that they did not fall within a domaine reservée for the 25

Art 218(3) TFEU. On the distinct nature of the CFSP in the Union’s constitutional order, see the analysis in Chapter 12. See R Gosalbo Bono, ‘The Organisation of the External Relations of the European Union in the Treaty of Lisbon’ in P Koutrakos (ed), The European Union’s External Relations a Year after LISBON (2011) CLEER Working Paper 2011/3, 13, 31, where he argues that, ultimately, the legal formula for CFSP/TFEU agreements is a matter of political discretion. Gosalbo Bono also argues that, ‘given that one of the aims of the Lisbon Treaty is to enable more unified external representation of the Union’, the conclusion of such agreements by the EU alone ‘should always be considered before any decision is taken’ (ibid). 28 See Art 4 of Council Dec 2014/295/EU on the signing, on behalf of the European Union, and provisional application of the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Ukraine, of the other part, as regards the Preamble, Article 1, and Titles I, II and VII thereof [2014] OJ L161/1. 29 Ibid, para 4 of the preamble. 30 Case 22/70 Commission v Council [1971] ECR 263: see the analysis in Chapter 3 above. 26 27

166 International Commitments and the Management of Mixity Member States; and finally, to articulate the duty of cooperation which ought to define the management of shared competence in practice.31 This emphasis on the existence of shared competence and the reluctance to address the precise allocation of competences may be explained in the light of the nature of the specific context within which the Court is asked to adjudicate: it is the claim for exclusivity which is usually at the centre of the request of the Commission either in direct actions or requests under Article 218(11) TFEU. It may also be explained by the constant development of EU law and its link to the determination of the nature of Union competence which, hence, renders the allocation of competences subject to continuous redefinition. In fact, the definition of competences is clearly a constitutional question related to the nature and development of the Union legal order and, as such, is viewed as internal to the Community. This was made clear by the Court when it was asked, in 1978, to rule on the compatibility of the Draft Convention of the International Atomic Energy on the Physical Protection of Nuclear Materials, Facilities and Transports. It ruled as follows: It is not necessary to set out and determine, as regards other parties to the Convention, the division of powers  … between the Community and the Member States, particularly as it may change in the course of time. It is sufficient to state to the other contracting parties that the matter gives rise to a division of powers within the Community, it being understood that the exact nature of that division is a domestic question in which third parties have no need to intervene.32

It is in accordance with this ‘internal logic’ that the Court has consistently dismissed arguments by the Commission as to the potentially undermining effects of shared competence on the protection of the Union’s interests internationally. In doing so, the relevant case-law has been characterised by an increasing emphasis on the ways in which shared competence should be managed: this was apparent in its rulings on the conclusion of both the WTO Agreements and the Cartagena Protocol.33

4. THE EXERCISE OF SHARED COMPETENCE BY THE MEMBER STATES The Exercise of Shared Competence by the Member States

In Joined Cases C-181/91 and C-248/91 Parliament v Council and Commission the Parliament challenged the legality of a decision to grant special aid to Bangladesh.34 This decision required that such aid be granted as part of the Community’s policy towards that country. As such, it would be provided by the Member States either directly or by means of an account administered by the Commission. The contested act had been adopted by the Member States meeting in the Council following a Commission proposal and had been incorporated in the conclusions of the relevant Council meeting. The Court held that ‘acts by representatives of the Member States acting, not in their capacity as members of the Council, but as representatives of their governments, and

31

See the analysis in Chapter 3 above. Ruling 1/78 [1978] ECR 2151, para 35. The ruling was delivered under the procedure laid down in Art 103 of the EAEC Treaty. 33 See Opinion 2/00 [2001] ECR I-9713 and the analysis in Chapter 2 above. 34 Joined Cases C-181/91 and C-248/91 Parliament v Council and Commission (re: Bangladesh aid) [1993] ECR I-3685. 32

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thus collectively exercising the powers of the Member States, are not subject to judicial review’.35 However, it also noted that that would be the case only if, ‘having regard to its content and all the circumstances in which it was adopted’, the contested act was not actually a Council decision intending to produce legal effects within the Community legal order.36 First, the Court ascertained the nature and implications of the competence of the Community in the subject-matter of the contested act: [T]he Community does not have exclusive competence in the field of humanitarian aid, and … consequently the Member States are not precluded from exercising their competence in that regard collectively in the Council or outside it.37

The significance of this statement for the exercise of the competence shared by the Member States with the Union can hardly be overstated: Union institutions, procedures and forms of action are available to the Member States in addition to the intergovernmental forms of cooperation to which they may decide to have recourse. This conclusion was confirmed in the remaining part of the judgment. In terms of the involvement of Union institutions in the implementation of such policies, EU law ‘does not prevent the Member States from entrusting the Commission with the task of coordinating a collective action undertaken by them on the basis of an act of their representatives meeting in the Council’.38 In terms of the mode of implementation of such policies, ‘nothing in the Treaty precludes the Member States from making use outside the Community context of criteria taken from the budgetary provisions for allocating the financial obligations resulting from decisions taken by their representatives’.39 In terms of relying upon the Community budget in order to give effect to such policies, since the contested act does not require the use of the Community budget for the part of the aid to be administered by the Commission, the budget entry made by the latter cannot have any bearing on how the act is categorized.40

The exercise of national competence in the context of development cooperation was also the subject-matter of the European Development Fund (EDF) case.41 This was an annulment action brought by the Parliament challenging the financial aspects of the Fourth Lomé Convention as laid down in a Financial Protocol attached to it. That Protocol provided for the financing and administration of Community aid to the African, Caribbean and Pacific (ACP) countries. In order to carry out the obligations undertaken thereunder, the representatives of the governments of the Member States, meeting within the Council, adopted an Internal Agreement. This document provides that the Member States set up a European Development Fund and specifies the contribution of each state; the Union’s institutions became involved in various ways: the Commission was responsible for the administration of the Fund and the Court of Auditors was to control its operations, whereas the discharge for its financial management was to be given to the Commission by the Parliament on the recommendation of the Council. The 35 36 37 38 39 40 41

Ibid, para 12. Ibid, para 14. Ibid, para 16. Ibid, para 20. Ibid, para 22. Ibid, para 24. Case C-316/91 Parliament v Council [1994] ECR I-625.

168 International Commitments and the Management of Mixity implementation of the Agreement would be further defined by a Financial Regulation adopted by the Council. It was the latter measure which was challenged by the Parliament: it argued that it dealt with Community expenditure and, as such, it ought to have been adopted pursuant to the budgetary provisions of the EC Treaty which required that the Parliament be consulted. In its action, the Parliament focused on the provision of financial aid by the Community under the Fourth Lomé Convention. It argued that that entailed an international law obligation for the Community which was distinct from that undertaken by the Member States. Again, the Court first identified the nature and implications of Community competence: The Community’s competence in that field is not exclusive. The Member states are accordingly entitled to enter into commitments themselves vis-à-vis non-member States, either collectively or individually, or even jointly with the Community.42

This conclusion was substantiated by the wording of the EC Treaty provision on development cooperation which had just been incorporated at Maastricht and according to which the Member States and the Community were to coordinate their policies and to consult each other on their aid programmes and about the possibility of joint action. In the second part of the judgment, it was recalled that the Fourth Lomé Convention had been concluded by the Community and its Member States on the one part and the ACP states on the other part. Following an examination of a number of its provisions, the Court pointed out the ‘essentially bilateral character of the cooperation’. It then concluded that: [I]n the absence of derogations expressly laid down in the Convention, the Community and its Member States as partners of the ACP States are jointly liable to those latter States for the fulfilment of every obligation arising from the commitments undertaken, including those relating to financial assistance.43

In the third part of the judgment, the Court examined how precisely these obligations were to be performed. It held that it was for the Community and the Member States to choose how to perform their obligation, and in that case to choose the source and method of financing their cooperation with the ACP countries. The contested action merely expressed the choice made by the Member States: the legality of the mode of its implementation and its reliance upon Community institutions and procedures had already been sanctioned in the Bangladesh judgment. The right of the Member States to rely upon the Union’s institutions in cases where they act beyond the Union’s legal order has arisen recently in the context of the financial crisis. Since October 2012, the European Stability Mechanism (ESM) has been in operation, aiming to provide stability support through a number of financial assistance instruments to any of 18 Member States should these experience or be threatened by severe financing problems. The ESM was set up by an international treaty concluded by the Member States which have the euro as their currency. The ESM Treaty confers considerable powers on the European Commission and the European Central Bank (ECB). The former in particular is entrusted with negotiating Memoranda of Understanding

42 43

Ibid, para 26. Ibid, para 29.

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with the Member State in financial difficulty setting out the details of and conditions for the provision of financial assistance. The ESM also provides that disputes about its interpretation and application which may not be resolved by its Board of Directors would be submitted to the Court of Justice, the judgment of which would be binding on the parties.44 The conclusion of the Treaty was challenged before the Irish Supreme Court which then made a reference to the Court of Justice in Case C-370/12 Pringle.45 In a judgment rendered, unusually, by the full Court and which, predictably, attracted considerable media and academic attention,46 the Court sanctioned the choice of the Member States. With references to both the Bangladesh and EDF judgments, the Court reminds us that the Member States are entitled, in areas which do not fall under the exclusive competence of the Union, to entrust tasks to the institutions, outside the framework of the Union, such as the task of coordinating a collective action undertaken by the Member States or managing financial assistance.47

For the purpose of this analysis, the judgment in Pringle deals with two further issues. First, it places more emphasis on ensuring that ‘those tasks do not alter the essential character of the powers conferred on those institutions by the EU and FEU Treaties’.48 The Court concluded they did not.49 In relation to the Commission, it pointed out that the objective of its involvement in the ESM, namely to ensure the financial stability of the euro, was entirely consistent with its Article 17(1) TEU duty to promote the general interest of the Union. As for its ESM task to negotiate Memoranda of Understanding, this would enable the Commission to ensure their compliance with EU law. In doing so, the Commission would carry out its duty under Article 17(1) TEU to ‘oversee the application of Union law’.50 Secondly, it tackles the question whether the judgments in Bangladesh and EDF were still good authority, as they predated the introduction of enhanced cooperation in the Union’s primary rules. In other words, given that even a number of Member States could rely upon the EU institutions by organising their collective action within the Union legal order under Article 20 TFEU, why should they be allowed to choose to operate beyond 44

Art 37(3) ESM Treaty (www.european-council.europa.eu/media/582311/05-tesm2.en12.pdf) Case C-370/12 Pringle ECLI:EU:C:2012:756. 46 See eg S Adam and F J Mena Parras, ‘The European Stability Mechanism through the Legal Meanderings of the Union’s Constitutionalism: Comment on Pringle’ (2013) 38 European Law Review 848; G Beck, ‘The Court of Justice, Legal Reasoning, and the Pringle Case—Law as the Continuation of Politics by Other Means’ (2014) 39 European Law Review 234; T Beukers and B De Witte, ‘The Court of Justice Approves the Creation of the European Stability Mechanism Outside the EU Legal Order: Pringle’ (2013) 50 Common Market Law Review 805; P Craig, ‘Pringle: Legal Reasoning, Text, Purpose and Teleology’ (2013) 20 Maastricht Journal of European and Comparative Law 1. 47 n 45 above, para 158 48 Ibid. 49 It did so having first pointed out that the activities of the ESM fell under economic policy where the EU does not have an exclusive competence; it pointed out that the duties conferred by the ESM Treaties on the Commission and the ECB were not of a decision-making nature and, in any case, would commit the ESM solely. 50 As for the ECB, the Court held that the tasks conferred upon it by the ESM Treaty are in line with the various tasks which the FEU Treaty and the Statute of the ESCB (and of the ECB) confer on that institution. By virtue of its duties within the ESM Treaty, the ECB supports the general economic policies in the Union, in accordance with Art 282(2) TFEU. Moreover, it is clear from Art 6.2 of the Statute of the ESCB that the ECB is entitled to participate in international monetary institutions. Art 23 of that Statute confirms that the ECB may ‘establish relations … with organisations’ (para 165). 45

170 International Commitments and the Management of Mixity the latter whilst still benefiting from its institutions? The Court answered this question by pointing out that a vital condition for recourse to enhanced cooperation was not met. Article 20(1) TFEU provides that enhanced cooperation may be established in a given area only where the Union itself is competent to act in that area. However, the Union is not endowed with a specific competence to establish a permanent stability mechanism.51

5. THE NEGOTIATION OF MIXED AGREEMENTS The Negotiation of Mixed Agreements

If it were possible to identify certain threads in EU practice related to the negotiation of international agreements,52 the following two would become easily apparent: on the one hand, the determination of the dividing line between Union and national competence is dissociated from the process of the actual negotiation of a given agreement; on the other hand, no firm commitment is undertaken by either the Union or the Member States as to the allocation of their competence. In practical terms, the application of those principles entails the assumption of the main negotiating role by the Commission, albeit without prejudice to the allocation of competence between the Union and the Member States. Therefore, the Commission acts as the sole negotiator on the basis of the mandate provided by the Council, and is also entrusted by the Member States to negotiate on their behalf.53 The Presidency is also present at the negotiations, monitoring the way that matters falling within national competence are dealt with.54 The Lisbon Treaty makes express provision for a negotiating team in Article 218(3) TFEU for the first time. It was on the basis of that formula that the WTO Agreement was actually negotiated. It was stated by the Council that ‘in order to ensure the maximum consistency in the conduct of the negotiations, it was decided that the Commission would act as the sole negotiator on behalf of the Community and the Member States’, albeit without ‘prejudg[ing] the question of the competence of the Community or the Member States on particular issues’.55 This arrangement, which has been applied so extensively as to cover association and cooperation agreements,56 has various advantages. In legal terms, it is consistent with the logic of implied competence. By linking the scope of legislation adopted pursuant to the exercise of the internal competence to the nature of the external competence, the clear implication is that the dividing line between Union and national competence may 51

See the analysis in paras 64–66 of the Pringle judgment (n 45 above). See J Groux, ‘Mixed Negotiations’ in O’Keeffe and Schermers (eds), n 1 above, 87. 53 See eg Decision 2012/494/EU of the Representatives of the Governments of the Member States, meeting within the Council of 23 March 2012 authorising the opening of negotiations for an international agreement on the creation of the EU–LAC Foundation as an international organisation [2012] OJ L240/2, and Decision 2011/712 of the Representatives of the Governments of the Member States, meeting within the Council of 10 June 2011 authorising the Presidency of the Council to negotiate, on behalf of the Member States, the provisions of a legally binding agreement on forests in Europe that fall within the competences of the Member States, [2011] OJ L285/1. 54 To that effect, see the Opinion by Jacobs AG in Case C-316/91 Parliament v Council, n 41 above, para 82. 55 Opinion 1/94 (WTO Agreements) [1994] ECR I-5267, 5282. 56 Heliskoski refers to the exceptional cases of the first and second Yaoundé Conventions signed in July 1963 and July 1969 respectively which were negotiated by representatives of the Member States as well as the Commission: Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States (The Hague, Kluwer, 2001) 80. 52

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require redefinition even during the process of negotiating a given international agreement. In practical terms, it provides continuity in the representation of the position of the Union and national positions. In symbolic terms, it ensures that the determination of competence, ie an issue owing its existence to the constitutional idiosyncrasies of the Union legal order, remains internal to that order. However, the presentation of the Union and national positions by the Commission in the context of the negotiation of mixed agreements raises specific questions relating to the coordination between the Commission and the Member States. As the latter enjoy competence over parts of the agreement and, hence, are entitled to express and protect their interests in the negotiations of those parts, the Commission is constrained as to the substance of the position it may present to its negotiating partners. There is no single formula applying to all mixed agreements as to quite how a joint position is to be determined and presented by the Commission. It is recalled that, in its case-law on the external competence of the Union, the Court of Justice has increasingly relied upon the duty of cooperation: binding upon both the Union institutions and the Member States, this duty applies to the process of negotiation, conclusion and implementation of international agreements.57 The coordination between the Commission and representatives of the Member States aiming at enabling the former to present a joint position is a case in which this duty is entirely relevant. An interesting example of quasi-formal arrangement as to the coordination between the Community and the Member States was illustrated by PROBA 20. This was an arrangement applied to commodity agreements negotiated within the context of the 1970s Integrated Commodity Programme of the United Nations Conference on Trade and Development. As this particular type of international agreement was popular in the 1970s, the Community institutions sought to agree upon how to represent the interests of the Community. It is noteworthy that PROBA 20, which was agreed upon by the COREPER on 27 March 1981, had been suggested by the Commission. In terms of the negotiation of agreements, PROBA 20 provides as follows: The Community and the Member States will participate in a joint delegation: (i) within which the Member States will be individually identifiable (accreditation and nameplate). In the conference rooms the Member States will gather around the nameplate ‘EEC’. In the list of delegations the names of the national and Community delegates will be arranged in a single list. … (ii) which will operate on the basis of a common position previously established pursuant to the usual procedures (positions arrived at within the bodies of the Council—coordination on the spot—the possibility of recourse to the Council in case of difficulties on the spot); amongst the matters to be specifically discussed by the management bodies will be certain matters, notably of a technical nature or which concern only certain Member States which will not require a common position. As far as possible, these matters shall be established previously by common agreement. (iii) which will express the common position with a single voice. The spokesman will normally be the representative of the Commission. However, depending on tactical or technical circumstances, the common position may also be presented by the representative of the Member State holding the Presidency or by a representative of another Member State. In 57

See eg Opinion 1/94, n 55 above, paras 107–09.

172 International Commitments and the Management of Mixity certain cases, interventions may be made by Member States provided that they are strictly within the framework of the common position, they aim at supporting and developing that common position and are made in cooperation with the spokesman and the representative of the Member State holding the Council Presidency. In particular, such flexibility will occur in cases where the personality and experience of representatives of Member States could facilitate the defence of the common interests or in cases where a specific issue does not require a common position (cf ii); (iv) which will be represented pursuant to informal means or restraints by the representative of the Commission, normally accompanied by the representative of the Member state holding the Presidency whilst the Member States are being kept constantly informed. The flexibility provided for under (iii) will also apply to this case.58

Two interrelated features of this arrangement are worth exploring. The first is the subjectmatter of the agreements to which PROBA 20 is applicable: commodity agreements, it is recalled, had been held by the Court to fall, in principle, within the scope of the CCP and, therefore, to be covered by the Community’s exclusive competence.59 And yet, it was precisely for such agreements that arrangements for coordination between the Commission and representatives of the Member States were deemed necessary. What makes this all the more interesting is the fact that the above formula had been suggested by the Commission itself, ie the institution which would normally be the sole negotiator in any case. In addition, it is also recalled that the ruling in Opinion 1/78 sanctioned the actual participation of the Member States in the negotiation and conclusion of the Agreement on Natural Rubber, depending on the determination of the issue of financing. As the conclusion reached by the Court suggested a degree of flexibility, so does the content of the arrangements laid down in PROBA 20. Rather than being defined in terms of merely the procedural ways in which national interests could be expressed, flexibility was also given a substantive content. At the Council meeting approving PROBA 20, the German, Danish, French and British delegations insisted on attaching the following general statement to the minutes: These delegations start from the principle that the Arrangement between the Council and the Commission provides for the effective participation of the Community and its Member States in the negotiations, the preparatory work and the institutions of international commodity agreements and, equally, takes into account their national interests regarding commodity policy. If, in the light of essential interests in wholly exceptional cases, the above objective is not met, it should be possible to make national declarations. This should be the case provided that every effort has been made in a persistent manner in order to find a common position and that the interests of the Community are respected.60

The arrangements laid down in PROBA 20, whilst formalising the parallel participation of the Member States, did not provide for the circumstances under which no common position could be reached. It was in the light of this incomplete character that the above declaration was made. The legality of this formula was questioned in the light of the exclusive competence of the Community over commodity agreements in the context of

58

Translation by the author. Opinion 1/78 [1979] ECR 2871. 60 Extracts from the PROBA Agreement are also included in ELM Voelker and J Steenbergen, Leading Cases and Materials on the External Relations Law of the EC (Deventer, Kluwer, 1985) 59 et seq. 59

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the CCP.61 In responding to a written question in the European Parliament, the Commission sought to justify its action as follows: This arrangement is intended to achieve the basic objective of enabling the Community to participate and speak externally as a single entity. It would thus succeed, pragmatically and without prejudice to the various legal arguments advanced, in ending the difficulties which for many years have resulted from the division of powers between the Community and the Member States in respect of their participation in international activities and agreements in connection with commodities.62

Whilst apparently deviating from the principle asserted (rather than the practice sanctioned) in Opinion 1/78, the above approach suggested by the Commission and agreed upon by the Council is an improvement from past practice where the Community delegation had consisted of representatives of the Commission, the Presidency and the Member States.63 At this juncture, it is appropriate to return to one of the themes of the previous chapters, namely pragmatism: it is not only the Court of Justice which construes the management of EU external relations on the basis of various legal and practical considerations. At times, the Union institutions appear equally willing to resort to legal arrangements which would ensure a degree of unity whilst reserving their position as a matter of principle. Indeed, in the above extract describing the Commission’s position, the phrase ‘pragmatically and without prejudice to the various legal arguments advanced’ is central to its approach which, therefore, appears responsive to that emerging from the case-law of that era: the question of the precise delimitation of competences did not detract from the need to set out pragmatic arrangements for the negotiation of international agreements. Moreover, its open-ended character notwithstanding, PROBA 20 is important for formalising an understanding shared with the Council that the Community should speak, and appear to speak, with a single voice. The efforts by the Commission and the Member States to reconcile their interests in the process of the negotiation of international agreements do not always lead to the adoption of a unitary formula. In the case of the United Nations Convention on the Law of the Sea (UNCLOS), for instance, Member States were particularly insistent in making their presence clear and distinct.64 Furthermore, the determination of a common position to be presented by the Commission is not always easy. In this respect, the Treaty of Rome had provided for a mechanism for coordination between the Member States in areas of particular interest to the common market relevant within the context of international organisations. This provision, laid down in Article 116 EC, which was deleted at Maastricht, imposed a duty on Member States to proceed by common action. It even endowed the Council with the power to define the scope and implementation of such action by qualified majority pursuant to a proposal by the Commission.

61 See JHH Weiler, ‘The External Legal Relations of Non-Unitary Actors: Mixity and the Federal Principle’ in O’Keefe and Schermers (eds), n 1 above, 35, 75. For a different view, see R Barents, ‘The European Communities and the Commodity Organisations’ (1984) 10 Legal Issues of Economic Integration 77, 85–88. 62 Answer to Written Question 343/81 [1981] OJ C274/3. 63 See E Wellenstein, ‘Participation of the Community in International Commodity Agreements’ in St John Bates et al (eds), In Memorial JDB Mitchell (London, Sweet & Maxwell, 1983) 65. 64 See KR Simmonds, ‘The European Community and the New Law of the Sea’ (1989) 218 Recueil des Cours de l’Academie de Droit International de la Haye 9, 112–15. See also T Treves, ‘The European Community and the Law of the Sea Convention: New Developments’ in E Cannizzaro (ed), The European Union as an Actor in International Relations (The Hague, Kluwer, 2002) 279, 281–90.

174 International Commitments and the Management of Mixity In practical terms, the adoption of a common position to be presented in the international negotiations of mixed agreements is determined on a case-by-case basis. In the event of failure to reach a common position, and independently of the issue of the application of the duty of cooperation, the involvement of the Member States in the negotiations is not ruled out.65 This has been criticised as contrary to the principle of unity in the international representation of the Union and potentially undermining Union competence.66 Be that as it may, it has been the rule rather than the exception that, in such contexts, the Union does speak with one voice. If not due to the overarching shadow of the duty of cooperation, this has been due to practical considerations. After all, both the Union institutions and the Member States agree that, in this context, they do not need to agree on the division of treaty-making competence. In addition, they realise that third parties should not be enabled to benefit from internal difficulties in the Union’s camp.

6. CONCLUSION AND RATIFICATION OF MIXED AGREEMENTS Conclusion and Ratification of Mixed Agreements

In terms of the conclusion of mixed agreements, there is a degree of coordination between the Union and the Member States in the process of accession to international conventions and ratification of agreements. In relation to the Vienna Convention for the Protection of the Ozone Layer and the Montreal Protocol on Substances that Deplete the Ozone Layer, for instance, the relevant Council Decision set out a deadline by which the Member States are to ‘take the necessary steps to permit the deposit, as far as possible simultaneously, of the instruments of ratification, acceptance, approval or accession  … by the Community and the Member States’;67 to that effect, there is express provision for cooperation between the Commission and the Member States. At other instances, the simultaneous ratification of an agreement is expressly recognised as necessary for the latter’s uniform and complete application within the Union legal order.68 In any case, the limits of this practice are apparent, as ratification of an international agreement falls within the sovereign discretion of states. As to the issue of the entry into force of mixed agreements, in contrast to the EC Treaty, the European Atomic Energy Community provided for a specific rule. Article 102 EAEC Treaty reads as follows: Agreements or contracts concluded with a third State, an international organisation or a national of a third State to which, in addition to the Community, one or more Member States are parties, shall not enter into force until the Commission has been notified by all the Member States concerned that those agreements or contracts have become applicable in accordance with the provisions of their respective national laws.

This arrangement69 is also followed in the EU legal order as a matter of practice. Whilst 65 See Commentaire Mégret, vol 12: Relations Extérieures (Brussels, Editions de l’Université de Bruxelles. 2005) 183. 66 See C Timmermans, ‘Organising Joint Participation of EC and Member States’ in Dashwood and Hillion (eds), n 7 above, 239, 242. 67 Art 3(1) Council Dec 88/540/EEC [1988] OJ L297/8. 68 See Council Dec 2001/539/EC on the conclusion by the European Community of the Convention for the Unification of Certain Rules for International Carriage by Air (the Montreal Convention) [2001] OJ L194/38. 69 For its application to the Additional Protocols to the Treaty on the Non-Proliferation of Nuclear Weapons, see E Denza, ‘Non-proliferation of Nuclear Weapons: The European Union and Iran’ (2005) 10 European Foreign Affairs Review 289.

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often applied smoothly, there have been instances where the period between the conclusion of an agreement and its entry into force is unnecessarily long because of delays in the process of ratification in national legal orders. The Cooperation and Customs Union Agreement with San Marino is an infamous example of such delay often mentioned in the academic literature:70 the Agreement actually entered into force on 28 March 2002, ie more than ten years after its approval by the parties.71 This problem is generally dealt with by separating, where possible, the component of the agreement falling with the exclusive competence of the Union (eg the CCP) and incorporating it in an Interim Agreement concluded by the Union under Article 207 TFEU and its contracting partner. Indeed, this was the case in the above-mentioned Agreement with San Marino.72 In cases were international agreements are open to both states and international organisations, they may require that the latter submit a declaration of competence. This aims to declare to the parties the areas covered by the agreement in which competence has been transferred by the Member States to the organisation. The Union has submitted a number of such declarations.73 The first in which the Community agreed to provide such a declaration was the Law of the Sea Convention.74 The Declaration submitted by the Community reads in part as follows: 1. Matters for which the Community has exclusive competence: The Community points out that its Member States have transferred competence to it with regard to the conservation and management of sea fishing resources. Hence in this field it is for the Community to adopt the relevant rules and regulations (which are enforced by the Member States) and, within its competence, to enter into external undertakings with third States or competent international organisations. This competence applies to waters under national fisheries jurisdiction and to the high seas. Nevertheless, in respect of measures relating to the exercise of jurisdiction over vessels, flagging and registration of vessels and the enforcement of penal and administrative sanctions, competence rests with the member States whilst respecting Community law. Community law also provides for administrative sanctions. 2. Matters for which the Community shares competence with its Member States With regard to fisheries, for a certain number of matters that are not directly related to the conservation and management of sea fishing resources, for example research and technological development and development cooperation, there is shared competence.

Declarations of competence are also required in agreements concluded by the European Atomic Energy Community.75

70

See Rosas, n 2 above, 208; Eeckhout, n 13 above, 218; and Commentaire Mégret, n 65 above, 186. [2002] OJ L84/43. 72 [1992] OJ L359/14. 73 See J Heliskoski, ‘EU Declarations of Competence and International Responsibility’ in Evans and Koutrakos (eds), n 20 above, 189. 74 Annex IX to the Convention. For the participation of the Community, see B-J Diewitz, The European Union, its Member States and the Law of the Sea: An Assessment of the Relationship between the EU and its Member States in European External Relations Law Pertaining to the United Nations Convention on the Law of the Sea (PhD thesis, University of Bristol, 2012); and KR Simmonds, ‘The Community’s Participation in the UN Law of the Sea Convention’ in D O’Keeffe and HG Schermers (eds), Essays in European Law and Integration (Deventer, Kluwer, 1982) 179. For a more favourable assessment in the light of its specific context, see R Barents, ‘The European Communities and the Commodity Organisations’ (1984) 10 Legal Issues of Economic Integration 77, 85 et seq. 75 See eg the Convention on Nuclear Safety (1996) concluded under the auspices of the International Atomic Energy Agency. The content of the required declaration of competence was the subject-matter of Case C-29/99 71

176 International Commitments and the Management of Mixity A declaration of competence reflects the division between the Union and national competence in the context of a specific agreement to which both are, or intend to become, parties. Its main function is to inform other parties to the agreement as to whether the Union or the Member States are responsible for the performance of particular obligations. As the provisions of international agreements and the balance between EU and national competence are subject to change, so is the content of a declaration. This was the case with the General Fisheries Commission for the Mediterranean (1998):76 its amendment establishing an autonomous budget and the ensuing financial contribution by the Community necessitated the submission of an amended declaration of competence and voting rights.77 In the case of the Cartagena Protocol on Biosafety and in accordance with Article 34(3) of the Convention on Biological Diversity, the Union submitted a declaration of competence following the ruling of the Court of Justice in Opinion 2/00.78 Whilst the logic of declarations of competence is clear and their objective to bring clarity to a legal context which the coexistence of international actors may render complex is commendable, there are problems with the manner in which such declarations are drafted. A case in point is the declaration which the Union submitted to the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (UNESCO).79 In one paragraph with reference to Treaty provisions, the Declaration describes whether the Union has exclusive or shared competence in a wide range of policy areas. This is followed by a two-page list of secondary Union measures which is intended to ‘illustrate the extent of the area of competence of the Community in accordance with the provisions establishing the European Community’.80 A final paragraph states that: The exercise of Community competence is, by its nature, subject to continuous development. In this respect, therefore, the Community reserves the right to notify other future declarations regarding the distribution of competences between the European Community and the Member States.81

Other declarations of competence are no clearer. An example of a shorter, albeit not more succinct, declaration is provided in the context of the Hague Conference on Private International Law.82 This duplicates Treaty provisions in areas covered by the Conference and explains that, in cases where its competence is not exclusive, the Union will act in accordance with the principle of subsidiarity. It then refers to certain internal measures adopted by the Union and also states that ‘[p]rovisions on private international law can also be found in other Community legislation, notably in the area of consumer protection, insurance, financial services and intellectual property’.83 Finally, it refers to the

Commission v Council [2002] ECR I-11221 annotated by P Koutrakos in (2004) 41 Common Market Law Review 191. 76

It was concluded on behalf of the Community by Council Dec 98/416/EC [1998] OJ L190/34. See Annex to Council Dec 2004/815/EC [2004] OJ L357/30. 78 [2001] ECR I-9713. 79 [2006] OJ L201/17, concluded pursuant to Council Dec 2006/515/EC [2006] OJ L201/15. 80 Ibid, Annex 1(b). 81 Ibid. 82 [2006] OJ L297/3, concluded pursuant to Council Dec 2006/719/EC [2006] OJ L297/1. 83 Ibid, para 5 of the Declaration. 77

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principles on competence as introduced by the Court, mentioning expressly judgments such as AETR and Open Skies and Opinions 1/76 and 2/91.84 It is by no means apparent how such a declaration would make it easier for the Union’s partners to familiarise themselves with the division of competence in the areas covered by a given mixed agreement, let alone ascertain who is responsible for which part of the agreement.85 After all, decades after the introduction of implied external competence, EU academic lawyers and practitioners still rack their brains in their efforts to appreciate the practical implications of the often cryptic ways in which the AETR principle is construed by the Court. The complexity of this exercise is illustrated by the effort of the drafters of the Lisbon Treaty to capture this and the other related principles (such as that of necessity) in primary rules—the analysis in Chapter 3 highlights the perils of this exercise, illustrated by the problematic wording of Articles 3(2) TFEU and 216(1) TFEU. In a similar vein, the principle of subsidiarity, mentioned in the Declaration of Competence of the Hague Conference on Private International Law, is hardly a model of clarity. Therefore, it is puzzling how such declarations may be deemed by their drafters to be helpful to the Union’s partners in international agreements. Commenting on the drafting of these documents, De Witte wonders whether ‘[p]erhaps one could consider this case to be “illustrative” of the fact that the constitutional law of the EU’s foreign relations is out of control’.86 Another issue worth mentioning is the possibility of a disconnection clause in a mixed agreement. The aim of such a clause is to make third parties aware that, in the context of relations between Member States, EU law would apply instead of the rules laid down in the agreement in question. Disconnection clauses are normally provided for in Council of Europe agreements87 and are not confined to mixed agreements, as they may also be included in agreements where the Member States are parties but the Union is not, and also in agreements where the EU is a party but the Member States are not.88 In fact, it has been argued that such clauses are irrelevant in mixed agreements.89 It is recalled that in Opinion 1/03 the Court of Justice held that the provision for a disconnection clause in the Lugano Convention of 1988 on jurisdiction and the enforcement of judgments in civil and commercial matters did not make the exclusive nature of the Union’s competence irrelevant.90

84 Opinion 1/76 [1977] ECR 741; Opinion 2/91 [1993] ECR I-1061; Case 22/70 Commission v Council, n 30 above; Case-C-467/98 Commission v Denmark [2002] ECR I-9519. 85 For the perspective of a third party, see P Olson, ‘Mixity from the Outside: The Perspective of a Treaty Partner’ in Hillion and Koutrakos (eds), n 1 above, 331 (at 347 for declarations of competence in particular). See also the criticism in A Delgado Casteleiro, ‘EU Declarations of Competence to Multilateral Agreements: A Useful Reference Base?’ (2012) 17 European Foreign Affairs Review 491. 86 B De Witte, ‘Too Much Constitutional Law in the European Union’s Foreign Relations’ in M Cremona and B De Witte (eds), EU Foreign Relations—Constitutional Fundamentals (Oxford, Hart Publishing, 2008) 3, 15. 87 See eg Art 52(4) of Council of Europe Convention on laundering, search, seizure and confiscation of the proceeds from crime and on the financing of terrorism (Convention No 198) (signed by the EU in April 2009, not yet in force and not yet published in the OJ). 88 See the analysis in M Cremona, ‘Disconnection Clauses in EU Law and Practice’ in Hillion and Koutrakos (eds), n 1 above, 160. 89 See F Hoffmeister, ‘The Contribution of EU Practice to International Law’ in M Cremona (ed), Developments in EU External Relations Law (Oxford, Oxford University Press, 2008) 37, 68–69. Cf M Cremona, ‘Disconnection Clauses in EU Law and Practice’ in Hillion and Koutrakos (eds), n 1 above, 180–81. 90 Opinion 1/03 [2006] ECR I-1145.

178 International Commitments and the Management of Mixity 7. PARTICIPATION IN MIXED AGREEMENTS Participation in Mixed Agreements

In terms of the practice of the participation of the Union and its Member States in international organisations, the voting rights of the Union are exercised on the basis of the underlying principles of competence. As the International Agreement on Jute and Jute Products specifies: [I]n the case of voting on matters within their competence, such intergovernmental organisations shall vote with a number of votes equal to the total number of votes attributable to their member States in accordance with [the specific provisions of the Agreement]. In such cases, the member States of such intergovernmental organisations shall not be entitled to exercise their individual rights.91

There is no single formula applying to all mixed agreements for how the EU position is determined and presented.92 In some cases, provision to that effect is made in the Council Decision concluding the agreement on behalf of the Union. Furthermore, the Member States may formalise the way in which they are to participate in an agreement concluded along with the Union.93 The case of the participation of the Community and its Member States in the FAO is interesting. The Union is a member of the FAO along with the Member States. This was achieved following an amendment of the FAO’s constitution which, inter alia, permitted international organisations to accede to it. As a result, the Union was required to submit a declaration of competence specifying the areas in which it was endowed with exclusive competence, the latter including all matters concerning fisheries aimed at protecting fishing grounds and conserving the biological resources of the sea.94 In terms of decision-making and voting rights, the General Rules of the FAO provide as follows: Rule XLI(2). Before any meeting of the organization the Member Organization or its Member States shall indicate which, as between the Member Organization and its Member States, has competence  … and which, as between the Member Organization and its Member States, shall exercise the right to vote in respect of each particular agenda item. Rule XLI(3). In cases where an agenda item covers both matters in respect of which competence has been transferred to the Member Organization and matters which lie within the competence of its Member states, both the Member Organization and its Member States may participate in the discussions. In such cases the meeting, in arriving at its decisions, shall take into account only the intervention of the party which has the right to vote.

In relation to the coordination of the positions between the Community and the Member 91

Art 5(2) [1991] OJ L29/4 adopted by the Community by Council Dec 91/51/EEC [1991] OJ L29/1. Issues of representation may also arise in the CFSP context. A case in point is the Union’s participation in the Korean Peninsular Energy Development Organisation (KEDO) (now wound down) where an arrangement about participation in the KEDO Executive Board was agreed upon in Council Common Position 2001/869/ CFSP [2001] OJ L325/1. 93 See eg the Internal Agreement between the representatives of the governments of the Member States, meeting with the Council, on measures to be taken and procedures to be followed for the implementation of the ACP–EC Partnership Agreement [2000] OJ L317/376, amended by Internal Agreement between the Representatives of the Governments of the Member States, meeting within the Council, amending the Internal Agreement of 18 September 2000 on measures to be taken and procedures to be followed for the implementation of the ACP-EC Partnership Agreement [2006] OJ L247/48. 94 See R Frid, The Relations Between the EC and International Organizations—Legal Theory and Practice (The Hague, Kluwer, 1995) ch 5. 92

Participation in Mixed Agreements 179 States, the Council and the Commission concluded an Arrangement on the preparation for FAO meetings, statements and voting. The following section of that Arrangement is worth quoting in full: 1.12. In the absence of an agreement between the Commission and the Member States  … the matter will be decided according to the procedure provided for in the Treaty and the agreed practice. In the absence of agreement on this basis, the matter will be referred to the Permanent Representatives Committee. 1.13. Decisions referred to in 1.12 are without prejudice to the respective competences of the Community and its Member States. 2.1. Where an agenda item deals with matters of exclusive Community competence, the Commission shall speak and vote for the Community. 2.2. Where an agenda item deals with matters of national competence, Member States shall speak and vote. 2.3. Where an agenda item deals with matters containing elements both of national and of Community competence, the aim will be to achieve a common position by consensus. If a common position can be achieved: —the Presidency shall express the common position when the thrust of the issue lies in an area outside the exclusive competence of the Community. Member States and the Commission may speak to support and/or to add to the Presidency statement. Member States will vote in accordance with the common position. —the Commission shall express the common position when the thrust of the issue lies in an area within the exclusive competence of the Community. Member States may speak to support and/or add to the Commission’s statement. The Commission will vote in accordance with the common position. 2.4. Should it prove impossible to reach a common position, Member States shall speak and vote. In accordance with the FAO rules of procedure, the Commission would be able to participate in the discussion.

The precise interpretation of the provisions of FAO voting arrangements agreed upon by the Council and the Commission is not without ambiguity.95 An interesting case of their application was raised before the Court in an action for annulment. In Case C-25/94 Commission v Council (FAO)96 the Commission challenged a decision adopted by the Council in November 1993 giving Member States the right to vote in the FAO for the adoption of the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas. The clauses on the attribution and changing of flags which were included in a first draft caused controversy between the Commission and the Member States: registration of vessels lies within national competence, whereas the conservation and management of fishery resources falls within the exclusive competence of the Community. Whilst both the Commission and the Member States agreed that the negotiation and conclusion of the Agreement was a matter of shared competence, they disagreed as to the exercise of the right to vote, each arguing that the thrust of the draft Agreement 95 See J Heliskoski, ‘Internal Struggle for International Presence: The Exercise of Voting Rights Within the FAO’ in Dashwood and Hillion (eds), n 7 above, 79, 84. 96 Case C-25/94 Commission v Council (FAO) [1996] ECR I-1469.

180 International Commitments and the Management of Mixity fell within their respective sphere of competence. The disagreement persisted despite the removal of the clauses on registration and flagging in a second draft, following which it was indicated to the FAO that it would be the Member States which would vote. This they duly did. Following the adoption of the Agreement, the Commission requested that the Council, meeting in its Fisheries formation, approve a declaration not only stating that the Agreement ought to have been approved by the Commission alone but also that, in the future, it would be the Commission which would vote on matters of that nature. It was the refusal of the Council to do so and its confirmation of the approach already adopted that constituted the subject-matter of the action brought before the Court of Justice. The Court acknowledged that the Council’s decision as to voting rights in the FAO had legal effects and applied to relations between the Community and the Member States, between the institutions of the Community and, finally, between the Community and its Member States on the one hand and other subjects of international law, especially the FAO and its Member States, on the other.97

As to the substance of the dispute, the Court affirmed that the competence of the Community on the conservation of the biological resources of the sea was exclusive, a fact recognised by its case-law but also illustrated by the Community’s declaration of competence sent to the FAO.98 It was also pointed out that, as regards the high seas and in areas falling within its authority, the Community had regulatory powers identical to those enjoyed under international law by the state whose flag the vessel flew or in which it was registered.99 It then went on to identify the essential object of the draft Agreement as confined to compliance with international conservation and management measures by fishing vessels on the high sea. The Council’s contention that the main thrust of the draft Agreement fell within national competence was based on two arguments: on the one hand, it set out a system of fishing licences which was comparable to the system of authorisation to fly a particular flag given by national authorities; on the other hand, it included provisions referring to the possibility of imposing penal sanctions and to the provision of assistance to developing countries. Both were rejected by the Court. As regards the former, fishing licences had constituted traditional instruments for managing fishing resources and, as such, were fundamentally different from the international law rights of every state to regulate which ship would fly its flag. In relation to the latter argument, the relevant provisions were deemed not to occupy a prominent position in the draft Agreement. Having defined the thrust of the draft Agreement as within the scope of Community competence, the Court went on to recapitulate the significance of the duty of cooperation between the Community institutions and the Member States in the process of the negotiation, conclusion and implementation of mixed agreements. In doing so, it reaffirmed the role of the requirement of unity in the international representation of the

97 Ibid, para 37. The fact that, in its Conclusions, the Council had noted that ‘the substantive questions of competence and exercise of voting rights in matters coming under the future Agreement had not been settled’ and that it had asked COREPER to reconsider the question of voting in due course was considered irrelevant: para 38. 98 See Joined Cases 3/76, 4/76 and 6/76 Kramer and Others [1976] ECR 1279, para 33. 99 Ibid, para 44 with reference to Case C-405/92 Mondiet v Islais [1993] ECR I-6133, para 12.

Participation in Mixed Agreements 181 Community as the basis of the duty of cooperation,100 the latter requiring that the Community institutions and the Member States take all necessary steps to ensure the best possible cooperation.101 It was precisely the voting rules contained in the Arrangement between the Commission and the Council which represented fulfilment of that duty within the FAO. As those rules were clearly intended to bind both institutions to each other, the Council decision to allow the Member States to vote for the adoption of the draft Agreement despite the fact that its main thrust fell within Community competence constituted a violation of the voting rules laid down in the Arrangement. Therefore, it ran counter to Community law. In terms of its approach to the definition of external competence, the judgment in FAO is entirely consistent with the case-law setting out the constitutional foundations of competence as examined in previous chapters. Rather than deconstructing all the elements of the subject-matter of the Agreement, the Court ascertained whether this Agreement covered areas over which the competence of the Union was exclusive. Once those had been found to constitute the core of the Agreement, the Court moved on to the issue of the management of shared competence. In this respect, it should be pointed out that the Court did not conclude that the Community’s exclusive competence covered the entire scope of the Agreement;102 neither did it identify which parts of the latter fell within national competence or over which, if any, the competence of the Community was shared. However, the Court had no difficulty in finding that the ‘thrust’ of the Agreement or its ‘essential object’ fell within the Community’s exclusive competence by relying upon the absence of provisions on registration and flagging in its final draft. In this respect, it deviated from the advice of Advocate General Jacobs, who had argued that ‘at the time of deciding on the indication of competence it was  … legitimate to take account of the flagging dimension of the negotiation’.103 This argument had led him conclude that it was difficult to define competence in terms of the ‘thrust of the issue’. In his analysis, Advocate General Jacobs appeared to adopt a pragmatic approach to the conduct of negotiations: as issues perceived to fall within national competence could re-emerge at a later stage of the negotiations, competence could not be determined on the basis of the Commission’s arguments. It is recalled that, in the past, such practical considerations had influenced the Court in applying the principles of competence to the facts of cases brought before it. In AETR, for instance, the negotiation of the Agreement in question by the Member States had been sanctioned in order to avoid undermining the successful outcome of the negotiations by suggesting to the negotiating parties a new distribution of powers within the Community.104 It is interesting that the Court should have chosen not to take this practical aspect of negotiations into account in FAO. And yet, its judgment had distinct pragmatic overtones in its approach to the Arrangement between the Commission and the Council. It is remarkable that the content of the Arrangement was not assessed in the light of Community law, nor were its effects questioned in any way. This might be explained by the fact that, rather than being an 100 Ruling 1/78 [1978] ECR 2151, paras 34–36; Opinion 2/91, n 84 above, para 36; and Opinion 1/94, n 55 above, para 108. 101 Opinion 2/91, n 84 above, para 38. 102 See N Neuwahl, ‘Shared Powers or Combined Incompetence? More on Mixity’ (1996) 33 Common Market Law Review 667, 682. 103 Para 69 of his Opinion in n 96 above. 104 Case 22/70, n 30 above, para 86.

182 International Commitments and the Management of Mixity inter-institutional agreement stricto sensu, the document in question was broader in its scope, as it expressed the commitment of the Member States as to how to manage their competence. In giving effect to the FAO Arrangement, the Court applied the duty of cooperation in a rigorous manner. One factor which might have rendered this less controversial than might have been assumed originally was the substantive content of the position of the Commission and the Member States: there was no dispute as to the desired outcome of the negotiations and a common position had been formed throughout that process.105 In other words, the rigorous application of the procedural rules laid down in the FAO Arrangement had no effect on the substance of the negotiating position of the Community and the Member States. At a more general level, the judgment in FAO appears to convey two messages to both the Union institutions and the Member States: on the one hand, the ad hoc arrangements about the management of their shared competence upon which they both agree would be accepted by the Union Courts as the valid expression of their will to comply with their duty of cooperation. On the other hand, the effects of such arrangements would be enforced by the Court. This may be a double-edged sword in so far as the encouragement to adopt formalised methods of cooperation is accompanied by the clear threat of judicial intervention.106 However, the Court’s approach in FAO is linked to a theme illustrated more clearly in the rulings in Opinions 1/94 and 2/00, namely the emerging emphasis on the duty of cooperation. Binding upon the Union institutions and the Member States in the process of negotiation, conclusion and implementation of international agreements, this duty is central to the management of EU external relations. In FAO, the Court enforced it rigorously by relying upon the very arrangements reached voluntarily by the Union institutions and the Member States.107

8. THE DUTY OF COOPERATION AND ITS IMPACT ON MEMBER STATES The Duty of Cooperation and its Impact on Member States

The analysis so far has illustrated the central role of the duty of cooperation in the management of mixed agreements. The duty of cooperation, in general, is set out in Article 4(3) TEU108 and has been an important tool in the Court’s armoury which has contributed to the constitutionalisation of the Union legal order over the years. As set out by the Court of Justice in the context of the Union’s international relations, the duty of cooperation is based on the requirement of unity in the international representation of the Union and the Member States.109 Over the years, it has been applied in different contexts and in different ways. 105

See Jacobs AG, n 96 above, para 59; and Heliskoski, n 95 above, 99. See I Govaere, J Capiau and A Vermeersch, ‘In-Between Seats: The Participation of the European Union in International Organizations’ (2004) 9 European Foreign Affairs Review 155, 167 who point out that no code of conduct similar to the FAO Arrangement has been concluded following the FAO judgment. 107 In 2013, the Commission proposed a revision of the arrangements as well as the Union’s Declaration of Competence: see COM(2013) 333 final: The role of the European Union in the Food and Agriculture Organization (FAO) after the Treaty of Lisbon: Updated Declaration of Competences and new arrangements between the Council and the Commission for the exercise of membership rights of the EU and its Member States (Brussels, 29 May 2013). 108 See the analysis in Heliskoski, n 95 above. 109 See M Cremona, ‘Defending the Community Interest: The Duties of Cooperation and Compliance’ in M Cremona and B De Witte (eds), EU Foreign Relations Law (Oxford, Hart Publishing, 2008) 125; C Hillion, ‘Mixity and Coherence in EU External Relations: The Significance of the “Duty of Cooperation”’ in Hillion and 106

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In cases where there appears a concerted EU position, the Court has held that the Member States are under ‘special duties of action and abstention’.110 This raises two questions: how is an EU position construed; and what types of ‘special duties’ does it entail for Member States? In relation to the latter, it is clear that a Member State may not negotiate and conclude an agreement with a third country. In relation to the former, the limited case-law so far suggests a rather broad approach to the scope of what constitutes an EU position. The first case where this arose was decided in the mid-1970s and became one of the classic authorities on EU external competence. In Kramer111 the Court held that Member States were prevented from assuming obligations in the context of the North Atlantic Fisheries Convention112 in which certain Member States participated. This was because the subject-matter of these measures fell within the exclusive competence of the Community in the light of Article 102 of the 1973 Act of Accession which set out a timetable pursuant to which the Community would adopt secondary measures on the matter under dispute, namely the conservation of the biological resources of the sea. In addition to being prevented from assuming any obligations in this area, the Member States were also required ‘to use all the political and legal means at their disposal in order to ensure the participation of the Community in the Convention and in other similar agreements’.113 Therefore, the provision of a timetable for the adoption of internal measures by the Union imposed on Member States both negative duties (not to assume any international obligations) and positive duties (to facilitate the Union’s participation in an international agreement in which they are already parties). Similar duties are also imposed where the Union institutions have adopted a decision to initiate negotiations of an international agreement. This was the case in the two Inland Waterways judgments,114 where Luxembourg had signed, ratified and implemented, and Germany had ratified and implemented, inland waterway transport agreements with Romania, Poland and Ukraine without consulting or cooperating with the Commission. The genesis of this formulation (‘special duties of action and abstention’) is to be found in a ruling about the Common Fisheries Policy which was rendered in 1981.115 The Council had been trying to discuss common rules on the conservation of fishery resources in the waters under the jurisdiction of the Member States since the beginning of 1979. Having failed to do so, it adopted a series of interim measures, anticipating agreement on common rules by late 1979. The British government decided to adopt a set of specific measures about fishery conservation which the Commission deemed to violate the duty of cooperation. The Court accepted its argument, and pointed out a number of factors: the existence of exclusive Community competence since 1 January 1979, following the expiration of the transitional period;116 the Member States should be Koutrakos (eds), n 1 above, 87; E Neframi, ‘The Duty of Loyalty: Rethinking its Scope Through its Application in the Field of EU External Relations’ (2010) 47 Common Market Law Review 323. 110 Case C-266/03 Commission v Luxembourg, [2005] ECR I-4805, para 59; Case C-433/03 Commission Germany [2005] ECR I-6985, para 65; Case C-246/07 Commission v Sweden [2010] ECR I-3317, para 74. 111 Joined Cases 3, 4 and 6/76 Kramer [1976] ECR 1279. 112 United Nations, Treaty Series, Vol 486, No 7078. 113 n 111 above, para 40. 114 Case C-266/03 Commission v Luxembourg [2005] ECR I-4805; Case C-433/03 Commission v Germany [2005] ECR I-6985. 115 Case 804/79 Commission v United Kingdom [1981] ECR 1045, para 28. 116 See Case 32/79 Commission v United Kingdom [1980] ECR 2403.

184 International Commitments and the Management of Mixity free to act in order to meet the needs raised by the development of relevant biological and technological facts by amending the existing conservation measures in a limited way and not by creating a new conservation policy; the Council had already adopted a set of rules which were applicable on an interim basis; these had been adopted in anticipation of the adoption of a permanent set of common rules by the Council which was only a matter of time. What we see here is a principle, introduced in the internal market sphere and spelled out in this specific context of exclusive Union competence, extended to apply in the context of the negotiation of international agreements. Since the mid-2000s, however, another aspect of the duty has become pronounced, namely its impact on the international role of the Member States. The circumstances to which the duty of cooperation may be relevant are difficult to predict and even more so are its implications for the legal position of the Member States. Therefore, the context of this duty is what the Court tells us it is on the basis of fact-specific disputes which reach Luxembourg. The wide range of situations in which the duty of cooperation may emerge became apparent in the so-called ‘mackerel war’ between the Faroe Islands and the European Union in 2013. This was about fishing quotas of herring and mackerel which are jointly managed under the Atlanto-Scandian Herring Management Arrangements by the Faroe Islands, Iceland, Norway, Russia and the EU. Whilst the parties decide annual quotas, they failed to do so in 2013. This was because they could not agree to the request from the Faroe Islands for a larger quota. The latter increased their quota unilaterally; the EU responded by prohibiting the import of mackerel and herring from the Faroe Islands.117 Whilst a self-governing region, the Faroe Islands have their foreign affairs conducted largely by Denmark. In August 2013 Denmark initiated arbitration proceedings under Annex VII to the UNCLOS in respect of the Faroe Islands against the EU. In November 2013 it requested consultations under Article 4 DSU in the context of the WTO and, once the period for consultation had passed, it requested the establishment of a panel. This is a case of a Member State bringing proceedings against the EU before international dispute-settlement bodies on behalf of an area for which it is responsible under its constitutional arrangements but which is not part of the EU territory. The dispute was solved in June 2014 following negotiations between the Commission and the Faroe Islands, following which the EU repealed the import restrictions it had imposed.118 Whilst its context was highly unusual, the ‘mackerel war’ illustrates the wide range of permutations which the coexistence between the EU and Member States in international relations may take and the difficulty in assessing the duties imposed on them under EU law. The remainder of this section will examine two cases which illustrate the far-reaching implications of the duty to cooperate in directions which had not been envisaged earlier.

8.1 The MOX Plant case The first case where this became clear was in Case C-459/03 Commission v Ireland (MOX Plant).119 This enforcement action, brought pursuant to Article 258 TFEU, concerned

117

Commission Implementing Reg 793/2013 [2013] OJ L223/1. Commission Implementing Reg 896/2014 [2014] OJ L244/10. 119 Case C-459/03 Commission v Ireland (MOX Plant) [2006] ECR I-4635. 118

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Ireland’s decision to institute dispute-settlement proceedings against the United Kingdom before the Arbitral Tribunal provided for in the UNCLOS. It is recalled that both states, along with the EU, are parties to this Convention. The origin of the dispute was the decision by the British government in the mid-1990s to construct a number of facilities, including a mixed-oxide (MOX) fuel reprocessing plant, on a site on the coast of the Irish Sea. The MOX plant was designed to recycle plutonium from spent nuclear fuel which was intended for use as an energy source in nuclear power stations. In the long public consultation process organised by the British authorities, which lasted until August 2001, Ireland intervened on a number of occasions. It challenged the soundness of the environmental statement on which the decision to authorise the construction of the plant was based. It also argued that insufficient information had been made available in the public consultation process. When it became apparent that its objections had been dismissed by the British government, in October 2001 Ireland instituted proceedings against the United Kingdom before the arbitral tribunal set up under Annex VII UNCLOS.120 The thrust of the Irish case was that the decision by the British government was in violation of UNCLOS provisions about the protection and preservation of the marine environment.121 In addition, the Irish government brought an action before the International Tribunal for the Law of the Sea (ITLOS)122 seeking an order that the United Kingdom suspend immediately the authorisation for the operation of the MOX plant. The Tribunal merely prescribed consultations between the two governments. More interestingly, it declared that it had prima facie jurisdiction to rule on the case, the possible EU law dimension of the latter notwithstanding. In June 2003 the Arbitral Tribunal suspended the proceedings until the end of 2003 in order to be better informed of the implications of EU law in relation to the dispute pending before it. It was at that juncture that the Commission brought an enforcement action against Ireland. This was because it objected to the initiation of dispute-settlement proceedings between two Member States beyond the EU legal framework. There were two main aspects of the dispute which made the Commission intervene. The first was the legal context within which Ireland acted: UNCLOS is a mixed agreement and, therefore, the Union has competence over parts of it; and Ireland brought the dispute over the violation of the Agreement against another Member State. The second aspect was the role played in the dispute by EU secondary legislation. In its action, Ireland invoked a number of EU measures before the Arbitral Tribunal. This was allowed under Article 293(1) UNCLOS, which provides that ‘[a] court or tribunal having jurisdiction under this section shall apply this Convention and other rules of international law not incompatible with this Convention’. It was pursuant to this provision that 120 Ireland had also relied upon the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic and sought the constitution of an arbitral tribunal for its dispute with the United Kingdom. Its action was dismissed by the tribunal in July 2003. This Convention is also a mixed agreement (adopted by the EC pursuant to Council Dec 98/249/EC [1998] OJ L104/1). 121 In particular, Arts 123 (cooperation of states bordering enclosed or semi-enclosed seas), 192 (general obligation to protect and preserve the marine environment), 193 (sovereign right of states to exploit their natural resources), 194 (measures to prevent, reduce and control pollution of the marine environment), 197 (cooperation on a global or regional basis), 206 (assessment of potential effects of activities), and 207 (pollution from land-based sources) UNCLOS. 122 Under Art 290(5) UNCLOS.

186 International Commitments and the Management of Mixity Ireland relied upon a number of EU measures which it claimed that the United Kingdom had violated, including Directive 85/337 on the assessment of the effects of certain public and private projects on the environment,123 Directive 90/313 on the freedom of access to the information on the environment,124 and Directive 92/3/Euratom on the supervision and control of shipments of radioactive waste between Member States and into and out of the Community.125 The Commission argued before the Court of Justice that the Irish government had violated EU law on three grounds: first, the action before the arbitral tribunal was contrary to Article 344 TFEU which describes the jurisdiction of the Court as exclusive in areas covered by EU law; secondly, Article 344 TFEU was also violated because Ireland had submitted to the arbitral tribunal a number of instruments of EU law; thirdly, the Irish government violated the duty of cooperation laid down in Article 4(3) TEU not only for exercising a competence which belonged to the Union but also for failing to have informed and consulted the competent EU institutions. Handed down by the Grand Chamber, the judgment of the Court of Justice is long and, in places, not easy to follow. Its first part is about competence and aims to locate the UNCLOS within the EU legal framework. First, the Court set out to ascertain whether the provisions of the UNCLOS relied upon by Ireland before the Arbitral Tribunal come within the scope of EU law. The fact that the UNCLOS was concluded as an environmental agreement and that the protection of the environment was in principle shared was deemed irrelevant: [T]he question as to whether a provision of a mixed agreement comes within the competence of the Community is one which relates to the attribution and, thus, the very existence of that competence, and not to its exclusive or shared nature. It follows that the existence of the Community’s external competence in regard to protection of the marine environment is not, in principle, contingent on the adoption of measures of secondary law covering the area and liable to be affected if Member States were to take part in the procedure for concluding the agreement in question, within the terms of the principle formulated by the Court in paragraph 17 of the AETR judgment. The Community can enter into agreements in the area of environmental protection even if the specific matters covered by those agreements are not yet, or are only very partially, the subject of rules at Community legal, which, by reason of that fact, are not likely to be affected (see, in that regard, Opinion 2/00, paragraphs 44 to 47, and Case C-239/03 Commission v France [2004] ECR I-9325, paragraph 30).126

Having pointed out that the nature of the Union’s competence which might be relevant to the dispute between Ireland and the United Kingdom was irrelevant, the Court then set out ‘to establish whether and to what extent the Community, by becoming a party to the Convention, elected to exercise its external competence in matters of environmental protection’.127 It answered the first question in the affirmative and justified this conclusion by reference to both the Council Decision which concluded the UNCLOS on behalf of

123

[1985] OJ L175/40. [1990] OJ L158/56. 125 [1992] OJ L35/24. 126 Commission v Ireland, n 119 above, paras 93–95. 127 Ibid, para 96. 124

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the Union128 and the Declaration of Competence attached to the UNCLOS. The former refers to ex Article 175(1) EC as a legal basis. As for the latter, it deduces that it confirms that a transfer of areas of shared competence, in particular in regard to the prevention of marine pollution, took place within the framework of the Convention, and without any of the Community rules concerned being affected, within the terms of the principle set out in the AETR judgment.129

However, the Court pointed out that, according to the Declaration, the transfer of areas of shared competence was subject to the existence of EU rules, even though the latter need not be affected; in cases where there are no EU rules, competence rests with the Member States. It then concluded that: [W]ithin the specific context of the Convention, a finding that there has been a transfer to the Community of areas of shared competence is contingent on the existence of Community rules within the areas covered by the Convention provisions in issue, irrespective of what may otherwise be the scope and nature of those rules.130

To address this issue, the Court turned to the Declaration of Competence which it viewed as ‘a useful reference base’.131 An appendix to the Declaration referred to a number of secondary measures which the Union had adopted in areas covered by the UNCLOS. The Court pointed out that various such measures were in fact relied upon before the Arbitral Tribunal by Ireland, in the light of which it reached two interrelated conclusions: on the one hand, the Convention provisions on the prevention of marine pollution relied on by Ireland, which clearly cover a significant part of the dispute relating to the MOX plant, come within the scope of Community competence which the Community has elected to exercise by becoming a party to the Convention.132

On the other hand,133 the provisions of the Convention relied on by Ireland in the dispute relating to the MOX plant and submitted to the Arbitral Tribunal are rules which form part of the Community legal order.

Following the above line of reasoning, the Court had no difficulty in concluding that Ireland’s action before the Arbitral Tribunal violated its own exclusive jurisdiction under Article 344 TFEU. This conclusion was further substantiated on two grounds. First, UNCLOS rules did not impose a duty on Ireland to address its UNCLOS-related dispute with the United Kingdom pursuant to UNCLOS dispute-settlement proceedings. In fact, Article 282 UNCLOS provides that: If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed, through a general, regional or bilateral agreement or otherwise, that such dispute shall, at the request of any party to the dispute, be submitted to a procedure that entails a binding decision, that procedure shall apply in lieu of the procedures provided for in this Part, unless the parties to the dispute otherwise agree. 128

Council Dec 98/392 [1998] OJ L179/1. Commission v Ireland, n 119 above, para 105. Ibid, para 108. 131 Ibid, para 109. 132 Ibid, para 120. 133 Ibid, para 121 129 130

188 International Commitments and the Management of Mixity Therefore, to bring the matter before the Court of Justice would by no means have resulted in a violation of UNCLOS rules by Ireland. In fact, the Court held that, in the light of the provision of Article 282 UNCLOS, review by the Court of Justice took precedence over reliance upon the dispute-settlement system laid down in the UNCLOS.134 Secondly, the Union’s primary rules enable a Member State to bring an action against another Member State in cases where compliance with EU law is an issue. This enforcement procedure is set out in Article 227 TFEU. Therefore, there was an EU cause of action for Ireland against the United Kingdom upon which it chose not to rely. Having established that, by having recourse to the UNCLOS dispute-settlement procedure Ireland had violated its exclusive jurisdiction, the Court of Justice elaborated further on the reliance by Ireland upon EU secondary law before the Arbitral Tribunal. It pointed out that the objective of the Irish move was to get a declaration by the Arbitral Tribunal that the United Kingdom had breached the provisions of the relevant EU measures. To do so, the Tribunal would have to interpret and apply EU law in the context of the proceedings before it. In addition to running counter to Article 344 TFEU, the Irish action had also given rise to ‘a manifest risk that the jurisdictional order laid down in the Treaties and, consequently, the autonomy of the Community legal system may be adversely affected’.135 That risk exists even though, as Ireland avers, it has given a formal assurance that it has not called on, and will not call on, the Arbitral Tribunal to examine or appraise, pursuant to Article 293 of the Convention or an other provision, whether the United Kingdom has breached any rule of Community law. Furthermore, the existence of that risk rendered entirely irrelevant the fact that Ireland may have called on the Arbitral Tribunal to apply Community law by way of renvoi or by recourse to any other technique. Once it had dealt with the implications of the Irish action for its own jurisdiction, the Court approached the dispute from the perspective of the duty of cooperation. It referred, separately, to Article 10 EC (now Article 4(3) TEU) which ‘requires Member States to facilitate the achievement of the Community’s tasks and to abstain from any measure which could jeopardise the attainment of the objectives of the Treaty’,136 and the obligation of close cooperation in the context of mixed agreements, and held that the latter is significant: [I]n particular  … in a case of a dispute which, as in the present case, relates essentially to undertakings resulting from a mixed agreement which relates to an area, namely the protection and preservation of the marine environment, in which the respective areas of competence of the [Union] and the Member States are liable to be closely interrelated, as is, moreover, evidenced by the Declaration of [Union] competence and the appendix thereto.137

Having referred to the risk of a non-EU body ruling on the scope of obligations imposed on the Member States pursuant to EU law, the Court held that: [T]he obligation of close cooperation within the framework of a mixed agreement involved, on the part of Ireland, a duty to inform and consult the competent [Union] institutions prior to

134

Ibid, Ibid, 136 Ibid, 137 Ibid, 135

para 125. paras 154–56. para 175. para 176.

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instituting dispute-settlement proceedings concerning the MOX plant within the framework of the Convention.138

The implications of the judgment in MOX Plant are considerable. On the one hand, the judgment imposes an onerous duty on Member States which limits their scope of action as autonomous participants in international relations within the context of agreements which they have negotiated, concluded and ratified in accordance with their own constitutional arrangements. On the other hand, it appears to reduce the effectiveness of dispute-settlement mechanisms in the context of international organisations as well as the scope of the jurisdiction of the bodies established under such mechanisms. In the light of the above, the judgment attracted considerable attention139 and even more considerable criticism, particularly amongst international lawyers. Koskenniemi, for instance, considers it ‘stunning’ and views it as falling ‘squarely on the oldest, and most conservative trajectory of European thinking about the role of international law and its relations with national law’.140 The temptation to read judgments independently from their specific legal and factual context is too great, especially in cases where their implications appear far-reaching. And yet, it should be resisted. The MOX Plant case presented two central issues which rendered any conclusion other than the one reached by the Court difficult to sustain. First, the recourse to the enforcement proceedings set out under the EU rules was sanctioned by the UNCLOS. Secondly, at no point was there any doubt that the Irish government had submitted a number of EU secondary measures to the Arbitral Tribunal so that the latter would interpret them and applied them to the dispute before it. Of these factors, the latter creates a risk of disjunction between the interpretation of these measures by the Court of Justice and the Arbitral Tribunal which the former had rendered entirely avoidable. It was the choice made by Ireland not to avoid this risk which triggered the action by the Commission. These two aspects of the legal context of the dispute provide ample basis for the interpretation and application of the duty of cooperation articulated by the Court in MOX Plant. Nevertheless, this eminently sensible conclusion is obscured by the reasoning of the judgment. It is recalled that its starting point was to ascertain whether, by concluding the UNCLOS, the Union had chosen to exercise its competence in the area of environmental protection and, in particular, the protection of the marine environment. That part of the judgment and its emphasis on the exercise of the Union’s competence is as convoluted as it is unnecessary in the light of the specific legal characteristics of the case. The judgment engages in an esoteric examination of what the conclusion of the Convention actually signified for the Union’s competence, even though it had already been established that the duty of cooperation was of a wide scope and applied irrespective of the existence of EU secondary legislation in the field. Quite apart from the purported objective of this theological exercise, one wonders whether the omission of that part 138

Ibid, para 179. See, amongst others, J Cazala, ‘La contestation de la compétence exclusive de la Court de justice des Communautés européennes’ (2004) 40 Revue Trimestrielle de Droit Européen 505; N Lavranos, ‘The Scope of the Exclusive Jurisdiction of the Court of Justice’ (2007) 32 European Law Review 83; E Neframi, ‘La mixité éclairée dans l’arrêt Commission contre Irlande du 30 mai 2006 (affaire Mox): une double infraction, un triple apport’ [2007] Revue du Droit de l’Union européenne 687. 140 M Koskenniemi, ‘International Law: Constitutionalism, Managerialism and the Ethos of Legal Education’ [2007] European Journal of Legal Studies (www.ejls.eu/1/3UK.pdf). 139

190 International Commitments and the Management of Mixity of the judgment would have rendered its conclusion any less credible. It appears that the judgment provided the right answer even though it sought to address the wrong question. As Cremona points out, the UNCLOS would have given rise to issues within the Union’s competence even if the Irish view had been correct and in fact the Community had not concluded the environmental aspects of the agreement—there would still be a threat to the Community legal order if such issues were to be submitted to non-Community dispute settlement.141

The reliance upon the UNCLOS Declaration of Competence also raises questions. The analysis above in this chapter highlighted a paradox: on the one hand, the function of such Declarations is to provide clarity to third parties as to the division of competence between the Union and the Member States within the scope of a given mixed agreement; on the other hand, the content of these Declarations is invariably unhelpful as it provides broad statements about exclusive and shared competence, it sets out an indicative list of measures in fields covered by the agreement, and it reminds the Union’s interlocutors of the fluid nature of the Union’s competence. The wording of the Declaration of Competence annexed to the UNCLOS itself is by no means unambiguous.142 In his Opinion, Advocate General Maduro refers to ‘its lack of clarity and elegance’.143 After all, whether the Union has exercised its non-exclusive competence under the UNCLOS provisions is a question that is narrower than whether Ireland violated its EU law obligations by submitting a dispute against another Member State beyond the EU legal framework.144 A Member State is under a duty not to violate Union law even in areas that fall within the sphere of their competence. This is the case in relation to areas of activity as diverse as foreign policy,145 the organisation of the armed forces,146 the organisation of national health care systems147 and criminal law.148 And yet, it features prominently in the judgment, even though it was merely described as ‘a useful reference base’.149 Another prominent feature of the judgment is the emphasis on the autonomy of the Union’s legal order. This is linked to the issue of the jurisdiction of the Court of Justice: if the exclusivity of the latter under Article 344 TFEU were undermined, the autonomy of the EU’s legal order would be in danger. The link between exclusivity of jurisdiction and the autonomy of the Union’s legal order had been acknowledged expressly in the early 1990s. Addressing the question whether the conclusion of the European Economic Area (EEA) Agreement and the adjudication system which it provided was consistent with the then Community’s rules, the Court referred to the Community’s founding Treaty, as

141

Cremona, n 109 above, 151 (emphasis in the original). See eg R Churchill and J Scott, ‘The Mox Plant Litigation: The First Half-Life’ (2004) 54 International & Comparative Law Quarterly 643, 664–66. 143 Para 30 of his Opinion. 144 In this vein, ibid, 150–52. 145 Case C-124/95 The Queen, ex parte Centro-Com/HM Treasury and Bank of England [1997] ECR I-81, para 27. 146 Case C-273/97 Sirdar [1999] ECR I-7403; Case C-285/98 Kreil [2000] ECR I-69; Case C-186/01 Dory [2003] ECR I-2479. For a comment, see P Koutrakos, ‘How Far Is Far Enough? EC Law and the Organisation of the Armed Forces after Dory’ (2003) 66 Modern Law Review 759; and M Trybus, European Union Law and Defence Integration (Oxford, Hart Publishing 2005) ch 9. 147 Case C-120/95 Decker v Caisse de maladie des employés privés [1998] ECR I-1831; Case C-158/96 Kohll v Union des caisses de maladie [1998] ECR I-1931; Case C-372/04 Watts [2006] I-4325. 148 Case C-226/96 Criminal Proceedings against Lemmens [1998] ECR I-3711. 149 Commission v Ireland, n 119 above, para 109. 142

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amended by the Single European Act in 1987, as ‘the constitutional charter of the Community based on the rule of law’.150 It then ruled that the judicial system envisaged under the proposed EEA Agreement posed a ‘threat  … to the autonomy of the Community legal order’.151 More recently, the Court has focused on its jurisdiction in the context of the proposed establishment of a judicial system for the European Patent Convention and the proposed Community patent.152 The interesting aspect of this case is that the Court approached this issue from the viewpoint of national courts and claimed that it was their right to refer to the Court of Justice that ought to be protected in a transnational judicial system.153 The principle of autonomy also emerged prominently in the case-law on smart sanctions and, amongst others, the Kadi litigation.154 The judgment in MOX Plant may appear to substantiate a charge against the Court for undermining the role of international tribunals. However, such a charge is misplaced. The judgment must be viewed within its specific factual and legal context, in particular the reliance upon EU law before the UNCLOS bodies and the provision, under Article 282 UNCLOS, for parties to have recourse to alternative dispute-settlement mechanisms. The latter has been described as ‘inter-regime comity in action’.155 Viewed from this angle, there is no reason why the Court should not have exercised its jurisdiction to interpret and apply EU law and the duty of cooperation between Member States. In this respect, it is worth recalling that the Arbitral Tribunal constituted under the UNCLOS in the case had pointed out ‘that the resolution of the essentially internal problems within the European Community legal order may involve decisions that are final and binding’, and concluded that ‘it would be inappropriate for it to proceed further with hearing the Parties on the merits of the dispute in the absence of a resolution of the problems referred to’.156

8.2 The PFOs Case Another case where the impact of the duty of cooperation on the rights of Member States under mixed agreements was examined was Case C-247/07 Commission v Sweden (PFOs).157 This was another enforcement action and arose in the context of the Stockholm Convention on Persistent Organic Pollutants (POPs). Adopted in 2001 and in force since 2004, this Convention aims to target POPs whose toxic properties and ability to

150

Opinion 1/91 (EEA Agreement) [1991] ECR I-6079, para 21. Ibid, para 47. 152 Opinion 1/09 (Draft Agreement on the European and Community Patents Court) [2011] ECR I-1137. 153 See P Koutrakos, ‘The Court of Justice as the Guardian of National Courts—Or Not?’ (2011) 36 European Law Review 319. 154 See the analysis in Chapter 7. On the concept of the autonomy of the EU legal order, see P Koutrakos, ‘The EU and the Law of Treaties’ in D Kritsiotis and M Bowman (eds), The Modern Law of Treaties (Cambridge, Cambridge University Press, 2015 forthcoming) and JW van Rossem, ‘The Autonomy of EU Law: More Is Less?’ in RA Wessel and S Blockmans (eds), Between Autonomy and Dependence—The EU Legal Order Under the Influence of International Organisations (The Hague, Springer, 2013) 13. 155 A Skordas, ‘Völkerrechtsfreundlichkeit as Comity and the Disquiet of Neoformalism: A Response to Jan Klabbers’ in P Koutrakos (eds) European Foreign Policy–Legal and Political Perspectives (Cheltenham, Edward Elgar Publishing, 2011) 115, 127. 156 Annex VII Arbitral Tribunal, MOX Plant case (Ireland v the UK), Order No 2, 24 June 2003, paras 27 and 28. 157 Case C-246/07 Commission v Sweden (re: PFOS) [2010] ECR I-3317. 151

192 International Commitments and the Management of Mixity move across international boundaries is deemed dangerous for both human health and the environment. Parties assume the obligation to reduce or eliminate the release of all POPs listed in the annexes to the Convention. Any party has the right to propose any substance be considered a POP. Following an elaborate process of technical review and risk assessment, the conference of the parties votes on whether the proposed substance should be included in the annexes to the Convention and, therefore, whether they should be reduced or eliminated by all the parties. In addition to the Stockholm Convention, a POPs Protocol has been concluded, under the aegis of the United Nations, and annexed to the 1979 Convention on Long-range Transboundary Air Pollution on Persistent Organic Pollutants (the ‘Aarhus Protocol’). The Protocol tackles the transport of POPs by air. Both the Union and the Member States are parties to the Stockholm Convention. In parallel to the international framework, there is an EU law framework on POPs. In particular, the Union adopted Regulation 850/2004 on POPs.158 This was just one of the measures in areas covered by the Convention.159 The dispute was about the initiative by Sweden to propose that a particular group of POPs (perfluoroctane sulfonates (PFOs)) be included in the annexes to the Convention. First, it brought the matter before the relevant body of the Council where it suggested that the Union submit a common proposal on PFOs to the Convention and the Aarhus Protocol. The Commission also suggested to the Council that the Union make a common proposal that some other POPs, which did not cover PFOs, be included in the Convention and the Aarhus Protocol. After a number of meetings, the Council decided that the Union should submit a proposal to the Convention that a number of substances already set out in Regulation 850/2004 be included in the annexes to the Convention. These substances did not include the PFOs which had been the subject of Sweden’s initiative. Following this decision, Sweden submitted unilaterally a proposal to the Convention that PFOs be included in its annexes. The Commission objected to this action and argued that it amounted to a violation of EU law, in particular the duty of cooperation set out in Article 10 EC (now Article 4(3) TEU).160 Sweden had acted contrary to EU law. What is interesting about this case is that Sweden had sought to get EU agreement on the matter and to convince the Union to make the proposal the subject-matter of a concerted action. However, the Union had decided to list two other substances instead. Sweden argued that the unilateral submission of the specific substance was justified: it had done all it could to consult with the EU institutions; the latter had not adopted a decision expressly refusing to propose its listing; because of the Convention rules, had it not put forward its proposal, there would have been a considerable delay of at least a year. The main thrust of the defence by the Swedish government was that its unilateral proposal in the context of the Stockholm Convention did not amount to a violation of the duty of cooperation. As it had brought the matter first before the Council, and

158

[2004] OJ L158/7, and corrigendum [2004] OJ L229/5. See also Reg 304/2003 concerning the export and import of dangerous chemicals [2003] OJ L63/1, and Council Dir 96/59/EC on the disposal of polychlorinated biphenyls and polychlorinated terphenyls (PCB/PCT) [1996] OJ L243/31. 160 It also argued that Sweden had violated Art 300(1) EC (now Art 218(1) TFEU) on the conclusion of international agreements. As the Swedish action related, instead, to an initiative about the establishment of a position to be adopted on behalf of the Union in a body set up by an agreement, under Art 300(2) second subparagraph (now Art 218(9) TFEU), the Court had no difficulty in dismissing the Commission’s argument. 159

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given that that the latter had failed to act on its proposal, it argued that, in fact, it had complied with the duty of cooperation. The Court was not convinced by this defence. The Grand Chamber held that, whilst the Union had not adopted any formal decision regarding a proposal to list substances in an annex to the Stockholm Convention, there was at the time ‘a Community strategy’161 not to propose the listing of PFOs immediately. This strategy was based on a policy consideration, namely to give emphasis to the listing of substances already set out in the POPs Regulation, in order to align the regime set out under the latter with the Stockholm Convention. There were also economic considerations which determined the Union’s strategy: for every substance listed under the Stockholm rules, the parties, and therefore the EU too, are under a duty to provide financial aid to developing countries or countries with economies in transition.162 Therefore, the unilateral proposal by Sweden constituted a deviation from the Union’s concerted common strategy on the matter. The Court then held that Sweden’s actions had ‘consequences’ for the Union.163 It referred to three types of consequences. The first was about the binding effect on the Union. In the light of the voting rules of the Stockholm Convention, either the Union or the Member States would vote. If the Union voted, it would deprive Sweden of its right to defend its own proposal. If, on the other hand, Sweden voted, it would deprive the Union of the exercise of its right to vote with a number of votes equal to the number of its Member States. Secondly, there was no possibility for the Union to opt out from its obligation to comply with the Convention’s rules in relation to PFOs. While the Convention enables a party to opt out, provided that it does so in time, and contrary to the argument made by a number of governments, the Court held that that option would not have been available to the Union in relation to a proposal made by one of its own Member States. The third consequence of Sweden’s unilateral initiative was related to legal certainty. The Court held that to opt out from an amendment proposed and voted for by several Member States could give rise to legal uncertainty for the Member States, the Secretariat of the Convention as well as other parties to the Convention. The Court then pointed out that: Irrespective of that aspect [namely the legal uncertainty mentioned above], the objective sought by depositing a proposal for the listing of a substance in Annex A to the Stockholm Convention is the adoption of an international legal rule which will be binding on the parties to that convention. Since the Union is a party to that convention, it could be bound by the resulting amendment to that annex.164

It concluded that the duty of cooperation had been violated, as [s]uch a situation is likely to compromise the principle of unity in the international representation of the Union and its Member States and weaken their negotiating power with regard to the other parties to the Convention concerned.165

In PFOs, the scope of the duty of cooperation is extended further than what the MOX 161

Commission v Sweden, n 157 above, para 76. Art 13 Stockholm Convention. 163 Commission v Sweden, n 157 above, para 92. 164 Ibid, para 100. 165 Ibid, para 104. 162

194 International Commitments and the Management of Mixity Plant had suggested. In the latter case, a Member State had been prevented from relying upon dispute-settlement proceedings against another Member State in the context of a mixed agreement where EU secondary legislation would be interpreted and applied by a non-EU tribunal. In the former case, a Member State is required not to deviate from ‘a Union strategy’ by exercising the rights bestowed upon it under a mixed agreement even though it had consulted with the EU institutions. This approach of the duty of cooperation judgment in PFOs has attracted criticism.166 In essence, does the Court not expect the Member States to remain silent in the context of mixed agreements? Does this interpretation not render the participation of Member States in mixed agreements irrelevant? And, in effect, does it not reduce considerably the implications of the difference between mixity and exclusive competence in terms of the EU duties on Member States? The line of reasoning in PFOs is not without its problems. The Court appears rather too keen to establish that the Swedish initiative would undermine the Union’s position. It tells us that unilateral action would have ‘consequences’ for the Union.167 It does not refer to serious or considerable consequences—just ‘consequences’. As for the explanation of what these consequences would be, the judgment is short on analysis. In relation to voting, for instance, the argument by Sweden, and the four other governments which intervened,168 that, under the rules of the Stockholm Convention, the Union could opt out from and, therefore, was not bound by, the listing of PFOs was given short shrift. As for the concern that unilateral action by Sweden would give rise to legal certainty, this raises more questions than it answers. Legal certainty is pronounced as a general imperative which, however, is little more than the last refuge of a weak line of reasoning. There is no explanation in the judgment as to how the exercise by the Union of the right to opt out which is bestowed upon it by the Convention would give rise to legal uncertainty. Would it be the apparent disagreement between its position and that of some of its Member States? Would it be the emergence of questions as to the application of the Convention rules to the product in relation to Sweden and other states which might have voted for it? These are valid questions, and they are far from straightforward to address. And yet, they are being bypassed by invoking the all-encompassing concept of legal certainty. As the judgment deprived Member States of their freedom to act, a freedom which mixity is purported to protect, it would not be unreasonable to expect a more careful line of reasoning. There is also another question raised by the reasoning in PFOs that has to do with the wide scope of actors which the Court views as affected by the alleged legal uncertainty which would ensue if the Union opted out. In addition to the Member States, the judgment refers to the Secretariat of the Convention and to third parties which are parties to the Convention. This is difficult to reconcile with the general approach of the Court to the delimitation of roles between the Union and the Member States. It has been a constant in EU external relations that the division of powers between the Union and the Member States is a matter internal to the EU’s deeply idiosyncratic legal order.169 The interests of third parties to know with whom they are dealing are intended to be 166 See A Delgado Casteleiro and J Larik, ‘The Duty to Remain Silent: Limitless Loyalty in EU External Relations?’ (2011) 36 European Law Review 524. 167 Commission v Sweden, n 157 above, paras 92 and 101. 168 These were the governments of Denmark, the Netherlands, Finland and the United Kingdom. 169 See Ruling 1/78 [1978] ECR 2151, para 35.

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addressed on the basis of the declarations of competence. And yet, in PFOs the Court appears eager to protect the interests of third parties by not exercising a right which it may have under a mixed agreement and, ultimately, by reducing the scope of what Member States may do when they act along with the Union as sovereign subjects of international law. At the core of the dispute is the disjunction between what Sweden viewed as a decision-making ‘vacuum’170 which it had the right to fill and what the Court deemed a ‘Community strategy’,171 namely to prioritise the listing of substances which had already been listed in the POPs Regulation, hence bringing the regime laid down by the latter closer to the Stockholm Convention. The requirements for such a strategy to emerge have been seen as ‘not very high’.172 Indeed, Dashwood considers that, ‘[a]t most, there was an informal understanding between national delegations and the Commission as to the course of action it was appropriate to pursue’.173 This broad construction of what constitutes a Union strategy widens the scope of the duty of cooperation and renders the duties that the latter imposes on Member States more onerous. Another important aspect of the PFOs case is the practical implications of the underlying issues. The financial implications that any listing under the Stockholm Convention would have for the Union’s budget appear prominently in the judgment which also refers to the statement by the Presidency at a meeting of the Council Working Party on International Environmental Issues. This pragmatic and policy dimension is at the centre of the PFOs judgment and sheds some light on the Court’s approach to the duties in accordance with which the Member States must act in the context of mixed agreements. However, the judgment is not easy to understand as setting out a general principle as to the circumstances under which the international conduct of a Member State would be appropriate. It ought to be viewed in its specific factual, legal and policy context, as a number of variables are left open. For instance, it is not clear what is the intensity of the duty imposed on Sweden. How long would the obligation to abstain ought to have lasted? How long does the Union strategy last, short of making a proposal before the Stockholm Convention bodies on behalf of the EU? In his Opinion, Advocate General Maduro suggested that: The implications of the duty of loyal cooperation are  … twofold: first, that Member States cooperate with the Community decision-making process; and, second, that they refrain from taking individual action, at least for a reasonable period of time, until a conclusion to that process has been reached. 174

In order to refute the argument by the Swedish government that there was a decisionmaking vacuum, the judgment points out that there was not ‘even a waiting period equivalent to the absence of a decision’.175 This seems to suggest that there is a limit to 170

Commission v Sweden, n 157 above, para. 87. Ibid, para 76. Heliskoski considers the requirements for such a strategy ‘not very high’: J Heliskoski, ‘The Obligation of Member States to Foresee, in the Conclusion and Application of their International Agreements, Eventual Future Measures of the European Union’ in A Arnull, C Barnard, M Dougan and E Spaventa (eds), A Constitutional Order of States? Essays in EU Law in Honour of Alan Dashwood (Oxford, Hart Publishing, 2011) 545, 561. 173 A Dashwood, M Dougan, B Rodger, E Spaventa and D Wyatt, Wyatt and Dashwood’s European Union Law, 6th edn (Oxford, Hart Publishing, 2011) 934. 174 Commission v Sweden, n 157 above, para 49 of his Opinion. 175 Ibid, para 87. 171 172

196 International Commitments and the Management of Mixity what the duty to abstain entails for a Member State keen to ensure that it complies with the duty of cooperation. Quite where this limit does lie depends entirely on the factual and legal context of each case.

9. THE MEMBER STATES AS A MEDIUM FOR THE EU The Member States as a Medium for the EU

Even in areas where Member States act on their own, they may well find themselves unable to act independently from the European Union. In those cases where the subjectmatter of an international organisation falls, even partly, within the competence of the Union but that competence may not be exercised because of the limitations set out in that organisation’s constitutional document, the Union’s ‘external competence may, if necessary, be exercised through the medium of the Member States acting jointly in the [Union]’s interest’.176 The Council, relying upon the legal basis under which it would have concluded the agreement in question on behalf of the Union, adopts a Decision authorising the Member States, in the interest of the Union, to sign and ratify that agreement. Such an organisation is the International Labour Organization and recent agreements which the Member States have been authorised to ratify, in the interest of the European Union, include the Domestic Workers Convention, 2011, concerning decent work for domestic workers (Convention No 189)177 and the Chemicals Convention, 1990, concerning the safety in the use of chemicals at work (Convention No 170).178 Other examples include the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009,179 the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001,180 and the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996.181 Such authorisations may be accompanied by the express requirement that Member States ‘shall, at the earliest opportunity, use their best endeavours to ensure that the [agreement in question] is amended in order to allow the Community to become a Contracting Party’.182 This instrumentalisation of the Member States aiming to make it possible for the EU’s external competence to be exercised provides a specific illustration of the duty of cooperation. In a similar vein, Member States may be required to take specific positions

176 Opinion 2/91, n 84 above, para 5. See the analysis in M Cremona, ‘Member States as Trustees of the Union Interest: Participating in International Agreements on Behalf of the European Union’ in Arnull et al (eds), n 171 above, 435. 177 Council Dec 2014/51/EU [2014] OJ L32/32. 178 Council Dec 2014/52/EU [2014] OJ L32/33. 179 See Council Dec 2014/241/EU [2014] OJ L128/45. 180 See Council Dec 2002/726/EC [2002] OJ L256/7. 181 See Council Dec 2002/971/EC [2002] OJ L337/55. See also Council Dec 2005/367 authorising Member States to ratify, in the interests of the European Community, the Seafarers’ Identity Documents Convention of the International Labour Organisation (Convention 185) [2005] OJ L136/1. 182 Art 4 Council Dec 2004/246/EC authorising the Member States to sign, ratify or accede to, in the interest of the European Community, the Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1992 and authorising Austria and Luxembourg, in the interest of the European Community, to accede to the underlying instruments [2004] OJ L78/22.

The Member States as a Medium for the EU 197 in the context of the work of international organisations to which the Union may not accede even though it has the competence to do so.183 The reliance of the Union upon Member States for the exercise of its external competence can give rise to considerable complications. This has become apparent in a request for an Opinion submitted by the Commission to the Court of Justice pursuant to Article 218(11) TFEU. This is Opinion 1/13 and is currently pending.184 This case is about the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. The Convention is not open to international organisations, and therefore the EU has not acceded, though all Member States have. When eight new parties applied to accede to the Convention,185 the Commission submitted proposals for a Council Decision requiring that, in accordance with the Convention rules and in the interest of the Union, the Member States deposit simultaneously a declaration accepting their accession.186 The starting point for the Commission’s proposal was the argument that the Union had acquired exclusive competence in the areas covered by the Convention following the adoption of Council Regulation 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility.187 However, the response of the Member States has been inconsistent, mainly in the light of Article 38(4) of the Convention, which provides that the accession of a state ‘will have effect only as regards the relations between the acceding State and such Contracting States as will have declared their acceptance of the accession’. The subject-matter of the request by the Commission is whether the acceptance of the accession of a third country to the Convention falls within the exclusive competence of the Union. The scope of the duty of cooperation in the context of international organisations of which the Union is not a party has given rise to a dispute that has attracted attention in Case C-45/07 Commission v Greece (IMO).188 This case was about the unilateral conduct of Greece in the context of the International Maritime Organization (IMO). The Union is not a party to the IMO, but Greece, along with all the other Member States, is. Amongst the various conventions drawn up under its aegis, the IMO adopted the International Convention for the Safety of Life at Sea (the ‘SOLAS Convention’) and the International Ship and Port Facility Security Code (the ‘ISPS Code’). In March 2005 Greece submitted a proposal to the IMO Maritime Safety Committee in which it asked it to examine the creation of checklists or other appropriate tools. The aim of this request was to assist the contracting states of the SOLAS Convention in monitoring whether ships and port facilities complied with the requirements of an Annex to that Convention, as well as with the (ISPS) Code. In the Union legal order, a Regulation had been adopted in 2004 the aim of which was to enhance the security of ships used in international trade and domestic shipping and of 183 See COM(2014) 239 final: Proposal for a Council Decision on the position to be adopted on behalf of the European Union at the 103rd session of the International Labour Conference concerning a Recommendation to the supplement the Forced Labour Convention no 29, 1930, of the International Labour Organisation (Brussels, 14 April 2014). 184 [2013] OJ C226/2. 185 Gabon, Andorra, Seychelles, the Russian Federation, Albania, Singapore, Morocco and Armenia. 186 COM(2011) 904 final, COM(2011) 909 final, COM(2011) 908 final, COM(2011) 911 final, COM(2011) 912 final, COM(2011) 915 final, COM(2011) 216 final, COM(2011) 217 final (Brussels, 21 December 2011). 187 [2003] OJ L338/1, amended by Council Reg 2116/2004 [2004] OJ L367/1. 188 Case C-45/07 Commission v Greece [2009] ECR I-701.

198 International Commitments and the Management of Mixity port facilities in the face of threats of international unlawful acts.189 It was also intended to incorporate into EU law the substance of both the SOLAS Convention and the ISPS Code. The adoption of the Regulation was viewed by the Commission as rendering the Union’s competence in the area exclusive. For this reason, the Commission objected to the submission of the Greek proposal to the IMO Maritime Safety Committee. The exclusive competence of the Union in the area covered by the Greek proposal was not in dispute, as the Greek government accepted it. However, the latter argued that its proposal would not give rise to a binding decision, as, under the IMO rules, it would not lead to the adoption of new rules. The Court rejected this argument, and pointed out that the Greek proposal ‘initiates a procedure which could lead to the adoption by the IMO of new rules’, and that the adoption of such new rules ‘would as a consequence have an effect on the Regulation, the Community legislature having decided … to incorporate in substance both of those international instruments into Community law’.190 It concluded that, having ‘set in motion such a procedure’, Greece ‘took an initiative likely to affect the provisions of the Regulation’, hence violating both the duty of cooperation as set out in Article 4(3) TEU and the TFEU legal bases on transport.191 An interesting aspect of this case was the argument by the Greek government that, in fact, it was the Commission that had violated the duty of cooperation. Greece had suggested that its proposal be discussed at the Maritime Safety Committee which was set up under the Regulation and chaired by the Commission. However, the latter refused to do so. Whilst it accepted that the Commission could have allowed a debate on the matter in order to fulfil its duty of cooperation, the Court held that: [A]ny breach by the Commission of Article 10 EC [now Article 4(3) TEU] cannot entitle a Member State to take initiatives likely to affect Community rules promulgated for the attainment of the objectives of the Treaty, in breach of that State’s obligations.192

Reference was also made to the non-participation of the EU in the IMO. The Court held that: [T]he mere fact that the Community is not a member of an international organisation in no way authorises a Member State, acting individually in the context of its participation in an international organisation, to assume obligations likely to affect Community rules promulgated for the attainment of the objectives of the Treaty.193

The Court added that: [T]he fact that the Community is not a member of an international organisation does not prevent its external competence from being in fact exercised, in particular through the Member States acting jointly in the Community’s interest.194

As in other cases where the duty of cooperation has been invoked, the judgment in IMO ought to be understood in its specific factual and legal context. The dispute was about unilateral action by a Member State in the context of an international organisation to which the Union is not a party and in an area where the Union is endowed with 189 Reg 725/2004 of the Parliament and the Council on enhancing ship and port facility security [2004] OJ L129/6. 190 n 187 above, paras 21 and 22. 191 Ibid, para 23. 192 Ibid, para 26. 193 Ibid, para 30. 194 Ibid, para 31, with reference to Opinion 2/91, n 84 above, para. 5.

The Member States as a Medium for the EU 199 exclusive competence. In that specific context, two main issues arise. The first is about the scope for national action in an international organisation. The judgment confirms that, in areas where the competence of the Union is exclusive, Member States may only act as a medium for the EU. Put differently, the AETR principle suggests that a Member State is not just prevented from concluding an agreement which would affect the interests of the Union, but also from acting unilaterally within the context of that agreement unless authorised under EU law. However, this drastic impact on the legal position of the Member State is to be understood in the specific context of what the Union does in the area where a Member State wishes to act (in the IMO case, the incorporation of international standards in Regulation 725/2004).195 The second issue is about the scope of the duty of cooperation imposed on Member States and the broad terms in which it is couched. The judgment acknowledges that the duty works both ways (it applies to the Commission as well as to the Member States). Indeed, it appears to reprimand, albeit gently, the former for not allowing the discussion of the Greek proposal at the relevant committee. The rejection of the reciprocity argument which the Greek government had put forward was both predictable and sound in principle. After all, reciprocity may not be, and is not, an acceptable defence in the context of enforcement proceedings. However, the judgment raises the question whether, in practice, the duty of cooperation is more onerous for the Member States than for the Commission, as an action by the former against the latter would be difficult to sustain.196 The specific practical arrangements agreed upon by the EU institutions and the Member States notwithstanding, the quest of the Union for a coherent presence in international fora where both it and its Member States are represented is a continuing process. Ironically, the ever-present challenges which underpin it have been amplified by the endowment of the EU with express legal personality under Article 47 TEU. In other words, Member States may be concerned that their presence in international organisations may be wiped out given the broad scope of activities that may be covered by the EU. This is not a merely theoretical exercise as it pertains to whether Member States may also be identified as the actors who make statements along with the EU. In 2011, the Council adopted a document designed to set out the general arrangements which would govern the adoption of EU statements in multilateral organisations.197 The provisions of this document vary from stating the obvious (‘Member States and EU actors will coordinate their action in international organisations to the fullest extent possible as set out in the Treaties’) to the anodyne (‘Member States will seek to ensure and promote possibilities for the EU actors to deliver statements on behalf of the EU’) to the detailed (‘EU representation will be exercised from behind an EU nameplate unless prevented by the rules of procedure of the forum in question’) to the controversial (‘Member States may complement statements made on behalf of the EU whilst respecting the principle of sincere cooperation’).198 The reason why the latter is controversial is that it may be seen, 195 See M Cremona, ‘Extending the Reach of the AETR Principle: Comment on Commission v Greece (C- 45/ 07)’ (2009) 34 European Law Review 754, 762 et seq. 196 See B Van Vooren and RW Wessel, EU External Relations Law—Text, Cases and Materials (Cambridge, Cambridge University Press, 2014) 200 where they argue that the duty of cooperation is ‘slightly lopsided’. See also C Hillion, ‘Mixity and Coherence in EU External Relations: the Significance of the “Duty of Cooperation”’ in Hillion and Koutrakos (eds), n 1 above, 113–14. 197 Council of the European Union, 15901/11, EU Statements in Multilateral Organisations—General Arrangements (Brussels, 24 October, 2011). 198 Ibid, 2–3.

200 International Commitments and the Management of Mixity in practical terms, to complicate the international presence of the EU and, potentially, to undermine its coherence.199 It is, however, a position which illustrates a concern that the coherence of the Union’s international action should not come at the expense of either the division of competences laid down in the Treaty or the relevance of the international posture of the Member States.200 Two points are worth making at this juncture. First, at the core of the arrangements outlined above is the understanding that the practicalities of the Union’s external representations should have no impact on the internal distribution of competence as laid down in primary law. This is a principle that has underpinned EU practice and has facilitated the development of the Union’s international role over the years. Secondly, the quest for the Union’s coherence may not ignore either the law or the politics of the coexistence of the Union and its Member States in international relations.201 The question that the relevant actors need to address is whether a combination of flexibility, procedural ingenuity and good will would be sufficient to strike a balance between their, often competing, interests.

10. MIXED AGREEMENTS AND INTERNATIONAL RESPONSIBILITY Mixed Agreements and International Responsibility

One of the complexities of mixed agreement is about the allocation of responsibility. It is recalled that the European Union, which is endowed with express legal personality under Article 47 TEU, incurs international responsibility. As the International Court of Justice put it: [I]nternational organisations are subjects of international law and, as such, are bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties.202

The International Law Commission of the United Nations adopted in 2011 a set of rules entitled Draft Articles on the International Responsibility of International Organisations which were endorsed by the UN General Assembly later that year (and have been known as ARIO since then).203 Arguably, the Union is not a traditional international organisation. In fact, ARIO has been attacked for failing to take the peculiarities of the Union’s legal order into account.204 Be that as it may, it is worth pointing out that, once it has established the international responsibility of every international organisation for a wrongful act (Article 3 ARIO), it sets out the rules of attribution in Article 4 ARIO as follows: 199

See the criticism in Van Vooren and Wessel, n 195 above, 261–62. See the UK statement for the minutes of the Council and the British government’s view in UK House of Commons, European Scrutiny Committee, 54th Report, 18 (16 November 2011). 201 See KE Jørgensen and RA Wessel, ‘The Position of the European Union in (Other) International Organizations: Confronting Legal and Political Approaches’ in P Koutrakos (ed), European Foreign Policy–Legal and Political Perspectives (Cheltenham, Edward Elgar Publishing, 2011) 261. 202 ICJ Advisory Opinion Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt [1980] ICJ Rep 73, 89. 203 UN Do. A/66/10. 204 See PJ Kuijper and E Paasivirta, ‘EU International Responsibility and its Attribution: From the Inside Looking Out’ in Evans and Koutrakos (eds), n 20 above, 35, who argue that, ‘[i]f applied to the EU such as they are, the ILC articles may well become a threat to the internal law and the basic structure of the EU’ and suggest that the EU ‘should simply make it clear that it will follow its own course in this matter and that it will at best be inspired by certain aspects fo the ILC rules, but will never accept them as such’ (69). 200

Mixed Agreements and International Responsibility 201 There is an internationally wrongful act of an international organization when conduct consisting of an action or omission: (a) is attributable to the international organization under international law; and (b) constitutes a breach of an international obligation of that organization.

As to the conduct attributable to the organisation, Article 6(1) ARIO provides as follows: The conduct of an organ or agent of an international organization in the performance of functions of that organ or agent shall be considered an act of that organization under international law, whatever position the organ or agent holds in respect of that organization.

Article 6(2) ARIO then provides that the definition of organs and agents is subject to the rules of the organisation. These provisions do not really address the question whether it is the Union or its Member States that are responsible for an internationally wrongful act. This question of attribution is by no means straightforward in the multilayered system set out in the Treaties where the Union and the Member States coexist and interact in different ways and in different capacities. In the context of mixed agreements, this thorny question becomes ever more complex. In the context of the ECHR, a Draft Agreement on the Accession of the EU has been drawn up which tackles the issue of responsibility, attribution and the role of the Court of Justice.205 At the time of writing, the legality of the Draft Agreement in terms EU law is considered by the Court of Justice under Article 218(11) TFEU. In certain cases of mixed agreements where there is express allocation of competence over specific provisions, the declarations submitted by the Union may clarify the issue of responsibility. The analysis earlier in this chapter, however, has highlighted the somewhat opaque drafting of these documents. In other cases, the question is raised whether the Union and the Member States are jointly and severally liable. In his Opinion in the EDF case, Advocate General Jacobs argued that ‘under a mixed agreement the Community and the Member States are jointly liable unless the provisions of the agreement point to the opposite conclusion’.206 In relation to a procedural provision of TRIPs, Advocate General Tesauro argued in his Opinion in Hermès that: ‘In these circumstances, it should be recognised that the Member States and the Community constitute, vis-à-vis contracting nonmember States, a single contracting party or at least contracting parties bearing equal responsibility in the event of failure to implement the agreement.’207 In its judgment in the EDF case, the Court held as follows: The Convention was concluded, according to its preamble and Article 1, by the Community and its Member States of the one part and the ACP States of the other part. It established an essentially bilateral ACP–EEC cooperation. In those circumstances, in the absence of derogations expressly laid down in the Convention, the Community and its Member States as partners of the ACP States are jointly liable to those latter States for the fulfilment of every obligation arising from the commitments undertaken, including those relating to financial assistance.208

205 See E Cannizzaro, ‘Beyond the Either/Or: Dual Attribution to the European Union and to the Member State for Breach of the ECHR’ in Evans and Koutrakos (eds), n 20 above, 295 and id, ‘Postscript to Chapter 12’, in ibid, 359; T Lock, ‘Accession of the EU to ECHR—Who Would be Responsible in Strasbourg?’ in D Ashiagbor, N Countouris and I Lianos (eds), The European Union After the Treaty of Lisbon (Cambridge, Cambridge University Press, 2012). 206 n 41 above, para 69 of his Opinion. 207 Case C-53/96 Hermès International v FHT Marketing Choice BV [1998] ECR I-3603, para 14. 208 Case C-316/91, n 41 above, para 29. On joint responsibility, see I MacLeod, I D Hendry and S Hyett, The External Relations of the European Communities: A Manual of Law and Practice (Oxford, Oxford University

202 International Commitments and the Management of Mixity However, Advocate General Mischo reached a different conclusion in his Opinion in the Berne Convention case where he argued in the following terms: It does not appear certain to me, however, that the simple fact that the respective obligations of the Community and the Member States to the other Contracting Parties have not been defined enables the latter to infer that the Community assumes responsibility for fulfilment of the whole of the agreement in question, including those provisions which do not fall within its competence. On the contrary, the very fact that the Community and its Member States had recourse to the formula of a mixed agreement announces to non-member countries that that agreement does not fall wholly within the competence of the Community and that, consequently, the Community is, a priori, only assuming responsibility for those parts falling within its competence.209

For all the complexity which characterises the application of mixed agreements and the incomprehension they often cause to third countries, no serious problem has actually emerged where no responsibility could be apportioned. Whilst the system governing the coexistence of the Union and the Member States in mixed agreements is not a model of clarity, the implications for third parties should not be exaggerated. In this vein, even in cases where the division of competence between them has not been uncontroversial, both the Union and the Member States have been willing to rely upon practical mechanisms which would not raise obstacles to the issue of responsibility. The significance of ad  hoc solutions and practical arrangements should not be underestimated, as, in the absence of a clear demarcation of competence, practice may clarify which party has been involved in the (mis)implementation of which rule.210 In the words of Kuijper: [N]o country and no body with a serious claim of breach of a mixed agreement has been duped by being sent to the wrong ‘responsibility window’ (Member State or EU window) and being left there, like Kafka’s character, waiting for access to the Law until he was told in the hour of his death that the door to the Law he had been hoping to penetrate all his life was there specially for him and would now be closed.211

A case in point is the WTO framework, due to the variety of the agreements it comprises, the various forms of coexistence of EU and national competence it encompassed prior to the expansion of the CCP at Lisbon, and the structure of its enforcement. Under the Dispute Settlement Understanding, the principle of cross-retaliation made it entirely possible for a third country to be found by WTO bodies to have suffered injury in an area covered by the EU competence and, yet, be enabled to impose countermeasures in an area perceived to fall within national competence. It is recalled that, in the concluding part of its ruling in Opinion 1/94, the Court had referred specifically to the rule of crossretaliation the application of which made the duty of cooperation between the EU and the Member States all the more necessary.212 The practice of the coexistence of the EU and the Member States in the WTO Press, 1996) 158–60; and C Tomuschat, ‘The International Responsibility of the European Union’ in Cannizzaro, n 64 above, 177, 185. However, see the analysis in Heliskoski, n 56 above, 147–53. 209

Case C-13/00 Commission v Ireland [2001] ECR I-2943, para 30. See M Bjoerklund, ‘Responsibility in the EC for Mixed Agreements—Should Non-Member Parties Care?’ (2001) 70 Nordic Journal of International Law 373. 211 PJ Kuijper, ‘International Responsibility for EU Mixed Agreements’ in Hillion and Koutrakos (eds), n 1 above, 208, 224. 212 Opinion 1/94, n 2 above, para 109. 210

Mixed Agreements and International Responsibility 203 illustrates the remarkable ability of all the parties involved to tackle substantive issues whilst avoiding addressing matters of principle. A couple of examples are worth mentioning. A dispute arose in 1996 about the classification of local area network (LAN) equipment and multimedia personal computers for tariff purposes. The US authorities argued that the classification carried out by the customs authorities of the Community and those of Great Britain and Ireland resulted in the imposition of higher tariffs and was in violation of Article II GATT 1994. The US authorities initiated separate proceedings against the Community, the UK and Ireland, the latter two covering the alleged violations by the respective national authorities despite the fact that those violations had also formed part of the proceedings initiated against the Community. The Community claimed that the initiation of separate proceedings against its Member States was unacceptable in the light of its exclusive competence over the application of tariff policy. This position was also supported by Ireland and the United Kingdom. The problem was addressed by means of a procedural device: following the suggestion by the Commission, the US authorities agreed that the panel established for the complaint against the EC should examine the complaints against its two Member States too. The uncontroversial existence of the Community’s exclusive competence over the GATT did not render the LAN dispute as challenging as it might have been. In relation to the issue of responsibility, for instance, both the Commission’s argument that, due to the transfer of competence, no violation could possibly have been committed by its Member States and the US counter-argument that the latter were independent WTO members were not addressed directly: in the light of the factual and procedural context of the complaints, neither the Panel213 nor the Appellate Body addressed the issue of responsibility.214 However, things could have been more difficult in the case of disputes which arose in the context of TRIPs, ie the agreement about which the Court rejected the Commission’s claims for exclusivity in a comprehensive manner in Opinion 1/94. In 1998, the United States initiated identical, albeit separate, proceedings against Ireland 215and the Community,216 alleging the violation of a number of TRIPs provisions by Irish legislation on copyright and neighbouring rights. Again, these proceedings were joined, as indeed was the case in another set of complaints by United States against Greece and the Community regarding the enforcement of intellectual property rights in the area of motion picture and television rights.217 These are by no means the only examples which suggest that the ambiguities and complexities of determining competence have not seriously challenged the ability of the EU to act within the WTO structures.218 Both the EU and the Member States have 213

See WTO Doc WT/DS62/R, WT/DS67/R, WT/DS68/R of 5 Feb 1998. See WTO Doc WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R of 5 June 1998. 215 See WTO Doc WT/DS82/2 of 12 Jan 1998. 216 See WTO Doc WT/DS115/2 of 12 Jan 1998. 217 See WTO Doc WT/DS124/1 and WTO Doc WT/DS125/1, respectively, both of 7 May 1998. 218 See A Delgado Casteleiro and J Larik, ‘The “Odd Couple”: The Responsibility of the EU at the WTO’ in Evans and Koutrakos (eds), n 20 above, 233, especially 238 et seq; C Ní Chatháin ‘The European Community and the Member States in the Dispute Settlement Understanding of the WTO: United or Divided?’ (1999) 5 European Law Journal 461; J Heliskoski, ‘Joint Competence of the European Community and its Member States and the Dispute Settlement Practice of the World Trade Organization’ (1999) 2 Cambridge Yearbook of European Legal Studies 61; F Hoffmeister, ‘Litigating against the European Union and Its Member States—Who Responds under the ILC’s Draft Articles on International Responsibility of International Organizations?’ (2010) 21 European Journal of International Law 723. 214

204 International Commitments and the Management of Mixity succeeded in fencing off attempts by third parties to divide them and exploit the general distinct reluctance to allocate competence. If anything, the EU has not shied away from assuming international responsibility and from raising its profile as an international actor. Viewed from this angle, compliance with that duty is dependent not only upon the determination of the Commission and the Member States to present a common front, but also the willingness of the other WTO members to accept the arrangements suggested to them. As neither is guaranteed, the limits of procedural ingenuity and tactical cooperation may be challenged.219 However, as a matter of practice, the Union’s interlocutors have acknowledged the peculiarities that division of competence may raise as a matter of EU law. The story of the coexistence of the EU and its Member States in the WTO illustrates the ability of the principles governing mixed agreements to function in practical terms without giving rise to major conflicts or undermining the status of the Union as a reliable international partner.

11. CONCLUSION Conclusion

In a succinct analysis in 1997, Dashwood cogently described the function of mixed agreements in the context of the Community legal order and approached them as ‘a necessary complication, rather than a necessary evil’.220 The outline provided in this chapter endorses this view. The constitutional limitations inherent in the Union legal order, the rapidly developing interdependence of international regulation of different spheres of activities, the constantly evolving state of EU law and, hence, the need for redefinition of the dividing line between Union and national competence, all place mixed agreements at the very centre of EU international relations. This has not changed by the Lisbon Treaty. As Rosas puts it, mixity ‘is here to stay’.221 Once the principal role of this form of treaty-making has been acknowledged, the emphasis of the interested parties should be on effective methods of managing the exercise of shared competence. This may be done by formalising the modalities of the interactions between the EU and its Member States. For instance, various proposals were made for a Code of Conduct222 or a Protocol223 which would govern participation in the WTO. It has also been suggested that a simplified procedure for the collective exercise

219

See Heliskoski, n 217 above, 76 and 80 et seq. A Dashwood, ‘Why Continue to Have Mixed Agreements at All?’ in JHJ Bourgeois, J-L. Dewost, M-A Gaiffe (eds), La Communauté européenne et les accords mixtes. Quelles perspectives? (Brussels, Presses Interuniversitaires Européennes, 1997) 93. 221 A Rosas, ‘The Future of Mixity’ in Hillion and Koutrakos (eds), n 1 above, 367. 222 See J Heliskoski, ‘The “Duty of Cooperation” between the European Community and its Member States within the World Trade Organization’ (1996) 7 Finnish Yearbook of International Law 59, 116 et seq. Following the conclusion of the Uruguay Round, a Code of Conduct had been drawn up between the Council, the Commission and the Member States authorising the Commission to carry out the negotiations on transport and investment services: see Opinion 1/94, n 2 above, 5365–66. On the desired content of such an arrangement, see A Antoniadis, ‘The Participation of the European Community in the World Trade Organisation: An External Look at European Union Constitution-Building’ in T Tridimas and P Nebbia (eds), European Union Law for the Twenty-First Century, vol 1 (Oxford, Hart Publishing, 2004) 321, 338–40; PJ Kuiper, ‘The Conclusion and Implementation of the Uruguay Round Results by the European Community’ (1995) 6 European Journal of International Law 222, 243–44; Timmermans, n 66 above, 246–47. 223 See the proposal by the Portuguese Presidency at the Nice IGC: CONFER 4750/00 Presidency report to the Feira European Council (Brussels, 14 June 2000). 220

Conclusion

205

of Member States’ competence in the context of mixed agreements be introduced in primary law.224 The analysis in this chapter has suggested that, rather than functioning on the basis of clearly predetermined principles, the Union and the Member States often manage their participation on the basis of ad  hoc procedural arrangements, leaving, amongst others, the question of precise delimitation of competence and responsibility in an ambiguous state. One should neither overestimate the seriousness of the complications to which the existing dynamic state of affairs has given rise, nor underestimate the advantages that flexibility may provide in practical terms. Whilst the possibilities of challenging the ability of the EU and the Member States to manage their participation in the WTO as a matter of practice are endless, no crisis has actually occurred. Equally, one should be aware of the inherent limits of legal rules which cannot possibly provide for every eventuality, all the more so in the light of the constantly evolving state of EU law and, hence, the ensuing redefinition of the dividing line between EU and national competence. Similarly, one should not underestimate the significance of the constant channels of cooperation between the EU institutions and the Member States. Developed incrementally and relied upon as a matter of practice, these arrangements indicate a culture of cooperation which, the absence of a formal foundation notwithstanding, underlie not only areas of potential controversy but also areas of certainty: in the negotiations leading to the adoption of the Cartagena Protocol on Biodiversity, for instance, the informal arrangements provided by the Commission and the Council were of such wide scope as to allow for meetings aiming at achieving a common position even on issues of exclusive competence.225 Therefore, the capacity of the EU and national structures to respond to legal challenges as a matter of practice and the culture of cooperation which has developed over the years between the EU and Member States and which manifests itself even in areas where the definition of competence is not an issue226 should not be ignored. Similarly, the specific circumstances under which problematic cases reach the Court of Justice put any alarmist views into perspective: it is recalled, for instance, that in FAO, the dispute about voting notwithstanding, the Community and the Member States had had no difficulty during the negotiations in reaching a common position. The above is not to suggest that, in the context of EU international relations, complacency is a virtue. Every effort aiming at facilitating the exercise of the Union’s external competence and its coexistence with national competence should be encouraged. It is in this context that the central role of the duty of cooperation emerges.227 Developed incrementally and at times unpredictably, the duty binding the EU institutions and the Member States in the process of the negotiation, conclusion and application of international agreements cannot but reveal its precise implications through practice and, ultimately, its interpretation by the Court of Justice. After all, no mechanism aiming 224

See A Dashwood, ‘Mixity in the Era of the Treaty of Lisbon’ in Hillion and Koutrakos (eds), n 1 above,

351. 225

See M Kritikos, ‘Mixity and Ad Hoc Arrangements in EU Negotiating Strategies for the Biosafety Protocol’ in F Snyder (ed), International Food Security and Global Legal Pluralism (Brussels, Bruylant, 2004) 153, 166. 226 See the empirical analysis in A Niemann, ‘Between Communicative Action and Strategic Action: The Article 113 Committee and the Negotiations on the WTO Basic Telecommunications Services Agreement’ (2004) 11 Journal of European Public Policy 379. 227 For a suggestion that it be incorporated in the Treaties, see J Heliskoski, ‘Should There Be a New Article on External Relations?’ in M Koskenniemi (ed), International Law Aspects of the European Union (The Hague, Kluwer, 1998) 273.

206 International Commitments and the Management of Mixity at precisely delineating competences and, accordingly, regulating their exercise can be capable of capturing all the aspects and ramifications of the relationship between the EU and its Member States within the context of a mixed agreement. In the light of this somewhat elusive quest for certainty and the ensuing structural limitations of any system aiming to manage shared competence, the role of the Court of Justice becomes all the more significant. After all, any assessment of the function of mixed agreements and the mechanisms of managing shared competence is dependent upon the system of enforcement of international obligations within the Union legal order. This will be examined in the following chapters.

The Status of International Law in the EU Legal Order

6 The Status of International Law in the EU Legal Order 1. INTRODUCTION Introduction

T

HE ANALYSIS HAS so far focused on the competence of the Union to liaise with the rest of the world and the ways in which the latter may choose to exercise this competence, either on its own or along with its Member States. It identified the implications of the existence and the exercise of this competence for both EU law and the Member States. In particular, it explored the impact of the international conduct of the Union for the power of the Member States to act as sovereign subjects of international law. This part will focus on the relationship between EU and international law. This chapter will examine the status of international law within the EU legal order.

2. BINDING EFFECT OF INTERNATIONAL AGREEMENTS CONCLUDED BY THE EU Binding Effect of International Agreements Concluded by the EU

When the Union concludes an international agreement, it becomes bound under international law to fulfil the commitments undertaken pursuant to its provisions. This pacta sunt servanda principle constitutes a principle of customary international law which is expressly laid down in Article 26 VCLT:1 Every treaty in force is binding upon the parties to it and must be performed by them in good faith.

However, the question which this raises is what other dimension the conclusion of such agreements adds to the legal position of the Union institutions and the Member States. Article 216(2) TFEU provides as follows: Agreements concluded by the Union are binding upon the institutions of the Union and its Member States.

This provision suggests that international agreements concluded by the EU constitute sources of EU law.2 This position in the Union legal order was highlighted by the Court of Justice early on. In Haegeman a Belgian court referred to the Court of Justice a number 1 On the EU Courts’ approach to the VCLT, see PJ Kuijper, ‘The European Courts and the Law of Treaties: The Continuing Story’ in E Cannizzaro (ed), The Law of Treaties Beyond the Vienna Convention (Oxford, Oxford University Press, 2011) 256. 2 G Gaja, ‘Trends in Judicial Activism and Judicial Self-Restraint Relating to Community Agreements’ in E Cannizzaro (ed), The European Union as an Actor in International Relations (The Hague, Kluwer, 2002) 117, 119.

209

210 The Status of International Law in the EU Legal Order of questions about the Association Agreement concluded between the Community and its Member States and Greece in 1961 (the ‘Athens Agreement’).3 The applicant in the main proceedings had challenged a national decision imposing countervailing duties on imports of wine from Greece, arguing that it was a violation of a Protocol annexed to the Athens Agreement. The starting point for the judgment was the conclusion of the Agreement by the Council pursuant to the procedures laid down in primary law (now Article 218 TFEU). The Court ruled that the Agreement ‘is therefore, in so far as concerns the Community, an act of one of the institutions of the Community within the meaning of [Article 234 EC, now Article 267 TFEU]’.4 The Court then ruled that the provisions of the Athens Agreement ‘form an integral part of Community law’ from their entry into force.5 This line of reasoning was articulated in four one-phrase paragraphs which are striking in their terseness. They precede any reference even to the first question referred by the Belgian court and were relied upon by the Court in order to address the question of whether it had jurisdiction under the preliminary reference mechanism to rule on an agreement concluded both by the Union and the Member States. This is an issue that will be examined in the next chapter. For the purposes of this analysis, it is the statement about the status of Athens Agreement that is of interest. The absence of any reference to the precursor to Article 216(2) TFEU is curious.6 Instead, the Court chose to focus on the conclusion of international agreements pursuant to the adoption of an EU act. This appears to provide some textual foundation in substantiating the position of international agreements within the EU legal order. Should the Court have distinguished between an Agreement concluded by the Union and the secondary measure adopted by the Council actually concluding the Agreement? It should be pointed out that the Council measure carries out a more important function than merely expressing the Union’s assent to the agreement.7 It expressly concludes the Agreement on behalf of the Union and includes its text in an annex, hence defining the subject-matter of the obligation to which Article 216(2) TFEU refers. Another interesting feature of the Haegeman judgment is that the latter was not about an agreement concluded by the Union alone. It was a mixed agreement which the Court described as ‘an integral part of the Community legal order’. The scope of this conclusion is not as all-encompassing as the terseness of its reasoning might appear to suggest: the agreement constitutes an act of the Union’s institutions ‘in so far as concerns the Community’ and the Court is to exercise its jurisdiction ‘within the framework of [Community] law’.8 However, these qualifications do not address the questions raised by the cryptic manner in which the Court chose to articulate its line of reasoning. Be that as it may, the description of international agreements concluded by the Union as an integral part of the Union legal order has now become settled case-law.9 3

Case 181/73 R & V Haegeman v Belgian State [1974] ECR 449. Ibid, para 4. Ibid, para 5. 6 See M Mendez, The Legal Effects of EU Agreements—Maximalist Treaty Enforcement and Judicial Avoidance Techniques (Oxford, Oxford University Press, 2013) 66–67. 7 This is the phrase used by Hartley in Constitutional Problems of the European Union (Oxford, Hart Publishing, 1999) 32. 8 n 3 above, paras 4 and 6, respectively. 9 See eg Case C-344/04 IATA and ELFAA [2006] ECR I-403, para 36; Case C-301/08 Bogiatzi [2009] ECR I-10185, para 23; Case C-63/09 Walz [2010] ECR I-4239, paras 19–20; Case C-160/09 Katsivardas [2010] 4 5

Binding Effect of International Agreements Concluded by the EU 211 The ratio of Article 216(2) TFEU and the status of international agreements concluded by the EU have legal implications for the Member States. This was the subject-matter of the reference from the German Federal Finance Court on the interpretation of the Free Trade Agreement (FTA) between the Community and Portugal in Kupferberg.10 The Court was asked to examine the legality of the imposition of charges under German law upon quantities of port imported from Portugal. In its judgment the Court relied upon Article 300(7) EC (now Article 216(2) TFEU) and opined that ‘it is incumbent upon the Community institutions, as well as upon the Member States, to ensure compliance with the obligations arising from such agreements’.11 As a corollary of this responsibility, the Court articulated the following duty imposed upon the Member States: In ensuring respect for commitments arising from an international agreement concluded by the Community institutions the Member States fulfill an obligation not only in relation to the non-member country concerned but also and above all in relation to the Community.12

Therefore, the assumption of international obligations by the Union on its own carries with it the assumption of a Union law obligation by the Member States. This is related to the duty of loyal cooperation, ie the duty of Member States under Article 4(3) TEU ‘to take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from action taken by the institutions of the Union’. After all, the conclusion of an agreement pursuant to Article 218 TFEU is an action taken by the Union the effects of which are formalised within the Union legal order by means of the Council measure actually concluding the agreement. Viewed from this angle, the construction of the obligations imposed upon the Member States in Kupferberg is strict in so far as it refers to the internal effects of the agreement on the legal position of the Member States, ie the effects produced within the Union legal order. Arguments to the contrary have been advanced seeking to establish independent legal duties binding the Member States against third parties.13 However, this position is not convincing: when based on an agreement concluded by the Union alone, the obligation borne by the Member States towards third countries is only indirect: their actions or inactions may be the medium upon which the Union would need to rely in order to comply with its international obligations under the agreement. Indeed, in Kupferberg the Court referred to the possibility of an agreement being implemented by means of Community and national law, despite its conclusion by the Community alone.14 To that effect, it is worth recalling the Agreement on competition law between the Community alone and the United States concluded contrary to the procedure laid down in Article 300 EC (now Article 218 TFEU). In its judgment in France v Commission the Court pointed out that the agreement was nonetheless binding on the Community and that, in the event of non-compliance, it would be the Community which would incur liability.15 Therefore, ECR I-4501; Case C-386/08 Brita [2010] ECR I-1289, para 39; Case C-135/10 Società Consortile Fonografici (SCF) v Marco Del Corso ECLI:EU:C:2012:140, para 39; C-11/11 Air France v Folkerts, ECLI:EU:C:2012:747, para 31; Case C-410/11 Espada Sánchez and Others, ECLI:EU:C:2013:106, para 20. 10

Case 104/81 Hauptzollamt Mainz v CA Kupferberg & Cie KG aA [1982] ECR 3641. Ibid, para 11. 12 Ibid, para 13. 13 For a summary and convincing counter arguments, see I Macleod, ID Hendry and S Hyett, The External Relations of the European Communities (Oxford, Oxford University Press, 1996) 127, n 30. 14 n 10 above, para 12. 15 Case C-327/91 France v Commission [1994] ECR I-3641, paras 23–25. See the analysis in Chapter 4. 11

212 The Status of International Law in the EU Legal Order whilst confirming the duty on Member States under a Union agreement, Article 216(2) TFEU may not transform this duty into an international law one. It is for this reason that compliance by the Member States and Union institutions may only be ensured pursuant to the system of judicial review set out under the Union’s primary rules. The judgment in Kupferberg was about an agreement that fell within the exclusive scope of the Union’s competence. The duties imposed on Member States pursuant to mixed agreements are more difficult to ascertain and both their scope and intensity are deeply contested by national authorities. They are examined in Chapter 5.

3. BINDING EFFECT OF INTERNATIONAL AGREEMENTS NOT CONCLUDED BY THE EU Binding Effect of International Agreements Not Concluded by the EU

Whilst Article 216(2) TFEU affirms the binding effect of international agreements concluded by the Union, it does not do so exhaustively. Over the years, the Court has held that the Union may also be bound by international agreements which it has not concluded itself. The first time this was held to be the case was in relation to the General Agreement on Tariffs and Trade (GATT) concluded in 1947. In International Fruit Company16 a Dutch court referred to the Court questions about a set of Community measures restricting the importation of apples from third countries and their validity in the light of the GATT. One of the issues raised before the Court was whether the GATT was binding upon the Union. The Court answered this question in the affirmative on two grounds. First, it pointed out that all Member States had been bound by the GATT at the time of the establishment of the then European Economic Community and they had intended to observe their obligations in formulating and implementing Community law. This was illustrated by the rule of Article 307 EC (now Article 351 TFEU) which recognised the application of the principle of pacta sunt servanda within the new legal order. It was also reflected in Article 110 of the original Treaty of Rome, now deleted, which stated that the Community was to adhere to the same aims as those of the GATT. Secondly, the Court held that the Community ‘has assumed the functions inherent in the tariff and trade policy’ within the context of its Common Commercial Policy, progressively during the transitional period and in their entirety on the expiry of that period.17 It was in the light of this development that it opined that, ‘by conferring those powers on the Community, the Member States showed their wish to bind it by the obligations entered into under [the GATT]’.18 In order to substantiate this position, the Court drew upon the autonomous involvement of the Community, through its own institutions, as a party to the various agreements concluded within the GATT framework pursuant to the now repealed provision of Article 114 of the Treaty of Rome.19 It was on that basis 16 Joined Cases 21 to 24/72 International Fruit Company NV and Others v Produktschap voor Groenten en Fruit [1972] ECR 1219. 17 Ibid, para 14. 18 Ibid, para 15. 19 That provision read as follows: ‘The agreements referred to in Article 111(2) [ie tariff agreements] and in Article 113 [now 133] shall be concluded by the Council on behalf of the Community, acting unanimously during the first two stages and by a qualified majority thereafter.’

Binding Effect of International Agreements Not Concluded by the EU 213 that the Court concluded that ‘in so far as under the EEC Treaty the Community has assumed the powers previously exercised by Member States in the area governed by [the GATT], the provisions of that agreement have the effect of binding the Community’.20 The legal context within which the Court was asked to clarify the position of international agreements in International Fruit Company was not as controversial as it might have been as it did not raise questions of competence. The subject-matter of the GATT, ie the conclusion of tariff and trade arrangements, fell within the scope of the Common Commercial Policy (CCP) as defined expressly in Article 133 EC (now Article 207 TFEU). As such, it was covered by the exclusive competence of the Community: had it been negotiated and concluded following the expiry of the transitional period, and had the GATT provided for membership of international organisations, it would have been the Commission and the Council respectively which would have been responsible, the latter acting by qualified majority voting. The principle that the Union assumes the obligations of Member States set out in an agreement which it has not concluded itself is reminiscent of the principle of state succession in respect of treaties. This is a recognised principle of international law.21 The introduction of the concept of succession in the EU legal order was noteworthy, as the exclusive nature of the agreement in question, namely the GATT, was not stated in express terms in the EC Treaty and had not yet been spelled out by the Court at the time of the reference in International Fruit Company. It would take three more years for it to be articulated.22 With the benefit of hindsight, the ruling of the Court appears to signal what was to become one of the pillars of the Union’s external trade relations. Furthermore, the determination of the effect of GATT provisions in both domestic and the Community legal order became a matter for the Court of Justice: as the Community had replaced the Member States in the fulfilment of their obligations, the interpretation and application of the GATT within the context of a domestic dispute under domestic law was ipso facto a dispute governed by Community law. The significance of the implications of this type of judicial exclusivity became apparent in the judgment in International Fruit Company itself with reference to the legal effect of the GATT. This is discussed in detail in Chapter 8. For the purposes of this analysis, suffice it to point out that, in ruling out even the possibility of a national court being receptive to a more direct enforcement of the GATT, the Court’s judgment determined the effectiveness of that Agreement in the territory of one of the most important international trade actors. It is not often the case that an international agreement concluded by the Member States is also binding on the Union because the latter has assumed the obligations of the former. For instance, the Warsaw Convention (Convention for the Unification of Certain Rules Relating to International Carriage by Air) was held not to bind the Union.23 This is also the case for Marpol 73/78 (International Convention for the Prevention of Pollution 20

n 16 above, para 18 of the judgment. See A Aust, Modern Treaty Law and Practice, 3rd edn (Cambridge, Cambridge University Press, 2013) ch 21; J Crawford, Brownlie’s Principles of Public International Law, 8th edn (Oxford, Oxford University Press, 2012) 438–43; J Klabbers, International Law (Cambridge, Cambridge University Press, 2013) 80–84; M Shaw, Public International Law, 6th edn (Cambridge, Cambridge University Press, 2008) 966–84. See also R Schütze, ‘The “Succession Doctrine” and the European Union’ in A Arnull, C Barnard, M Dougan and E Spaventa (eds), A Constitutional Order of States? Essays in EU Law in Honour of Alan Dashwood (Oxford, Hart Publishing, 2011) 459. 22 See Opinion 1/75 (re: OECD Understanding on a Local Cost Standard) [1975] ECR 355. 23 Case C-301/08 Bogiatzi [2009] ECR I-10185, paras 25–33. 21

214 The Status of International Law in the EU Legal Order from Ships of 1973, as supplemented by the Protocol of 17 February 1978)24 and the Chicago Convention (Convention on International Civil Aviation).25 The issue of succession by the Union to obligations assumed by its Member States was also raised in the context of Kadi litigation. This saga has been one of the most hotly contested line of cases emanating from Luxembourg in the last few years. So much so, that a summary of its factual background would be sufficient for this analysis. The dispute originated in sanctions adopted by the Union in order to implement a sanctions regime which had been set up under UN Security Council Resolutions. This regime entailed the freezing of assets of individuals suspected of financing al-Qaeda and whose name was included in a list of individuals and organisations compiled by a committee (the ‘Sanctions Committee’) set up by the UN Security Council in order to monitor the management of the above sanctions regime. As all Member States are parties to the United Nations, they are bound by its Charter to apply the Resolutions adopted by the UN Security Council. In this case, they adopted a CFSP measure in which they authorised the Union (then Community) to adopt the necessary legislation that would implement the sanctions regime set out in the UN Security Council Resolution. The Council did adopt such legislation which transposed the content of the sanctions regime into the Union legal order. Thus, what had been an international law duty on Member States became an EU law obligation. However, the regime set out at UN level was problematic. Individuals were not warned of their listing in advance, were not made privy to the information which led to their listing, and did not have the right to appeal against their listing directly to the Sanctions Committee. Instead, they were allowed to approach their state of origin or residence and ask it to make the case for their delisting for them. In Case T-306/01 Yusuf and Case T-315/01 Kadi26 the applicants challenged the Council Regulation which froze their assets before the General Court (then known as the Court of First Instance (CFI)). A main issue upon which the substantive assessment of the sanctions regime was premised was the status of the UN Charter in the Union legal order. The EU is not a member of the United Nations,27 and therefore is not bound directly by the Charter. However, all its Member States are. The question that arose was whether the obligations of the latter under the Charter had been assumed by the Union. The Court answered this in the affirmative. Whilst it accepted that the UN Charter was not binding on the Union as a matter of public international law, it was as a matter of EU law: [T]he Community must be considered to be bound by the obligations under the Charter of the United Nations in the same way as its Member States, by virtue of the Treaty establishing it.28

The line of reasoning substantiating this conclusion was as follows: 194 In that regard, it is not in dispute that at the time when they concluded the Treaty establishing the European Economic Community the Member States were bound by their obligations under the Charter of the United Nations.

24

Case C-379/92 Peralta [1994] ECR I-3453, para 16; Case C-308/06 Intertanko [2008] ECR I-4057, para 48. Case C-366/10 Air Transport Association of America (ATAA) et al, ECLI:EU:C:2011:864, paras 62–71. 26 Case T-315/01 Kadi v Council and Commission [2005] ECR II-3649. 27 According to Art 4 UN Charter, membership is only open to states. 28 Case T-315/01 Kadi, para 193; Case T-306/01 Yusuf [2005] ECR II-03533, para 243. 25

Binding Effect of International Agreements Not Concluded by the EU 215 195 By concluding a treaty between them they could not transfer to the Community more powers than they possessed or withdraw from their obligations to third countries under that Charter (see, by analogy, Joined Cases 21/72 to 24/72 International Fruit Company and Others (‘International Fruit’) [1972] ECR 1219, paragraph 11). 196 On the contrary, their desire to fulfil their obligations under that Charter follows from the very provisions of the Treaty establishing the European Economic Community and is made clear in particular by Article 224 and the first paragraph of Article 234 (see, by analogy, International Fruit, paragraphs 12 and 13, and the Opinion of Advocate General Mayras in those cases, ECR 1231, at page 1237). 197 Although that latter provision makes mention only of the obligations of the Member States, it implies a duty on the part of the institutions of the Community not to impede the performance of the obligations of Member States which stem from that Charter (Case 812/79 Burgoa [1980] ECR 2787, paragraph 9). 198 It is also to be observed that, in so far as the powers necessary for the performance of the Member States’ obligations under the Charter of the United Nations have been transferred to the Community, the Member States have undertaken, pursuant to public international law, to ensure that the Community itself should exercise those powers to that end. 199 In this context it is to be borne in mind, first, that in accordance with Article 48(2) of the Charter of the United Nations, the decisions of the Security Council ‘shall be carried out by the Members of the United Nations directly and through their action in the appropriate international agencies of which they are members’ and, second, that according to the case-law (Poulsen and Diva Navigation, paragraph 158 above, paragraph 9, and Racke, paragraph 158 above, paragraph 45, and Case 41/74 Van Duyn [1974] ECR 1337, paragraph 22), the Community must respect international law in the exercise of its powers and, consequently, Community law must be interpreted, and its scope limited, in the light of the relevant rules of international law. 200 By conferring those powers on the Community, the Member States demonstrated their will to bind it by the obligations entered into by them under the Charter of the United Nations (see, by analogy, International Fruit, paragraph 15). 201 Since the entry into force of the Treaty establishing the European Economic Community, the transfer of powers which has occurred in the relations between Member States and the Community has been put into concrete form in different ways within the framework of the performance of their obligations under the Charter of the United Nations (see, by analogy, International Fruit, paragraph 16). 202 Thus it is, in particular, that Article 228a of the EC Treaty (now Article 301 EC) was added to the Treaty by the Treaty on European Union in order to provide a specific basis for the economic sanctions that the Community, which has exclusive competence in the sphere of the common commercial policy, may need to impose in respect of third countries for political reasons defined by its Member States in connection with the CFSP, most commonly pursuant to a resolution of the Security Council requiring the adoption of such sanctions. 203 It therefore appears that, in so far as under the EC Treaty the Community has assumed powers previously exercised by Member States in the area governed by the Charter of the United Nations, the provisions of that Charter have the effect of binding the Community (see, by analogy, on the question whether the Community is bound by the General Agreement on Tariffs and Trade (GATT) of 1947, International Fruit, paragraph 18; see also, in that it recognises that the Community exercises circumscribed powers when giving effect to a trade

216 The Status of International Law in the EU Legal Order embargo imposed by a resolution of the Security Council, Dorsch Consult v Council and Commission, paragraph 158 above, paragraph 74).29

This line of reasoning is not convincing. Its analysis of the relevant legal provisions is somewhat vague and lacks any detailed examination of the specific powers that the Member States are alleged to have transferred to the Union. Such a detailed analysis might not have been essential in International Fruit Company, given the specific and clearly confined scope of the GATT and the EU’s primary rule on the CCP. In the case of the UN Charter, however, and the extraordinarily wide mandate it bestows on the United Nations (to assume primary responsibility for the maintenance of international peace and security), the position that the Member States have transferred such responsibility to the Union is nothing short of staggering.30 Its adoption in the above extract comes across as a necessary, albeit problematic, step in the CFI’s overall construction of deference to the UN Charter. On appeal, the Court of Justice did not engage in an examination of the issue of succession, as it held that under no circumstances would international law affect the constitutional fundamentals of the EU legal order, including respect for f